author: MOUTON, J. MOUTON, J.

text:
    No. 726
    First Circuit
    LEBLEU v. VACUUM OIL CO.
    (January 26, 1931. Opinion and Decree.)
    (March 3, 1931. Rehearing Refused.)
    J. A. Williams, of Lake Charles, attorney for plaintiff, appellant.
    Cline, Plauche & Girod, of Lake Charles, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff is the owner of a tract of land in the parish of Calcasieu which is fenced in. In July, 1929, defendant, through its agents or employees, built a small house or hut on the land in which they installed a Torsion Balance machine for the exploration of minerals. The Torsion Balance was used for three or four hours, and the hut remained there for about three days. Defendant company nor these employees had any authority whatsoever from the plaintiff to enter these premises for exploration purposes or for any other. The entry on the land was therefore unlawful and constituted a trespass.

Plaintiff alleges that the greatest value to the land referred tq was in its potential oil and mineral value, and in consequence the lease value was depreciated because of considerable mineral developments in the vicinity of his property. Basing himself on the foregoing allegations, plaintiff alleges that the nature of the information which defendant company secured by this unauthorized exploration of his land has made it almost impossible to lease it, and will prevent him from 'leasing the property to any other individual or company; that the land should lease, on a commercial or exploration basis, for at least $5 per acre, but that this lease value has been destroyed by the illegal information secured by defendant company, and that he has since been unable to lease the property, from which he has suffered a depreciated value in the land of at least $500.

The proof shows that the test made by the operation of the Torsion Balance on the land of the plaintiff was for the purpose of ascertaining the character of lands situated about two miles away from plaintiff’s property, and was not intended to secure any information as to the existence of any minerals on the land of the plaintiff. The proof is that no information was or could have been obtained as to the presence of any minerals on the property of plaintiff by the operation of the Torsion Balance on his land. This fact is well established by the testimony of the experts who operated the machine, and as to which there is no contradictory evidence. As the defendant company did not ,•secure any information in reference to ■plaintiff’s land, it is therefore apparent that it could not have destroyed the lease value for the alleged illegal information <of .which plaintiff complains, and grounds his demand of $500 for alleged depreciation in the lease value of the property. Plaintiff avers also in connection with the foregoing complaint that since the information thus obtained by defendant he has been unable to lease the land.

Plaintiff testified that since defendant made these explorations on his property he had never tried to lease it for any oil purposes. His testimony certainly does not support the allegation in his petition that on account of the supposed information which he lays at the door of defendant company, he had been unable to lease the land. The fact is that he says he refused to lease it to the Gulf Company for exploration purposes. It is true he says that the Gulf Company did not offer him a penny for the .proposed explorations, out in connection with that statement, he testifies that he turned that company down without discussing the price. It therefore appears, by the proof above referred to and the reasons in reference thereto, that plaintiff is not entitled to any damages for the alleged depreciation of his land or the lease value thereof for which he is asking $500. The court below properly rejected the claim for any damages for that item.

Plaintiff ‘ further alleges that the unauthorized entry of the employees of defendant through his inclosures around his property was a willful and deliberate trespass for which he is “entitled to recover the sum of five hundred and no/100 ($500.00) Dollars from said Vacuum Oil Company as exemplary and punitive damages.”

In the case of Gumpert v. Philip Werlein, 149 La. 840, 90 So. 215, it was alleged that the agents of defendant had invaded the house of the plaintiff and proceeded to remove a piano on which she owed a small balance to defendant, and desisted from so doing only after she had called for help from her neighbors and the police. In that case an exception of no cause of action was filed which had the legal effect of admitting the facts alleged. These allegations, says the court, clearly charge facts amounting to a trespass. The judgment maintaining the exceptions, including one for vagueness, was reversed and the case remanded for proof on the damages claimed for the alleged trespass. The court in that case refers to several decisions where damages were accorded in indemnification for trespass. In these references the court cites Boniel v. Block, 44 La. Ann. 514, 10 So. 869. In that decision the memorable case of Thayer v. Littlejohn, 1 Rob. 140, is referred to in support of the rule allowing damages in cases of trespass.

In the Littlejohn case the landlord, instead of resorting to legal process, took upon himself to remove the personal effects from the premises occupied by his tenant. In addition to the removal of these effects, the landlord had also turned out the family of his tenant from the property. In referring to the furniture, the court said it afforded no excuse to the landlord because the removal had been effected without violence or injury. The verdict of the jury granting damages in that suit was affirmed.

We refer to the expression of the court in that case where it says that there had been neither violence or injury, because in the instant case there was simply an entry on the land without violence or resulting injury. This entry was, however, entirely unauthorized and was clearly unlawful. As it was effected by the employees of defendant company, it was a quasi offense for which the company, their employer or master, is answerable. Civil Code, art. 2320.

Under article 1934, Civ. Code, a party is responsible in damages for the commission of a quasi offense either against his person or by the invasion of his property rights.

In this case plaintiff clearly and fully alleged that defendant company, through its employees, had committed a willful and deliberate trespass by entering on his property without his consent or authority.

On those allegations he averred that he was therefore entitled to punitive and exemplary damages. Obviously, he could not recover punitive or exemplary damages whatever might have been his allegations, as it is now definitely settled that such damages are not recoverable under Louisiana law. Serio v. American Brewing Co., 141 La. 290, 74 So. 998, L. R. A. 1917E, 516; Hanna v. Otis, 151 La. 851, 92 So. 360.

Plaintiff was therefore in error in alleging that upon his averments, to whicn we have referred, that he was entitled to exemplary or punitive damages. In so referring and alleging as a legal consequence he was wrong, but the facts as set out by him in his petition entitled him, however, to recover damages for a quasi offense resulting from the invasion of his premises or property rights. His cause of action for relief on that ground was fully alleged and sustained by the evidence.

In the case of Mallerich v. Germaine, Man. Unrep. Cas. 444, in reference to the prayer for general relief, the court said:

“Under the prayer for general relief, courts will render such judgment, suited to the nature and justice of the cause, as would be rendered in a new suit, and this to avoid a circuity of actions.”

Under the allegations of plaintiff’s petition, the relief suited to the nature and justice of the cause entitles” plaintiff to a judgment in damages for the quasi offense committed against his property rights. Article 1934, Civil Code, allows much discretion to the court in the assessment of damages in cases of this character.

We find that an assessment of $100 damages meets the exigencies of the case under the evidence adduced on the trial.

The finding of the lower court rejecting the demand of $500 for the alleged lease depreciation of the land is affirmed for the reasons hereinabove stated, but in other respects the judgment must be reversed.

It is therefore ordered, adjudged and decreed that the judgment is reversed, as above stated, and that plaintiff have judgment against defendant company for the sum of $100 with 5 per cent per annum interest from judicial demand, with all costs of court.

ON MOTION FOR REHEARING

MOUTON, J.

There is nothing in our original opinion to indicate that the damage for $100 allowed herein against defendant was for exemplary or vindictive damages, or had been inflicted as a penalty. This, we understand, is admitted by counsel in their brief for a rehearing as the authorities referred to by us can lead to no other conclusion.

The evidence shows, as is pointed out m our decision, that plaintiff had suffered an invasion of his property rights by defendant company which constituted a wanton trespass.

Defendant contends that damages allowed in such cases are merely technical and nominal; that plaintiff should not recover over one dollar with his costs.

He refers to cases, where, though a benefit had resulted from the wrong done or the right violated, damages were, however, recovered by the injured. That ruling shows to what extent the courts have gone to protect the property and personal rights of litigants. Counsel also cite Vincent v. Morgan’s La. & Tex. R. & S. S. Co., 140 La. 1027, 74 So. 541.

In Vincent v. Morgan’s L. & T. R. R. & S. S. Co., 140 La. 1027, 74 So. 541, referred to in the brief of counsel for mover, the cases McGary v. City of Lafayette, 12 Rob. 668, Id., 4 La. Ann. 440, are cited in that decision where damages had been allowed for the demolition of a building. The verdict rendered in those cases for $5,000 was reduced to $1,500.

In Vincent v. Morgan’s L. & T. R. R. & S. S. Co., 140 La. 1027, 74 So. 541, the court in commenting on those decisions, approved the ruling, saying that the damages were not exemplary or vindictive, but had been allowed to represent an element of damage for the invasion of plaintiff’s rights under article 1934, Civ. Code, which says the court contemplates the assessment only of compensatory damages.

The act of defendant was, in the cases commented upon, considered as a quasi-offense. Where a party’s private property is taken possession of without authority of law or the consent or knowledge of the proprietor, as appears in this case, the complainant unquestionably suffers a flagrant violation of his property rights. It is impossible to believe that a person suffering such an injury would not, of necessity, be vexed and aggrieved. The violation of such rights would certainly react on his feelings. An offense or quasi-offense of the character described could not fail to carry such a result. Damages of that nature are compensatory and come under the operation of article 1934, Civ. Code.

In cases of that nature it is not required that the reparation be equal to the injury, as much is left to the discretion of the judge in assessing the damages. McGary v. City of Lafayette, 12 Rob. 668; Id., 4 La. Ann. 440; Vincent v. Morgans’ L. & T. R. & S. S. Co., 140 La. 1027.

We shall, however reduce the damages allowed in our original judgment to $50 ■without the necessity of granting a rehearing.

It is therefore ordered, adjudged and decreed that the judgment originally rendered herein for $100 he and is hereby amended by reducing it to the sum of $50, and as thus amended it be affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 13,265
    Orleans
    DI CARLO v. CAMPO
    (February 16, 1931. Opinion and Decree.)
    (March 2, 1931. Rehearing Refused.)
    Charles J. Rivet, of New Orleans, attorney for plaintiff, appellant.
    E. M. Stafford and Daniel Wendling, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff claims $200, with interest and attorney’s fees) under a written lease and four certain rent notes of $50 each. Defendant admits the execution of the lease and notes, but, by way of special defense, alleges that “on June 3, 1929, the said premises so leased to this defendant to be used as a colored pool room, as stated in said lease, caught fire and were totally destroyed by fire and ceased to be fit for the purpose for which it was leased, by reason whereof said lease was at an end as of said date.’’

The following articles of the Civil Code are of interest here:

Article 2697. “If, during the lease, the thing be totally destroyed by an unforeseen event, or if it be' taken for a purpose of public utility, the lease is at an end. If it be only destroyed in part, the lessee may either demand a diminution of the price, or a revocation of the lease. In neither case has he any claim of damages.”
Article 2700. “If, 'during the continuance of the lease, the thing leased should be in want of repairs, and if those repairs can not be postponed until the expiration of the lease, the tenant must suffer such repairs to be made, whatever be the inconvenience he undergoes thereby, and though he be deprived either totally or in part of the use of the thing leased to him during the making of the repairs. But in case such repairs should continue for a longer time than one month, the price of the rent shall be lessened in proportion to the time during which the repairs have continued, and to the parts of the tenement of the use of which the lessee has thereby been deprived.
“And the whole of the rent shall be remitted, if the repairs have been of such nature as to oblige the tenant to leave the house or the room and to take another house, while that which he had leased was repairing.”

In the case of Vincent v. Frelich, 50 La. Ann. 378, 23 So. 373, 69 Am. St. Rep. 436, it was held that partial destruction, remediable by repairs, and which do not require reconstruction, will not give good ground to dissolve the lease. In that case, after referring to several of the French commentators, the court, on page 382 of 50 La. Ann., 23 So. 373, 375, says:

“Marcade (volume 6, p. 450) thus expresses his views under similar articles of the Code to ours: ‘When the fire of heaven, or any other unforeseen cause of destruction, strikes a building, three things are possible: It may be completely destroyed, it may; be destroyed in part, or it may be only damaged. Without question, every demolishment is a destruction; and¡_ if a violent blast of wind causes the fall of a chimney, it might be said that there is partial destruction of the house, the chimney being destroyed. But this reasoning is not exact, and when, as in the case supposed by M. Troplong, a gust of wind throws down the chimney, tears out the Persiau blinds, or shatters the windows, or when unusually heavy snow weighs down the roof, it will not be said that for that reason the building is destroyed, even in part, but .that it was damaged, and the work to be done, as relates „to the whole building, will not constitute a reconstruction, even partial, ■ but exclusively a repair. Damage to a building, different from partial destruction, gives to neither the lessor nor the lessee the right to terminate the lease.’ ”

In the very recent case of Bernstein v. Bauman et al., 170 La. 378, 127 So. 874, 876, the court quoted, from the early case of Dussnau v. Generis, 6 La. Ann. 279, the following:

“But a consideration of the provisions of our Civil Code on the subject of letting and hiring, with reference to their general spirit and intendment, leads us to the conclusion that the lawgiver did not contemplate the dissolution of leases, except in extreme cases, but rather an equitable indemnity to the tenant for a temporary inconvenience sustained unexpectedly and without the fault of the lessor. And in this respect it harmonizes with the spirit of the Roman law and that of France.”

With the legal principles as established by the authorities to which we have referred in mind, we examine the facts in this case.

It appears that the leased premises were rented for the purpose of being used as a colored pool room, but that, as a matter of fact, there were living accommodations for the defendant’s family. The fire, which occurred at about 2 o’clock in the morning of June 3d, did not damage the pool room, but caused considerable damage to other portions of the building, involving an expense for repairs of $1,100,- and unquestionably caused the defendant and his family, who were living in the premises, considerable inconvenience. But most of the damage, according to the testimony, was to the exterior of the building. There was some fallen plaster, and a part of the roof was damaged, but we are unable to say from the record that the damage to the building was so extensive as to require reconstruction in whole or in part, or that the premises were rendered unfit for the use for which they were intended, which, as. stated in the lease itself, was the operation of a negro pool room. While the defendant and his family were deprived of the living quarters, according to the record, for about seven or eight days, and were required to obtain lodging elsewhere, it does not appear that his pool room business suffered interruption during that time. In the case of Goldberg v. Porterie et al., 2 La. App. 645, it was said:

“It is not necessary for us to determine the precise length of time during which defendants were deprived by reason of unfitness, of the use of the premises. Were it even longer than five weeks this would not entitle them to an annulment if there was not partial destruction as contemplated by Article 2697 but only necessity for repairs as covered by Article 2700 and Article 2717.”

Our conclusion is that the defense has not been sustained, and that the plaintiff should have judgment as prayed for.

Consequently, for the reasons assigned, the judgment appealed from is reversed, and it is now ordered that Joseph Di Carlo, plaintiff herein, have judgment against Charles Campo, defendant, in the full sum of $200, with 8 per cent interest from June 1, 1929, until paid, and 10 per cent attorneys’ fees and all costs.


author: JANVIER, J. JANVIER, J.

text:
    No. 13,456
    Orleans
    SNYDER ET AL. v. DAVIDSON ET AL.
    (June 16, 1930. Opinion and Decree.)
    (November 20, 1930. Rehearing Granted.)
    (December 1, 1930. Opinion and Decree on Rehearing.)
    (January 5, 1931. Writs of Certiorari and Review Granted by Supreme Court.)
    (March 30, 1931. Opinion and Decree by Supreme Court.)

      Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for plaintiffs, appellees.
    Titche, Kiam & Titche, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

George W. Davidson & Co. is a partnership domiciled in Louisiana and composed of George W. Davidson, Charles F. Davidson, and Emile F. Davidson, all citizens of Louisiana.

Plaintiffs are citizens of Ohio.

Plaintiffs claimed that, as the result of a commercial transaction, George W. Davidson & Co. and the individual members thereof became indebted to them in the sum of ¥1,373.61, with interest, etc., and some time after the events which gave rise to the claim George W. Davidson, while attending an apple dealers’ convention in Cleveland, Ohio was cited in a suit filed in an Ohio court by the present plaintiffs against George W. Davidson & Co. and the individual members mentioned above'.

Thereupon the various defendants named, through attorneys, filed in the Ohio court a motion “to> quash the action” on various technical grounds with reference to the service of the summons and with regard to the return thereon, and particularly on the ground that the court lacked jurisdiction and that no service could be made on, George W. Davidson &' Co. in Ohio, and therefore none could be made on the individual members in a matter growing out of a partnership transaction.

The technical grounds, having to dc< with the qualifications of the officer who served the summons and with the form of the return, we find it unnecessary to discuss.

The motion to quash was granted, but, after certain amendments to the return were made, a new trial on the motion was ordered, and it was then overruled and defendants found themselves under the necessity of determining whether they would make no appearance at all or would, after reserving the benefit of their motion to quash on jurisdictional grounds, defend on the merits.

They chose the latter course, and in their answer stated:

“Defendants deny that this court has any jurisdiction over their person. The subsequent defenses pleaded herein shall be without prejudice to their first defense. * *

They thereupon presented, in their answer, their defenses on the merits of the controversy. But, as we are not concerned with the merits of that affair, we deem it unnecessary to discuss the remaining details of their answer and think it important only that it be borne in mind that before answering, defendants objected to the jurisdiction of the court and made no other appearance until that objection had been overruled and, that, in their other appearance, they specifically reserved the benefits of any rights which they may have had as the result of their objection to the jurisdiction.

Thereupon the case in the Ohio court was called for trial, and the court rendered what plaintiffs in the present suit contend is a judgment in their favor for the amount prayed for and for costs, and this suit which is now before us is for recognition here of that judgment which plaintiffs claim they obtained in Ohio.

The defendants interpose two defenses:

First, that the exemplified record on which this suit is brought contains no judgment.

Second, that the Ohio court was without jurisdiction to render a judgment against the Louisiana partnership or against the members thereof in a suit growing out of a partnership transaction.

The so-called judgment which we find in the record is in a form with which we are entirely unfamiliar and appears to be rather a minute entry made by the clerk than a formal judgment signed by the judge, but, since we agree with defendants in their second contention that the Ohio court was without jurisdiction, it is unnecessary to discuss the first, though we are unable to suppress the inclination to remark that though the judgment appears to us most unusual in form there is in the record ample expert testimony in support of plaintiffs’ contention that it conforms with the laws and customs of Ohio, and no one will deny that in order to determine just what a judgment means recourse may be had to the entire record, pleadings, etc. Sharp et al. v. Zeller et al., 114 La. 549, 38 So. 449, and Peniston v. Somers, 15 La. Ann. 679.

Plaintiffs stoutly maintain that, even if the Ohio court had no jurisdiction over the persons and over the partnership, any objection thereto has been waived. and abandoned by the general appearance of all of the defendants in that court.

The general appearance was. filed only after the court had refused to quash the service, and in the general appearance all rights which the defendants may have had under the motion to quash were reserved to them.

An objection to the jurisdiction ratione person® is waived and abandoned by an unqualified appearance and even an alternative appearance, if coupled with a plea to the jurisdiction is considered as a waiver of that plea. Iddle v. Hamler Boiler & Tank Co., 132 La. 476, 61 So. 532; True Tag Paint Co. v. Wellman, 142 La. 1038, 78 So. 109.

Here, however, the first appearance of defendants was for one and only one purpose — to object to the jurisdiction of the court, and no [Other appearance was made until that objection had been passed upon. That objection having been overruled, they were not bound to permit judgment to go against them without filing any defense, but were justified in answering after unequivocally reserving the benefit of their former plea.

A careful review of the innumerable cases in the various digests touching upon the question of whether a plea to the jurisdiction is waived by a general appearance filed after the overruling of the plea, and whether the taking of an appeal after judgment has been rendered on the merits constitutes a waiver of the plea indicates, that there is grea,t diversity of opinion on this matter. We cannot see that any good purpose can be served by our referring to those multitudinous cases. Suffice it to say that probably one hundred or more can be found supporting each view.

We find in Louisiana only one case which, on a first reading, seems to touch* on the phase of the question which is here presented (Keyes v. Dade, 8 La. App. 257), but a study of the opinion rendered therein shows that in that case there was no exception to the citation filed in limine, but that the first time the question of the defective citation appeared was on application for a new trial. The court held that it had come too late; not that it had been filed in time and had been waived by a later appearance.

In the absence of controlling authority we lean to the views expressed by the Supreme Court of the United States in Harkness v. Hyde, 98 U. S. 476, 479, 25 L. Ed. 237, in which is found the following:

“The right of the defendant to insist upon the objection to the illegality of the service was not waived by the special appearance of counsel for him to move the dismissal of the action on that ground, cr what we consider as intended, that the service be set aside; nor, when that motion was overruled, by their answering for him to the merits of the action. Illegality in a proceeding by which jurisdiction is to be obtained is in no case waived by the appearance of the defendant for the purpose of calling the attention of the court to such irregularity; nor is the objection waived when being urged it is overruled, and the defendant is thereby compelled to answer. He is not considered as abandoning his objection because he does not submit to further proceedings without contestation. It is only where he pleads to the merits in the first instance, without insisting upon the illegality, that the objection is .deemed to be waived.”

To the same effect is the syllabus in Hassler, Inc., v. Shaw, 271 U. S. 195, 46 S. Ct. 479, 70 L. Ed. 900, a portion of which reads, as follows:

“Where, after denial of motion to set aside service by state court, without preju> dice to right to set up defense of lack of jurisdiction by answer under state statute, case was removed to federal court and defendant, after pleading that court Had po jurisdiction because of failure of service, pleaded to merits, held, that pleading to the merits was not general appearance, waiving right to object to jurisdiction.”

Every litigant is entitled to an appeal as a matter of right, thus, when the judgment in the trial court went against the defendants they were entitled to their appeal, and it would be most illogical to say that by exercising that right they waived their objections to the jurisdiction.

Since, then, their right to object to the jurisdiction of the Ohio court, which rendered the judgment’which is here sued on, has never been waived or abandoned by defendants, and since they now again in this suit raise that objection, it behooves us to investigate their contention on this point.

We repeat that the transaction which gave rise to the Ohio suit was one between the plaintiffs, and the partnership, George W. Davidson & Co. Except as members of the partnership, no one of the partners had any connection with the matter. There is a vast distinction between the liability of a partner resulting from a partnership transaction and that resulting from individual action. If a member of a partnership, for example, operates a motortruck for the benefit of the partnership, and, while so doing, negligently kills or injures a third person, that member of the partnership is liable in two different capacities. First, as the individual whose negligence is responsible for the accident, and, second, as a member of the partnership whose servant, acting within the scope of his employment, is liable.

The individual liability may be sued on wherever that member of the partnership may be found, but the liability resulting from the membership in the partnership cannot be asserted except where the partnership may be properly brought into court. Here, as we have stated, there was no individual liability in any member of the partnership, except as a result of his interest in the partnership, and that partnership cannot be brought into court in Ohio merely by reason of the fact that one of the members thereof by chance was present in Ohio when service was made or attempted to be made on the partnership through him. Code of Practice, article 165, paragraph 2.

We are not called upon to solve the problem which would have been presented had it been shown that the law of Ohio, with reference to jurisdiction in suits against corporations, is different from that of Louisiana, because the record is silent on this subject and in the absence of a showing to the contrary we assume that in Ohio, as in Louisiana, a corporation must be sued at its domicile.

As to the partnership itself, and as to those members thereof who were not present in Ohio, it is as clear as the noon-day sun that no jurisdiction existed in the Ohio court to render judgment against them in a suit in which the citation was served only upon George W. Davidson. Nor is the situation different with reference to George W. Davidson since, as we have shown, his liability resulted solely from his membership in the ■ partnership and not from any independent individual act and thus, so long as the firm remained in existence, he could be sued only through his membership in it, and, therefore, only where it, the partnership, could be sued.

In Hayes Machinery Co. v. Eastham, 147 La. 347, 84 So. 898, 900, the Supreme Court said:

“The liability of commercial partners, while solidary, in the sense that they and each of them may ultimately be required to pay the whole of its debts, yet it is not a primary one; neither is it a conventional liability, but one which the law alone imposes, in consequence of the relation of the parties and the character of the business in which the firm is engaged. Until the debt is established contradictorily with che partnership, so long as it exists, there is no debt within the meaning of article 2872 of the Civil Code, which can be enforced against the individual partner.”

The court in that case cited with approval Key v. Box, 14 La. Ann. 497, in which it was said:

“ ‘Under the law of Louisiana a commercial partnership is an entity, capable of being sued, is brought into court as defendant by service of citation upon one of its members, and while the ultimate liability of the parties is in solido — i. e., joint and several — they, during the life of the partnership, cannot be charged individually except through the partnership; that is, during the life of the partnership a partner is, like a corporator in a corporation, liable and made to respond individually only through a judgment against the intellectual being of which he is a component part? Liverpool, B. & R. P. N. Co. v. Agar [C. C.] 14 F. 615.”

This doctrine was approved in American Photo Player Co. v. Simon, 151 La. 708, 92 So. 307.

Our conclusion is that the Ohio court did not have jurisdiction over the partnership nor over any of its members to render judgment in a matter growing out of a partnership transaction, and that the judgment rendered under such conditions is a nullity.

The judgment appealed from is reversed, and the suit dismissed at the cost of appellees.

ON REHEARING

JANVIER, J.

Rehearing was granted because of the insistence of counsel for plaintiff that an application for a new trial on the merits constitutes a waiver of an objection to the jurisdiction and because such contention was not adequately considered or discussed in our original opinion.

It is conceded that the judgment rendered by the Ohio court and which forms the basis of this suit was, when rendered, an absolute nullity because of the lack of jurisdiction in the Ohio court over the persons or property of the defendants. It is contended, however, that, although the judgment', when rendered, was entirely without legal effect, nevertheless, by their request to the Ohio court to grant them a new trial, defendants waived their theretofore reserved objections to the jurisdiction of that court and that thereafter the refusal of that court to grant a new trial and the affirmance of the judgment by the appellate court gave life thereto and entitles that judgment to full faith and credit here.

Our original opinion (129 So. 185) was based largely on two decisions of the Supreme Court of the United States: Harkness v. Hyde, 98 U. S. 476, 479, 25 L. Ed. 237, and Hassler v. Shaw, 271 U. S. 195, 46 S. Ct. 479, 70 L. Ed. 900, in each of which it Was held that a defendant, improperly sought to be brought into a court without jurisdiction, may, if he first objects to the jurisdiction and thereafter properly reserves his rights under such objection, nevertheless answer to and go to trial on the merits, without waiving his rights under his objection to the jurisdiction. In the Harkness case a motion for new trial was made by defendant and as the result of that motion the judgment was reduced, and, thus, that decision is clearly authority for the view that an application for a new trial, including other than jurisdictional questions, should not necessarily be considered as a waiver of previously made objections to the jurisdiction.

It is true that in the reported opinion in that case it is not made to appear whether the application for new trial contained a reservation of rights under the previously filed objection to the jurisdiction, and it may be argued that such a reservation must have been actually present in the pleadings there, and it is argued here that the application which is relied on as constituting a waiver of the jurisdictional objection does not contain such a reservation.

This contention presents two questions: First, a proper interpretation of the wording of the application; whether it can be construed as containing an objection to the jurisdiction. Second, if it does not contain such an objection, was one necessary in view of the oft-repeated objections in the pleadings previously filed, and particularly in view of the objection contained in the answer or general appearance.

There can be no doubt that there was no actual intention on the part of defendants to abandon their objection and to accept the jurisdiction of the Ohio court. The entire record indicates persistent resistance in this regard, so that to construe the application for new trial as constituting an intentional waiver is impossible.

Suppose a new trial had been granted, what issues would have been presentable thereon? Could the objections to the jurisdiction have been again urged? Even if we concede for the moment that a new trial would not have re-opened for further consideration the previously filed special pleas to the jurisdiction, surely it would have placed again at issue all matters made controversial by the answer, and we find that in the answer 'or general appearance the first contention made was that the court was without jurisdiction. The first defense reads as follows:

“First defense. Defendants deny that this court has any jurisdiction over their pei’sons. The subsequent defenses pleaded herein shall be without prejudice to their first defense.”

If a defendant requests a new trial on issues presented by his answer and if his answer, in its opening allegation, contains a denial of jurisdiction, how is it possible to say that the application must be construed as a waiver of objection to jurisdiction? It isi true that the specifications of error set forth in the application for a new trial do not unequivocally contain an objection to the jurisdiction, nor a reservation of rights under previous objections, but surely, in view of the objections so often repeated theretofore, any ambiguity in that application should be construed riot as a waiver, but, rather, in a contrary manner.

It is argued that, since full faith and credit should be given toi the decision of a court of a sister state, the presumption follows that there has. been a waiver of objection, since that judgment cannot be valid unless there has been such a waiver. If we are to indulge in presumptions, we cannot avoid presuming that no waiver was intended under the circumstances presented here. And this second presumption is more reasonable than the first because it is fair to presume that, where one has persistently objected, he will continue to do so, but the presumption that a foreign judgment is entitled to full faith and credit is much weakened by the fact that it is conceded that . when that judgment was rendered it was totally invalid.

Furthermore, we believe that it would be most unreasonable to hold that a defendant brought into a foreign court against his will, and over his objection, must, at the risk of losing his rights to object to the jurisdiction, repeat and reiterate his objections on every possible occasion.

In Harkness v. Hyde, supra, and in Hassler v. Shaw, dupra, the Supreme Court of the United States has announced a most reasonable doctrine to the effect that, after proper objection to the jurisdiction and after being overruled on that question and, after reserving his rights under his objection, a defendant need not sit idly by and permit judgment to be rendered against him, but may then meet the issue to the best of his ability and attempt to prevent the rendition of a judgment against him, even by a court with no jurisdiction over him. If, then, he may avail himself of his defenses, surely it would be illogical to hold that his rights in this regard are limited to one trial in the nisi prius court, if, under the laws of the jurisdiction into which he has been forced, a litigant is granted the right to apply for a new trial and to appeal. Having been forced against his will to go to trial in a jurisdiction of his opponent’s selection, he is entitled to the full measure of judicial supervision provided by the laws of that jurisdiction, and his recourse thereto cannot be construed as an abandonment of his previously existing objections thereto, if 'he has in the first instance unequivocally placed himself on record and has not thereafter, either affirmatively or by actions which plainly show acquiescence, withdrawn his objections.

Our original decree is reinstated and made the final judgment of this court.


author: JANVIER, J.

text:
    No. 13,430
    Orleans
    MAYER v. MAYER
    (January 5, 1931. Opinion and Decree.)
    (February 2, 1931. Rehearing Refused.)
    (March 30, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Paul W. Maloney, of New Orleans, in propria persona.
    Louis R. Hoover, of New Orleans, attorney for William Mayer, defendant, appellee.
   JANVIER, J.

This is a most unusual controversy. Paul W. Maloney, attorney for defendant in a divorce suit, came into possession of certain funds belonging to his client. Having rendered certain services for the client in the divorce proceeding and in other matters, Maloney deducted from the funds in his possession so much thereof as he determined would compensate him for the various services which he claims to have rendered and for certain expenditures made by him for his client, and then deposited the balance in the registry of the civil district court. The said deposit was- made on a written motion filed in the divorce proceedings, and, in the said motion, Maloney, the mover, suggested that the acceptance of the said balance deposited should be considered as tantamount to an agreement that all the fees charged were reasonable and proper.

In the meantime Mayer, defendant in the divorce proceeding, had employed other counsel to represent his interest in all matters, and this new counsel, on motion, withdrew from the registry of the court the funds deposited there by Maloney.

Thereafter the motion of Maloney, under which the funds were deposited, was fixed for trial, the purpose of the motion being to have the district court place its sanction on the charges made by Maloney and deducted by him from the funds of his former client, so that thereafter the client, could not be heard to question those charges. When that matter came on for trial, Maloney’s attorney agreed that a judgment of non-suit might be rendered, and this was done. A few days later Maloney appeared in propria persona and filed a motion in which he stated that his attorney should not have agreed to the judgment of non-suit and in which he asked for ■ a new trial on his original motion. The judge, a quo, refused to grant a new trial, and Maloney has appealed from the judgment of non-suit.

Conceding that Maloney, as attorney for defendant in the divorce proceeding,, was within his rights, in attempting to engraft upon that divorce proceeding a controversy over fees claimed to be due him by one of the parties to the- divorce proceeding, and we are extremely doubtful if he had this right, we are of the opinion that the judge, a quo, was clearly • correct in rendering judgment of non-suit on agreement of counsel.

It is very evident that no harm resulted to Maloney from the withdrawal by Mayer’s hew counsel of the fund deposited. It would be monstrous to permit an attorney, who, having received money for a client and having deducted therefrom such amounts as he has seen fit to claim as fees, and having deposited the balance in th$ registry of the court, to successfully contend that the client may not withdraw that balance without thereby acquiescing in the correctness and reasonableness of the fees.

Maloney collected for Mayer’s account $2,460.07. Prom this he deducted fees and costs claimed by him to amount to $1,-430.75 and other expenditures paid out by him amounting to $677.92 and deposited in court the balance, to-wit, $351.40, and, in his motion making the deposit, sought to prevent withdrawal by Mayer of the amount thereof, except upon condition that such withdrawal should be considered as acquiescence in the reasonableness of the charges.

His deposit of $351.40 was an admission that to that extent he was indebted to Mayer, and Mayer was within his rights in immediately withdrawing that amount without any condition whatever.

The judgment appealed from is affirmed at the cost of appellant.


text:
    No. 13,535
    Orleans
    SEAWELL v. LOUISIANA COCA-COLA BOTTLING CO.
    (March 2, 1931. Opinion and Decree.)
    N. H. Polmer, of New Orleans, attorney for plaintiff, appellant.
    Harry M. Mayo, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff sustained minor injuries as the result of an automobile accident claimed by her to have resulted solely from the negligent operation of a motortruck owned by defendant and operated at the time by one of its employees in the course of his employment.

Plaintiff, who was driving a Chevrolet automobile up Magazine street, claims that, as she reached the corner of Felicity street, at which corner she intended turning to the right, she was very close to the right-hand curb of Magazine street and that, just as she was turning into Felicity street, the Chevrolet was struck violently on the right running board by the motor-truck of defendant which truck, she claims, Was trying to pass to. her right and between the Chevrolet and the curb.

The driver of the truck, on the other hand, states mat he was proceeding up Magazine street close to the right-hand curb and that the Chevrolet driven by plaintiff was immediately to his left; that the front of his truck was about opposite the middle of the Chevrolet, when suddenly the driver of the latter vehicle turned it to the right and attempted .to cross the path of the truck directly in front of it.

The trial court rendered judgment dismissing plaintiff’s suit and she has appealed.

The only eye-witnesses to the accident were the two drivers, a Mr. Hulette, who was seated on the front seat of the car driven by plaintiff, and a Mr. Flores, who was standing across Magazine street, and of the four, plaintiff, Hulette and Flores more or less agree, whereas Hardouin, the driver of the truck, stands alone in his version of the affair.

Nevertheless the Story told by Hardouin is so thoroughly corroborated by the physical facts that we are convinced, as was the trial court, that his version is the correct one. One fact cannot be denied and on that fact all agree and that is that the Chevrolet was struck on its right side and not in the rear. This would manifestly have been impossible had it been close to the right-hand curb of Magazine street and had it made a short right-hand turn into Felicity street as it should have done in compliance with the traffic ordinance of the city of New Orleans which has been introduced in evidence and which is known as No. 7490 C. C. S., because there would have been no room between it and the curb for the truck.

With reference to right-hand turns this ordinance provides in paragraph 4 of article 1 as follows:

"Turning comers”
(a) “A vehicle turning into another street to the right shall turn the corner as near the right hand curb as practicable.
“In turning to the right at a street intersection, hug the right hand curb.”

It is true that plaintiff and her two witnesses state that she did this, but, not only does the location of the damage to the Chevrolet prove that she did not, but a careful analysis of the testimony of these witnesses proves that their statements in this regard are inaccurate.

Hulette, in the early part of his testimony, stated that the Chevrolet was about four or five feet from the curb, but later stated that it was about one foot or one and a half feet from the car track and, since the nearest rail of the car track was shown to be seventeen feet, one inch from the curb, and since a Chevrolet is less than five feet in width the truth seems to be that, even according to Hulette, the Chevrolet was more than twelve feet from the curb.

The other witness, Flores, likewise at first stated that the Chevrolet was about four feet from the curb, but he, too, later said that it was about the “width of two tires” from the track, and it necessarily follows, as has been shown in connection with the testimony of Hulette, that there was in reality some twelve feet or more between the Chevrolet and the curb.

Mrs. Seawell herself, although she stated in one part of her testimony that her car was about three or four feet from the curb, later said' that she did not know whether she was on the car track or not. The track, as we have stated, was seventeen feet one inch from the curb.

Plaintiff’s charge that the truck crushed her Chevrolet into the curb on the downtown river corner is also manifestly impossible. There can be no doubt that the truck was on the right of the Chevrolet and that it was, therefore, between the Chevrolet and the curb into which plaintiff claims to have been crushed by the truck.

We have most carefully analyzed the evidence because of the numerical preponderance of witnesses on behalf of plaintiff, but have reached the conclusion that the accident did not and could not have occurred had the vehicles been located and had they been proceeding as plaintiff claims they were.

Whether the light had just turned from red to green is of no importance, since all agree that it was green when the two vehicles entered the intersection.

Plaintiff contends that the chauffeur of defendant’s truck should not have been permitted to testify because, although the witnesses were excluded from the courtroom when the matter was tried below, that witness, through a misunderstanding, was permitted to remain.

Defendant contends that under such circumstances it is within the discretion of the trial court to permit or to refuse to permit a witness to testify. While we have been cited no authority and have been able to find no Louisiana case directly In point, the authorities in other juris dictions are overwhelmingly to the effect that a trial judge has discretion in such a situation and that this discretion will not be interfered with unless manifestly abused.

In Cyc. vol. 38, verbum Trial, p. 1371, we find the following:

“Disobedience to the Rule. The court may, in its discretion, permit a witness who has disobeyed the rule to testify, especially if the witness has not heard any of the evidence or if it does not appear that harm resulted therefrom. * * *”

Surely no harm resulted from the fact that Hardouin remained in the courtroom, since he was the only witness for defendant and could not have been influenced by what any other witness said since he disagreed with all of them.

“There was no error in refusing to allow the witness Larkin to be examined. He was placed under the rule, and afterwards came into the court room, and listened to the evidence. It was a matter of discretion with the court to allow him, after this, to testify or not. * * *” Thorn v. Kemp, 98 Ala. 417, 13 So. 749, 752.
“The matter of excluding witnesses from the courtroom during the trial of a cause is one within the discretion of the trial court, and whether a witness shall be excluded from the rule or whether one who has not been placed under the rule, but who . nevertheless has remained in the courtroom during the taking of testimony, as was true in the case of Antonio Cisceroni, shall be permitted to testify notwithstanding the rules are all matters within the discretion of the trial court, and will not be interfered with by an appellate court, unless it has been made clearly to appear that the trial court has abused its discretion to the injury of the complaining party.” Romano v. Palazzo, 83 Fla. 243, 91 So. 115, 116.
“It was also error to refuse to permit Parchman to testify in rebuttal because he had been under the rule. Sartorious v. State, 2 Cushm. [24 Miss.] 608, 609. The modern and just doctrine on this subject is that generally the fact’ that a witness 'placed under the rule has -violated it goes to his credit, but does not exclude him.” Ferguson v. Brown, 75 Miss. 214, 21 So. 603, 605.

Furthermore, our conclusion has been reached because of our belief that plaintiff’s version is impossible and we cannot see that any other result could be reached even if the testimony which is objected to was expunged entirely from the record.

The judgment appealed from is affirmed.


text:
    No. 13,507
    Orleans
    VALLEY SECURITIES CO., INC., v. BRAZIER ET AL.
    (February 16, 1931. Opinion and Decree.)
    (March 23, 1931. Rehearing Refused.)
    Connolly & Simoneaux, of New Orleans, attorneys for plaintiff, appellee.
    H. J. Agregard, Theo. Cotonio, Jr., and Theo. Cotonio, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff, claiming to be the holder in due course and for value of four certain notes for the sum of $100 each, brings this suit against defendant, A. W. Brazier, as maker of the notes and against Arnaud’s Drug Stores, Inc., A. Arnaud, ,B. P. Brennan and Arthur B. Leopold, as endorsers.

Judgment by .default was rendered against the endorsers and no appeal has been taken from that judgment.

Defendant Brazier, the maker of the notes, resists payment, charging that there has been added to each of the notes below his signature and in a blank space after the word “Due,” a date purporting to show the maturity of each note,. whereas he charges there were no such dates in the said blanks when the notes were executed.

Defendant Brazier also contends that the notes were given supposedly in payment of subscription to stock in a corporation to be organized and that under the laws of Louisiana notes may not be given for subscription to stock and that, therefore, no liability can be asserted against the maker. He further contends that no consideration was given for the said notes.

The addition of the dates purporting to show the respective maturities of the notes is of no importance because even if we accept defendant’s view and treat those dates as not having been written, then the result is that since the notes show no date of maturity they were payable at once and while it would then result that they were taken by the present holder after maturity, nevertheless as we shall hereafter show, defendant, by his words and conduct, induced the ©resent plaintiff to purchase the notes and thereby estopped himself to raise the defenses to which we have alluded.

The defense of failure of consideration is based on the charge made by defendant that he was never given the stock certificates in payment for which his notes were given. The evidence shows conclusively that Brazier agreed- to purchase stock in the Arnaud’s Drug Stores, Inc., and that he gave these notes in payment for the said stock and we are further convinced by the evidence that the stock certificates were executed and delivered to him. The concern went into receivership and the accountants who audited the books found a stock stub purporting to bear Brazier’s receipt for the certificates and, although he testified that he never received them he, has, himself, introduced in evidence an unsigned contract wherein the identical stock corresponding in certificate number with that which, it is claimed by the other parties, was delivered to him, was declared to be owned by him.

But the questions of whether he received consideration and whether the law of Louisiana permits a stockholder to ©ay with notes for the purchase of stock in a corporation, in process of organization, are of no importance in view of the fact that in our opinion defendant Brazier has absolutely estopped himself to raise these contentions because when the Arnaud’s Drug Stores, Inc., undertook to negotiate these notes with Valley Securities Company, present plaintiff, Mr. McNeese, an official of the Valley Securities Company, required that the purported maker of the notes, Brazier, appear before him and admit his signature and Brazier complied with this request.

Mr. McNeese testified that that is all that Brazier did although Brazier says that he ■ told McNeese that there was no consideration for the notes. It is impossible to believe that McNeese, representing the Valley Company, would have purchased the notes had he been told by the maker that no consideration was given therefor. Investment companies are not in the business of purchasing law suits' and had McNeese known that Brazier contended that no consideration had been given for the notes surely he would not have allowed his company to purchase them.

On the other hand, if, as Brazier contends, he had received no consideration for the notes he was under obligation to so state to McNeese when the latter questioned him as to his signature. Knowing that the Valley Securities Company was contemplating purchasing the notes, he could not remain silent when questioned regarding them and thereafter be heard to deny that he had received consideration therefor.

Brazier, though stoutly maintaining that judgment should not have been rendered against him in favor of plaintiff, asks that if we affirm that judgment, we give him a judgment against the endorsers because of his contention that they gave him no consideration for the notes.

The question of whether he has properly appealed as to his so-called warrantors has not been raised by them and we will, therefore, treat the matter as though he has actually appealed from that part of the judgment as well as from that part rendered against him and in favor of plaintiff. .

Giving his pleadings that interpretation which is most favorable to him and investigating the evidence with reference to his contention that he received no consideration, we' are of the opinion that his contention is not borne out.

The reasons which we have given in our opinion show that he did receive the consideration which was expected by him. It is true that that consideration subsequently proved to be of little or no value but many persons who purchase stock in new concerns suffer the same experience.

The venture proved unprofitable, but a purchaser of stock, unless he can show fraudulent misrepresentation, cannot recover back his money from his associates merely because his venture has not come up to his expectations.

Since the defendants in warranty did not answer such appeal as has been taken and have not asked for an absolute dismissal of the so-called call in- warranty, we can do nothing but let the judgment stand as rendered below.

The judgment appealed from is affirmed at the cost of appellant.


text:
    No. 13,542
    Orleans
    WING v. N. O. PUBLIC SERVICE, INC.
    (February 16, 1931. Opinion and Decree.)
    (March 23, 1931. Rehearing Refused.)

      J. Edmund Ullman and Gerald Netter, of New Orleans, attorneys for plaintiff, appellee.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

At about 8:30 o’clock on the night of September 3, 1929, plaintiff received injuries as the result of being struck and knocked down by a street car of defendant company. The car was proceeding on Tulane avenue towards Ram-, part street and plaintiff was attempting to cross the avenue from the upper side to the lower side. The accident occurred dt a point some 50 or 60 feet after the car had crossed Saratoga street, but within the space regularly used by pedestrians in crossing Tulane avenue at that point, and which space was marked by the usual white lines placed on the pavement hy the police traffic department of the city of New Orleans.

Plaintiff, in his petition and in his testimony, states that when he left the upper sidewalk of Tulane avenue he was confronted with considerable automobile traffic and that he made his way cautiously through it until he arrived on the inbound car track of defendant company, on which he was forced to stop because of automobiles passing in the other roadway. He says that he had been standing on the track for some time, unable to advance, when he was struck by the street car, which had approached at a rapid speed, and he charges that, had the motorman of the car been observant, he would have seen plaintiff and could have brought the car to a stop without injuring him. Plaintiff’s story, therefore, is, in effect, a charge that, though he himself may have been to some extent negligent in stopping in a dangerous position—that is to say, on a car track—nevertheless, after he had reached that point on the track and could neither advance nor retreat, there was yet time for the street car to be brought to a stop, had the operator thereof been careful, and that, thus, under the doctrine of the last clear chance, recovery should be allowed him.

The motorman testified that, as his car approached, he saw Wing, the plaintiff, standing alongside the track and sufficiently far away from it to permit of the safe passage of the car and apparently waiting to board ic, but that, at the last moment and when it was no longer possible for the car to be stopped, Wing, apparently frightened by an approaching automobile, stepped quickly, or jumped, into the front end of the street car.

On the first trial below the jury, by a vote of ten to two, .returned a verdict for plaintiff for $250. This verdict was set aside by the court, ex proprio motu.

The matter was then again submitted to a jury in another division of the court and on the same evidence the second jury rendered a verdict for plaintiff for $2,-322.68. From a judgment based on that verdict defendant has appealed.

That the speed of the car was moderate is now conceded, as it must be. It had come almost to a stop at Saratoga street, only 50 or 60 feet away and, a short distance beyond the point of the accident, it was required to make another stop. Furthermore, after striking plaintiff, the car proceeded only about four or five feet, so it is quite evident that it must have been going very slowly as it approached. That the motorman was a competent operator is no longer denied. He had had several years’ experience in operating street cars in this and other cities.

Three of plaintiff’s witnesses, James, Baker and Granzin, attempted to corroborate plaintiff’s story to the effect that he had been standing on the car track for some time before the accident occurred, but all of them had been engaged in conversation up to the moment of the accident and all stated that they saw neither the car nor plaintiff until the last second. Evidently, then, they did not really know whether plaintiff had been standing on the track for some time or had stepped in front of the car at the last moment. However, in the testimony of Baker and in that of Granzin appear statements rather contradicting plaintiff’s allegation that he had been standing on the track for some time. The trial judge propounded certain questions to Baker, the answer to which indicated clearly that the true facts, as Baker saw them, were that plaintiff stepped in front of the street' car when it was right on him:

(By the’ court):

“Q. Do you mean at the time Lee Wing stepped across that rail that the car was approximately four feet from him when he stepped across the rail?
“A. Yes, sir.
“Q. In other words, at the moment of his stepping across the rail the car was about four feet from him?
“A. Yes, I judge about that. He was looking in the other direction.
“Q. He was stepping in front of an oncoming car?
“A. Yes, but was watching the traffic from the other direction and the car made no sound.
“Q. He was watching traffic coming from towards the river and was not watching the traffic coming from the lake and stepped right in front of the car when it was four feet from him?
"A. Yes, sir.”

And to the same effect we find, in the testimony of Mr. Granzin, on page 51, that Lee Wing was standing, apparently, in a safe position, when he was frightened by an automooile, and, as a result, stepped into the path of the car. He says:

“A. As he side-stepped the automobile the street car rang its bell and hit him on the shoulder;”

This testimony to which we have referred, instead of corroborating the charge of plaintiff that he had been standing on the track for some time, rather bears out the story told by the motorman to the effect that plaintiff stepped on the track when it was no longer possible to bring the car to a stop. The motorman’s statement, as it appears on pages 12 and 13 of his testimony, is as follows:

“A. He was crossing * * * I watched him approach my car until he stopped, and when he stopped I released, my air and went on. * * * He was facing me with his head turned.”

At that time, according to the statement of the motorman, Wing was about three feet from the track and in a safe position and standing still. The motorman continues :

“I didn’t know whethér he stopped for me to pass, or was waiting to board my car, but I saw that he was standing in safety and cleai- of the car and I continued to let my car roll * * *. An automobile came facing him—I didn’t know what street he came out of, but he was facing him and he became excited and jumped right in front of the car * * * applied my brake and rang my gong with all my might.”

We have already referred to the speed of the car, but, in passing, let us again say that on this point the testimony of the three witnesses for plaintiff is proven to be entirely erroneous by the physical fact that the car stopped within only four or five feet after striking plaintiff. This would have been impossible had it been proceeding at the speed of twenty or twenty-five miles an hour, as testified to by the three witnesses to whom we have referred.

In the record may be found several statements which show inconsistencies in the testimony of plaintiff. He claims that he was rendered unconscious; yet he undertakes to recite in detail events which occurred immediately after he was struck. His claim as to the extent of his injuries is not borne out to our satisfaction. The doctor who had treated him some time prior to the injury was called in and paid him three visits for which he charged him ten dollars. Without assigning any reason for no longer sending for his regular .doctor, he employed another doctor and states that he paid him $60 for six visits. The first doctor testified that, after the three visits, he did not again see plaintiff because he considered that he would be well in a week or ten days, and yet plaintiff claims that he was incapacitated for seven weeks.

We are convinced that the finding of the second jury below was manifestly erroneous.

The judgment appealed from is annulled, avoided and reversed and plaintiff’s suit, is dismissed at his cost.


author: WESTERFIELD, J. JANVIER, J.

text:
    No. 13,478
    Orleans
    DERBES v. DIXIE MILL SUPPLY CO., INC.
    (December 15, 1930. Opinion and Decree.)
    (February 2, 1931. Rehearing Refused.)
    (March 30, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff, appellee.
    Milling, Godehaux, Saal & Milling, Irving R. Saal and Lawrence K. Benson, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

In January, 1922, Albert J. Derbes filed, suit against the Dixie Mill Supply Company, Inc., claiming $1,000 as a balance due for services as certified public accountant. There was judgment in the district court in his favor in the sum of $450, “together with legal interest and costs,” which, upon appeal to this court, was reduced to $250 and otherwise affirmed. See Derbes v. Dixie Mill Supply Co., Inc., 11 La. App. 522, 124 So. 316. After the usual delay, the judgment became final, and, when an attempt was made to execute it, a dispute arose as to whether the interest which had been allowed in the judgment should begin to run from judicial demand or from the date of judgment; plaintiff contending for the former and the defendant for the latter interpretation. By consent of both parties, the question was submitted on rule to the Honorable Walter L. Gleason, judge of division D of the civil district court, who, after hearing the parties, determined that the interest should run from judicial demand, and .from his judgment so decreeing defendant has appealed.

Considerable discussion is indulged in by both counsel in their briefs concerning the original right of plaintiff to claim interest in view of article 554 of the Code of Practice and Act No. 206 of 1916 and decisions of the Supreme Court and of this court interpreting that legislation, but, in our opinion, the question of whether plaintiff was originally entitled to interest or not is unimportant, since he can only now claim what the judgment gave him. In other words, whether the judgment awarded him more or less than he was entitled 'to is no longer subject to discussion; the time for complaining of that decree having long since elapsed. The only question now before us is what the judgment may fairly be held to mean; in other words, simply a question of an interpretation of the judgment as. rendered. Appellant argues, that an ambiguous provision in a judgment should be construed with reference to the pleadings, and that since, in the body of his petition, he alleged that interest was due from judicial demand, the judgment should be so construed as to award it. Opposing counsel contend that the judgment is not ambiguous and consequently no necessity exists, for reference to the pleadings. It will be recalled that the judgment allows interest, but is silent as to the date of computing it. The argument that, in this situation, the date when the judgment was rendered should be the starting point, would have much persuasive effect if the question could be considered as an open one. But we find that it has been determined by the Supreme Court many years ago, in the case of Keenan v. Whitehead, 15 La. Ann. 333, where, in the syllabus, which was at that time written by the court, it is said that, “where a judgment on a debt, arising ex contractu, decrees interest, but is indefinite as to the time when it commences to run, the interest decreed must be considered as commencing on the day that the suit was instituted.” Referring to this case, counsel direct our attention to the fact that the judgment under consideration in the Keenan case read “with interest from the 15th day of December,” and that, since the suit was instituted on the 15th day of December, 1859, and decided sometime in March, 1860, the only date that could have been referred to in the judgment was December 15, 1859, which happened to be the day on which the petition was filed, since a year had not elapsed; in other words, the omission of the year was supplied by interpretation, and that the expression in the “syllabus” of the opinion must be disregarded, because unnecessary to the decision of the case. We cannot agree with counsel in this respect, and feel that the Keenan case is controlling here. No matter whether December 15, 1859, was the only date that could be determined upon or not, the fact remains that the court held that interest should be allowed from judicial demand under circumstances which cannot be distinguished in principle from the instant case.

The judgment appealed from, for the reasons assigned, is affirmed.

JANVIER, J.

(dissenting). My associates are of the opinion that the question here presented is no longer an open one, having been settled by the Supreme Court in Keenan v. Whitehead, 15 La. Ann. 333.

I do not find that the views, expressed in the syllabus in that case were necessary to a decision, and the acceptance of that decision as determinative of the question involved here would establish a principle of which I cannot approve; i. e., that interest on a judgment which allows interest, but.which fails to fix the time at which it shall commence to run is, in all cases, collectible from the date of judicial demand.

In Keenan v. Whitehead, supra, the judgment as rendered read in part “with interest from the 15th day of December, at the rate of five per cent per annum.” In interpreting that judgment, it appeared that only one December 15th had intervened between the filing of the suit and the rendering of the judgment, and also that the judgment was rendered on a debt arising ex contractu, and that, for both of these reasons, the December 15th intended was of the year in which the suit had been filed. Manifestly no other December 15th could have been intended.

It was not necessary for the court to say, as it did say in the syllabus, that, “where a judgment on a debt, arising ex contractu, decrees interest, but is indefinite as to the time when it commences to run, the interest decreed must be considered as commencing on the day that the suit was instituted.”

I believe that the court, in the preparation of the syllabus, overlooked the fact that it was much broader than was. necessary and might establish an incorrect principle.

I am of the opinion that, where a judgment reads with interest and does not specify the date on which interest shall commence to run, it can be reasonably interpreted only as meaning with interest from the date of judgment.

I therefore respectfully dissent.


text:
    No. 13,546
    Orleans
    MERCANTILE ADJUSTMENT AGENCY v. FABACHER
    (March 2, 1931. Opinion and Decree.)
    (March 23, 1931. Rehearing Refused.)

      Joseph A. Casey, of New Orleans, attorney for plaintiff, appellee.
    Henry J. Rhodes and J. A. Morales, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The question presented by this appeal—one of fact—is whether service of notice of garnishment was made upon Edward B. Fabacher, the president of Edward B. Fabacher, Inc., judgment pro confesso having been taken against the corporation in the sum of $138 for a debt due plaintiff by Fabacher.

The return of the constable was offered in evidence, and it purports to show that service was made upon the corporation through Edward B. Fabacher, its president. The deputy constable, who made the service on May 9, 1930, testified that the return was correct and, when asked to identify Edward B. Fabacher, pointed out that individual, who happened to be seated in the courtroom. As opposed to this evidence, Fabacher testified that no service of garnishment process had been made upon him at all. Two other parties, Leon A. Greenback and Miss Dorothy Kenny, employees of defendant corporation, gave negative testimony to the effect that they had not seen the notice of seizure in the office. The trial court held that the service had been made in accordance with the constable’s return, and we are of opinion that his judgment was correct.

In De St. Romes v. Carondelet Canal. & Nav. Co., 24 La. Ann. 331, a similar situation was considered by che court and the return of a sheriff upheld against the testimony of the .plaintiff to the effect that she had not been served and that of her two sons to the effect that it was physically impossible for service to have been made; the court saying:

“The evidence on the part of plaintiff does not, in our opinion, overcome that exhibited by written instruments. The presumption is that the officer’s return correctly sets forth facts.”

In Saucier v. McLean, 12 La. App. 158, 125 So. 163, 164, counsel for one of the parties in the case challenged the correctness of the constable’s return, showing service of notice of trial upon him. In accepting the constable’s statement and rejecting that of counsel, we said:

“It is quite possible that a lawyer, in the busy routine of his daily affairs, may overlook the service of papers, particularly notices of trials, which are often served upon him, and, having no recollection of the event, be confident that no service was, in fact, made. On the other hand, it is the constable’s duty to make the service, and he is required to make written returns, giving the date the notice is received and the day it is served, and he is, therefore, less likely to be mistaken. Besides, the official returns of public officers are presumed to be correct.”

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


text:
    No. 13,485
    Orleans
    BROWN v. PEOPLES INDUSTRIAL LIFE INS. CO.
    (February 2, 1931. Opinion and Decree.)
    (February 16, 1931. Rehearing Refused.)
    Chas. J. Mundy,. of New Orleans, attorney for plaintiff, appellant.
    Frank S. Normann, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff was named beneficiary in a policy of industrial life insurance issued by defendant company on the life of William King.

A certain William King died in the Charity Hospital in New Orleans on April 4, 1928, in which institution he had been placed on April 2, 1928, suffering from diseases of infinite variety, which were later catalogued as follows: “Broncho-Pneumonia Chr. Myocarditis & Nephritis-Auricular Fibrillation Arterio-Sclerosis-Syphilis.”

Defendant insurance company refused to pay to the beneficiary the proceeds of the policy ($265), and this, suit resulted.

Defendant resists payment on the following grounds:

First, that the identity of the beneficiary has not been sufficiently established.

Second, that the identity of the deceased has not been made certain.

Third, that no proper proof of death has been submitted in accordance with the policy requirements.

Fourth, that prior to the death of the said King the policy had lapsed because of non-payment of premium for four consecutive weeks.

Fifth, that, when the overdue premiums were finally paid, they were accepted by defendant’s collector subject to the right of the company to refuse to reinstate the policy, and that at that time the insured was already in the hospital, suffering from ailments as a result of which he died two days later, and that the policy was never reinstated.

The defenses that the identities of the claimant and of the insured have not been established and that no proper proof of death has been submitted have, apparently, been abandoned, and defendant now pitches its entire defense on the contentions that, at the time of the death, no reinstatement of the policy had been effected, and that, when the overdue payments were made, they were accepted conditionally and without knowledge of the fact that the insured was in a dying condition.

Plaintiff concedes that, prior to the death of King, the insured, the premiums had been seven weeks in arrears, and also that, under the terms of the policy, failure to pay installments for four consecutive weeks effects a lapse thereof, and also that, after such a lapse, the policy provides that reinstatement may be effected only by presenting the policy to the company for affirmative action and for placing thereon a stamp showing that reinstatement has been agreed to. But plaintiff contends that these policy conditions have been waived because of the alleged fact that on certain prior occasions the company accepted payment and permitted reinstatement without such affirmative action and without the placing on the policy of the stamp.

The trial court rendered judgment disr missing plaintiff’s suit.

The law with reference to waiver by an insurance company of its right to insis that reinstatement shall not be effected, except by affirmative action on its part, has been discussed by us on several occasions, notably in Bush v. Liberty Industrial Life Ins. Co., 130 So. 839, in which case we held that a company of this kind may establish a custom which will lead an insured or a beneficiary to believe that the strict requirements of the policy will not be insisted upon. We believe, however, that the principle announced in the Bush case is not applicable to the situation which confronts us here because the evidence shows that in the instant case no custom such as is contended for by the plaintiff was. established. It is true that apparently on one prior occasion the company had accepted premiums after a lapse. But, even if it be conceded that to accept premiums on one occasion without requiring formal compliance with the policy requirements establishes a custom, nevertheless we feel that even though the premiums were accepted in the instance now under consideration, the evidence establishes that the beneficiary who made the payments, was told that they were accepted subject to the company’s right to refuse reinstatement. Thus the situation presented rather resembles that which this court had before it in the matter of Embert v. Sovereign Camp, Woodmen of the World, 2 La. App. 140, in which case we held that, where the overdue premium was received after the policy had lapsed, it did not effect a reinstatement of the policy because it was accepted tentatively and on condition that the company should have the right to refuse reinstatement.

A reading of the evidence in this, case makes possible no other conclusion than that this, policy had lapsed, and that, after the insured was attacked by the disease which proved fatal, payments of the premiums were tendered, without any statement showing that the insured was at that time in anything but good physical condition. The premiums were received after the insured entered the hospital, practically in a dying condition. The insurance company had no knowledge of his condition and did not affirmatively or finally agree to reinstatement and had not established a custom of reinstatement by mere acceptance of premiums.

The judgment appealed from is affirmed.

WESTERFIELD, J., takes no part.

HUGH C. CAGE, Judge of Civil District Court, Parish of Orleans, and Judge ad hoc, participating.


text:
    No. 13,706
    Orleans
    RUMPF v. CALLO ET AL.
    (February 16, 1931. Opinion and Decree.)
    (March 23, 1931. Rehearing Refused.)
    Dufour, St. Paul & Levy and Augusto P. Micelli, of New Orleans, attorneys for plaintiff, appellee.
    St. Clair Adams and St. Clair Adams, Jr., of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

Ewald Rumpf was injured in an intersectional collision between a Ford automobile in which he was riding and a motortruck driven by defendant Cal-lo and claimed by plaintiff to have been at the time engaged in the business of the other defendant, Jahncke Service, Inc.

The accident occurred on December 5, 1929, near the end of a protracted strike of street railway employees, and the Ford, on the rear seat of which plaintiff was riding, was operating at the time as a so-called “jitney,” that is to say, it was being driven by its owner for the purpose of carrying passengers for hire. It was proceeding out Tulane avenue and the truck was coming down Carrollton avenue towards Canal street.

It is conceded that the driver of the motortruck was at fault. He was not looking and did not stop before crossing the street railway tracks which, at that point, turn from Tulane avenue into Carrollton avenue.

It is also conceded, as it must be, that if the driver of the Ford was negligent, that negligence may not be imputed to Rumpf, but it is charged that Rumpf was guilty of independent negligence on his own part, in that, prior to the accident, he had not made certain that the driver of the Ford was competent and careful, and in that he did nothing just prior to the collision to call the attention of his driver to the fact that the truck was approaching and that a collision was impending.

It is true that we held in Williams v. Lenfant, 131 So. 857, decided by us January 19, 1931, that a passenger in an automobile who sees that danger is impending, and who has an opportunity to warn an apparently unobservant driver, must do so, but such a rule has no application unless it appears that there was an opportunity to warn and that there was time for the driver toa heed the warning..

Here there was no such opportunity, and when it became apparent that the truck 'would not stop, but that the driver thereof intended crossing the street railway tracks, there no longer remained time for a warning cry to be uttered, and even if it had been uttered there was not sufficient time left for the driver to heed it.

We are also of the opinion that plaintiff did all that could be required of him -in regard to ascertaining whether the • driver of the Ford in which he was riding was competent and careful. He states that he watched the driver of the Ford for several minutes, and that his actions indicated familiarity with the handling of such a car, and that nothing he did created the impression that he was careless or incompetent.

Since plaintiff was guilty of no negligence on his own part, and since his right to recover from a third person whose negligence is a contributing cause of his injuries may not be defeated even if the driver of the car in which he was riding may' to some extent have been also at fault, we feel that the finding of the trial court that defendant Callo should be held liable was correct.

The judgment below dismissed the suit as against the other defendant, Jahncke Service, Inc. Callo has appealed, and he complains that the judgment is erroneous, not only in that it was rendered against him, but also because it was rendered in favor of his co-defendant, Jahncke Service,- Inc.

Plaintiff did not appeal from that part of the judgment which dismissed his suit against Jahncke Service, Inc., but, in an answer to the appeal of the other defendant, Callo, plaintiff asks not only that the amount awarded below be increased, but also that the judgment dismissing his suit against Jahncke Service, Inc., be reversed.

His answer to the appeal of Callo cannot have the effect of bringing Jahncke Service, Inc., back into the case. If plaintiff was not satisfied with the judgment as rendered, it was his right to appeal therefrom as against the other defendant. Since he did not do so, he cannot by answer to the appeal taken by Callo maintain his action against Jahncke Service, Inc.

Nor can the defendant Callo be heard to complain of a judgment in favor of his co-defendant. Solidary liability rests on joint tort-feasors. Each, if guilty of negligence proximately contributing to an accident, is liable for the whole damage. An injured party may sue either or both and neither has any right as against the other.

"The liability arising from negligence constituting the offense or quasi offense is to the injured party, but creates no liability, one to the other, of those to whom the negligence is imputed. * * *” Louis Sincer v. Heirs of M. M. Bell, 47 La. Ann. 1548, 18 So. 755.

It is true thht there are certain circumstances which may create 'in two or more persons solidary liability to a person injured and in which cases there may nevertheless exist the right of contribution in favor of one of .the joint tort-feasors and against the other, but that situation only arises where one of the ■ parties is only technically and constructively at fault or where ono of the parties is, as it is sometimes expressed, vicariously liable.

For instance, in Appalachian Corporation v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539, it was held that an owner of a newly purchased building could maintain an action to recover back from the former owner an amount paid for damages suffered by a party injured by a defect in the building, because at the time of the injury the former owner was still in possession of the premises. The new owner was liable only because of its legal status as owner, and not by reason of any actual act of negligence on its part.

The principle that a person liable only vicariously may recover back from a joint tort-feasor- such amount as he may be called upon to pay was followed in Sutton v. Champagne et al., 141 La. 470, 75 So. 209, 211. Champagne, one of the defendants, had given his minor son a rifle. The boy lent the gun to the minor son of the other defendant, Mrs. Sill. The Sill boy discharged the rifle and plaintiff’s son was killed. The father of the boy who gave the gun to his minor child and Mrs. Sill, the mother of the boy who discharged the gun, being sued, were held liable in solido as joint tort-feasors, but Mrs. Sill was given judgment against Champagne because of the fact that Champagne was primarily liable in that he produced the gun. The court said:

"The solution of the problem must be that, while she [Mrs. Sill] is liable to the plaintiff, she has her recourse over against the person who by his act brought the responsibility upon her; and we shall so decide.”

Here the situation is exactly reversed; if the Jahncke Service, Inc., can be held liable at all, it can only be as a result of the negligence - of Callo. If such liability can be^ placed upon Jahncke Service, Inc., then. Jahncke Service, Inc., under the doctrine of the Sutton v. Champagne and of Appalachian Corp. v. Brooklyn Cooperage Co., supra, can maintain an action against Callo to recover back any amount it might have to pay to the injured party, but surely Callo cannot maintain an action against the Jahncke Company to recover back any amount he may be required to pay. Therefore, Callo has no interest whatever in retaining the Jahncke Company as a co-defendant.

Jahncke Service, Inc., is not now before us either as a result of the appeal by defendant Callo or as the result of plaintiff’s answer thereto.

Nothing remains but a consideration of the quantum. Plaintiff was awarded $1,675 in the court below. The most serious, of the injuries was a linear fracture of the skull. The evidence shows that the fracture was very slight and that while all fractures of the skull are more or less serious, this one was characterized as “the simplest form of fracture known.” There was no pressure upon the brain, and the doctors all testified that there was no reason why the injured party should not completely recover after a few months. The hospital, record shows that plaintiff regained consciousness on the second day but the physicians who testified on his behalf stated that this was an error and that he did not regain consciousness for five days. He returned to work in seven weeks. While the amount awarded appears to us to be small, we do not feel that it is so manifestly inadequate as to justify our interfering with the conclusion reached by our brother below.

The judgment appealed from is affirmed.


text:
    No. 13,490
    Orleans
    PARKER BRAWNER CO. v. HARRIS ICE CREAM CO.
    (February 16, 1931. Opinion and Decree.)
    (March 2, 1931. Rehearing Refused.)
    J. J. Cullinane and E. J. Thilborger, of New Orleans, attorneys f.or plaintiff, appellant.
    W. A. Porteous, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Parker Brawner Company, a corporation domiciled in Washington, D. C., is engaged in the manufacture and sale of supplies of advertising specialties for confectioners and vendors of ice cream, cakes, et cetera. For several years prior to the occurrences which gave rise to this litigation, it had sold its wares to the Harris Ice Cream Company, a corporation doing business in this city. It now sues for $256.16, with interest, et cetera, alleging that amount to be the balance due for purchases for which payment has not been made.

Defendant refuses to pay the balance claimed to tie due on the said account, contending that certain articles sold it, to-wit, four issues of an advertising medium known as “Hospitality Magazine,” did not include on the outside rear cover the advertisement of defendant, which, according to the terms of the contract, should have been printed thereon.

Plaintiff admits that the advertising matter of defendant was not printed on the magazines, but contends that the omission resulted from defendant’s failure to furnish the “copy” therefor. Defendant answers this contention of plaintiff by averring that it was understood the salesman who took the order would prepare the advertising matter, and that this had been customary in the past.

It is conceded that the magazines were of no value to the defendant, in the absence of its advertisement, but the litigation depends; for its determination, on the question of upon whom rested the duty of preparing the “copy.” The trial court rendered judgment for defendant.

Had there been only one issue of the magazine, we would not be inclined to reverse the finding of our brother below, but we cannot overlook the fact that four separate issues were sent to defendant at quarterly intervals. E. E. Harris, apparently an officer of defendant corporation, and who styles himself as defendant, testified that, when the first issue was received, consisting of some 540 copies of the magazine, he attempted to have the advertisement inserted locally, but found that this was. not practical.

Surely, after such an experience, it was defendant’s duty to make certain that the matter which it wished inserted in its advertisement on future copies be sent to plaintiff in time for insertion. No attempt is made to prove that it did send on information as to what it wished included in the future advertisements until just before the appearance of the final issue, and in the letter giving the information intended for the final issue no complaint was made about the fact that the earlier issues had not contained the proper advertisements. A careful study of the entire record convinces us that the fault lay with the defendant and not with plaintiff.

Furthermore, we find, from an examination of the account, that' defendant, apparently without objection, has paid more than would be due on the open account for other purchases, if its contention is correct in regard to the “Hospitality Magazines.” This, may have been through inadvertence, but, when viewed in connection with the other actions of defendant, it is corroborative, and convinces us that our conclusion is correct, and that defendant is liable for the balance claimed to be due.

It is therefore ordered, adjudged and decreed that the judgment appealed from be, and it is, annulled, avoided, and reversed, and that there now be judgment in favor of plaintiff, Parker Brawner Company, and against defendant, Harris Ice Cream Company, in the sum of $256.16, with interest thereon at 5 per cent from July 30, 1929, until paid, and for all costs.


author: HIGGINS, J.

text:
    No. 13,498
    Orleans
    HORN v. DRAUBE
    (February 16, 1931. Opinion and Decree.)
    (March 2, 1931. Rehearing Refused.)
    Prowell, McBride & Ray and Belton P. Mouton, of New Orleans, attorneys for plaintiff, appellee.
    'Moise & Dunbar, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

The record shows that the plaintiff was employed as a salesman and was driving the Ford coupe car of his employer on Loyola street in the direction of downtown, and that this is a two-way unpaved street. The defendant’s truck was being driven on Upperline street in the direction of the lake, and it appears that this is a one-way paved thoroughfare. The only witnesses to the accident are the driver of defendant’s truck and the plaintiff.

This is a suit to recover the sum of $300 damages, for personal injuries, the value of a suit of clothes, etc., alleged to have resulted from an intersectional collision, which occurred about 3:00 o’clock in the afternoon on December 3, 1929, between a truck of defendant and a Ford coupe automobile driven by the plaintiff. The charges of negligence against the driver of defendant’s truck are that he was operating it at an excessive rate of speed, without keeping a proper lookout, and in failing to yield the right of way to the coupe, as it entered the intersection first. The defendant denied these charges and averred that the accident was caused solely through the fault of plaintiff in suddenly driving the coupe into the path of the truck, which had the right of way. There was judgment m favor of plaintiff for the sum of $200, and defendant has appealed.

Plaintiff testified that, as. he approached the intersection, he stopped, looked out Uppernne street toward the river, and saw defendant’s truck approaching at a very rapid rate of speed about fifty yards away, and that, believing that he had sufficient time to cross, he started the car and had reached a point past the center of the intersection, when the right front side of defendant’s truck struck the right rear wheel of the Ford.

The driver of the truck was a young man nineteen years, of age, and he testi fied that he was driving back Upperline street towards the lake, at a moderate rate of speed, and was within twenty feet of the corner when he saw the plaintiff’s car at the intersection of Loyola and Upperline streets; that the plaintiff tried to “beat me across the street and I struck him on the right fender and his right rear wheel hit the curb”; that he was traveling on the right side of Upperline street, and, in order to avoid striking the Ford coupe, turned the truck towards the left; and that he stopped on the uptown side of Upperline street.

Neither the plaintiff nor the defendan pleaded or offered in evidence the traffic ordinances of the city of New Orleans, which must be pleaded and proved as any other fact. Therefore the trarfic ordinances are not before us. Valenti et ux. v. Oster Bros. Carriage & Wagon Mfg. Co., 154 La. 991, 98 So. 553.

The plaintiff contends that the defendant should be held liable because the Ford car entered the intersection first, as testified to by himself, and as shown by the physical fact of the truck striking the right rear wheel of the Ford car.

Defendant contends that the plaintiff was in a position of safety, having stopped and seen the defendant’s truck approaching, and that he was solely at fault in attempting to cross in front of the oncoming truck, twenty feet away.

We are convinced that the plaintiff is mistaken in his. estimate of the distance that the truck was from the corner at the time he attempted to cross. To accept his version the truck would have had to be going at the rate of about fifty miles per hour to have struck him. It further appears to us that the truck was not being operated at an excessive rate of speed, because it stopped practically in the intersection. The plaintiff had stopped b car in a position of safety, saw the approaching truck, and then ventured to cross in front of it, and, in doing so, was guilty of negligence and carelessness.

As soon as the driver of the truck saw that the plaintiff was going to attempt to cross in front of the truck, he immediately applied his brakes and swerved to the left in order to avoid the collision. This accounts for the truck striking the rear wheel of the Ford car. Under these circumstances we are of the opinion that the plaintiff was solely at fault, and that the defendant was free from negligence, and, therefore, not liable.

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