author: DREW, J. McGREGOR, J.

text:
    No. 3878
    Second Circuit
    HUFFMAN ET AL. v. HARMAN
    (April 9, 1931. Opinion and Decree.)

      Cecil Morgan, of Shreveport, attorney for plaintiffs, appellants.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellee.
   DREW, J.

This suit arises out of an automobile collision which occurred at the intersection of two streets in the city of Shreveport. Plaintiffs alleged that Mrs. Dorothy C. Huffman, one of plaintiffs, was driving a Ford sedan proceeding north on Gilbert street on the right-hand side and at a moderate rate of speed. That as she entered the intersection of Gilbert and East College streets, defendant’s Chevrolet truck, driven by a negro, an employee of defendant, coming from ' the west on East College, ran into her Ford sedan broadside. Plaintiffs alleged that the driver of the truck was acting within the scope of his employment and was on a mission for defendant. They further alleged that the truck was being operated in a careless, reckless and negligent manner; that it was being operated at an excessive rate of speed, approximating thirty-five miles per hour; that the driver of the truck failed to slow down for the intersection and failed to recognize the right of way and to permit the car of plaintiffs to' pass on Gilbert street, it being a right of way street; that the truck driver failed to apply his brakes in an attempt to avoid the accident; and that defendant’s truck entered the intersection after plaintiffs’ car had entered and acquired the right of way. That the truck driver’s negligence was the proximate cause of the accident and the resulting injury and damage to plaintiffs, alleged to be in the amount of $947.68, for which sum they pray for judgment.

Defendant denied the principal allegations of plaintiffs’ petition and alleged that his truck was being driven north on Gilbert street at the time of the accident, and that plaintiffs’ ear was going west on East College street. He denied that the truck was traveling at an excessive rate of speed, and alleged that it was not exceeding 23 miles per hour. He alleged that plaintiffs’ car was traveling at a fast, reckless and dangerous rate of speed and did not slow down at the entrance to said intersection. That the driver of plaintiffs’ car did not look to see if another car was approaching on Gilbert street, and that his truck entered the intersection first. That on seeing the car of plaintiffs, his driver applied the brakes. He prays for plaintiffs’ demands to be rejected and for his right to sue for damages to his truck to be reserved.

There was judgment in the lower court rejecting plaintiffs’ demands, and they have prosecuted this appeal.

It is ratber unusual that plaintiffs and defendant should both claim to have been on the same street. Plaintiffs contend that their car was at the time of the accident going north on Gilbert street and that defendant’s truck was going east on East College; and defendant contends that his truck was going north on Gilbert street and plaintiffs’ car was going west on East College street. The pleadings on this point are entirely irreconcilable and the evidence thereon is likewise so. Both plaintiffs and defendant base their hopes of success in this case on the question of which car. was on Gilbert street, and say to this court-that to decide that question is to decide the case. We presume they took the same position in the lower court and that the judge below held that the plaintiffs had not overcome the burden of proving their case with a preponderance of evidence. If that be true, we can find no fault with the judgment.

Mrs. Huffman, who was driving plaintiffs’ car, testified that she was going north qn Gilbert street. She is' corroborated by one witness who testified that he saw her for a block before she entered the intersection, and one witness who saw the accident at the moment it happened. The driver of the truck and his companion, who was riding with him, testified that they were going north on Gilbert and are corroborated fully by a lady who lives on the corner of East College, who testified that she saw the truck going north on Gilbert for more than a block away and that she saw plaintiffs’ car coming west on East College. Both plaintiffs and defendant argue that the physical facts corroborate their ¡positions. But the testimony as to the position of the two cars after the accident and the tire marks on the pavement is just as much in conflict. Immediately after the accident, plaintiffs’ car was up against the curb on the north side of East College, facing west, and the truck was headed into its left side. This position of the cars corroborates either the contention of plaintiffs or defendant, however, possibly more favorable to plaintiffs’ theory. But the testimony of several disinterested witnesses who viewed the scene soon after the accident is that the heavier tire tracks of the truck were on Gilbert street and the tire tracks of plaintiffs’ car were on East College, a physical fact strongly corroborative of defendant’s contention. This question as to which one was on Gilbert street is purely a question of fact, and the record does not disclose any error in the finding'of the lower court thereon. The evidence does not make it clear as to which car entered the intersection first—the only way to arrive at that would be to know positively which street each was on. The positive testimony is that neither car was traveling over 20 to 25 miles per hour and that neither street is a right of way street. It is also clear that neither driver saw the other until the moment of the collision, as neither looked to the right or left.

We think the testimony shows that had either driver looked on or before entering the intersection, that one could have seen the other for at least 50 feet before entering the intersection, and could have avoided the accident. If they could not see before entering the intersection, it was then the duty of both to slow down and ¡put their cars under control so as to be able to stop in an emergency. Although defendant’s driver was negligent in not seeing plaintiffs’ car before entering the intersection, we think plaintiffs were equally as guilty of negligence in not seeing defendant’s truck before entering the intersection. And had plaintiffs exercised .the precaution required by law, the accident would have been avoided. Therefore, regardless of which street plaintiffs’ car was on, they cannot recover.

We find no error in the decision of the lower court and it is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with all costs.

McGREGOR, J.

(dissenting). Plaintiffs sued defendant for the sum of $947.68, alleged to have been the result of an inter-sectional collision in the city of Shreveport, between a Ford sedan and a Chevrolet milk truck. The sedan was owned by the plaintiffs and was being, driven by one of them, Mrs. Dorothy C. Huffman, who was alone at the time. The truck was owned by the defendant and was being operated by a negro employee in the regular course of employment. The scene of the collision was at the intersection of Gilbert and East College streets, in what is known as the Highland section of the city of Shreveport. Gilbert street runs north from the Gladstone section towards town until it runs into and merges with Marshall street, near the Highland Sanitarium. It is midway between and runs parallel with Highland avenue and Centenary boulevard. East College street runs east and west and intersects Highland, Gilbert and Centenary boulevard at right angles.

In the petition it is alleged that the plaintiff, Mrs. Dorothy C. Huffman was proceeding north on Gilbert street on the l'ight-hand side at a moderate rate of speed and that as she entered the intersection of Gilbert and East College, still going straight north, the defendant’s Chevrolet truck, coming from the west on East College street, struck her Ford sedan broadside, near the middle. It is further alleged that the Chevrolet truck was being operated .by the defendant’s employee in a careless, reckless and negligent manner and at an excessive rate of speed. The defendant in his answer denied any and all negligence on the part of his employee and alleged an entirely different state of facts. He alleged that, instead of traveling east on East College street at the time of the collision, the Chevrolet truck was going north on Gilbert street, where the plaintiff claims that she was, and he further alleges that, instead of traveling north on Gilbert street at the time of the collision, the plaintiff, Mrs. Dorothy C. Huffman, was on East College street, going west, approaching the intersection of Gilbert. There are witnesses testifying to both sets of facts. The trial judge evidently held that the plaintiffs carried the burden of proving their contentions and that they had failed owing to the many conflicting statements found in the record. He therefore refused the plaintiffs’ demands and rendered judgment in favor of the defendant.

Able counsel for the defendant very aptly and correctly said in their brief that “when testimony is contradictory, it is the duty of the court to reconcile it, if possible.” They further state that, “If it is found by the court that the testimony cannot be reconciled, then, the ‘preponderance of the evidence’ will determine the findings.” This, too, is a correct statement of the rule of interpretation of testimony and evidence, but it is also true that the courts accept some testimony as true and reject other as untrue. They believe some and disbelieve some. There are no hard and fast rules to control the courts in discovering the truth when the evidence is conflicting and cannot be reconciled'. It is often true that because of undisputed physical facts the doctrine of res . ipsa loquitur is resorted to in order to determine the correct finding. So in this case it seems to me that the undisputed physical facts determine in a large measure the correctness or incorrectness of the contentions of the plaintiffs and the defendant. The plaintiff, Mrs. Dorothy C. Huffman, was either going north on Gilbert or west on East College; she could not have been in both positions. The defendant’s employee was going either east on East College street or north on Gilbert; he could not have been in both positions. In arriving at a determination of the issue involved I start with undisputed physical facts and will endeavor to ascertain from these facts from what directions the two vehicles came and who was to blame. Immediately after the collision when both had come to a standstill, plaintiffs’ Eord sedan was on the north side of East College street up against the curb facing Gilbert street on the west, several feet east of the east edge of Gilbert street, estimated by witnesses on both sides to be from five to twenty-four feet. Defendant’s truck struck the plaintiffs’ sedan broadside at about the middle, and the front of the truck was driven into and locked in the side of the sedan. Imprints of both headlights of the truck were found on the left side of the sedan, so there can be no mistake about the truck striking the sedan broadside and midway.

Repairs to the amount of $197.68 had to be made to the sedan on account of the collision. Included among these repairs were a door, body panel, frame, clutch housing, fly wheel housing, motor supports, running board and attachments, left rear fender, left front fender, one rear wheel, one battery and numerous other parts. We enumerate these items to show in a measure the intensity of the blow from the truck to the sedan.

We come now to the question as to how and where the collision occurred. Mrs. Huffman, the lady who was alone in the sedan and driving it, states positively that she was traveling north on Gilbert street and had entered about half way the intersection with East College when the defendant’s truck, coming from the west on East College, suddenly struck her at about the middle of East College street. She states that as she was approaching the intersection with East College street she did not see the defendant’s truck, so it is evident that it was not entering the intersection at the time that she was. Whatever the real positions of the two vehicles at the moment of the collision was, it is conceded that the truck fastened itself upon the middle of the side of the sedan. That being true, it followed the sedan to the position into which it pushed it. It is undisputed that there were sliding marks on the pavement in East College street, running in the form of arcs from the front and rear wheels of the sedan out into Gilbert street, which clearly shows that the sedan was in Gilbert street when it was struck and that it was forced by the truck into the position in which it finally rested on College street. Furthermore, it is admitted by the defendant that it was at least partly in Gilbert street at the time of the collision. Those sliding marks show that the entire car was over in Gilbert in some position. At the moment of the collision both vehicles must have been moving and must have had some momentum. The direction which the two vehicles took as they were locked together depended very largely on the momentum of each. It is not reasonable to suppose that either would entirely overcome the momentum of the other and carry it in directly the opposite direction from where it was going just before the collision. And yet, that is what would have taken place if we believed the defendant’s version. Defendant alleges that his truck was traveling directly north on Gilbert street and that plaintiffs’ sedan was traveling due west on East College and had run into Gilbert in front of the truck in time to receive the blow. The sedan was thus completely stopped, its momentum entirely overcome and it was pushed back east on East College a distance, according to all the testimony, of from ten to thirty feet, and brought to a standstill up against the north curb of East College street with the sedan facing west. If this collision had occurred as contended by the defendant, it is certain under the laws of physics that the two vehicles would have traveled in a northwest direction and the wreck would more than likely have landed on the west curb of Gilbert street. Under the laws of physics even if the plaintiffs’ car had been at a perfect standstill it would have been practically impossible for defendant’s truck running north at any rate of speed on the right side of Gilbert street to collide in any manner with this sedan so as - to drive it east up East College street a distance of ten to thirty feet until it locked itself in the side of the sedan and stopped, with the sedan up against the north curb of East College in a demolished condition. I say this could not be done if the truck had been going at an enormous rate of speed, while the sedan was standing still, and much less could it have been done when the truck was traveling at a slow rate of speed in' the first instance, as defendant claims, and had then had the brakes applied, and while the Ford sedan was traveling at least at a moderate rate of speed west. Taking it for granted for the sake of argument that the defendant’s contention is correct as to the relative streets and directions on and in which the respective vehicles were traveling, the Ford sedan could not have been going at a rapid rate of speed west, for it it had it is certain that it could not have been forced backwards east into East College street, but with its momentum it would have either continued on across Gilbert street or north on Gilbert because of the collision. Again, if defendant’s truck had been going north as is contended, at a slow rate of speed, it is sure that it would have been carried west instead of east by the force of the collision.

Under the doctrine of res ipsa loquitur we are bound to hold that the defendant’s truck could not have been going north on Gilbert while the plaintiffs’ sedan was going west on East College.

Take it on the other hand, plaintiffs allege that the sedan was proceeding north on Gilbert at a reasonable rate of speed and that the truck was traveling east on East College. We think two moving bodies traveling one east and the other north the resultant direction of the two positions coming together under the laws of physics would be northeast. Plaintiff, Mrs. Huffman, says defendant’s truck struck her on the left side just as she was reaching the center of the intersection. The natural thing under that situation would be for the truck, the larger of the two vehicles, to drive the sedan toward the east and that is just what happened in this instance. It is certain that it struck it nearer the rear end somewhat, for it swung the rear end around until the sedan landed against the north curb of East College street. This is plainly shown by the sliding marks in the shape of arcs which extended from the rear and front wheels of the Ford sedan into Gilbert street. With the truck coming, east it could drive the sedan into East College, as was admittedly done, but this was physically impossible with the truck going north and the sedan going west. The physical facts, therefore, bear out the contention of the plaintiffs and corroborate their witnesses. The conclusion is irresistible that defendant’s truck was driving at a high rate of speed toward the east on East College street when it struck'the plaintiffs’ sedan as it was going north on Gilbert street.

Plaintiff herself certainly knows in what direction she was going and on what street she was traveling and she swears that she was going north on Gilbert and that the truck struck her on the left side, coming from the west. But the defendant will say just as positively that this truck driver knew that he was traveling north on Gilbert street and that the (plaintiffs’ sedan was traveling west on East College. In a case like this the court has a right to believe one and to disbelieve the other and so I unhesitatingly say I believe the lady is telling the truth. On this point it is contended by counsel for the defendant that the lady was confused and honestly did not know or remember in what direction she was going or on what street she was traveling, and in support of this contention they cite the fact that during her cross-examination by them she testified as follows:

“Q. Were you to some extent dazed and confused at the time of the accident, Mrs. Huffman?
“A. I was, immediately following the accident.
“Q. That is what I meant. And did not you on that occasion give different statements to bystanders as to the direction in which you were going and the street that you were on? Did you not tell some people immediately, at the time of the accident, that you were going west on College?
“A. I told the officer when he came, I was still in the Ford and didn’t get out until after he arrived—he asked me where was I going and I told him he could see for himself, I hadn’t moved. He said, ‘You are on East College,’ I said, ‘No, I am on Gilbert.’ I thought I was. I got out, got the directions and straightened myself out and I told him that I was driving on Gilbert.
“Q. That is all.”

Instead of being against the lady’s testimony that she was traveling north on Gilbert street, I think this extract from her testimony confirms her position. In her dazed condition she still thought she was on Gilbert street where she knew she was just prior to the collision, tier statement at this time in her condition has great probative force as a part of res gestae.

There were two disinterested eyewitnesses, Mr. and Mrs. C. C. Hankins, who were on their way home from Sunday school. At this point it is well to mention the fact that this collision took place on Sunday at about 11 o’clock, and that Mrs. Huffman lives at Centenary College and that she had been home to take her children who had attended Sunday school that morning at St. Mark’s Episcopal Church, and that she was at the moment of the collision on her way back to church. Mr. and Mrs. Hankins, as just stated, were on their way home from Sunday school. They were in an automobile traveling south on Gilbert street about one block north of the intersection with East College. Mr. Hankins testifies that he saw plaintiffs’ sedan coming north on Gilbert and when the collision took place he saw the truck coming from the west on East College and was looking directly at them when the collision took place. At the moment of the collision they were about one-half a block north of the intersection on Gilbert street. Mrs. Hankins never remembered seeing the sedan and in what direction it was traveling before the collision, but she says that just before the collision the sedan was on the east side of Gilbert, facing north and that the truck was facing east on East College street. In discussing the testimony of these two witnesses in their brief I think that counsel for defendant have misread it and have not given it the force to which it is entitled.

On the other hand, defendant’s driver, a passenger who 'was riding with him and a lady who lives on the northwest intersection of these two streets all swear positively that the truck was going north on Gilbert and that the sedan was going west on East College. I do not believe that the two negroes even thought that they were telling the truth. I do think that the lady who lives at the intersection thought she saw it as she testified, but her testimony is inconsistent with the physical surroundings and I think she could not have seen all that she thinks she saw and as she thinks she saw it. She says that she was standing at the top of a step ladder, inside of her residence, hanging curtains on Sunday morning, and that she was looking down Gilbert street and saw the truck proceeding all the way from Boulevard street until it reached the intersection with East College and the thought occurred to her that there was one truck that was traveling slowly. She testified further that she heard the truck put on its brakes and that it made a terrible sound. This within itself would be in•consistent with the fact that the truck was traveling at a slow rate of speed. If it had been traveling at such a slow rate of speed and the driver had put on the brakes as she claims, itiwould have been impossible for the collision to have taken place, as it did and it would have been still more impossible for the truck to drive the sedan east on East College street as it did.

Counsel for defendant in their brief invite us to consider “the inherent probability that Mrs. Huffman was driving west on East College street on this Sunday morning.” They suggest that it is proper. to consider these probabilities owing to the conflicting statements of the various witnesses. I think they are right in this, but with my knowledge of the city I believe that if they stake their case on the probability of Mrs. Huffman’s proceeding north on Centenary boulevard and turning west on East College street, it would be impossible to reach a conclusion in favor of the defendant. Counsel are very ingenious in their argument as to why Mrs. Huffman would naturally select the route of East College in order to go quickly from Centenary College to St. Mark’s Episcopal Church. They say she came down Centenary boulevard to East College street in order to drive west about a mile on a street that usually had very little traffic on it. It will be admitted for the sake of argument that the lady was in a hurry. Under this condition she certainly would select the most direct and easy route, but to take the route suggested by counsel Centenary boulevard would immediately carry her at least one-half a block east out of her way, and then, as soon as she had turned north again on Centenary boulevard she would have reached Bast College in about six or eight blocks. It is interesting to know that East College intersects Centenary boulevard at a point half way down a hill. If the lady were driving on Centenary boulevard she would certainly have had a considerable speed at that point and it would have been impractical to turn west on East College street there and, furthermore, as soon as she had turned into East College she would have immediately had another hill to climb. These two reasons, I think, argue most strongly against the probability of her selecting this route. On the other hand, there is a street that 'leads directly from Centenary campus to Gilbert . street and it is more likely and probable that she took this route and as soon as she reached Gilbert, turned north on it, as it is commonly known as a right-of-way street. In their argument counsel urge that Mrs. Huffman would have avoided Gilbert street for the reason that it is a main artery and in the same breath they urge that defendant’s negro driver would have selected it for the same reason. Considering the probabilities of the course that the negro truck driver would take, it is necessary to state what his mission was on this Sunday morning. He had gone from Bossier City to a dairy located on Samford avenue and Dalzell street. From there he went to the defendant’s residence at the corner of Kings Highway, Fairfield and St. Vincent’s avenues. From there he went to Preslar’s Milk Station. on Highland avenue. From Preslar’s Milk Station he was due to return to Bossier City. Counsel contend that he turned off Highland avenue to reach Gilbert, the next street but one after he left Preslar’s Milk Station. Counsel is mistaken in this, for Dalzell street is the sixth street from Preslar’s Milk Station.- It is the more reasonable supposition that defendant’s truck driver had in mind to reach Centenaiw boulevard and that he selected a street that would go all the way from Highland avenue to Centenary boulevard. After he reached Centenary boulevard he would have no more turns as that street goes directly into the city over Market street viaduct and would take him within two blocks of the Red River bridge, where he was going. We think, therefore, defendant’s truck driver turned off Highland avenue on a street leading directly to Centenary boulevard. This is the most logical conclusion that can be reached when we consider the point from which the driver was going and the place to which he was traveling. This being true, and since the collision took place at the intersection of East College and Gilbert streets, the irresistible conclusion as I see it, is that he turned off Highland avenue on East College and was traveling east on East College when he ran into and struck the plaintiffs’ sedan, and that therefore the plaintiffs’ sedan must have been going north on Gilbert street as Mrs. Huffman contends she was. Counsel argue that the negro got off Highland avenue in order to avoid the street car tracks and sought Gilbert. The truth is Gilbert would soon take him back to these same street car tracks. In traveling all the way from Highland avenue to Centenary boulevard, the driver would not only avoid the street car tracks, but would reach a direct route to his destination.

Counsel on both sides appear to have agreed among themselves to stake the entire issue on the question as to who was going north on Gilbert street. If the question should turn on that issue alone judgment would have to be rendered for the plaintiffs, but I think that there are other reasons for reaching the same conclusion.

Quite a number of witnesses were produced by the defendant other than those mentioned above but none of these saw the collisiog. All testified to physical facts and my conclusion that the collision undoubtedly occurred while the sedan was going north on Gilbert and the truck was going east on East College street is based as much on their testimony as it is on the testimony of the plaintiffs’ witnesses who testified as to the physical indications immediately after the collision.

Having found the facts to be as stated, namely, that the collision occurred while the sedan was going north on Gilbert street and the truck was going east on East College street, it remains to determine whether the defendant’s employee was guilty of negligence. The testimony convinces us that Mrs. Huffman, the plaintiff who was driving the sedan, had the right of way when she entered the intersection and that the driver of the truck while traveling at a reckless rate of speed ran into and struck the sedan and forced it several feet east on East College street. The fact that he forced or drove the sedan as far as he did into East College street and the way he did it convinces me thoroughly that he was negligent and that he was driving at a reckless rate of speed and that his truck had acquired an enormous momentum. And since it is admitted that he was in the regular course of his employment at the time, his employer, the defendant herein, is liable.

The opinion of the majority is based on the holding that the plaintiff, Mrs. Huffman, was guilty of negligence in not seeing the defendant’s truck as she approached and entered the intersection. I cannot agree with this holding of the court. Mrs. Huffman testifies positively and definitely that, “He was not within my line of vision when I entered the intersection.” She testifies that she was driving at a rate of about 18 miles per hour at the moment of collision. Mrs. Huffman, under the law, was not required to see the defendant’s truck at just any point he might be in the block to her left on the west. She looked at the instant she entered the intersection and he was not in her “line of vision.” She was safe to enter the intersection if no other vehicle had entered from her left on the west, but by the time she got half way across she was struck a heavy, broadside blow from the left, which turned her around at right angles and forced her sedan from ten to thirty feet east into College street up against the north curb. In order for this to happen plaintiff is bound to have been going slowly and defendant’s truck is bound to have been going at such a terrific rate of speed that he could not have been entering the intersection simultaneously with the plaintiffs’ sedan. With the truck traveling at the rate of speed it was and with such momentum as to cause the damage it did in the way it did, it must have been such a distance west of the intersection that it was not in the line of Mrs. Huffman’s vision when she entered the intersection. So, Mrs. Huffman’s direct testimony convinces me that she did look and did not see the defendant’s truck. It no doubt was several feet west of the intersection at the moment. The way in which defendant’s truck forced the car east from ten to thirty feet convinces me of the gross negligence of the driver of the truck.

I am so firmly convinced that the defendant’s truck driver was guilty of negligence and that the plaintiff, Mrs. Huffman, exercised all the care and caution required by law, that I respectfully dissent from the opinion handed down by the majority of the court.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3883
    Second Circuit
    NEAL v. MURFF
    (January 27, 1931. Opinion and Decree.)
    (February 26, 1931. Rehearing Refused.)
    Reynolds, Hamiter & Hendrick, of Shreveport, attorneys for plaintiff, appellee.
    Murff & Perkins, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

This action was brought by T. S. Neal to recover judgment against C. D. Murff for $850, with legal interest from judicial demand; and plaintiff appeals from a judgment rejecting his demands.

Plaintiff alleged that, acting in his capacity as a real estate broker, he entered into a contract with defendant to find a buyer or party who would be willing to exchange property in Caddo parish for property owned by defendant in Bossier parish; that on December 6th, 1929, he had perfected an agreement between defendant Murff and E. D. and H. Rodenhouse, as shown by the agreement annexed and made a part of his petition.

The agreement referred to purports to be an executory contract of exchange of certain property owned by defendant in Bossier parish for certain property owned by E. D. and H. Rodenhouse in Caddo parish, in which Rodenhouse agrees to assume an indebtedness against the Murff property of approximately $3,300, and Murff, to assume an indebtedness of approximately $3,000 against the Rodenhouse property. Each of the parties declared they would pay the taxes, assessed against the respective property owned by him for the year 1929, and that each would furnish to the other an abstract of their titles, and, among other provisions, there were two which read as follows;

“This agreement to be carried out on or before January 2d, 1930; and the above is based on the ability of said parties to make a good and valid title to said properties free from all incumbrances, except as to that assumed.”
“And to this agreement now comes T. S. Neal, who declared that in the event this trade is consummated, he waives the option held by him for the purchase of the Murff property. At the time of closing this trade, the said Chas. D. Murff agrees to pay T. S. Neal eight hundred and fifty dollars and Ed. Rodenhouse agrees to pay T. S. Neal six hundred dollars. Should any defect show up in the titles to said property, a reasonable time shall be given in order to have same cured.”

Plaintiff further alleged that Rodenhouse had complied with all the obligations imposed upon him by the agreement, and was ready to carry out the contract on January 2, 1930, and that on said date and continually since Murff had refused to consummate the exchange.

Defendant excepted that the petition failed to state a right or cause of action, which was referred to the merits, and thereafter plaintiff filed several amended petitions, in which, among other allegations, plaintiff alleged that Rodenhouse had tendered Murff an abstract of his titles, Which was refused, and, further, that Murff had on several occasions prior to January 2, 1930, declared he would not proceed under the agreement unless Rodenhouse would consent to his reserving a part of the minerals in the lands agreed to be transferred to Rodenhouse.

Defendant filed exceptions, of no cause or right of action as the amended petitions were filed, which were referred to the merits; and, under reservation of his rights in the exceptions, defendant answered, admitting that he had signed the instrument sued upon, otherwise pleading a general denial, and alleged that the instrument sued upon shows on its face that plaintiff was not to recover any commission unless the exchange was made; that neither Neal nor Rodenhouse had tendered him an abstract of the latter’s title; and defendant further alleged that he was at plaintiff’s office on the date the exchange was to be made, ready to carry out the executory agreement, but that Rodenhouse failed to appear, and that the failure to consummate the exchange was due to the fault of Rodenhouse.

In presenting the cause here, appellee urges that his exception should be sustained, and plaintiff’s, suit dismissed, and, in event the exceptions should not be sustained, appellee urges that the evidence did not establish that the failure to consummate the exchange was due to the fault of ■ defendant and the judgment should be affirmed; while appellant urges that the instrument signed by the parties shows that plaintiff had complied with his obligations. towards his principal, Miirff; that the evidence established that the failure to consummáte the agreement was due to the fault of Murff, and he should have judgment.

With reference to the exceptions, the record does not show that defendant objected to the exception being referred to the merits, arid, as the court did not pass upon any of the exceptions, in the absence of an answer to the appeal urging that the exceptions should be considered, the exceptions must be held to have been waived. Gordon v. Racing Ass’n, 140 La. 674, 73 So. 768; Ashbey v. Ashbey, 41 La. Ann. 138, 5 So. 546; Siragusa et al. v. Ill. Cent. R. R. Co., 152 La. 746, 94 So. 376.

On the merits, the evidence was conflicting relative to whether the failure to carry out the agreement was due to the fault of Murff or Rodenhouse. It is conceded, however, that, on the day following the date of the agreement, the parties met at plaintiff’s office, and that Rodenhouse proposed to exchange other property with defendant in addition to that agreed to be exchanged, and that, in the discussion of the exchange, the question of defendant’s reserving' a part of the mineral rights on the property agreed to be transferred arose; that, Rodenhouse refusing to allow defendant to reserve any part of the mineral rights, some doubts arose as to whether defendant would proceed under the agreement, as both Neal and defendant state that, after Rodenhouse left, defendant said he would not allow the refusal of Rodenhouse to allow him to reserve a part of the mineral rights to interfere with the agreement, and they shook hands, presumably to confirm the statement. Defendant states that the discussion referred to was the only one had between the parties, while both Rodenhouse and plaintiff state that there were other negotiations relative to defendant’s retaining a part of the mineral rights; and, Rodenhouse refusing to allow defendant to reserve any of the mineral rights in the property agreed to be exchanged, defendant refused to proceed under the agreement, which is supported by the fact that Rodenhouse consulted with attorneys relative to bringing suit sigainst Murff to enforce the agreement.

We find that the preponderance of the evidence shows defendant did refuse to carry out the agreement; and, while it may be that Murff did not regard the refusal as final, and thought that the negotiations would be continued (which is indicated by his testimony that he called at plaintiff’s office on the date the exchange was to be made and offered to sign an act of exchange subject to examination of titles, or, in other words, to sign another agreement of practically the same legal effect as that previously signed, which he concedes he had not made any effort to carry into effect), we are of the opinion that plaintiff and Rodenhouse had the right to accept the refusal as final, and that the refusal was an active breach of the contract (Clesi v. Thatcher, 12 La. App. 55, 125 So. 194), which relieved plaintiff from showing that defendant was placed in default prior to enforcing payment of the stipulated commission.

In support of the contention that the agreement was that plaintiff would not receive any commission unless the exchange was made, appellee refers to the provision in the agreement hereinabove quoted, while appellant urges that the plaintiff, having brought the parties together, and they having signed the agreement to exchange properties, plaintiff had complied with his obligation, and earned the commission, and that the stipulation relative to the commission merely referred to the time the commission would be due and payable.

While it must be conceded that the parties could have agreed that plaintiff should not receive the stipulated commission unless the exchange was consummated (article 2991, Civ. Code; Waterman v. Gibson, 5 La. Ann. 672; Gurley v. City of New Orleans, 41 La. Ann. 75, 5 So. 659; Kock v. Emmerling, 22 How. 69, 16 L. Ed. 292), or that such an agreement might be implied, which would have been the case if the failure to consummate the agreement had been due to the inability of the parties to make good and valid titles to the properties, yet the agreement to exchange the properties, shows that the plaintiff, broker, had complied with his obligation to defendant, his principal, and there was not anything else for him to do, and that the matter of executing the agreement was for the parties Murff and Rodenhouse.

We are therefore of the opinion that the written agreement shows that plaintiff had earned the stipulated commission, and that, in the absence of an express declaration in the agreement that the stipulated commission would not be paid unless the exchange was made, plaintiff was entitled to receive the commission when defendant refused to proceed under the agreement and to consummate the exchange. Barry v. Guiffria, 10 La. App. 123, 120 So. 878.

The judgment appealed from is therefore avoided and reversed, and it is now ordered, adjudged, and decreed that plaintiff, T. S. Neal, have and recover judgment against defendant, C. D. Murff, in the sum of $850, with legal interest from judicial demand, and all costs of suit.


author: DREW, J.

text:
    No. 3900
    Second Circuit
    GLOVER ET AL. v. SOUTHERN TRANSPORTATION CO., INC.
    (February 26, 1931. Opinion and Decree.)
    (April 9, 1931. Rehearing Refused.)
    Robert L. Garrett, of Shreveport, attorney for plaintiffs, appellees.
    Jackson & Smith, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

This suit arose out of a collision between an automobile belonging to plaintiff and a truck of the defendant on the Greenwood Road in the parish of Cad-do, on October 19, 1929. The accident happened about seven p. m. Both vehicles had lights on. The truck was traveling toward Greenwood and the automobile was coming toward Shreveport. The accident occurred approximately in front of the Parish Farm. At. that point there is a bridge or culvert eighteen feet wide and for some distance on each side of the bridge the road is enclosed with banisters. At the time of the collision the truck, going west, had crossed the bridge but the rear 'wheels of the trailer were still on the bridge. The point of the collision was about six to eight feet west of the bridge.

It is apparent from the record that the left front hub cap of the truck came in contact with, the left front hub cap of the automobile. There is also some evidence that the automobile also came in contact with the left rear wheel of the truck. After the accident the automobile skidded or whirled around a distance of about 65 feet, struck a wooden post 4 inches in diameter and knocked it over, struck and broke or tore loose a railing on the side of the road, (the railing being made of street car rails). The automobile was completely demolished. The plaintiffs aré demanding judgment in this suit against the defendant for the value of the automobile. The plaintiff Martha Glover was not in the accident and her husband and co-plaintiff, Bert Glover, was not injured. The allegations of negligence made by the plaintiff are that the truck was travelling at an excessive rate of speed and on the wrong side of the road. The defense is that the accident was caused by the negligence of plaintiff in travelling at an excessive rate of speed and on the wrong side of the road, and in the alternative pleaded contributory negligence for the same reasons.

It is admitted that the truck involved in this suit was owned by the defendant at the time of the alleged accident and that the driver of said truck was employed by the defendant at the time of the collision and was driving the truck as an employee or agent of the defendant in the course of the driver’s employment by defendant. The truck of defendant was a six-wheel semi-trailer truck with a box car body and pneumatic tires and was loaded with eight to ten thousand pounds of freight. Plaintiff’s car was a five-passenger Studebaker sedan in which there were riding at the time six people, three on the front seat and three on the back seat. The evidence is convincing that plaintiff’s car was being driven at the rate of about 15 miles per hour at the time of the accident and the defendant’s truck at the rate of about 22 miles per hour, which was as fast as it could run. Plaintiff and the other occupants of the car all testified to the speed of plaintiff’s car being from 10 to 15 miles per hour and there is no direct, positive evidence to contradict this fact. The only other eyewitness, the truck driver, did not testify to the speed of plaintiff’s car. Plaintiff and all the other occupants of his car testify that at the time of the accident plaintiff was on the extreme right of the road and coming toward Shreveport. The record does not disclose any contradiction of this testimony other than the attempt made to show that under certain circumstances brought about by the claim agent of defendant that plaintiff himself made a different statement. The truck driver contends that he did not know that his truck had hit the plaintiff’s car until he was arrested in Waskom, Texas, and that at the time he did not see the car of plaintiff for the reason that he was watching the right side of the road going toward Waskom. He testified that three days later he visited the scene of the accident and could tell from the burnt rubber marks on the pavement the position of plaintiff’s car at the time of the accident, and marked same on a plat that was used in the lower court and filed in evidence. However, this plat is not in the record and we have not the benefit of it. He does not say which side of the road the plaintiff was on other than by describing plaintiff’s, car wheels as “here and here.” Without the plat his testimony is worthless to us. The same applies to the testimony of the claim agent who visited the place of the accident a day or two afterwards. Therefore, from the testimony before us the location of plaintiff’s car at the time of the accident is shown without contradiction to have been on the extreme right of the road.

Plaintiff and other occupants of the car testify that the defendant’s truck was in the center of the road extending over the left portion far enough to prevent plaintiff from passing. This is only contradicted by the truck driver, who, according to his testimony, did not know an accident had happened. He either knew a great deal more than he was willing to tell or he did not know anything about the accident or the position of the cars at the time.

The speed of the truck was not excessive under the laws of this state. It was being driven, however, at the maximum speed allowed by law (section 8, title 2, Act No. 296 of 1928). The negligence found by us that caused the accident was that the truck was being driven on the wrong side of the road and not on the extreme right, as required by section 11, title 2, Act No. 296 of 1928, and this negligence was the sole proximate cause of the accident and the resultant injury and damage to plaintiff’s car.

It is argued by defendant that the course and distance covered by plaintiff’s car after the accident shows that plaintiff was traveling at an excessive rate of speed. We do not think so. While it' is difficult to account for the antics of a car after a collision sometimes, it is not so in this case. The left front hub cap of the truck struck the left front hub cap of plaintiff’s car, necessarily throwing it around somewhat to the left and causing it to travel towards the left of the road. It is not shown that the brakes were put on by plaintiff, or that he stepped on the gas. We doubt if he knows, himself, what happened just after the accident, due to his excitement. The course the car took is the natural course under the circumstances, and the force with which it struck the mail box post and the iron railing on the roadside does, not of itself show excessive speed as against the positive evidence to the contrary. Regardless of the antics of the car after the accident, we think the preponderance of the evidence shows that plaintiff was not traveling at an excessive rate of speed and was on the right side of the road when defendant’s truck ran into it.

The case presents purely a question of fact, and the trial judge had the opportunity to see and hear the witnesses, and was, therefore, better qualified to pass on the veracity of the witnesses than we are. He undoubtedly believed the witnesses for plaintiff, and we cannot say his judgment is erroneous. To decide otherwise we would have to find that plaintiff and his witnesses were untruthful, which we cannot do in this case.

Plaintiff’s car was totally demolished. It cost, when he bought it in August before the accident in October, $323. The uncontradicted testimony is that the car was actually worth, at the time of the accident, from $400 to $475, and there was a charge of $15 made and paid by plaintiff to have the wreck hauled in. If there was any testimony to contradict the value placed on the car by plaintiff and his witnesses, we would be inclined to limit this award to the purchase price; however, there is none, and the lower court found for plaintiff in the sum of $400 for the damage to the car and $15 cost of removing the wreck, and his judgment is correct.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with costs.


text:
    No. 3897
    Second Circuit
    KER TEXADA v. THE TEXAS & PAC. RY. CO.
    (January 27, 1931. Opinion and Decree.)
    (February 26, 1931. Rehearing Refused.)
    George J. Ginsberg, of Alexandria, attorney for plaintiff, a,ppellee.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellant.
   DREW, J.

Plaintiff sued The Texas & Pacific Railway Company for the sum of $365.05, with interest thereon from judicial demand, alleging that on the 4th day of February, 1929, as owner and seller, he delivered untq the defendant at its cattle loading pen in the city of Alexandria, forty head of cattle, consisting of cows, yearlings, bulls and steers, for shipment and delivery to C. H. Rice & Son, of New Orleans. That the cattle were in good condition and being shipped for immediate disposal and slaughter. That the consideration for transporting same was the regular traffic freight charges, which were paid by the consignee at destination. That the shipment arrived at destination on the 6th day of February, 1929, at which time six of the animals were found to be dead and three werev so badly bruised and crippled that it was necessary that they be condemned. That the entire nine animals were a total loss to him. That the death and injuries were sustained while in transit and on the railway of defendant. That the injuries and death of the said animals were caused simply, solely and entirely, and as a direct and proximate result of the negligence, carelessness, lack of attention, mishandling, and failure to care properly for said shipment while in transit on the part of the agents, employees, or representatives of said defendant. That the value of the nine animals was $265.05, and that amicable demand was made upon defendant for payment pri- or to sixty days immediately preceding the filing of this suit, which demand was refused and that plaintiff is entitled to penalties, in the additional sum of $100. He prays for judgment accordingly.

Defendant answered admitting the shipment, and denying responsibility for the damage. It denies that the cattle were in good condition at the time they were loaded. It admits amicable demand, but denies the right of plaintiff to recover the $100, as penalty. Further answering, defendant alleges that the said cattle for the value of which this suit is instituted were among forty head of mixed cattle received from the plaintiff at Alexandria, Louisiana, for shipment over its line, consigned to C. H. Rice & Son, New Orleans; that forty head were loaded into the car by defendant’s agents and that no one represented plaintiff in charge of said shipment; that the animals were loaded in the car at Alexandria at 9:30 p. m., February 4, 1929, and shipment moved two hours later, arriving at Gouldsboro at 1:50 p. m., February 5, 1929, and when unloaded in the pens forty minutes later, five of the animals were found dead, one died later in the pens, and four other animals were injured. That thirty-four head of said cattle were reloaded and delivered without delay at destination; that there was. no rough handling of the said car containing the animals during its transportation nor was said car or train subjected to any unusual jars, jolts or accident. That before said car reached its destination, the conductor in charge of the train found two head down at Addis station, and four dead upon the arrival of the train at Gouldsboro, opposite New Orleans. That the fatal injury to six of the animals, and the injury to four others not killed were due entirely to the fact that two large cows comprising part of the shipment, attacked and fought the other cattle, drove them into one end of the car and caused the injuries alleged. That said shipment was made under written contract which inter alia contained the following conditions:

“No carrier will be liable for, or on account of any injury or death sustained by said livestock occasioned by any of the following causes: Overloading, crowding one upon another; escaping from cars, pens or vessels; kicking or goring, or otherwise injuring themselves or each other.”

It further alleges that the injuries sustained by the said cattle were due entirely to injury inflicted on themselves or each other during transit and were in no particular the result of any fault, negligence or mishandling on the part of defendant. It prays that the demands of plaintiff be rejected.

The judgment of the lower court was in favor of plaintiff in the sum of $245, with legal interest thereon from judicial demand until paid, being the value of the cattle killed and injured; and rejecting plaintiff’s demand for penalties. From this judgment, the defendant has appealed and plaintiff has not answered the appeal.

Plaintiff drove the forty head of mixed cattle from his home to the stock pens at Alexandria, a distance of seventeen miles, delivering them in the pens at two o’clock in the afternoon of February 4, 1929. At 9:30 that night, defendant, through" its agents, loaded the cattle into the car, the testimony of defendant’s agent who received the cattle in the pen and supervised the loading of them into the car being that the cattle were in good condition. Among the forty head of cattle were some large cows and some small yearlings, being about the general run of mixed cattle. It appears that there were two extra large cows in the bunch. The car was not overloaded and the cattle caused no trouble in being loaded into the car. The large cows were not separated from the smaller cattle, but all loaded in one car together. Plaintiff, nor any of his agents, were present when the cattle were loaded, but upon delivering them to defendant’s agent at the stock pens of defendant at two o’clock in the afternoon, were told or given to understand that defendant would load the cattle. The train which moved this car to New Orleans was made up at 11:30 that night, and the conductor testified that before leaving Alexandria he inspected his train and found several head of the cattle down in the car. That he was delayed about twenty minutes in leaving in order, with the help of the brakeman, to get these cows up and on their feet. That on arriving at Golddust station, fifty-two miles ■from Alexandria, he found four of the animals down, but that he got them up and had them standing on their feet when he left there. The next inspection was at Addis, about eight o’clock the next morning, when he found six of the animals down. That he called on the brakeman again and succeeded in getting the cattle on their feet, with the exception of one that was. so badly trampled that he was nearly dead.

When the train reached Gouldsboro, eight or ten of the animals were down, four or five dead, and others injured. At this point, which is just across the river from New Orleans, the cattle were unloaded and the dead and injured, as alleged by plaintiff, were found.

There is no dispute about the number of cattle that were dead or injured. The cattle, that is the remaining thirty-four head, were loaded into the same car and a bar placed across to separate the weak and injured cattle from the large cattle. They were then moved to New Orlens. and delivered at this destination.

As to the number of cattle that died in transit and the number that were injured, there is no dispute, and we think the value placed on same by the lower court is correct. Therefore, the only question for determination is that of liability of the defendant for the damage.

The oar of cattle was not accompanied by plaintiff or any of his agents, and from the time the cattle were delivered to defendant’s agent in the stock pen at Alexandria on the afternoon of February 4th, at two o’clock, until they were delivered at New Orleans on the afternoon of February 5th, or the morning of February 6th, they were entirely in the charge and control of defendant.

Plaintiff alleges that the direct, proximate cause of the injuries to the cattle was the negligence, carelessness, lack of attention, mishandling and failure properly to care for them while in transit. Defendant contends that this being the only allegation of fault allegéd by plaintiff, the question of improper loading of the cattle cannot be considered by the court. However true that might have been, the evidence is in the record without objection that the cattle were not properly loaded by defendant’s agents at Alexandria, and in fact, the testimony is offered by the defendant.

James Leddy, testifying for defendant, said that at Gouldsboro when the cattle were reloaded, the veterinarian in the employ of defendant, ordered a partition made in the car to partition the weaker cattle off, and further says that:

“This car should have had a partition placed in this car at the point of origin to protect those small cattle from those heavy cows, which in my opinion, are ■ worse than a bull not tied in a car.”

At another place in his testimony, he says:

“No, sir, it was not caused by rough handling, my opinion is that there should have been a partition in the car. The weaker cattle should have been partitioned off from the strong cattle.”

Subsection b of section 4 on bill of lading, reads as follows:

‘‘When bedding or appliances or a character not generally in use in the transportation of live stock are required, they shall be furnished by the shipper at his own expense and he shall separate different kinds of stock when loaded in the, same car by adequate strong partitions, and such stock shall be at the risk of the shipper as to. any damage resulting from the insufficiency or inadequacy of any such bedding, appliance or partition.”

This requirement on the bill of lading confirms the testimony of Leddy that a partition should have been put.in the car to separate the small cattle from the large, heavy cattle. This clause is for the protection of defendant when the shipper loads the cattle and should likewise apply to the defendant when it relieves the shipper -of that duty and undertakes of its own accord to load the cattle. Certainly these cattle were not properly loaded through no fault of plaintiff.

We think the pleadings were broadened by the testimony offered by defendant, and we would be justified in considering this negligence of defendant in deciding the case. However, the negligence of defendant from the time the car of cattle was placed in the train of. seventy-two cars is so apparent that It is unnecessary to consider the manner of loading.

Before the train left Alexandria, the conductor discovered five or six head down; again at Golddust, fifty-two. miles, from Alexandria, he found a number down; and again at Addis, he found more of them down, and one was so nearly dead that he could not get up. He made' no investigation to find out the cause of them being down and made no attempt to remedy the condition. He stated that he did not know anything about cows, intimating that he did not know what to do. Common sense should teach anyone that when the smaller cows were down in the car that the larger cattle would trample them to death, and it was clearly the duty of the conductor in charge of the train, upon discovering this condition, to take some- action to remedy it—if necessary, set the car out and unload it and reload It properly. He could not shut his ' eyes to this situation and pull ahead, leaving the cattle to be trampled to death without being grossly negligent, which negligence his employer is responsible for. He should have had the condition corrected before he left Alexandria. He had an opportunity to correct it at Golddust and again at Addis, when only one cow had been killed. He did nothing and his negligence is responsible for the damages to plaintiff.

Defendant relies on the clause in the bill of lading which reads as follows:

“Unless caused by the negligence of the carrier or its employees, no carrier shall be liable for or on account of any injury or death sustained by said live stock occasioned by any of the following causes: overloading, crowding one upon the other, escaping from cars, pens or vessels; kicking or goring; or otherwise injuring themselves or each other.”

The above clause has been repeatedly held to be binding upon the shipper and we fully agree with the decision so holding. However, in this case we find that none of the injured or dead cows showed any signs of having been gored, and were killed and injured by being trampled to death after being down. The car was not overloaded nor was it crowded, as shown by defendant’s, agent who supervised the loading, and all were in good condition when the car was loaded.

(1) Defendant was negligent in the manner of loading the cattle in the car; and

(2) Defendant’s agent, the conductor, was grossly negligent in not attempting to remedy the condition when he discovered it at Alexandria, Golddust and Addis, and his negligence was the proximate cause of the death and injury -of the cattle, and the resultant damage to plaintiff.

The judgment of the lower court is correct, and it is now ordered, adjudged, and decreed that the judgment of the lower court appealed from be affirmed, with all costs.

McGREGOR, X, dissents.


text:
    No. 3933
    Second Circuit
    GARSON v. COLQUITT
    (February 26, 1931. Opinion and Decree.)
    (April 9, 1931. Rehearing Refused.)
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for plaintiff, appellee.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff, John Garson, liquidator of the firm of Garson Bros., building contractors, brought this action to recover judgment against defendant, W. T. Colquitt, for the sum of $638.37, with legal interest thereon from August 10, 1928, until paid, being the balance alleged to be due Gar-' son Bros., under a contract for remodeling a two-story, brick building owned by defendant, together with the cost of filing a lien against the property, amounting to $2.50, and for recognition of the lien and privilege on the property for the amount claimed.

Plaintiff alleged that the work was done under a cost plus contract; that is, the contractor to furnish all labor and material and to receive 15 per cent on the amount expended for services; that the amount expended was $1,639.90, which, together with 15 per cent thereon, amounted to $1,883.89, of which amount $1,250 had been paid, leaving a balance due of $635.87, which together with the cost of filing the lien, amounted to the sum first hereinabove stated.

Defendant denied that the work was done under a cost plus contract as alleged by plaintiff, and alleged that Garson Bros, had undertaken the work under an agreement or guarantee that the cost would not exceed $1,200. Defendant further alleged that plaintiff had illegally filed a lien against his property; that plaintiff did not super-' vise the work, and that the laborers had loitered on the work, all resulting in damaging defendant; that plaintiff had charged for material which was not used; and that inferior material was used, and the workmanship was bad, for which a reduction should he made. Defendant prayed that plaintiff’s demands be rejected and for judgment against plaintiff in reconvention for an aggregate amount of $858.

On trial judgment was rendered in favor of plaintiff and against defendant for the amount claimed, and rejecting defendant’s reconventional demand from which judgment defendant appeals, urging that the evidence failed to establish plaintiff’s demands, and that defendant should have had judgment on his reconventional demand. The cause was tried before the court, and involved solely questions of fact. With regard to the issue relative to whether or not Garson Bros, undertook the work on a cost plus basis, or under an agreement that the cost of the work would not exceed $1,200. The testimony of the witnesses who claim to know anything of the agreement is irreconcilable, and, the credibility of the witnesses being at issue, it might be sufficient to say that we do not find anything in the record which impresses us that the judgment was erroneous. Bagneris v. Smoot, 159 La. 1049, 106 So. 561.

However, the record established that defendant had contemplated remodeling the building for some time, and that Garson Bros, had submitted a bid on the work originally contemplated for more than $1,-500, that the plans for remodeling the building were changed, and that the work done by Garson Bros, was under the changed plans, and there is not any suggestion that the work done could have been done for less than the work on which the original bid was based; but, on the other hand, the evidence conclusively established that the work done by Garson Bros, was worth the amount charged, or $1,883.89, and it would be unreasonable that the work would have been undertaken by Garson Bros., as claimed by defendant.

There was some evidence introduced in support of the reconventional demand, but, considering the evidence as a whole, we are of the opinion that the evidence established defendant was without cause to complain of the material, workmanship, or cost of the work.

The judgment is affirmed, at. appellant’s cost.


text:
    No. 3964
    Second Circuit
    BROTHERS v. METZGER DAIRIES, INC., ET AL.
    (February 26, 1931. Opinion and Decree.)
    (April 9, 1931. Rehearing Refused.)
    Robert J. O’Neal, of Shreveport, attorney for plaintiff, appellee.
    Cook & Cook and C. D. Egan, of Shreveport, attorneys for defendants, appellants.
   WEBB, J.

Plaintiff, Mrs. Lidie C. Brothers, brought this action against defendants, E. R. Green and Metzger Dairies, Inc,, to recover judgment for damages to an automobile owned by her, which resulted from a collision with a truck driven by E. R. Green, an employee of Metzger Dairies, Inc., owner of the truck.

Qn trial judgment was rendered in favor of plaintiff in the sum of $167.65, with interest from judicial demand, from which judgment defendants appeal; and plaintiff has answered the appeal praying that the judgment be amended and the amount awarded increased to $292.65, as originally demanded.

The collision occurred in the city of Shreveport at the intersection of Samford avenue and Wilkinson street; plaintiff’s car approached the intersection from the east on Wilkinson street, and defendant’s truck approached from the south on Sam-ford avenue. The driver of the automobile intended turning at the intersection and thence proceeding south on Samford avenue, and the driver of the truck intended crossing the intersection and continuing north on Samford avenue; the collision occurred near the center of the intersection, the front of the truck coming in contact with the left side of the automobile at a point near the front of the car.

The evidence conclusively established that the drivers of the respective vehicles noted the presence of the other when the truck was about forty feet,' and the automobile about fifteen feet from the intersection, at which time the driver of the truck said he applied the brakes, but, thinking that the automobile would stop, he released the brakes. It is apparent that the driver of the truck recognized that the automobile had the right of way, and there is not any evidence in the record which indicates that there was any basis for the assumption that the driver of the automobile would stop, and, the evidence establishing that the truck could have been stopped within a distance of ten feet, it is apparent that the collision was due to the fault of the truck driver, and that he and his employer were properly held liable for the damage to the automobile.

Relative to the quantum of damages, the record shows that allowance was made for the estimated cost of repairs, which included replacement of the left front fender and left running board, and repairing the left front door; and plaintiff complains of the refusal of the court to also allow $125 to have the car repainted. The basis of the claim is that, with a new fender and running board, and the left front door repainted, the car would not be presentable. But aside from the proof that the paint on the car was somewhat faded and would not blend with new paint, there is not any proof that the -car would not be presentable, and, in the absence of evidence that the gloss could not be removed from the new paint and made to blend with the old, the. demand for an allowance to have the car repainted- was properly rejected.

The judgment is affirmed, at appellant’s cost..


text:
    No. 3978
    Second Circuit
    NUGENT ET AL. v. URANIA LBR. CO., LTD.
    (January 27, 1931. Opinion and Decree.)
    (February 26, 1931. Rehearing Refused.)

      P. S. Gallaran, Jr., of Jena, attorney for plaintiffs, appellees.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   DREW, J.

Plaintiffs, the heirs of J. W. Robertson, and one J. E. Nugent, who acquired half interest with said heirs of Robertson by deed, brought a petitory action against the Urania' Lumber Company, Limited, claiming to be the owners of lots Nos. 4 and 5 of section 28, township 11 north, range 2 east, containing 44.06 acres, more or less, setting up chain of title from the United States down to J. W. Robertson, from whom they claim to have inherited, alleging that the Urania Lumber Company, Limited, has recently and is now trespassing and unlawfully entering the above-described land without any color of title to any part of said land and is now cutting and removing a quantity of timber growing thereon.

They further allege that, unless the said defendant is enjoined and restrained, it will continue to cut and remove the timber, which originally belongs to your petitioners; that irreparable injury, loss, and damage will be sustained by them, and that an injunction should issue, enjoining and restraining the said defendant from cutting and removing the timber standing, growing, and lying on the land above described.

They further allege that defendant has already cut and removed from the said land 75,000 feet of .timber which belongs to your petitioners. They pray for a rule to issue and for temporary injunction, and, on trial, for the said ■ temporary injunction to be perpetuated, and that they be declared the owners of the above-described land.

Defendant answers denying in main the allegations of plaintiffs’ petition, alleging that it acquired the said described property on the 23d day of August, 1907, by purchase from F. M. Mills; that it purchased said property in good faith believing at the time that the said F. M. Mills was the true and lawful owner thereof, and that immediately thereafter it took actual, physical, corporeal possession of said property and has continued in actual, corporeal, and civil possession of said property since that date; that, at the time of the said purchase, its vendor ■ was in possession of said p'roperty and had been in actual, physical, corporeal, and civil possession thereof for a period of more than twenty years; and specially pleaded the prescription of ten and thirty years.

In the alternative, defendant alleges that J. W. Robertson, plaintiffs’ author in title, never owned the property in controversy, and that plaintiffs never acquired any title thereto by inheritance from J. W. Robertson for the reasons that said property was forfeited to the state of Louisiana for taxes on same for the year 1860, on the 1st day of October, 1861; it further alleges that the succession sale from Edmond Malus to J. W. Robertson, being one of the links in plaintiffs’ chain of title, was absolutely null and void; it further alleged that J. W. Robertson removed from Catahoula parish sometime between 1870 and 1880, and that he nor any of his heirs have ever paid taxes on said property since that date, nor have they exercised any rights of ownership thereof until the filing of this suit.

On these issues the case was tried in the lower court, and the judge of the lower court in a well-written opinion held that the deed to defendant by M. F. Mills, covering the property in dispute, was a deed translative of property and with no apparent defects on its face and was therefore a just title, as defined by articles 3483 and 3484 of the Civil Code, and that defendant had had actual corporeal possession of the land in dispute for more than ten years prior to the filing of this suit, but held that defendant was not a possessor in legal good faith and therefore could not invoke the prescription of ten years; and awarded judgment to plaintiffs, as prayed for. From this judgment, the defendant has appealed to this court.

Plaintiffs set up title in themselves from the United States government down to their ancestor, J. W. Robertson, from whom they claim to have inherited and were placed in possession as his heirs. Defendant denies plaintiffs’ title and also pleads the prescription of ten and thirty years. There is no proof to sustain the thirty-year prescription, as defendant only claims to have acquired the property in 1907, and said claim is not urged in this court. The plea of prescription of ten years is serious.

In a petitory action met by the defense of the prescription of ten years, the main legal discussion involves the question of the alleged just title, the good faith, and length of time of the defendant’s possession of the property in controversy. The legality or validity of plaintiffs’ title is a question of secondary consideration which comes up only in case defendant’s plea of prescription should not be 'found good.

On August 23, 1907, F. M. Mills executed to the Urania Lumber Company, Limited, a deed by private act, duly approved before a notary public in and for La Salle parish, L*a., to 240 acres of land, including the west % of northwest % of section 28, township 11 north, range 2 east, which includes lots 4 and 5, the land involved in this suit, said deed also including 240 acres of timber that was sold to defendant. In the act of transfer, F. M. Mills warranted the title to all of the said property, except the west % of northwest % of section 28, which he expressly excluded from the warranty. However, on the same day and date and at the same time he executed the following affidavit and attached to the deed:

“State of Louisiana, Parish of La Salle:
“Personally came and appeared M. F. Mills, who deposes' and swears that he has been in peaceable possession of the ’W'Yz of the NW% of Section 28, Township il North, Range.. 2 East, La. Mer., for about 23 years and has paid taxes on the same; that he purchased said 80 acres, together with other land from C. P. Kees and W. H. Holloman, administrator, and known as the John Robertson tract; that a portion of said eighty acres has been in cultivation years, all to the best of his knowledge and belief.
“Sworn to and subscribed to before me on this the 23d day of August, 1907..
“Henry Hardtner, Notary Public.”

It is to be noticed in the affidavit that Mills claims, to have purchased this property from C. P. Kees, W. H. Holloman, administrator, and the record shows that he did purchase some property from Kees at administrator’s sale in the year 1884, and that Kees had acquired the property he sold Mills at tax sale of J. W. Robertson by sheriff in 1882, in which the property is described as lots 2, 3, 6, and 7, section 28, range 2, and as being the same property purchased by J. W. Robertson at succession sale of E. Malus, which is one of the links alleged in plaintiffs’ title. In the deed to Mills from the succession o'* Kees in 1884, the property is. described as lots 2, 3, 6, and 7, in township 11, range 2 east, and 160 acres, known as the “Lebanon” or Castor Springs, property described as being in southwest % of section 28, township 11, range 2 east. J. W. Robertson acquired from the succession of E. Malus,- not the property described above, but lots 4 and 5, the property in dispute here. He acquired lots 2, 3, 6, and 7 from the succession of M. T. Ducross. Kees, on April 1, 1882, acquired at tax sale, as property of J. W. Robertson, lots 2, 3, 6, and 7, for the payment of the sum of $10, covering taxes, costs, etc., and on the same day of the same year he again acquired at tax sale as the property of J. W. Robertson the identical same property by description, with the exception that the deed stated that it was the property purchased by J. W. Robertson at succession sale of E. Malus, and the price paid to cover taxes, costs, etc., was only $9.

The record discloses that after this property was acquired by Kees in 1882, at tax sale of J. W. Robertson’s property, J. W. Robertson was never assessed with any property in either Catahoula or La Salle parish, which was cut out of Catahoula, and that he nor his heirs have paid any taxes on lots 4 and 5 since that date.

It is clear from the above facts which are disclosed by the record that the sheriff made a mistake in preparing the deeds, and that the intention was to sell two separate tracts of. land owned by J. W. Robertson, which we cannot reason any other way for there were, two separate sales- on the same day for different amounts to the same purchaser, and one deed specially refers to the property as the property- purchased by J. W. Robertson at the succession sale of E. Malus, which was the property involved in this suit.

However, it is. not our prerogative to correct the sheriff’s deed in this suit. We merely refer to this state of facts- by way of showing why defendant’s author in title, Mills, had a reason for believing that he was the .owner of lots 4 and 5.

The record shows that Mills cut all the merchantable cypress timber off this land in 1886; that he thought it was his- land;' and that no one ever claimed it before he sold it to defendant.

In 1907, 1908, 1909, and 1910, defendant cut all the merchantable pine and oak timber on the land in question, the gum and. beech at that time not being considered merchantable timber. At the same time it cut all the merchantable pine and oak on the entire 240 acres acquired from Mills; that all the merchantable hickory timber was cut off the entire 240 acres in 1913 by the Pioneer Pole <s Shaft Company, who purchased the hickory timber from defendant. Defendant leased the land for drilling for oil and gas in 1919, and again in 1923, and a well was actually drilled on the property under one of the said leases and before 1924.

Defendant placed lots 4 and 5 with other land under contract with the conservation commission of Louisiana in 1913. Since that time it has protected the land from fire, trespass, ravages of insects, and has expended an average of 4 cents per acre in protecting the land each year and has paid the state of Louisiana 2 cents an acre for its part of the work under the conservation contract, thereby utilizing it for the only purpose it can be used—that of growing timber. Defendant has also paid taxes on this land since 1907.

The testimony shows the nature of the land to be such that it would be impossible to cultivate it. It is cut up in sloughs, old beds of the river, and brakes, and goes under water from five to twenty feet four or five times a year. Therefore, the use that could be made of this land is limited, and defendant has exercised the only possession of this property that, it is possible to exercise, other than to fence it, which is unnecessary under the circumstances.

The lower court held that defendant had actual corporeal possession of the land for more than ten years and sufficient possession on which to base the prescription of ten years. We think his finding on this issue is correct. Article 3487, Civil Code; Morris v. Monroe Sand & Gravel Co., 166 La. 656 117 So. 763; Barrow v. Wilson, 38 La. Ann. 209; Boagni v. Pacific Imp. Co., 111 La. 1063, 36 So. 129; Industrial Lumber Co. v. Farque, 162 La. 793, 111 So. 166; and Michel v. Stream, 48 La. Ann. 349, 19 So. 215.

Having found that defendant had actual corporeal possession of the land in dispute for more than ten years, it now becomes necessary to decide if it had a just title under which it possessed. “Just Title” is treated of in Civ. Code, article 3483, as follows:

“To be able to acquire by the species of prescription mentioned in this paragraph, a legal and transferable title of ownership in the possessor is necessary; this is what is called in law a just title.”

And article 3484 of the Civil Code, de'fines “Just Title” as follows:

“By the term just title, in case of prescription, we do not understand that which the possessor may have derived from the true owner, for then no true prescription would be necessary, but a title which the possessor may have received from any person whom he honestly believed .to be the' real owner, provided the title were such as to transfer the ownership of the property.”

Article 3485 of the Civil Code defines a transfer sufficient to transfer title, as follows:

“And in this case, by the phrase transfer of the ownership of the property, we understand not such a title, as shall have really transferred the ownership of the property, but a titlé which by its nature, would have been sufficient to transfer the ownership of the property, provided it had ■ been derived from the real owners, such as a sale, exchange, legacy or donation.”

Article 3486, gives the necessary requisites :

“1. That the title be valid in point of form; for if the possession commenced by a title void in that respect, it can not serve as a foundation for prescription.
“2. That the title be certain; thus, everj; possessor, who can not fix exactly the origin of his possession, can not prescribe.
“3. That the title be proved; for as it consists in a fact, it is not presumed, aijd every man who founds his title on a written instrument must produce it, or prove the contents, if it be lost.”

The deed from Mills to defendant covering the land in dispute here clearly fulfills all the requirements exacted by the articles of the Code cited above, and is a legal and transferable title of ownership to defendant of the lands here involved.

It is contended that, because the deed from Mills to defendant expressly excepted from warranty the land here involved, it was not such a legal and transferable title of ownership to the defendant that would sustain a plea of prescription of ten years. This question has been' forever settled by the Supreme Court of this state in a number of cases, and in the case of Land Development Co. of La. v. Schulz, 169 La. 1, 124 So. 125, 128, the court said:

“The fact that the sale by Watts to Mrs. Schulz was made without warranty of title does not affect her plea of prescription of 10 years. A stipulation in an act of sale that the seller does not warrant the title might be regarded as an indication that the seller lacked faith in his title, but it is. not an indication that the buyer lacked faith in the title”—citing Templet v. Baker, 12 La. Ann. 658; Brewster v. Hewes, 113 La. 45, 36 So. 883; Read v. Hewitt, 120 La. 288, 45 So. 143; Kinchen v. Redmond, 156 La. 418, 100 So. 607; and Clayton v. Rickerson, 160 La. 771, 107 So. 569.

The case of Eastman Syndicate v. Beiller, 3 Rob. 220, cited by plaintiffs, is not in conflict with this doctrine. Eastman v. Beiller merely lays down the general principle, which is favorable to defendant in this case, viz., a title, defective on its face, will not be sufficient on which to base a plea of prescription of ten years; alter, when the defects proceed from circumstances or evidence dehors the instrument.

It cannot be doubted that, if Mills had good title to the land he transferred to defendant, defendant would have had good title under the deed he received from Mills. There were no defects apparent upon the face of the deed, it was valid in form and prima facie translative of property. Pattison v. Maloney, 38 La. Ann. 885; Heirs of Ford v. Mills & Phillips, 46 La. Ann. 339, 14 So. 845; Guarantee Trust Co. v. Drew Inv. Co., 107 La. 252, 31 So. 736, 737; Blair v. Dwyer, 110 La. 337, 34 So. 464; Texas & Pacific Ry. v. Smith, 159 U. S. 66, 15 S. Ct. 994, 40 L. Ed. 77.

Plaintiffs’ other contention is that defendant was not in good faith in taking deed to this property, basing their contention on the fact that the land in question was specially excepted from the warranty, and the further fact of defendant’s requiring the affidavit by Mills as to his possession and ownership, which affidavit is attached to the deed. The judge of the lower court upheld the contention of plaintiffs and held that the defendant was in bad faith, or at least put on its guard. We cannot agree with the lower court in this finding.

"Good faith is always presumed in matters of prescription; and he who alleges bad faith in the posessor, must prove it.” Civ. Code, art. 3481.
“The possessor in bad faith is he who possesses as master, but who assumes, this quality, when he well knows that he has no title to the thing, or that his title is vicious and defective." Civ. Code, art. 3452.

Bad faith is not imputed to a purchaser merely because an examination of the records would have disclosed a defect in the vendor’s title, and it is not necessary that a purchaser make an examination of the title before he purchases. Article 3478 of the Civil Code says:

"He who acquires an immovable in good faith and by a just title, prescribes for it in ten years."

Article 3480 of the Civil Code refers to article 503 to define "good faith," and article 503 defines a bona fide possessor as one "who possesses as owner by virtue of an act sufficient in terms to transfer property, the defects of which he was ignorant of.”

Article 3451 again sets out who is a possessor in good faith.

The only evidence in the record on which we are asked' to hold that defendant was in bad faith is that the defendant required an affidavit from its vendor as to -his possession and from whom he had acquired the land, and we see nothing unusual in taking such an affidavit where the property was not warranted.

The president of the defendant company, who actually handled the transfer from Mills to defendant, testified without contradiction that he believed that his vendor owned this property, and that he had no reason to doubt it; that he had lived in close proxinjity to the land for many years and never heard of any other claimant to it until a short time before the filing of this suit, when he heard that Mr. Nugent was trying to work up a case against defendant. He further testified that during the time this act was passed, and before that, his company seldom, if ever, had the titles, examined before buying the land, and that it was not anything unusual for it to take affidavits on property it purchased; that there are now on record to defendant possibly 150 deeds, with affidavits attached. He testified that he had known the vendor, Mills, for many years, and that, with him, Mills’ word was his bond; that he knew that Mills had claimed to own this particular property for many years and did not in any way doubt that Mills was the owner. Vendor’s son testified that he always thought his father owned this particular property, and that his father considered it his property for many years before he sold it to defendant.

The record shows that Mills did not discuss with defendant the reason he would not warrant the property, nor did he notify defendant of any defects in the title, if he knew of them.

If the defendant did have any doubts about the title to the property, the affidavit made at the time the act was passed by the vendor, a man in whom he had the utmost confidence, would no doubt have removed any fears along that line.

Plaintiffs or their authors in title had not made any claim to this property for more than forty-six years, and had not paid taxes on it in that length of time, and we feel sure from the contracts in the record between the heirs of J. W. Robertson and one of the plaintiffs, Nu-gent, whereby Nugent is given a one-half interest in the property to recover it, that they would not now be claiming it if Mr. Nugent had not discovered what he considered an apparent defect in defendant's title and brought it to the knowledge of plaintiffs.

Mills had every reason to believe that he was the owner of the property, as defendant also had, and we do not think the taking of the affidavit, together with the vendor’s excepting this tract of land from warranty, would justify us in holding that defendant was a possessor . in bad faith. There is nothing in the affidavit to put defendant on its guard; to the contrary, it is calculated to remove any doubt he might have had.

The good faith necessary to enable a claimant to plead prescription is simply that he shall not acquire the property mala fide. Giddens v. Mobley, 37 La. Ann. 417.

In Bennett v. Calmes, 116 La. 598, 40 So. 911, the court said:

“The original vendor was in possession and sold the property by title valid in form. This was a sufficient starting-point for the prescription afterward acquired.’’

Defendant had just reasons to believe that it was the owner of the property purchased from Mills and it possessed the land, lots 4 and 5, as owner by exercising the only acts of possession possible on that character of land for a period of more than ten years prior to the filing of this suit, under an act or deed translative of property, and the plea of prescription of ten years acquirendi causa should have beén sustained.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court b.e reversed; that the injunction herein issued be dissolved; and that the plea of prescription of ten years filed by defendant be sustained and the demands of plaintiffs rejected at their cost.


author: WESTERFIELD, J.

text:
    No. 13,510
    Orleans
    HIPPLER v. ARGUS ET AL.
    (March 2, 1931. Opinion and Decree.)
    (March 23, 1931. Rehearing Refused.)
    Arthur Landry, of New Orleans, attorney for plaintiff, appellee.

      Weiss, Yarrut & Stich, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

This is a suit on a promissory note in the sum of $321 with interest and attorney’s fees.

There was judgment below in favor of plaintiff as prayed for and defendants have appealed.

The defendants, Mrs. John J. Argus and Frank Argus, mother and son, signed a promissory note in favor of the plaintiff in the sum of $321. It is admitted that they received only $171 of this amount in cash, the balance, $150, is said to have been the amount of a fee which it was agreed would be paid to plaintiff for obtaining a homestead loan on certain property belonging to the defendant, Mrs. Argus. The defendants deny having made such an agreement and contend that the plaintiff was guilty of a violation of Act No. 7 of the extra session of 1928, known as the “Small Loan Act,” in that the charge for the loan of $171 exceeded the sum of 3% per cent per'month, the maximum interest charge permitted in that act and that, therefore, plaintiff may not collect either the interest or principal, the penalty provided by the act referred to, for the exaction of , usurious interest.

The record indicates that the plaintiff carried an advertisement in a local newspaper announcing that he made or negotiated first and second mortgage loans on real estate. Mrs. Argus saw the advertisement and called upon the plaintiff with a view of obtaining a second mortgage upon a piece of property owned by her upon which there was an existing first mortgage in the sum of approximately $4,000. She required the sum of $171 for the purpose of paying accumulated interest. After discussing the matter with the plaintiff Mrs. Argus, was persuaded to apply for a homestead loan the proceeds of which to be used to retire the existing mortgage. The loan was subsequently obtained through the efforts of plaintiff- and $171 advanced Mrs. Argus for the payment of the interest. In explanation of her signature to the note for $321 Mrs. Argus testified that she signed the note in blank believing that it would be filled out for the sum of $171 for which she expected to pay 8 per cent interest, and only learned of the fact that the note had been executed for the larger sum when she later called upon defendant for the purpose of paying the $171.

It is argued that the claim for $150 based upon services for securing the homestead loan was an afterthought, and that the process of applying for a loan of that character is exceedingly simple and did not require the plaintiff’s services and we believe it must be conceded that the sum demanded is exorbitant in view of the services rendered. We are also of opinion that plaintiff’s services were unnecessary since anyone might have applied for the loan with equal prospect of success, the determining factor being the value of the property and its appraisement by experts representing the homestead. Be that as it may, however, the question before us is not whether the services of plaintiff were worth $150 but whether Mrs. Argus agreed to pay him that amount.

We have given the case unusual consideration hoping to discover some proper means of relieving the defendant of tlie burden of this exorbitant charge but without success. If Mrs. Argus and her son are correct in their statement to the effeet that she signed the note in blank because of her confidence in plaintiff she was guilty of extraordinary carelessness because she testified that she had never seen him before and could have no basis for her confidence, and we are powerless to relieve her from the effect of her carelessness.

“* * * jf there is one thing more than another public policy requires, it is that men of full age, and competent understanding, shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily shall be held sacred, and shall be enforced by Courts of Justice.”
Sir George Jessel, Master of the Rolls, in Printing and Numerical Co. v. Simpson, 19 Equity Cases (English) 462.

In the case of Englemann v. Auderer, 10 La. App. 136, 121 So. 194, 195, this court said:

<.* * * The parties were capable of consenting, did consent and the object of the-contract being lawful, it is a perfectly good private law between the parties, and, however unwise, or however foolish a man may be to enter into such a contract, the courts do not sit to relieve men of the results of their folly, but sit to enforce private as well as public laws.”

The trial court with its superior advantage for weighing the testimony upon the question of fact as to whether there had been an agreement to pay plaintiff the $150 decided that issue in the affirmative. Its opinion in this respect is the determining factor with us and fatal to plaintiff’s cause. Under the circumstances Act No. 7 of 1928 has no application.

For the reasons assigned the judgment appealed from is affirmed.