author: CLAIBORNE, J. WESTERFIELD, J.

text:
    No. 9758.
    Orleans Appeal.
    EDWIN T. SHALLY, Tutor of Jas. Cantrelle, v. N O. PUBLIC SERVICE AND SEWERAGE AND WATER BOARD, Appellants.
    (March 16, 1925, Opinion and Decree.)
    (March 16, 1925, Concurring Opinion.)
    (March 16, 1925, Judge Bell Dissents.)
    (April 13, 1925, Rehearing Refused [Both Applications]).
    (April 25, 1925, Judge Bell Dissents.)
    (May 25, 1925, Decree Supreme Court Writ of Certiorari and Review Granted and Denied.)
    (October 7, 1925, Decree Supreme Court. Judgment Court Appeal Affirmed. 105 Sou., Adv. Rep. No. 13, p. 606.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Carriers of Pas sengers and Goods — Par. 25, 38, 53.
    The carrier is bound to exercise the strictest diligence in receiving a passenger, in conveying him to his destination, and in setting him down safely, that the means of conveyance employed and the circumstances of the case will permit.
    2. Louisiana Digest — Carriers ' of Passengers and Goods — Par. 47, 51.
    Negligence is the failure to use such care and precaution as were necessary to avoid the danger which could and should have been anticipated by reason of which the plaintiff suffered his injury.
    3. Louisiana Digest — Carriers of Passengers and Goods — Par. 37, 53.
    Placing cement drainage pipes four feet high and eight feet long at a distance of four or seven inches from the body of á street car along a line of 250 feet is suggestive of danger to passengers standing upon the steps of the car preparatory to alighting and therefore negligent.
    4. Louisiana Digest — Carriers of Passengers and Goods — Par. 38, 47, 53, 61.
    It is not negligence for the passenger of a street car, in accordance with recognized custom, to rise from his seat and walk to the platform and thence to take a stand upon the steps of the car preparatory to alighting therefrom.
    5. Louisiana Digest — Damages—Par. 30.
    If in so doing the passenger is injured by some object placed in close proximity to the car by some one to the knowledge of the Railroad Company, both are' liable in damages to the passenger.
    6. Louisiana Digest — Municipalities—Par. 258, 265; Railroads — Par. 51.
    In such a case the knowledge by the plaintiff of the presence of those pipes will not defeat his right to damages unless it is established that he was aware that the pipes were in dangerous proximity to the cars.
    7. Louisiana Digest — Negligence—Par. 29.
    A boy sixteen years of age may be guilty of contributory .negligence; but he is not to be held to the same degree of care and prudence as an adult.
    8. Louisiana Digest — Damages—Par. 105.
    $25,000 damages allowed for the loss of both legs above the knee.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Civil District Court, Hon. Sam A. LeBlanc, Judge.
    This is a damage suit for personal injuries.
    Judgment for plaintiff. Defendant appealed.
    Judgment amended and affirmed.
    Lazarus, Michel & Lazarus, H. S. Weil, attorneys for plaintiff and appellee.
    Benj. W. Kernan, W. L. Gleason, attorneys for defendant and appellant.
   CLAIBORNE, J.

The gravity of the injury suffered by the plaintiff and the very large amount claimed in the petition a.nd allowed in the judgment and the eminence of counsel engaged in the prosecution and defense give this case more than ordinary importance and demand more than ordinary consideration.

The site of the accident was on St. Claude Avenue between Clouet Street, in the direction of uptown, and Louisa Street, in the direction of downtown. The block is 529 feet long from Clouet to Louisa. The Avenue is 127 8 wide, with a neutral ground in the centre 61' 6" wide, with an uptown roadway on the lake side of it and a downtown roadway on the river side of it, each 20' wide 21' 10" from the neutral ground curbing on the lake side and upon the neutral ground are the tracks of the Louisiana Southern Railway; 8' 4" from those tracks are the upbound tracks of the New Orleans Public Service; 9' 4" from those tracks are the downtown tracks of the same Public Service; and 7' 10%'' from the river side rail of those tracks is the river side curb of the neutral ground.

At the time pf the accident the Sewerage and Water Board had a locomotive Crane on the lake side roadway of St. Claude Avenue running over a temporary track laid there which occupied about twenty feet of the roadway; they were excavating a trench on the neutral ground the centre of which was 44 feet from the lake side property line of St. Claude Avenue, and six feet from the edge of the neutral ground curbing; the trench was eight feet wide and nine feet deep, and the material excavated from the trench was dumped between the track and the lake side sidewalk; the street and part of the sidewalk were blocked to general traffic.

' The pipes to be laid into the trench had been deposited by the Sewerage and Water Board upon the 7' 10%" vacant space on the river side of the neutral ground between the downtown track of the Public Service cars and the river side curb of the neutral ground. These pipes were of concrete, oval in shape, measuring outside, 44 inches high, about two feet three inches above the platform of the car, 48 inches wide and 8 feet 4 inches long. They were laid at a slight angle from the track and across the curbing; they lay at a distance varying'from four and a half inches to seven inches from the body of the car and extended about three feet beyond the curbing. The first pipe lay 130 feet from Clouet Street, and the last pipe 150 feet from Louisa Street. The pipes themselves extended over a distance of about 250 feet along the track, and were as near to each other as the bell ends would permit. Each pipe weighed from 5000 to 5700 pounds. In the language of plaintiffs’ attorney they were “huge immense affairs”. It took six- men to roll one, and a derrick to lift it. The pipes had been placed temporarily in that place by the Sewerage and Water Board preparatory to their use in the trench, as the only available vacant space. As stated by the Engineer of the Board in charge of the construction of the Canal, as the most convenient and least dangerous place and most accessible.

The plaintiff through his tutor alleged that on March 30, 1923, he was sixteen years, four and one-half months of age; that on said date at about four-fifteen o’clock in the afternoon at some point uptown he boarded one of the cars of the New Orleans Public Service Co. as a passenger intending to return to his home, 1836 Louisa Street, and took a seat in said car; that the route of said car was down St. Claude Avenue to the intersection of Louisa Street; that as said car approached Louisa Street the plaintiff, intending to leave the car at the corner of St. Claude and Louisa Street, made his exit from the car through the front door; that the car was of an old type not equipped with vestibule doors which may be easily opened and closed by the motorman or conductor; that the car was equipped with vestibule doors of such a type that it required an effort to open or close them, and as a consequence they were often left open when they should have been closed; that when the plaintiff approached the front platform with the intention of leaving the car at the next corner, which was St. Claude and Louisa, Streets, lie found the front vestibule door in the right hand open; that he construed this as' an invitation to leave the car by the front right hand door, and preparing to disembark from said car at the next corner, the plaintiff stepped from the platform to the step of the car; that at that time the car was moving at a moderate speed either because it had stopped at the previous 'corner of Clouet, or because it was preparing to stop at the next corner of Louisa Street; that when plaintiff stepped upon the platform and from there to the step of the car, he was not warned by the motorman who saw ■ him or should Have seen him, of any danger of getting upon the step; that in stepping from the platform to the ‘ step he was doing only what other passengers have done from time immemorial, to the knowledge of the Public Service Company and its employees, with the acquiescence of said Company; that when plaintiff stepped on the step he was holding onto the handle bar put there for that purpose and would have been able to stand there in perfect safety at the moderate speed at which said car was moving except for the following occurrence; .that when he stepped on the step, he was violently struck by the large concrete pipes placed alongside of the track, and the blow coming upon him suddenly and unexpectedly caused him to loosen his hold and lose his balance, and before he could regain his balance he was struck by other pipes and knocked from the step of said car under the car; that the rear wheel of said car passed over both of his legs, crushing them so. that when he was taken to the Charity Hospital it was found necessary to amputate both of his legs midway of the thigh; that said accident was due to the gross negligence of both defendants in the following particulars:

1st. It was negligence of the Sewerage and Water Board to have placed said pipes in such close proximity to the tracks to the Public Service so as to allow a clearance of only a few inches between the pipes and the cars; that the said Board knew or should have known that passengers on said cars might at times be upon the steps of said cars under the same circumstances as plaintiff or under other circumstances such as the crowding of the cars which often makes it necessary for several passengers to ride on the steps; that said pipes should have been laid in some other way and in some other place so as not to endanger the lives and limbs of passengers .on the cars; that except for the presence of said pipes in such close proximity to the cars plaintiff -would have been carried safely to his destination; that said pipes were laid by the Sewerage and Water Board at the place above mentioned with the full knowledge of the Public Service Company and without protest; that it was the duty of said Company to have caused said pipes to be placed in such a position as would not have endangered the lives- or limbs of passengers on said cars; 2nd, that the Public Service owed a duty to the plaintiff to warn him of said danger and to use every possible care to avoid the accident which occurred; 3rd, that the Public Service Company was guilty of gross negligence in allowing the vestibule door to remain open while the car was in motion, so that passengers could go upon the step of the car preparatory to leaving under the above circumstances, and in not warning the plaintiff of the danger of stepping upon the step; 4th, that the Public Service Co. was grossly negligent ini operating a car of the obsolete type Of the one upon which plaintiff was a passenger, and in not having said car equipped with the improved device for the opening and closing of the vestibule door which caused the door. to have been open when it should have been closed; 5th, that said Public Service was grossly negligent in not having its cars equipped with brakes in such condition that the car could be stopped instantly when running at moderate speed; 6th, that either because the motorman was incompetent or negligent, or because the brakes were defective he did not stop the car when he saw or should have seen the plaintiff struck, and as a consequence the plaintiff was run over; that at the time when the plaintiff stepped from the platform to the step he was not aware of the presence of said pipes or of the dangerous proximity of the pipes to the car.

For pain, mental anguish, inability to earn a livelihood, or enjoy the pleasures of life, plaintiff claims $50,000 damages.

For answer, the Public Service Company admitted that it was running the cars on-St. Claude Street; that the Sewerage Board had placed the pipes on the neutral ground as alleged, but denied all the other allegations of the petition.

It specially averred that the clearance between the pipes and the body of the cars running on the adjacent track was sufficient for the safety of passengers riding on the cars and exercising care so as to refrain from protruding any portion of their body from the car. It alleged that the plaintiff was aware of the conditions existing on St. Claude Street and of the location of the pipes. Lastly, it alleged that the injuries suffered by plaintiff were caused by his own negligent conduct in getting upon the step in the manner he did and in causing his body to protrude beyond the limits of the car.

The Sewerage and- Water Board denied the allegations of the petition and charged the plaintiff with contributory negligence because plaintiff lived in the neighborhood a long time and was fully aware of the conditions prevailing; because the pipes were so placed as to leave one hundred and fifty feet from the usual stopping place of the cars; because plaintiff extended his body beyond the line of the steps at a distance so far from the stopping placé.

There was a verdict and judgment in favor of plaintiff and against both defendants for $37,000.00.

A new trial was refused and both defendants have appealed.

The plaintiff charges the defendants with negligence in several particulars.

The duty of the carrier towards its passengers is thus defined in our jurisprudence.

In 1855 in Black vs. Carrollton R. R., 10 La. Ann. 38, the court said:

“It is, moreover, an implied condition of their contract with each passenger that the latter shall not be put in jeopardy of life, or limb, by any fault, even the slightest, of the servants of.the Company.”

While our Code Art. 3556, S. 13, defines the “very slight” or slightest fault, as one “which is excusable, and from which no responsibility is incurred”, yet the jurisprudence makes an exception against the car- . rier and holds him liable even for' the “slightest” fault.

In the case of Le Blanc vs. Sweet, 107 La. 355, 31 South. 766, the court said on page 368:

“Reduced to the simplest form, the rule may be stated to be that the carrier is bound to exercise the strictest diligence, in receiving a passenger, in conveying him to his destination, and in setting him down safely, that the means of conveyance employed and the circumstances of the case will permit”, quoting numerous authorities.

This case was affirmed in Hopkins vs. N. O. Ry., 150 La. 61 (72), 90 South. 512; see 10 C. J. 854, S. 1294.

In the case of Clerc vs. R. R., 107 La. 370, 31 South. 886, the court affirmed Black vs. Carrollton Rd., 10 La. Ann. 38, and said on p. 375:

“We think it is very generally recognized that for the -safety of their passengers, common carriers are required to exercise the highest degree of care reasonably to be expected from human vigilance and foresight, in view of the mode and character of the conveyance adopted and consistent with the practical prosecution of their business.”

In Hamilton vs. Ry., 147 La. 616 (622), 85 South. 611, the court said:

“Defendant’s obligations, as a carrier, required that it shall carry its passengers safely, unless prevented by some act of God or vis major of man, and shall provide them with a safe place of exit”. Quoting numerous authorities.

In Hopkins vs. N. O. Ry., 150 La. 72, 90 South. 512, the court adopted the language in Patton vs. Pickles, 50 La. Ann. 864, 24 South. 290, referring to the relations between a common carrier and its passengers, quoting:

“The contract between the parties is one which from time immemorial has imposed upon the obligor exceptionally severe obligations. Safe carriage is not merely an incident of the contract, but it is its very direct object.”

Negligence, under the circumstances of this case, was the failure to use such care and precautions as were necessary to avoid the danger which could and should have been anticipated by reason of which the plaintiff suffered his injury. Callier vs. N. O. Ry and Lt. Co., No. 8126 Ct. App. 21; A. and E. Enc. Law, p. 458; 95 U. S. 439-441.

In Hanson vs. Mansfield Ry. & Transportation Co., 38 La. Ann. 117, the court said:

“Negligence, in its common acceptation, is held to be the doing of something that a reasonable and prudent person would ordinarily not have done under the circumstances of the situation, or the omission to do something which a person of like character would have done under the- circumstances of the case.”

This opinion was adopted in R. R. vs. Lumber Co., 49 La. Ann. 1184, 22 South. 675, on page 1197, the court said:

“The Supreme Court of the United States in R. R. vs. U. S., 95 U. S. 441, gave the terms substantially the same definition, adding ‘that the duty was dictated and measured by the exigencies of the situation.’ ”

In the case under consideration danger to passengers alighting from the cars or merely standing upon the steps of the car at any point ahead of the pipes or along the pipes should have suggested itself forcibly to any persons of ordinary prudence. The distance between the car itself and the .pipes was not at any point greater than seven inches, and evidently insufficient as a clearance for human limbs or body.

The evidence is that the plaintiff was seated about the middle of the car; when the car reached the corner of Clouet and St. Claude Avenue, it slowed up on the downtown side to allow a policeman to alight. This brought the front part of the car about 40 feet below Clouet Street, and 90 feet from the first pipe upon the ground.

In the language of the plaintiff:

“When it hit Clouet Street a policeman got off. After the policeman got off the car started again and I walked to the platform and said: ‘Next corner’ to the conductor, ‘please’; and he said ‘yes’, and when I stepped off, I got hurt.”
Q. What do you mean by stepping off?
A. Stepping off the platform in the car.
Q. You stepped off the car from the platform?
A. Off the platform to the step.
Q. What were you stepping off the platform to the step for?
A. I was going to get off the car at the corner.
Q. What corner?
A. Louisa Street.

Fred Laque, motorman at the time of the accident, acknowledged that the plaintiff on coming upon the platform said to him: “Corner, cap”. The motorman testifies that he answered the plaintiff and said to him: “Look out, boy”. The plaintiff denies this. Perhaps he did not hear it. The motorman adds: “Just when he was stepping on the step and the pipe struck him and down he went, I didn’t have time to do anything”.

The evidence satisfies us that the plaintiff walked to the platform and descended upon the steps before the car had reached the first pipe. This conclusion confirms his testimony that when he got upon the steps he did not see the pipes until he was struck by them. It would be inconceivable that he should have walked down the steps at the time they reached the pipes. He would then have seen them, and, seeing them, he would have avoided them. We are confirmed in that conclusion by plaintiff’s testimony:

Q. How long were you on the step of the car before you were hit?
A. Just as soon as I got on it, I was hit.
Q. Just as soon as you stepped from the platform to the step you were hit?
A. Yes, sir.
Q. Do you know whether you were hit with more than one thing?
A. I was hit a couple of times and dragged to the back of the car. I could not say how many (pipes) hit me, but I know I was dragged to the back of the car.

The evidence is that when the plaintiff was picked up after the accident, he was seated on the ground with his back against one of the pipes, either the fourth, fifth, or sixth. It was quite natural that he should have been dragged, and being dragged, that he should have been found some distance from the first pipe.

It is gross negligence on the part of a railroad company to leave objects in such close proximity to their cars from which danger may be anticipated. 10 C. J. 871, S. 1385.

In Kird vs. Ry., 109 La. 525, 33 South. 587, the court said:

“To have its freight platform constructed so near to its track that the elbow of a passenger may come in contact with freight on the platform as the passenger is seated inside of a passenger car, with his elbow resting for comfort on the sill of one of the windows of the car and protruding but slightly, is gross negligence on the part of a railway company rendering it responsible in damages to a passenger injured under the above circumstances.” Affirming Clerc vs. Morgan R. R., 107 La. 370, 31 South. 886.

In the late case the court on p. 377 quoted with approval the following language in Summers vs. R. R., 34 La. Ann. 145:

“It was bound to know that its passengers, in common with those on other street railways, were in the habit of riding with their arms 'resting on the window sills and projecting outside of the cars; * * * knowing these things, a reasonable care for the safety of others would have dictated the duty of using precautions to avoid the danger.”

10 C. J. 1139, S. 1510:

“It is the prevailing rule that it is negligence 'per se for a passenger on a railroad voluntarily or inadvertently to protrude his arm, hand, elbow, or any other part of his body through the window of a moving car beyond the outer edge of the window or outer surface of the car, so as to come in contact with objects or obstacles near the track.” Samuel E. Moore vs Edison Electric Illuminating Co., 43 La Ann. 792, 9 South. 433.

But it is not negligence when the passenger does so for a legitimate useful purpose or in accordance with a recognized custom. Summers, 34 La. Ann. 145; Clerc vs. Morgan R. R., 107 La. 370, 31 South. 886.

In the present case the plaintiff cannot be charged with negligence for having descended upon the steps prior to alighting. The evidence, as well as our own observation, establishes that it is a customary practice for persons riding in the street cars of this City to get down upon the step and stand upon it for some distance before getting off of the car; this is more"especially the case with young and active passengers.

The practice is so common that no one can be ignorant of it. 10 C. J. 1120, S. 1497.

But it is argued that under the conditions of this ease it was negligence on the part of the plaintiff for two reasons. In the first place, he was aware of the presence of those tiles. For a week prior to the accident nearly every morning he took the cars going uptown to work at the corner of St. Claude Avenue and Louisa Street. He saw the pipes lying in their huge imposing proportions upon the ground near the car track. During the same week nearly every evening returning home from work he rode upon the same cars and passed along the same pipes and saw them again before he reached Louisa or Desire Street where he got off. But whether standing at the corner of Louisa and St. Claude waiting for the car, T50.feet from the pipes, or whether inside of the car, he looked at the pipes only from a distance.

When inside of the car returning home - he may again have seen the pipes. But on neither occasion has it' been established that he was in a position to know or did know, that the distance between the car and the pipes was so small that it would not permit the passage of the human body.

In the case of Georgia Southern Ry. vs. Cartledge, 42 S. E. 405 (Ga.), the plaintiff was injured by a grab or catch bar used in delivering mail from a railroad car. The court said:

“He had seen the semaphore post frequently, but had never taken any particular notice of how close it was. * * * In view of this evidence it may be conceded not only that the railway company was negligent as alleged, but that the plaintiff, though he had frequently seen the post, was not himself .guilty of any negligence in not taking note of its dangerous proximity to the track, and governed his actions accordingly.” 80 S. W. 324.

In the case of Gusman vs. Caffery, 49 La. Ann. 1264, 22 South. 742, the plaintiff was injured by a cross beam erected over a railroad track too low to permit a brakeman standing erect to pass beneath without stooping. The plaintiff was employed by the defendant and was fully aware of the existence of the cross beam. The defendants pleaded assumption of risk on the part of the plaintiff, he having knowledge of the height of said beam and its position. The District Court maintained an exception of no cause of action. The Supreme Court reversed the judgment and said:

“It is not true that the mere fact of such knowledge carries with it necessarily and on all occasions, and under all circumstances, the cutting off of remedy for injuries received by him from such constructions.”

Again the plaintiff is charged with negligence because he got upon the platform and descended upon the steps too soon after the car had passed the corner of Clouet, and too long before the car reached the corner of Louisa Street. It was within the same block, it was done by a young and impetuous boy. It is not for this court to measure the distance in feet within which it will be prudent for a passenger to get upon the steps of the car from which he is about to alight, and the number without which it will be imprudent. The plaintiff had no reason to apprehend any danger by getting upon tbe steps at tbe time he did. But he notified the motorman of his' intention to get out of the car. If there had been any danger at the time the motorman should have guarded him against it.

No precautions of any kind were taken in that direction.

In Gates vs. Ry., 141 La. 946, 75 South. 1002, the court said:

“A street railway company is liable in damages for personal injuries suffered by a passenger, while alighting from the car in an ordinary prudent manner, coming in contact with an obstruction placed near the track by the employees of the railway company, of which the passenger was not warned by the conductor of the car.” Leverett vs. Shreveport Belt Ry. Co., 110 La. 399, 34 South. 579.

The plaintiff was a boy sixteen years old at the time of the accident.

He could be charged with contributory negligence. But he could not be expected to possess the same degree of 'prescience, caution and intelligence of an adult, nor could he be judged by the same rigor of law applicable to the latter.

In the case of Mitchell vs. R. R., 110 La. 630, 34 South. 714, the court said:

“A boy of twelve years of age may be guilty of contributory negligence which bars his recovery. No doubt of that. But a boy of that age is not to be held to the same degree of care, prudence and circumspection which would be the case with an older person.”

The court cites following cases:

In McGovern vs. R. R., 67 N. Y. 421, it was said: “In respect to contributory negligence on the part of the boy, it is claimed that the evidence shows he did not look, before stepping upon the track, to the west, and that if he had done so, he would have seen the engine, and the accident would not have happened. The rule which requires persons before crossing a railroad track to look to see whether trains are approaching, and that if they omit to do so and are injured by a collision, which, if they looked, would have been avoided, are to be deemed guilty of negligence, is not to be applied inflexibly, and in all cases, without regard to age and circumstances.”

The law is not so unreasonable as to expect or require the same maturity of judgment, or the same degree of care and circumspection in a child of tender years as in an adult.

In Railroad vs. Young, 10 S. E. 197 (Ga.), it was held that due care according to its age and capacity is all that can be expected of a child of tender years. While a boy of twelve is not to be regarded as “of tender years”, still he is not to be held to the same accountability in the matter of contributory negligence as a full grown person is. Westerfield vs. Levis Bros., 43 La. Ann. 63, 9 South. 52; 10 C. J. 1009, S. 1483. Having held the defendants negligent in the manner of laying the pipes, there is no necessity of considering the other charges of negligence.

The jury decided the questions of fa.ct in favor of the plaintiff and the judge approved them and refused a new trial on the questions of law. We cannot say that their judgment was erroneous.

But we think the damages allowed are excessive. They arei without precedent in this State. In the case of Nelson vs. R. R., 49 La. Ann. 491, 21 South. 635, a child two years old lost both legs. The jury awarded $30,000. The Supreme Court reduced the judgment to $20,000. The court said:

“In Ketchum vs. R. R., 38 La. Ann. 778 for the loss of an arm this court allowed $10,000 damages. In Peniston vs. R. R., 34 La. Ann. 777, for a broken leg $6000. In Barksdull vs. R. R., 23 La. Ann. 180, for both legs $15,000. In other cases of injuries far inferior in character, allowances have ranged from $1,500 to $7,500. In Chopin vs. R. R., 17 La. Ann. 19, $25,000 was allowed for the loss of a leg. In the Federal courts .for an injured foot, $7500 was allowed; $10,000 in another case was awarded for the loss of a leg, and in another case $20,000 was allowed for the loss of both legs. Ry. Co. vs. Stout, 17 Wall. 657; R. R. Co. vs. Mares, 123 U. S. 710; R. R. Co. vs. Herbert, 116 U. S. 642."

In the case of Leininger vs. R. R., 150 La. 1089, 91 South. 521, where the plaintiff lost both legs the Supreme Court allowed the plaintiff $25,000.

Although there is no fixed rule for estimating damages some similarity must exist. Rice vs. Crescent City R. R. Co., 51 La. Ann. 108, 24 South. 791; McMahon vs. New Orleans Ry. & Light Co., 127 La. 544, 53 South. 857.

It is therefore ordered that the judgment herein be reduced from Thirty-seven Thousand Dollars to Twenty-five Thousand Dollars, and as thus amended that it be affirmed, the defendants to pay costs in both courts.

CONCURRING OPINION OF JUDGE, WILLIAM W. WESTERFIELD.

WESTERFIELD, J.

The unfortunate condition of the plaintiff in this case is in my opinion solely attributable to the fault of defendant herein. As a carrier of passengers the law imposes the duty upon this defendant of exercising the highest degree of care for the safety of its passengers, as stated by our Supreme Court, “the highest degre of care reasonable to be expected from human vigilance and foresight”. Notwithstanding this great responsibility, the employees of the street railway company in this case took no precaution, exercised no care and made no effort to prevent injury to its passengers as a result of the dangerous proximity of the enormous concrete conduits to its tracks and cars. The car was equipped with doors which should have been closed, certainly during the short interval required to pass the conduits. The car could have been slowed down to a snail’s pace while passing the dangerous block. A re-routing of the cars on this line was quite possible so as to escape the conduits altogether. Passengers could have been warned of the danger. The habit of geting on the steps preparatory to alighting shown to have been indulged in by passengers could have been interrupted for the single block in which the conduits were placed. Counsel for this defendant frankly admits negligence, as well he might, for it is as plain as a pike staff. But it is said the plaintiff was also negligent and his negligence the proximate cause of the accident. He saw or should have seen the conduits. He knew or should have known of the danger involved in getting on the steps under the circumstances. Plaintiff says he didn’t see the conduits when getting off the platform and on the step. He admits having seen them on another day of the week they were lying there. It is true that in getting off the platform he faced the conduits and that if he looked ahead of him while on the platform he might have seen them. But he says he didn’t look ahead and it was not his duty to do so. Such view of the conduits as was afforded him in stepping from the platform was instantaneous and wholly insufficient to make any impression on his consciousness. If he had seen the conduits in time as alleged he could not judge of their proximity to the step for, as was said by Chief Justice Monroe in Hamilton vs. La. Ry. and Nav. Co., 147 La. 616, 85 South. 611: “It is well recognized in optics that the art of measuring distances by sight is largely an acquired one, and it is a matter Within the common experience that in many instances where the distances are short and one has nothing by which to measure it is difficult, if not impossible, to determine the distance of an object within the range of one’s vision.” But he did not see them, at least had no consciousness of their existence, and the doctrine that one must be held to have seen what he could have seen has no application here.

The eye in its relation to human consciousness or understanding is analagous to the photographic lens and sensitized plate of the camera, but there is this difference: In the case of the camera, given light and proper exposure the lens faithfully and accurately reproduces upon the plate all objects within range. But the eye, and in a lesser degree the other senses, depend upon the exercise of the intellectual faculty of attention for proper functioning. We see objects and we read sentences, paragraphs and even pages with little or no consciousness of what we see, depending upon the degree of attention exercised. The first command given the soldier has no relation to the manual of arms, but the drill master shouts “attention” in recognition of the fact that attention is the beginning of consciousness. It is not sufficient that objects be within the scope of our senses. There must be conception, understanding, knowledge. The plaintiff in this case must have had knowledge of the danger before he can be said to be negligent in disregarding the precepts of ordinary care. In the words of -the famous German philosopher, “perceptions without conceptions are blind”. Sensory perceptions form “the warp of experience across which the shuttle of thought throws its woof and constructs its web of knowledge”.

When through constant repetition of sensory experience we learn to associate certain objects with certain surroundings and conditions the mind gradually accepts the relation as fixed and turns its attention to other considerations of greater novelty. Familiar situations are met' by subconscious action. When, therefore, the conduits appeared within the range of plaintiff’s vision there was no consciousness of their presence because he had a fixed impression of the neutral ground as free from obstruction and of the street railway as being safely and carefully operated. His attention was not arrested because the time during which the objects were within the range of his vision was not sufficient to overcome the mental inertia caused by previous mental experience constantly repeated. His action in stepping from the platform was therefore subconscious.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 9660.
    Orleans Appeal.
    JOSEPH S. CRAWFORD, Appellant, v. LOUIS V. SIERRA.
    (March 16, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    The opinion of the trial judge on matters of fact will not be disturbed unless clearly erroneous. In making a deduction of ten per cent on the cost of new tires for damaged ones which were eight months old and had run 6200 miles, the trial judge acted correctly.
    (Civil Code, Art. 2315. Editor's note.)
    Appeal from Second City Court of New Orleans, Hon. George P. Platt, Judge.
    This is a suit for damages arising out of an automobile collision.
    There was judgment for plaintiff for $189.90 and plaintiff has appealed.
    Judgment affirmed.
    R. C. Davey, A. T. Higgins, attorneys for plaintiff and appellant.

      W. Frank LeCourt, attorney for defendant and'appellee.
   CLAIBORNE, J.

Plaintiff alleges that the defendant negligently collided with his automobile causing a damage of $202.50, according to an itemized hill annexed, and necessitating the painting of his auto, which will cost $75.00.

The defendant admitted that he was responsible for the accident, but averred that he could have had the repairs made for $110.85, which he tendered to the plaintiff, who refused to take it.

There was judgment for plaintiff for $189.90 and plaintiff has appealed.

The two items in contention are two casings, $62.40, and repainting the car, $75. The judgment cannot be reduced in amount as the defendant has not appealed.

The car was eight months old and had run 6,200 miles. The judge made a reduction of ten per cent, in the cost of the -new caáings for old. He also reduced the charge of $50 for towing, storing and labor and reduced the painting.

The judge gave written reasons for judgment, which meet with our approval.


text:
    No. 9203.
    Orleans Appeal.
    MICHAEL HOWARD, Appellant, v. CITY OF NEW ORLEANS.
    (March 16, 1925, Opinion and Decree.)
    (March 30, 1925, Rehearing Refused.)
    (April 27, 1925, Decree Supreme Court Writ of Certiorari and Review Granted.)
    (July 29, 1925, Decree Supreme Court. 105 Sou., Adv. Rep. No. 6, p. 433.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Municipalities—Par. 47, 244, 251.
    The test of liability of the City of New Orleans for the offenses and quasi-offenses of its employees and agents is determined by the nature of the employment. If the employee was acting as an agent of the City in the discharge of its public governmental functions as a branch of the State, then no liability attaches; but if the employee was employed by the City for the exercise of a corporate municipal function for private purposes for the benefit of the City and its inhabitants, then the City is liable to the same extent as a private corporation.
    2. Louisiana Digest — Municipalities—Par. 47, 244, 251.
    An elevator-tender in the Criminal District Court for the , Parish of Orleans exercises a public governmental function. Therefore, for his offenses and quasi-offenses the city is not liable.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Civil District Court, Hon. Percy Saint, Judge.
    This is a damage suit for physical injuries. The defendant filed an exception of no cause of action on the ground that the City was not liable for the negligence of the elevator tender. The exception was main-' tained and plaintiff’s suit was dismissed The plaintiff appealed.
    Judgment affirmed.
    Henry B. Robinson, attorney for plaintiff and appellant.
    Rene A. Yiosca, attorney for defendant and appellee.
   CLAIBORNE, J.

This is a damage suit for physical injuries.

The plaintiff represents' that he was a plumber’s helper earning $12 a week; that he was employed by the J. A. Reynolds Company under contract with the City of New Orleans to repair the Criminal Court Building owned and operated by the City of New Orleans; that his occupation caused him to go into the pit under the elevator shaft, to the knowledge of the tender thereof; that while in said pit the elevator tender lowered the car to the bottom of the pit, thus crushing and mangling petitioner in such a manner as to cause him great pain, and inflicting upon him permanent in-, juries rendering him totally and permanently incapacitated for further work. For all of which he claims $50,000 damages.

The defendant filed an exception of no cause of action on the ground that the City was not liable for the negligence of the elevator tender.

The exception was maintained and plaintiff’s suit was dismissed.

The plaintiff has appealed.

The test of liability of the City of New Orleans for the offenses and quasi-offenses of its employees and agents is determined by the nature of the employment. If the employee was acting as an agent of the City in the discharge of its public governmental functions as a branch of the State, then no liability attaches; but if the employee was employed by the City for the exercise of a corporate municipal function for private purposes for the benefit of the City and its .inhabitants, then the City is liable to the same extent as a private corporation. Stewart vs. City of New Orleans 9 La. Ann. 461; Bennett vs. City of New Orleans, 14 La. Ann. 120; New Or leans, M. & C. R. Co. vs. City of New Orleans, 26 La. Ann. 478 (481); City of New Orleans vs. Kerr, 50 La. Ann. 413, 23 South. 384; Fischer Land & Improvement Co. vs. Bordelon, 52 La. Ann. 433, 27 South. 59; Bankins vs. Police Jury of Calcasieu Parish, 116 La. 641, 40 South. 925; Davis vs. New Orleans Public Belt R. R., 155 La. Ann. 504, 99 South. 419; Barrett Mfg. Co. vs. Board of Commissioners, 133 La. 1022, 63 South. 505; State vs. Jahraus, 117 La. 289, 41 South. 575; Sherman vs. Parish of Vermilion, 51 La. Ann. 883, 25 South. 538; Compagne Francaise de Navigation vs. State Bd. Health, 51 La. Ann. 645, 25 South. 591.

Thus in Jones vs. City, 143 La. 1074, the court found that in operating the Public Belt Railroad the City was exercising a governmental function as agent and therefore was not liable 'for the killing of plaintiff’s husband by a policeman.

But in Davis vs. New Orleans Public Belt R. R., 155 La. 504, 99 South. 419, the court said that so much of the opinion in the Jones case as stated that the Belt Railroad was a governmental agency was obiter and not necessary for the decision of the case.

It then concluded “that the City of New Orleans in operating the Public Belt Railroad is exercising a municipal or corporate function for private gain and not a governmental ‘agency’, and hence the railroad was subject to suit for damages for the killing of plaintiff’s son by its train at a street crossing”.

In the leading case of Stewart vs. City, 9 La. Ann. 461, where a policeman killed a slave, the court said:

“The inquiry which is next presented is, whether the powers under which the officers of the municipality acted, were conferred for public purposes? If so, it follows that the City is not liable for the acts of their officers, even though illegal, or of such a character as to subject the officers themselves to liability. * * * Under these sanctions, watchmen are appointed as a necessary branch of the police of the City. Their duties are the preservation of public order and tranquility, and the City, in appointing them, exercised a 'governmental function, conferred upon it, in its public or municipal character, for public purposes, exclusively, and is not therefore liable for the acts of its officers.” Affirmed in Joliff vs. City, 144 La. 62, 80 South. 200; Lewis vs. City, 12 La. Ann. 190; Hall vs. City, 157 La. 589, 102 South. 680.

In City vs. Kerr, 50 La. Ann. 413, 23 South. 384, the court said on p. 417:

“The powers and obligations of municipal corporations, like the City of New Orleans, are two-fold in character; those that are of a public nature and those that are of a private nature. This court, by. repeated decisions, has recognized this distinction. Egerton vs. Third Municipality of New Orleans, 1 La. Ann. 437; Stewart vs. City of New Orleans, 9 La. Ann. 461; Lewis vs. City of New Orleans, 12 La. Ann. 190; Mrs. Lucy Ann Howe vs. City of New Orleans, 12 La. Ann. 482; Bennett vs. City of New Orleans, 14 La. Ann. 120; New Orleans M. &. C. R. Co. vs. City of New Orleans, 26 La. Ann. 478. As to the first, or, public character of its powers and obligations, the municipal corporation represents the State discharging duties incumbent on the State. As to the second, or private character of its powers and obligations, the municipal corporation represents the pecuniary and proprietary interests of individuals. As to the first, where a municipal corporation acts as the agent of the State, it becomes the representative of sovereignty and is not answerable for the non-feasance or malfeasance of its public agents. As to the second the rules which govern the responsibility of individuals are properly applicable.” Quoting numerous authorities.

It is questionable whether Article C. C. 2315 applies to municipal corporations. State vs. Mayor, Etc., of City of New Orleans, 32 La. Ann. 716.

It has been decided that the registry laws contained in the Civil Code do not apply to the State in the collection of its taxes. The State of Louisiana vs. Theogene Viator, 37 La. Ann. 735; Reed vs. His Creditors, 39 La. Ann. 121, 1 South. 784; Lisso & Bro. vs. Police Jury, 127 La. 283, 53 South. 566.

In Lewis vs. City, 12 La. Ann. 190, the court decided that the city was not liable for the negligence of the keepers of the jail in consequence of which a slave died. Affirming Stewart vs. City.

The question then arises, did the City in appointing an elevator tender, exercise a governmental function or a private corporate act?

The Criminal District Court for the Parish of Orleans is part of the judiciary of the State and as such one of the branches of government. In providing a courthouse and buildings in which the court shall exercise its jurisdiction and in making provision for the management of the building the city appoints employees of different kinds, among them, elevator tenders. In making these appointments the City exercises a governmental function in the interest of the public, and not a mere corporate, act for its own benefit or advantage and that of its inhabitants alone. It is therefore not liable for the offenses or quasi-offenses of elevator tenders, any more than it is for the acts of its police officers. It has been so held in other jurisdictions. 122 S. W. 860, 53 N. W. 763, 18 L. R. A. 151, 82 N. E. 1119, 17 L. R. A. (N. S.) 741, 13 Ann. Cas. 759, 86 N. E. 1128, 101 N. Y. Supp. 996, 57 Arl. 356, 65 L. R. A. 214, 103 Fed. 597.


author: BELL, J; WESTERFIELD, J.

text:
    No. 9922.
    Orleans Appeal.
    EARL MINDERHOUT v. JACOB FALLO.
    (March 16, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Laws—Par. 72, 75.
    A contract by which “A”, a licensed real estate broker, agrees with “B”, not such a broker, to share his commissions with “B”, who has assisted him in a sale of real estate, is not a transaction prohibited by Act 236 of 1920, and “A” connot repudiate his agreement on the ground that “B” at the time of the agreement was not a licensed broker.
    Bosetta vs. Jacobs, 9664 Orl. App.
    Appeal from the First City Court for the City of New Orleans, Section “A”, Hon. Leon L. Labatt, Judge.
    This is a suit to recover one-half of commission earned by a broker under a contract with him.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Jos. Rosenberg, attorney for defendant and appellant.
    Woodville & Woodville, attorneys for plaintiff and appellee.
   BELL, J;

Plaintiff sues defendant for one-half of. a certain commission earned by the latter as a licensed real estate broker, doing business in the City of New Orleans.

The petition sets forth that plaintiff, while also a licensed real estate broker, succeeded, with the assistance and co-operation of the defendant, in consummating a certain real estate transaction, for which commissions were earned in the sum of $380.00; that plaintiff had found for the purchaser the property ultimately bought, and that at the purchaser’s request, plaintiff agreed to share his commissions with the defendant, who had shown to the purchaser certain property on the same street, but not as desirable as that which plaintiff had first made known to the purchaser; that under this agreement, both plaintiff and defendant called on the owner of the property and were engaged by him to negotiate with plaintiff’s client for the purchase of the property; that in the ultimate transaction, defendant received the full commissions, which defendant now refuses to share with plaintiff, as agreed upon.

Defendant answers by denying generally the allegations of plaintiff’s petition, and then specifically answering, avers that plaintiff in no manner assisted in, aided or brought about the sale of the property involved, but that defendant’s efforts were alone the procuring cause of the sale.

There was judgment for plaintiff as prayed for, that is, in the sum of $190.00, or one-half of the total commissions. Defendant has appealed.

Only issues of fact are involved in this case. The sole question for determination is whether the agreement for a division of commissions was made. Plaintiff’s claim is upon an alleged contract and not upon a quantum meruit for services rendered to defendant. The latter’s special defense that his efforts alone were the procuring cause of the sale is not, therefore, responsive to the petition. Only the litigants in this case have testified as to the alleged contract. The plaintiff’s evidence is positive and direct, while defendant’s is contradictory and evasive.

While defendant denies that he had any specific agreement to divide the commissions, his subsequent admission while under examination by the trial judge, shows conclusively that he was to divide the brokerage, but refused to do so upon the excuse that he discovered after the sale was consummated that plaintiff was, in fact, not a licensed real estate agent or broker. This defense was not pleaded, but had it been, there is nothing in Act 236 of 1920 which would strike with nullity the valid agreement which, we are satified from the evidence, existed between the parties. It matters not whether plaintiff was a licensed broker. Our appreciation of the law on this point has been recently expressed in Bosetta vs. Jacobs, 9664 Orl. App., and we find full justification for applying the ruling therein made to the facts of this case.

It is, therefore, ordered that the judgment appealed from herein be and the same is hereby affirmed, at defendant’s costs in both courts.

DISSENTING OPINION.

WESTERFIELD, J.

I am of opinion that plaintiff’s action is barred by the provisions of Act 236 of 1920. I therefore respectfully dissent.


author: CARVER, J. CARVER, J.

text:
    No. 1805
    Second Circuit Appeal
    J. T. BOWERS v. ORLEANS PRODUCING AND REFINING CORPORATION, ET AL.
    (March 17, 1925, Opinion and Decree)
    (June 23, 1925, Opinion and Decree on Rehearing)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Corporations — Par. 209.
    In view of Article 165, Section 9, of the Code of Practice, suing out the injunction suit was the doing of something for which the action for damages lay, and therefore the plaintiff in the injunction suit, a corporation, could be sued in Red River parish where the damage was done.
    2. Louisiana Digest — Suretyship—Par. 53.
    In view of Section 8 of Act 41 of 1894, the plaintiff in the injunction- suit, being suable in Red Rivter parish on the bond the surety under this section is likewise suable there.
    3. Louisiana Digest — Pleading—Par. 62.
    An exception of no cause of action in a suit against the principal and surety on an injunction bond will not be sustained merely because of the supposition that the' bond has not been broken because, the injunction suit- was dismissed without it having been decided that the injunction was wrongfully obtained.
    4. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on the amount- of damage, a question of fact, being clearly correct, is affirmed.
    Appeal from Eleventh Judicial District Court, Parish of Red River. Hon. J. W. Jones, Jr., Judge.
    This is a suit against the principal and surety on an injunction bond given in the suit of Orleans Producing and Refining Company against this plaintiff and the sheriff of Red River parish, wherein they were enjoined from selling a drilling rig against which plaintiff, Bowers, had sued out executory process in a suit against Homer 23 Oil Company for the collection of a chattel mortgage debt.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Stephens & Cagle, of Coushatta, Caffery - & Dorman, of Shreveport, attorneys for plaintiff, appellee.
    S.R. Thomas, Nettles & Bethard, all of Coushatta, attorneys for defendant, appellants.
   CARVER, J.

This is a suit against the principal and surety on an injunction bond given in the suit of Orleans Producing and Refining Company against this plaintiff and the sheriff of Red River parish, wherein they were enjoined from selling a drilling rig against which plaintiff, Bowers, had sued out executory process in a suit against Homer 23 Oil Company for the collection of a chattel mortgage debt of one thousand dollars, besides interest and attorney’s fees.

The alleged ground on which the injunction was obtained was that the mortgage debt was fictitious and that Bowers’ attempt to collect it was a fraud on the rights of Orleans Producing and Refining Company which then owned the rig by purchase from the mortgagor.

Bowers excepted to the petition in the injunction suit on the ground of vagueness and demanded' oyer of certain documents. The court ordered the plaintiff to amend and file the documents by a certain date under penalty of having the suit dismissed in case of failure; and the plaintiff, failing to comply with the order, the suit was dismissed.

It seems no appeal was taken from that judgment, which has now become final.

In the present suit the Orleans Producing and Refining Company filed various exceptions not necessary to notice, as that company did not appeal.

The American Surety Company, the surety on the injunction bond, filed an exception to the citation which, by its consent, was overruled. -(Evidence, page 1) It also filed exceptions to the jurisdiction of the lower court rationae materiae and rationae personae and an exception of no cause or right of action.

1.

Jurisdiction Rationae Materiae

This exception must have been filed by inadvertence as we cannot conceive of any reason for thinking the District Court without jurisdiction of the subject matter of the suit.

2.

Jurisdiction Rationae Personae

It appears that the Orleans Producing and Refining Company is a Delaware corporation.

In its exception the Orleans Producing and Refining' Company alleges that its Louisiana domicile is in New Orleans.

The Surety Company, in its exception, merely stated that the District Court was without jurisdiction rationae personae, without saying why.

These exceptions were referred to the merits.

We find no proof in the record as to what parish either company had selected as its Louisiana domicile, so it might be proper to overrule these exceptions on the ground that the burden was on defendants to show that the District Court was without jurisdiction rationae personae and that they had failed to do so. But service on both companies was made on agents in New Orleans and as plaintiff’s . attorney • does not claim that either one is domiciled in Red River parish where the suit was brought, w'e shall consider defendants as not residing in that parish.

The general rule is that parties must be sued at their domicile, but Article 165 of the Code of Practice provides:

“There are other exceptions to this rule which require that the defendant be sued before the judge having jurisdiction over the place of domicile or residence; they are enumerated:
¡s * * *
“9. In' all cases where any corporation shall commit trespass, or do anything for which an action for damage lies, it shill be liable to be sued in the parish where such damage is done or trespass committed.”

Suing out the injunction suit was, in our opinion, the -doing of something for which an action for damages lay, and therefore the plaintiff in the injunction suit could, we think, be sued in Red River parish where the damage was done.

Act 41 of 1894, being the act authorizing surety companies to sign bonds, provides, in Section 8, as follows:

“No company, having signed such bond or bonds, shall be permitted to deny its corporate power to execute said ' instrument, or incur such liability in any proceeding to enforce liability against it thereunder, and such company shall be suable in the same jurisdiction as the principal obligee (meaning obligor) on such bond, and citation shall be served on it, or its attorney for service of process, as is by law in such cases provided.”

The plaintiff in the injunction suit being suable in Red River parish on the bond, the surety under this section is likewise, we think, suable there.

3.

Exception of No Cause or Right of Action

We presume this exception is based on the supposition that the bond has not been broken because the injunction suit was dismissed without it having been decided that the injunction w'as wrongfully obtained. •If so, we think the claim without merit.

Were that the law, a plaintiff could sue out injunction and greatly hamper creditors in' their efforts to. collect what was due them with little or no risk. They are sued out in chambers, and on court’s convening could be voluntarily dismissed and the defendant would have no recourse on the bond. Besides, the proof in this case shows that the injunction was wrongfully obtained. Bowers swears, as a witness in this case, that the debt on which he sued Homer 23 Oil Company was genuine, and no attempt was made to contradict this. The sole ground of the injunction was that the debt w'as fictitious.

4.

Items of Damage

Plaintiff itemizes the damages for the .wrongful injunction as follows:

Expenses of the plaintiff and his attorney in attending court to defend the injunction suit____________$ 35.00
Four days’ time lost by plaintiff attending court to defend said suit 40.00
Attorney’s fees ________________________________________ 250.00
Fees of the custodian for keeping the drilling rig while under seizure ________________________________________________ 231.00
Depreciation in value of the machinery while under seizure____ 400.00
Total ____________________________________________________$956.00

In its answer the surety company denied generally the allegations of plaintiff’s petition, plead that the writ of injunction had never been tried, and that the amounts claimed by plaintiff for expenses, loss of time, attorney’s fees and custodian fees 'were excessive, that the keeper had accepted much less than the amount claimed, and that the depreciation had operated to plaintiff’s advantage because the property was sold without appraisement and plaintiff bought same for less than twenty-five per cent of its value.

•In our opinion these defenses are without merit.

One of them has already been discussed under the exception of no cause or right of action.

As to the keeper’s fees, the proof shows that the amount charged, $1 a day, is reasonable and less than the usual charge. It is true the keeper released the sheriff from paying any more than $33, which plaintiff paid, but he looks to plaintiff for the balance.

The proof does not show that the price, four hundred dollars, paid by plaintiff at sheriff’s sale was less than its value, but if it did and if plaintiff had made a profit on his purchase, we do not think these circumstances could offset the loss plaintiff suffered by reason of the depreciation and the consequent loss of a considerable part of his debt.

Amount of Damages

The lower court gave judgment for $836.00 and the plaintiff does not ask for any amendment.

We have examined the record and in our opinion the proof sustains the finding of the District Judge.

Plaintiff and his attorney made two or three trips to Shreveport and Coushatta, for the expenses of which and for plain.tiff’s time $75.00 is claimed.

He also claims $200.00 attorney’s fees and $231.00 keeper’s fees.

If all these were allowed as claimed, then the District Judge only allowed $330.00 for depreciation. In our opinion the property depreciated much more than this, so that even if the items of expenses, loss of time. and attorney’s fees are too high, we think, the total amount of the judgment is not.

The judgment of the lower court is affirmed.

ON APPLICATION FOR REHEARING

CARVER, J.

At the original hearing appellant’s' counsel did not' appear either orally or by brief. When the original opinion was handed down’ he explained ‘that his inattention to the case was due to a misunderstanding. So we granted a rehearing. In his brief filed on rehearing he admits that $75 is a proper allowance for, plaintiff’s expenses and loss of time. He also admits that plaintiff’s reasonable attorney’s fees should be • allowed, placing . these at $100. He also admits that plaintiff should be allowed his $33 paid to the custodian. .

These items total $208.

He argues, though, that the rest of the $231 custodian fees should 'not have been allowed because the custodian, on receiving the $33, released the sheriff from any further payment.

, The proof, though, shows that he looks 'to the plaintiff for the balance, and that the. charge of $231 is reasonable and much less than the usual charge.

Counsel also complains that we allowed too much for depreciation of the property between the time it was seized and the time it was sold. He argues that plaintiff, having estimated the property when sold at $1585 and having bought it for $400 did not lose anything.

The figures going to make up the $1585 though, were mere estimates made by plaintiff, who had thoroughly examined and tested most of the property. On the second trial of the case he gave other estimates much less than the original one, giving reasons for the reductions. No counter testimony was introduced: Besides, we think that what- the property brought at the sheriff sale* was a better test of its value than any mere estimate. When sold the property brought very much less than enough to. pay the plaintiff’s debt. We are satisfied that if the. sale had not been interfered with by the injunction it would have brought more than .enough to pay his debt.

The amounts- admitted by plaintiff are__$208

We think the custodian fee is proper____ 251

Figuring depreciation ________________________________ 397

Would total ............................................$836

This is' the amount of the judgment.

The testimony satisfies us ' the depreciation was more than $397.

For these reasons it .is decreed that the decision originally handed down herein be reinstated and made the judgment of the court.


author: CARVER, J.

text:
    No. 1829.
    Second Circuit Appeal.
    THE EMPLOYERS’ LIABILITY ASSURANCE CORPORATION v. HAMNER, SMITH & CO.
    (March 17, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 175.
    Defendants can not appeal from a judgment wholly in their favor. Therefore the appeal is dismissed.
    Appeal from Third Judicial District Court of Louisiana, Parish of Bienville. Hon J. E. Reynolds, Judge.
    This is a suit to recover an insurance premium.
    There was judgment for defendant and defendant appealed.
    Suit dismissed.
    W. U. Richardson, of Arcadia, attorney for plaintiff, appellee.
    Foster R. Taylor, of Arcadia, attorney for defendant, appellant.
   CARVER, J.

Plaintiff sues defendants for $363.98, insurance premium on a certain insurance policy, and $277.53 insurance premium on another insurance policy, with five per cent per annum interest from the dates of the respective policies.

Defendants denied liability for the smaller premium and admitted liability for the larger one, except that they claimed interest was due, not from the date of the policy, August 12, 1919, but only from a subsequent date.

The testimony shows that on the day of trial, September 22, 1922, defendants made a ten'der to plaintiff, the amount of which is not shown, except that it is stated to have been of the amount of the policy (meaning, of course, premium) on policy W, C. 16003, this being the larger premium.

Judgment was rendered in favor of the plaintiff for the larger premium with 5% per annum interest from August 12, 1919, to September 22, 1922, and ail costs of suit incurred prior to the trial, the judgment stating that a legal tender had been made at the trial, though without stating how much was tendered, and that the tender was sutained. The judgment further condemned plaintiff to pay the costs incurred on the day of trial.

Plaintiff took an order of appeal but did not perfect same.

Defendants moved for a new trial on the ground that the judgment as written and signed did not correspond with the judgment as orally rendered nor with plaintiff’s petition, and the prayer of plaintiff’s suit nor with the stipulations of the policy.

This motion was overruled and defendants took a devolutive appeal, the minute showing that the appeal was restricted to the amount of interest.

Construing the judgment as we do to mean that whatever was due on the larger premium, including interest thereon, was tendered by defendants and the tender sustained, the judgment appears to us to have been wholly in defendants’ favor, wherefore they cannot appeal therefrom.

The appeal is accordingly dismissed.

Reynolds, Judge, being recused, took no part in the decision.


author: ODOM, J.

text:
    No. 1854.
    Second Circuit Appeal.
    IRA W. BOBO v. V. HILL BOYETT.
    (March 17, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The opinion of trial judge on questions of fact namely, that goods delivered to a merchant were sent on consignment and not sold; not being manifestly erroneous is affirmed.
    Appeal from Third Judicial District Court of Louisiana, Parish of Bienville. Hon. J. E. Reynolds, Judge.
    This is a suit to recover the price of merchandise alleged sold and delivered. There was an attachment by plaintiff and a reconventional demand filed by defendant.
    Judgment for defendant rejecting plaintiff’s demands and dissolving the attachment. Defendant’s reconventional demand was dismissed as of non-suit. Plaintiff appealed.
    Lee & Lindsey, of Minden, attorneys for plaintiff-appellant.
    Goff & Barnette, of Arcadia, attorneys for defendant-appellee.
   ODOM, J.

Plaintiff brings this suit to recover of defendant the sum of $895.08, and alleges as his cause of action that in the month of October, 1921, he sold and delivered' ’ to defendant a lot of merchandise for which he has not been paid. He alleges, further, that after the goods were delivered to defendant at his store in Jamestown, in Bienville parish, defendant insured them in his own name and that shortly thereafter said goods were destroyed by fire and that defendant collected the insurance and deposited the money in the Bank of Minden. He further sets out that defendant has mortgaged, assigned or disposed of his property to the prejudice of plaintiff’s rights. He asked for and obtained a writ of attachment. The Bank of Minden was made a party garnishee.

The defendant answered, denying any indebtedness to plaintiff, but alleges that plaintiff left a small amount of goods at his place to be sold on commission; that he did not become the owner of the goods and that the same were destroyed by fire and that he is no wise responsible to plaintiff for the goods or the proceeds thereof.

He sets up that the writ of attachment was illegally issued and asks that, the same be- dissolved, with damages in the sum of $350.00, for which amount he asks judgment in reconvention.

In the lower court plaintiff’s demands were rejected at his cost, the writ of attachment was dissolved and defendant’s reconventional demand for damages was dismissed as in case of non-suit.

From this judgment plaintiff has appealed.

Defendant did not appeal, nor has' he answered the appeal.

OPINION.

Only a question of fact is involved in this case. If the goods were sold to defendant, as plaintiff alleges and swears they were, defendant owes plaintiff the amount claimed; for there is no dispute about the facts that the goods were worth $895.08 and were delivered to defendant at his store in Jamestown.

But defendant alleges and swears that he did not purchase these goods but took them into his store to be sold by him in the ordinary course of trade along with other merchandise, not as his property but as the property of plaintiff, it being understood that defendant should retain as his compensation for handling the goods one-half of the profits; in other words, that he took the goods to sell on commission.

Plaintiff swears unequivocally that he sold the goods to defendant for the sum of $1085.08, and that at some time subsequent to the sale, he does not know the date, defendant made a partial payment of $200.00 on the goods.

The $200.00 payment is not denied by defendant, but he says that this amount was due plaintiff as the proceeds of sales which he had made.

Plaintiff alleges and swears that defendant was to take out additional insurance to cover the goods, the insurance to be in defendant’s name. He did take out additional insurance after receiving these goods, but whether to coyer these goods or others is not made clear.

Plaintiff testified that he sent defendant an invoice for the goods and that defendant did not dispute the account but, on the contrary, agreed to pay it and, in fact, always agreed to pay this account until after the fire.

Mr. J. L. Mclnnis, an insurance agent, says that defendant took out this, additional. insurance on account of these goods and says that defendant told him that as soon as he collected the insurance he expected to pay plaintiff.

On the contrary, he gives some testimony which corroborates defendant’s theory that he did not purchase the goods. For instance, on page 9 of the testimony he says:

“Mr. Boyett stated to me at that time, in fact-he instructed me to write Mr. Dupree, who had written $1500.00 insurance, that he was going to return that. Mr. Bobo had some insurance on some goods there he didn’t know about but Mr. Bobo didn’t have that in insurance.”

Mclnnis says, page 24:

“I didn’t hear agreement when Mr. Bobo shipped goods down there; all I heard was when Mr. Bobo came down and marked up the goods.”

And wh,en asked if he recalled the conversation, he said he did not recall all of it, “only about keeping same down on this little day book — memorandum book.”

This testimony about keeping a memorandum book is quite significant. If plaintiff made a sale in globo of these goods at a price fixe'd, there was no necessity for keeping a memorandum of the sales.

Defendant swears that he was to sell the goods for plaintiff as he could and that he was to keep and did keep a memorandum of the goods sold and was to make-return to plaintiff, and to that end he kept a small book in which he noted each sale with the price and the profit made. In this he is corroborated by Mr. Otis McDowell, who was employed by defendant as a clerk in the store. He testified that when the goods arrived Mr. Bobo, the plaintiff, came down and the goods were marked and put on the shelves, and that defendant said in the presence of plaintiff that when a pair of shoes or anything else was sold that a memorandum was to be made in a little day book — said book to show the cost, selling price and stock number. This was kept for the purpose of making settlement with plaintiff.

That a memorandum of the sales was to be kept is sworn to not only by the defendant but by his clerk, .McDowell, and by Mclnnis, the insurance agent. We are unable to understand why this was to be done if there was an putright sale of the goods made. There can be no sale without a fixed price in current money. Plaintiff says there was a fixed price. If so, Why should defendant keep a memorandum of,the Sales?

Plaintiff testified that he was' to give defendant a chance to pay for the goods, that is, to pay for them along as he could', and he alleges in paragraph 3 of his petition “that the said Boyett was to pay your petitioner for said goods, wares and merchandise as he sold same.”

We think this .allegation and the above quoted testimony are very significant and when considered in connection with defendant’s positive testimony that he was to sell the goods for plaintiff on commission, we much hold that plaintiff has failed to make out his case. The burden of proof' is on plaintiff to prove the sale. He has not done that to our satisfaction; therefore, his case falls.

We think the district judge was fully warranted in rejecting his demands. Defendant has not appealed from the judgment rejecting his demand for damages on account of the illegal issuance of the writ of attachment, and for that reason we have given no consideration to that branch of the .case.

For the reasons assigned, it is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed, plaintiff to pay the costs in both courts.

Judge Reynolds being recused, took no part in the' decision.


author: ODOM, J. CARVER, J.

text:
    No. 1855
    Second Circuit Appeal
    TOM B. HENDERSON v. A. I. ALFORD
    (March 17, 1925, Opinion and Decree)
    (April 11, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bills and Notes— Par. 209.
    • Although Articles 324, 325 and 326 of the Code of Practice require that if the signature of defendant is denied by him and it is afterwards proven, the defendant is barred from every other defense; the signature not specifically denied, if proven, does not cut off the defendant from other defenses.
    2. Louisiana Digest — Pleading—Par. 32, 42.
    The defendant who, in answering each paragraph specifically, merely states the word, "Denial,” has complied with the provisions of pleading and Practice Act No. 300 of 1914.
    3. Louisiana Digest — Bills and Notes— Par. 209.
    The defendant who, in answering each paragraph specifically, merely states the word, “Denial,” does not thereby specifically deny the signature to a note which is the basis of plaintiff’s suit.
    ON THE MERITS
    4. Louisiana Digest — Bills and Notes — Par. 222; Evidence, Par. 53, 59.
    Where the defense to a note is a special plea of payment, the burden of proving this payment is on the defendant who pleads it.
    5. Louisiana Digest — Appeal—Par. 625, 630.
    The judgment of the trial court on a question of proof of payment of á promissory note being manifestly erroneous is reversed.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Claiborne. Hon. J. E. Reynolds, Judge.
    This is a suit on a promissory note. The defense is payment.
    There was judgment for defendant and. plaintiff appealed.
    Judgment reversed.
    - Dhu Thompson, of Ruston, attorney for plaintiff, appellant.
    - McClendon, Morelock & Seals, of Homer, attorneys for defendant, appellee.
   ODOM, J.

This is a suit on a promissory note. Plaintiff sues defendant to recover the shm of $760.80 with interest thereon at the rate of 10% per annum from January 16, 1920, until paid, and 10% additional on the principal and interest as attorney’s fees.

Plaintiff attaches to and makes a part of his petition a promissory note dated at Junction City, Arkansas, January 16, 1920, for the above amount, made payable to T. B. Headers on and signed “A. I. Alford.”

The note is an unconditional promise to pay the said amount on December 1, 1920, with 10% per annum interest from its date until paid, and providing for 10% attorney’s fees.

Defendant filed an answer in which he denied all the allegations of plaintiff’s petition, except the one alleging that he is a resident of Claiborne parish, which is admitted.

In paragraph five of his answer, he says:

“Further answering, your defendant avers that the note attached to plaintiff’s petition has long since been paid and was paid before it came into the hands of the plaintiff herein and that plaintiff had full knowledge of this fact at the time he received said note.”

The trial in the District Court resulted in a judgment for defendant, rejecting plaintiff’s demand at his cost, from which judgment he has appealed.

OPINION

Article 324 of the Code of Practice provides that when a demand is founded on an act under private signatures which is alleged to have been signed by the defendant, the defendant shall be bound to acknowledge expressly or deny his signature in his answer.

Article 325 provides that if the defendant denies his signature the plaintiff must prove the same; and Article 326 provides that the defendant whose signature shall have been proved after hi^ having denied the same shall be barred from every other defense.

Reference to defendant’s answer dis closes that he denied every allegation of plaintiff’s petition, 'except the allegation as to his residence, which was admitted.

Defendant’s signature to the note sued on was proved on the trial and in fact was admitted by him as a witness in his own behalf..

Plaintiff urges in brief that defendant is barred from urging his plea of payment because he denied his signature which Was proved. It will be noted that defendant has made no specific denial of his signature. Plaintiff’s petition is in four paragraphs. Defendant’s answer is in five paragraphs. In paragraph one he admits he is a resident of Claiborne parish as alleged, but denies all other allegations in said article. Under each of the articles, two, three and four, he writes the word “Denied.” He adds a fifth paragraph in which he pleads payment of the note.

We regard defendant’s answer with reference to the allegations of plaintiff’s peti tion as having the effect of a general denial insofar as his signature to the note is concerned. He has complied with the pleading and practice act (Act 300 of 1914), by answering each article of the petition seriatim, but he has gone no further than to say “Denied.” He did not specifically deny his signature. It has' been held that the denial must be express and specific and that even the denial of the execution of a note is not equivalent to - a denial of the signature.

Stockton vs. Truxton, 8 La. 224.

Ware vs. Elam, 8 Mar. (N. S.) 329.

Miller vs. Cohen, 1 La. 478.

'It has also been held that when the signature, not specifically denied, is proved, defendant is not cut off from other defenses.

Bennett vs. Allison, 2 La. 419.

Hyde vs. Brown, 5 La. 33.

Beach vs. Wagner, 19 La. 87.

Defendant’s answer being a mere general denial, admits the signature of the note.

Hyde vs. Brown, 5 La. 33.

Miller vs. Cohen, 1 La. 488.

Union Bank vs. Succn., 33 La. Ann. 301.

Miller vs. Whitfield, 16 La. Ann. 10.

Tesson vs. Gusman, 27 La. Ann. 267.

Our conclusion is that defendant did not by his answer cut himself off from urging his plea of payment.

ON THE MERITS

In paragraph five of defendant’s answer he says the note sued on “has long since been paid and Was paid before it came into the hands of the plaintiff herein and that plaintiff had full knowledge of this fact at the time he received said note.”

In view of the fact that .the note is made payable to plaintiff, to whom it 'was delivered when signed by defendant on January 16, 1920, the defense that the ndte was paid to the knowledge of plaintiff when he obtained possession of it seems somewhat remarkable to us.

Plaintiff testified that the note was executed and delivered to him by defendant in the Merchants and Farmers Bank in Junction City, Arkansas, and that he had possession of it all the time up to the date it was delivered to his attorney to be used in connection with this suit. This testimony is not disputed. Just how the note could have been paid when plaintiff came into possession of it when it Was shown that he got possession of it immediately after its execution, we are unable to understand. However, we think it very probable that the defense which was intended to be urged is that the original debt due Henderson, the plaintiff, by Alford, the defendant, was paid prior to the execution of the note in January, 1920. But that defense is not urged. He says this note was paid. According to our appreciation of the testimony, defendant has utterly failed to show that this note has been paid or that the original debt which he admits that he owed Henderson in 1916 was ever discharged.

Defendant as a witness admits that he signed the note sued on and says, when asked what the note was given for, “that note Was given for a car in 1916.” The note is dated January 16, 1920. Therefore what the defendant means, of course, is that the debt for which the note was given was for a car which he purchased back in 1916. He was then asked if it had been paid and he said it had. Being asked how he paid the note, he said: “I don’t know, I paid it about three times. I don’t know when I did quit paying it. In 1916 that note was given when — I got it at the Merchants and Farmers Bank, fixed up there —Mr. Henderson left there and I never could; I never could pay them; the more I' paid them the more I had to pay.”

He says he paid it again in 1919 and that he paid it the last time in 1920. On being asked Whether he paid the note with cash, other notes or collateral, he answered that he paid it with cash. (Tr. page 40.) Immediately after saying that he paid the note in cash, he stated (Tr. page 41), “The Merchants and Farmers Bank taken it up. I paid the bank and Mr. Henderson was going to -.” And he was asked: “When was that, Mr. Alford?” and he said: “1920, he was going to forward me the note from his house.” This part of his testimony must have reference to the note sued on, as it is dated January 16, 1920. Therefore his statement that he paid the note in cash has reference to the payments in 1917 and 1919 which he claims that he made, but he is positive that he paid it three times, and on being asked why he paid it three times he said: “I had the utmost confidence in Mr. Henderson.”

While defendant’s testimony as to when and how he paid the note is badly mixed, we think it reasonably clear that what he intends to plead is that he paid the Merchants and Farmers Bank, the amount of this debt and that the bank paid Henderson; for on page 42 of the transcript he says: “I paid the bank, that is all I could do; the bank paid Mr. Henderson.”

❖ * # *

“The bank paid Mr. Henderson in 1920.” On being asked if he knew the bank paid Mr. Henderson, he said: “I don’t know; I paid them; I afterwards paid them; I got that much confidence in them.”

“Q. Who did you ask?

“A. Mr. Murphey in the bank there.

“Q. You asked Mr. Murphey; Was Mr. Henderson in the bank at that time?”

“A. Yes. He was sitting right there.

“Q. You asked Mr. Murphey?

“A. I asked Mr. Murphey to take that thing off, I couldn’t ’ pay him.”

And further in his testimony he insists that the bank paid Henderson, and says (Tr. page 43):

“Why sure; no, sir; I got the bank to take it up, I paid the bank; that is all I can tell you.”
“Q. Did Mr. Henderson agree that the Merchants and Farmers Bank should take up this note?
“A. Sure, Mr. Henderson was sitting right there.
“Q. You had your agreement with whom?
“A. Mr. Murphey; I got him when he went into the business there to come out; when he come in there I told him' I couldn’t pay Mr. Henderson; I walked in; I give two mortgages on my property, nearly seven thousand dollars.”

This all took place in 1920, and, of course, after the execution of the note sued on, which is dated January 16, 1920. Thus it is clear that defendant does not claim that he paid Henderson personally but that he paid the bank and that the bank paid Henderson. We think it logical to conclude, therefore, from Alford’s own testimony that if the bank has not paid Henderson he has not been paid.

According to Alford’s testimony a Mr. Murphey is the only party who knew about the arrangement which he had made with the bank to take up the note and that Murphey was present when the conversation took place between Henderson and himself. It seems that several years prior to 1920 Henderson had been president of the Merchants and Farmers Bank of Junction City, Arkansas, and that Mr. Murphey had been cashier or teller. About the time of the transaction Henderson ceased to be president and Murphey took his place. Murphey was called as a witness by plaintiff for the sole purpose of proving the conventional rate of interest under the laws of the state of Arkansas. He was then cross-questioned, by counsel for defendant and was asked specifically if Alford had not had a complete settlement with his bank in January, 1920. He explained that he does not know what might have taken place about that time because Henderson looked after the notes. He says that after he took charge he found that Alford owed the bank a considerable amount represented by a note which Henderson claimed to be well secured and that on investigation he found that not more than ten per cent of the debt was secured and that he got Alford to execute a mortgage on his real estate “to. cover this note which was around $4000.00.” (Tr. page 31). This, he says, was in May, 1920. He says that Alford may have had a settlement with Henderson in January and he Was asked: “The mortgage note that Alford gave the Merchants and Farmers Bank in 1920, what did that cover?”

"A. That covered his tital indebtedness to the Merchants and Farmers Bank.”

And he says that from time to time Alford renewed his paper at the bank.

Murphey makes it plain, we think, that; in the early part of 1920 Alford owed the bank approximately $4000.00 and to secure that debt he executed' a mortgage on his real estate. In the year following Alford paid the' bank in full.

Murphey was asked (Tr. page, 38):

“Q. How much did he pay the Merchants and Farmers Bank?
“A. My recollection, something better than $4400.00.”

So we find that the $4000.00 debt which Alford got the bank to carry by providing security was all due the bank and was paid in 1921 to the bank. So that the bank had no funds of Alford’s with which to pay the Henderson debt.

Alford says that Murphey understood that the bank was to take up his note to Henderson and that the bank did take it up. But Murphey does not say that. If, indeed, Murphey did understand that and if, as a matter of fact, the bank did pay Henderson, why did not Alford prove that by Murphey? He was present during the trial and was called to the stand and tes? tified. But defendant’s counsel did not examine him on that point. We are warranted in concluding, under the well-established principle, that if Murphey had given testimony on that point it would have been against defendant; for as stated defendant 'says that Murphey was acquainted with the entire transaction, heard the conversation between himself and Henr derson as to the bank’s taking care of tbe Henderson debt; therefore Murphey, president of. the bank, was the one witness by whom the payment of this note could have been proved, if, indeed, it had been paid in the manner detailed by defendant himself. ■

It is not suggested that the $4000.00 which Mr. Murphey, the president of the bank, says covered the amount which Alford was due the bank in the early part 'of the year 1920 included the amount represented .by the note sued ón in this case, and if it' had been suggested we hold that such., a conclusion would not be warranted by the testimony in this case.

Having tendered the special plea' of payment, the burden Was on defendant to prove' it. His own explanation of the paymeht is that the bank paid the note for him. If it be true that the bank did make-the payment for him, undoubtedly the bank’s books would show that fact,' and Mr. Murphey, the president of the bank, who was familiar with the books and with this transaction, would be able to testify as to the payment.

The testimony makes it clear that in 1916 defendant purchased an automobile from plaintiff and that he gave his note for the price thereof or a part of it, and while he says he paid the note twice, once in 1917 and again in 1919, we are not impressed with his testimony. If he had paid it even once it does not look at all reasonable that he would have given his note for the same amount on January 16, 1920.

The testimony shows that defendant renewed his paper with the bank from time to time, the last time in the early part of 1920.. He evidently did the same With reference to the amount that he was due on the automobile, which he had purchased from Henderson in 1916. We think defendant has utterly failed to discharge the •burden laid upon him of proving paymént.

The note on its face provides for the payment of interest at ten per cent. It is an Arkansas contract and the proof shows that ten per cent is the conventional rate of interest in that state. The note also .provides for attorney’s fees at ten per cent.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the lower court be reversed, and set aside, and it is now ordered, adjudged and decreed that the plaintiff, Tom B. Henderson, do have judgment against and recover from the defendant, A. I. Alford, the sum of $760.00 with 10% interest thereon from January 16, 1920, until paid, and 10% attorney’s fees on the amount of principal and interest, together with all costs of this suit.

ON APPLICATION FOR REHEARING

CARVER, J.

Defendant’s counsel ask a rehearing, claiming that defendant testified positively that he had paid the note and that plaintiff’s testimony to the contrary should not be believed because he was successfully impeached.

We have re-examined the record and are confirmed in óur original opinion that neither defendant’s testimony nor the testimony of Murphey shows payment. Defendant does not even claim to have paid the note himself and - does not claim to know, of his own knowledge, that the bank paid it. His statement that the bank paid it is purely hearsay, derived, he says, from what Murphey told him. He says (page 15):

“Q. Now you know what the bank paid Mr. Henderson?
“A. I don’t know; I paid them, I after-wards paid them; I got that much confidence in them.
“Q. Who did you ask?
“A. Mr. Murphey in the bank thére.”
(Page 17)
“Q. How do you know they paid Mr. .Henderson?
“A. Well, I am just telling you what they told me they were going to do; I believe they would go ahead; We got some more witnesses here.”

But Murphey’s testimony does not show that the bank paid the note. On the contrary, the amount paid by defendant to the bank was about $4400.00, which just about covered what defendant owed the bank itself, with interest. Murphey says (pages 4 and 5):

“Q. In May, 1920, he executed a mortgage, did lie?
“A. T.o us, yes.
“Q. A little over four thousand dollars?
“A. My recollection it was.
“Q. The mortgage note that Mr. Alford gave the Merchants and Farmers Bank in May, 1920, what did that cover?
“A That covered his total indebtedness to the Merchants and Farmers Bank.”
(Page 9)
“Q. Mr. Murphey, you don’t know anything about this particular note sued on, or Mr. Henderson’s personal affairs and transactions with Mr. Alford, do you?
“A. No, I had no personal knowledge of it at that time. Now later this particular note, I knew this note existed later; Mr. Henderson proposed to sell me this note and later Mr. Alford said something to me about Mr. Henderson claiming a note against him. ' I wrote Mr. Henderson to know what he would take for the note, figuring I might get them together on a settlement some way, and his answer to me was it would be face value.”

Murphey further says (page 11):

“Q. How much did he (meaning defendant) pay the Merchants and Farmers Bank?
“A. My recollection, something better than $4400.00.”

Mr. Murphey would certainly not have given the testimony above quoted from page 9 if he had paid or knew the bank had paid the note in question.

Rehearing refused.


text:
    No. 1875
    Second Circuit Appeal
    L. S. MATTHEWS v. N. E. WILSON
    (March 17, 1925, Opinion and Decree.)

      (Syllabus 6y the Editor.)

    1. Louisiana Digest — Obligations—Par. 74, 76.
    Where a contract between the parties was not for any stipulated length of time or any stipulated quantity of timber and either party had the right to terminate it at will, neither party can recover damages for breach of contract.
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact not being manifestly erroneous is affirmed.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webstex*. Hon. Robert Robers, Jr., Judge.
    This is a ^uit on an open account. Defendant claims credits and damages in re-convention.
    There was judgment for plaintiff with small credits for defendant and dismissing defendant’s demands for damages.
    Defendant appealed.
    Judgment affirmed.
    Lee & Lindsey, of Minden, attorneys for plaintiff, appellee.
    L. K. Watkins, of Minden, attorney for defendant, appellant.
   CARVER, J.

Plaintiff sues defendant for $446.80, as follows:

Hauling six sets of derrick timbers at $30.00________ $180.00
Loading two cars at $12.50____________ 25.00
Hauling 14/18ths of a set of. derrick timbers at $30.00________________________ 23.34
Forty-six derrick sills, at $1.40____ ' 64.40
12,838 feet of standard rig timbers at. $12.00____________________________________________________ 154.06
Total __________________________________________________ $446.80

Defendant admits owing the first two items above mentioned; admits the hauling charged in the third item, but disputes liability for the reasons hereafter mentioned, admits getting sills from plaintiff’s land, but says there were only 42 at $1.00 instead of 46 at $1.40; and admits getting timber for derrick rigs but claims he got only 6,431 feet instead of 12,838 feet as charged by plaintiff.

He alleges, though, that plaintiff is indebted to him for various items of timber cut on plaintiff’s land and included in the amount charged in item five above because he was not permitted by plaintiff to haul same after cutting it.

He also claims credit as follows:

Loss of time of crew moving off plaintiff’s land____________________________________ $20.50
Loss of time of .team________________________ 90.00
Half of expenses of trip to Shreveport in an effort to collect money ____________________________________________________ 5.00
Items forming defendant’s batehelor outfit turned over to plaintiff 11.75
Check J. I. Gerrald________________________ 11.95

He also reconvenes for a large amount of damages which, he claims, he suffered by reason of plaintiff’s alleged breach of contract in stopping him from cutting on plaintiff's land and plaintiff’s refusal to haul any more.

The District Judge gave judgment in favor of plaintiff for $397..60, which was $49.20 less than plaintiff claimed.

Defendant has appealed devolutively.

We think plaintiff entitled to the $23.34 for hauling 14/18ths of a set of timbers, defendant’s only reason for denying liability being that plaintiff did not haul the other four pieces. We do not think this a good reason.

As to the last two items, the plaintiff’s claim aggregates $218.46 and defendant admits owing on those items $119.17 a-difference of $99.29.

We are not informed how the District Judge arrived at his conclusion but it was probably by allowing a credit of $11.75 for the batchelor’s outfit and then approximately splitting the difference between the plaintiff’s claim and that of the defendant.

We think the plaintiff entitled to $1.40. a set for the sills as claimed, the proof showing that the contract was that defendant should pay the market price and a man named Smith having operated in that vicinity and paid $1.40. Defendant’s claim' that this was a fictitiously boosted price, we think not proven by the evidence.

We do not think defendant entitled to credit for the Gerrald check. Matthews states that this was applied to another bill that Wilson owed him and this Wilson does not contradict. In allowing all plaintiff’s claim except $49.20 we are not prepared to say the District Judge, who saw and heard the witnesses, erred to the prejudice of the defendant in determining the disputed questions as to the number of the sills and the number of feet of standard rig timber.

Defendant’s claim for damages in our opinion is without merit, for several reasons.

The contract between the parties was not for any stipulated length of time or any stipulated quantity of timber. Under it either party had the right, we think, to terminate the contract at will. Besides, the defendant though requested several times to pay plaintiff what was due for timber and hauling failed to do so. The reason he gives, namely, that under his contract he was only to pay when he received pay was not good because he did make collections along, from his customers, which collections were applied to other purposes than paying plaintiff for his timber and services. Again, plaintiff testifies, and it is not. disputed, that after he ordered defendant to stop cutting timber and after he himself stopped hauling, he told defendant that he might have the timber remaining in the woods if he chose and that defendant did move a piece of it now and then.

On the whole, our opinion is that no injustice is done to the defendant by the judgment rendered below,, which is therefore affirmed.