author: JANVIER, J.

text:
    No. 13,254
    Orleans
    O’MALLEY v. WHITNEY CENTRAL NATL. BANK ET AL.
    (July 1, 1930. Opinion and Decree.)
    (October 20, 1930. Rehearing Refused.)
    (December 2, 1930. Writs of Certiorari and Review Refused by Supreme Court.)
    Chas. A. O’Niell, Jr., of New Orleans, attorney for plaintiff, appellant.
    St. Clair Adams, of New Orleans, attorney for Whitney Bank.
    E. M. Wallett, Jr., of New Orleans, attorney for Forrest C. Pendleton, Inc.
    Edward Rightor, of New Orleans, attorney for General Accident and Life Assurance Corp., Ltd.
   JANVIER, J.

Plaintiff, a painter employed by Frank J. Matthews -Company, Inc., painting contractors, -was .injured, while engaged in cleaning the walls, of an: elevator shaft in the office building.) of the Whitney-Central National Bank in this city. In order to do the work, the. employees 'Of the Matthews Company -wer'é instructed to stand on the .top of one of the elevators so that they might scrub as much of the wall as they could thus reach, after which, by slightly lowering the elevator,, a fresh surface would be accessible.

There was no dividing wall between the various elevator' shafts, and, as plaintiff leaned over into the adjoining shaft, a descending elevator struck him on the head; causing the injuries for which he now seeks to recover. ' .

The, insurers of his employer paid him compensation for the period of his disabil-. ity and, by intervention, claim, reimburse-: ment out of such sum as plaintiff may recover.

Forest C. Pendleton, Inc., is also made-a' defendant because it is alleged that thé descending elevator in the adjoining shaft was being operated by an employee of the Pendleton Company, which company was under contract with the Whitney-Central National Bank to furnish detective and watchmen’s service.

It is alleged that the bank was negligent, in that it allowed the elevator adjoining that on which petitioner was standing to be operated when - there was no necessity therefor and without notice or , warning to petitioner, and it is charged that the Pendleton Company is responsible because of the negligence of its employee in operating the said adjoining elevator..

The accident took place at about 3' o’clock in the morning, and it' is' contended by plaintiff that, since there were six elevators ■ on that side of the building, and since at that time in the early morning there was no necessity for more than one or two' cars to be in operation, other cars should' have been selected and the employees: should not have been .'permitted to use the one immediately adjoining that on which plaintiff was working.

Both déféndants contend that the negligence of plaintiff in leaning over into the adjoining shaft was the cause of the accident; that he had been several times warned against allowing his body or his head to protrude beyond the shaft in which he was working and that, in addition to the verbal warning, he should have noticed that the adjoining car had passed up and down several times; and that any normal, reasonable person would have knoWn' ■ that it was dangerous to allow ahy part of his body to protrude into the path of the adjoining elevator.

The Whitney-Central National Bank also contends that the petition sets forth no cause of action against it, and it, in fact, had nothing whatever to do with the affair; . since both the Matthews Company and Pendleton, Inc., were independent contractors, for whose actions the bank was not responsible.

We find it unnecessary to consider these other defenses, since the record convinces us that the proximate cause of the accident was the fact that O’Malley unnecessarily allowed his head to extend over into the pathway of the adjoining elevator, and that, even in the absence of verbal instructions, any prudent man • would not have done .what he did.

’ The evidence makes it quite certain that several times during the night the car which caused the injury had passed both up and down, and that plaintiff was, or should have been, cognizant of the fact that it was in operation.

He admitted that he had been instructed that it was not necessary to reach beyond a certain line,’ and that he did reach beyond the line in question is, of course, apparent from the fact that the accident occurred.

We think that the facts of this case bring it squarely within the doctrine announced in Wise v. Philadelphia, 239 Pa. 392, 86 A. 862, 863, 5 N. C. C. A. 85 (1913), in which the court said:

“Plaintiff’s husband, who was employed by a contractor, was killed while engaged in repairing an air cushion in an elevator shaft in a building owned by and in the charge of the city. While working in shaft No. 7, he allowed a part of his body to extend into shaft No. 8, where it was struck by a descending car. He had worked in shaft No. 7 several days, during all of which time the car in shaft No. 8 was in use. He knew it was in use at the time he was struck by it, because a_ few minutes before he had, at the request of the operator, adjusted the door of the car to make it work easier and had told the operator it was right and to go on and run the car It was not shown that there was negligence in operating the car, and it clearly appeared that the injury was caused by the want of care by the deceased in exposing himself to a manifest danger. A verdict might have been directed against the plaintiff on either ground, and there was no error in entering judgment non obstante veredicto for the defendant. The judgment is affirmed.”

Familiar as we are with the noise made by elevators at all times and particularly in the dead of night, it would be hard to understand why plaintiff did not hear the elevator approaching, were it not for the proof contained in his own testimony that, at times, he is practically entirely deaf. He said: “There is times I am deaf as a bat.”

That this condition was not generally-known, and that therefore other persons might assume that he was capable of hearing approaching danger, is also shown by the testimony of plaintiff himself in his remark:

“I am sure I didn’t tell him I am deaf. I don’t tell anybody that until they find it out.”

We find no fault in either defendant, but we quite agree with the conclusion reached by the trial Judge.

The judgment appealed from is affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 13,312
    Orleans
    TERREBONNE v. HUGER
    (November 17, 1930. Opinion and Decree.)
    Richard A. Dowling and Wm. R. Kinsella, attorneys for plaintiff, appellant.
    Bond, Curtis, Hall & Poster, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

The plaintiff in this case ■ is a traffic policeman.. He brings this suit against defendant, alleging that he was injured by reason of his having been struck by the defendant’s automobile while backing away from the curb on Canal street. Mrs. Huger, defendant, denies that her automobile struck plaintiff, but, whether plaintiff was struck by her automobile or not, there can be no recovery in this case upon the plaintiff’s version of the accident. Mrs. Huger, it appears, parked her car at an angle of 45 degrees, with her right wheel touching the curb on Canal street near the corner of Baronne. • The-plaintiff, being on duty as a traffic officer stationed at the corner of Baronne' and Canal streets, approached the defendant and informed her that she would not be allowed to park in that locality and must move on. According to his statement, he walked to the rear of her automobile and was injured by being jammed between her car, which was backing at the time, and anothér car, which was in the stream of traffic in the center of the street. Plaintiff admits that the only way in which Mrs. Huger could comply with his order was ■ by backing her car, since its wheels; were touching the curb, and he must have known that, in passing behind her car, after having instructed her to back, he placed himself in a position of danger. His conduct under the circumstances was negligent and contributed to the accident. The opinion of the trial judge was to this effect, and we are of the same opinion.

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

HIGGINS, J., takes no part.


author: HIGGINS, J.

text:
    No. 13,352
    Orleans
    WILLIAMS v. UNITY INDUSTRIAL LIFE INS. CO., INC.
    (October 20, 1930. Opinion and Decree.)
    (November 17, 1930. Rehearing Refused.)
    . Normann, McMahon & Breckwoldt, of New Orleans, attorney^ for plaintiff, appellee.
    Loys Charbonnet, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

The plaintiff, as beneficiary, sues the defendant, an industrial life insurance company, to recover the .sum of $300, the face value of a life insurance policy upon which this suit is brought. The defendant pleaded fraud, alleging:

“That plaintiff knowing that the insured, Lillie Desport, was suffering from an incurable disease, cancer of the c'ervix and chronic myocarditis, etc., with a short life expectancy, induced the insured to fraudulently conceal from defendant that she suffered from said disease which made her an undesirable risk and uninsurable.’’

There was judgment in favor of plaintiff as prayed for, and defendant has appealed.

The record shows that on the trial of the case the defendant sought to introduce oral and documentary evidence for the purpose- of showing misrepresentation by the assured and the plaintiff, as beneficiary, as to the condition of the assured’s health, before the issuance of the policy; and that counsel for the plaintiff objected to the introduction of such evidence on the ground that the written application was neither embodied in nor annexed to the policy, as required by Act No. 52 of 1906 as amended by Act No. 227 of 1916. The judge of the lower court sustained the objection and defendant reserved a bill of exception, annexing the written application to the bill as a part of it.

We are of the opinion that the ruling of the lower court was correct, because in an action brought by a beneficiary on a life policy, where the insurance company defends on the ground that the assured had, at the time of the issuance of the policy, represented herself to be in a good state of health, whereas in truth she was then suffering from an incurable disease, the defendant is not permitted to adduce any evidence of such misrepresentation other than the written application therefor, which must either be embodied in, or annexed to, the policy itself. Act No. 52 of 1906 as amended by Act No. 227 of 1916; Carroll v. Mutual Life Insurance Company of N. Y., 168 La. 953, 123 So. 638; Whitmeyer v. Liberty Ind. Life Ins. Co., 166 La. 328, 117 So. 268; Shuff v. Life & Casualty Ins. Co. of Tenn., 164 La. 741, 114 So. 637; Fisette v. Mutual Life Insurance Co., 162 La. 620, 110 So. 880; Palesi v. Mutual Life Ins. Co., 151 La. 405, 91 So. 818; Oglesby v. Life Ins. Co. of Va., 12 La. App. 311, 124 So. 551; Brennan v. National Life & Accident Ins. Co. (La. App.), 122 So. 147; Fisette v. Mutual Life Ins. Co., 4 La. App. 430; Langston v. U. S. National Life & Cas. Co., 4 La. App. 474; Vaughn v. Metropolitan Life Ins. Co., 3 La. App. 614.

Defendant also complains of the ruling of the lower court in refusing to allow it to show that the plaintiff and the assured deliberately misrepresented the state of the assured’s health at the time of the issuance of the policy upon the ground that the policy having been issued without a medical examination of the deceased, and the company or its agent having ample opportunity to observe the state of health of the assured, cannot claim a forfeiture 'of the policy on the grounds of misrepresentation, under the express provisions of Act No. 97 of 1908.

We are of the opinion that the ruling of the trial court was correct, because fraud on the part of the assured and beneficiary alleged to consist of deliberate misrepresentations as to the state of the assured’s health cannot be set up by a defendant insurance company, where the policy was issued without medical examination, and the company, or its agents, had ample opportunity of ascertaining the true state of health of the assured. Act No. 97 of 1908; Massachusetts Protective Association v. Ferguson, 168 La. 271, 121 So. 863; Shuff v. Life & Casualty Insurance Co., 164 La. 742, 114 So. 637; Brown v. Continental Casualty Co., 161 La. 229, 108 So. 464, 45 A. L. R. 1521; Oglesby v. Life Insurance Co. of Virginia, 12 La. App. 311, 124 So. 551; Polite v. National Acc. & Life Ins. Co., 9 La. App. 83, 118 So. 846; Pierce v. Liberty Industrial Life Ins. Co., 7 La. App. 626; Silver v. National Life & Acc. Ins. Co., 6 La. App. 95; Langston v. U. S. National Life & Cas. Co., 4 La. App. 474; Kilbourne v. Life & Casualty Ins. Co., 2 La. App. 275; James v. Community Burial Service, 5 La. App. 633, Orleans Court of Appeal.

For the reasons assigned, the judgment is affirmed.


author: WBSTERFIELD, J.

text:
    No. 13,358
    Orleans
    ADAMS v. FITGENSCHUE
    (November 17, 1930. Opinion and Decree.)
    St. Clair Adams, Jr., of New Orleans, attorney for plaintiff, appellee.

      Daniel A. McGovern, Jr., of New Orleans, attorney for defendant, appellant.
   WBSTERFIELD, J.

Plaintiff sues for $237.76 as damages to his Pierce-Arrow automobile, alleged to be due to an inter-sectional collision with the automobile of defendant. The version of the accident as given by plaintiff’s wife, who was driving the car at the time, supported by three other witnesses, is to the effect that plaintiff’s car was being slowly driven on Prytania street in the direction of Audubon Park; that, as she reached the intersection of .Cadiz street where a street car was stopped, obscuring her view of defendant’s Ford touring car, which was being driven on Cadiz street and approaching the intersection of Prytania street, going in the direction of the lake from the river, the Ford suddenly emerged from the rear of the street car, proceeding at a high rate of speed across Prytania street, which was a right of way street under the Traffic Ordinance 7490, C. C. S.; that the defendant, the driver of the Ford, did not stop or look before entering the intersection, but proceeded across, striking plaintiff’s automobile squarely in the middle, and damaging it to the extent claimed.

Against this testimony, supported, as we have said, by plaintiff’s wife and three other witnesses, the defendant alone testifies to a different set of circumstances which might or might not exculpate him from all blame, but, since the clear preponderance of the evidence is in favor of the plaintiff, we, like the trial judge, are of opinion that a case has been made out against defendant.

There is apparently no dispute as to quantum of damages; consequently, and for the reasons herein given, the judgment appealed from is affirmed.


text:
    No. 13,355
    Orleans
    SPAHN v. SHREWSBURY ICE & FEED CO., INC.
    (November 17, 1930. Opinion and Decree.)
    Williams & Williams, of New Orleans, attorneys for plaintiff, appellee.
    Spearing, McConnell & McClendon, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit for $154, the amount of damages alleged to have been, sustained by plaintiff’s automobile as the result of a collision with a truck belonging to defendant. The accident occurred in Jefferson parish at a point along the Jefferson highway where a byroad leading to the Illinois Central Railroad shops at Harahan, La., crosses the highway.

Plaintiff’s automobile, driven by her son, Louis Spahn, Jr., was proceeding along the byroad approaching the highway, when he observed the defendant’s truck rapidly nearing the point where the road intersected the highway. Being admonished by his father who, with a number of other employees of the Illinois Central Railroad, were passengers in plaintiff’s automobile, Spahn slackened his speed and stopped his car with its front wheels resting on the paved highway and the back wheels on a bridge which spans a ditch forming the approach to the highway at that point. The defendant’s truck, without abating its speed, which is conceded to have been 30 or 35 miles per hour, approached on the right-hand side of the highway, and, when almost upon plaintiff’s car, veered suddenly to the left, in an unsuccessful effort to avoid striking plaintiff's car, the front wheels of which were resting on the highway directly in its path.

Able counsel for the defendant contend that the road on which plaintiff’s ear approached the highway is an unfrequented lane and in no sense, a crossroad or cross street, and that the driver of the truck had no reason to expect the presence of plaintiff’s car; that he was driving on the right-hand side of the highway not in excess of the speed limit of 30 miles, and that persons driving along this unfrequented road entered the highway at their peril, citing Neddam Lumber Co. v. Baker, 6 La. App. 229, where it was held that one approaching a graveled highway from a private dirt road was charged with the duty of stopping and assuring himself “that no vehicle was approaching on the highway near enough at hand to reach the crossing before he could clear it.” See, also, Smith v. Interurban Transportation Co., 5 La. App. 704.

The authorities relied on by the defendant have no application here, for the reason that, whatever may have been the negligence of plaintiff’s son in driving upon the highway, concerning which we express no opinion, there was ample opportunity for the driver of defendant’s truck to have avoided the accident, because he testified that for five minutes before he reached the point where the accident occurred he had seen the plaintiff’s automobile, which had stopped and for some time was at rest with its fenders protruding only a short distance into the paved portion of the highway. It was only necessary for him to direct the course of his truck a little further to the left in order to clear the parked car of plaintiff which was stationary and in plain view.

Counsel for defendant do not concede that plaintiff’s car was at rest, but contend that it ran into defendant’s truck. However, since there are seven witnesses for plaintiff as against one, the driver, for the defendant, the evidence overwhelmingly preponderates to the contrary.

It is evident that the defendant’s driver had the last clear chance of avoiding the accident. We therefore find defendant responsible, and, since the quantum does not appear to be disputed, the judgment appealed from is, for the reasons herein assigned, affirmed.


text:
    No. 13,323
    Orleans
    SUTTON v. N. O. PUBLIC SERVICE, INC.
    (November 17, 1930. Opinion and Decree.)
    Normann, McMahon & Brecliwoldt, of New Orleans, attorneys for plaintiff, appellee.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

The widow of Benjamin Harrison Washington brings this suit for compensation for her husband’s death alleged to have been caused by injuries received during the course of and arising out of nis employment. Washington -was employed as a laborer by the defendant company and, at the time of his injury, was engaged with a number of other laborers in lifting heavy steel rails intended for use in connection with the repair of defendant’s street car tracks. In some manner the tongs with which the rails were lifted struck Washington in the stomach causing him to fall to the sidewalk, where he was observed to' expectorate a small quantity of blood. The accident happened on the 5th day of December, 1924, and Washington’s death occurred in the Charity Hospital, this city, on the 11th day of January, 1925, or 36 days later.

Washington is shown to have been in good health prior to the injury and to have progressively failed in health until the day of his death.

Defendant admits that Washington was injured in the manner set up in plaintiff’s petition, but alleges that the duration of his incapacity resulting from his injury did not exceed ten days for which it is responsible to the extent of $li.70 only. It denies that Washington’s death was in any respect due to his injury. According to the certificate of the Charity Hospital, “Typhoid Septicemia” was the cause of death. ■

There is some evidence in the rec- | ord tending to show that Washington did not die of typhoid, but the clear weight of the medical testimony is to the contrary, and we find as a fact that his death was due to this cause.

Was the typhoid caused by the accident, is the question for decision.

Plaintiff relies upon the well established doctrine that where it can be shown that an injury to a workman has aroused into activity a dormant disease the employer will be liable in compensation for the disability or death resulting from the disease. Behan v. John B. Honor Co., 143 La. 348, 78 So. 589, L.R.A. 1918F, 862.

This proposition is now beyond controversy and its application has resulted in the recovery by workmen or their dependents for the consequences of pneumonia. Weller v. Turnerized Roofing Co. et al., 14 La. App. 150, 129 South. 443; tuberculosis, Republic Iron & Steel Co. v. Markiowicz, 75 Ind. Ap. 57, 129 N. E. 710; diabetes, Connell v. U. S. Sheet & Window Glass Co., 2 La. App. 93, and syphillis, Durrett v. Woods, 155 La. 533, 99 So. 430; upon the ground that the trauma has awakened to vicious activity, dormant, if not innocuous bacteria, which cause or produce these, diseases in the human system. In a very recent case, Weller v. The Turnerized Roofing Co., supra, this court decided that the dependents of a workman who was injured about the thigh and hip as a result( of a fall from a roof and who subsequently contracted pneumonia could recover under the compensation law upon the ground that his fall was the proximate cause of the pneumonia which was the immediate cause of his death. In that case, like the other cases where recovery has been permitted for death due to dis- ' eases apparently disassociated with the accident, the theory is, as supported by medical experts, that the trauma weakens the resistance of an individual so as to permit of a successful attack by the bacilli ever present in the human system. The body, we are told, is the unconscious, unwilling and yet constant host of many destructive organisms which find entrance through its orifices and otherwise. The human throat and respiratory tract, for example, harbors the virulent pneumococcus germ, which is ever on the • alert awaiting a favorable opportunity to attack and overcome the normal defenses with which nature has, endowed us. When, as the result of exposure, chill or trauma, our vitality is lowered, a breach is made in our defensive wall and we' surrender to the enemy, suffering pneumonia and perhaps death.'

The same situation obtains with respect to the tuberculosis bacilli and to other infectious diseases characterized by a prolonged incubation. This theory now universally accepted reveals the human body as a perpetual battleground, the theatre of a dramatic conflict between the defensive forces of the body and the invading hosts of disease. The tide of battle ebbs and flows,, the contending forces in a perpetual conflict for possession of our bodies. The bacterial legions as if inspired by the thought of man’s mortality, after each repulse, rush eagerly to the fray until at last, when vigilance and valor will no longer serve to check or repulse the hosts of evil bacilli, when the last rampart has been carried, the black banner of disease, disaster and death is planted in the very citadel of our being.

Whether the typhoid bacillus may be classed with the pneumococcus germ and other bacterial parasites, in the respect that they are said to lie dormant in the human body until some favorable opportunity arises due to lowered vitality caused by trauma, for example, before attacking, is a question which, from the record before us, and the authorities presented by both sides, involves much doubt.

The testimony of the medical experts on this point is confusing and the medical text writers, from whom both sides have quoted freely, more so.

For example, in Cecil’s “A Text Book of Medicine” we are told that typhoid fever is not marked by a protracted incubation ■and develops rapidly in from five to fourteen days.

In “Typhoid Fever” by Dr. Frederick P. Gay, the view is expressed that the mere presence of the typhoid bacillus in the gastro-intestinal tract of man is not sufficient to cause typhoid fever and individuals are said to have harbored typhoid bacilli in their intestines indefinitely without having suffered with typhoid. We quote the following from page 64 of Dr. Gay’s treatise:

“The simple presence of typhoid bacilli in the intestine does not in itself constitute infection with the typhoid bacillus, as is evident from a consideration of those healthy and recovered carriers who show no symptoms of the disease. In other words, the organism may live ás a saprophyte (harmless germ) in the intestine for indefinite periods without initiating any disease process.”

To the same effect is Tice’s Practice of Medicine, where we find the following in Volume IV, page 481:

' “The ingestion (swallowing) of the typhoid bacillus and infection of the body by the organism are not synchronous. A longer or shorter interval may elapse between the entrance of the pathogenic organism into the intestinal tract and the actual invasion of them of the body tissues through some portal of entry. That this interval may be indefinitely prolonged is shown in the case of healthy carriers who may harbor the bacillus.”

Whether we may be guided by the medical authors referred to, and others which we have not mentioned, is not clear to us. In the first place, there is no evidence in the record as to the standing of these men in their profession and we have some doubt as to the propriety of our considering their views. Except for the fact that both sides have pressed their writings upon our attention and thus apparently consented to their consideration, we would be inclined to ignore them.

Since it is our opinion that the decision of this case must largely depend upon whether typhoid may be classed with pneumonia, syphillis, and other diseases of protracted incubation and latent virulence in order that it may be shown to be within or without the authority of the jurisprudence referred to and since it is a compensation case, we have concluded, in the interest of justice, to remand this case to the district court in order that medical testimony may be admitted for the purpose of further informing us concerning the characteristics of typhoid bacilli.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that this case be remanded to the Civil District Court for further proceedings according to law and consistent with the views herein expressed.


author: WEBB, J.

text:
    No. 2942
    Second Circuit
    SEGAL & VEST v. LITOVICH
    (November 7, 1930. Opinion and Decree.)
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    William H. Cook, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

In this action plaintiff alleged that it purchased 150 bales of cotton from defendant, which was warranted to be of a quality and type of samples displayed, at the price of 11% cents per pound, and that defendant agreed to accept the return of any of the cotton which was inferior to the type sold and refund the purchase price; that 56 bales of the cotton delivered were of inferior type, and that defendant agreed to accept the return of the cotton and refund the purchase price, and authorized plaintiff to draw for the amount, which was done, but that defendant failed to honor the drafts; and that after giving defendant notice that the cotton would be sold for his account, plaintiff sold the same in the open market at 9 cents per pound, the market price then prevailing, and credited defendant with the price received, leaving defendant indebted unto plaintiff in the sum of $712.16, difference between the amount paid by plaintiff and the price at which the cotton was sold, together with interest thereon, and storage charges and insurance, for which plaintiff demanded payment.

Defendant answered plaintiff’s allegations and alleged that the market price of the cotton had declined and that the difference between the price at which the cotton was sold by plaintiff and the price paid was due to the decline in the market value; and, on trial, judgment being rendered in favor of plaintiff- as demanded, defendant appeals.

There was not any assignment of errors, and defendant has not made any appearance in support of the appeal, and from our review of the record we find that the allegations of plaintiff are fully supported by the evidence, and that the record does not show that the market value of the cotton had declined, and, there being no error on the face of the record the judgment is affirmed.


text:
    No. 13,537
    Orleans
    MORTGAGE DISCOUNT CO., INC., v. TOLMAS
    (November 17, 1930. Opinion and Decree.)
    Chas. I. Denechaud and Ernest J. Robin, of New Orleans, attorneys for plaintiff, appellant.
    Sidney G. Roos, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Mortgage Discount Company, Inc., formerly holder of a mortgage note, brings this action against Mrs. Tolmas, seeking to obtain a deficiency judgment for the balance remaining unpaid after the foreclosure on the said note and the application to the debt due by the mortgagor of the proceeds of the sale at executory process.

It is not denied*that the mortgage note was executed and we find no serious controversy over the claim that at the foreclosure sale the property did not bring a suiri sufficient to pay the debt, nor does defendant, with any apparent confidence, contest the amount claimed as representing the deficiency. It is contended, however, that the mortgage note was given in partial payment for certain real estate purchased and that the purchase of the said real estate had been induced by fraudulent misrepresentations as to the kind of land and the development to be undertaken thereon and nearby.

' When an attempt was made to introduce evidence in support of the charges of fraud the district court sustained objections thereto, ruling that, as the Mortgage Discount Company, Inc., was a third holder of the mortgage note and had not sold the real estate in question to the mortgagor, its rights as holder could not be prejudiced by any fraudulent misrepresentations of others with reference to the property.

Such a ruling would, of course, have been correct, were it not for the fact that the answer alleges not only that the officials of Stafford, Derbes & Roy, Inc., vendors of the property, had made the fraudulent misrepresentations, but also that that corporation and Mortgage Discount Company, Inc., knew of the said fraud and, in effect, were parties thereto. The pertinent allegation contained in the answer reads as follows:

“Respondent further avers, upon belief, that the members of Stafford, Derbes & Roy are the stockholders and members of the Board of Directors of the Mortgage Discount Company, Incorporated, the plaintiff in this matter, and that the said corporation knew and it had cause to know of the fraudulent misrepresentation which had been made in connection, both, with the Bond for Deed on the property in question, and the act of sale which went through, and the note on which the said plaintiff is now attempting to sue; that the said plaintiff is now attempting to avail itself of a transaction which it knew at the time the Bond for Deed was passed, and which it continued to know and now knows was based on fraudulent misrepresentation; that none of the warranties herein referred to in connection with the said subdivision has ever been carried put and respondent, on information and belief, avers that they will never be carried out; that respondent is entitled to have the return to her of the note herein sued upon with reservation to her of her rights to sue for all moneys paid in to the said Stafford, Derbes & Roy, or their agents, and others on account of the said transaction.”

The above language and the answer read as a whole amount to a charge that there was a kind of conspiracy between the two concerns, which had for its object the fraudulent inducement of unsuspecting purchasers by the one concern and the transfer of the mortgage note or notes to the other to the end that that other might, as a supposed innocent third holder, bring suit without the possibility of being embarrassed by charges of fraud.

Of course, we do not mean to hold that the facts are as alleged by defendant, but, in view of the allegations, we are of the opinion that defendant should be given an opportunity to' introduce such evidence as may be available in support thereof.

Strange to say, although ail evidence in regard to the alleged fraud was excluded, the jury returned a verdict for defendant.

Counsel for the defendant in oral argument frankly admits that the judgment in favor of his client, unsupported by evidence, should not be affirmed, but urges us to remand the matter so that the evidence which was excluded may be heard. We will act accordingly.

The judgment appealed from is annulled, avoided and reversed and the matter is remanded to the district court for further proceedings according to law, and not inconsistent with the views herein expressed, costs of this appeal to be paid by appellee; all other costs to await final judgment.

HIGGINS, J., takes no part.


author: DREW, J.

text:
    No. 3416
    Second Circuit
    GRIGSBY v. THE TEXAS COMPANY
    (November 7, 1930. Opinion and Decree.)

      Julius T. Long, of Shreveport, attorney for plaintiff, appellee-appellant.
    Pugh, Grimmet & Boatner and J. N. Marcantel, of Shreveport, and Spearing & Mabry, of New Orleans, attorneys for defendant, appellee-appellant.
   DREW, J.

The plaintiff, who was injured while in the employ of defendant, brought suit under the Workmen’s Compensation Act (Act No. 20 of 1914 as amended) for $20 per week for 400 weeks, alleging that, on January 28, 1928, while working for defendant putting dressing on a belt in the engine room, the sleeve of his right arm was caught on a clamp of moving belt, pulling him into a clutch or wheel, cutting the right side of his head to the skull, seriously and permanently scarring and impairing the nerves and tissues of the right side of his face, seriously and permanently injuring his brain, the sight of his right eye, and the hearing in his left ear, and injuring his nerves generally to such an extent that he has permanently been made unable to do work of any reasonable character. He also claims the sum of $115.75 for hospital services.

Defendant admits the employment and ' the injury, but denies the extent of the injury claimed by plaintiff, and alleges that plaintiff was paid the sum of $34.28, covering the time he was disabled and until he was ready to go back to work, and alleging that it had paid plaintiff’s medical bill, and denying that there was any hospital bill owing. And defendant also denied that plaintiff was disabled for any length of time other than that for which he had been paid by defendant under the Workmen’s Compensation Act.

The lower court rendered judgment for plaintiff for $20 per week for 50 weeks, less the $34.28 compensation paid by defendant. From this judgment plaintiff appealed, 10 La. App. 208, 120 So. 777; there was no appeal by defendant. During the pendency of this appeal, the defendant voluntarily paid the plaintiff the amount of the judgment of the lower court, • which amount was accepted by plaintiff.

The defendant filed in this court a motion to dismiss the appeal for the reason that plaintiff had acquiesced in the judgment of the lower court by accepting the amount of the judgment. The case was remanded to the lower court to take testimony on the motion, and this testimony was taken and is now in the record.

This very question was passed on in the case of Cory v. Askew, by the Supreme Court of this state, in reviewing a decision of this court, as reported in 169 La. 479, 125 So. 455, in which the court said:

“In proceeding by employee under Employers’ Liability Act (Act No. 20 of 1914, as amended) for compensation for 400 weeks, executing judgment and collecting compensation awarded employee for five weeks held not an acquiescence in judgment precluding recovery of balance of sum sued for, since Compensation Act by specific provision should be liberally interpreted and applied favorably to injured employee suing for compensation for injuries received in course of his employment.”

And this court held the same thing in the case of Glover v. Washington-Youree Hotel Co., 12 La. App. 110, 125 So. 455.

See, also Bryan v. Louisiana Oil Refining Corporation, 2 La. App. 494.

In this case there was no execution of the judgment of the lower court by plaintiff, but, on the contrary, the judgment was voluntarily paid by the defendant.

The motion to dismiss the appeal is therefore overruled.

ON THE MERITS

There is no dispute as to the manner in which the accident occurred, and the only controversy is as to the extent of the injuries received by plaintiff. Plaintiff was knocked unconscious for a few minutes, and received four cuts on the face and a severe cut on the head just above the light ear. At the time blood flowed from the ear and nose, although the nose was not injured. At the time of his discharge by the doctor employed by defendant, plaintiff was suffering with pains in his head. His face bears four scars, and since the accident he has a constant twitching in the right side of his face that is quite annoying. The vision in his right eye is greatly impaired, and the hearing in the right ear is impaired to some extent. Plaintiff testified that since the accident he has attempted to do work in his garden, but that when he gets hot he becomes dizzy and has severe pains in his head. There is no dispute about the sight of the eye being greatly impaired at the time of the trial. However, there is much conflict in the testimony as to the cause of the impairment. The sears on plaintiff’s face mar his appearance, and, as one witness described it, make him look like a tough and fighter, and one not knowing the circumstances might think he had been cut in the face in an affray.

The defendant in its brief to the lower court said that plaintiff’s case falls under the provisions of section 8(d), paragraph 16 (Act No. 85 of 1926), and we fully agree with that statement. The lower court, we are sure, found that the case fell under that section of the Workmen’s Compensation Act. However, we are forced to disagree with the court’s interpretation of that section.

Section 8(d), paragraph 16, reads as follows:

“In cases not falling within any of the provisions already made where the employee is seriously permanently disfigured about the face or head * * * the Court may allow such compensation as is reasonable and as is in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-five per centum of wages during one hundred weeks.”

Interpreting a similar provision in Act No. 247 of 1920, this court said:

“The judgment of the lower court allowed plaintiff $18.00 per week for 20 weeks. In allowing compensation for only 20 weeks the judge of the lower court overlooked the above quoted provisions of the act to the effect that there should be compensation ‘during 100 weeks.’ Under that provision of the statute the court has no discretion as to the length of time over or during which compensation shall be allowed, its discretion being limited to the fixing of the per centum of the weekly wages to be allowed, provided the same does not exceed 60 per centum thereof.” Jones v. General Accident, etc., Corp., 1 La. App. 88.

In the case of Garr v. Wyatt Lumber Co., 147 La. 689, 85 So. 640, the Supreme Court of this state, in interpreting a like section under Act No. 38 of 1918, being subsection (e) of section 8 of that statute, said:

“If the amount of compensation should have been measured by subsection (e) of section 8 of the statute, the court should have determined only the rate of wages per week (not exceeding 55 per cent, of the weekly wages of the employee), and should have allowed the amount so fixed or determined for the entire period of 100 weeks. Subsection (e) fixes definitely the period of payment of compensation at 100 weeks, and limits the discretion of the judge, as to the rate that he may allow, to 55 per cent: of the weekly wages that the injured employee had been earning.”

We have no discretion as to the length of time for which compensation shall be allowed, as that is definitely fixed by the statute.

The judge of the - lower court saw and observed the plaintiff and for that reason was in a better position to fix the quantum of the weekly compensation to be allowed than we are. The plaintiff was earning at the time of the accident $35 per week. The lower court awarded him compensation in the sum of $20 per week, which is less than 65 per cent of his weekly wages, and we are not disposed to disturb his finding in that respect. The defendant has not answered the appeal and asked for a reduction in the amount of the weekly award but has acquiesced in the judgment of the lower court by paying it in full.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to allow plaintiff compensation in the sum of $20 per week during a period of 100 weeks, less the amount of $34.28 paid by defendant to plaintiff as compensation, with due credit for the amount of the judgment paid by defendant pending the appeal; and, as thus amended, the judgment of the lower court is affirmed.


text:
    No. 13,536
    Orleans
    SCHNECKENBERGER v. JOHN BONURA & CO., INC.
    (November 17, 1930. Opinion and Decree.)

      John E. Fleury, of New Orleans, attorney for plaintiff, appellee.
    Arthur B. Leopold, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

This is a suit to enjoin execution under a judgment obtained by default. The allegations are that neither the plaintiff in injunction nor his attorney was present when the judgment in the original suit was obtained, and that their absence resulted from the fact that an agreement had been entered into between counsel for plaintiff and counsel for defendant in that suit, to the effect that counsel for plaintiff would notify, counsel for defendant of the fixing of the case for trial, and that no such notice was given. It is alleged in this suit that the breach of that agreement constitutes such ill practice as is contemplated by article 607 of our Code of Practice.

On the trial of tne rule for the preliminary injunction, the court below held that the allegations of the petition presented a cause of action, and that the breach of such an agreement between counsel constituted ill practice and entitled the party now complaining to an injunction preventing execution under the judgment.

It is argued on behalf of defendant in injunction that there was no fraud alleged in connection with the breach of the agreement, and that, under article 607 of the Code of Practice, it is contemplated that ill practice must he accompanied by fraud in order to entitle the complaining party to an annulment of the judgment or to an injunction against the execution thereof. We do not so construe the article nor do we so read the decisions pertinent thereto. In the case of Coltraro v. Chotin, I La. App. 628, we find thac a judgment was annulled on the allegation that no notice of trial was given. Here, in addition to the lack of notice, we find the allegation that there was a special agreement that notice would be given.

It is further contended that failure to receive notice, or breach of an agreement to give notice, is not one of the causes specified in Code of Practice, art. 607, as entitling the complaining party to an annulment of the judgment. It has many times been held, however, that the causes specified in that article of the Code of Practice are merely illustrative and are not exclusive. Tarver v. Quinn, 149 La. 368, 89 So. 216; Succession of Gilmore, 157 La. 130, 102 So. 94; Miller v. Miller, 156 La. 46, 100 So. 45; Swain v. Sampson, 6 La. Ann. 800; Norris v. Fristoe, 3 La. Ann. 646; Coltraro v. Chotin, supra.

In fairness to counsel now representing defendant in injunction let us say that it is not alleged that the agreement as to notice was made with him, but it is alleged that it was made with his associate counsel, who had represented plaintiff in the original suit from the time that suit was filed, present counsel having associated himself in the trial of the case later.

To the petition for injunction defendant in injunction has also filed a plea of res judicata. This plea grows out of the following facts:

After the original judgment was rendered and became final execution was attempted thereunder, and thereupon a suit was filed in the district court of the parish of Jefferson seeking an annulment of the judgment referred to. • In that petition for annulment the only allegation made was that no notice of trial had been given. There was no allegation such as there is in the present suit to the effect that there had been an agreement that such notice should be given. On an exception of no cause of action the district court dismissed the suit for annulment, holding that there were insufficient allegations in the petition to set forth a cause of action. The petition which is now before us for injunction contains many additional allegations and presents a cause of action which does not seem to have been set forth in the first suit for annulment. Therefore, the plea of res judicata is not well founded, since the judgment in the first suit amounted to no more than a judgment of non-suit. As was said in Laenger v. Laenger, 138 La. 532, 70 So. 501, 503:
“A judgment sustaining an exception of no cause of action, oecause of the plaintiff’s omission of a necessary allegation is not a bar, to another suit on sufficient allegations. See Hart. v. Bowie, 34 La. Ann. 326; Succession of Herber, 119 La. 1064, 44 So. 888; New York Mercantile Co. v. W. M. Cady Lumber Co., 133 La. 729, 63 So. 304; Carolina Portland Cement Co. v. Southern Wood Distillates & Fiber Co., 137 La. 469, 68 So. 831.”

See, also, Ducre v. Milner, 169 La. 819, 126 So. 72, 73, in which the Supreme Court said:

‘‘It would be illogical to hold that a judgment sustaining an exception of no cause of action because of the failure of the plaintiff to make a certain necessary allegation in his petition can be the basis for a plea of 'res judicata in bar of a subsequent suit in which the plaintiff does make the allegation necessary to disclose a cause of action. It is only when the petition in the first suit contains such allegations or judicial admissions as to show affirmatively that the plaintiff has not a cause or right of action that the judgment rejecting his demand is a bar to a repetition of the demand in another suit.”

It is therefore ordered, adjudged and decreed that the judgment appealed from be, and it is, affirmed.

HIGGINS, J., takes no part.


text:
    No. 13,450
    Orleans
    GARMA v. GALMICHE
    (November 17, 1930. Opinion and Decree.)

      Oliver S. Livaudais, of New Orleans, attorney for plaintiff, appellant.
    Leander H. Perez, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Anthony Garma, accompanied by his wife, was driving his Essex automobile along the New Orléans Fort Jackson Highway in the direction of New Orleans on Monday, November 7, 1929. At about 5 o’clock, when he had reached a point near Sunrise, and when passing a garage belonging to Joseph Galmiche, a collision occurred between the Chevrolet coupe of Galmiche and the Essex automobile of Garma, causing damage to Garma’s ear which, it is claimed, amounted to $50. After the accident, Joseph Galmiche, who was driving the Chevrolet coupe at the time of the collision, struck Anthony Gar-ma on the side of the head, causing blood to flow from the wound.

Garma brings this suit for $5,050, $50 for damage to the automobile and $5,000 for pain and suffering, mortification, humiliation, and mental anguish.

There was judgment in favor of defendant dismissing plaintiff’s suit, and plaintiff has appealed.

Garma, whose testimony is supported by his wife and that of a colored woman living in the neighborhood, claims that he was driving along the highway, and that when he reached Galmiche’s residence, the Chevrolet was backed out of the garage and across the roadway, causing the collision and damage. That after the collision he inquired of Galmiche as to who would pay for the damage to his car and was told “if you want me to pay wait until I get out of this automobile and I will pay you right now.’’ Whereupon he (Garma) got out of his car, and without more ado, was struck violently on the forehead by Galmiche.

On the other hand, Galmiche’s version of the accident, supported by three or four members of his family, as well as by a “girl friend” who was in his car at the time, is to the effect that the Galmiche car was standing still along the right-hand side of the highway and was run into by the Garma car; that after the accident Garma approached Galmiche demanding payment for damages to his car and threatened to throw Galmiche in the canal, his attitude being menacing and indicative of a purpose to do so.

We have read the voluminous record with care and with able counsel’s earnest assertion of error in the judgment appealed from in mind, but we find that the plaintiff, with the burden of establishing his case by a preponderance of the evidence, is confronted by an overwhelming weight of testimony the other way. It is true that nearly all of defendant’s witnesses are related to him, but it is also true that the main witness for the plaintiff is his wife; there being but one other witness supporting his cause. In this situation there i3 nothing for this court to do but to accept the version of the accident as given by defendant and his witnesses, as did the judge of the trial court. With the facts as thus established, the case comes squarely within the authorities cited by us in Martin Di Giovani v. Brodtman, 14 La. App. 49, 128 So. 665, wliere it was held that the aggressor in a case of this kind could not recover.

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

HIGGINS, J., takes no part.


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    No. 3878
    Second Circuit
    DUPUY ET AL. v. PHILLIPS ET AL.
    (November 7, 1930. Opinion and Decree.)
    L. K. Watkins, of Minden, attorney for plaintiffs, appellants.
    Stewart & Stewart, of Minden, attorneys for E. T. McGovern.
   DREW, J.

The judgment in this case was rendered on May 23, 1930, and an order granted in open court for appeal and the amount of bond, both suspensive and devolutive, fixed by the court, the return day being fixed for June 16, 1930. On May 29, 1930, the appeal bond was filed with the clerk of the district court, and on June 18, 1930, the $5 deposit necessary to accompany the appeal was given to the clerk of the district court. The record was ready to be forwarded to this court on that day, but, due to the office of the express company being closed, it was not forwarded until the following day, which was the last day of grace.

The train service from Minden to Shreveport is double daily, and for some unaccountable reason the record did not reach this court until the 20th of June, one day after the three days of grace allowed, and was filed in this court on that date.

Appellee has filed in this court a motion to dismiss the appeal, for the reason that the appeal was not lodged in this court until after the expiration of the return day.

The following certificate appears in the record and is signed by the chief deputy clerk of the Twenty-Sixth district court, Webster parish, La.:

“I hereby certify, under my official signature and seal of office that in the above entitled case, bond for suspensive appeal was filed on the 29th day of May, 1930, and orders for the record to be made up for the appeal were given by attorneys for the appellants.
“There was some delay in finding the different suits to make up the record in this case, but the work was completed on the 18th day of June in ample time for the transcript to reach Shreveport where the Court of Appeals held its sessions before the legal delays for appeal expired. The attorneys for the appellants were notified of the completion of' the record and they immediately deposited $5.00 for cost of appeal and gave orders for the record to be forwarded immediately to the Clerk of the Court of Appeal, at Shreveport, Louisiana.
“I further certify that the record was carried to the Express office to be expressed on the 18th of June, but the office was closed for some unknown reason and was not forwarded until the 19th, but the attorneys for the appellants were given no notice whatever of this unforeseen delay. The deposit of $5.00 to pay cost of Court of Appeals was forwarded at the same time in a check to the Clerk of the Court of Appeals, which check duly paid and can-celled is hereto annexed as a part of jthis certificate. The Clerk of the Court of Appeals gave no notice to the Clerk of this Court ’ or any of his deputies that the record or the deposit for cost had not been received by him, and the first notice that the Clerk or any of his deputies had that the record had not been filed within legal delays for appeál came through the attorneys for the appellants who had a letter dated September 19, 1930, stating that the motion to dismiss the appeal would be tried when Court met the first day of October, 1930.
“Signed officially this the 25th day of September, 1930.
“W. C. McKinney, Chief Deputy,
“Clerk of 26th District Court, Webster
Parish, Louisiana.”

The facts disclosed by the record and the above certificate clearly show that the appellants have done all the law required in order to perfect their appeal.

Act No. 32 of 1910, reads as follows:

“Be it enacted by the General Assembly of the State of Louisiana, That the respective Clerks of the .District Courts throughout the State, those of the Parish, of Orleans excepted, shall, whenever advance deposits for costs of appeal to Courts of Appeal have been made with them, transmit, with the records in the appealed cases, to the Clerks of the Courts of Appeal, the said advanced deposits.”

The deposit was made within the delay granted for hppeal and no objection can be made to that. It is the duty of the clerk of the district court to return the record into the Court of Appeal within the return day, and his failure to do so cannot be imputed to the appellant. However, a different rule is applicable in regard to appeal to the Supreme Court.

The Supreme Court in the case of Stock-bridge v. Martin, reported in 162 La. 601, 110 So. 828, 829, has passed directly on this point, and we quote from that decision:

“Article 7, sec. 27, Constitution of 1921, provides that the rules of practice regulating appeals and proceedings in the Supreme Court shall apply to appeals and proceedings in the Courts of Appeal so far as they may be applicable, and it further provided that all cases on appeal to the Courts of Appeal shall be tried on the original records, pleadings, and evidence.
“The Court of Appeal of the Second circuit adopted a rule providing the method of preparing the records by the clerks of the district court and directed that such original records, as made up, should be sent to the Court of Appeal, by the clerk of the district court, in time to be filed in that court on or before the return day.
“Under the above rule and the provision requiring cases to be tried on the original record as made up in the trial court, it is manifest that the rule which prevails in the Supreme Court with regard to the abandonment of appeal by failure of the appellant to file the transcript in time is not applicable and should not be enforced against an appellant in an appeal to the Court of Appeal, where the clerk of the court fails to transmit the record to the Court of Appeal on or before the return day.
“In appeals to the Supreme Court, the appellant has control over the transcript. The transcript is made up §,t his request and is paid for by him, and it is his duty to see that such transcript is filed in this court within the legal delay.
“If he fails to do so, the presumption is conclusive against him that he has abandoned his appeal.
“This cannot be true with respect to appeals to the Court of Appeal. The appellant has no control over the record.
“That record is a part of the archives of the court and is under the control of the clerk until delivered to the clerk of the Court of Appeal. The duty of filing the record with the Court of Appeal is imposed upon the clerk of the district court and not upon the appellant, and the failure of the clerk to perform that duty cannot be imputed to the appellant.
“The appellant in this ease did everything that was expected or required of.him in the perfection of his appeal. He could not know in advance that the clerk would not transmit the record before the expiration of the return day, and hence was without a legal remedy to force the clerk to perform the duty required of him in transmitting the record to the appellate court.
“To apply the rule of this court to the Courts of Appeal would be to penalize an appellant by the loss of his appeal for the omission and neglect of the clerk of court, for which the appellant was not responsible and over which he had no control."

The above decision fully covers all questions raised in the motion to dismiss the appeal now before us.

It is therefore ordered, adjudged, and decreed that the motion to dismiss the appeal is overruled.


text:
    No. 3898
    Second Circuit
    JOHNSON v. OIL CITY BANK
    (November 7, 1930. Opinion and Decree.)
    R. D. Fuller, of Shreveport, attorney for plaintiff, appellant.
    Cook & Cook, of Shreveport, attorneys for defendant, appellee.
   DREW, J.

This case was tried in the district court of Caddo parish. "On May 10, 1930, judgment was rendered rejecting the demands of the plaintiff. The judgment was signed on May 21, 1930, and on June 4th following, motion for devolutive appeal was made and granted and made returnable to the Circuit Court of Appeal for the Second Circuit, at Shreveport, La. The return day was fixed for July 7, 1930. On July 2, 1930, the appeal bond was filed with the clerk of the district court, and he forwarded the record to the clerk of court of the Circuit Court of Appeal, in accordance with his duties under the law. The record reached this court within the delays allowed by law, but was not filed by the clerk of this court for the reason that the deposit for the costs of appeal was not made by appellant.

On July 18th, eight days after the legal delays for perfecting the appeal had elapsed, the appellee deposited the costs for appeal with the clerk of this court and filed a motion to have the appeal dismissed for failure of the appellant to lodge same here within the legal delays allowed by law. The case is before us oh this motion to dismiss.

Section 28 of article 7 of the Constitution of Louisiana 1921 provides that the costs of appeal of any case appealed to the Circuit Court of Appeal for either the First or Second Circuit shall not exceed $5. Under the rules of this court, the cost of appeal in all cases is fixed at $5 and same is required to be deposited with the clerk of this court on or before the filing of the transcript in this court. Act No. 32 of 1910 authorizes the costs of appeal to be filed either with the clerk of this court or deposited with the district clerk of the parish from which the appeal is taken, and, in that instance, 'makes it the duty of the district clerk to forward same to the clerk of this court at the time , of forwarding the transcript of appeal.

In this case, the appellant did not deposit the costs of appeal with either the clerk of the district court or the clerk of this court, and consequently his appeal was never filed or returned into this court.

The appellee under authority of articles 589 and 590 of the Code of Practice had the appeal returned into this court by paying the appeal costs to the clerk of this court and then filed motion for its dismissal. We think the appellee has followed the letter of the law, and that his motion to dismiss should be sustained.

Appellant contends that he complied with all other duties imposed upon him to perfect his appeal and that it should not be dismissed for his failure or neglect to make the necessary deposit for costs of appeal. If his contention was upheld, it would be possible for one who has lost a case in the lower court to ask for orders of appeal, give appeal bond, and have the clerk of the district court forward the transcript to this court, never make his deposit for costs of appeal, and, in that manner, indefinitely postpone the execution of the judgment, unless the appellee should pay the appeal costs and have the appeal lodged in this court. That would impose upon ■the appellee the burden of perfecting the appeal for appellant, which was never intended.

The appellant has failed to return the transcript of appeal into this court within the legal delays allowed by law, and his appeal will have to be dismissed.

It is therefore ordered, adjudged, and decreed that the appeal in this case is dismissed, with all costs.


author: ODOM, J.

text:
    No. 3666
    Second Circuit
    SMITHSON v. JONES ET AL.
    (November 7, 1930. Opinion and Decree.)
    Bryan E. Bush, of Shreveport, attorney for plaintiff, appellee.
    J. Fair Hardin, of Shreveport, attorney for defendants, appellants.
   ODOM, J.

This is a suit on an open account which is not disputed. The only issue raised in the lower court and the only one involved here is whether the defendant J. N. Jones is liable for the debt. His defense is that the debt was created by his wife while engaged in a separate business with which he had no connection, and that, under Act No. 132 of 1926, authorizing married women to enter into contracts and bind themselves relating to their separate and paraphernal property, without the authorization of their husbands, and article 2334 of the Civil Code (as amended by Act No. 186 of 1920), making the wife’s earnings and property purchased with all funds thus derived “when carrying on a business, trade, occupation or industry separate from her husband” her separate property, the debt here involved is her debt and not a debt of the community, and she alone is bound.

Under the facts disclosed, we think defendant is liable. It is admitted that the defendant J. N. Jones and his wife were married > in Caddo parish, this state, and that, from the date of their marriage down to the present time, they have lived together as husband and wife under the regime of community of acquets and gains. Mrs. Jones brought no property or funds into the marriage, nor has she acquired any during the marriage, with separate funds, by inheritance or by donation made to her particularly. Civ. Code, art. 2334. Back in 1922 or 1923, the defendant J. N. Jones established and began to run a cafe in Mooringsport, Caddo parish, and continued to operate it in his own name as the “Jones’ Cafe” until 1926. He purchased all the equipment and fixtures, and there is no contention that up to 1926 it was not his business, although his wife was, during this time, in active charge thereof. She s'tayed in the cafe, made the purchases, and paid the bills with the funds arising from its operation.

In 1926, Mrs. Jones personally began negotiations for the lease of another building, with the view of changing the location of the cafe, but pending these negotiations, Mr. Jones purchased the building which Mrs. Jones desired to lease. Admittedly, this property fell into and became part of the community. Immediately following the purchase of the building, the cafe, including the furnishings and fixtures previously purchased and then owned by Mr. Jones or the community, was moved into it. So that at that time all the property, the building, and all equipment used in connection with the business, was community property and unquestionably the business itself belonged to the community. There is no denial of that. But, when they moved to the new location, Mrs. Jones, presumably with her husband’s consent had painted on the front the sign, “Mrs. Jones’ Cafe,” whereas pri- or to that time the sign had read, “Jones’ Cafe.” There was no change in the management, so far as appearances indicated. Mrs. Jones stayed in the cafe, remained in charge of it, purchased supplies, and paid the bills with funds arising from its operation. All purchases when not paid for in cash were charged to “Mrs. Jones’ Cafe.” The items making up plaintiff’s account were all for supplies used in the cafe, and were charged to “Mrs. Jones’ Cafe,’’ and plaintiff said, when questioned, that she expected Mrs. Jones to pay the account, as she was in active charge, but she assumed that the business belonged to the community, or, as she expressed it, to both.

As stated, the business was established by the defendant J. N. Jones, and without question remained his until 1926. The only testimony adduced by defendant tending to show that there was any change in the ownership of the business after that date is that which shows that the name was changed by Mrs. Jones from “Jones’ Cafe” I to “Mrs. Jones’ Cafe,” and the testimony of Mr. Jones that he had nothing to do with its management, and that he had never gotten anything out of it. Mr. Jones was called by plaintiff on cross-examination, and later took the stand in his own behalf, but gave no testimony tending to show that there was any agreement or understanding between him and his wife that there was to be any change in the ownership of the business or that the wife was to launch out into business for herself, and it is proved that the public had no notice of even intimation that there had been any change. So far as the. active management was concerned, there was no change. Mrs. Jones was in active charge from 1923 down to, the date of this suit. During all this while, Jones himself was operator for the Kansas City Southern Railroad and was on duty from 4 o’clock in the afternoon to midnight; while he was off duty, he was in and about the cafe, ate there, went behind the counters and helped out during rush hours, and occasionally went into the cash drawer. People who worked in the cafe prior to and after 1926 saw no change. One witness testified that he heard defendant tell his wife after this suit was filed that she had better get out “while going was good,” and that he would put some one in her place who would manage it differently. Defendant denies that he told her that, but admits that he told plaintiff that the cafe would have been sold and all debts paid if his wife had not blocked the deal by demanding all cash; and he admits also that on one occasion he went to the plaintiff to get the bills for goods sold to the cafe, as he needed them in making out his income tax return.

Our conclusion is that the business under the name of “Mrs. Jones’ Cafe,” was a continuation of the original one established by defendant in 1923, and that it was not the separate enterprise of Mrs. Jones, but belonged to the community. It follows that the debt sought to be enforced is a community debt, and that this suit was properly brought against J. N. Jones, who is head and master thereof.

The judgment appealed from is accordingly affirmed, with all costs.


text:
    No. 3783
    Second Circuit
    CHAPMAN v. PEAVY-WILSON LUMBER COMPANY
    (November 7, 1930. Opinion and Decree.)
    George T. McSween, of Shreveport, attorney for plaintiff, appellant.
    John B. Files, of Shreveport, attorney for defendant, appellee.
   WEBB, J.

This suit was instituted to recover compensation under the Employers’ Liability Statute (Act No. 20 of 1914, as amended).

Plaintiff alleged that, on the 10th day of December, 1928, while in the course of his employment with, defendant and engaged in carrying lumber over a tram or boardwalk about eight inches in width, he lost his balance and fell astride of the walk, impairing one of his testicles, which had rendered it necessary to remove the gland, and had resulted in permanently totally disabling him to do work of any reasonable character; and he prayed for judgment on the basis of permanent total disability, and for an additional amount for medical fees.

Defendant admitted that plaintiff was employed by it on the date of the alleged accident and otherwise denied plaintiff’s allegations; and plaintiff appeals from a judgment rejecting his demands.

Appellant does not contend here that the alleged injury had resulted in disabling him to do work of any reasonable character, but he urges that the evidence established that he sustained an accidental injury of one of his testicles which rendered it necessary to remove same, and that compensation. should be allowed for 100 weeks under the provisions of paragraph 16, clause (d), subsection 1, section 8, of the statute (Act No. 242 of 1918), and for the period he was disabled following the removal of the gland, and for a reasonable medical fee; while defendant and appellee urges that the evidence failed to establish that plaintiff had sustained any accident at the time alleged which had resulted in injury to his testicle, and, if so, that the loss of one of the testicles is not compensable under the statute.

The evidence introduced on behalf of plaintiff was his statement that on the date alleged an accident had occurred in the manner alleged, but that he had continued to work, and did not make any complaint until the injured gland became swollen, about December 26, 1928, when he advised the foreman and a physician representing the defendant of the accident and injury, and the testimony of the physicians who operated on plaintiff on the 26th eof January, 1929, at the Charity Hospital, removing one of his testicles, who stated that plaintiff had “orchitis,” a disease of the testes, which may result from a venereal disease, or from an injury; while, on behalf of defendant, evidence was offered showing that plaintiff had not complained to any of his fellow workmen of having sustained an accident, and the testimony of the foreman and physician whom plaintiff claimed to have advised of the alleged accident and injury, who denied that plaintiff had made any such complaint; and. further evidence was offered showing that plaintiff had a venereal disease which had affected his testes, of which he had complained for many months prior to the alleged accident.

The mere fact that plaintiff did not advise anyone of the alleged accident may not have been material, and, as suggested by counsel, would have been of little significance if plaintiff did not regard the injury as serious, but the fact that plaintiff said he had advised the foreman and physician of the accident, which was denied by them, tends to affect his credibility. However, even though it be conceded that plaintiff sustained an accident, his failure to advise the physician of it indicates that he did not regard the accident as the cause of his condition at the time he consulted the physician; and the evidence showing that plaintiff had suffered with a venereal disease which had affected his testes prior to the alleged accident, and that the condition apparently existing at the time plaintiff consulted the physician was the same as had existed prior to the accident, tends to support the conclusion that the accident was not the cause of the condition.

Aside from this, however, the evidence ' established that the disease “orchitis” may have resulted from the venereal disease with which plaintiff suffered, and we are of the opinion that the evidence supports the opinion of the physician representing defendant, who attended plaintiff before and after the date of the alleged accident, that the disease was attributable to the venereal disease, rather than the opinion of the physicians called by plaintiff, that the disease resulted from trauma.

We are of the opinion that the evidence failed to establish that the disease “orchitis” causing the loss of plaintiff’s testicle resulted from any injury, and it is unnecessary to determine whether an injury resulting in such loss would be compensable under the statute.

The judgment appealed from is affirmed.


text:
    No. 3891
    Second Circuit
    VOLENTINE v. HOUSEMAN
    (November 7, 1930. Opinion and Decree.)
    Richard H. Switzer, of Shreveport, attorney for plaintiff, appellee.
    Booth & Grafton, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff owns a small tract of land in Cedar Grove . (now a part of Shreveport) on which he grows truck for the market. On February 26, 1930, his land overflowed, was considerably washed, some of his fertilizer was carried off and some damage was done to his onions and turnips. He alleges that this overflow and resulting damage was caused by defendant’s fault and negligence in that defendant, in clearing his property, which is situated just north of plaintiff’s, threw into a drainage ditch rubbish and debris causing it to fill up and overflow and the water to run over his land. This suit is to recover the amount of the damage. Defendant denies that the overflow was due to any fault of his. The lower court awarded plaintiff $50 as damage and defendant appealed. Plaintiff answered the appeal and prayed that the amount be increased.

We find in the record a plat or sketch which shows the general situation or layout of the properties from which and from the testimony it appears that plaintiff’s property lies south of and adjacent to 79th street, which runs approximately east and west, and that defendant owns a lot or plot of ground north of and adjacent to that street. The land south of this street, including plaintiff’s, is lower than that north of it, causing the water which accumulates during and after rains to flow towards plaintiff’s land. To take the water off, there is a natural drain or branch which, seems to have been converted into a ditch, running in a general northeasterly and southwesterly direction under the street, which is somewhat elevated, through a culvert at the southwest corner of defendant’s lot. From this culvert, the ditch runs southwest diagonally across defendant’s property.

Plaintiff’s property is low and flat and originally overflowed from heavy rains. But according to the testimony, when plaintiff acquired it several years ago, he enlarged the ditch and, since that time, the land has not overflowed. This rnayy be, and we think probably is due to the fact that the street along the north edge of the property is elevated so that the water which accumulates on the north side is forced to run off through the culvert down the ditch.

The particular fault charged to defendant by plaintiff is that in clearing his lot of trees and rubbish preparatory to building a radio broadcasting station, he threw into the ditch poles, brush and lumber which, during a heavy rainfall on February 26th, floated down to and became lodged in the culvert, partially stopping it up, and that as a result the flow through the culvert "was so retarded that the water accumulated, spread out along the north side of the street to the west and ran over the road onto plaintiff’s land to the south.

On this point plaintiff made out his case. It is clear enough that the culvert under the street was' of sufficient dimensions to let the water through on this particular occasion, had it not been partially obstructed by debris; and further, that the obstruction was due primarily to defendant’s fault in either throwing into the ditch above the culvert or placing it so near that it washed in material and rubbish which collected in the opening. It is also proved to. our satisfaction that had the water gone through the culvert under the street into the ditch through plaintiff’s land, there would have been no. overflow. But, due to this obstruction, the water ran over the road and thence across the land.

The defendant, having obstructed the natural flow of the water to plaintiff’s hurt, must repair the damage.

“The proprietor, above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome.”

Civil Code, arts. 660, 661.

McFarlain v. Jennings-Haywood Oil Syndicate, 118 La. 537, 43 So. 155;

Miller v. Texas & Pacific R. R. Co., 148 La. 936, 88 So. 123;

Boatner v. Henderson, 5 Mart. (N. S.) 186.

Plaintiff was damaged some, but not to • the extent he claims. The water ran over his land and washed some soil from the 'surface, leaving it ragged, and took away some fertilizer. It is likely that his vegetables. were damaged to some extent. The trial judge heard all the testimony and in addition personally viewed the premises. He fixed plaintiff’s damage at $50, and we think the award does substantial justice.

The judgment appealed from is therefore affirmed, with all costs.


author: WESTERFIELD, J/

text:
    No. 10,763
    Orleans
    KING v. ILLINOIS CENT. R. R. CO. ET AL.
    (December 1, 1930. Opinion and Decree.)
    Dart & Dart and Louis C. Guidry, of New Orleans, attorneys for plaintiff, appellant.
    Spencer, Gidiere, Phelps & Dunbar, of New Orleans, attorneys for defendants, appellees.
   WESTERFIELD, J/

On April 2, 1917, plaintiff brought suit in the civil district court against the Texas & Pacific Railroad Company, the Illinois Central Railroad Company, and the Director General of Railways of the United States. For cause of action, plaintiff alleged that he had delivered to the Texas & Pacific Railroad Company, at Fort Worth, certain mules and horses in good order and condition for shipment to Amite, La., and that when the animals arrived at destination all of them were seriously ill and ten of them died on the day of delivery. He claimed $1,224.50 as damages for loss occasioned through the alleged negligent handling of the animals.

The Director General of Railways excepted on the ground that plaintiff’s petition disclosed no cause of action for the reason that the United States did not assume control of railways and their appurtenances until after December 31, 1917, and that since the cause of action upon which the suit was brought arose prior thereto, the petition as to him disclosed no cause of action.

The Illinois Central Railroad also filed an exception of no cause of action, the grounds of which do not appear in the pleadings.

The Texas & Pacific also excepted upon the ground that plaintiff’s petition disclosed no cause of action, setting up that J. L. Lancaster and Pearl Wight were appointed co-receivers of the Texas & Pacific Railway Company, on October 27, 1916, by the United States District Court for the Western District of Louisiana, and on that date, which was long prior to the transactions upon which this suit is based, its property was continuously operated by said receivers until January 1, 1918, when the line was taken over by the President of the United States through the Director General of Railways, under whose control and management its property was, at that time, being operated.

The exception of the Illinois Central Railway Company was referred to the merits and defendant subsequently answered the petition.

The exceptions of the Director General .of Railways and of the Texas & Pacific Railway Company were maintained on January 6, 1921, and the suit as to these defendants dismissed. On April 5, 1926, with permission of the court, plaintiff filed a supplemental petition, in which it was alleged that though the receivers of the Texas & Pacific Railway Company had been duly served with citation, no answer had been made by them to his original petition, and that since the institution of this suit, the United States District Court for the Western District of Louisiana on the 14th day of May, 1925, had entered a decree discharging the receivers of the Texas & Pacific Railway Company and ordered the delivery of its funds and property in their hands to that corporation subject to and charged with “such judgments as might thereafter be rendered by the State courts against the receivers, and further ordering that the Texas & Pacific Railway Company shall defend all claims growing out of the operation and administration of the receivers, or against the company, then pending in any State court.”

It was further alleged that at the time the cause of action arose, the Texas & Pacific Railway Company was under the ad°ministration of the receivers, and prayed for citation -against that company and an order directing that it be required to answer both petitions.

On June 9th, the Texas & Pacific Railway Company, through its attorneys, filed a rule to show cause why the order authorizing the filing of the supplemental petition should not be revoked as having been improvidently issued upon the ground that -the Texas & Pacific Railway Company had been dismissed from the suit by a judgment maintaining its exception of no cause of action signed on January 7,' 1921. After a trial of this rule it was made absolute and the order permitting the filing of the supplemental petition recalled. Prom this judgment plaintiff has appealed.

Counsel for appellant contend that in maintaining the exception of no cause of action filed by the Texas & Pacific Railway Company his suit was dismissed as to that company, but that since the service of citation was made upon the receivers and no answer or appearance was made in behalf of the receivers, his cause of action as to the receivers has not been affected for the reason that the supplemental petition set up a cause of action against the receivers judicially charged with the defense of this suit, and that no appearance having been made on behalf of the receivers and no judgment of court dismissing them having been rendered, his claim is still good and enforceable as against their successor.

Counsel for appellee argued that no suit was ever brought against the receivers of the Texas & Pacific Railway Company, as such; that the original petition set up a cause of action against the corporation, the only reference to the receiver being in the prayer where citation of the company was asked “through its receivers”; and that the exception on behalf of the Texas & Pacific Railway Company having been maintained and that on behalf of the Director General of the Railways having been maintained, the only party left in the suit is the Illinois Central Railway.

Appellant relies upon Anding v. Texas & Pacific Railway Co., 158 La. 412, 104 So. 190, 194. In that case a passenger sued the Texas & Pacific Railway Company for personal injuries for which it was alleged to be responsible. Suit was filed on September 1, 1921. Seven days later a supplemental petition was filed in which plaintiff alleged that since the institution of the suit, she had learned that the Texas & Pacific Railway Company was in the hands of receivers, J. L. Lancaster and Charles L. Wallace. She asked that the company be cited “through its receivers” and prayed for judgment against the company and its receivers as such. The receivers were duly cited, whereupon the railroad company on October 20, 1921, excepted on the ground that the plaintiff’s petition disclosed no cause of action against it for the reason that at the time of the accident the company was in the hands of receivers appointed by the United States District Court for the Western District of Louisiana. On November 15, 1921, the receivers excepted on the ground that they had not been properly cited. On November 17, 1921, more than one year after the accident, a supplemental petition was filed in which it was alleged for the first time that the accident complained of occurred while the railroad was being operated by the receivers. In this petition judgment was asked against the receivers and the railroad company. Subsequently the receivers filed a plea of prescription of one year. The plea was maintained and on appeal to the Supreme Court overruled. In that case, as in this, it was contended that the citation being directed to the corporation through its receivers was directed to the corporation and not the receivers, and that consequently no citation upon the receivers had been made.

In overruling this contention the Supreme Court said that the first supplemental petition contained a prayer for judgment against the receivers and, when read in connection with the original petition, showed a complete cause of action against the receivers, although there was no allegation in the petition to the effect that, at the time of the accident, the company was in the hands of receivers. “However,” said the court, “the original petition alleged the date of the accident; and, as on that day the railway company was in the hands of receivers, and had been for four years prior thereto, the absence of that allegation did not have the effect of preventing the interruption of prescription, for the allegation, setting forth the date of the accident, and the service of the petition, containing that allegation, conveyed to the receivers’ knowledge, judicially, that the accident occurred under the regime of the receivership, and the demand for judgment against them conveyed to them knowledge that they were being held by plaintiff responsible for the alleged negligence and accident that occurred under their regime.”

It is admitted that the Anding case is authority for the proposition that citation such as was made in this case is sufficient to interrupt prescription as against the receivers of the defendant corporation, but it is argued that it is not sufficient to convert the suit which was directed against the railroad company into one against the receivers, and since under indisputable authorities a corporation is not liable for torts occurring during the operation of its property by receivers, (Memphis & Charleston Railway Co. v. Hoechner (C. C. A.) 67 P. 456; Anding v. Texas & Pacific Railway Co., supra), and since the receivers have never been impleaded, they have never been brought into court.

The weakness of this argument lies in the fact that the receivers have been brought into court by the supplemental petition because their successor was judicially charged with the defense of suits, like the present one, consequently since plaintiff’s cause of action was reserved to him by the service of the original petition, defendant is now before the court, not for the purpose of being held responsible for any tort committed by the receivers at the time its property was administered by them, but by reason of its having assumed, in taking over its property, the obligation of defending suits against the receivers. Here, as in the Anding case, the supplemental petition considered with the original petition makes out a complete cause of action against the receivers with the possible exception that it is not alleged that at the time the cause of action arose the railroad company was in the hands of receivers, but here, as in the Anding case, the date is given, and “as on that day the railway company was in the hands of receivers * * * the absence of that allegation * * * conveyed to the receivers knowledge, judicially, that the accident occurred under the regime of the receivership.”

We áre of the opinion that the case cannot be distinguished from the Anding case; consequently, and for the reasons herein assigned, the judgment recalling the order permitting the filing of the supplemental petition is reversed, and it is now ordered that this case be remanded for further proceedings according to law and not inconsistent with the views herein expressed.


text:
    No. 13,150
    Orleans
    RUSSO v. TEXAS & PAC. R. R. CO.
    (December 1, 1930. Opinion and Decree.)

      Warren V. Miller, of New Orleans, attorney for plaintiff, appellant.
    Spencer, Gidiere, Phelps & Dunbar, and John E. Fleury, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Mrs. Joseph Russo was run over by a passenger train of the Texas & Pacific Railway Company and died as a result of her injuries. Her husband brings this suit claiming damages in the sum of ?3?,920.

There was judgment below in favor of defendant dismissing plaintiff’s suit, and plaintiff has appealed.

The accident occurred in the town of Gretna at the crossing at Copernicus and Third streets and was witnessed by a number of bystanders, many of whom testified on the trial of the case. From the voluminous record we find the following facts:'

On March 22, 1927, at about 5:15 p. m. when the defendant’s passenger train was moving into the Gretna Station at about five or six miles per hour in plain view, and after having given all proper signals, plaintiff’s wife, Marie Daigle Russo, with several other persons, attempted to cross the tracks in front of the on-coming locomotive at a crossing a short distance from the station, when she stumbled and fell and was run over by the engine, with the result that she lost both of her legs, dying the next day in the Charity Hospital to which institution she had been moved.

Her fall is alleged to have been due to improper maintenance of the crossing. She is said to have tripped by reason of a hole or depression in which her foot became entangled causing her to lose her balance. There is much testimony as to the extent of this depression, but it falls short of establishing that it was a serious menace to pedestrians. At least one of the witnesses to the accident testified that Mrs. Russo tripped on the outer curb of the sidewalk before reaching the roadway, and one or two others testified that her shoe was removed from her foot as she fell. But whatever caused her to fall and if the hole, or depression, was responsible and the railway company was negligent in failing to maintain a safe passage across the tracks, we are of opinion that Mrs. Russo was guilty of gross contributory negligence.

The unfortunate accident we believe to be due to Mrs. Russo’s effort to cross in front of the passenger train when it was within a few feet of her under circumstances which would have deterred a prudent person in the exercise of ordinary care from undertaking to cross. Some of the witnesses testified that she ran across the track and others that she walked; but, whether she walked or ran, we are convinced that she saw the train and hurried across at a time when its nearness to her should have suggested to a person of ordinary prudence the danger of her undertaking.

It is said that but for her fall she would have safely negotiated the crossing, and the fact that others, who preceded her, had done so, is pointed to as evidence that she might also have succeeded. We are inclined to believe that she might have done so, but it is evident to our minds that her margin of safety was exceedingly small, and we are of opinion that persons who undertake to cross in front of moving trains are not relieved of the imputation of negligence by showing that a safe crossing was possible at the time it was undertaken. If Mrs. Russo had succeeded in getting across safely, her death would have been averted and this ease would not have arisen, but her actions would have been imprudent and careless. She would simply have succeeded in a dangerous undertaking.

It is argued that the engineer on defendant’s train should have seen Mrs. Russo upon the track and stopped in time to have avoided the accident. In other words, that he had the last clear chance. When Mrs. Russo attempted to cross in front of the train, it was, one witness says, about 25 feet fi-om her; others estimate the distance from her as 40 feet. We do not believe that the train could have been stopped in time to have avoided the accident. The engineer was in the right-hand cab of the locomotive, and Mrs. Russo approached from his left; consequently he did not see her because of the obstruction to his view by the forward portion of his engine. The fireman, who was seated in the left-hand cab, testified that he saw a number of persons crossing in front of the train, Mrs. Russo among them, but believed that they had successfully negotiated the crossing. Under the circumstances we are convinced that there was no opportunity of avoiding the accident and no realization of Mrs. Russo’s peril hy the train crew. The doctrine of the last clear chance consequently does not apply. Morin v. I. C. R. R. Co., 1 La. App. 727; Leopold v. Texas & Pacific R. R. Co., 144 La. 1000, 81 So. 602. This case is controlled by the well-established jurisprudence to the effect that one who is guilty of contributory negligence may not recover. Gibbons v. N. O. Terminal Co., 1 La. App. 371; Tucker v. I. C. R. R. Co., 141 La. 1096, 76 So. 212; Nolan v. I. C. R. R. Co., 145 La. 483, 82 So. 590.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 13,360
    Orleans
    LINCOLN MILLINERY CO. v. A. WEINFIELD, INC.
    (November 3, 1930. Opinion and Decree.)
    (November 17, 1930. Rehearing Refused.)
    Lazarus, Weil & Lazarus, of New Orleans, attorneys for plaintiff, appellee.
    Feitel & Feitel, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit for $1,279.50, the purchase price of certain hats which defendant is alleged to have bought from plaintiff. On April 3, 1928, Leonard Weinfield, the manager of defendant corporation, called at the place of business of plaintiff in Chicago and was shown certain women’s hats described in the invoice as “silk hairs,” “small rock hemps,” “azures,” and “hair flops.” He seemed to be satisfied with the appearance of the hats and the price asked for them and gave his order for all of lots 1527 — 39—35, 500 — 502, and 945, requesting immediate shipment to New Orleans where the defendant conducts a millinery establishment. When the hats arrived in New Orleans the defendant selected thirteen dozen out of the shipment and returned the remainder, together with its check for the thirteen dozen hats retained. The check was returned to defendant and the shipment of hats rejected.

The position of the defendant company is that it did not buy more than fifteen or twenty dozen hats and that the plaintiff “stuffed the order” so as to include sixty-eight dozen. Plaintiff, of course, denies shipping more hats than were purchased.

Wienfield, who bought the hats in Chicago, testified that he bought the entire lot containing the various styles as they were exhibited to him in plaintiff’s place of business. The hats were in boxes and he was shown a sample of each variety. He claims that his experience as a hat buyer convinces him that the containers exhibited could not possibly have held more than fifteen or twenty dozen hats. On the other hand, the president of the plaintiff corporation and two of its employees, whose testimony was taken by commission, said that immediately upon the conclusion of the sale the hats were taken to the shipping room and counted and the number of hats ascertained and Weinfield advised of the extent óf his purchase.

The evidence of plaintiff clearly preponderates, and we, like the judge of the trial court, believe that Weinfield was mistaken. This view is fortified by the testimony of Weinfield that he had, on the same day, purchased several hundred dozen hats from other jobbers in Chicago, because it thus appears that sixty-eight dozen hats would not be an unusually large purchase for the requirements of Weiñfield’s business.

There were other defenses raised below and argued in this court, but with no apparent confidence, the main reliance of defendant being upon the question of fact as to the quantity of hats it bought. In any event the other defenses have not impressed us as serious, and we refrain from comment thereon.

For the reasons assigned the judgment appealed from is affirmed.