author: MOUTON, J.

text:
    No. 758
    First Circuit
    CRAIN v. FEDERAL LAND BANK OF NEW ORLEANS
    (March 3, 1931. Opinion and Decree.)
    Ott & Rich, of Bogalusa, attorneys for plaintiff, appellee.
    Ott & Johnson, of Franklinton, attorneys for defendant, appellant.
   MOUTON, J.

February, 1920, (plaintiff executed a mortgage for $1,000 in favor of the Federal Land Bank, defendant in injunction, payable in thirty-five annual installments, for $65 each, the first falling due on the 15th day of February, 1921, the others annually thereafter.

The bank had the property on which the mortgage had been given seized under executory process. In its petition asking for the issuance of the' executory proceedings, the bank averred that according to the stipulations of the act of mortgage, if plaintiff, Warren Oliver Crain failed to promptly pay any installment due thereon as fixed in the act, or to do any other act in violation of the terms of the mortgage, in that event the entire note, in principal and interest, should ipso facto become due and payable.

The bank then alleges: “That the said Warren Oliver Crain has failed to pay the installment fixed in said act and due February 15th, 1930.”

It is solely upon the alleged failure of plaintiff to pay this installment due on February 15, 1930, that the bank is asking judgment for the entire amount of the mortgage, as there is no complaint whatsoever that plaintiff had done any other act in violation of his obligations under the mortgage.

In the petition of the plaintiff, Warren Oliver Crain, for an injunction to arrest -the executory proceedings, the only issue presented is that of the payment by plaintiff of the installment due on the mortgage on February 15, 1930.

The court therefore properly restricted the issue to the question of the payment of that installment, and correctly excluded all evidence to show any other alleged violation of the mortgage contract.

The injunction was obtained by plaintiff on the ground of payment under article 739, Code Prac. It is well settled that in such cases the evidence must be confined to the particular cause upon which the writ has been obtained as permitted under the provisions of that article. Williamson v. Richardson, 30 La. Ann. 1163; Hodgson v. Roth, 33 La. Ann. 941.

We understand from brief of learned counsel for the bank that they are not insisting that the court fell into an error in excluding the testimony to which we have hereinabove referred. Their complaint in this court is that the court erred in maintaining the plea of payment, and in perpetuating the injunction; also, in allowing attorney’s fees, and other damages.

The record shows that four checks were sent to the bank by Miss Maude Crain, daughter of plaintiff. One on March 24, 1920, for $20; one for $20, April 2, 1930; another for $12.50, April 17, 1920; and the last one July 15, 1930, for $12.50. All these checks were endorsed by the bank.

In a letter dated June 5, 1930, addressed to Ollie Crain, Mr. English, assistant vice president of the bank, stated that Crain had already made two partial payments, and that $25.62 was required to put the loan in good standing.

At the time this letter was written the record shows that three checks, the third on April 17, 1930, had been sent to the bank by which it had been endorsed. These three checks amounted to the sum of $52.50, which left a balance of $12.50 on the installment of $65, which fell due February 15, 1930, and as to the payment of which is the issue presented for decision.

Miss Maude Crain testifies that when she received the letter from Mr. English 'written June 5, 1930, saying $25 was due on the installment, that she wrote him stating that she had sent a check for $12.50 and that the balance due was only $12.50. She testifies that the bank answered she was right, and the only amount owed was $12.50. Her testimony is that she thought her mother had destroyed that letter, and there is no proof in the record contradicting her evidence as to that fact. It therefore appears that when the letter from Mr. English, dated June 5, 1930, was written, the balance due on the installment in. question was only $12.50, and not $25, as claimed by the bank.

Thereafter, on July 15, 1930, a check was sent by Miss Maude Crain to the bank for $12.50 for the balance due on the $65 installment. Mr. English testifies that this check was received through the cashier’s department, but had not been “identified with this particular loan.” This is the reason he gives for not applying the check to the loan, and admits if it had been applied the installment would have been paid, with the exception of the interest. This check was cashed by the bank, but, says Mr. English, we wrote to find out to what loan that check was to apply, and upon finding out, reimbursed the check.

Mr. English says the bank has $65,000 loans, and that it has no loan in the name of Ollie Crain, the plaintiff’s real name being Warren Oliver Crain. His testimony seems to indicate that this was the reason, or one of the reasons, why the check was unidentified, and was not applied to the loan.

The evidence is that the four checks, including the last for $12.50 sent in final payment, bear the "notation” of “Ollie Crain”; the last having the abbreviation, “Bah, added to Ollie Crain.”

In addition thereto, Miss Maude Crain testifies that the checks sent the bank to cover the installments for the year previ-' ous were all written out in the same way, and that if the bank had experienced any trouble about identifying them, no complaint was ever made. It is unreasonable to believe that the last check was not applied to the $65 installment because of the inability of the bank to connect it with the loan. Such a conclusion is altogether unwarranted by the facts. It appears that the last check was sent July 15, 1930. There was a little delay in that respect, but it is accounted for by the fact that plaintiff had been held back in making this final payment by the adjustment with the bank about some timber which had been taken from the mortgaged land.

The very letter from Mr. English, June 5, 1930, says that the payment of $25 would put the loan in good standing. This had reference to the installment in question which had fallen due February ,15, 1930, over three months before. It also appears on the reverse side of the mortgage note of the bank that payments were made thereon several months after the maturity of the installments. From such facts as these the clear inference is that the bank did not exact the payments at the dates fixed in the contract, and had no objections to deferred payments on the installments.

We therefore hold that the installment of $65 due February, 15, 1930, was paid when the executory proceedings were taken out by the bank.

Counsel for the bank contend that the interest on the installment had also to be paid at the time stipulated to constitute a full payment under the terms of the mortgage.

Plaintiff testifies that no demand was made for the interest on the installment in question. He is positive in that statement. Mr. English, on the other hand, is not positive that he made a demand for the interest on the installment, and we must say, judging from the tardy payments previously made o.n the installments and interest as appear from the evidence, that we are led to the conclusion that no demand was made for the interest, particularly must it be so held when it is considered that the interest then due amount,ed to the trivial sum of 67 cents when the $65 installment was finally paid by the last check of $12.50.

Hence, our conclusion is that the plea of payment alleged by Crain, plaintiff in injunction, has been established as was hela below; and that the injunction was properly maintained.

Counsel for the bank contend that the lower court fell into error in granting attorney’s fees and $25 for other damages.

In Smith v. Bradford, 17 La. 263, the court field that when an injunction is maintained against hypothecary or executory proceedings attorney’s fees will not be allowed. In giving its reasons for denying the attorney’s fees, the court aptly says that a party enjoining the seizure might be viewed as standing in the position of a party defendant. Reasoning from that standpoint, the court properly says, if these fees were allowed every successful defendant would claim them as costs to be paid in every suit.

In Neveu v. Voorhies, 14 La. Ann. 738, the court said that under the acts of 1831 and 1833 attorney’s fees as special damages were allowed in case of dissolution of the injunction, but not when perpetuated. See also Flynn v. Rhodes, 12 La. Ann. 239.

In Fallin v. J. J. Stovall & Sons, 141 La. 234, 74 So. 911, 915, on rehearing, these decisions were affirmed in, a case involving the same issue.

The decree for attorney’s fees must therefore be reversed, and likewise the granting of $25 additional damages, as there is no evidence or law to support the judgment for that item.

It is therefore ordered, adjudged, and decreed that the part of the judgment decreeing damages for attorney’s fees, and the other damages for $25, be reversed; that the demand for these damages and for attorney’s fees be and is hereby denied; and that in other respects the judgment be affirmed; appellee to pay cost of appeal, those of the lower court be paid by the Federal Land Bank, defendant in injunction.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 732
    First Circuit
    COMPESI v. DE GRAW
    (January 26, 1931. Opinion and Decree.)

      J. E. Kibbe, of Abbeville, attorney for plaintiff, appellee.
    F. J. Samson and R. J. LaBauve, of Abbeville, attorneys for defendant, appellant.
   ELLIOTT, J.

In a collision between an automobile belonging to Piro Compesi, while being driven by his son, Joseph Compesi, and a car belonging to Frank DeGraw (spelled in the petition “De-Graaw”), while being driven by his employee, Clovis Romero, the automobile belonging to the plaintiff was badly damaged and some injury was also sustained by defendant’s car. The plaintiff alleges that the collision was due to the fault and neglect_ of the driver of defendant’s car.

The cost of repairing plaintiff’s car was $205.40. He claims against defendant the cost of repairing, due to the collision, and the further sum of $312 for loss of value of his car, a total of $517.40.

The defendant for answer denies the fault and negligence alleged against the driver of his car, and alleges by way of reconvention that the collision was due to the fault and negligence of the driver of plaintiff’s car. He prays that plaintiff’s demand be rejected and for judgment in reconvention against the plaintiff for $50, the cost of repairing his car, and the further sum of $50 loss of its value, a total of $100.

The court rendered judgment in favor of the plaintiff as. prayed for. No mention is made in the judgment of defendant’s demand in reconvention, so it stands as rejected.

Defendant moved for a new trial on the ground that the judgment of the lower court was contrary to the law and the evidence. The new trial being refused, he has appealed.

The evidence is so conflicting that it is difficult to arrive at a satisfactory conclusion as to some of the important questions of fact in the case. The collision occurred on New Year’s day, January 1, 1927, at about 3:30 p. m. in the town of Abbeville, at the intersection of Vermilion with North Bailey street. As it was broad daylight, the conflict in the testimony is all the more noticeable. Plaintiff’s ear was being driven westward on Vermilion street, while that of the defendant was being driven northward on North Bailey street, but it is not clear whether the collision took place in the center of the intersection or on the north or south side of it. It seems that just before the impact both cars swerved in an effort to avoid it, but they were so close together at the time, that the collision could not be avoided.

The town of Abbeville adopted a traffic ordinance, which was in effect at the tüne. The ordinance provides:

“That all streets running east and west are hereby declared thoroughfares and having the right of way. That all vehicles travelling running no.rth and south, shall, when approaching the intersection of said streets with said thoroughfares, come to a dead stop before attempting to cross or enter upon any of said thoroughfares.”

Vermilion street was a thoroughfare street, and therefore plaintiff’s car on Vermilion street had the right-of-way over defendant’s car on North Bailey street.

Joseph Compesi testifies that defendant’s car struck him “on the left hind wheel, left side.”

Two witnesses whose testimony was taken by commission, and which we’ take to be true, corroborate Joseph Compesi, that plaintiff’s car was struck by another car, the impact being against the rear end of it.

Joseph Compesi testifies that he was driving at the rate of 12 or 15 miles an hour when he reached the North Bailey intersection, and that defendant’s car, coming on North Bailey street, entered it at a speed which he estimated at from 30 to 35 miles an hour, without stopping or slowing down, and plaintiff contends that the failure of defendant’s driver to obey the mandate of the ordinance cited, caused the collision.

The testimony of Joseph Compesi is supported by that of Mrs. Nunez.

The driver of defendant’s ear died before the trial, and we are therefore deprived of the benefit of his testimony.

The defense is supported by the testimony of Arthur Corner and Romauld Trimm, both of whom claim to have seen the accident and they say that defendant’s driver did stop at the intersection and was there struck by plaintiff’s ear, being driven at a reckless speed. The effect of their testimony is, that the fault for the collision was entirely due to the driver of plaintiff’s car.

The conflict between the testimony of Joseph Compesi and Mrs. Nunez on one side and that of the witnesses Corner and Trimm on the other, is such that if one side be believed the other cannot be. The testimony of the various witnesses and the facts and circumstances considered, does not justify us in concluding that the lower court made a mistake in holding in favor of the plaintiff.

The driver of plaintiff’s car states in his testimony that he did not stop when he reached the intersection, and that he was almost past the corner when he was struck. That he was not looking ahead; that he was right at ihe corner, that he looked to the right and saw nobody coming, and that he looked to the left and saw defendant’s car coming at the rate of about 35 miles an hour and distant at the time about 21 feet. That he did his best to avoid the accident, but could not.

We have considered whether, under the evidence, the driver of plaintiff’s car although on a right-of-way street, could and should have seen defendant’s car sooner and in time to have either stopped or swerved and in that way avoided it.

The evidence on the subject does not enable us to say that plaintiff’s driver could or should have seen defendant’s car any sooner than was done. Ahd as plaintiff’s car, under our theory of the case, was being driven at, say 12 or 15 miles an hour, as it came to the intersection, and defendant’s car at, say 30 miles an hour, with the cars approaching each other at right angles and 21 feet apart, the distance of 21 feet was covered so quickly that there was no time to do more than was done.

It was the duty of the driver of defendant’s car to obey the town ordinance and get his car so well, in hand at the Vermilion street intersection that he might stop at once if it was necessary. Our conclusion is that he did not obey the ordinance and that his neglect and failure to do so was the direct cause of the collision.

We have come to the conclusion that the judgment appealed from should be affirmed. Judgment affirmed, defendant and appellant to pay the costs in both courts.


author: LeBLANC, J.

text:
    No. 744
    First Circuit
    BATON ROUGE YELLOW CAB CO. v. COX ET AL.
    (March 3, 1931. Opinion and Decree.)
    Jess Johnson, of Baton Rouge, attorney for plaintiff, appellant.
    Dudley L. Weber, of Baton Rouge, attorney for defendant, appellee.
   LeBLANC, J.

Plaintiff appeals from a judgment in the district court which dismissed its suit against one of the defendants, Lynn W. Cox, on an exception of no cause of action.

In its petition, plaintiff alleges that it is engaged in the business of operating automobiles and taxicabs for transportation of passengers for hire, and that in addition thereto, it also rents and leases automobiles to persons for their own use under what is referred to as the “drive-yourself” plan. The latter part of its business is conducted under a form of rental agreement which has to be signed by the party who hires the automobile. The agreement entered into in this case with the defendant Cox, is especially referred to and pleaded by the plaintiff and is annexed to its petition as forming part thereof.

As we read the petition, plaintiff’s cause of action is primarily one arising out of a tort. It is specifically alleged that the damages sought to be recovered were caused by a collision between the rented car which Cox was driving and a log truck belonging to Lonnie Bickford which was at the time in the possession of and being driven by Johnnie Bickford. The two Bickfords are the other defendants, and the only charges of negligence we find in the petition are those of careless and reckless driving on the part of Johnnie Bickford. These two defendants made no appearance in the lower court and judgment was rendered against them by default.

If the plaintiff has a cause of action against the defendant Cox, it is clearly one arising ex contractu, and is to be measured according to the terms of the contract annexed to its petition.

Pretermitting the question as to whether the two actions may be joined in the same petition, as it appears to have been waived by the defendant Cox’s exception of no cause of action as against him, we pass immediately to a discussion of the issue presented under the exception.

The contract of lease contains a provision to the effect that the le'ssee will use and drive the automobile in a careful and prudent manner and return it to the lessor in the same condition in which he received it, or pay for any damage done to same, ordinary use and wear excepted. That stipulation imposes the same obligation on the lessee that the law under Revised Civil Code, article 2711, does. Under the terms of that article, if the lessee makes another use of the thing than that for which it was intended, among other of his obligations, is that of his liability “for all the losses which the owner may have sustained through his misconduct.”

It is especially noted that the plaintiff’s petition does not charge the defendant with any violation of his duty as lessee under that portion of the contract referred to which after all imposes on him merely the obligation we find provided for in the article of the Civil Code mentioned above. It contains no statement which might be construed into an allegation that he was using the automobile for any purpose other than that for which it was intended, nor does it 'aver any. misconduct on the part of the lessee. The whole tenor of the petition, on the contrary, seems to absolve him from any fault' or negligence in the driving of the car. It is specifically stated in paragraph 5 that Johnnie Bickford “carelessly and recklessly drove the said log-truck into the extension of North Boulevard just as the said Lynn W. Cox was driving the said Tudor Ford sedan belonging to your petitioner past the said intersection, and that the said log-truck struck the said Tudor Ford sedan on its north or right side causing damage to the said Tudor Ford sedan in the sum of Two hundred and 00/100 Dollars * * Certainly no inference can be drawn from that allegation that the defendant Cox was not using the car in a careful and prudent manner or that its owner sustained any loss or damage through any misconduct on his part. Viewed from this point, the petition fails to disclose a cause of action.

In an endeavor, as we take it, to show a cause of action on another ground against this defendant, the plaintiff in paragraph 6 of its petition makes the further allegation:

“That defendant Lynn W. Cox did not return the said automobile to the said petitioner as he was obliged to do under the said contract, but defendant Lynn W. Cox abandoned the damaged car and notified your petitioner,, whereupon petitioner took possession of its automobile and promptly called upon said Cox to have the damages repaired or pay for same, which he has failed and refused to do.”

The clause of the contract invoked in connection with this allegation, binds the lessee, “in case of any accident or mechanical trouble in connection with the use or operation of the automobile, to notify the lessor immediately by telephone and in writing,” giving details of the accident, etc. In view of plaintiff’s admission that it was notified by the defendant Cox of the accident, it is difficult to understand on what theory he can be held for a violation of his obligation under that clause of the contract. Plaintiff’s admission to that effect, on the contrary, indicates affirmatively a ready compliance on his part with its terms.

Under no contention presented, or which appears to us, do we find that the plaintiff’s petition shows a cause of action against this defendant, and we are of the opinion that the judgment of the lower court which sustained the exception filed on his behalf and dismissed the plaintiff’s suit, is correct and should be affirmed.


author: ELLIOTT, J. LeBLANC, J. ELLIOTT, J.

text:
    Nos. 560 and 722
    First Circuit
    STANLEY v. LUTCHER-MOORE LUMBER CO.
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930. Rehearing Granted.)
    (January 26, 1931. Opinion and Decree on Rehearing.)
    Griffin T. Hawkins, of Lake Charles, attorney for plaintiff, appellee.
    Pujo, Bell & Hardin, of Lake Charles, attorneys for defendant, appellant.
   ELLIOTT, J.

Daniel Stanley, an employee of Lutcher-Moo're Lumber Company, alleges that he was a member of the team gang, and, while assisting in loading logs in the woods for transportation to its sawmill, and in the act of rolling a log with a cant hook for the purpose of loading it, the hook tore loose, letting it roll hack against his leg, bending his leg sideways at the knee, badly spraining the knee joint, tearing the ligaments and muscles in same, and pushing the kneecap up; that the accident occurred on July 14, 1928; that said injury has rendered him a permanent total disability, unable to perform labor or work of any reasonable character. He sues for compensation under the Workmen’s Liability Act, claiming 65 per cent of his weekly wage of $13.50, for a period of 300 weeks, and $250 for doctor’s services, medicine, and X-ray photographs.

Defendant denies that plaintiff received an injury, as alleged, and urges that, if plaintiff suffers any disability, it is not due to any accident or injury occurring while performing services arising out of and incidental to his employment by defendant; that at the date of the alleged injury plaintiff was suffering from chronic rheumatism, which condition was in no wise affected by any occurrence for which defendant is responsible.

The plaintiff recovered a compensatory judgment in the lower court for $8.78 per week, for a period of 175 weeks, and $15 for medical services, expenses, and doctor bills; the judge giving written reasons for his judgment.

Defendant has appealed.

Plaintiff, testifying as a witness in his own behalf, stated that he was hurt while rolling a log on the ground with a cant hook for the purpose of loading it on a wagon; that the log was crooked and the hook tore out, letting it roll back and strike him on the leg, hurting his knee; that it occurred on Saturday evening between 4 and 5 o’clock just at quitting time; that the log which hurt him was the last one loaded out that evening. But in another place he stated that the log which hit him was next to the last one to be loaded, that he had to handle; and in response to further questions said:

“If I don’t make any mistake thereabouts Mr. Nelson helped me with the last log.”

Pressed closer, he answered: “I do not remember whether I handled any other one, to be sure, or not”; that Mr. Nelson was present, saw it, heard him groan, came to him, and asked him how bad he was hurt.

Further questioned:

“Q. Tell how that log, if it was only 12 or 16 inches in diameter, could hit your knee?
“A. It hit my leg (showing) and wrenched my knee.
“Q. What part of your leg?
“A. It was on this side, here.
“Q. How far from your ankle?
“A. Something between half way from my ankle, maybe up to 4 inches on my leg, there.
“Q. Where it hit you on the leg, did it skin it, make a bloody spot, anything?
“A. I suffered too much to pay any attention to it.
“Q. You didn’t see any bruised part' on you leg?
“A. No, sir.
“Q. You had your pants on?
“A. Yes, sir.”

Lee Nelson and William Kingrey claim to have seen the accident. The former, asked if he was present when Daniel Stanley suffered an injury in the woods, said:

“Well, I suppose I was right there. I understand he says he was on a wagon, and I know I was on a cart.”

He further stated:

“We pulled in on the skidway as I backed up the cart and the log slipped or rolled, and I heard him groan. I said, ‘Look out Uncle Buddy.’ I get down and goes around and the old man was holding to his leg. That was about all there was to it. I asked him, are you hurt, and he said, a little bit, and that was all to it.”

He testified that he knew that the log rolled, and that they were supposed to have a cant hook, that, after hearing plaintiff groan, he went around to him and asked him if he was hurt, and he said, “Yes,” and was pressing his hand to his knee like he was hurt.

“Q. What did he do after that?
“A. I declare, I don’t know. He worked right on so far as I was concerned the balance of the day.”

Asked when it happened, he replied that, he could not tell whether it was beforé noon or after noon; that his back was to the plaintiff, and he did not see the accident; that it seemed to him that he was on a cart, and as he backed up the log fell; that a cant hook is used in rolling logs on wagons, but not for the purpose of loading carts. It also seemed tt, him that they did some work after plaintiff said he had been hit by a log. The witness was very firm in his belief that he was driving a cart. It was Nelson’s team that was being loaded, and, if he was driving a cart, the plaintiff and William Kingrey, who both say that plaintiff was injured while loading a wagon and using a cant hook, are discredited concerning a matter which is the foundation of plaintiff’s case.

William Kingrey testifies that he was driving a wagon for defendant at the time, and saw the plaintiff get hurt; that plaintiff had a cant hook and was rolling a crooked log; that it rolled nearly over, the cant hook tore out, and let it roll back and hit his left leg. Plaintiff hollered when the log hit him, and Lee Nelson asked him: “Are you hurt?” Plaintiff replied, “Yes, I believe I am hurt pretty bad,” and that plaintiff has been complaining with it ever since. He also testified that it was between 4 and 5 o’clock in the evening; they were getting their last load. Plaintiff did not work after he got hit, but got on a wagon and went to the lot, there caught the train, and went into camp with them.

The witness Kingrey testified in open court on February 16, 1929. On February 19, 1929, he signed a statement prepared by the agent of an insurance company, which contains important facts inconsistent with his testimony given previously on the stand. Defendant urges this against the credibility of his testimony in open court. At the time of the' trial Kingrey was only 21 years old, and testified that he could neither read nor write; that the statement was not read to him, and in signing it he thought he was signing the testimony he had given in open court.

F. J. Kent, witness for defendant, testified very straightforwardly that he himself read the statement to Mr. Kingrey before Kingrey signed it. But, in view of Kingrey’s denial that the statement was not read to him, his declaration that he could not himself read it, and that he thought he was signing the statement he had given in open court, we have not given the statement any weight against his testimony.

Various facts and circumstances elicited during the examination of this witness in open court indicate, however, that he was very friendly to the plaintiff. He testified that he came in on the caboose with the plaintiff, occupied a seat two or three men from him, and that plaintiff complained within his hearing that his leg hurt pretty bad; that Mr. Berry, the woods foreman, and Mr. Nelson were both near plaintiff in the caboose, and also heard what he said.

Mr. Berry testified that he saw plaintiff in the caboose, but that he did not hear him complain of having been injured.

Mr. Nelson also declared that plaintiff did not complain to him while on the caboose.

Plaintiff testified that he came in on the caboose from where he had been injured, a distance estimated by him at about 10 or 12 miles; that he knew nearly all of the men in the caboose. Asked if he was not in considerable pain when he was coming in, he replied, “Right smart, not till about the sun went down, my leg was perfectly numb,” but that he did not remember complaining of his injury to anybody in the caboose.

If plaintiff had been suffering from a serious injury received as alleged, it would have been a natural impulse to speak of it to his friends and co-laborers. He testified that, after he got off the caboose, he was almost past going at all.- But at the same time, so he claims, he got off the caboose, without help, on one foot, and hobbled along until he was picked up and carried home. After making this statement that he “hobbled along” until he was picked up and carried home, he was asked if he was not in great pain at the time he got off the caboose, and he replied, “In this knee when I was hurt, it was beginning to come to more feeling and was hurting me awful.”

The evidence shows that Dr. Price, a physician in the employ of defendant, had an office within about 100 yards of the place where plaintiff left the caboose, and that this doctor had treated plaintiff for a knee trouble 3 or 4 years previously. But the plaintiff made no effort to see Dr. Price, and did not ask about him. If a log had rolled back against plaintiff’s leg, say an hour or two before, bending it sideways at the knee, badly spraining the knee joint, tearing the ligaments and muscles in same, and pushing up the kneecap, as he alleged, and causing him severe pain, he would have felt moved to call on this physician, so close by, and solicit his help before going home. This voluntarily going away from an available physician without explanations, within, say, a couple of hours or sooner, after the alleged injury, is not what a man ordinarily would have done. The evidence shows that he got into an automobile with his brother, Dock Stanley, at the place where he left the caboose, and rode to Dock Stanley’s, between a quarter and a half mile distant. The plaintiff lived about 360 yards beyond Dock Stanley’s, but, when he got to Dock Stanley’s house, he got out of the automobile and walked the 300 yards to his own home, unassisted.

John Stanley, a brother of the plaintiff, was at Luneta, the place where the caboose stopped. He says that he saw plaintiff when he came in and went out to where he was, and plaintiff told him that he got bumped with a log. The same evening, John Stanley says, he went to plaintiff’s house; that plaintiff was sitting on the back porch holding his knee; that witness saw his knee; it looked to him a little swollen; he rubbed it in an effort to get it in place; that plaintiff was in misery at the time.

Dock Stanley, the other brother, was also at Luneta when plaintiff got off the caboose. He testified that he saw him standing with his hand like that on his left knee, and it called his attention. He went up to him and asked him what was the matter, and Daniel Stanley said, “ ‘I hit my knee today on a log.’ So I told him to get in my automobile and I took him to my house.’’ He further testified that, after getting to his house, plaintiff voluntarily got out of the automobile and walked home unassisted, a distance of about 300 yards. He was then asked:

“Q. Why did you not take him home that day if he was crippled?
“A. I asked him if he wanted me to, and he said he thought he could make it. He went on hobbling home. I was. willing to take him home.’’

That the next morning (Sunday) plaintiff’s wife and boy came to his house to get his son to take plaintiff in Dock Stanley’s automobile to see Dr. Price because he was suffering so bad. Dr. Price was not at home. The next day (Monday) he sent his son with his automobile to carry plaintiff to see Dr. Price again on account of his suffering with his knee.

Mrs. Stanley, plaintiff’s wife, says that, when plaintiff left home that morning, he was as well as he ever was, and when he got home he told her he had been hit with a log, and his knee was hurting him very bad. He was holding it when he came in, showed her where it was swelling and where it had been mashed with a log. There was no blood nor bruises, just swelling where it was mashed; that his kneecap slipped up where the log mashed it.

Dr. Price testifies that plaintiff came to see him Monday morning and told him that he had received a blow on the leg, something half way from his ankle, but that he was suffering with his knee. He found that an infusion had taken place in his kneecap, raising it up. Dr. Price was examined at length concerning plaintiff and his alleged injury, and also plaintiff’s previous trouble with his right knee. He diagnosed his trouble on the present | occasion as an infusion of a joint, a kind of infusion around the left knee joint, and gave it as his opinion that it was a rheumatic condition; that the condition of the joint did not, however, necessarily mean rheumatism.

This doctor testified that he saw no evidence of an injury, and did not think plaintiff could have received an injury that produced the infusion of the joint that existed in plaintiff’s knee without leaving some sign on the leg. He thought the blow, where plaintiff said the log hit him on the ankle, if severe enough to produce infusion in the knee joint, would have left some external sign on the ankle.

The doctor testifies that he treated plaintiff for rheumatism a few years before, when plaintiff had a similar trouble involving his right ankle and right knee; that the trouble was caused by the condition of his system; that it was common for a man to recover from rheumatism and have it again in the same form; that infusion of the joint could have been caused by an injury, but that rheumatism was what usually caused infusion of the kind existing in plaintiff’s’ leg. Required by the court to answer, he testified that about 4 years before he had treated plaintiff for a condition that usually caused infusion around the joint, and believed that condition, working in plaintiff’s blood at the present time, was part of his trouble. The doctor was firm in his opinion that the infusion in plaintiff’s knee was not the resúlt of an injury, as claimed by plaintiff, and therefore refused plaintiff’s request to put him on insurance.

Plaintiff admitted in his evidence that he had suffered with rheumatism in his right knee and hip some 3 or 4 years before, and had been treated for it by Dr. Price.

After plaintiff had been treated by Dr. Price, he consulted Dr. Martin, who had an X-ray picture made of his knee. Dr. Martin testifies that there was no fracture, but that he had an infusion in the joint, a fluid in the joint; that the kneecap was raised up, which, he stated, always existed in an infusion. Dr. Martin, basing his opinion on the history of the case as given him by plaintiff, says that the condition in plaintiff’s knee was not due to rheumatism, but to an injury received as claimed by plaintiff. He said, however, that without plaintiff’s history he would only say that plaintiff had an infusion in the joint, which might be due to injury, might be due to tuberculosis, to rheumatism, or to any infection.

Dr. Holcomb was. asked:

“Q. Do you think, doctor, that if he (meaning the plaintiff) had such a lick there that would cause this infusion, that he would be able to walk?
“A. Well, there would have to be a good deal of injury and trauma of a knee joint to produce an infusion.
“Q. You think if enough to produce an infusion there would be likely some mark on the leg?
“A. Liable to be. The pain would in all probability be so intense a man could not get around, if there was enough to produce an infusion.
“Q.' If there was enough trauma to produce infusion it would incapacitate a man in that knee?
“A. It would.
“Q. You do not think he could walk 2 or 3 hundred yards?
“A. Depends entirely on the amount of the trauma.’’

Subsequently asked if he thought it reasonable that a man could walk 300 yards after he got an injury sufficient to cause an infusion to his knee joint, he answered:

“No sir, it is not common.”

Further questioned if he thought it reasonable and consistent with an injury to the knee sufficient to cause infusion, and he answered, “No, sir”; and gave similar answers to further questions along the same line.

Act 20 of 1914, sec. 38 (amended Act 38 of 1918), reads as follows:

“The word ‘accident,’ as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening, suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.
“The terms ‘Injury’ and ‘Personal Injuries’ shall include only injuries * * * or infections as naturally result therefrom. The said terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.”

The burden of proof is upon the plaintiff to show that the infusion in his knee was the natural result of the striking of his ankle by the log, as alleged in his petition, or that it so activated and aroused into virulence a dormant condition in his system, and that his present incapacity is a natural result of this activation.

The plaintiff testifies that he left the scene of his alleged injury almost immediately, boarded a caboose used to take the men home from their work at the end of the day. The distance was 10 or 12 miles. The caboose was full of workmen nearly all of whom he knew, one of them being his foreman. If he had suffered a hurt of any consequence, it would have been natural for him to have complained of it to his fellow workmen. Only one of them, Mr. Kingrey, heard plaintiff complain. The plaintiff, in fact, could not remember complaining to anybody on the train. When the caboose reached Luneta, if plaintiff had been seriously hurt, he would ordinarily, upon getting out, have sought Dr. Price, an available physician. He was within 100 yards of Dr. Price’s office. Dr. Price had 3 or 4 years before treated him for a similar trouble in his right knee; he was acquainted with Dr. Price; it would have been a natural wish to see him before going home. But he made no effort at all to see him. He got into an automobile with Dock Stanley, and rode in if to Dock Stanley’s home; his own house being about 300 yards distant. Dock Stanley would have taken him home, and he testifies that he was willing to do so, but plaintiff voluntarily got out when he reached Dock Stanley’s, declined his offer to take him home, and walked home, a distance of about 300 yards, unassisted.

Disease must be traceable as the natural result of an accident before it is compensable.

Plaintiff’s actions speak louder than his words. They satisfy us that he had not received an accidental injury to his kneecap causing the infusion which was subsequently found to exist.

The opinion of the physician who had formerly treated him that the infusion was not the result of an injury, nor trauma, nor activated by a blow received on the ankle, but was the result of a dormant disease already existing in plaintiff’s system, which had at the time developed to the point when infusion set in, is felt to be convincing.

The judgment appealed from is erroneous, contrary to the law and the evidence.

For these reasons, the judgment appealed from herein is now annulled, avoided, and' s.et aside, and the judgment of the plaintiff is refused and rejected at his cost in both courts.

LECHE, J., not participating.

ON REHEARING

LeBLANC, J.

Further consideration of the facts in this case has prompted us to change our views, and we have concluded that our former judgment, 126 So. 579, 5.82, which reversed the judgment of the lower court in favor of the plaintiff, was in error.

The suit is one brought under the Workmen’s Compensation Law (Act No. 20 of 1914, as amended) by the plaintiff, Daniel Stanley, against the defendant company by which he was employed as a member of its team gang, assisting in loading logs in the woods for transportation to its sawmill at Lunita in the parish of Calcasieu. He alleges that on July 14, 1928, while engaged in the act of rolling a log with a cant' hook for the purpose of loading it, the latter tore loose from the log and the log rolled against his knee bending his leg sideways at the knee, badly spraining the kneejoint, tearing the ligaments and muscles in same and pushing the kneecap up.

The defense is a denial of any accidental injury and consequent disability and the further affirmative defense that, at the date of the alleged injury, plaintiff was suffering from chronic rheumatism, which condition was in no way affected by any occurrence for which the defendant is responsible.

It will be observed at the outset that the case is one dealing almost exclusively with questions of fact which were resolved by the trial court in favor of the plaintiff. Our former' opinion goes into a detailed analysis of the facte, to support the finding that the plaintiff “had not received an accidental injury to his kneecap causing the infusion which was subsequently found to exist.”

On reconsideration, we find that the opinion attaches a hit too much of importance to details and uses this as argument to weaken the testimony of the plaintiff to the effect that he had been struck on the left leg by a rolling log which slipped from his cant hook, and that, on being so struck, he was injured. For instance, the opinion makes it appear that there is no certainty in plaintiff’s testimony whether it was the last log they handled that afternoon or the next to the last; also some lack of certainty as to the hour at which it happened and whether they were using carts or wagons in hauling the logs that day. These are all minor matters which cannot affect his right to recover, if indeed he was, injured. In other words, whether it was the last log or the second to the last that rolled and. struck his leg, or whether it was 3 o’clock in the afternoon instead of 5, or whether it was a cart they were using and not wagons, makes no difference as far as his rights under this action are concerned, and, at most, the uncertainty as to these details can only affect the weight of his testimony and that of his witnesses.

Considered from that standpoint, what do we find? Plaintiff himself is a man well advanced in years, being, so we are informed, fifty-five years old. All of his working life of thirty-four years or more, he has worked for the defendant company, never for any one else. He is, a married man and has raised a family on a rather meager! wage. At the time he says he was injured, he was earning $2*25 a day. This, it appears, displays a record of constant and faithful employment which ordinarily would tend to recommend him as an honest man, and, as such, worthy of belief. The learned district judge was in better position than we are to judge of his, credibility, and he must have believed him, since he rendered judgment in his favor.

He gives a plausible account of the way in which he claims to have been injured. He does not testify that the log struck him on the knee, but on the leg, and the question as to whether the blow on the lower part of the leg could have produced the resulting infusion in the kneecap is one which neither he nor any ordinary layman can assert with positiveness,, and we have of necessity to rely on the testimony of the doctors if we are to reach any conclusion on that important point.

He answers the trial judge’s question as to how the log happened to fall on him by saying: “I was holding it on the chain— rolling it on the ground, and it was crooked and the hook tore out and the log came back and struck my leg hard.” It was a crooked log “and pretty hard to turn.” He was, not sure of the diameter of the log, but it measured probably 12 to 16 inches at the top. A log that size certainly could have struck him on that part of the leg where he' says it did.

In support of this testimony, he offers one of his fellow employees, Leo Jolson, as a witness, who says that a log slipped and rolled and he heard plaintiff groan. He then continues:

“I said ‘Look out Uncle Buddy.’ I gets down and goes around and the old man was holding to his leg. * * * I asked him if he was hurt and he said a little bit * * * 9}

Another fellow worker, "William Kingrey, was placed on the stand as a witness and swore that he saw the log hit the plaintiff. “When it rolled nearly over” he says, “the cant-hook tore out and the log rolled back and hit his leg.” The record contains much that may be used in comment about this witness because of the fact that he is said to have given a statement to the representative of the insurance company which indemnified the defendant which did not tally exactly with his testimony on the witness stand. A rather unusual situation is, presented with regard to this purported statement. The insurance agent saw Kingrey at Lunita, where he lived, on the same day that. he was supposed to be on his way to Leesville on another investigation. He made notes of what Kingrey told him and then said that he would put the statement in typewritten form and have him to sign it. Kingrey says that he waited for him until late that afternoon and that the agent did come back to Lunita, but never asked him to sign anything. Kingrey, being out of employment at the time, left to go to Texas and never heard any more about the matter until he was sought as a witness in the case by both the plaintiff and the defendant. It is shown that the agent of the insurance company, on his return to his office in Beaumont, Tex., dictated a statement to his, stenographer from the notes he says he had made, and mailed the typewritten form to Mr. Kent, bookkeeper for the defendant company, to have it signed. Kingrey had in the meantime left Lunita, and his signature was never obtained. It appears rather singular that it was necessary for this agent to go back to his office in Beaumont to reduce this statement to typewritten form, and strange also that he should have destroyed the original notes from which it was dictated before it had been signed by the party who was to subscribe to it. Another odd happening is that, after Kingrey had testified for the record and his evidence taken down by a stenographer, he is taken to the office of the defendant company and there made to sign the alleged original statement he was to have given out. Even then, the statement is attested by the signature of a witness who admits that he did not see Kingrey sign it. We learn from the record that Kingrey is an illiterate young man, about twenty-one years old, who barely knows how to sign his name, and he tells the court on examination afterwards that, at the time he signed the statement, it was not read to him, and that he signed it believing that it was the report of what he had testified to on the witness stand. All of this impresses us as being an effort on the part of the insurance company to discredit the testimony of this uneducated young man. It may be true that, as a witness, he appears, friendly to the plaintiff, but not the extent that it can be concluded that he has deliberately perjured himself.

Certain facts and circumstances following within an hour or so the moment he claims to have been injured corroborate, the testimony of the plaintiff and his witnesses. He left the woods to return to his home on the caboose, suffering, as he says, intense pain. The original opinion correctly states that he did not complain to any one on the caboose, and that he walked three hundred yards from the home of his brother to his house. It is then inferred that the natural impulse would have been for him to complain and ask to be taken all the way home. But all people do not accept and endure pain and suffering in the same manner. Some are given to complain for the smallest kind of injury or ache and others go on with severe pain not saying a word. It would be, reasonable to assume that a man, accustomed to hard work and labor as was this plaintiff, could endure pain and suffering far more easily than one who works in an office not doing manual labor and not accustomed to physical outdoor exercise. The fact is. that plaintiff did complain to his brother Dock Stanley on leaving the caboose, and that, instead of walking, he hobbled along. He told his brother also that he had been hit on the leg by a rolling log. He also told his brother John after he arrived home, as he did also his wife, that he had been injured and how he was undergoing the suffering which was increasing all the while. They both tell about the inflammation they saw about the knee-joint. He suffered ali that night, and early the next morning asked to be taken to the doctor.

Plaintiff had not had any trouble of any kind for perhaps three years previous when he had had an attack of rheumatism in the right hip and leg. He was a strong, healthy man the time preceding the alleged ■ accident, and had not felt an ache or a pain until the moment when that log rolled and struck him on the leg, all of which, with his testimony and that of the witnesses he has produced, satisfactorily establishes the fact, in our opinion, that he was injured, as he says he was.

The next important question now arises: Was the infusion in the kneecap the result of the injury?

The defense is that the plaintiff’s trouble was not of traumatic origin, but came from a rheumatic condition existing in his body, and, in support thereof, defendant tendered the testimony of their regularly employed physician, Dr. Price. This doctor had treated the plaintiff when he suffered from the attack of rheumatism previously referred to, and it would be the natural thing for him to think of, as a physician, that that was the predisposing cause o'f his present ailment. He seems to lay great stress, in reaching the conclusion that there was no trauma, on the fact that there wiere no external signs of injury. On this point, however, the two other doctors who testified in the case do not agree with him. One of them, Dr. Holcomb, placed on the stand as an expert witness by the defendant, says, in answer to a hypothetical question in regard to plaintiff’s condition relative to being well in the morning and working all day, and then suffering this acute pain and having the swelling in the knee, that it is not logical to think that it could have existed, as Dr. Price says, from rheumatism. Dr. Martin, plaintiff’s witness who examined him after he was injured and who was in court during the time plaintiff testified as to how he was injured and how he suffered, positively asserts: “I do not think that condition is due to rheumatism,” and assigns a reason, by adding further: “We have the history of the case and the infusion is confined to one joint.” This last doctor seems to us to have been very much confirmed in his opinion that the plaintiff’s condition was due to the injury he gave a history of having received.

Thus it appears that on this question of fact also the evidence is in favor of the plaintiff which entitled him to the judgment rendered in his favor in the lower court. It may be that in our first consideration of this case, we did not give sufficient attention and weight to the reasons assigned by the learned district judge in support of his judgment. Our review of the facts certainly justifies the conclusion that there was no manifest error in his finding, and we now are of the opinion that it should have been affirmed instead of reversed.

For the foregoing reasons, it is now ordered that the former opinion, judgment, and decree of this court in favor of the defendant, which dismissed the plaintiff’s suit, be now set aside, avoided, and reversed, and it is further ordered, adjudged, and decreed th»t the judgment of the lower court in favor of the plaintiff be, and the same is hereby, reinstated and affirmed.

ELLIOTT, J.

(dissenting). The facts of this case are truly stated in .the original opinion. The opinion on rehearing does not •apparently take into account a fact, mentioned in the original opinion, that when the plaintiff and others in the car with him reached Lunita, they all got out and went to their respective homes, say an hour or two after the receipt of the alleged injury. The plaintiff was then within say 100 yards of the office of Dr. Price, the company physician. This physician, had treated plaintiff previously, and plaintiff knew where he kept his office. Plaintiff manifested no desire and made no effort to speak to this physician when he got out of the car. It would have been a natural thing for him to do so, at the earliest opportunity, if he had been seriously injured and was suffering therefrom as claimed, not only for the purpose of getfing treatment, but to inform him of his incapacity and get placed on insurance during the period of his disability. He went to see him the next morning. The former opinion mentions and quotes Act No. 20 of 1914, sec. 38 (amended by Act No. 38 of 1918, p. 60); but overlooked to mention the further statute, section 18, subsection 4 (amended by Act No. 85 of 1926, p. 122), which provides:

“All compensation payments- * * * shall mean and be defined to be for injuries and only such injuries as are proven by competent evidence, of which there are or have been objective conditions of symptoms proven, not within the physical or mental control of the injured employee himself.”

I think the original opinion of this court herein correct, and dissent from that on rehearing for the reasons stated in the first opinion.


text:
    No. 757
    First Circuit
    CHARITY HOSPITAL OF LOUISIANA v. FORNEA
    (March 3, 1931. Opinion and Decree.)
    Emmet Alpha, of New Orleans, and Ott .& Johnson, of Franklinton, attorneys for plaintiff, appellant.
    B. D. Talley, of Bogalusa, attorney for defendant, appellee.
   ELLIOTT, J.

Charity Hospital of New Orleans acting under the provisions of Act No. 126 of 1924 (Act No. 29 of 1928) alleges that Hubert Warner, an employee of R. D. Fornea, was cared for and treated in the hospital as a compensation employee, on account of personal injuries received in the service of said Fornea, and sues Fornea and Warner in solido for the sum of $126, alleged to be due the hospital on said account.

Warner did not appear nor make any defense, but Fornea appeared and denied liability.

On the trial of the case the Charity Hospital for the purpose of showing the care and treatment of Warner and liability on the part of Fornea, his employer and of the said Warner, offered in evidence copies of the hospital records, to which Fornea objected on the ground that they had not been properly authenticated, and contained various ex parte statements of fact concerning Warner and his injury, not admissible against Fornea.

The court sustained the objection and refused to admit the copies in evidence against Fornea.

The plaintiff, offering no other evidence, the court rendered judgment rejecting plaintiff’s demand. The plaintiff has appealed.

As far as the ruling of the court was concerned, we find that it was correct. The copies in question contain ex parte statements not admissible against him, are not authenticated by the proper official and do not bear the seal of the Charity Hospital.

The plaintiff relies upon section 392 (amending Act No. 27 of 1928) and par. 395 of the Revised Statutes, and Act No. 242 of 1912, as amended, to sustain the offering.

But the Act No. 267 of 1928 taken into account supports the ruling of the lower court.

The showing, however, was such that it is best to give the plaintiff another opportunity to make proper and sufficient proof of its demand in the suit filed and without the necessity of bringing another one.

For these reasons the judgment appealed from is annulled, avoided, and set aside, and the case is remanded to the lower court for a new trial. The plaintiff, Charity Hospital, to pay the cost of the present appeal, the cost in the lower court to abide the final result of the case.


author: PER CURIAM.

text:
    No. 13,756
    Orleans
    VALLEY SECURITIES CO., INC., v. LEVY
    (March 2, 1931. Opinion and Decree.)

      Connolly & Simoneaux, of New Orleans, attorneys for plaintiff, appellant.
    A. B. Leopold, of New Orleans, attorney for defendant, appellee.
   PER CURIAM.

Appellee moves to dismiss this appeal upon the ground that it was taken too late. Judgment was rendered and signed in the First city court on January 20, 1931. A motion for devolutive appeal and bond were filed February 4, 1931, or twelve clear days, exclusive of Sundays, thereafter. Appellant admits that the appeal was filed more than ten days after the rendition of the judgment and, consequently, not in compliance with the provisions of Act No. 128 of 1921 (Ex. Sess.), regulating practice in the First city court, but contends that that act is, unconstitutional.

We have given thorough consideration to the subject of the constitutionality of this act in the matter of Estate of Sassinot v. Demourelle, 1 La. App. 160, where the act was held to be constitutional, and subsequently, in the matter of Del Tyler v. Ingraham, 9 La. App. 366, 119 So. 439, where the case of Estate of Sassinot v. Demourelle was reaffirmed. It follows, therefore, that this appeal must be dismissed.

For the reasons herein assigned, the motion to dismiss the appeal is sustained and the appeal ordered dismissed.


author: WESTERFIELD, J.

text:
    No. 13,553
    Orleans
    RITCHIE v. N. O. PUBLIC SERVICE, INC.
    (March 2, 1931. Opinion and Decree.)
    Ivy Cr. Kittredge, of New Orleans, attorney for defendant, appellee.
    Richard A. Dowling, of New Orleans, and J. J. Jackson, of Hammond, attorneys for plaintiff, appellant.
   WESTERFIELD, J.

Mrs. Ritchie, the plaintiff in this case, sues the local street railway company in damages, which she fixes in the sum of $859, alleged to have been sustained by her while a passenger in one of defendant’s, cars. There was judgment below in defendant’s favor and plaintiff has appealed.

The record shows that on June 25, 1929, at about 10:00 a. m., Mrs. Ritchie, while a passenger in defendant’s street car, intending to signal for a stop, reached for the buzzer button near the window adjacent to the seat in which she was sitting. For some reason she did not succeed in operating the buzzer and arose from her seat and moved toward the. front of the car, holding on to the handle of one of the cross seats and calling to the motorman to stop- at the next corner. As the car was brought to a stop, she lost her balance and was thrown against the side of .the car, her face striking a metal container used by the company for holding pamphlets. She charges that the car was traveling at an excessive rate of speed and was stopped with unusual violence.

The evidence clearly preponderates to the effect that the street car was operated at a normal speed, and that the stop was made without any unnecessary jolt or jar, Mrs. Ritchie’s accident being due entirely to the fact that she lost her balance in walking about the street car while it was in motion for the purpose of reaching- another buzzer button, under the erroneous impression that the one she first tried to ring was out of order. We say erroneous impression because " immediately after the accident the conductor had no difficulty in operating the exact button which she reached for.

Under the circumstances we find the defendant to be without responsibility in the premises.

As was said in Nee v. N. O. Public Service, Inc., 11 La. App. 1, 123 So. 135, 136:

“Cars must be stopped and must be started, and, if these operations are conducted without unusual jolt or jar, no liability results merely by reason of the fact that some person is thrown off balance.’’ See, also, Sharp v. N. O. City R. R. Co., 111 La. 395, 35 So. 614, 100 Am. St. Rep. 488; Veith v. N. O. Ry. & Light Co., 152 La. 47, 92 So. 730; Philips v. St. Charles St. R. R. Co., 106 La. 592, 31 So. 135; Vincent v. N. O. Ry. & Light Co., 134 La. 654, 64 So. 654; Aiken v. Southern Pacific Co., 104 La. 157, 29 So. 1.

The authorities relied upon by plaintiff, Le Blanc v. Sweet, 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303; Hopkins v. N. O. Railway & Light Co., 150 La. 61, 90 So. 512, 19 A. L. R. 1362; and Cusimano v. N. O. Public Service, Inc., 12 La. App. 586, 122 So. 903, are not in point. There is no question here as to how the accident occurred and the presumption of the carrier’s negligence, which arises when a passenger is injured, has been entirely overcome in this case by the proof in the record concerning the operation of the car and the manner in which the accident happened.

For the reasons assigned the judgment appealed from is affirmed.


author: HIGGINS, J.

text:
    No. 13,533
    Orleans
    CRESCENT CIGAR & TOBACCO CO. v. RIZZUTO
    (March 2, 1931. Opinion and Decree.)
    Jos. F. Deynoodt, of New Orleans, attorney for plaintiff, appellee.
    Claude L. Johnson, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff brings this suit against defendant on a written contract of suretyship dated March 1, 1927, to recover the sum of $175.69, the alleged balance due on an open account that the defendant had guaranteed. The defense is that the contract of suretyship only covered future credit and not the past-due indebtedness of the debtor.

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

The contract sued upon reads as follows:

“For and in consideration of value received of the Crescent Cigar & Tobacco Co., and as an inducement to the Crescent Cigar & Tobacco Co., to extend credit to Henry Cangelosi, I, J. Rizzuto, the undersigned, hereby agree to pay on demand any liability or debts, not exceeding $250.00, created by Henry Cangelosi with the said Crescent Cigar & Tobacco Co., if not paid by the said Henry Cangelosi, when due and after demand has been made on him.
“The said debts or obligations must be for merchandise or material furnished by the said Crescent Cigar & Tobacco Co., or by others on the order of the Crescent Cigar & Tobacco Co.
“It is understood by the undersigned that this guarantee is to remain in effect, until revoked by registered written notice from me to the Crescent Cigar & Tobacco Co., or upon surrender of this document by the Crescent Cigar & Tobacco Co.
“It is further agreed that I shall not be responsible for any debts created after the revocation or surrender of this surety or guarantee.
“New Orleans, La., March 1st, 1927.
“Sign Here: — J. Rizzuto.
“Witness: F. Bertoniere.”

The plaintiff proved that the debtor had purchased certain merchandise from it and had paid something on account, but failed to pay the balance due; that defendant was the father-in-law of the debtor, Henry Cangelosi, and, in order to prevent plaintiff from suing the debtor, signed the contract sued upon; that Henry Cangelosi was adjudged a bankrupt and listed plaintiff’s claim in his schedules.

On cross-examination of plaintiff’s witnesses, defendant established that the amount claimed in this suit was for merchandise sold to Cangelosi before the contract of suretyship was signed, and that thereafter the plaintiff never sold Cangelosi anything on credit, either because nothing was ordered or because Cangelosi paid cash for the merchandise. <

The sole question before us is whether the contract of suretyship covers the past due indebtedness, of Cangelosi or only credit to be extended to him in the future. This involves an interpretation of the provisions of the contract.

Article 3039, Rev. Civ. Code, provides:

“Suretyship can not be presumed; it ought to be expressed, and is to be restrained within the limits intended by the contract.”

We note that the contract was written by the plaintiff’s officer. It follows, therefore, that any ambiguity or uncertainty therein must be construed against it. Nowhere in the contract do we find any language that would indicate an intention on the part of -the surety to guarantee the payment of an existing debt, but, on the contrary, the agreement seems to contemplate only future obligations of Cangelosi. The intention of the parties, as appears from the wording of the agreement, was that defendant would be surety as an inducement to the Crescent Cigar & Tobacco Company to extend credit to Henry Cangelosi.

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


text:
    No. 13,529
    Orleans
    SHEPHERD v. LOYOCANO
    (March 2, 1931. Opinion and Decree.)
    Stanley A. J. Baron, of New Orleans, attorney for plaintiff, appellee.
    Edward Rightor and Henry G. Neyrey, of New Orleans, attorneys for intervener, appellant.
   WESTERFIELD, J.

Plaintiff, Mrs. Richard J. Shepherd, in this proceeding and Theodore Loyocano, alleging that there was due her $242.50 as rent under a verbal lease of a residence owned by her. She asked for a recognition of her lessor’s lien and privilege, and alleged that certain household furniture subject to her right of lien and pledge had been removed from the premises less than 15 days before the filing of her petition. She prayed for a writ of provisional seizure directing the constable of the first city court to seize the property which had been removed in order that it might be sold and the proceeds applied to the payment of her rent.

Judgment by default was taken against Loyocano, a writ of provisional seizure issued, and the property ordered sold on March 3, 1930.

On March 1st, two days before the date of sale, Abraham Burglass intervened, and alleged that he was the owner of a number of articles of rurniture which had been ordered sold and more particularly set forth in the petition of intervention. He alleged that the property referred to had been sold to Loyocano several years prior to the seizure for the sum of $496, and that, of the purchase price, there remained due on January 16, 1930, the sum of $263.15, in settlement of which amount the furniture had been, by written agreement, delivered to intervener, as a dación en paiment. He prayed for recognition as owner of the property, with reservation of his right to proceed thereafter for the recovery of such damage as he sustained by reason of its wrongful seizure.

The lower court rendered judgment in favor of plaintiff dismissing the intervention, and Burglass has appealed.

Article 2709 of the Revised Civil Code provides that a lessor may seize the objects which are subject to his pledge while in the leased premises or “within fifteen days after they are taken away, if they continue to be the property of the lessee, and can be identified.”

As has been stated, the property seized was conveyed.by the lessee to Burglass under a dation en paiment, the effect of which, if validly executed, was to transfer the ownership of the property to Burglass and to destroy plaintiff’s lien. There is no suggestion that the consideration of the dation en paiment was. simulated and no proof that it was collusive or fraudulent. We therefore conclude that the furniture described in the petition of intervention was improperly subjected to the landlord’s lien, and that, at the time of its seizure, it belonged to Burglass. St. Charles Hotel Co. v. Tarbox Co., 23 La. Ann. 715; Race, Merrick & Foster v. Emile LaHache, 27 La. Ann. 87; Bailey v. Quick, 28 La. Ann. 432.

It was admitted' in argument that the property had been sold under the writ of provisional seizure, and was now in the possession of the purchaser. No injunction having been asked for or obtained by intervener, it follows that the purchaser at that sale obtained title to the merchandise which the intervener, because of his acquiescence in the sale, cannot challenge. Under the circumstances, we can only reserve to intervener a right to sue plaintiff in damages.

For the reasons assigned, the judgment appealed from is amended so as to reserve the right of the intervener herein, Abraham Burglass, to sue the plaintiff, Mrs. Richard J. Shepherd, for such damages as he may have suffered by reason of the unlawful seizure and sale of his. property described in the petition of intervention, and, as thus amended, it is affirmed.

JANVIER, J., having been of counsel, takes no part.


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    No. 13,373
    Orleans
    RICHARDSON v. TRUSTEES’ LOAN & GUARANTY CO., INC.
    (February 2, 1931. Opinion and Decree.)
    •Cobb & Jones, of New Orleans, attorney for plaintiff, appellant.
    Irving R. Saal and Raymond Saal, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is an action by John B. Richardson to annul a judgment obtained by the Trustees’ Loan & Guaranty Company, Inc., against Joseph B. Richardson in so far as it is sought to be enforced against the plaintiff and to restrain the defendant and constable from proceeding further with the execution of the writ of fieri facias issued on the judgment rendered against Joseph B. Richardson.

The record shows that the Trustees’ Loan & Guaranty Company, Inc., sued Joseph B. Richardson and obtained a judgment against him by default and then caused to be issued a fi. fa. and seized certain property belonging to John B. Richardson, who made proper affidavit, claiming ownership of the property seized, furnished bond, and caused the property to be released to him.

The Trustees’ Loan & Guaranty Company then filed a motion alleging that Joseph B. Richardson and John B. Richardson were one and the same party, and as a matter of fact that John B. Richardson had been served through domiciliary service, although the citation and the constable’s return were in the name of Joseph B. Richardson, and that John B. Richardson was estopped from denying that he was the party served with citation, and therefore the seizure was legal and should be maintained and the property sold.

John B. Richardson answered this rule alleging that he had never been made a party to the suit; that the court was without jurisdiction; that the rule disclosed no cause of action; and that the procedure was unauthorized and was an attempt to alter a judgment by a method neither provided for nor authorized by law.

There was judgment making the rule absolute, from which John B. Richardson appealed.

The testimony adduced on the trial of the rule was not reduced to writing, and this court ex proprio motu dismissed the appeal because the transcript did not contain the evidence upon which the rule was tried and judgment rendered. Trustees Loan & Guaranty Co., Inc., v. Richardson, 9 La. App. 54, 118 So. 837.

John B. Richardson then instituted the present action of nullity on the following grounds;

First, that the citation was not addressed to John B. Richardson, but to Joseph B. Richardson.

Second, that the return of the constable shows that the citation was served upon a servant at the residence of Joseph B. Richardson, who neither, at the time the service was made, nor at any other time, was residing and living at the plaintiff’s domicile.

The Trustees’ Loan & Guaranty Company filed an exception of res judicata which was maintained, and the plaintiff, John B. Richardson, appealed to this court, where the judgment of the lower court was reversed and the case remanded for further proceedings according to law. Richardson v. Trustees Loan & Guaranty Co., Inc., et al., 10 La. App. 363, 120 So. 890.

When the case was called for argument in this court, counsel for the defendant, Trustees’ Company, suggested that the appeal should be dismissed ex proprio motu because the transcript failed to contain the affidavit and bond of John B. Richardson, claiming ownership of the property seized under the writ of fieri facias and the decree and judgment on the rule which has been taken by the Trustees’ Company to have it declared that John B. Richardson and Joseph B. Richardson were one and the same party, and that the citation and seizure were legal and should be maintained.

The record on this issue showed that, on the trial 'of the present suit of nullity, counsel for John B. Richardson offered in evidence the petition, citation, and judgment of the court in the original suit to show that the proceeding was one against Joseph B. Richardson and not John B. Richardson. Counsel for the Trustees’ Company objected to the introduction of these documents unless the entire record was offered in evidence, which objection was sustained by the lower court. Counsel for John B. Richardson then offered the entire record of the original suit.

It was our opinion that, the original record having been offered for a certain purpose in the nullity proceeding, the fact that some documents were missing from the original record would not be a sufficient cause for the dismissal of the appeal; but merely affect its weight as evidence for the purpose for which it had been offered.

We refuse to dismiss the appeal ex proprio motu because the transcript showed that it contained all of the evidence and proceedings in the nullity suit, and that the transcript in this case was therefore complete.

It is noted that the appellee did not file a motion within three days prior to the day set for argument as required by law, to have the appeal dismissed, and that was the reason why the suggestion was made that we dismiss the appeal ex proprio motu.

It appears that under the provisions of Article 898 of the Code of Practice that, if these particular documents were indispensable to the issue presented in the present case, we would have the right to give the appellant an opportunity to have the record completed.

It is. not shown that the missing documents are essential to the question at issue, and that appellee’s rights will be prejudiced by their non-production. Counsel for appellee does not request that we afford an opportunity so that these documents can be produced, but merely suggest that we dismiss the appeal. We would be inclined to grant time within which these documents could be produced, but, since neither appellant nor appellee asks that this be done, we shall not do so. For these reasons we decline to dismiss the appeal ex proprio motu.

The appellee has filed in this court a plea of res. judicata on the ground that' in the petition for rehearing, from the original judgment of this court dismissing the appeal ex proprio motu because the transcript was incomplete, it was alleged that the record showed on its face that the judgment was null as against John B. Richardson because the suit was against Joseph B. Richardson, and citation addressed to Joseph B. Richardson and the return of the constable’s domiciliary service showed same as having been made upon him. As pointed out in our former judgment overruling the plea of res judicata, the issue presented at that time was the validity vel non of the seizure of the property of John B. Richardson, and not the validity vel non of the judgment against Joseph B. Richardson.

It is our opinion that the present plea of res judicata is practically the same as the plea of res judicata which was overruled by this court when the case was. here before, and, therefore, the plea is overruled.

The rule of law is well established that proper citation is the foundation of the action, and that it is fdfadamental that no valid judgment can be rendered in any case unless the defendant has been informed of the suit against him by citation properly addressed to him in strict compliance with the law. Bertoulin v. Bourgoin, 19 La. Ann. 360; Jacobs v. Frere, 28 La. Ann. 625; Antoon v. Wilkinson, 6 La. App. 242; Babin v. Lyons Lumber Co., 132 La. 873, 61 So. 855; McDonald v. Vaughan, 13 La. Ann. 405; Xeter Realty Co. v. Samorini, 135 La. 976, 66 So. 318; Bowen v. Mulford, 5 Halsted (10 N. J. Law) 230; Southern Pacific v. Block, 84 Tex. 21, 19 S. W. 300.

But the defendant contends that the plaintiff was the party intended to be sued, and that the citation addressed to Joseph B. Richardson was sufficient to bring the plaintiff into court for the purpose of rendering a judgment against him.

The evidence on this issue shows that John B. Richardson signed a note with other co-makers, signing his name J. B. Richardson; that the note was not paid; that information obtained from a credit bureau by counsel for the Trustees’ Loan & Guaranty Company showed that Richardson’s name was Joseph B. Richardson; thát upon receipt of a letter from counsel for the Trustees’ Company addressed to Joseph B. Richardson, John B. Richardson called at his office for the purpose of discussing the contents of the letter, which concerned the note upon which Joseph B. Richardson was subsequently sued, and that Joseph B. Richardson and John B. Richardson were one and the same party.

We do not find that the attorney for the Trustees’ Company was misled by any statement or action on the part of John B. Richardson in believing that J. B. Richardson, the party who signed the note, represented Joseph B. Richardson, and not John B. Richardson, because the information upon which the original letter was written was obtained from the credit bureau.

Again, when the constable notified the attorney for the Trustees’ Company that the parties at the address he was furnished for the purpose of serving citation claimed that John B. Richardson and not Joseph B. Richardson lived there, he was told to serve the citation as originally instructed.

Under these circumstances we do not believe that John B. Richardson has so conducted himself to justify us in holding that he had acquired the alias of Joseph B. Richardson in this matter or was estopped to deny that the citation was legal.

Even if it be conceded that John B. Richardson had placed himself in a position by his. conduct and actions to justify us in holding that he had acquired the alias of Joseph B. Richardson for the purpose of service of citation in the transaction, nevertheless the evidence clearly shows that the citation was served upon a servant, who did not live at the domicile of John B. Richardson. Such a service was. not in compliance with paragraph 9, section 1, of Act No. 179 of 1918 which provides that citations addressed to an individual may be served at his domicile by leaving the citation and a copy of the petition in the hands of a person above the age of sixteen years, residing on the premises. The law is well settled that the service upon one not living at the domicile of the defendant is not valid, and no valid judgment can be rendered thereon. Pilie v. Kenner, 16 La. 570; Sparks v. Weather by, 16 La. 594; Thibodeaux v. Wright, 3 La. Ann. 130; Oakey v. Drummond, 4 La. Ann. 363; Feazel v. Cooper, 15 La. Ann. 462; Cole v. Hocha, 21 La. Ann. 613; Lewis v. Smith, 24 La. Ann. 617; Lehman, Sterm & Co. v. M. A. Broussard et al., 45 La. Ann. 346, 12 So. 504; Rehage v. Hayford, 141 La. 103, 74 So. 711; Robinson v. Enloe, 10 La. App. 435, 121 So. 320; Quinn v. O’Neil, 10 La. App. 121, 121 So. 377.

Finally, in argument at the bar, counsel for appellee contended that the filing of the affidavit claiming ownership and the furnishing of a bond to secure the release of the property seized was. such an appearance in the suit by John B. Richardson as to waive the defective citation, and, therefore, the original judgment was valid as against John B. Richardson.

In this connection we note that, although the petition ^ specifically sets forth the grounds for nullity of the original default judgment, the answer of the defendant, Trustees’ Loan Company, does not allege or plead that, if the citation be held to be defective, John B. Richardson has waived his rights by his voluntary appearance in filing the affidavit and bond to secure the release of the property seized.

We have our serious doubts as' to the appellee’s rights at this time to raise the question only in argument before this court, but, viewing the matter as if the question were properly presented, we do not find that there has been any evidence whatsoever offered by the appellee showing any appearance by John B. Richardson in the original proceeding which would justify us in holding that he had waived the defective citation and had voluntarily submitted himself to the jurisdiction of the court.

It is suggested that the missing affidavit and bond might show such a waiver, but, as we have heretofore stated, a request has been made by neither appellee nor appellant for a reasonable opportunity for the purpose of having these documents placed in the record, and, therefore, we do not deem it necessary to delay the case further for that purpose.

We might add that the filing by John B. Richardson of the affidavit and bond was not voluntary, but forced by the Trustees.’ Loan Company’s action in seizing his property.

In any event there is no evidence, either oral or documentary, in the record offered by the appellee to show that John B. Richardson waived the'defective citation by voluntary appearance in the original suit.

An injunction will lie to prevent the execution of a void judgment and the sale of property thereunder. Klein v. Coon, 10 La. Ann. 522; Cavelier v. Turnbull’s Heirs, 8 Mart. (O. S.) 61; State v. Sommerville, 112 La. 1091, 36 So. 864; Union Ins. Co. v. Benit, 29 La. Ann. 297; Mulling v. Jones, 142 La. 300, 76 So. 720; Sowell v. Cox, 10 Rob. 68; Gajan v. Patout, 135 La. 156, 65 So. 17; Taft v. Donnes, 105 La. 699, 30 So. 112.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of John B. Richardson, plaintiff herein, and against the Trustees’ Loan & Guaranty Company, defendant herein, declaring null, void, and of no effect the judgment rendered in the case entitled. Trustees’ Loan & Guaranty Co. v. Joseph B. Richardson, No. 151,707 of the docket of the First city court of New Orleans, dated December 23, 1927; and with reservation of John B. Richardson’s rights to sue for such damages occasioned by the seizure of his property.

It is further ordered, adjudged, and decreed that this case be remanded to the trial court, with instructions to issue a writ of injunction restraining the defendant, Trustees’ Loan & Guaranty Co., Inc., and the constable of the First city court in the city of New Orleans, their agents, servants, and employees, from seizing, or attempting to seize, or otherwise proceeding with the sale of the property of John B. Richardson, plaintiff herein, and perpetually enjoining the said defendant, Trustees’ Loan & Guaranty Co., Inc., and the said constable, their agents, servants, or employees, from doing any of the things aforesaid.

Defendant, Trustees’ Loan & Guaranty Co., Inc., to pay costs of both courts.


text:
    No. 13,221
    Orleans
    RAZIANO v. TRAUTH
    (December 1, 1930. Opinion and Decree.)
    (January 19, 1931. Rehearing Granted.)
    (February 2, 1931. Opinion and Decree on Rehearing.)
    Finnorn & Todd, John B. Finnorn and Robert B. Todd, of New Orleans, attorneys for plaintiff, appellant.
    F. A. Middleton, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This suit results from a collision between a truck belonging to plaintiff and an automobile of defendant. Both parties claim damages to their respective vehicles.

There was judgment below dismissing plaintiff’s suit and awarding defendant damages in reconvention in the sum of $410.75. From this judgment plaintiff has. appealed.

The record indicates that on the night of February 6, 1929, at about 8:30 p. m., plaintiff’s truck was parked on Third street in the town of Kenner. Third street runs north and south, and is divided by a neutral ground, and has two paved thoroughfares on each side about 9 feet in width. Defendant's automobile entered Third street at its intersection with Williams street, turned south in tha direction of plaintiff’s parked truck, and, proceeding along Third street, collided with the truck at a point about 200 feet distant from the intersection.

It is admitted that plaintiff was guilty of negligence. He left his truck unattended on a narrow public thoroughfare, with his motor running without -setting his brakes. He was guilty of violating sections 26 and 28 of Act 296 of 1928, which require that an unattended parked motor vehicle shall have its brakes set and its motor stopped, and shall be so parked as to leave a clearance of 15 feet on the traveled portion of the highway for free passage of other vehicles. He was. also guilty of violating section 50, paragraph (d), of the same act, requiring motor vehicles to carry a red light on their rear. We have some doubt as to whether there was any light at all on the plaintiff’s truck, but there is no contention that there was any on' the rear. The sole question is whether defendant had the last clear chance of avoiding “the accident.

As has been said, plaintiff’s truck was 200 feet from the intersection of Williams street; consequently there was ample opportunity for the driver of- defendant’s automobile to have negotiated the curve and for the lights of his car to have assumed their normal position, illuminating the roadway in front of him. He claims that he saw the truck before the impact, but only when at a distance of 20 feet, and that, since he was. traveling at the rate of approximately 20 miles per houi, there was no opportunity for him to have stopped his car in time to have prevented the accident. He undertook to avoid the truck by turning sharply to the left, but there was not sufficient space to pass, and he was not successful. In explanation of his failure to see the truck sooner, he says that his vision was obscured by fog and by the rays of a forty-watt light which was suspended from a shed over the sidewalk about 20 feet to the rear of the truck.

The evidence on the question of the prevalence of fog in the vicinity of the accident is not entirely satisfactory. We will assume, however, since the evidence seems to preponderate to that effect, that there was a light fog. In so far as the light is concerned, it is difficult to understand how a light of that small candle power could have seriously affected his view. But, assuming that the light and fog did affect his view, he would be required to exercise a degree of caution commensurate with the increased danger these circumstances involved. The fact that he did not see the truck until so close upon it cannot excuse him, for he must be held to have seen what he should have seen, or what a man of ordinary eyesight could have seen, and, if the fog affected his vision, he should not have maintained a speed of 20 miles an hour knowing that he was driving on a very narrow thoroughfare.

In the case of Parlongue v. Leon, 6 La. App. 18, where the facts, were strikingly similar to those obtaining in the instant case, we held:

“It is negligence to stop an automobile upon the highway after dark without headlights or back lights. But this negligence does not justify another automobile to run into it negligently, nor absolve it from responsibility if, by the use of ordinary care, the collision could have been avoided. The question whether the plaintiff had lights, in front or the rear of his automobile at the time of the accident is asserted by the plaintiff and denied. by the defendant. Assuming that the plaintiff had no lights at all, he can fail to recover only if defendant, in the absence of those lights^ could (not) have avoided the collision by the exercise of proper care.
“In the case of Blackburn v. Railroad, 144 La. 520, 80 So. 708, the plaintiff sat upon the track of the defendant railroad at 3:20 A. M. of the night and was run over and killed by a train of the defendant company. Suit was filed against the railroad; the defense was contributory negligence. There was judgment for plaintiff. The court said on p. 529 [of Blackburn v. Railroad, 144 La., 80 So. 708, 712]:
“ * * This train was either running at such a rate of speed that it could not be stopped within the distance objects on the track could be seen, or the lights were defective on the train, or the trainmen were not keeping a proper lookout. Whichever may have been the case, that was the proximate cause of the injury. If there were any difficulties, against seeing, this was all the more reason why greater care should have been used.’ * * *
“Huddy on Automobiles, p. 360, S. 307:
“ ‘Reasonable care requires in many cases that the driver of a motor vehicle drive at a slower speed at night than during th§ day. One restriction on his speed is that he shall keep the machine under such control and operate it at such a speed that he can stop the machine and avoid an obstruction or danger or another traveler within the distance that the highway is illuminated by his lights.’
“Also p., 937, S. 715.
“The defendant violated this rule.
“He, and his witness, testify that they did not see plaintiff’s car until they came within a few feet of it. The road upon which the defendant was traveling was smooth and straight and his headlights were burning brightly. Nothing obstructed his view.
“ ‘He will be presumed, in case of accident, to have seen what he should have seen in the performance of his duties] Kelly v. Schmidt, 142 La. 91, 76 So. 250.’’

See, also, Canal Steel Works v. City of New Orleans, 9 La. App. 575, 121 So. 773; Alexandria Refining Company v. Missouri Pacific Railroad, 1 La. App. 470. Pollet v. Robinson Lumber Co., 10 La. App. 760, 123 So. 155.

The case before us. cannot be distinguished in principle from the case of Parlongue v. Leon, supra. The judgment in favor of defendant in reconvention must be reversed, as defendant had the last clear chance of avoiding the accident, and therefore his negligence was the proximate cause of the accident.

It is admitted that plaintiff’s truck suffered damages to the extent of $95 for which he must have judgment. His. claim for $15 per day for nine days for deprivation of his truck during repair will not be allowed, because there is nothing in the record to show that this damage was actually sustained.

For the reasons assigned, the judgment appealed from is reversed, and it is. now ordered that plaintiff, Biaggio Raziano, have judgment against defendant, Frank Trauth, in the full sum of $95 with interest at the rate of 5 per cent from judicial demand until paid.

It is further ordered that defendant’s reconventional demand be dismissed, at his cost.

ON REHEARING

A reconsideration of this case has convinced us of the correctness of our former decree. In addition to the authorities cited therein we have reviewed the following which appear to be directly in point: Proper v. Walsworth, 6 La. App. 610; Southall v. Smith, 151 La. 967.

For the reasons assigned our original decree is reinstated.


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    No. 13,433
    Orleans
    STAFFORD, DERBES & ROY, INC., v. DEGRUY
    (November 17, 1930. Opinion and Decree.)
    (December 15, 1930. Rehearing Refused.)
    (January 5, 1931. Writs of Certiorari and Review Granted by Supreme Court.)
    (March 2, 1931. Opinion and Decree of Supreme Court.)
    Chas. I. Denechaud and Ernest J. Robin, of New Orleans, attorneys for plaintiff, ap< pellee.
    Legier, McEnerny & Waguespack, of New. Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit on five certain promissory notes executed by ■the defendant in favor of plaintiff, amount■ing in the aggregate to $816, plus interest and attorneys’ fees, after an allowance of a small credit on one of the notes. The notes were given by defendant in part payment of the purchase price of certain lots of ground under an agreement to purchase dated January 6, 1926, commonly called a “bond for deed.”

The answer admits the execution of the notes, but pleads want of consideration, and asks for a judgment in reconvention against plaintiff for $120, the amount paid on account of the purchase price of the property.

There was judgment below in favor of plaintiff, and defendant has appealed.

The defense of want of consideration is based upon the alleged inability of plaintiff to give a merchantable title to the property, a part of the purchase price of which is represented by the notes sued on because of the failure of plaintiff to comply with Act No. 134 of 1896 and Act No. 80 of 1922.

The first act requires all persons “owning real estate, * * * who desire to plat the same into squares or town lots to file in the office of the keeper of notarial records of the parish where the property is situated maps of such proposed towns or tracts of land before selling any part of same, and declaring any violation of this act to be a misdemeanor and providing a penalty for the violations hereof.”

The Act No. 80 of 1922 requires all persons, firms, associations, or corporations subdividing property into lots, or blocks to have the property surveyed, to cause a legal description of the land to appear on the survey, to have a certified copy of the survey filed in the office of the clerk and ex officio recorder in the parish in which the land is situated, and to further have a duplicate thereof filed in the assessor’s office of such parish, and it also provides that “it shall be unlawful for any such person, firm, association or corporation to sell any of said lots or blocks until such plSt has been so filed and recorded.”

The property which plaintiff agreed to sell is situated in the parish of Jefferson, and consists of certain lots, the result of a subdivision by plaintiff in connection with a development known as the “Kenner Project,” and is numbered 1 to 6 and 47 to 52 in square 80 on a map dated December 4, 1925, which has been introduced in evidence.

It is admitted that the plaintiff has failed to comply with the provisions, of the acts relied on. The question before us is the effect of its failure to do so.

It is defendant’s contention that the result of plaintiff ignoring the requirements with reference to surveying and recording the property is to make it impossible for plaintiff to tender a merchantable title, and our attention is directed to the fact that the law prohibits all clerks, recorders, and notaries public placing upon their records any titles or deeds resulting from sales which have been made without complying with the provisions of this act. This argument would be more persuasive if the notes sued on grew out of a sale of the property, but, since they result only from an agreement to sell or what is popularly termed a “bond for deed,” it is not convincing.

In Lambert Bros. v. Hertz, 7560 Orleans Appeals, unreported [see Louisiana and Southern Digest], this court held, with reference to a similar contract:

“We do not think that this ‘Bond for Deed’ was a sale or an act translative of property either under the law or in the minds of the contracting parties; there was something else to be done by both parties before the title passed; Doormans' had to comply with certain conditions of the bond as a condition precedent to his right to claim a deed, and Hertz was not bound to sign a deed until Doormans had complied with them; and there was- an act of sale to be passed by Hertz to Doormans on the latter complying with certain conditions. Talbot v. N. O. Land Co., 143 La. 264 [78 So. 553].”

Referring to the contract in this case, we observe that the defendant agreed to buy the property referred to, for the sum of $936, $78 cash, the balance to be represented by four notes of $168 and one note of $186. It was agreed that the failure to pay any one of the notes promptly at maturity would mature the entire series. The plaintiff herein, the owner of the property, agreed that it would, "when the payments have been made in accordance with the terms and conditions of this agreement, deliver to the party of the second part, the usual notarial act to the premises herein described at the cost of the party of the 'second part, together with ‘guaranty of title’ of the Louisiana Abstract and Title Guarantee Company.” The effect of this agreement was to obligate the plaintiff, the owner of the property, to deliver a good title guaranteed as set forth in the agreement when all the notes representing the purchase price had been paid. It may well be that, when the obligation of th'e defendant under this agreement has been met, the plaintiff will be able to comply with the terms of the Acts of 1896 and 1922 referred to by counsel, and then be in a position to tender a title which the abstract company will be willing to guarantee and defendant willing to accept, thus discharging its obligation under the contract. Should it develop hereafter that the plaintiff is unable or unwilling to comply with its undertaking under the agreement to sell, the defendant would not be without remedy, and the objections raised in this case would then be pertinent and perhaps decisive of the issue in appropriate litigation. At. this, time, however, we believe this point to be premature, because it may develop to be premature, because to defendant the provisions of the two acts shall have been complied with and a guaranty bond offered, in which event, as we view the matter, the defendant would be without cause of complaint under his agreement to purchase the property involved in this litigation.

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

HIGGINS, J., takes no part.