author: HIGGINS, J. JANVIER, J.

text:
    No. 13,376
    Orleans
    BAPTISTE v. N. O. PUB. SERVICE, INC.
    (April 7, 1930. Opinion and Decree.)
    (May 17, 1930. Rehearing Refused.)
    (July 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Richard A. Dowling, Wm. R. Kinsella, of New Orleans, attorneys for plaintiff, appellee.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff sues defendant as a carrier- of passengers for the sum of $9,-200 for personal injuries alleged to have been sustained about 4 o’clock p. m. April 1, 1929, while attempting to alight from the rear platform and step of the street car upon which she was riding as a passenger, at the corner of Freret street and Napoleon avenue, this city. The petition alleges that the step and doors of the car leading from the rear platform are operated by a mechanism which causes the doors to open and close and the step to be drawn against the side of the car in a vertical position when not being used and to be lowered and placed in a horizontal positiou at right angles with the side of the ear when the doors are open and the step is in position to be used; that as the car stopped, the doors were opened and the step lowered by the conductor, who operated the mechanism with a lever, and that plaintiff was thereby invited to descend; that, as she stepped from the rear platform on the step, she did not notice that the step was not completely down in its correct position, and, as she stepped upon it, it gave way under her weight for a distance of about three inches, thereby causing her to lose her balance and fall violently to the ground; and that, as a result of the fall, she suffered certain alleged injuries.

Defendant entered a general denial and averred that, after the plaintiff safely alighted from the car, she stumbled and fell while walking from the car, breaking the force of her fall by landing partly on a bundle of clothing on the ground near her; that the car had fully stopped; that the step was placed in the proper position and was fully down and was in a good state of repair; that the agents and employees of the defendant exercised all possible care, prudence, and caution on the occasion, and that the plaintiff is solely at fault and responsible for her injuries through her own negligence and imprudence in failing to exercise that degree of care and caution necessary under the circumstances.

The case was tried before the district court, who rendered judgment in favor of plaintiff for the sum of $2,000, and defendant has appealed.

As this is a suit against a public carrier of passengers for alleged personal injuries sustained by a passenger, when the plaintiff proved that she was such a passenger on the street car, and that she fell from the step of the car while alighting, the burden of proving itself free from fault was then upon the defendant. LeBlanc vs. Sweet et al„ 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303; Hopkins vs. N. O. Ry. & Light Co., 150 La. 61, 90 So. 512, 19 A. L. R. 1362; Rizzo vs. N. O. Ry. & Light Co., 7 La. App. 686; Cusimano vs. N. O. Public Service, (La. Sup.) 127 So. 376.

The record shows that plaintiff was a passenger upon a Napoleon avenue street car, owned and operated by the defendant, and that the car stopped at the corner of Napoleon avenue and Freret street for the purpose of discharging and receiving passengers at the usual paved landing place. As the car stopped, the conductor pulled the lever which caused the doors of the car to open and the step to go down, in order that passengers might descend and board the car. Andrew Dallas, a colored boy, who was a passenger on the car, threw a large bundle of laundry wrapped in a sheet from the rear platform of the car to the pavement. The plaintiff then stepped from the rear platform on to the step, which had not gone all the way down to a horizontal position, where it properly should have gone, and, as she placed her right foot upon it, the step gave way, or went down under her weight, causing her to fall from the step to the ground, striking her left knee on the step and her right knee and shoulder on the pavement, with her arms on the laundry bundle. The conductor picked her up and she showed him the injuries to her knees. Plaintiff is a colored woman, age 57 years, and is a trained nurse. She is very tall and thin. She was able to walk, but was assisted home by a friend.

This case involves only issues of fact, of which there are two: First. Whether or not the plaintiff safely alighted from the car and then tripped or stumbled over the bundle of clothes. Second. Did the plaintiff fall from the step of the car due to the fact that the step was not in proper position (that is, at right angles with the side of the car) but was in a vertical position, or on an oblique angle with the side of the ear. We shall discuss the evidence with reference to these two questions in the above order.

It is first noted that the answer of the defendant does not say that the plaintiff stumbled over the bundle ■ of clothing, but merely that the force of the fall was broken by falling on the bundle of clothing on the ground near her. Defendant’s witnesses contradict each other as to where the bundle was, some saying it was within two or three feet of the car and others within five or six feet of the car. One of defendant’s witnesses, Andrew Dallas, the colored boy, age 12, who threw the bundle from the car, testified that the plaintiff fell from the step of the car. The motorman, Louis Monicou, testified that the conductor, John E. Unland, told him that the plaintiff said at the time of the accident tjhat she fell from the step. The motorman also testified that F. M. Kroh, another witness for the defendant, told him at the time of the accident that the plaintiff claimed she fell from the step and would make a claim against the company, but that he (Kroh) saw her when she fell over the bundle and gave his name and address to the motorman as a witness. In spite of this testimony the defendant offered as a witness George T. Croman, one of its investigators, who testified that he interviewed the plaintiff at her home the morning after the accident, and that she said she fell after she alighted. All of the plaintiff’s witnesses, including herself, testified that she fell from the step of the car, and that her arms came in contact with the bundle after she fell to the ground. The preponderance of the evidence clearly shows that the plaintiff fell from the step of the car and not over the bundle, after safely alighting.

We next pass to a consideration of the question as to what caused the plaintiff to fall from the step of the car. The plaintiff and her three witnesses testify that she fell from the step of the car, and plaintiff and one of her witnesses, Andrew Burras, colored, testified that the step was not properly down and gave way under her weight as she stepped upon it, causing her to fall. The motorman and conductor both testified that they did not see plaintiff when she fell, but that they had no complaints from any other passengers before or after the accident that the step was not in good working order. F. A. Geiser, repair foreman for the defendant, testified that the mechanism that operated the doors and the step is operated by air pressure, and that, when the doors were wide open, the step had to he fully down in position to be used. He stated that this car had been in use since March, 1925, and, as far as he knew, there had never been any repairs to take up the slack or lost .motion which would be caused by the wearing of the parts which were used in the mechanism that opened and closed the doors and step. On cross-examination he admitted that in opening and closing the doors and steps there would he wear on the pins that would cause some lost motion, maybe one-eighth or a quarter of an inch. In short, the plaintiff has positive testimony that the step was not in proper position and did give way some two or three inches under her weight when she stepped upon it, and the evidence of the defendant as to the step being in proper position is negative. We, therefore, find that plaintiff fell from the step of the car as a result of its being tilted, or in an improper position, and that the defendant was guilty of negligence and carelessness in inviting a passenger to descend upon a step which gave way and would not properly support her weight and cause her, a passenger, to fall. Even if we were not of the opinion that the evidence preponderates in favor of plaintiff, and that defendant has failed to show that it was free from fault, nevertheless, the case would clearly fall within the category of the decisions which hold that, on questions of fact, unless manifestly erroneous, the conclusions of the trial judge should be upheld. Hanton vs. N. O. & C. R. L. & P. Co., 124 La. 562, 50 So. 544; Winn vs. Strickland, 151 La. 235, 91 So. 719; Wall vs. Dudley, 152 La. 911, 94 So. 441; Grau vs. Consolidated Dredging & Mfg. Co., 162 La. 205, 110 So. 202; Tinker vs. Hirst, 162 La. 209, 110 So. 324; Ponder vs. Coyle, 164 La. 905, 114 So. 729.

As to the quantum, the only medical testimony we have in the record is that of Dr. R. J. Coker, who testified that he treated the plaintiff on April 2d, and 3d, and that he found blood in her urine, contusions of the right shoulder blade and of the right and left knee, and a dislocation of the right kneecap; that he treated her while she was in bed for three weeks; that X-ray pictures were made oí the knee and shoulder, but he would not undertake to say what they showed, as he was not at liberty to withdraw them from the Charity Hospital, where they were made; that he then lost sight of the case for about six or eight weeks; that he reported the result of his finding to Dr. Thibaut, the defendant company’s doctor; that the right knee was stiff in spite of the fact that ultra violet ray treatments were administered, and that there was a 30 per cent disability of the right knee at the time of the trial. This medical testimony is corroborated by the plaintiff’s testimony, who volunteered to have the court to appoint a doctor to examine her, but this was not done. The plaintiff is a colored woman, age 57 years, and a trained nurse. The judge of the trial court allowed her the sum of $2,000. We are of the opinion that this amount is somewhat excessive, in view of our jurisprudence in similar cases, and will reduce it to the sum of $1,250.

For the reasons assigned the judgment is amended by reducing the amount awarded plaintiff to $1,250, and, as thus amended, it is affirmed, appellant to pay all costs.

JANVIER, J.

(dissenting). I would hesitate to dissent in a case in which I differed from my associates only on a question of fact, particularly where they, in the majority opinion, have, in their findings of fact, concurred with the district judge.

Here, however, not only do I disagree with the conclusions of my brothers on the facts, but I am unable to persuade myself that, even conceding the facts to be as they have found them, there is liability in defendant.

Pretermitting for the moment a discussion of the evidence on the facts and conceding, arguendo, that they are as my associates have found them, what is the legal situation presented? Simply this: That a carrier is held liable, not because of any negligence on its part, but solely because of a latent, undiscoverable defect.

It should be borne in mind that there is no charge made that any employee of defendant was negligent in the operation of the car, or in the manipulation of the folding step. The sole charge of negligence is that the step failed to operate properly, because it was defective.

The record shows, and there is no assertion to the contrary, that, prior to the accident, the car had been subjected to the usual inspections, and that it had operated without mishap of any kind.

This, of course, would not be sufficient to relieve the carrier of liability, but the proof is that, after the accident, the car and the step and the mechanism thereof were carefully and rigidly inspected, and that no defect manifested itself, and that the car remained in service without repairs or adjustments, and that thousands of passengers boarded and disembarked by means of the same steps, without its having been changed or repaired in any way. If, then, it was a defect which caused the accident, that defect had not been discovered by examination before or after, and it did not manifest itself again. In other words, assuming that there was a defect — and this is a very violent assumption — it was one which the most careful examination and inspection could not disclose.

It is true that upon the carrier rests the burden of proving that thpre was no negligence on its part or on the part of its employees. Since it is conceded that there was no negligence in the operation and manipulation of the car, all that the carrier need do is prove that the car and its equipment were not defective, or that if they were defective, the defect was latent and could not have been discovered by the most careful inspection.

That a carrier is not an insurer of the safety of its passengers has many times been held, and, in the latest decision of our Supreme Court on the subject (Cusimano vs. N. O. Public Service, Inc. (La. Sup.) 127 So. 376, decided March 5, 1930), that court held that all a carrier need do is disprove its own negligence, and that it need not go further and prove affirmatively what negligence or whose negligence caused the injury.

In Corpus Juris, vol. 10, pp. 863, 864, the rule that a carrier of passengers is not an insurer of their safety is stated as follows:

“A carrier of passengers is not as absolutely liable for the safety of the passengers as a carrier of goods is for the safety of the goods but it is only liable for injuries to passengers which are caused by its negligence in failing to exercise the proper degree of care, skill, and diligence for such passengers’ safety, and therefore is not an insurer of the safety of passen'gers, in the sense in which a carrier of goods is said to be an insurer of the safety of the goods; ■ and hence is not liable for injuries caused by an accident which an exercise of the proper degree of care, skill, and diligence could not anticipate or prevent.”

That even a defect in equipment will not render a carrier liable, if the defect could not have been discovered, is as well settled. The leading Louisiana authority on this point is Frelsen et ux. vs. Southern Pacific Co., 42 La. Ann. 673, 7 So. 800, in which a passenger was injured on a train as the result of the breaking of a wheel of the car; the court held that the wheel had broken as the result of a latent Din-discoverable defect and that, hence, the carrier was not liable. In that case the company’s defense, as stated by the Supreme Court, was:

“* * * That it did provide a safe conveyance, with proper equipments, as far as it could do so, with the exercise of the utmost care and skill, and that the accident was solely due to the latent defect in a wheel, which no human care or skill could have detected or prevented.”

The court said:

' “There can be no doubt that, as it is shown that the wheel was manufactured in a proper manner, by respectable manu facturers, and that, like it, the axle was without blemish; that as no defect was revealed after the usual examination and test on the night of _the accident, and shortly before its occurrence, — no fault could be imputed to the defendant from which liability for the injury sustained could be attached.”

In many other cases, both in this state and elsewhere, this rule is well recognized. I concede that to exonerate the carrier very strong positive proof that the defect could not have been discovered should be required, but, where the proof is without contradiction and shows that no defect was discovered before or since, and that the same mechanism remained in continual operation after the accident; this is conclusive evidence of the fact that the defect, if, in fact, there was one, was undiscoverable.

The same rule is well stated in Kight vs. Metropolitan R. Co., 21 App. D. C. 494, as follows:

“The test of care or skill required in the methods, and use and operation of machinery and appliances, is the ordinary usage and methods that obtain and are observed in the particular business, as practiced by the average prudent man, professing knowledge of the business; and railroad companies form no exception to this rule. If, having exercised such skill and prudence in the performance of its business, and in the course of such performance, unforeseen accidents occur, negligence or unskillfulness cannot be imputed to it.”

Other leading Louisiana eases which recognize the existence of the ruh- — though, I confess, in each of them it was held that the proof of proper inspection was lacking — are Jackson vs. Natchez & Western Ry. Co., 114 La. 981, 38 So. 701, 70 L. R. A. 294, 108 Am. St. Rep. 366; Leveret vs. Shreveport Belt Ry. Co., 110 La. 399, 34 So. 579; Lowenthal vs. V., S. & P. Ry. Co., 117 La. 1007, 42 So. 483; Haynes vs. L. R. & N. Co., 140 La. 1019, 74 So. 538, 540; Aiken vs. Southern Pac. Co., 104 La. 157, 29 So. 1; Patton vs. Pickles, 50 La. Ann. 857, 24 So. 290; Julien vs. The Wade Hampton, 27 La. Ann. 377.

In Haynes vs. L. R. & N. Co., supra, the court said:

“Defendant undertook to show that the defect in the axle was a latent one, that the ear had been properly inspected, and that it was impracticable to have discovered the defect. The defect was shown to have always been in the axle, and that the crack was an old one. It was not shown that the original defect could not have been discovered by the car builder, and it was his duty to have discovered it, if that were possible, and to have rejected it at the time of the building of the car. The crack in the axle should have been discovered by a proper inspection.
“In the case of Mary J. Morgan vs. Chesapeake & Ohio R. Co., 127 Ky. 433, 105 S. W. 961, 15 L. R. A. (N. S.) 790, 16 Ann. Cas. 608, it was held:
“ ‘A railroad company is liable for injury to a passenger caused by tbe breaking of an axle by reason of a sand hole, if the defect could have been discovered by the builder of the car by the exercise of the utmost human skill and foresight.’ ”

In Julien vs. The Wade Hampton, supra, is found the following:

“ ‘Common carriers are bound to carry their passengers safely and securely, and to use the utmost care and skill in the performance of their duties.’ Angelí on Carriers, p. 568. ‘And, of course, they are responsible for any, even the slightest, neglect.’ 2 Greenleaf Ev. 221. ‘The burden of proof is on the defendants to establish that there has been no disregard whatever of their duties, and that the damage has resulted from a cause which human care and foresight could not prevent.’ ”

I am, therefore, of the opinion that, even if it be conceded that the step was defective, that defect was undiscoverable, and that there cannot, therefore, be any liability in defendant for injuries caused by such defect, because to so hold would be, in effect, to hold a carrier to be an insurer of the safety of its passengers.

But I cannot agree with my associates and with the district judge in the finding that the step was defective, nor in the finding that the passenger fell from the stop.

That no repairs were made after the accident, and that hundreds of persons have, without mishap, used it since, is not denied, and this, to my mind, is very conclusive evidence of its soundness and of the absence of defects. This fact, coupled with what I consider glaring inconsistencies in the testimony of most of plaintiff’s witnesses, convinces me that on facts, as well as on the legal question involved, the judgment should be reversed. I see no reason to disbelieve the witness Kroh, who states positively that plaintiff had alighted from the car and had taken a step before she fell over the bundle. This witness is corroborated by Poche, who testifies that the plaintiff took a step forward and then tripped and fell over the bundle.

It is said that the witness Poche should not be believed because he had formerly been an employee of the company. It is true that he had once been in the employ of the company, but he testified very convincingly that he had tried to get back into the employ and had failed to do so. I see no reason why he should be prejudiced in favor of the company on this account. Rather would such facts create a contrary attitude.

The witness Mary Stevens, produced by plaintiff, proved out of her own mouth that she knew nothing whatever about the case and had not even been on the scene' when the accident happened. She testified that she had gotten out of the car on Napoleon avenue going towards the river. That was the car from which plaintiff herself alighted, and yet this witness, Mary Stevens, says that the plaintiff had alighted from the car on Preret street going down town.

This error did not result from confusion on her part, because she repeated it many times and insisted upon it, and I am unable to believe her.

The witness Ben states that he was in an automobile going out Napoleon avenue, and that he saw the plaintiff fall from the step of the car; that his automobile had been stopped by a traffic signal, and that he was waiting for the signal to change from red to green. Two other automobiles' were in front of him. I cannot believe that, under those circumstances, he was paying careful attention to plaintiff, since drivers of automobiles, when stopped, waiting for traffic lights to turn, almost invariably keep their attention focused on the lights, and since the two cars ahead of him certainly obstructed his view. Then, too, the testimony that the traffic light had stopped the traffic which was proceeding on Napoleon avenue is directly contradicted by the witness Burres, produced by plaintiff, who states that he was going down Frsret street and he was stopped by the traffic light, which was red. Surely it was not red in both directions at the same time.

But I know that no good purpose could be served by a long discussion of the facts. Suffice it to say that I believe that the plaintiff fell, not as the result of a defective step, but solely because, after alighting, she tripped on the bundle of clothes which had been thrown into her path by another passenger.

It is true that the defense that the defect, if any, was latent, was not raised in the pleadings, but the evidence which was introduced without objection shows facts which substantiate this defense.

For these reasons I respectfully dissent.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 585
    First Circuit
    WYATT ET AL. v. YAZOO & MISS. VALLEY R. R. CO. ET AL.
    (April 14, 1930. Opinion and Decree.)
    (May 6, 1930. Rehearing Refused.)
    (July 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Shelby Taylor and A. B. Parker, of Baton Rouge, attorneys for plaintiffs, appellants.
    Breazeale & Sachse, of Baton Rouge, attorneys for defendants, appellees.
   ELLIOTT, J.

Yazoo & Mississippi Valley Railroad Company and Baton Rouge, Hammond & Eastern Railroad Company are sued in solido by Jesse E. Wyatt, Sr., and Mrs. Florence E. Wyatt for $15,000 in damages on account of the death of their son, Jesse E. Wyatt, Jr. They allege that Yazoo & Mississippi Valley Railroad cooperates the Baton Rouge, Hammond & E'astern Railroad under a lease. That their son was struck and killed on the public crossing at Sharps Station on said Baton Rouge, Hammond & Eastern Railroad by a train operated thereon’ by said Yazoo & Misissippi Valley Railroad Company. That their son lost his life as a result of the carelessness, negligence, and recklessness of Yazoo & Mississippi Valley Railroad Company. That the view eastward along the main line of the said Baton Rouge, Hammond & Eastern Railroad at Sharps Station was permitted by said Yazoo & Mississippi Valley Railroad Company to become obstructed. That it operated its trains thereover at excessive speed without taking the precautions made necessary as a result of the obstructed view, which it had permitted. That its agents and employees in charge of the train which killed their son did not give signals of its approach, etc. That it permitted the placing of gravel cars on the western side of the highway, still further hampering and obstructing the view. That it should have slowed down its trains, or else placed a flagman at the crossing, etc.

The motions and exceptions interposed against plaintiffs’ demand are not urged in defendants’ brief. We assume that they have been abandoned, and have not given them any consideration in acting on the case.

The defendants both deny the negligence, carelessness, recklessness, and fault alleged against them by the plaintiffs.

The Baton Rouge, Hammond & Eastern specially alleges in its answer that it is not liable to plaintiffs for the further reason that it had nothing to do with the operation of the train in question, nor with any of the other matters complained of in their petition. Both railroads deny that they were negligent in any way, but, if so, they urge in the alternative that decedent was also negligent and that his negligence contributed to, and, in fact, brought on the accident whereby he was killed.

There was judgment rejecting plaintiffs’ demand, and they have appealed.

The accident occurred about 4 o’clock p. m., on April 29, 1926. Jesse E. Wyatt, the decedent, was employed at the time as a truck driver by Sam E. Finley, contractor, engaged in repairing the Baton Rouge and Hammond Highway. The asphalt used in this work was prepared in a mixing plant erected and operated at said station by said Finley. The railroad is crossed at this place by a public road running northward and southward known as Sharps road. This road connects in its southward course with the Baton Rouge and Hammond road, and was used for the purpose of conveying asphalt from said mixing plant to the said road being repaired. The mixing plant was situated on the northern side of the railroad, about 75 feet north of the railroad main line, and about 150 feet east of the public road. There were other smaller structures shown on a diagram filed in evidence. These other structures were all erected there by-said contractor, and were being used at the time in question in connection with his mixing plant; they were distant about 40 feet from the main line of the rail-. road, and situated in between the mixing plant and the public road. The evidence does not enable us to determine their exact distance from the crossing.

There was, in addition, at the time, piles of coal, sand, and gravel on the right of way just south of the mixing plant, but not high enough, in our opinion, to obstruct the view eastward of a man in an automobile from the crossing along the main line track. All these structures erected by Finley were situated north of the side track hereinafter mentioned. Two witnesses testified without contradiction that the mixing plant and other structures erected by Finley were all on defendants’ right of way. A side track runs parallel to the main line of the railroad east and west of the crossing. This side track is on the north side of the main line, distant from it about ten feet. Two gravel cars were spotted on the side track west of the crossing; one of them projected a couple of feet over the crossing, but they are not alleged to have obstructed the view eastward, and did not, so we do not give them any further notice. Two cars,' a box car and a coal ear, were also spotted on the side track at the time in question, on the east side of the crossing. The box car was next to the crossing, the coal ear was further east and about opposite the railroad platform. The distance of these cars from the crossing was variously estimated. Two witnesses testified that the box car was right up even with it, others thought that the one nearest t'o the crossing was 5 or 6 feet distant from it, others that the nearest one was 15 or 20 feet distant, while still another testified that the nearest car was 75 or 80 feet distant from the crossing. Some of the witnesses who estimated these distances were not present at the time of the accident. Acting on the estimates of those present, we find that the box car was 5 or 6 feet east of the crossing, and that the coal car was still further east. The asphalt mixing plant was operated by steam power, the smoke from which sometimes drifted over the railroad, and at other times it did not. One witness testh fied that there was smoke over the railroad at the time of the accident in question, another did not notice any smoke, still another did not think there was any over the railroad at the time. There was a platform which had been erected by the railroad company on the north side of the side track, situated up close to it. At the time in question, there was on toip of this platform several tanks, barrels, etc. These structures, .on the right of way railroad platform, with things on top of it, cars on the side track, obstructed the view eastward along the main line very seriously, as the crossing was approached going south until the side track was passed, after which it was unobstructed. The crossing was certainly dangerous for those approaching it going south, due to the obstructed view eastward.

The train that struck plaintiffs’ son came from the east, and was going west. Plaintiffs’ son, at the time in question, after obtaining his load at the mixing plant, first faced westward, but curved southwest as he proceeded toward the public road. While going west, his back was turned in the direction from which came the train that killed him. His truck entered the public road about 150 feet from the mixing plant, and about 10 or 15 feet north of the crossing. The Louisiana Stop Law sign, on the north side of the crossing, was about 50 feet distant from it. His truck, leaving the mixing plant, passed to the left and south of this Stop Law sign. After reaching the public road, his truck turned south in the road toward the crossing. There was another Stop Law sign on the south side of the crossing, about 50 feet distant from it. There are no houses at Sharps Station, except a country store. It is not clear from the evidence whether there was one or two stores on the road side near the crossing. The evidence indicates but one residence in the neighborhood, that of Mr. Cook, and it was several hundred yards distant.

All people are charged with knowledge of the ordinary crossing dangers, and on coming thereto should look over, around, and beyond nearby cars on a side track for approaching trains, and may not expect the train to slacken its schedule speed of 30 or 35 miles at such a place. The railroad company, on the occasion in question, sounded its engine whistle and rang its bell on approaching this crossing, at a proper distance therefrom, and ordinarily that would have been sufficient.

. But as the railroad company had permitted the erection of structures on its right of way near the crossing that obstructed the view and hindered the seeing of approaching trains, and had permitted to be increased the ordinary crossing risks at this place, it should have taken more than ordinary care. It should have slowed down its train and done what was reasonably necessary to offset the increased danger. The situation did not require that the railroad company send a guard or watchman to this crossing before going over it with a train, as plaintiffs contend, but the railroad company did nothing to offset the increased danger due to the obstructions placed there by Finley.

The railroad company, its agents and authorities, through whom it acts, must be charged with knowing the increased danger, with knowing the use to which the crossing was subjected, due to the mixing plant. The defendant operating the train in question would be held responsible for the death of plaintiffs’ son were it not that their averment that plaintiffs’ son was also negligent and that his negligence contributed to ■ the accident, was established. It was, in fact, established that-the act which caused their son to lose •his life was in a more direct way the result of his own act, than the act of the defendants.

The evidence shows that the train which struck decedent was on schedule time. Sharps Station is not a regular stopping place. Passenger trains do not stop there except when flagged. Its speed on approaching the crossing was at the rate of 30 or 35 miles an hour. When plaintiffs’ son turned southward in the public road toward the crossing, he should have looked to his left, which was eastward. His view eastward was obstructed in the way stated until after he had crossed the side track, after which there was nothing to obstruct his eastward view. The distance from there to the main line was about ten feet; he should have stopped his truck before going on the main line and looked along it eastward for trains. If necessary, and he could not otherwise see if a train was coming, he should have stopped on the side track and stepped forward to the south side of the same where he could and would have had a clear view eastward along the main line. If he had stopped and looked, he could and would have seen the approach of the train that killed him.

The law, Act No. 12 of 1924, sec. 3, provides,

“That it shall be unlawful for any person to drive or propel any * * * automobile, truck or other motor driven vehicle upon any railroad track at a public highway, * * ® intersecting such railroad at grade crossing without first stopping at a distance of not less than ten feet nor more than fifty feet from the nearest track and looking for train.”

After providing some exceptions, which have no bearing on the present case, the statute proceeds:

“In the trial on all actions to recover personal injury ® * * damages sustained by any driver of such motor driven vehicles by collision of said vehicle and train in which action it may appear that the said driver may have violated any of the provisions of this act, the question of whether or not the said violation was the sole or proximate cause of the accident and injury shall be for the jury to determine regardless of the penalizing feature of this act. That the violation of this act shall not affect recovery for damages and the question of negligence or the violation of this act shall he left to the jury; and the contributory negligence statutes of Louisiana shall apply in these cases as in other cases of negligence,” etc.

All the witnesses who claim to have seen plaintiffs’ son as he approached the crossing testify that he did not stop nor look eastward along the main line before driving on the track in the face of the oncoming west-bound train.

A witness named Watson testifies that he saw decedent and his truck as they approached the track, and that he did not stop, that he could see; that he was pulling in low as he entered on the main line where the train struck him:

"Q. You don’t know then, whether he stopped his car after you heard the engine whistle?
“A. If he had, he would not have gotten as far as he did.”

A witness named Anselmo testified that he heard the train whistle about 150 feet away. That Wyatt at that time was coming from under the loading rack, and had not gotten up on the track; that he was driving in low gear, that is about 3 miles an hour, and was about 13 or 14 feet from the main line at the time the train blew, and was looking down the road in the direction he was going. That he did not look eastward after crossing the side track.

A witness named Plauehe stated that he was about 25 yards distant at the time, and on the western side of the crossing:

"Q. Now, tell how it happened?
“A. That fellow was coming with a load of hardsurface; he waved at me and I waved back at him. He told me ‘Hello.’ By the time I turned around that train struck him, and he went 230 yards before he could stop.
“Q. You saw Wyatt as he drove up in his truck?
“A. Yes.
“Q. Did he see you?
“A. Yes.
“Q. How do you know that he saw you?
“A. He was looking me right in the face.
“Q. Did he wave at you?
“A. Yes.
“Q. Did he holler at you?
“A. He just waved and I waved hack.
“Q. He was then going over the crossing?
“A. He was going to cross.
“Q. He was looking away from the train then, in the opposite direction from which the train was coming?
"A. He was looking at me, yes.
‘‘Q. The train was coming from the east, was it not?
“A. Yes.
“Q. And he was looking at you from the west?
“A. Yes.
“Q. And he waved at you?
“A. Yes.
”Q. If he had been looking toward the east he would have had time to stop, wouldn’t he, before he got on the track?
“A. Yes, but he didn’t stop.
"Q. He would have had time, though, wouldn’t he?
“A. Yes.”

A witness named Orr, sitting on the gallery of a store about 100 feet from the crossing, testified that he sa,w the train strike the decedent.

“Q. Mr. Orr, did you see Mr. Wyatt before he drove on the track?
“A. Yes, I saw him when he was coming.”

He testified that Wyatt was looking down on the ground; that his truck was going slow. That he was not looking toward the track, but looking down, as though he were watching one of his wheels. That when Wyatt got on the main line, coming very slow, either his engine went dead, else he stopped his truck on the track. Witness says he could not hear on account of the noise made by the mixing plant machinery, but he was very clear in his statement that Wyatt was not looking down the track the way the train was coming, and when he did look eastward the train was close to him. Witness says that the mixing plant was in operation at the time, and that it made such a noise when running that the workmen there could not hear the train whistle nor the ringing of the bell, but that he heard it.

“Q. Did you hear the train before it hit Mr. Wyatt?
“A. I heard it blow.
“Q. How far away was it when it blew?
“A. It was about the cattle guard, about three or four hundred yards.
“Q. You heard it blow at the cattle guard 3 or 4 hundred yards from the crossing?
“A. Yes, I judge it to be that distance.
“Q. Did you hear it blow again just before it got to the crossing?
“A. Yes, it blew again before it hit Mr. Wyatt. They couldn’t hear it on account of that machinery.”

A witness named Cook was also in a store building, which, at one place in his testimony he estimated to have been about 100 yards from the crossing, and in another, as about 100 feet. He testified that he saw the accident. That he heard the train approaching; that it whistled first about the cattle guard, which he estimated to have been about 600 yards from the crossing, and says that he heard the bell ringing. That he saw the truck that Mr. Wyatt was driving as it drove on the track; that it looked like the truck stopped, but it might have been moving slow, and that, from what he could see, Wyatt was looking in the gravel car on the west side of the road, and not in the direction the train was coming.

Mrs. Cook .lived near Sharps Station, her husband estimated the distance from his house to the crossing at about a quarter of a mile. She testified that she heard the train whistle twice; the first was about the cattle guard and the next was just before the crash of the impact. The engineer and fireman both say that the whistle blew for the crossing, which, according to their testimony, was about the cattle guard, and that the bell was ringing as they approached. That they afterwards noticed a truck approaching it, upon which they sounded another alarm, but that it was too late after seeing the truck to avert striking it.

In the case of Vincent vs. R. R. & S. S. Co., 48 La. Ann. 933, 20 So. 207, 209, 55 Am. St. Rep. 287, the court, acting on a contention that the view was obstructed, approvingly quoted from Beech on Contributory Negligence, and Patterson’s Accident Law:

“Plaintiff, in respect to the obstruction alleged, overlooks the fact that, if such obstructions really masked the view, they themselves were as much concealed from * * * the defendants’ employees as the latter were from the persons in the buggy, and that the very fact of the existence of the same imposed additional caution upon parties approaching the track.”

In Barnhill vs. T. & P. R. R. Co., 109 La. 43, 33 So. 63, 65, the court considered the case of a crippled man who approached a main line crossing, the view along which was obstructed by box cars on a side track. The case is very similar to the present one. The court approvingly quoted from a well-known legal writer:

“ ‘The traveler, however, is rigidly required to do all that care and prudence would dictate to avoid injury, and the greater the danger the greater the care that must be exercised to avoid it, and where, because of physical infirmities, darkness, snow, fog, the inclemency of the weather, buildings or other obstructions and hindrances, it is more than usually dificult to see or hear, greater precaution must be taken to avoid injury than would otherwise be necessary.’ If the box car upon the switch was in close proximity to the crossing, it was Barnhill’s duty to have peered around its side < autiously before venturing onto the main track. Had he done this there was nothing to have prevented his observing the approaching train.” Baltimore & Ohio R. R. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645, is to the same effect.

In Holstead vs. Vicksburg, S. & P. R. R. Co., 154 La. 1097, 98 So. 679, the court approved the principle applied in the above case as to caution, in case of an obstructed view of a main line crossing before entering on it.

In Aymond vs. Western Union, etc., et al., 151 La. 184, 91 So. 671, 672, the court said:

“As to the obligation to stop before crossing a railroad track, that must not be accepted so literally as to require a person upon approaching a railroad track to come at once to a position .of absolute immobility; but common sense and common practice both indicate' that it will suffice for such person to. have his own motion so checked and under control that he may stop instantly if need be.”

In Callery vs. Morgan’s La. & Tex. R. R. & S. S. Co., 139 La. 763, 72 So. 222, 224, the court considering a contention that the view was obstructed, said:

“The rule that ‘one who reaches a railway crossing on a public highway is under the duty to stop, look, and listen,’ has been recognized and enforced by this court in numerous cases.”

In some courts this rule has been modified, as to the duty to stop, but it has been properly held, we think, that the law exacts from the driver of an automobile a strict (performance of the duty to stop, look, and listen before driving upon a railroad crossing where the view is obstructed.

Conceding for the sake of argument that defendants’ trainmen were guilty of concurrent negligence in the premises, still the contributory negligence of the plaintiff debars recovery. The last chance doctrine has no application when the negligence of both parties was concurrent, and continued down to the moment of the accident.

In Young vs. Louisiana Western R. R. Co., 153 La. 129, 95 So. 511, the court said:

“The duty to stop, look, and listen before crossing a railroad must be performed at a time and iplace where stopping, looking, and listening will be effective.”

Plaintiffs’ son had been driving a truck hauling asphalt for several weeks, and during said time had passed over this crossing four or five times a day. It must therefore be supposed that he, as well as the railroad company, was aware of the danger due to the obstructed view eastward; but the duty of stopping, looking, and listening before going on it rested on him, and it was negligence not to do so, barring recovery by his parents in this case. The evidence shows that he drove his truck on the main line without stopping and also without looking eastward, and, if he listened, he did not do it in a way which would have enabled him to hear a train coming.

Therefore, plaintiffs’ son was also negligent. He did not take nor exercise the proper care and precaution for his own safety at a time and .place where he must have known that precaution was necessary, where the danger was, in fact, obvious to him.

Under the law and the evidence, the judgment appealed from was correct.

Judgment affirmed. Plaintiff and appellant to pay the costs in both courts.


author: WEBB, J.

text:
    No. 3582
    Second Circuit
    JOLLIFF v. CHADICK-HAYES CO., INC.
    (April 10, 1930. Opinion and Decree.)
    (July 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Lewell C. Butler, of Shreveport, attorney for plaintiff, appellant.
    Dickson & Denny, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

Plaintiff, G. N. Jolliff, and defendant Chadick-Hayes Company, Inc., entered into a contract under which plaintiff was to -be employed as manager of a grocery store and meat market to be opened by defendant, and plaintiff agreed to deposit with defendant $1,000 to guarantee the faithful performance of his obligation, on which amount defendant agreed it would pay plaintiff an amount proportioned upon the dividends earned by the capital stock of defendant, which it guaranteed would not be less than 10 per cent, per annum.

Defendant opened the store on August 31, 1927, and plaintiff, after depositing the amount as above stated, entered into the employment of defendant and continued therein until about August, 1928, when he resigned. This action was brought to recover judgment for the amount of the deposit and the dividends thereon.

Plaintiff alleged that he had managed the business under the direction and control of defendant; that he had fully complied with all of his obligations under the contract; that defendant had refused to return the deposit and pay ■ dividends thereon; and he prayed for judgment accordingly. In answer, defendant admitted the contract and deposit, but denied that plaintiff had operated the business under its control, or that plaintiff had complied with his contract, and alleged that he had failed to account to defendant for $1,737.48 worth of goods and merchandise and for $92.95 cash, and defendant prayed that plaintiff’s demands be rejected and for judgment in reconvention for the amounts as stated.

On trial, judgment was rendered in favor of plaintiff for $1,100, the amount of the deposit, and the amount of dividends found to be due, and in favor of defendant on its reconventionat demand for the aggregate of the amounts claimed. Plaintiff appeals and complains of the judgment allowing the claim of $1,737.48.

In the contract between the parties, it was stipulated that defendant would supervise and manage the store until in its opinion plaintiff was sufficiently conversant with the business to take charge and continue the management under defendant’s supervision and advice; and, when the store was opened, a special representative of defendant was placed in charge, presumably to instruct plaintiff, and, during the period the special representative was in charge, which the record indicates was for two or three weeks, he inaugurated a system of accounting between the store and defendant which appears to have been followed during the period of plaintiff’s employment, and, as we gather from the briefs of counsel, the liability of plaintiff to respond for the amount of $1,737.48 is based upon the system of accounting, when considered with the stipulation in the contract that plaintiff should sell the merchandise at the prices at which it was invoiced or billed to the store, and for cash only.

There was not any explanation of the details of the system, but we gather from the record that, at the end of the week following the opening of the store, defendant’s special representative remitted the proceeds of sales, accompanied with a statement made up by him, a copy of which was retained by the representative at the store, on which statement the debit items were the amounts of the invoices of merchandise delivered to the store, and the credit items were the proceeds of sales and deductions of the invoice values of merchandise which, due to its inherent nature, had become unsalable, and some other deductions, the nature of which is not clearly shown by the record, and ihe difference in balance between the debit and credit items was shown on the statement as representing the invoice value of the merchandise in the store at that time; that the same system was followed for the succeeding weeks, the balance shown on the previous statement, and the amounts of the invoices of merchandise delivered to the store during the week constituting the debit items.

Thus, as we gather from the argument, the system enabled the parties to determine at the end of each week, not only the invoice value of the merchandise in the store, but also fixed the extent of plaintiff’s liability. However, at the time plaintiff resigned, the system indicated that the invoice value of the merchandise in the store was $2,742.48, while an inventory of the merchandise taken at that time showed that the invoice value of the merchandise was only $1,005, or $1,737.48 less than indicated by the system of accounting.

The evidence established that in the grocery and meat market business there are many losses which are. not due to the fault of the persons conducting the business, such as losses resulting from petty pilfering, merchandise losing in weight, and lack of precision of salesmen in weighing and measuring the merchandise, as well as from some of the merchandise becoming unsalable, but, as we gather from the argument of counsel, it is contended that, under the stipulation binding plaintiff to sell the merchandise at the prices fixed by defendant and for cash only, and the method of accounting, under which deductions were allowed only for merchandise which became unsalable, plaintiff assumed responsibility for all other losses, and that the weekly statements should be regarded as in the nature of accounts stated in which plaintiff acknowledged liability for the balance shown on the statements, as representing the invoice value of the merchandise on hand.

While the evidence we think demonstrates that the system of accounting was valueless as indicating the invoice value of the merchandise on hand at the end of each week, we do not think the statements may be regarded as fixing the liability of plaintiff for the amount of the balance shown on the weekly statements, even though it should be said that, under the stipulation binding plaintiff to sell the merchandise for cash only and at the prices fixed by defendant, the relationship between the parties was analogous to that existing between a depositary and depositor.

The evidence, as stated, shows that defendant was in active control and management of the business during a period of several weeks after the store was opened, and it also establishes that, during the period of plaintiff’s employment, plaintiff was absent on several occasions due to illness and for other reasons with the consent of defendant, and that during such periods defendant was in active control and management of the business through its special representative, and that an inventory of the merchandise was not taken when plaintiff was given charge, after the retirement of defendant’s special representative who inaugurated the system of accounting or when plaintiff was relieved by defendant’s special representative or when he resumed charge, and that during the periods defendant was in charge, through its representatives, merchandise was delivered, and that defendant made up the I weekly statements.

There was not any evidence showing that plaintiff was advised that he would be held for the balance shown on the weekly statements under the system of accounting inaugurated by defendant, or that the system was established to fix the extent of his liability, or that plaintiff had agreed to be liable for the invoice value of merchandise indicated by the statements to have been in the store.

While the system inaugurated by defendant may have correctly shown the returns received by it from the store, yet, as stated, the invoice showing that the store was under the active control and management of defendant for a part of the period of plaintiff’s employment, it is impossible to determine whether the losses indicated by the system occurred during the time ¡plaintiff was in charge, or while defendant was in charge. And while it is suggested that the special representatives of defendant were merely sub-agents of plaintiff and that he was liable for their faults and negligence and bound to account to defendant for merchandise delivered to the store while the special representatives were in charge, there was not any stipulation in the contract or proof to that effect.

While there cannot be any question that plaintiff was bound to account to defendant for his administration of the business, whether plaintiff should do so as an agent or mandatary or as an employee or servant, but he can be held to account only for his own administration, and not for the administration of defendant, and to hold plaintiff liable under the system of accounting would be to hold plaintiff not only for his administration, but also for the administration or management of the business by defendant.

It is therefore ordered that the judgment appealed from be amended, and the amount of the 'judgment in favor of defendant and against ¡plaintiff be reduced to $92.95, and, as amended, the judgment is affirmed; defendant to pay the cost of appeal.


author: WESTERFIELD, J.

text:
    No. 11,976
    Orleans
    GUS MAYER CO., LTD., v. UNITED STATES FIDELITY & GUARANTY CO.
    (May 5, 1930. Opinion and Decree.)
    (June 2, 1930. Rehearing Refused.)

      Godchaux, Saal &' Milling and M. Turman Woodward, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Spearing & Mabry and Wm. H. McClendon, Jr., of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit for $654.88 against the surety on the official bond of Eustis McManus, clerk of the chancery court of Harrison county, Miss.

The allegations of the petition are that the plaintiff, Gus Mayer Company, Limited, a Louisiana corporation, was the owner of lots 21, 22 and 23 in block 19 of the Soria city addition to the city of Gulfport, Harrison county, Miss., having acquired the property by purchase in the year 1914; that the taxes due the state of Mississippi, city of Gulfport and county of Harrison had been paid from year to year with the exception of the taxes due the state of Mississippi and the county of Harrison for the year 1922; that without notice its property was sold for taxes by Jos. W. Havens, sheriff and tax collector of Harrison county, for the sum of $5.44, the amount due as taxes to the state of Mississippi and the county of Harrison for the year 1922, the property being adjudicated to one Mary Sanders; that the period allowed under the laws of Mississippi for the redemption of property sold at tax sale had elapsed before the bringing of this suit; that plaintiff re-acquired the property from Mary Sanders in November, 1926, at a cost of $654.88; that Eustis McManus was the clerk of the chancery court of Harrison county at the time plaintiff’s ■ property was sold, and that, according to the provisions of section 6967 of the Mississippi Code, it was his duty to inform petitioner by mailing a notice, if its post office address was known to the said clerk, or if it could be ascertained by diligent inquiry, informing plaintiff of the time of expiration of the period allowed by law for the redemption of property, which had been sold for taxes, upon penalty of the responsibility' to it for actual damage sustained by reason of his dereliction in duty; that the said Eustis McManus failed to give the statutory notice; that McManus either knew plaintiff’s' address, or, if he did not know it, he failed to make diligent inquiry to ascertain it as required by the statute; that his failure to perform his duty in this respect was the sole cause of plaintiff having incurred the expense involved in repossessing its property, for which this suit is brought.

To this petition defendant filed an exception of no cause of action, which was overruled, whereupon it answered admitting the execution of the bond sued on, but denied all of the allegations. Subsequently a supplemental answer was filed setting up the illegality of the tax sale under chapter 323 of the laws of the state of Mississippi of 1920, and section 6937 of Hemingway’s Code. There was judgment for plaintiff as prayed for and defendant has appealed.

The exception of no cause of action is leveled at the alleged absence of any allegation in the petition that McManus could, by diligent inquiry, have discovered plaintiff’s address, the argument on this point being that the averment that McManus “had failed to make diligent inquiry” was not sufficient because the statutory liability did not depend upon the fact that proper inquiry was omitted, but, it must also appear that the inquiry, if made, would have been successful. The petition declares that the clerk failed to make diligent inquiry, and that as a result of his failure the expense sued for in this petition was incurred. This allegation, considered in connection with the other facts alleged in the petition, seems to us to be ample justification for the action of the trial court in overruling the exception of no cause of action.

On the merits we observe that the Mississippi Code (section 6967) requires the tax collector to:

«* * * Make a list of lands sold to individuals, in the same maner as required of lands sold to the state, which he shall file with the clerk of the chancery court, who shall record the same in a book to be kept for that purpose; and the clerk of the chancery court shall, within ninety days and not less than sixty days prior to the expiration of the time of redemption, if the owner of the land * * * be a resident of this state and the address known to said clerk, be required to issue notice to such owner, in effect following, to-wit:
“ ‘State of Mississippi, County of--to
“ ‘You will take notice that--(here describe lands) - lands assessed to you or supposed to be owned by you, was, on the -- day of - sold to ■--, for the taxes of - year -, and that the title to said land will become absolute in -- unless redemption from said tax sale be made on or before - day of -.’
“And if said owner be a non-resident and his post office address be known, or can be ascertained after diligent inquiry, the chancery clerk shall mail to him a copy of the above required notice and note the mailing thereof upon said list * * *. If the clerk or sheriff shall fail to perform the duties herein prescribed, he shall be liable to the party injured by such default in the penal sum of twenty-five dollars, besides the actual damages sustained.’’

It appears from the record that plaintiff communicated with the taxing authorities in Gulfport each year, some times writing as many as four or five letters to ascertain the amount due for taxes for the several years, and that each year, following the payment of the taxes, receipts were mailed to plaintiff at its place of business, on Canal street, in New Orleans. Eustis Mc-Manus, the clerk of the chancery court of Harrison county, testified that he did not know plaintiff’s address and that the extent to which he pursued his inquiry, for the purpose of ascertaining it, was to examine his mailing docket and to ask the county tax collector for it. He failed to make any inquiry at the office of the city tax collector, who had been in yearly correspondence with plaintiff, nor did he examine the records of his own office for copies of past tax receipts to ascertain whether plaintiff’s address was on the receipt. (It appears that- a receipt given by his office for the year 1916 and exhibited to him on the stand, a duplicate of which was admitted to be in the tax receipt books of his office in plaintiff’s name, did show plaintiff’s address.) On this showing we must conclude that no proper or diligent inquiry within the meaning of the Mississippi statute referred to was made.

But it is strenuously contended that, under the laws and jurisprudence of Mississippi, the tax sale by which plaintiff’s property was adjudicated to Mary Sanders was an absolute nullity, and that, consequently, whatever may have been the dereliction of McManus, with respect to the giving of notice concerning the expiration of the period allowed under the Mississippi law for redeeming property, Mary Sanders had no title, the expense involved in redeeming the property was unnecessary, and the default of McManus had caused no injury to plaintiff. In other words, it is said that defendant is not liable because it was the duty of the plaintiff, after the discovery of the tax sale to Mary Sanders, to have initiated proceedings in Mississippi to invalidate the sale, because the courts of Mississippi would have held it invalid, the grounds being that the tax rolls upon which plaintiff’s property appeared were improperly published by the clerk of the board of supervisors and without proper notice thereof. Henderson Molpus Co. vs. Gammill, 149 Miss. 576, 115 So. 716. It is interesting to note that the clerk of the board of supervisors, whose duty it was to pub lish the assessment rolls and give due no tice thereof, was Eustis McManus, the same person who occupied the office of clerk of the chancery court, and whose surety is sued in this proceeding. Consequently, the argument, in effect, is that McManus’ first mistake was not injurious to plaintiff because, having made another mistake, plaintiff should have taken advan tage of the legal situation created by the second mistake. But in the meantime plaintiff’s property was out of his possession, the time for redemption had expired, and, since public officers are presumed to have properly discharged their functions, Mary Sanders, the adjudicatee at the tax sale, was presumptively, at least, in possession of a good title, which might have been confirmed by the courts at the end of a long and expensive litigation conducted in an adjacent state. We do not believe that plaintiff was under any obligation to adopt this means of righting the wrong which McManus was responsible for. The measure of plaintiff’s duty in the situation which it found itself was to adopt such measures and pursue such course as would be suggested by ordinary prudence under the circumstances. Sutherland on Damages (4th Ed.) sec. 90. The efforts which an injured party must make to avoid the consequences of a wrongful act or omission need only be reasonable under the circumstances, his duty being limited by the rules of common sense and fair dealing. 17 C. J., Verbo “Damages,” p. 768, et seq. The plaintiff's obligation, upon discovery of its loss, was to exert itself to obtain restoration of its property and to that end to employ the means and incur such expense as the circumstances obtaining would seem to reasonably require. It appears from the record that the measures adopted by the plaintiff for repossessing its property consisted of its consulting with its local attorneys, who took the matter up by correspondence with other lawyers in Gulf-port, Miss., who communicated with Mc-Manus. McManus replied that he had done everything required of him by the laws of Mississippi, and suggested that the courts were open for the consideration of any ?laim which plaintiff might present. Evidently plaintiff’s counsel concluded that the prudent thing to do was to buy the property back from the tax purchaser and, acting upon advice of its counsel, local and otherwise, plaintiff re-acquired the property by purchase from Mary Sanders at an expense of $654.88, the amount sued for herein. It is admitted that plaintiff actually paid the money for the purpose in view, and there is no contention that it was excessive. In acting upon the advice of its counsel, we are of opinion that plaintiff took the customary, prudent, and reasonable course under the circumstances. It was not required to do more.

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


author: HIGGINS, J.

text:
    No. 12,057
    Orleans
    WALSDORF v. CIOLINO
    (April 7, 1930. Opinion and Decree.)
    (May 5, 1930. Rehearing Refused.)
    (July 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    L. Walter Cockfield and W. J. & H. W. Waguespaek, of New Orleans, attorneys for plaintiff, appellee.
    Joseph Lautenschlaeger and Louis L. Rosen, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff sues defendant for the sum of $2,000, which is alleged to be the balance due on the purchase price of a drug store sold by the plaintiff to the defendant by authentic act of sale on November 2, 1925. The petition alleges that the sale was in consideration of the sum of $9,000, receipt of which was duly acknowledged by the plaintiff in the act of sale, but as a matter of fact and truth only the sum of $7,000 was paid, made up as follows:

Cancellation of note which plaintiff owed defendant and secured by a chattel mortgage............... $3,215.00

Retained by the defendant with which to pay outstanding bills of plaintiff incurred in the business ____________________________________________________ 3,000.00

Cash paid by defendant to plaintiff _______________________________ 785.00

Total received by vendor________$7,000.00

The petition further alleges that before the signing of the act of sale, defendant informed plaintiff that he did not have the full amount of the purchase price at that time and insisted that the vendor sign the act of sale as though he had received the full purchase price, representing verbally that as soon as he transferred a certain piece of real estate on Canal street, which he was going to do in a few days, he would then pay the balance of the purchase price of $2,000; that the representation that he did not have the full puichase price and that he had real estate on Canal street which he expected to transfer in a few days were fraudulent misrepre sentations designed by the defendant for the purpose of defrauding the plaintiff of the sum of $2,000, defendant well knowing at the time that the said misrepresentations were false and untrue; that plaintiff acted in good faith and relied upon the fraudulent misrepresentations and signed the act of sale, acknowledging receipt of the full purchase price of $9,000, when as & matter of fact and truth he had only been paid the equivalent of $7,000, and there was still due and owing him the sum of $2,000 cash. The plaintiff prays for judgment against the defendant for $2,000 with legal interest from November 2, 1925, until paid.

Defendant filed a plea of oyer for a certified copy of the authentic act of sale which the plaintiff produced, and then filed an exception of no right or cause of action and a plea of estoppel based upon the acknowledgment in the notarial act of sale of receipt of the sum of $2,000 for which this suit is instituted. The exceptions were referred to the merits, and defendant then answered expressly reserving the benefits of the exceptions. Defendant, in his answer, admits the purchase of the drug store for the sum of $9,000 and that he only paid the plaintiff $7,000, but avers that the price was arrived at as follows: $2,500 for the fixtures and plaintiff’s express representation that the stock of merchandise was worth the sum of $6,500; that an inventory was being made up of the stock of merchandise, but for the convenience of the plaintiff and at his request, defendant verbally agreed to sign the act of sale and withhold the sum of $2,000 from the purchase price as a guaranty that the stock would amount to $6,500, and in the event that the inventory was less than $6,500, defendant would be authorized to deduct any deficit from the sum of $2,000 which he held and then pay the plaintiff any difference; that an inventory taken in the presence of the plaintiff after the act of sale was passed showed the stock amounted to the sum of $3,834.69 or $2,665.31 less than the representations made by plaintiff: that thereupon it was agreed between the plaintiff and the defendant that the defendant would retain the sum of $2,000 on account of the deficiency, and because of the impecunious circumstances of the plaintiff, defendant released him from the payment of $665.31, which loss the defendant agreed to bear; and that, moreover, defendant paid $54 for personal taxes upon the stock and automobile of plaintiff which the plaintiff had agreed to pay but failed to do so; and that defendant has been unable to collect this amount from the plaintiff.

When the case was called for trial on the merits, the defendant objected to any evidence being offered by the plaintiff in support of the petition because it did not set forth a cause of action and because parol evidence was inadmissible to vary or contradict the terms of an authentic act of sale. The court overruled the objection and permitted the evidence to be introduced, and rendered judgment in favor of the plaintiff for the sum of $2,000, and defendant has appealed.

The defendant has filed a plea of prescription of one year in this court on the ground that this is an action ex delicto, being a suit for damages sounding in fraud and therefore prescribed by one year under article 2315 of the Civil Code. As we view the pleadings and the form of action which the plaintiff has brought, it is a suit for the balance of the purchase price of the sale, and not for damages for an offense. The plaintiff does not seek damages for breach of contract or damages and a rescission of the sale on account of fraud, but is asking the court to compel the defendant to pay the balance or the purchase price of the sale. This is therefore a suit ex contractu and prescribed by ten years. Liles vs. Barnhart, 152 La. 431, 93 So. 490; Gaty, etc., vs. Babers, 32 La. Ann. 1091; Pickerell vs. Fisk, 11 La. Ann. 277; Rogay vs. Juilliard and Schneider, 25 La. Ann. 305. The plea of prescription is therefore overruled.

We will next take up the exceptions of no right or cause of action and plea of estoppel.

In considering the exception of no right or cause of action, the defendant admits the allegations of fact contained in the plaintiff’s petition to be true. The allegations of fact contained in plaintiff’s petition clearly and definitely charge the defendant with fraud. All the elements of fraud are contained in these allegations which we have outlined in the statement of the pleadings, • that is, misrepresentations of existing facts with knowledge on the part of the defendant that they were false and untrue, and the reliance by the plaintiff in good faith upon these misrepresentations in signing the act of sale with a provision in it that he received $9,000, when as a matter of fact and truth he had received $7,000.

In the case of Locascio vs. First State Bank & Trust Company of Hammond, 168 La. page 728, 123 So. 304, 305, the Supreme Court held:

“It is the unbroken rule that authentic sales cannot be attacked, except by means of a counterletter or by interrogatories on facts and articles, or by allegation and proof of fraud or error.”

Again in the case of Godwin vs. Neustadtl, 42 La. 735, 7 So. 744, the Supreme Court said:

“The authentic act is full proof between the parties thereto; and, in absence of fraud, error, violence, or other matter affecting the consent, the parties to such acts can only assail their validity and reality in two modes, viz: (1) By a counterletter; (2) by the answers of his adversary to interrogatories on facts and articles.”

See also Trager vs. Louisiana Equitable Life Insurance Company, 31 La. Ann. 235; Robinson vs. Britton, 137 La. 863, 69 So. 282.

Therefore the plaintiff had three modes of attack upon the authentic act. The plaintiff did not have a counter letter, but he did allege and charge fraud in his petition, and this brought the plaintiff’s cause of action within the exception stated by the above authorities. He was also entitled to have the defendant’s conscience probed by interrogatories on facts and articles. C. P. arts. 347 and 348, and authorities cited supra. So that even if there had been no allegations of fraud, it would appear that the lower court would have been justified in permitting the plaintiff to file interrogatories on facts and articles in order to probe the defendant’s conscience. To have sustained the exception of no cause or right of action would have had the effect of depriving the plaintiff of this right simply because he failed to file the interrogatories on facts and articles with his petition. The judgment of the lower court in referring the exception to the merits, and requiring defendant to answer the petition, was therefore simply 'equivalent to allowing the plaintiff to file interrogatories on facts and articles after the exception of no cause or right of action had been filed.

In the case of Demoulin vs. Anglaire et al., 1 La. Ann. 403, the plaintiff appealed from a judgment dismissing his demand as to one of the defendants. On the trial of the cause one of the defendants was personally present in court, and the plaintiff moved that he be required to answer interrogatories which were proposed in writing. The application was resisted on the ground that it came too late. The judge of the lower court recognized the plaintiff’s right to require his adversary to answer interrogatories on facts and articles when appended to the petition and also plaintiff’s right to interrogate any one, who was personally present at the trial but entertained a doubt whether the party should be considered and sworn as a witness generally in the cause and subject to cross-examination, or should be required only to answer the written questions propounded. The Supreme Court held:

“We think the judge erred. It is well settled that, if a party be personally present at the trial of his cause, he. may be required to answer interrogatories on facts and articles instanter, when the questions are such as not to require a recourse to books or papers, and this whether the interrogatories he annexed to the original petition, or be then presented for the first time. Hayden v. Davis, 9 Rob. 323. Leckie v. Scott, 10 La. 416. The party interrogated may insist, before he answers, that the questions be proposed in writing. If, however, this right be waived, and he be sworn generally in the cause, he testifies as an ordinary witness, and is subject to cross-examination. Martin v. Wright, 1 Rob. 300.”

The above case is applicable here, as there were no books or documents involved in this matter which would have involved any delay of the trial.

We are therefore of the opinion that the district court was correct in overruling the exception of no right or cause of action and the plea of estoppel and requiring defendant to answer, first, because the petition does set forth a cause of action in that it alleges and charges fraud, and, second, even in the absence of an allegation of fraud the court would have” been justified in permitting the plaintiff to file interrogatories on facts and articles in view of the above authority; and the answer filed by defendant under oath being a judicial admission is entitled to equal weight as evidence as admissions under interrogatories on facts and articles, because under the circumstances of this case they amounted to the same ■thing, i. e., that the $2,000 had not been paid.

The defendant also argued in this court that the alleged fraud in the plaintiff’s petition does not amount to legal fraud. It is contended that the allegations of the petition merely show that the defendant failed to carry out his promise to do something in the future. In view of what we have just said in reference to the exception of no cause or right of action, we find this point is not well taken.

On the merits the record shows that the plaintiff originally owned the building 4340 Carrollton avenue and operated a drug store in it. He became financially involved and sold the building to the defendant and then leased the building from the defendant and continued the operation of his drug business. The defendant was familiar with the place, having visited it frequently, and plaintiff and defendant at the time were fast 'friends. The plaintiff desired to sell the drug business, and offered to sell it to the defendant for the sum of $10,000. Defendant offered to purchase it for the sum of $9,000. It was then agreed that the plaintiff would sell the business to the defendant for $9,000. Defendant then had his lawyer prepare the necessary papers.

At that time, the plaintiff owed the defendant $3,215, secured by a chattel mortgage on the fixtures and furnishings of the drug store. An act of sale in authentic form was passed on November 2, 1925, whereby the plaintiff sold to the defendant the drug store business, including the fixtures and effects, stock and trade, wares and merchandise contained in the premises, 4340 Carrollton avenue, for the sum of $9,000. The act recites that this amount was paid and liquidated by the cancellation of the $3,215 chattel mortgage, by the retention by defendant of $3,000 to pay the outstanding bills of the business, and $2,-785 cash, for which the plaintiff acknowledged receipt and granted full acquittance to the defendant.

The plaintiff contends that the defendant purchased the drug store as it stood including the fixtures, furniture, stock, good will, for the sum of $9,000 cash.

The defendant defends on the grounds set forth in the answer as herein recited.

The plaintiff’s evidence on these issues show that the defendant was entirely familiar with the operation of plaintiff’s business, and after the act of sale was passed, acknowledged on several occasions to plaintiff’s brother and the former clerk of the plaintiff’s that he owed the balance of $2,-000 to the plaintiff, and never claimed that he had a right to deduct any amount from the $2,000 as a result of the stock checking out short. Defendant’s own testimony on this issue shows that he was in possession and operating the business for fifteen days prior to the act of sale being passed. He further testified that after the stock was checked up and a shortage was discovered in the sum of $2,665.31, he cursed and abused the plaintiff for having deceived him and stated to the plaintiff that the $2,000 that he retained in his possession was thereby consumed by the deficit shown by the inventory, and as far as the $665.31 additional deficit was concerned that he (the defendant) would bear this loss.

This testimony of the defendant is, in our opinion, corroborative of the plaintiff’s version of the case, because it is inconceivable that the plaintiff -would have permitted the defendant to take charge of the drug store and operate it as his own for fifteen days prior to the passing of the act of sale. It is, moreover, hard to believe that if the defendant had any agreement with the plaintiff whereby, if the stock was checked out short in taking the inventory, the defendant would make up'the difference” by deducting that much from the purchase price, he would voluntarily agree to bear this loss, where there would have been no legal obligation on his part to do so, and particularly in view of the fact that he testified that he was very angry with the plaintiff for having defrauded and cheated him. Defendant’s evidence and testimony is not convincing.

The defendant in his testimony frankly admits that the stipulation in the act of sale that $2,785 had been paid in cash was not true, as only the sum of $785 had been paid, and that $2,000 remained in his hands for the purpose of securing any deficit which the inventory might show in the stock. It is therefore very clear that the defendant owes the plaintiff $2,000 unless the defendant proved that he was to deduct any deficit that the inventory showed from the total purchase price of the sale. We are not impressed with the defendant’s defense in this respect, in view of what has been said and also because the act of sale is silent as to how the purchase price was made up. Since the defense fails, defendant owes the plaintiff the sum of $2,000. However, the plaintiff, on stand, admitted that he owed the defendant the sum of $56.91, which he paid over and above the $3,000 retained by the defendant to pay the outstanding debts of the business and testified that he was willing to have this much deducted from his claim.

For the reasons assigned, the judgment appealed from is amended, and it is now ordered that there be judgment in favor of the plaintiff in the sum of $1,943.08, with legal interest from November 2d, 1925, until paid, and as thus amended, is affirmed.