author: BELL, J.

text:
    No. 8859.
    Orleans Appeal.
    OCTAVE MONTAGNET v. PAUL L. FOURCHY.
    (March 2, 1925, Opinion and Decree.)
    (March 30, 1925, Rehearing Refused.)
    (May 26, 1925, Decree Supreme Court. Writ of Certiorari and Review refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Builders and Build ings — Par. 24.
    Where the owner of properties which have been repaired under a verbal agreement is sued for a balance due for costs of said repairs and for certain commissions, he is estopped from claiming defects in the work done or from questioning the prices charged therefor, when it is shown that no serious objections were raised to the work or the price, and that several payments, on account of the price were made by the owner a year or more after the work was completed and accepted.
    2. Louisiana Digest — Appeal—Par. 625.
    On issues of fact, the conclusions of the trial judge will seldom be disturbed.
    Appeal from the Civil District Court for the Parish of Orleans, Div. “D”, Hon. Porter Parker, Judge.
    This is a suit for the price of repairs to a building and for commission thereon..
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Gustave A. Llambias, attorney for plaintiff and appellee.
    Paul L. Pourchy, S. P. Gautier, attorneys for defendant and, appellant.
   BELL, J.

Plaintiff sues defendant for the price of material and labor and for certain commissions claimed to be due him as a contractor employed to repair the residence and other properties of the defendant. The total amount originally due appears to have been $3,486.64, against which credits for certain partial payments have been allowed in the sum of $2,780.80, leaving a balance now claimed amounting to $705.84. There was judgment for this amount and defendant has appealed.

The petition sets forth with sufficient clearness the several properties of the defendant and the nature of the repairs thereon, as well as the respective costs of repairing each piece of property. The main repairs are shown to have been done on defandant’s residence, and a commission of ten per cent has been charged on the total cost of this particular work.

The exceptions of vagueness and of ho cause of action having been properly overruled by the trial judge, defendant has answered by denying all of the allegations contained in plaintiffs petition, except that he admits having paid plaintiff on account, as above stated, but claiming to have made such payments in error.

It is' then averred by way of special defense that if any work was in fact done by plaintiff, same was not done in workmanlike and competent manner, nor were the materials, if furnished, of proper grade or size. It is further charged, by way of defense, that plaintiff removed from defendant’s premises sheets of galvanized •iron and several loads of lumber, all of which are valued at two hundred dollars; and finally that plaintiff is indebted to defendant in the sum of three hundred dollars, for professional services rendered to the plaintiff, the' defendant herein being an attorney at law. For recovery of these amounts, defendant reserves the right to file supplemental answer and reconventional demand. No such answer or demand has been made, nor has any proof been offered to show any removal of property from defendant’s premises, except debris, consisting of old lumber and old slate, which plaintiff admits he gave away to those who would remove it.

There is no serious defense to this suit, and the judgment appealed from is eminently fair and proper. The record shows that plaintiff made extensive repairs, particularly to defendant’s own home, and that all of these repairs were authorized by defendant. Defendant admits having resided in his house while the repairs were going on. He thus had abundant opportunity to observe the work, the nature and kind of materials and the number of laborers employed and every detail incident to .the repairs. He admits that the .work Degan about July of 1916 and it required from four to six months to complete the work. He does not deny that the bills for the work were submitted to him shortly after the completion of the job, and yet there is nothing in the record to show that he ever complained seriously about any of the work or of the price charged therefor until the institution of this suit in Decent her of 1918.

We find that in January, 1918, after fref quent demands made upon defendant, both by plaintiff and plaintiff’s attorney,’ defendant commenced to make payments on account and continued so to do until September of the same year. Both plaintiff and his attorney swear that at no time during the year 1918, or at any time previous thereto, did defendant make any complaint or. interpose any objection to the charges set forth in the bills now sued upon. Defendant himself, though he alleges by way of defense, that these payments were made in error, has abandoned all effort to prove such a fact.

Plaintiff’s counsel, sworn as a witness in this case, has testified that the plaintiff put the original claim, amounting to $3,486.64, in witness’ hands for collection, and that he notified the defendant of this fact and requested payment. Defendant’then began for the first time to make payments on account, not to witness, however, but to plaintiff directly, and that after several partial payments, which ultimately totalled $2,780.80, witness called at defendant’s office and asked him for a payment of the balance now sued upon; that defendant, without ever having complained of the work or of the prices charged, stated to witness that he had a check the payment of which had been stopped by the bank, and requested ‘witness to go with him to the bank for the purpose of verifying this statement; that witness and defendant, going to the bank, found that payment of the check had been temporarily withheld", but it was out of the proceeds of this' check that defendant had offered to pay the balance due to witness, and that defendant never 'objected to pay the witness what' was then due and which now forms the amount sued for.

The defendant, taking the stand on his own behalf, has denied that any such interview occurred between plaintiff’s attorney and himself, and persists that he cannot recall or remember any such visit to the bank or any such arrangement attempted to- be made by him for the payment of the balance due. The trial judge who heard these witnesses has evidently determined for himself as to the probability of the story, and we are not disposed to take any different view than the trial judge seems to have entertained concerning this evidence. The fact that .more than two years elapsed from completion of the work to the first payment made on account by defendant without objection or protest, and the fact that no question as to the total price charged for .the work done was ever raised except after suit brought, and other circumstances surrounding this case, convince us that the judgment of the trial court is correct and that same should be affirmed.

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


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. -
    First Circuit Appeal
    SUCCESSION OF WILLIAM F. WILLIAMS OPPOSITION OF MRS. ERNESTINE Z. WERDEBAUGH
    (March 2, 1925, Opinion and Decree.)
    (May 5, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The opinion of_ the district judge as to thé proof of a contract of. employment ■ and a quantum meruit for services being clearly correct, is affirmed.
    2. Louisiana Digest — Laws—Par. 72; Evidence — Par. 280, 340, 344.
    Under Act No. 207 of 1906, page 361, when the asserted indebtedness has been judicially demanded within twelve months from the • death of th'e debtor, the debt may be proven by parol evidence.
    Appeal from the Parish of Lafourche, Hon. Robert B. Butler, Judge.
    This is an opposition involving a suit against a succession and also an opposition to the sale of succession property.
    There was judgment for plaintiff, opponent and the succession appealed.
    Judgment affirmed.
    Howell & Wortham, of Thibodaux, attorneys for plaintiff, appellee.
    J. A. O. Coignet, of Houma, attorney for defendant, appellant.
   LECHE, J.

William F. Williams died intestate in the Parish of Lafourche on October 11, 1923. His succession was opened October 25th and Charles D. Stanwood was confirmed as administrator November 23,' 1923.

Mrs. Ernestine Z. Werdebaugh, first brought suit against the succession and she later on, filed an opposition in the sale of the succession property, praying for recognition and payment of the claim upon which she had previously sued, so that her demand has been merged into her present opposition. The Pan-American Life Insurance Company, holder of a special mortgage bearing upon the property of the succession, as the principal party having a counter interest, intervened in the proceedings and joined the administrator in opposing the demand of Mrs. Werdeb'augh. The succession, we assume, is insolvent and if the privilege claimed by opponent, should be recognized, it could only be satisfied to the detriment of the Pan-American Life Insurance Company’s mortgage claim.

Mrs. Werdebaugh’s demand is based upon two distinct claims:

First, for salary as secretary and clerk, and general overseer of deceased’s Sunny Side plantation, from February 4, 1921, to June 2, 1923, at $15.00 per week, totaling $1030.56 with interest from June 2, 1923, and

Second, for compensation as nurse during the last illness of deceased, from June 2, 1923, to October 11, 1923, at $6.00 per day, totaling $786.00 with interest from December 15, 1923, and she prays for recognition of her lien and privilege and for separate appraisement and sale of movables belonging to the succession.

The property of the succession was sold on January 26, 1924, and by consent of all parties, the purchaser furnished bond with security to stand in lieu of the property for the satisfaction of such privileges as might be judicially recognized.

Opponent’s first claim is based upon a contract of employment and the second upon a quantum meruit.

We understand from the testimony in the record, that opponent who formerly resided in the City of New Orleans, came to the home of the decedent, William F. Williams about the 4th day of February, 1921. Williams lived alone, had no family and the management of his household was at once assumed by opponent, Louvinia Johnson, who cooked and washed for the decedent, says that opponent took charge of the running of the house; that she managed. the yard; that she went in the field, taking out the hands in the morning and would stay in the field until 12 o’clock; and that in the evening she would go back. That Williams would often go to New Orleans and was absent a good deal, and that opponent would remain there and see to everything.

When Williams fell sick, on June 11, 1923, opponent at once assumed the duties of nurse. She does not claim to have been specially employed at a fixed price for such service, but she nevertheless performed the duties of a nurse and her services were accepted by Williams.

Taking up the two claims in inverse order, our appreciation of the evidence is that opponent’s services as nurse were undoubtedly rendered for the time claimed, that such services were arduous, were accepted by the deceased, were absolutely necessary and were of great benefit to him. Their rendition was amply proved by opponent, by Stanwood the administrator, and by. two physicians of high repute. Both of these physicians, Dr. Stark and Dr. Kleinpeter, testify that opponent’s services were onerous, were rendered intelligently and faithfully and were fully worth as much as if rendered by a trained nurse and that in their opinion, six dollars per day was a fair compensation. Whether the evidence upon this claim be weighed from the ordinary standpoint or under Article C. C. 2277, or the provisions of Act 207 _ of 1906, it is ample to sustain the demand of opponent.

Opponent’s contract of .employment, as secretary and clerk, and manager of deceased’s Sunny Side plantation is directly established solely by her own testimony, but there are numerous corroborative circumstances. It is inconceivable that opponent would have removed from the City of New Orleans to the home of deceased in the Parish of Lafourche, without some invitation or engagement on the part of the latter, and that as soon as she reached her destination she should have at once taken charge of the household affairs of the deceased and superintend field operations on his plantation. The services which she claims she was engaged to perform, are proven by Louvenia Johnson, by Stan-wood and are reluctantly admitted by Hebert, field foreman and by Lirette, witnesses who were hostile to opponent. After the death of Williams, the administrator continued the employment of opponent and paid her $15.00 per week.

We feel no hesitancy in saying that the proof is sufficient if measured under the provision of Article 2277 C. C. Counsel for intervenors however, urge that under the terms of Act 207, p. 361, of 1906, opponent’s demand should be rejected for the reason that she has failed to sustain her demand by the testimony of at least one credible witness of good moral character besides herself. This defense involves the serious question, whether opponent’s claim should be considered as included within the terms of the Act of 1906. That act excludes the competency of parol proof to establish a debt or liability on the part of. a deceased person, except when such parol proof consists of the testimony of at least one credible witness of good moral character besides the plaintiff, or except it be to corroborate a written acknowledgment signed by the debtor, or unless an action on the asserted indebtedness shall have been brought within a delay of twelve months.

It appears from the language thus used by the law-maker, that there are three exceptions to the rule of incompetency first stated in the statute, and these exceptions are 1, when a credible witness of good moral character besides plaintiff so testifies; 2, when 'the debtor has signed a wit-ten acknowledgment, and; 3, when the asserted indebtedness has been judicially demanded within twelve months from the death of the debtor. But it appears on the face of the record in this case, that opponent did make judicial demand before the expiration of twelve months from the death of her debtor, so that her claim cannot be considered as included within the rule of incompetency of parol evidence.

The district judge ' decided in favor of opponent and granted her demand.

We believe his judgment is correct and should be affirmed, and

It is so ordered.


text:
    No. -
    First Circuit Appeal
    FRED FRANKS v. POLICE JURY OF LIVINGSTON PARISH, ET AL.
    (March 3, 1925, Opinion and Decree.)

      (Syllabus of the Editor.)

    1. Louisiana Digest — Prescription—Par. 89.
    Laborer’s wages are prescribed by one year. Article 3534 of the Civil Code.
    2. Louisiana Digest — Prescription—Par. 170, 180; Pleading — Par. 63.
    Interruption of prescription of laborer’s wages is not shown in a petition which does not allege that the party who gave the checks which are alleged to be an acknowledgment of the debt was liable for the debt, or had authority to pay the debt. Under the circumstances a plea of prescription was sustained.
    3. Louisiana Digest — Courts—Par. 8.
    Under Article 162 of the Code of Practice a defendant must be sued at his domicile. Therefore, a suit filed in Livingston parish alleging that defendant resides in Tangipahoa parish, was correctly dismissed on defendants’ exception to the jurisdiction.
    Appeal from the Parish of Livingston. Hon. Columbus Reid, Judge.
    This is a suit to collect laborer’s wages alleged- under a contract from the Police Jury of Livingston Parish, L. A. Loustalot, U. S. Fidelity & Guaranty Company, Creasaps Brothers and O. W. Herring, jointly and in solido.
    There was a plea of prescription filed and maintained for all defendants except O. W. Herring. An exception to the juris-' diction was filed and maintained as to O. W. Herring.
    Plaintiff appealed. Judgment affirmed.
    A. S. Burns, of Frank-linton, attorney for plaintiff, appellant.
    W. S. Rownd, of Hammond, and S. S. Reid, of Amite, attorneys for defendants^ appellants. •
   LECHE, J.

Plaintiff charges in substance in his petition, that the Police Jury of Livingston parish, as the governing body of a road district in said parish, entered on July 9, 1921, into a contract with Peter-man & Loustalot to build certain roads in consideration of over two hundred thousand dollars; that no bond for performance was recorded in the records of the parish; that Peterman' & Loustalot assigned the contract to Loustalot individually; that Loustalot subsequently, * employed Creasaps Brothers to build that portion of the road going through “Clio Swamp”; that no bond was given by the sub-contractor; that O. W. Herring became interested in said subcontract or became purchaser of said subcontract or became purchaser of the payroll due the sub-contractors; that certain laborers were employed by and worked for the sub-contractor in building the “Clio Swamp” road, between the dates of April 29, 1923, and May 31, 1923, whose claims amount to $340.40; that he furnished teams which did hauling and cartage in the construction of said road, approximately within the aforesaid dates, under the employment of Creasaps Brothers amounting to the sum of $406.40; that O. W. Herring under date of June 9, 1923, issued a check to petitioner, for his claim, in the sum of $406.40; that on July 9, 1923, he issued checks to the aforesaid laborers for their aforesaid claims; that an affidavit made June 25, 1923, by L. W. Ernest on behalf of said claimants, attesting the correctness of said laborers’ claims, was filed with the Police Jury and with the Recorder of Mortgages; that in the month of April, 1923, Loustalot as principal, with the U. S. Fidelity and Guaranty Co., as surety, executed a bond in favor of the Police Jury of Livingston parish, for $18,000.00, conditioned for the payment of the work done on the “Clio Swamp” road; that at the same time the same principal and surety executed another bond in favor of said police jury, for $10,000.00 to secure the completion of the “Clio Swamp” road, and other roads in the parish; that no notice was ever filed of the acceptance of said road; that on or about April 4, 1923, said police jury accepted the bonds of $18,000.00 and $10,-000.00 and by resolution,, cancelled all previous bonds given by Loustalot, which resolution it is averred had the effect of waiving prescription on the aforesaid claims; that on September 27, 1924, the. aforesaid claims for labor were assigned to petitioner, in writing; that the failure of said Police Jury to cause its contract and bond with Peterman & Loustalot to be filed or recorded has caused said Police Jury to become liable as surety of the contractor, to the work — men, laborers and cartmen, for work on such road; that the failure of Loustalot to cause to be filed and recorded his contract with- and bond from Creasaps Brothers, renders him liable to petitioner on said claims; that said O. W. Herring is liable to peitioner for said claims both as subrogee and contractor and because of his promise in writing to pay the debt of a third person; that by the acceptance of such work on May 6, 1924, by the Police Jury, the acceptance of payment by said contractor and because of the issuance of such checks, the said parties are estopped from denying liability, herein and from claiming that prescription started to run on such claims prior to May 6, 1924.

Wherefore plaintiff prays for judgment against the Police Jury, L. A. Loustalot, United States Fidelity and Guaranty Co., Creasaps Brothers and O. W. Herring jointly severally and iñ solido.

Defendant Herring, who is alleged to reside in the parish of Tangipahoa, filed an exception to the jurisdiction of the court of Livingston parish and the other defendants, the Police Jury of Livingston parish, L. A. Loustalot, and the United States Fidelity and Guaranty Co., pleaded informality of the petition, no right or cause for action, misjoinder and non joinder of parties and the prescription of one year.' Creasaps Brothers made no appearance.

The district court maintains the exception of Herring to its jurisdiction, and the plea of prescription filed by the other .defendants.

plaintiff has appealed.

Pretermitting all discussion as to the vague and inconsistent allegations of plaintiff’s lengthy petition, we find no allegation of fact therein to sustain the alleged conclusion of law that defendants are estopped from denying liability or pleading prescription. There is no fact alleged which could render the defendants liable in solido; and even if Herring’s checks were considered an acknowledgment, such acknowledgment is not binding on the other defendants.

It is impossible to say from the allegations of the petition whether Herring was •primarily liable for the debts covered by the checks and there is no allegation that Herring had authority from the other defendants to legally acknowledge such debts. The allegations upon this subject are vague, uncertain, and of a hypothetical nature. The petition admits that Loustalot and Herring are residents of Tangipahoa parish and the suit was filed in the parish of Livingston.

Laborer’s wages are prescribed by one year. C. C. Art. 3534. A defendant must be sued at his domicile. C. P. Art. 162.

Finding no error in the judgments appealed from, they should he affirmed and

■ It is so ordered.


author: ODOM, J.

text:
    No. 2310
    Second Circuit Appeal
    R. B. SWAYZE v. TRI-STATE UTILITIES CO., INC.
    (March 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 57.
    Where plaintiff’s petition states on or about the date of the accident, how the accident happened and the nature of the injury, an exception of vagueness will be overruled.
    2. Louisiana Digest — Telegraphs and Telephones — Par. 7.
    It is the duty of a telephone company towards the public to maintain its telephone lines in such a manner as will keep the wires safe to the traveler.
    3. Louisiana Digest — Telegraphs and Telephones — Par. 7.
    Where a telephone company allows its lines to sag across the public road which causes the wire to strike one riding a truck and jerk him off the truck to the ground, the telephone company is responsible for the resulting damage.
    4. Louisiana Digest — Appeal—Par. 625.
    The judgment of the trial court on questions of fact, namely, how an accident happened and the amount of damage sustained, being clearly correct, is affirmed.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Seventh Judicial District Court, Parish of Catahoula, Hon. R. M. .Taliferro, Judge.
    This is a suit to recover damages for personal injuries caused by a telephone wire being negligently left too low on a road.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.

      G. P. Bullís, of Vidalia, R. R. Reeves, of Harrisonburg, attorneys for plaintiff, appellee.
    Dudley L. Guilbeau, of Opelousas, attorney for defendant and appellant.
   ODOM, J.

Plaintiff alleges that defendant owns and operates telephone wires and a telephone exchange in the parish of Catahoula this state, and that due to the carelessness and negligence of said defendant company . one of its wires, which was stretched across and above a public highway, was permitted to sag and to fall below its proper level or height from the ground and was only a few feet above said highway; and that said wire had.been in that position for several days prior to said accident.

He further alleges that said company had been notified of the condition of its wire at this place and had failed to remedy such dangerous condition. He sets out the date, the circumstances of the accident, etc., in paragraph two of his petition as follows:

“On or about November 22nd, 1922, petitioner was riding in an automobile truck in the customary manner of travelers, along the public highway running along the bank of Black River, about one mile south of the Town of Jonesville, in Catahoula parish, state of Louisiana, when and where petitioner was struck by a telephone wire owned and operated by said Tri-State Utilities Company, Inc., and by that company placed across said highway.”

He alleges that he was thrown from the truck to the highway and was stunned and rendered unconscious for about two hours and did not fully recover consciousness for several hours and that he has suffered great pain and is permanently injured; and that he still suffers with headaches as a result of said accident.

He alleges that he has been damaged in the sum of $3,000.00 as a result of said accident, for which amount he asks judgment.

This suit was filed on July 13, 1923, and on July 27, 1923, defendant filed an exception of vagueness and asked that the suit be dismissed on the ground that the allegations:

“Touching the time when the injury complained of occurred, the notice of such injury, and the elements of damage said to have resulted, are so vague and indefinite that exceptor is not sufficiently put on notice to enable it to properly defend itself.”

This exception was overruled and, on April 8, 1924, defendant filed answer denying liability. It especially denied that its telephone wire had been permitted to sag to a point only a few feet above the highway; but it is alleged:

“That its said wire, at the place alleged, may have sagged, at some time, below the distance at which, from the highway, it was and is usually maintained, but that such sagging or lowering never reached a point lower than fourteen (14) feet above the highway, was due to natural causes, and was corrected within a reasonable time after such occurrence.”

And it is then set up that if such condition existed at the time plaintiff collided with said wire, the collision was due to his own negligence and carelessness, and defendant especially pleads contributory negligence on the part of plaintiff.

The case was tried in April, 1924. There was judgment in favor of the plaintiff for the sum of $750.00, and from the judgment defendant appealed.

ON EXCEPTION OP VAGUENESS.

We think the judgment of the lower court overruling the exception of vagueness was correct. Defendant contends that the allegations of plaintiff’s petition with reference to the time of the accident and injury and the notice of such injury and the elements of damage said to have resulted, are too vague and indefinite. The petition sets out that plaintiff was injured on or about November 22, 1922. It seems to us that is sufficient as to time. We have been cited to no rule and we can think of no reason why a petition in a suit for damages on account of an accident like the one alleged in this case, should set forth the exact hour of the day at which the plaintiff was hurt. Counsel for defendant in brief says that in cases of this kind the company is entitled to notice of the time, place and circumstances and the nature and character of the injury sustained. The pleader, after stating that the petitioner was injured on or about the 22nd of November, 1922, alleges that he ’was riding on a truck along a public highway running along the bank of Black River about one mile south of Jonesville, in Catahoula parish, when he was struck by one of the wires of defendant company and thrown to the ground and that he was stunned and rendered unconscious and that he suffered great pain and is permanently injured in that he still has headaches as a result of said accident.

We think these allegations sufficient to put defendant on notice and enables it to answer and defend the suit.

ON THE MERITS.

Counsel for defendant in brief says:

“We are not unmindful of the law regardihg the duty of defendant company, towards the public, to maintain its telephone lines in such manner as will keep the highways along and across which they are strung safe to the traveler.”

The law governing a case of this kind being thus conceded, the case is resolved into one of fact only.

The plaintiff as a witness in his own behalf says that he was riding on a Ford truck which was running along the highway and that there was a drum of gasoline on the truck “edged up” or, as we understand, was setting on the end, and the plaintiff was sitting on this drum or tank of gasoline. .He says that there was a wire owned by defendant company stretched across the road and that this wire struck him across the stomach and jerked him off the truck and that he was balanced on the wire until he hit the ground. He says that he did not see the wire until it struck him and assigns no reason for not seeing it sooner except that he was not looking for a wire.

X W. Collins, a witness for plaintiff, testified that he was driving the truck and that plaintiff and others were riding with him and that he heard the plaintiff exclaim “lookout” and as he looked back over his shoulder he saw the plaintiff leave the gasoline drum on which he was sitting and that as soon as he could stop the truck he went back and found the plaintiff lying on his back unconscious as though he were dead. He says that the plaintiff was sitting on this gasoline drum which was about thirty inches or three feet high. He is positive that the telephone wire knocked him off the drum. And he testifies that the telephone wire was about four feet from the ground after the accident.

Mr. R. G. Whitehead who lives on the public road at the place where the accident happened, testified that the pole on which the wire was fastened, was leaning towards his residence and that the wire became slack across the road and that he tied the wire up to a pecan tree near his yard. He says that when he tied it up it was high enough above the road to make travel along the road safe and that he went away from home and stayed some eight or ten days hunting, during which time this accident occurred. He does not know the condition of the wire at the time of the accident. He says that the telephone pole which supported this wire became loose during the overflow in May and June, 1922, and that some hog houses drifted against the pole and caused it to lean considerably. This, as we understand it, caused the wire to get slack. There is some testimony that this telephone pole was reset after the overflow. The local manager of the telephone company testified that he reset it after the overflow, but we are rather inclined to believe that he is mistaken about that. But if it be conceded that he did reset it, he evidently left it insecure because Mr. Whitehead, who lived there, testified that in November, 1922, he found the wire slack and tied it up to a pecan tree.

The testimony satisfies us that this telephone wire was slack and that it sagged to such an extent as to become dangerous; and it further satisfies us that the plaintiff was struck and jerked off the truck by this wire.

The defendant pleads contributory negligence on the part of plaintiff. We do not find that he was negligent. He says he did not see the telephone wire until it struck him, and explains that he was not looking for it.

It is defendant’s contention that plaintiff was not, as a matter of fact, struck by its telephone wire and jerked off the truck, but it contends that he became unbalanced while sitting on top of the gasoline drum and fell over. In this we think he is mistaken. The testimony of the plaintiff and that of the driver to' the effect that plaintiff was struck by this wire and knocked to the ground, is undisputed; and their testimony to the effect that the wire was slack is corroborated by that of Mr. Whitehead.

Defendant further contends that if the plaintiff was struck by this telephone wire, there is no reason why the other persons who were riding on the truck should not also have been struck by it.

But it overlooks the testimony of the driver to the effect that he and a woman were sitting on a seat which was very low, in fact only a few inches above the bottom of the truck bed, and this plaintiff was sitting on the head of a gasoline drum or barrel which was some thirty inches or three feet high. There were two other men riding on this truck, but the testimony does not show whether they were standing or sitting. The reason the plaintiff was struck and the others not, we think, is because he was sitting on top of this gasoline drum or barrel.

The defendant attempts to show by its local manager, Mr. Fluitt, that its telephone wires were kept above the road and its poles kept in good condition. Mr. Fluitt says that he made a trip down this road practically every week and that he did not find any of the wires too low. He is evidently mistaken about the wires being kept in good condition, because Mr. Whitehead says that this particular one was down and that he had picked it up.

There is testimony that a great many people travel along this road and so far as the record discloses no one else has been injured by this or any other wire. But the fact remains that on this particular occasion this wire was so near the ground that it struck plaintiff and jerked him off the truck.

ON THE QUANTUM OF DAMAGES.

The testimony shows that plaintiff was thrown from the truck to the ground and rendered unconscious for one or two hours and was left in a dazed, flighty condition for several hours. There were no wounds or contusions on his head but he suffered from headaches. The accident happened in November, 1922. The case was tried on April 10, 1924, about fifteen months later, and plaintiff says he is still suffering from headaches, which he attributes to the fall. He says he never had headaches before and that he now has to take aspirin to relieve himself. His testimony as to his suffering and as to his present condition is not disputed. He unquestionably had a very severe shock and suffered considerably. It seems that some two or three days after the accident he started to Natchez, Mississippi, to consult a physician as to his condition but on arriving at Yidalia, Louisiana, he consulted a physician who gave him medicine which relieved, for the time, his headache and he went no further. He was evidently alarmed over his condition.

The District Judge who is no doubt personally acquainted with the plaintiff and saw him during the trial, rendered judgment in his . favor for $750.00. We cannot say that he has erred.

Por the reasons assigned, it is ordered that the judgment appealed from be affirmed with costs.


text:
    No. 9538.
    Orleans Appeal.
    JOSEPH PALMISANO v. HAROLD FAUST.
    (March 16, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625; Assault and Battery — Par. 8.
    In a tort action for damages to plaintiff’s person and property, arising from an alleged assault by defendant, issues of fact are necessarily and almost exclusively involved. In such cases the conclusions of the trial judge as to liability vel non, will not be disturbed unless manifestly erroneous.
    2. Louisiana Digest — Appeal—Par. 708; Damages — Par. 103, 104.
    It is the duty of an appellate court to re duce the quantum of damages allowed, where same appears to be excessive.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Civil District Court for the Parish of Orleans, Division “B”, Hon. Mark M. Boatner, Judge.
    This is a suit for damages ex delicto to person and property of defendant.
    There was judgment for the plaintiff and defendant appealed.
    Judgment amended.
    Bernard Titche, attorney for plaintiff and appellee.
    A. D. Danziger, attorney for defendant and appellant.
   BELL, J.

This is an action ex delicto, wherein plaintiff claims damages in the sum of $10,961.00, which he alleges to have suffered from injuries to himself and his property, arising from malicious assault at the hands of defendant.

The petition sets out the usual categorical allegations as to the time, place and nature of the assault and as to the extent of the damages suffered. To each paragraph in the petition defendant makes general denial, but finally answering, defendant avers that plaintiff was the aggressor and provoked the difficulty by insults and threats and by finally laying violent hands on the person of the defendant, who merely sought to defend himself.

The trial judge, with written reasons for judgment, awarded plaintiff damages in the sum of $2,350.00. We quote, in part, from his opinion, to which we give our entire approval as to the facts and as to the unjustified assault:

“The plaintiff was delivering ice from his wagon and stopped it for that purpose near the curb in front of the home of a customer. The defendant, Faust, operating a baggage truck, came up behind plaintiffs wagon to make a delivery at the adjacent house. The defendant had a large load of baggage, which he was hurrying to dispose of in time to enable him to pick up another load to be hauled to outgoing railroad trains. The plaintiffs wagon was in his way, and he called to the plaintiff to move it off. When the plaintiff did not comply, he ran his truck into the rear of the wagon, bumping it several times, breaking the rear steps and causing the horse to break the shafts. On the plaintiff’s expostulating, the defendant jumped off the truck and attacked him. One of the defendant’s helpers, Abadie, joined him, and though the plaintiff tried, ineffectually, to protect himself, they beat him with such savagery, that when they desisted, one eye was completely and the other nearly closed, his nose was broken, there was a deep cut in his chin, the lobe of one of his ears was nearly torn off and the whole surface of his head and face was bruised, swollen and covered with blood.
“The plaintiff did not provoke the trouble; he had a right to stop his wagon where he did, and was not obliged to inconvenience himself for the defendant’s convenience. The trouble was caused by the defendant’s unjustified ill-temper, the violence of which is illustrated by the character of injuries which he and his helper inflicted on plaintiff.
“The plaintiff is corroborated in the main by Mrs. McKoy Serio, the young colored woman, Leona, and the colored man, Walter, all of whom impressed me as being without interest and as endeavoring to tell the truth according to their observation and memories. * * * On the other hand, the version of the defendant is supported only by the testimony of the helper, Abadie, who took part in the attack.
“The findings of fact which I make above are, in my judgment, supported by the preponderance of the evidence; and it results therefrom, as a matter of law, that the defendant, Faust, is liable for the plaintiff’s damages. * * *”

We think the quantum of damages allowed in this case to be excessive.

Our careful examination of the entire record convinces us that the property damage suffered by the plaintiff should be allowed, as follows:

1 — Damages to the ice wagon______________$ 15.00
2 — Amount paid helper during plain- . tiff’s disability (six weeks at $18.00 per week)________________________________ 108.00
3 — Meals for helper (42 days at 50«¡) ________________________________________________________ 21.00
4 — Bills for doctor and x-ray________________ 50.00
5 — Depreciation or loss in business profits during disability (6 weeks, or 42 days, at $8.00 per day)__________ 336.00
Total ______________________________________________$530.00

In considering the personal injuries suffered by the plaintiff and which consisted of severe but only temporary bodily injuries, and further considering the suffering and mental anguish and humiliation consequent to such an assault, we do not think that plaintiff should be compensated in respect to such damages beyond the amount of $750.00.

Weighing carefully the testimony of the plaintiff’s doctors who have testified in this case, particularly that of the four medical specialists, we are satisfied that the trial judge was correct in finding no permanent injuries-to have befallen plaintiff as a result of the assault.'

It is contended by counsel for plaintiff that the major injury — claimed as permanent in character — which plaintiff has sustained is a fracture of what is commonly called the “lachrimal bone”. Two of the specialists testify they found such a fracture when examining the plaintiff shortly after the assault, but only one of the four specialists who examined the plaintiff shortly before or at the trial of this case, venture the opinion that any permanent or serious injury has resulted from the fracture, or that any other injuries have been found to exist beyond a month or two subsequent to the assault.

We are particularly impressed with, the testimony of Dr. Charles J. Landfried, who states that his examination of the plaintiff —made just before the trial — showed nothing of a serious nature. Dr. Landfried stated that he found a deviated septum, but that he was unable to positively say whether it was traumatic (that is the result of an accident), or developmental (that is, caused through a natural defect in the nose), but that he could not find any deformity! which, to his mind, would be required in order to say that there was a fracture of the “lachrimal bone” in the left nasal chamber of the nasal cavity. He further testifies that so far as his experience has gone he has rarely seen a traumatic deviation of that portion of the septum without a marked deviation of the very anterior part of the septum. This able and experienced specialist further states that a deviated septum is commonly found in forty per cent, of mankind. Outside of this condition, he testifies that he could find nothing to allow him to say that there was a fracture of any bones of the face or skull; and, furthermore, he gives it as his opinion that there were no defects, in plaintiff’s case, as to the ventilation or drainage of the nasal chamber. He would not give it as his opinion that the conditions as found in plaintiff’s head could have caused or did cause at the time of the trial any irritated conditions of the nerve centers about the eye, which would lead to chronic or habitual headaches.

The most recent case of this nature which this court has had occasion to consider is that of Douglas vs. Bagneris, 8620 Orl. App., in which the plaintiff, a colored man, driver of a butcher’s wagon, was knocked down and beaten by the defendant and sustained severe contusions of the right eye and head and portions of the body,'and was absent from work but a few days. In that case, this court awarded the plaintiff the sum of $300.00, and reviewed exhaustively the jurisprudence of this court and of the Supreme Court of the State as to quantum allowed in similar cases up to the case of Fontenelle vs. Waguespack, 150 La. 316, 90 South. 662. Again considering this jurisprudence, we are of the opinion that a proper allowance in the instant case for the damages suffered should be the total sum of $1,280.00.

Punitory damages are not allowable under the jurisprudence of this State. We have so noted in the recent case of Claverie vs. Lorenz et al., 9653 Orl. App. See also Mundy vs. Phillips et al., 157 La. 445, 102 South. 519.

It is, therefore, ordered that the judgment herein appealed from be and the same is hereby amended so as to reduce the quantum of damages allowed from Twenty-three Hundred and Fifty Dollars ($2,350.00) to Twelve Hundred and Eighty Dollars ($1,280.00), and, as thus amended, that the judgment be affirmed, at defendant’s costs in both courts.


author: WESTERFIELD, J.

text:
    No. 9570.
    Orleans Appeal.
    CHARLES P. DUREL, Appellant, v. EMILE A. FLACH.
    (March 16, 1925, Opinion and Decree.)
    (March 30, 1925, Rehearing Refused.)
    (April 28, 1925, Decree Supreme Court Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Marriage—Par. 66 278.
    Where a husband is sued for damages caused by the negligent driving of his automobile by his wife and he is not present, it must be proven that the car was being driven in his service or by his special authority and permission before there can be any recovery.
    (Civil Code, Art. 2315. Editor’s note.)

      Appeal from Civil District Court, Hon. Percy Saint, Judge.
    This is a suit and reconventional demand arising out of an automobile collision.
    There was judgment for defendant on the main demand and the reconventional demand was rejected. Plaintiff appealed.
    Judgment affirmed.
    Henry W. Robinson, attorney for plaintiff and appellant.
    J. H. Weiner, Lemle, Moreno & Lemle, attorneys for defendant and appellee.
   WESTERFIELD, J.

This case results from an intersectional collision. Plaintiff sues for damages to his automobile and personal injuries to himself, and defendant reconvenes for damages to his car.

When the case was argued before us, defendant’s counsel called our attention to the fact that the automobile of defendant at the. time of the accident was being driven by the wife of defendant upon a pleasure trip and that defendant was not present. He argues that this circumstance relieves defendant from liability. Defendant’s counsel asserts, and it is conceded, that .this point was not made in defendant’s answer nor in the trial or argument of the case below and points out that in plaintiff’s petition there is an allegation to the effect that at the time of the accident the automobile of defendant was being driven in the service of defendant and that this 'allegation not being denied in the answer must, under the pleading act, be taken as true. In view of recent jurisprudence there is considerable doubt in our mind as to the effect of the pleading act upon situations of this sort. Burnstein vs. Fallo, 155 La. 345, 99 South. 285. But in this case, the proof, administered by plaintiff’s counsel himself, certainly without objection on' his part, is clearly to the effect that defendant’s 'automobile at the time of the accident was upon an errand of pleasure (if the term “joy ride” be objectionable because of its customary application) in which the plaintiff did not participate and so far as the record discloses without his knowledge. The occupants of the car at the time consisted of plaintiff’s wife, who was driving, a young man and a young married woman, whom it appears was wearing knickerbockers or knee length trousers, though we fail to see the relevancy of this proof or the necessity of the emphasis given that fact by plaintiff’s counsel. All three passengers were seated upon the front seat which we are admonished was intended by the manufacturer for but two persons. Mrs. Flach, when asked her destination, would only say that they were going for a ride and upon being pressed added no further information. We therefore conclude, in the absence of any further proof, that the car was not being driven in the service of Mr. Flach, defendant herein, at the time of the accident.

Can the defendant be held responsible under the circumstances is the first question for our consideration.

In the Civil Law and in Louisiana the rule is that a husband is not liable for the torts of his wife committed out of his presence. C. C. 2317; C. N. 1384; McClure vs. McMartin, 104 La. 496, 29 South. 227; Pothier on Obligation, Part II, Ch. VI, Sec. VIII, Art. 11; 39 Dalloz 420-592.

Counsel recognizes this to be the law, but contends that since the husband is required by law to afford such conveniences for the health, recreation and pleasure of his wife as his means will allow, that an automobile, being such convenience, the community should be held responsible for her negligent operation of it. He contends that the situation is in no wise different in principle from the care of an automobile being driven by a chauffeur in the employ of the husband.

We are referred to no authority and are asked to so conclude as a matter of abstract reasoning.

The rule of the Common Law is in general that a husband is liable for the torts of his wife, whether he is present or not, or whether committed without his knowledge. Am. & Eng. Ency. of Law, Verbo: Husband and Wife, Vol. 15, p. 895, but this has been modified by statute in many States and by the courts in others.

“In Farthing vs. Strouse, 172 App. Div. 523, 158 N. Y. Supp. 840, the Appellate Division affirmed a judgment of non-suit against her husband., The car was being driven by his wife. He was not present. He admitted ownership. He admitted that his wife had authority to use the car for her pleasure, or for any purpose whatever. The court said: ‘There is no evidence that at the time of the casualty the wife was engaged in the business of the husband. * * * The rule of stare clecisis requires us to hold that upon the facts in this case there is no presumption that the defendant’s wife' was in his service and engaged in his affairs, and that therefore the principle of respondent superior does not apply.’
“In Tanzer vs. Read, 160 App. Div. 584, 145 N. Y. Supp. 708, the court reversed a judgment for the plaintiff and dismissed the complaint, as against the husband, when injuries were caused by an automobile belonging to the husband, which had been purchased by him for the mutual pleasure of himself and his family, including his wife, who was privileged to use the same. The husband had provided a chauffeur for the operation of the car, and at the time of the accident this chauffeur was in the car; but he had shortly before the accident given up the wheel to the wife, who alone was operating the car when the accident .occurred. It was being used on that occasion purely for the wife’s recreation, and not for the business of the husband. The court said:: T know of no law * * » which compels a husband to afford to his wife either the opportunity or means for recreation; but, if he does so, I do not think that, while engaged in such recreation, she is in any sense acting as her husband’s agent, even' though she utilize his property as a means for her pleasure.’ ”

Quoted by Berry on Automobiles, p. 1182.

In Towers vs. Errington, 78 N. Y. Misc. 297 (1912) the husband was sued for injuries to plaintiff caused by the alleged negligence of the husband’s car by his wife. The husband was not present at the time of the accident and it was sought to hold him liable as a partner. The court said:

“If the partnership owned a carriage or automobile, and one of the partners took it out for his private pleasure, for a personal purpose, surely the act would not be a partnership act. If on his private excursion he injured a traveler on the highway, his partners would not be liable, for the reason that at the time he was not acting for them, or in the prosecution of their business. And this would be so, even though the other parties were present and saw him start out on his journey without objection.”
“In California it is held that the burden is on the plaintiff in an action against the husband to recover for injuries caused by the negligent driving of his car by his wife, to prove that the wife was acting as his agent.” •

Berry on Automobiles, Fourth Edition, p. 1183.

In Mittlestadt vs. Kelly, 168 N. W. 501 (1918), it was held “that a joint owner is not liable where he was not present, had no interest in the object of the trip and the car was not being operated for him.”

We conclude that the defendant herein not being present at the time of the accident and it not having been shown that he had any knowledge of or gave assent to the use made of the automobile, and it being proven that the car was being used upon an errand solely for the pleasure of his wife, that he, the husband, cannot be held liable for her negligent operation of it.

As to the reconventional demand of defendant we agree with the, trial court in his conclusion that it should be rejected.

For the reasons assigned the judgment appealed from is affirmed.


author: CLAIBORNE, J.

text:
    No. 9690.
    Orleans Appeal.
    A. C. ITTMAN, ET AL., v. KRACKE & FLANDERS CO. B. A. Flanders Appellant.
    (March 16, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Insolvency—Par. 115 149.
    A mortgage creditor purchasing property at an insolvent sale may retain the price in his hands, conditioned upon the payment of claims superior to his own.
    2. Louisiana Digest — Insolvency—Par. 10
    Where the liquidator of an insolvent pays taxes on immovables from funds derived from other assets of the insolvency, the ordinary creditors will be entitled to have the amount of those taxes reimbursed to them from the sale of the immovables.
    Appeal from Civil District Court, Hon. Mark M. Boatner, Judge.
    The trial judge decided that defendant should pay the taxes of 1923, and from that judgment defendant has appealed.
    Judgment affirmed.
    Jas. Wilkinson, B. A. Flanders in P. P., Merrick & Schwarz, attorneys for plaintiff and appellee.
    Monroe & Lemann, Walter Suthon, Chas. Rosen, A. J. Peters, attorneys for defendant and appellant.
   CLAIBORNE, J.

B. A. Flanders was a creditor of Kracke and Flanders for $24,000 secured by mortgage on property owned by Kracke and Flanders. Kracke and Flanders went into the hands of a receiver in September, 1923; in February, 1924, the Receiver obtained an order for the sale of the mortgaged property on terms of cash, the purchaser to assume the taxes of 1924; at the sale the property was adjudicated to B. A. Flanders, mortgage creditor, for a price less than his mortgage. In accordance with jurisprudence Flanders claimed the right to retain in his hands the amount of the purchase price accruing to him as a mortgage and preferred creditor; this right was conceded by the Receiver, who claimed, however, that Flanders should reimburse to. him in money the sum of $695.75, amount of taxes of 1923 on the mortgage property sold to him which the Receiver had paid in January, 1924.

Flanders, the purchaser, claimed that he owed only the taxes of 1924, as they were the only'ones he had assumed to pay under the terms of the sale.

The trial judge decided that Flanders should pay the taxes of 1923, and from that judgment he has appealed.

The trial judge was right. All that Flanders was authorized to retain as mortgage creditor was the amount coming to him as a mortgage creditor. He was obliged to pay all the claims that were privileged above his own, and the taxes certainly are of that number.

The terms of sale had nothing to do with the question of whether he should pay the taxes of 1923 or not. His liability arose not from the terms of sale, but from his obligation .to pay claims superior to his own in rank. His right was exclusively to retain what was coming to him out of the proceeds of sale as a practical concession so that he might not have to pay the whole of his bid, to the Receiver, and then receive it back from the Receiver in whole or in part. Nor did the fact that the Receiver paid the taxes of 1923, prior to the sale, relieve Flanders of this obligation. The taxes were paid out of the general funds. In filing his account, these taxes would have, appeared as a privileged claim superi-' or to , the Flander’s mortgage and that would have settled the obligation of Flanders to pay them.

The Receiver had a right to use the money belonging to ordinary creditors to pay off a claim superior to the mortgage; but after the sale of the property and upon final settlement the ordinary creditors were entitled to be paid back in preference to the mortgage creditor the amount of their funds used to pay the prior privileged taxes. White vs. White, 147 La. 561, 85 South 241.

A mortgage creditor purchasing property at an insolvent sale may retain the price in his hands conditioned upon his paying the claims superior to his own. 2 H. D. 1501 (C), 1 H. D. 696; Bacon vs. McNutt, 3 Mart. N. S. 129; Rodriguez vs. Dubertrand, 1 R. 535; Goodale vs. His Creditors, 8 La. 302; Joseph Hollier vs. Widow Simon Gonor, 13 La. Ann. 591; Succession of Triche, 29 La. Ann. 384; Tertrou vs. Durand, 30 La. Ann. 1108; Succession of Bellow, 108 La. 477, 32 South. 618.

Flanders alleges that the Receiver collected rents from the mortgaged property and that they should be applied to the payment of these taxes.

There is no evidence of any rent having been collected by the Receiver from the mortgaged premises. The right of B. A. Flanders to establish the same and to claim them, if legally entitled to the same, will be reserved.

It is therefore ordered that the judgment appealed from be affirmed, reserving the right of B. A. Flanders in a future proceeding to establish what rents were collected by the Receiver herein from the properties mortgaged to him, and to claim them if legally entitled to the same.


text:
    No. 9698.
    Orleans Appeal.
    UNITED MOTOR CO., INC., v. EDWARD T. DRUMM, Appellant.
    (March 16, 1925, Rehearing Granted.)
    (May 11, 1925, Opinion and Decree on Rehearing.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Executory Process — i Par. 54, 56.
    An allegation to the effect that the consideration of the mortgage note has failed is within the contemplation of the third paragraph of Art. 739 C. P., which authorizes an injunction without ' bond upon the ground that the debt “has been extinguished by transaction, novation or some other legal means.”
    Appeal from Civil District Court, Hon. Percy Saint, Judge.
    Reversed and remanded on a rehearing.
    M. R. De Reyna, Carbajal & Gaudin, attorneys for plaintiff and appellee.
    Puneky & Barrios, attorneys for defendant and appellant.
   (OPINION ON REHEARING)

WESTERFIELD, J.

In our former opinion .and decree we held that plaintiff in injunction had only set up one of the grounds for injunction without bond as provided in Art. 739 C. P., i. e., fraud, and that fraud not having been proven the injunction was properly dissolved. In this we were in error for, as counsel points out, the petition for injunction alleges the failure of the consideration for which the mortgage notes were given and such allegation has been expressly held to be within the third paragraph of Art. 739 which provides that the debtor can arrest the sale of the thing seized if the debt be “extinguished by transaction, novation or some other legal manner”. Phillips vs. Adams Machinery Co., 52 La. Ann. 445, 27 South. 65.

An examination of the evidence offered in support of this allegation discloses itd inadequacy to sustain the burden of proof. However, the trial judge excluded certain testimony upon objection of opposing counsel which, if admitted, might sustain the contention of plaintiff in injunction. Counsel directs our attention to the fact that the evident purpose of offering the evidence was to support the allegation of fraud, and for this purpose it was not admissible and properly excluded by the trial court. Perhaps the young lady who acted as counsel for plaintiff in injunction would have declared her purpose in tendering the evidence with greater certainty as a more experienced brother (or sister) of the bar would have done but we think on the whole the interest of justice requires that the case be remanded for the purpose of affording counsel an opportunity to prove, if proof can be made, of the failure of consideration of the note sued on.

For the reasons assigned our former decree is set aside and it is now ordered that the case be remanded for further proceedings according to law and consistent with the views herein expressed.


text:
    No. 9750 and 9882 Consolidated.
    Orleans Appeal.
    MRS. HENRY J. RAPIER v. J. J. TROXCLAIR & SONS, Appellants. JOS. J. TROXCLAIR, ET AL., v. MRS. HENRY J. RAPIER, ET AL., Appellants.
    (March 16, 1925, Opinion and Decree.)
    (April 13, 1925, Rehearing Refused.)
    (May 25, 1925, Decree Supreme Court, Writ of Certiorari and Review Granted.)
    (March 16, 1925, Opinion and Decree.)
    (April 13, 1925, Rehearing Refused.)
    (May 25, 1925, Decree Supreme Court Writ of Certiorari and Review Granted.)
    See 159 La. —, 105 South. 417.

      (Syllabus by the Court.)

    1.Louisiana Digest — Partnership—Par. 117.
    A suspensive appeal by a partnership brings on the judgment for review and suspends its execution as to the firm and the individual members thereof.
    2. Louisiana Digest — Automobiles—Par. 6 (a).
    A partnership cannot be held liable for the negligence of one of the partners in operating an automobile belonging to the partnership where it appears that the automobile was not operated in the*, business of the partnership but on a pleasure trip by' the partner guilty of negligence. The negligent partner alone is responsible under such conditions.
    3. Louisiana Digest — Appeal—Par. 424, 441.
    Where the .intention of the court in rendering a judgment is evident upon its face it will be so construed by the Appellate Court which reviews it as to give effect to its obvious intention notwithstanding a lack of precision in the language employed and some ambiguity in consequence.
    (Civil Code, Art. 2315. Editor’s note.)
    This is a damage suit for personal injuries arising out of an automobile collision.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    L. Robt. Rivarde, W. J. & H. W. Waguespack, attorneys for plaintiff and appellee.
    Prentice E. Edrington, attorney for defendant and appellant.
   WESTERFIELD, J.

These two suits, consolidated in this court, are the result of a collision between a Ford passenger car and a Ford truck in the Parish of St. John the Baptist on Sunday, October 8, 1922.

Mrs. Henry J. Rapier was a passenger in a Ford car as a guest, at the time of the accident which was due to a collision with a Ford truck belonging to the commercial co-partnership of J. J. Troxclair & Sons. She sustained personal injuries and sued the partnership and the individual members thereof in damages.

A judgment in plaintiff’s favor for $1,000.00 was rendered below in the following language:

“It is ordered, adjudged and decreed, for the reasons herein given, that there he judgment herein in favor of Mrs. Edna D. Sweeney wife of Henry Rapier, plaintiff herein, and against Joseph J. Troxclair & Sons, a commercial co-partnership composed of Joseph J. Troxclair, Frank Troxclair and Oliver Troxclair, defendants herein in solido for sum .of $1,000.00.”

From this judgment the partnership alone. appealed suspensively. Whereupon plaintiff issued execution against the individual members of the partnership and seized several items of property in several parishes. The Troxclairs then applied for an injunction restraining the 'execution of the judgment upon the ground that the appeal and bond in the name of the partnership suspended execution against the individual members and in the alternative that execution could not issue until the provisions of Act 112 of 1916 requiring a rule to show cause were complied with. Judgment perpetuating the injunction was rendered and defendant in injunction has appealed.

We will dispose of the injunction case first, since we have only to point to the settled jurisprudence.

In Davenport vs. Adler, No. 1918 Orl. App., this court held:

“Plaintiff sued the commercial firm of William Adler & Co., composed of William Adler and Mrs. Cerf. Hirsch, and prayed for judgment against that firm, and the individual members thereof, in solido. * * » There was judgment against the firm and the individual members in solido. The firm appealed for and obtained a suspensive appeal, and' perfected it by giving bond according to law. Conceiving that an appeal by the firm did not stay execution against the individual members condemned by the said judgment, as partners, the plaintiff sued out a rule on the Clerk of Court, and the defendant, to show cause why execution should not issue against William Adler and .Mrs. Cerf. Hirsch, who had not taken separate appeals. The rule was made absolute, whereupon Wm. Adler and Mrs. Cerf. Hirsch appealed therefrom.
* ❖ ‘ % *
“We are constrained to differ with our esteemed brother of the court a qua in his construction of the law, to the effect that an appeal by a firm does not bring up the appeal as to the individual partners thereof, when they are condemned as an incident to and by reason of their membership in the firm.”

See also Baringue vs. Sanderson, 3 Court of Appeal Reports, p. 412; Benedich vs. Scopel, 107 La. 242, 31 South. 703.

We conclude on this branch of this litigation that the defendant in injunction was without the right to issue execution since the appeal taken by the partnership suspended the judgment as to the individuals composing it.

To resume consideration of the original action against the owners of the Ford truck, ex delicto, the first point urged by defendant is that at the time of the accident the truck was not being driven in the interest of the partnership business but by one of the partners for his own pleasure, and that consequently the partnership cannot be held responsible.

The evidence sustains the allegation of fact upon which this point is based and proves unquestionably that Frank Troxclair, one of the defendants, was driving the truck at the time for his own pleasure and that of his family and friends, several of whom were passengers in the truck at the time. The fact that the truck was owned by the partnership is conceded.

In Rusha vs. W. G. Coyle Co., 149 La. 731, 90 South. 144, it was held that in order to hold an owner responsible for damages resulting from another’s negligence in operating the car there must be proof or a reasonable presumption that the person operating the car was employed by the owner to operate the automobile.

■See also Valley vs. Clay, 151 La. 710, 92 South. 308; Jung vs. N. O. Ry. & Light Co., 145 La. 727, 82 South. 870; Atkins vs. Point, 148 La. 598, 88 South. 231.

In Towers vs. Errington, 78 N. Y. Misc. 297 (1912), it was held that:

“If the partnership owned a carriage or automobile and one.of the partners took it out for his private pleasure, for a personal purpose, surely this act- would not be a partnership act. If on his private excursion he injured a traveler on the highway, his partners would not be liable, for the reason that at the time he was not acting for them, or in the prosecuting of their business. And this would be so, even though the other parties were present and saw him start out on his journey without objection.”

See also Hamilton vs. Vione, 156 Pac. 853; Shriear vs. Feigelson, 143 N. E. 307; Huddy on Automobiles, Chap. XXV, Sec. 779; Berry on Automobiles, Pars. 1140-1141.

The judgment against the partnership cannot stand. But Frank Troxclair, who was running the truck, can be held to responsibility for his own acts and plaintiff urges us to give judgment accordingly. Defendant’s 'counsel contends that Frank Troxclair is not before the court because the judgment below was against the partnershop only and plaintiff not having appealed has acquiesced in the judgment which failed to condemn the individuals sued jointly with the partnership and that consequently this court cannot amend the judgment in the interest of plaintiff.

The judgment is somewhat inartistieally drawn and suggests the omission of one or two . words which would clarify its meaning, but there can- be ho question but what it was intended to give judgment as prayed for in the petition (except as to the amount sued for) and that is against both the partnership and the individual members. The use of the plural number and the words “in solido” evidence this intention and we will so construe it.

The question of liability was not argued and we are justified in concluding that there is no dispute as to responsibility of the driver of the Ford truck. Moreover, the record supports the finding of the lower court in this particular.

There remains only the question of quantum. Plaintiff was not seriously nor permanently injured. After the accident she submitted to an operation for the removal of an ovarian or uterine cyst or tumor, but the evidence shows that the accident was not the cause of the tumor, as would otherwise logically appear. She was cut about the face by broken glass and severely shocked. Under the circumstances we think seven hundred and fifty dollars the proper allowance.

Plaintiff also claimed $179.24 as assignee of Hampton Errington, the owner of the Ford car, and several items of expense in connection with the accident which the court below declined to allow upon the ground that the claim as to these items should be urged by the husband as the head of the community and the husband was not a party plaintiff. No appeal or amendment of the judgment was asked by plaintiff, therefore these items will not be considered.

For the reasons assigned the judgment appealed from in the case of Mrs. Henry J. Rapier vs. J. J. Troxclair & Sons, No. 9750 of the docket, will be amended so as to condemn Frank Troxclair alone in the sum of $750.00, the costs of appeal to be borne by plaintiff and otherwise affirmed.

In the matter of Jos. J. Troxclair et al. vs. Mrs. Henry J. Rapier et al., the judgment appealed from is affirmed.


author: WESTERFIELD, J

text:
    No. 9917.
    Orleans Appeal.
    VICTOR FETTER, Appellant, v. ANTONIO TORRE.
    (March 16, 1925, Opinion and Decree.)
    (March 30, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 636; Evidence — Par. 340.
    Where there is sharp conflict in the evidence as to the manner in which an automobile collision occurred the witnesses whose testimony is corroborated by the physical facts surrounding the accident will prevail.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from First City Court, Hon. Henry Renshaw, Judge.
    This is an action for damages arising out of an automobile collision.
    There was a reconventional demand.
    There was judgment for defendant and rejecting plaintiff’s demand.
    Plaintiff appealed.
    Judgment reversed.
    . Geo. P. Nosacka, James G. Schillin, attorneys for plaintiff and appellant.
    Gordon Boswell, Milo Williams, attorneys for defendant and appellee.
   WESTERFIELD, J

This suit results from a collision between a Hudson automobile belonging to plaintiff and a Ford truck belonging to defendant. Plaintiff petitions for damages sustained by his car, which he claims amounted to $280.00, and defendant reconvenes claiming damages in the sum of $118.46 as having been caused him by reason of injuries to his truck and the loss of certain groceries which were in the truck at the time of the accident.

There was judgment for defendant as prayed for and against plaintiff dismissing his demand, and plaintiff has appealed.

The accident occurred at the intersection of Howard and Third Streets. The Hudson car was crossing Third Street from the direction of the lake toward the river and the Ford truck was proceeding up Howard Street in the direction of Carrollton Avenue. Howard ' Street is divided by a neutral ground with a roadway on each side and street car tracks on the neutral ground. The Ford truck, since it was proceeding uptown, was on the right hand or lake side roadway, the roadway devoted to traffic moving in the direction of Carrollton Avenue, and the roadway which it was necessary for plaintiff’s Hudson car to first traverse before gaining the neutral ground. After the accident both cars were on- the river side roadway.

As to.the manner in which the accident happened, the evidence is irreconcilable. The Hudson was going very slow or very fást, cautiously or recklessly, as one set of witnesses or the other is to be believed, and the same may be said of the Ford truck. According to plaintiff’s witnesses the Hudson stopped before entering the intersection and slowly and cautionsly crossed the roadway and gained the neutral ground when it was violently struck in the rear by the Ford truck,, driven by the force of the blow, across the neutral ground and out of control it smashed into a post on the sidewalk adjacent to the river side driveway. On the other ha-nd defendant’s witnesses declare that the Ford truck was being driven slowly up Howard Street and across the intersection of Third Street, when it was struck on the right side by the Hudson, which was being driven at a furious rate of speed. In this situation we would be inclined to follow the familiar rule of appellate procedure and affirm the judgment of the lower court, but our reluctance to disturb the judgment of the trial court upon a question of fact must yield to our conviction that the position of the cars after the accident renders defendant’s theory of the accident impossible. It is not disputed that both cars were on the river side driveway after they had come to rest after the collision. There is some dispute as to the precise location of defendant’s car, but no question that both were on the river side. If plaintiff’s Hudson had struck the Ford of defendant on the right side, as claimed, the collision would necessarily have occurred on the lake side roadway just as the Hudson entered Howard Street and it would have to have been driven sideways clear across the neutral ground and river side roadway, a practical impossibility. Moreover, all the damage to the Ford truck was in front. The physical facts corroborate plaintiff’s witnesses and discredit defendant’s.

Under the circumstances we conclude that defendant was at fault.

The quantum of damages claimed does not appear to be disputed.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in favor of plaintiff, Victor Fetter, and against the defendant, Antonio Torre, in the sum of $280.00 with legal interest from judicial demand until paid.

It is further ordered that the reconventional demand of defendant be dismissed at his cost.


text:
    No. 9938.
    Orleans Appeal.
    ELLA MEYERS, ETC. v. LONGSHOREMEN’S PROTECTIVE UNION AND BENEVOLENT ASSN., Appellant.
    (March 16, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Associations—Par. 6, 17; Obligations — Par. 10.
    When a caterer supplies meals to the mem-' bers of a benevolent association under a contract with the acting president in the belief that he is fully authorized to make such contract and the meals are consumed in the presence of the officers of the association, the association will be held to have ratified the act of its acting president in so far as he may have exceeded his authority as expressed in a" resolution of the Association.
    (Civil Code, Art. 1816. Editor’s note.)
    Appeal from First City Court, Hon. Leon L. Labatt, Judge.
    This is a suit to collect the price agreed upon for meals served to a benevolent association.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    F. S. Norman, attorney for plaintiff and appellee.
    Van Burin Harris, attorney for defendant and appellant.
   WESTERFIELD, J.

The Longshoremen’s Protective Union and Benevolent Association held its annual meeting in this city on the 20th and 21st days of August, 1924. The meeting had been hastily called and for an unusual time because of an injunction, which had been issued at the instance of certain members out of sympathy with the incumbent officials, preventing the meeting on the customary date. While the meeting was in progress, the acting president of the Association, George W. Forest, stated that the usual preparation for serving food in the hall of the association on the days of election had been forgotten and thereupon Forest was, upon motion of Mose Johnson, one of the candidates for president in the impending election, authorized to make the necessary arrangements. It is contended by some witnesses that the authority of the acting president was limited to obtaining meals for the • officers, the commissioners of election and two policemen who had been detailed at the hall of the Association for the purpose of keeping order. Others, including Forest himself, deny that there was any such limitation and assert that when the suggestión to so restrict the service of meals was made hy one or more members, a violent protest ensued resulting in a tumultous clamor for the feeding of all members of the Association without regard to rank or duties, as had been the custom in the past, and that this sentiment prevailed. Be that as it may, however, Forest contracted with' plaintiff, through her son, who was present at the meeting as a member of the Association, to provide food for everybody as usual. Some 400 meals were provided during the two days of the election, plaintiff having purchased the necessary supplies from various merchants and almost miraculously began feeding the multitude immediately. On Sunday following the election, which was held on Wednesday and Thursday, the secretary writes up the minutes and it then appears that the resolution offered by Mose Johnson was so qualified as to limit the acting president’s authority to obtaining meals for the officers and policemen only. Consequently, when plaintiff presented her bill for the food supplied the entire membership who cared to partake of it she was denied payment for all but the meals served the officers, and she brings this suit for the remainder.

The defense is based upon the principle of law that one who deals with an officer of a corporation with knowledge of the limits of his authority is bound thereby. There is no doubt that this is good law, but under the peculiar circumstances of this case we are unable to conclude as a matter of fact that plaintiff, or her son, who acted for her and whose knowledge must be imputed to her, had knowledge of the restrictive clause in the resolution as it finally appeared in the minutes. It is true he was present at the meeting when the resolution was adopted. But at that meeting there was “confusion worst confounded” and the officer charged with the execution of the resolution denies that it was properly recorded by the Secretary. Other witnesses testify to the same effect. The resolution was offered by a candidate for president in an election which was to follow immediately. It is unlikely that a candidate would suggest so undemocratic a restriction especially as it had been customary in the past to feed all members present. Plaintiff had in the past catered to similar occasions , and always without any restriction as to whom she was. to feed save only that they must be members of the Association and present in the hall.

Moreover, all the officers of the Association were present when the food was served and no objection was made. They may be fairly said to have ratified the unauthorized act of their president if, as a matter of fact, it was unauthorized. In receiving and consuming the food supplied by plaintiff there was an implied promise to pay for it. R. C. C. 1816.

The judgment appealed from is correct and it is therefore affirmed.


text:
    No. 9954.
    Orleans Appeal.
    JEFFERSON SHIPBUILDING CO., INC., v. O. M. GWIN CONSTRUCTION CO.
    (March 16, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625, 636.
    In a suit for price of labor and material furnished under verbal contract for repairs to a launch, where the evidence is conflicting as to repairs actually ordered and as to price agreed upon, the finding of the trial judge will not be disturbed unless manifestly erroneous.
    Appeal from the First City Court for the City of New Orleans, Section “A”, Hon. Leon L. Labatt, Judge.
    This is a suit for recovery of cost of repairs made to a launch.

      There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    John Dymond, A. Giffen Levy, R. J. Weimann, attorneys for plaintiff and appellee.
    Terriberry, Rice & Young, attorneys for defendant and appellant.
   BELL, J.

This is a suit arising from an alleged verbal contract for repairs to a certain gasoline launch known as the “Chas. E”, and belonging to defendant. The petition sets forth that plaintiff, under orders received from the defendant company, furnished labor and materials, as set out in itemized bills annexed to the petition, and that plaintiff 'made certain repairs to defendant’s launch, all in compliance with defendant’s directions. It is further alleged that on October 29, 1919, some time subsequent to the completion of the repairs, and after bills therefor had been rendered, amounting to $219.67, defendant advised plaintiff that it would pay the bills in full, but that notwithstanding such promises and acknowledgments, said bills still remained due and unpaid.

The defense to this suit amounts to a denial of all items claimed by the plaintiff except those in respect to the repairs made upon the bottom of the launch in question, consisting of smoothing and corking and painting the same. These particular repairs, amounting to $50.00, defendant admits is due, but as to all other items defendant denies any liability.

There was judgment as prayed for in the sum of $219.67 and defendant has appealed.

It is contended that if any other repairs than those for which liability is admitted, were made to the boat in question, that same were made without the authority of the defendant, owner of said boat, and while the boat was under lease to a third party. The record is a voluminous one, and after considering the briefs, arguments- and evidence before us, it would seem that many of the items for which plaintiff has sued the present defendant are items of repairs which were probably made without defendant’s authority or approval. But such defense is not available, for the reason that we find to be true the allegation in plaintiff’s petition to the effect that defendant subsequently agreed to pay all items now claimed. All of the repairs on the launch “Chas. E” were made some time in July of 1919 and while considerable protest seems to have been made, by correspondence and otherwise, against the bills rendered to the defendant, we find in the record, under date of October 29, 1919, a letter written by defendant company to the plaintiff, in which defendant has agreed, in unqualified terms, to settle in full all bills which had been rendered to it as early as the month of July, 1919. The trial judge, in examining the main witness testifying on behalf of the- plaintiff, propounded the following question:

“Q. At the time you received this letter from Gwin, in which he states that he is willing to pay your bill in full if he succeeds in making a sale of this boat, had he received your bill which is now sued upon in. this case, and was it in his possession?
“A. Yes, sir.”

The foregoing testimony has not. been contradicted or qualified in any manner, and we find from the letters and other documentary evidence in the record before us, that the defendant, without qualification, has acknowledged the entire claim now sued upon, and that promise to pay same was made in writing under the date aforementioned. For these reasons, the judgment appealed from is, in our opinion, correct and should be affirmed.

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