text:
    No. 13,825
    Orleans
    FORET v. PAUL ZIBILICH CO., INC.
    (November 3, 1931. Opinion and Decree.)
    (November 16, 1931. Rehearing Refused.)
    Titche, Kiam & Titche, of New Orleans, attorneys, for plaintiff, appellant.
    James J. Landry, ,of New Orleans, .attorney for defendant, appellee.
   WESTERFIELD, J.

This is an appeal from a judgment dismissing a suit brought under the Compensation Law of the state (Act No. 20 of 1914, as amended). The facts, which are not in dispute, are as follows:

Plaintiff, Albert Foret, was employed' by the defendant, Paul Zibilich Company, Inc., as an oyster shucker. On the 22d day of December, 1930, while so employed, a piece of oyster shell struck him in his right eye, causing the loss of sight in that eye and aú impairment of vision in the other eye. He was paid compensation by the Home Accident Insurance Company of Little Rock, Ark., defendant’s insurer, 'for six weeks, in the sum of $9.75 a week. The payments stopped because the Home Accident Insurance Company became insolvent and, ’ at the time of the trial of the suit, was in the hands of a receiver, whereupon this suit was brought and judgment asked against defendant on the basis of permanent total disability, claiming $9.75 per week for 30.0 weeks and $250 medical expenses, subject to a credit of six weeks.

The suit is defended upon the ground __ that defendant’s business does . not come within the enumeration of businesses declared to be hazardous under the Compensation Law, Act 20 of 1914. To this contention plaintiff replies that defendant, having paid full compensation to plaintiff for a period of six weeks-, it is estopped from questioning his right to further compensation, citing Summers v. Woodward, Wight & Co., 142 La. 241, 76 So. 674, and particularly the following text which appears in the syllabus of that case;

“Where an employer pays the wages of an injured employee in full for a number of weeks, and subsequently in part, and, holding a policy of insurance, taken out with express reference to the Burke-Roberts Employers’ Liability Act (Act No. 20 of 1914), obtains receipts showing such' payments as for wages to which the employee was entitled under the Louisiana Workmen’s Compensation Act, upon which it obtains reimbursement from the insurance company, the question whether the injury of the employee entitles him to compensation under the act will be regarded as eliminated.” See, also, Johnson v. Vernon Parish Lumber Co., 151 La. 664, 92 So. 219, and Norris v. La. Central Lumber Co., 7 La. App. 490.

Subsequent to the decisions in the cases relied on, however, we find the following amendment to have been incorporated in the Compensation Law by Act 85 of 1926, section 18, paragraph 5:

“Neither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation under this act.”

The language quoted is very clear and entirely inconsistent with the estoppel based upon the previous payment of compensation, the fact relied on in this case in support of the plea.

The alternative position of counsel for plaintiff is that the occupation of defendant is comprehended by the express terms of the compensation statute. Reference is made to section 1, subsection 2, paragraph “a,” which enumerates the various occupations to which the act shall apply as follows:

“The operation, construction, repair, removal, maintenance and demolition of railways, and railroads, vessels, boats * * * rendering works, slaughter houses, meat packing plants, ice plants. * * * Any occupation entailing the manufacture, transportation, care of, use of, or regular proximity to dangerous quantities of gun powder, dynamite, nitroglycerine and other like dangerous explosives. The installation, repair, erection, removal or operation of boilers, furnaces, engines and other forms of machinery.”

The defendant company deals extensively in oysters, shrimp, crabs, frogs, and turties. In its. literature it describes its business as a “banner oyster and fish depot’’ and, as the largest and most reliable oyster and fish shippers in New Orleans. It employs, at times, as. many as twelve men to open oysters, or, as it is called, to “shuck” them. The oysters, when opened, are packed in their own juices, in wax-covered cardboard containers and, in some instances, in tin cans. How its other products, are marketed does not clearly appear, but there is no “processing” of any kind. The oysters and shrimp and crab meat, its principal products, are intended to be consumed within a short period, say, thirty-six hours, after they are sold. There is a small ice-cracking machine on the J premises, which, according to the testimony, accommodates about 25 pounds of ice at a time, and also a small refrigerator operated by a motor or engine.

The question We are called upon to decide is whether defendant’s business may be said to be a meat-packing plant within the meaning of the statute, which applies to “slaughter houses, meat packing plants, ice plants,” or is it an occupation entailing “the installation, repair, erection, removal, or operation of boilers, furnaces, engines and other forms of machinery.” We find an admission in the record, the effect of which would tend to prove that oyster shucking, the business in which plaintiff was engaged when injured, is in fact a hazardous occupation, and, from what we know of its character, we are convinced that it is in fact hazardous; but its hazardous character is .not sufficient to bring it within the scope of the Compensation Law. It must come within the specified trades, businesses, and- occupations mentioned in the act. Shipp v. Bordelon, 152 La. 795, 94 So. 399. Counsel argues that there is no distinction .between the meat of warm-blooded animals, such as is commonly put up in the large packing houses in the country, and the meat of other animals, such as fish, turtle, crabs, etc., dealt in by the defendant, and that the question of the size of the operations cannot be considered; that the character of the business as’ meat packer being established, the kind and amount of the meat that is packed is immaterial. Perhaps no distinction in a degree should be made, and yet, in ascertaining the legislative intent, some consideration should be given to the common meaning of the words therein employed. There is in the record the testimony of a witness by the name of Hamilton K. Avery, described as an; industrial and research engineer, with special knowledge of the meat-packing business. He testified after examining the defendant’s plant, that it in no wise resembled a meat-packing plant, and could not be so classified, pointing out in detail certain distinctions.

It must be conceded that the, packing of meat, whether it be the flesh of the cow, the hog, or the turtle, or the crab, and, whether it be in large or small quantities constitutes meat packing, using the word “packing” in the sense of its simplest application, as meaning to place in a container. But it seems equally clear to us that the Legislature had in . mind a more complex operation, and that it employed the term “meat packing” in a larger sense, the one in which it is generally understood. In the oft-quoted case of Williams v. Schehl, 84 W. Va. 499, 100 S. E. 280, the. Supreme Court of West Virginia, in considering a somewhat analogous situation, held that the “business of a retail grocer who also butchers cattle, sheep and hogs at a slaughter house operated in another place, for sale to his retail customers, and who at his grocery store cuts the meat, makes sausage and renders lard from such animals, for sale in a small way, is not engaged in the business of operating a slaughter and packing house .within the meaning of schedule ‘n’ of section 18 of the Workmen’s Compensation Law of this state” (West Virginia)', which included “slaughter and packing houses, stock yards, .soap, tallow, lard and grease manufactories, tanneries, * * * in which power driven machinery is used.”

And so it seems to us. here that meat packing means a more extensive operation than that involved in defendant’s business and includes some form of processing, heating, or treatment designed to preserve .the product for an indefinite time.

The presence of the little gasoline engine on the premises is not, we believe, sufficient to bring defendant’s business within the following language of the statute:

“Any occupation entailing the manufacture, transportation, care of, use of, or regular proximity to dangerous quantities of gun powder, dynamite, nitro-glycerine and other like dangerous explosives. The installation, repair, erection, removal or operation of boilers, furnaces, engines and other forms, of machinery” (section 1, sub-sec. 2, par. a) particularly since the engine is shown to have been separated from plaintiff by a prick wall.

Our conclusion is that plaintiff cannot recover. Consequently, and for the reasons assigned the judgment appealed from is' affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 13,694
    Orleans
    UNITED STATES FIDELITY & GUARANTY CO. v. SELLERS
    (November 30, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Refused.)
    (February 1, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Spearing, McConnell & McClendon, of New Orleans, attorneys, for plaintiff, appellant.

      Bordelon & Hoover, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, a bonding company doing business in this city, brought this suit against defendant claiming $144.10.

The lower court awarded plaintiff a judgment for $3.35 and plaintiff has appealed.

On October 3, 1917, Harry Sellers, defendant herein, was appointed liquidator of the Standard Gas Generator Company of Louisiana, Inc., by the Civil District Court for the parish of Orleans, in the proceeding bearing the number 131,668 of the docket of that court, and his bond fixed at $2,000. Plaintiff, the United States Fidelity & Guaranty Company became surety on the liquidator’s bond and obtained from Sellers individually an.indemnity agreement, whereby he personally undertook to pay to the surety company the premium on the bond and to “save the said company harmless from any and all loss, costs, charges, suits, damages, counsel fees and expenses of whatever kind or nature, which said company shall or may, for any cause, at any time, sustain or incur, or be put to, for or by reason or in consequence of said company having executed said bond.”- The- liquidator failed to realize upon any of the assets of the Standard Gas Generator Company of La., Inc., and the matter was allowed to remain inactive until some time in 1928 when counsel for the surety company began to importune Mr. Hoover, counsel for the liquidator, to file a final account, have the liquidator discharged and have the bond of the liquidator cancelled. Mr. Hoover procrastinated and finally counsel for the surety became insistent, with the ultimate result that the liquidator’s account was filed and the bond cancelled. It is claimed, on behalf of plaintiff, that this result was not accomplished without the intervention of counsel for plaintiff and his participation in the preparation of the account and of the petition for discharge of the liquidator.

The object of this suit is 'to recover the premium on the bond amounting to $65.75 and attorneys’ fees amounting to $75 plus costs of $3.35. The amount of the premium due is not in dispute but it is contended that that should have been the subject of a claim against the liquidator in the 'liquidation proceedings. The attorneys’ fees are made up of a claim of $50 for services in connection with the liquidation and $25 for services in connection with the prosecution of this suit.

It is admitted that some services were performed hy plaintiff’s counsel, hut the record in the liquidation proceeding does not show any single document as having been filed in the name of any other counsel than Mr. Hoover. However, the petition for the discharge, of the liquidator is unsigned by counsel and, Mr. Hoover admits that this document was prepared and filed by Mr. McClendon, a member of the firm of Spearing & Mabry, representing the plaintiff surety company. Mr. Mabry, who conducted most of the negotiations with Mr. Hoover on behalf of plaintiff, died before the trial of this case in the lower court and his version of the transaction therefore cannot be given, and consequently the statement of Mr. Hoover to the effeet that no charge was to be made for counsel JJees stands alone. However, Mr. McClendon, who actually prepared the petition for the discharge of the liquidator, testified that he knew nothing of any agreement for gratuitous services.

In view of the state of the record the only service which may be said to have been established as having .been performed by plaintiff’s counsel is the filing of the petition foi; the discharge of the liquidator and the cancellation of his bond, for which we believe $25 to be a proper charge.

As to the other items, the premium and the costs, in view of the language of the personal indemnity of Sellers, his liability appears obvious.

The amount demanded for attorneys’ fees in the prosecution of this case seems most modes.t.

For the reasons assigned the judgment appealed from is amended by increasing the amount awarded plaintiff from $3.35 to the sum of $119.10, and as thus amended it is affirmed.


author: JANVIER, J.

text:
    No. 13,591
    Orleans
    DAWSON ET UX. v. JAHNCKE DRY DOCKS, INC.
    (January 5, 1931. Opinion and Decree.)
    (January 19, 1931. Rehearing Refused.)

      Milner & Porteous and P. M. Milner, of New Orleans, attorneys for plaintiffs, appellants.
    Gordon Boswell, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiffs are mother and father of decedent, Robert William Dawson, who, while in the employ of defendant, was killed on board a steamship which at the time was docked for repairs in a floating dry dock of defendant corporation.

Recovery is sought under the workmen’s compensation laws of Louisiana (Act No. 20 of 1914, as amended).

To the petition defendant filed an exception of no right or cause of action based on the contention that the state workmen’s compensation act has no application, since decedent, at the time of his death, was on board a vessel lying in navigable waters and was. performing work which was maritime by nature. Erom a judgment maintaining this exception and dismissing the suit, plaintiffs have appealed.

There can no longer be any doubt that a state workmen’s compensation law has no application where an employee is injured under circumstances which would have given to the injured employee or to his survivors, in case of death, a cause of action in admiralty because, startling as was the decision of the Supreme Court of the United States in Southern Pacific Company v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900, not only has that decision not been overruled, but it has been followed in numerous similar cases; Peters et al. v. Veasey, 251 U. S. 121, 40 S. Ct. 65, 64 L. Ed. 180; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; State of Washington v. Dawson, 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed. 646. In fact, as is said in a note appearing in Tulane Law Review, vol. V, No. 1, p. 125;

“The attempts of Congress to make state workmen’s compensation laws applicable to maritime workers injured on navigable waters have, therefore, been stricken down:

There can, then, be no recovery under a state workmen’s compensation act if, at the time of the injury, the circumstances surrounding the employment were such that a suit in admiralty could have been brought. It is therefore necessary that we first ascertain what requisites are essential to the maintenance of .an action in admiralty, and that we then investigate the allegations of the petition in the case at bar in order to determine whether among them may be found those which would make the matter one cognizable in admiralty because, if such allegations, are found, .then no suit in compensation will lie.

What are the essential requisities to a proceeding in admiralty for wrongful injury or death? Of course, first and foremost we find that the accident must have occurred on navigable waters. But is locality the sole test? Is any tort occurring on navigable waters cognizable in admiralty? We repeat the question appearing in the opinion of the Supreme Court of the United States in Atlantic Transport Company v. Imbrovek, 234 U. S. 52, 34 S. Ct. 733, 735, 58 L. Ed. 1208, 51 L. R. A. (N.S.) 1157:

“Whether admiralty would entertain a suit for libel or slander circulated on board a ship by one passenger against another?”

See Benedict, Admiralty (4th Ed.) sec. 231.

For many years, while this question remained unanswered, except, possibly, by inference, the Supreme Court rendered numerous decisions in many of which appeared language from which it might have been a reasonable assumption that it was the view of that court that locality should be the sole test and that the nature of the employment of the injured employee was of no importance. For instance, we find that in the Imbrovek case, supra, the Supreme Court of the United States, in quoting from an earlier decision, Philadelphia, Wilmington & Baltimore R. R. Company v. Philadelphia & Havre de Grace Steam Towboat Company, 23 How. 209, 16 L. Ed. 433, said:

“Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.”

And this statement, as it appears in the decision in the Imbrovek case, seems to be supported by a long list of authorities. But a careful examination of each of the authorities cited shows that in each case the injured employee was' actually engaged in doing work of a maritime character, so that in each of the cases, in addition to the locality, we find that the nature of the work engaged in was maritime, and in the Imbrovek case itself the Supreme Court found that, as a matter of fact, the injured employee was engaged in performing services necessary to the operation and navigation of the vessel, and therefore was engaged in a maritime occupation, so that none of those decisions necessarily held •that every tort committed on navigable waters gives rise to a right of action cognizable in admiralty. In the Imbrovek case it was. sought to have the Supreme Court declare whether a tort resulting in injury to an employee engaged in performing non-maritime work was cognizable in admiralty merely because of the locality in which it was committed, but, as has already been said, the court found it unnecessary to decide that point, adopting the view that Imbrovek, at the time of the accident, was engaged in a maritime occupation. In the opinion in that case we find' the following:

“The petitioner insists, however, that locality is not the sole test, and that it must appear that the' tort was otherwise of a maritime nature.”

And again:

’“But the petitioners urge that the general statements which we have cited, with respect to the exclusiveness of the test of locality in cases of tort, are not controlling; and that in every adjudicated case in this country in which the jurisdiction of admiralty with respect to torts has been sustained, >die tort, apart from the mere place of its occurrence, has been of a maritime character.”

It thus appears that the question was attempted to be squarely presented to the Supreme Court in that case, but the court said:

“We do not find it necessary to enter upon this broad inquiry. * * * Even if it be assumed that the requirement as to locality in tort cases, while indispensable, is not necessarily exclusive, still in the present case the wrong which was the subject of the suit was, we think, of a maritime nature, and hence the district court, from any point of view, had jurisdiction.”

But the question which was not answered in the Imbrovek case was squarely presented to the Supreme Court of Alabama in Ex parte Rosengrant, 213 Ala. 202, 104 So. 409, 411, which involved the question of whether the widow of a deceased employee could recover under the workmen’s compensation laws of Alabama; the deceased employee, at the time of his death, having been engaged in keeping a tally, or check, of lumber on a vessel in navigable waters. The Alabama court said:

“It is true the injury causing the death of the decedent was inflicted while he was standing or sitting on a schooner, moored in Mobile river, and while he was performing his duties under this contract; but the place of the injury is not the only test in determining whether the contract was maritime or non-maritime in its. nature. So we must hold, under the facts found by tie trial court, the contract of employment was not a maritime contract, and the circuit court had jurisdiction of the cause of action, and the Workmen’s Compensation Act is applicable.’’

So that, in that case there was squarely presented to the Alabama court the question which we are now discussing, and, in determining that question, that court found that a tort resulting in injury to an employee is not cognizable in admiralty unless the employee at the time of the injury, is on navigable waters, and is engaged in work of a maritime natttre. The Supreme Court of the United States granted a writ of certiorari and on consideration of the matter, in a per curiam opinion, affirmed the decision of the Supreme Court of Alabama. Rosengrant v. Havard, 273 U. S. 664, 47 S. Ct. 454, 71 L. Ed. 829. So that, no matter how doubtful the question may have once been, at the present time it seems to be no longer an open one, and we believe that, in view of the holding of the Supreme Court of the United States in the Rosengrant ease, a, tort is. not cognizable in admiralty unless it occurs on navigable waters, and unless the injured employee was engaged in the performance of a maritime duty.

However, it has been determined, in Employers’ Liability Assurance Corporation of London, England, v. Cook et al., 281 U. S. 233, 50 S. Ct. 308, 74 L. Ed. 823, that, although the injured employee may be employed for practically all of his time in non-maritime work and on the shore, nevertheless, if he is even for a moment required to perform services of a maritime nature and on a vessel in navigable waters, the right of action for injuries sustained in that moment is cognizable in admiralty and may not form the basis of a claim for compensation under a state statute.

Let us, then, apply the legal principles which we have discussed to the facts as we find them in the case at bar, bearing in mind that, since the matter is now before us on exception of no cause of action, we must treat the allegations of the petition as though they were proven facts.

We find that the decedent was, at the time of his death, on a completed vessel, which was on a dry dock floating in navigable waters. The requisite as to locality is therefore met, and if we find that the decedent was engaged in a maritime employment, the other requisite will have been complied with and the case under the state compensation act will fail.

Since no recovery could be had under the state act for decedent’s death unless he was performing services in the course of his employment, or necessarily incidental thereto, counsel for plaintiffs, found it necessary to allege that, at the time of his death, he was performing such services. Since, then, he was on the vessel, and since he was at work there, plaintiffs’ case approaches the danger zone of admiralty because, as is well known, most work on board ships is maritime by nature. But it is very evident, from a reading of the many decisions of the Supreme Court involving questions closely analogous to that presented here, that there may be work which an employee may perform on board a vessel lying in navigable waters which is not maritime by nature and which may not have relationship to navigation or commerce, and here counsel for plaintiffs insist that the work which was being performed by decedent had no such direct relationship to navigation or commerce and that, to permit the state workmen’s compensation act to apply, would work no material prejudice to the essential features of the general maritime law. Whether the work in which decedent was engaged had relationship to navigation or commerce, we are unable to determine from the allegations of the petition, and, as was said by the Supreme Court of the United States in John Baizley Iron Works et al. v. Span, 281 U. S. 222, 50 S. Ct. 306, 307, 74 L. Ed. 819:

“What work has direct relation to navigation or commerce must, of course, be determined in view of surrounding circumstances as cases arise.”

But the allegations of the petition as to what deceased was engaged in at the time of his death are carefully shrouded in mystery, and we are told no more than that he was taking measurements of a tank, which was a component part of the vessel. If he was repairing the tank, he was engaged in a maritime occupation, for, under •the doctrine of Employers’- Liability Assurance Corporation v. Cook et al., supra, although he may, for the major portion of his time, have been engaged on shore in non-maritime work, nevertheless, if, even for a moment, he was engaged in repairing a part of the vessel, he' was at that moment engaged in maritime work and injuries sustained during that moment would have been cognizable in admiralty. It is possible, however, that he may have been measuring the tank in order to build a duplicate of that tank after he returned to the machine shop, the said duplicate to be used in some other vessel not completed, or for some other purpose on shore. He may have been measuring the tank so that he could return to the shore and then determine how much molasses it would hold. We can conceive of several purposes for which the tank may have been measured which would not be maritime by nature.

In the ordinary case we think the duty lies heavily upon a plaintiff to state his cause of action clearly and unequivocally and that, in case of ambiguities, the doubt should be resolved against him; but we believe that such a rule is not applicable to a suit which is sought to be brought under the workmen’s compensation laws. These statutes .have in all jurisdictions been held to be paternal in character and parties Jiave not been held to the strict rules of pleading, or to the strict rules of evidence which are necessary in ordinary eases. In fact, it is provided in paragraph 4, section 18, of Act No. 85 of 1926, p. 122, that in compensation eases the strict rules bf pleading shall be relaxed. We feel, however, that defendant should not be required to go to trial on the merits until plaintiffs have unequivocally stated a cause of action under the laws sought to be invoked. It may be that the allegations which are at the present time shrouded in mystery may, by amendment, be made unambiguous, and we think that, in view of the beneficent character of the workmen’s compensation laws, plaintiffs should be given an opportunity to make such amendment, if they are able to do so. We have therefore determined to remand the case to the district court for the purpose of permitting plaintiffs to amend their petition with regard to the character of work which decedent was engaged in at the time of his death, so that that court may then be able to pass upon the question presented by the exception.

Counsel for plaintiffs suggest that the exception should not be maintained because the case is not one, according to his contention, which is cognizable under the federal statute known as the Longshoremen’s and Harbor Workers’ Compensation Act, secs. 1, 3, 50 (33 USCA sees. 901, 950, 903). Whether or not the cause of action would be cognizable under that statute is of no importance at the present time. Defend, ant’s contention is not that the action is cognizable under that act, but merely that it is not cognizable under the state compensation law, and, since we find that it is not cognizable under the state compensation law unless plaintiffs can amend so as to show that the nature of the work was not maritime, we find it unnecessary to further discuss the question of what causes of action are covered by the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act.

For these reasons it is ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and the matter is now remanded to the district court to the end that plaintiffs may amend their petition, if they can or see fit, and for further proceedings in accordance with the views herein expressed.


author: CULPEPPER, J.

text:
    No. 3961
    Second Circuit (Second Division)
    ARMOUR & CO., LTD., v. SMITHSON
    (December 9, 1931. Opinion and Decree.)

      C. F. Currier, of Shreveport, attorney for plaintiff, appellee.
    Bryan E. Bush, of Shreveport, attorney for defendant, appellant.
   CULPEPPER, J.

Plaintiff brought this suit upon an open account for $224.55, together with legal interest from judicial demand until paid, and obtained judgment for $195.25 with legal interest from April 30, 1930, until paid, from which, defendant took appeals, both devolutive and suspensive.

No appearance has been made in this court by defendant, appellant, either by counsel, by brief filed, or otherwise. Plaintiff, through counsel, has filed an answer to the appeal, averring that the appeal is manifestly frivolous, was taken purely for delay, and that the delay occasioned thereby has caused plaintiff damages equivalent to 10 per cent of the amount of the judgment. Plaintiff accordingly prays that the judgment be amended by granting plaintiff an additional judgment for 10 per cent of the amount of the judgment rendered by the lower court, as damages for frivolous appeal, and that, as so amended, the judgment be affirmed, together with costs of both courts.

Plaintiff’s counsel has filed brief and submitted the case without argument.

The record does not disclose that defendant made any effort whatever to disprove a single item of the account in the lower court. No objection was made to the introduction of any of the evidence. While the minutes do not show that defendant or her attorney was present at the trial, it is to be presumed that they were present since the minutes recite that the case was “regularly taken up for trial,” and “evidence adduced, closed, and case submitted.” Plaintiff’s counsel states in brief filed that defendant’s counsel was present in court when the case came up for trial, but made no objection when plaintiff proceeded to prove up its case. Defendant’s answer consists merely in a denial of each and every allegation of the petition.

In Whitney Central Trust & Savings Bank v. Reilly & Hoskins et al., reported in 9 La. App. 361, 120 So. 510, the court held (quoting syllabus by the court) that—

“Where the record shows respondent has entirely failed to prove all his defenses, and that he has abandoned them in this court, damages for frivolous appeal will be allowed.”

Defendant in the present case not only failed to disprove, but made no effort to disprove any of the account sued on; and, by reason of having made no appearance whatever in this court, defendant has evidently abandoned the appeal. Under these circumstances, plaintiff is clearly entitled, we think, to damages for frivolous appeal. The judgment being upon an open account and carrying no attorney’s fees, and only the legal rate of interest, and the appeal being suspensive, thereby preventing execution on the judgment, we think 10 per cent of the amount of the judgment is not excessive.

For these reasons, therefore, the judgment appealed from is amended by granting plaintiff judgment for an additional sum of 10 per cent of the amount of the judgment rendered by the lower court, as damages for frivolous appeal, and that, as so amended, said judgment is affirmed; costs to be paid by defendant in both courts.


author: DREW, J.

text:
    No. 3921
    Second Circuit
    FLORSHEIM v. PENN ET UX.
    (November 18, 1931. Opinion and Decree.)
    See, also, 16 La. App. 592, 135 So. 82.
    Cook & Cook and C. D. Egan, of Shreveport, attorneys for plaintiff, appellant.
    Dickson & Denny, of Shreveport, attorneys for defendants, appellees.
   DREW, J.

Plaintiff sued for the cancellation of a lease on a certain -75-acre tract of land in Caddo parish, La., which was leased by plaintiff to defendants for farming purposes. The lease was for a period of three years beginning February 1, 1928, at a rental of $40 per month for the first eleven months and $50 per month thereafter, payable on the last day of each month. It provided -that the lessees were to make all repairs at their expense and keep the property in good repair.

Plaintiff alleged a violation of the lease contract by defendants, setting out in detail the specific acts of defendants that constituted a breach of the contract of lease.

Defendants answered, denying failure to comply with the lease contract, and reconvened for the sum of $675, which they alleged plaintiff owed them as damages for failure to comply with the lease and for interference with defendants’ enjoyment of the leased premises.

There was first a judgment in the lower court in favor of plaintiff, as prayed for, and rejecting defendants’ reconventional demand. A new trial was granted for the purpose of hearing evidence on the reconventional demand of defendants, and, after this hearing, there was judgment in favor of plaintiff as prayed.for, and in favor of defendants on the reconventional demand . in the sum of $120. Prom the judgment on the reconventional demand, plaintiff appealed to this court; defendants did not appeal from the judgment in favor of plaintiff on the main demand, hut an- 1 swered the appeal praying that the judgment in their favor on the reconventional demand he increased to the amount origi- ,; nally prayed for. Therefore the judgment . in favor of plaintiff on the main demand is not before us, and the only question for decision is the correctness of the judgment ' on the reconventional demand.

Plaintiff in reconvention claims $150 damages for loss of chickens they claim they would have raised had there been a sufficient water supply on the place. This claim is purely speculative, and there is no possible way for it to have been definitely proved, and was properly rejected by the lower court. Another item of damage alleged is $70 .for loss of time attending court. This' claim was properly disallowed as not an item of damage recoverable in a suit of this kind. The remaining items of damage alleged were $120 for work done on a well on the premises, $50 for water purchased to be used on the premises, and $360 for' loss of part of the rented premises, due to defendants in reconvention taking possession of same and renting it to a third person.

Plaintiff in reconvention was required under the lease contract to make all repairs on the place, and therefore could not recover for the work done on the well, hut, after doing work on the well in order to make it produce water, was entitled to the use of same, and it is. shown that for a period of several weeks the well water was used in a swimming pool of defendants in reconvention, and plaintiff in reconvention was illegally deprived of the use of same for that period of time.

It is also undisputed that defendants in reconvention took possession of a part of the land covered by said lease and let it-to a negro who planted it in cotton. This action was an illegal interference, and plaintiff in reconvention is entitled to recover damages therefor. The number of acres occupied by the negro varies, from the testimony, from six to sixteen acres. The time - the land was occupied by the negro likewise varies, but it is a fact -that he prepared the land, planted the cotton, .chopped it out, and that the cotton grew to a height of about eighteen inches.

Although the opinion of the district judge does not set out how he arrived at the $120 damages, we feel sure it was- based on the two items last above mentioned, and the amount awarded to defendant in reconvention, we think, does substantial justice as. between the parties.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed; appellant to pay the cost of appeal.


author: TALIAFERRO, J.

text:
    No. 3956
    Second Circuit (Second Division)
    HARDMAN v. SCHILLING
    (December 9, 1931. Opinion and Decree.)
    G. Randell Whitmeyer, of Shreveport, attorney for plaintiff, appellee*
    J. F. Phillips, of Shreveport, attorney for defendant, appellant.
   TALIAFERRO, J.

Plaintiff sues to recover a balance of $195 alleged to be due by defendant on account of rent. Defendant denies that he owes plaintiff . any amount, averring that he has paid him or his agents or representatives all rent that accrued under the contract of lease between them.

Judgment was rendered for plaintiff for amount sued for on August 5, 1930, and on August 8th defendant filed motion for new trial, complaining that whereas his attorney was notified that the case was fixed for trial for August 8th, it was in fact taken up for trial, tried and judgment rendered and signed on August 5th in the absence of himself and his counsel. This motion was sustained and new trial granted. Presumably, the case was again tried on August 14th, as on this date another judgment was given plaintiff for the amount sued for, although the minutes of the court do not disclose that another trial was - had on this date. Defendant again filed motion for new trial on ground that the judgment was contrary to the law and evidence in the case, which, on September 22nd, was overruled. The minutes of the court for this date read as follows:

“Motion for new trial overruled. Judgment reduced to $150.00. Judgment read, signed and filed.”

It is from this judgment defendant appealed. Plaintiff has answered the appeal, praying that the judgment be increased to $195; that the appeal be decreed to be frivolous and that the statutory penalty of 10 per cent of the amount in controversy be assessed against defendant as damages for taking and prosecuting such appeal.

Defendant has made no appearance in this court, nor did he file brief. Evidently he has abandoned his appeal. We shall so treat it. Plaintiff is entitled to the relief asked for in his answer to the appeal.

When the City Court overruled defendant’s motion for new trial on September 22, 1930, the judgment signed by it on August 14th became final so far ás that court was concerned and thereafter it was without power, right or authority on its own motion to arbitrarily reduce or alter that judgment to any extent. C. P. 547, 548.

It is obvious defendant’s dilatory tactics were invoked for delay only. We are informed in (plaintiff’s brief that defendant did not appear at either trial of the case; nor did he testify. We have no hesitancy in concluding that this appeal is frivolous and that the statutory penalty should be inflicted.

C. P. 907; DeVoe & Raynolds Co. v. Turpin, 16 La. App. 43, 133 So. 493.

For the reasons herein assigned, the judgment appealed from is hereby amended by increasing same to $195 with 8 per cent interest from March 5, 1930, until paid; and there is further judgment in favor of plaintiff condemning defendant to pay to him ¡ 10 per cent of this judgment as (penalty for frivolous appeal and, as thus amended, the judgment appealed from is affirmed.


text:
    No. 3950
    Second Circuit (Second Division)
    BLAKE ET AL. v. UNITED BROTHERS OF FRIENDSHIP AND SISTERS OF THE MYSTERIOUS TEN
    (December 9, 1931. Opinion and Decree.)
    James W. Jones, of Natchitoches, attorney for plaintiffs, appellees.
    Breazeale & Hughes, of Natchitoches, attorneys for defendant, appellant.
   TALIAFERRO, J.

Defendant is a fraternal and beneficial association. In connection with its other activities it has created an endowment bureau through which it carries insurance on the life of its members. On November 26, 1928, defendant issued to one Joe Blake a policy for $300 wherein plaintiffs, Edward Blake, Albert Blake and Lee McCasky are named beneficiaries. On January 29, 1929, Joe Blake, the assured, was slain by one Isiah Jones, while on the premises of the slayer. Timely proof of death was submitted to defendant and demand made for payment of the amount of the policy, but declined.

Defendant’s constitution and by-laws pro-’ vide that thirty days after filing of proof of death of a member of a subordinate lodge or temple, a payment of $50 will be made for burial benefit. Payment of this amount was also refused for the same reasons as were assigned for not paying the policy on life of the deceased. Plaintiffs sue to recover the amount of the policy and for the burial benefit.

Defendant resists payment of the amounts for which it is sued on following grounds:

That the policy, and the rules and regulations of the society, provide that if death of the insured result from acts of violence no recovery could be had; that the insured did meet death as a result of violation of law in that he was killed by Isiah Jones while trespassing upon Jones’ premises arid violating the sanctity of his home by entering therein for the purpose of unlawful sexual intercourse with Jones’ wife; that deceased had been warned by Jones to not visit his home, and when killed deceased was violating the law and the conditions of the policy.

Plaintiffs recovered judgment for' both amounts sued for. Defendant prosecutes this appeal.

Isiah Jones suspected undue intimacy between his wife and Joe Blake, the insured, and he testified that he had warned Blake to stay away from his home. He admitted that he shot Blake at night while talking to his (Jones’) wife at the rear door of Jones’ home. He admits he saw nothing wrong in Blake’s conduct or actions at the time beyond the fact that he was talking with Mrs. Jones. He was laying in wait near his own chicken house when deceased appeared. The deceased lived three-quarters of a mile west of Jones’ home, and it is shown that there is a plantation qr neighborhood trail leading from the west-tun part of the neighborhood to Jones’ residence, and he admits this trail was used by “home” people.

Levenia Jones, the woman in the case, testified that she was in her house when she heard the shot that killed Joe Blake; that the shot was fired back of the house, but Blake fell in the front yard; that she had not talked with Blake the night he ivas killed, no,r had their relations at any time been immoral.

The provision of the policy which defendant invokes to escape liability is as follows:

Provided: “That said member has made true statement relative' to age, health, and physical condition, and that death does not result from acts of violence, intoxication, venereal disease, judgment of the state, or fall under the legal definition of suicide, or from the hands of the beneficiary.”

This is a literal copy of a part of article VIII of the by-laws of the society.

It is argued by counsel of defendant that the conduct of the insured in coming upon Jones’ premises, after having been warned not to do so, arid talking with Jones’ wife, amounted to an act of violence, within the terms of the policy and, this being true, no .recovery thereunder can be had. We are unable to agree with, this reasoning. If Jones’ testimony is true Blake was guilty of imprudence in entering upon Jones’ premises, but we know of no law be violated in doing so. He certainly used no force to enter the premises. The record does not disclose definitely but we have the impression that both Jones and the deceased were tenants on farms or plantations, and it is shown that a neighborhood road or trail leads from the direction of where deceased lived to the home of Jones, which is used by people of the community.

Counsel argue earnestly that Blake intended to have intercourse with Jones’ wife, with or without her consent, and offer this as his motive for his visit on the fateful night. What may have been Blake’s motives we are left to conjecture. Motives and intentions when not carried to the extent of violation of law or the moral code amount to little. However, in passing, we might add that in our opinion under the terms of the policy under discussion, adultery on the part of the insured does not ipso facto vitiate the policy. Such immoral act would probably be ground for expulsion or suspension from the society, which would automatically terminate all rights under the policy. There is no contention whatever that deceased was not in good standing with defendant society when killed.

We have been cited to no authority by counsel for defendant in support of its position and defense in this suit, and have found none. We do not think any can be found. The language of the policy is clear and unambiguous as to what acts on the part of the assured will annul its provisions. The record does not establish that the insured had violated any of these special provisions.

The judgment appealed from is correct and is hereby affirmed.


text:
    No. 3859
    Second Circuit (Second Division)
    COX, SR., v. CROW (L. C. BLACKWELL, Intervener and Third Opponent)
    (November 18, 1931. Opinion and Decree.)

      Clifford E. Hayes, of Minden, attorney for plaintiff, appellant.
    Coleman Lindsey, of Minden, attorney for intervener and third opponent, appellee.
   CULPEPPER, J.

The only two contested issues in this case are, first, as to whether or not the person furnishing money with which to buy timber to be manufactured into cross-ties has a lien and privilege upon the ties, when manufactured, for the payment of the money thus advanced; and secondly, whether the furnishing of groceries, during the time the ties are being manufactured, to the person and his family for their support during the time he was engaged in the manufacture confers a privilege, when the allegation and the proof do not set forth and show that such supplies were sold for the specific purpose of and actually used in the process of manufacture.

Thomas L. Cox, Sr., plaintiff in main suit, obtained a judgment by confession against Thomas W. Crow, defendant, in the parish of Webster, for the sum of $150. Under a fi. fa. plaintiff caused to be seized and advertised for sale by the sheriff, 423 cross-ties belonging to defendant. L. C. Blackwell intervened, claiming a privilege under the provisions of Act 195 of 1912 upon the ties for various amounts aggregating the sum of $246.92 to cover for alleged advances to defendant, among which were the following two items in contest (quoting petition):

“That your appearer has a lien and privilege on the property '(cross-ties under seizure) by reason of the fact that he furnished to defendant certain groceries for his support during the time he was engaged in the manufacture and hauling of said ties. * * * the amount thereof being ninety four & 22/100 dollars; * * * that your appearer advanced the defendant the funds necessary to pay for the timber used in the manufacture of said ties, being the sum of Forty-two & 30/100 Dollars; * * *”

Plaintiff in main suit filed an exception to the petition of intervention, of no right or cause of action, which was referred to the merits by the court. The case went to trial qn the intervention, resulting in a judgment in favor of the. intervener for the sum of $204.62, and ordering the sheriff to pay to intervener said amount out of the proceeds of the sale of the ties by preference and priority over all other persons.

By agreement of the parties the sheriff sold the ties and held the proceeds subject to the outcome of the trial and the rights of the parties were relegated to the proceeds. While the judgment is silent as to which item or items claimed were disallowed, we gather from briefs of counsel, and argument, that only the claim of $42.30 for money advanced with which to purchase the timber was disallowed.

Plaintiff in main suit, alone has appealed. Intervener filed an answer to the appeal asking that the judgment be amended so as to allow the claim of $42.30 disallowed by the lower court.

As shown by the briefs and argument of counsel, the only,two remaining contested claims are those of $94.22 for alleged supplies of groceries and $42.30 for money advanced with which to purchase the timber from which the cross-ties were made.

There is no dispute as to the fact that intervener advanced to defendant Crow the alleged sum of $42.30 as a loan with which to purchase the standing timber from which the ties were made. It is purely a question of whether under the interpretation of the Act 195 of 1912, sec. 3, such an advancement of money constitutes a lien. The section of the act reads as follows:

“That any person or persons furnishing supplies, provisions, or money, in deadening, felling, cutting, hauling, banking, driving, running, rafting or booming any log or timber, for the purpose of manufacturing telephone, telegraph poles' and cross ties, or any of them, or in manufacturing telephone, telegraph poles, or cross ties, shall have a lien and privilege on same.”

A reading of this section of the act sets forth the specific purposes for which, when money is advanced, a lien is created. Among these purposes named, no mention is made of money advanced for the purchase of timber for manufacturing telephone, telegraph poles or cross-ties. The provisions of the act seeking to create liens and privileges must be strictly construed, as is well settled by the law and jurisprudence of this state. If the lawmakers had intended to create a privilege on ties in favor of a person who furnishes money for the purpose of buying timber to be manufactured into cross-ties, they would necessarily have had tq set it forth specifically in the statute. This act is the only statute on the subject, therefore, 'we think the trial judge correct in refusing to allow this particular claim.

The validity of the claim for $94.22 is more difficult to determine, due to the particular language in which the claim is set forth in intervener’s petition, also the testimony introduced in support of it, when compared with the language of the act and the strict construction that must be placed upon it. It does seem that intervener could have made his position plainer both in his pleading and in his testimony.

The correctness of the itemized statement and amount of this account for groceries is not questioned. The point in question is whether these groceries were furnished in deadening, felling, cutting, hauling, banking, driving, running, rafting or booming any log or timber, for the purpose of manufacturing “the cross ties” “or any of them” — “or in manufacturing” same. Intervener’s privilege, if he has one, arises under the above quoted section 3 of Act 195 of 1912. The crucial point is a ques-' tion of fact as to whether the groceries sold by intervener to defendant were used in the process as a whole by which the cross-ties were manufactured, from the beginning of the deadening, felling and cutting of the timbers to the finally completed product. The lower court evidently, from its judgment allowing this claim, found that these groceries were in fact so used.

Plaintiff in main suit and defendant in the intervention, urges the point that intervener did not allege a cause of action in that it was not alleged that the groceries were used in the manner pointed out by the statute, but simply alleged that intervener “furnished to defendant certain groceries for his support during the time he was engaged in the manufacturing and hauling of said ties.” Counsel argues that this phraseology cannot be construed to mean that the groceries were used in the process of the manufacture of the ties as required by the statute. The phrase “furnished to defendant certain groceries for his support during the time he was engaged in the manufacture (boldface .by us) and hauling of said ties,” is equivalent, we think, to saying the groceries were furnished “in the” process of manufacturing them. The allegation that the groceries were for defendant’s support while he was manufacturing the ties certainly means that they were used in the manufacturing process. We therefore think a cause of action is alleged.

The proof in support of the above allegation is that testified to by the defendant Crow. He testified that all of the groceries were furnished him during the time he was making, the ties; that they consisted of flour, meal, lard, and were used by him and his wife. He says he lived “at home” during the time. When asked about a claim, his soil, J. T. Crow, had and- which had been assigned by his son to intervener, defendant Crow testified that the claim was correct; that it was for labor that his son had performed in making “these ties” and that his said son was staying at his (defendant’s) house at the time. If the .son, J. T. Crow, was staying at defendant’s house, or home, he too was consuming these groceries from the common table of his father, while engaged in the labor of making, or helping to make, the ties. We conclude therefore, that the groceries in question were used in the manufacture of the ties seized. There is no evidence that defendant was engaged in any other business during the time these supplies were furnished him, from November 8 to December 18, 1929. Defendant did not testify specifically that he was engaged during that time at any other occupation, but intervener testified that defendant was engaged in nothing else that he knew of. “Nothing but making these ties.”

We do not think there is any merit in the contention that there was a possibility that there were others consuming any of the supplies than the laborers engaged in the actual work. The only persons shown to have been living in defendant’s home were defendant himself, his wife and the one son, J. T. Crow. The father and son made the ties while evidently the wife cooked the meals. The labor in cooking the meals was a very essential service to perform in the manufacturing of the ties, we must say.

For the reasons assigned, the judgment appealed from we think is correct, and is affirmed.


text:
    No. 3822
    Second Circuit
    LEE, JR., v. GIVENS ET AL.
    (May 20, 1931. Opinion and Decree.)
    (July 14, 1931. Rehearing Refused.)
    (October 15, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      J. Rush Wimberly, of Arcadia, attorney for plaintiff, appellant.
    B. F. Barnette and Goff & Goff, of Arcadia, attorneys for defendants, appellees.
   DREW, J.

In 1926, the SW% of SW& of section 23, township 14, range 8, Bienville parish, La., was.' properly assessed to Dave A. Lee, Jr., the rightful owner at that time, the assessment rolls showing the address of the owner to be Ashland, La. After the 1st day of January, 1927, the taxes not being paid, the sheriff of Bienville parish addressed a registered notice to D. A. Lee, Jr., at Ashland, La., as required by law. The notice was not received by the addressee and was returned to the sheriff on March 31, 1927, with the following notation thereon: “Removed, left no address.” The sheriff filed same away and did not give or attempt to give any other notice of delinquency. The property was advertised for sale for the unpaid taxes, and on June 25, 1927, was adjudicated to W. A. Bogan for $21.81, the amount of taxes, interest, and costs due thereon for the year 1926; the sheriff reciting in the deed that he had given legal notice, as required by law.

D. A. Lee, Jr., leased the property for the year 1927 to a negro who worked the place, and for the year 1928, to one J. C. Givens for one-fourth of the crop, less the cost of certain improvements to be placed thereon by Givens. On August 22, 1928, W. H. Bogan, the purchaser at tax sale, more than one year having elapsed since the said sale, gave written notice to Givens, the lessee, advising him that he (Bogan) had purchased the property at tax sale and would expect the rent to be paid to him. Givens would not agree to pay the rent without an order of court, so Bogan filed suit for the rent and Givens signed an answer admitting that he owed rent and neither denied nor admitted that he owed it to Bogan.

On the face of the record, the court rendered judgment in favor of Bogan for the rent due. The petition and answer in that suit were filed on December 3, 1928, and judgment rendered on December 4, 192S. On December 13, 1928, by authentic act of sale, W. H. Bogan sold to J. C. Givens the land in question for the sum of $548, $100 cash, and the remainder on credit of one, two, three, and four years, describing the property as the NW% 'of NW% of section 23, township 14, range 8, and on December 20, 1928, executed a correction deed properly describing the land.

On September 13, 1929, D. A. Lee, Jr., filed this suit, attacking the tax title in W. H. Bogan and later transferred to Givens-, and prayed that -the tax sale he decreed null and void and the deed canceled and erased from the record; also for the cancellation of the deeds from Bogan to Givens, and.that he be declared the owner of the property, and for judgment against both Bogan and Givens in solido for the rent of said place for the years 1928 and 1929, fixing same at $100 for each year.

He alleged collusion and fraud between Bogan and plaintiff’s lessee, Givens, and further that the tax sale is null and void for the reason that it was made without legal notice to him of said proposed sale and without legal advertisement of said sale and without legal notice of any delinquency of his -taxes.

Defendants deny the allegations of the petition as to collusion and fraud between plaintiff’s tenant and Bogan, and allege that Bogan acquired said property under a legal tax deed; that due notice of the delinquency of the taxes on said property and notice of intention to seize same were duly served by mail to the tax debtor, D. A. Lee, Jr., at bis post office at Ash-land, La., as shown by the assessment rolls of Bienville parish; that the property was seized and due return thereof made, was duly advertised, sold, and adjudicated to the said Bogan, in accordance with law; and deny the claim for any rent.

The lower court rendered judgment holding the tax sale to be legal and valid and rejecting plaintiff’s demands. Plaintiff has appealed to this court.

The only question necessary for us to pass on is whether or not the legal notice of delinquency was given, as is required by sections 50, 51, and 52 of Act No. 170 of 1898. Under this act, tax debtors owning immovable property are classed as “residents,” “absent owners,” and “unknown owners.” The act provides that notice of delinquency to a resident or non-resident taxpayer whose address, is known shall be given by registered mail, and to “unknown owners” and those whose residence is unknown, by publication in a newspaper, if there be such in the parish, if not, then by posting. The tax debtor in this instance was treated as a resident whose address is. known, and notice of delinquency was sent by registered mail to Ashland, La., -his residence as shown by the assessment rolls. The notice was returned unclaimed with the notation .thereon that his address was unknown. The sheriff made no further attempt to give him notice or to learn his address, neither did he give notice by publication in the paper, as is required for “unknown owners” and those whose residence is unknown.

The uncontradicted testimony is that plaintiff had not resided at Ashland, La., for many years prior to 1926, only returning there once or twice a year to visit his father, who at that time resided in that community, and that he did not authorize the assessor to show his address on the assessment rolls as Ashland, La., and did not know it had been done. During the four or five years prior to 1927, plaintiff had resided in Vernon parish and about two years at Call, Tex. His residence was not at Ashland, La., where the notice was sent.

The Constitutions of 1879 (article 210), 1898 (article 233), 1913 (article 233), and 1921 (article 10, sec. 11), all contain the clause providing for notice to delinquent tax debtors, and Act No. 170 of 1898 (sections 50-52) provides how it -shall be given. This provision contemplated that reasonably diligent steps should be taken by the sheriff and .tax collector to make the notice effectual. Genella v. Vincent, 50 La. Ann. 956, 24 So. 690; Wilkerson v. Wyche, 158 La. 596, 104 So. 381; Jones v. Curran, 156 La. 1055, 101 So. 415.

The sheriff and tax collector in this case did not do anything to make the notice effectual, but merely mailed the notice, which was returned, and it is not shown that he made any inquiry regarding the residence of the tax debtor.

The evidence offered by plaintiff is sufficient to rebut the prima facie character of the deed, and there is, therefore, thrown upon the defendants, who hold under the tax title, .the burden of sustaining the latter by testimony aliunde the deed. T. D. Land Co. v. Sholars, 105 La. 357, 29 So. 908; Hoyle v. Athletic Club, 48 La. Ann. 900, 19 So. 924; Adsit v. Parks, 144 La. 937, 81 So. 430; Jones v. Curran, supra. And the defendants have failed to offer any evidence thereon.

When the notice was. returned to the sheriff and tax collector with the notation thereon, it was the duty of the sheriff to make inquiries as to the residence of plaintiff, and, if same could not be learned, he then should have given the notice required by section 52 of Act No. 170 of 1898; that is, by publication of notice, as is prescribed for “unknown owners” and owners whose residence is unknown. As a last resort, he must comply with section 52 in order to satisfy the constitutional requirements of notice to delinquent taxpayers. Bush v. Bahan, 10 La. App. 560, 121 So. 628; citing Jones v. Curran, supra; Recker v. Dupuy, 161 La. 392, 108 So. 782; Kivlen v. Horvath, 163 La. 901, 113 So. 140.

The judgment of the lower court will have to be reversed.

The claim for rent is not sufficiently established in the record to be disposed of at this time, and there is no claim by defendants for taxes, price, and costs paid; however, section 11 of article 10 of the Constitution of 1921 provides:

“No judgment annulling a tax sale shall have effect until .the price and all taxes and costs paid, with ten per cent per annum interest on the amount of the price and taxes paid from date of respective payments, be previously paid to the purchaser.”

It therefore follows that no judgment rendered herein can become effective until the defendants have reimbursed the expenditures of the nature mentioned in this article of the Constitution.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, avoided and reversed; and it is now ordered that the tax sale of the property of plaintiff for taxes of 1926, recorded in Book 84, folio 217, of the conveyance records of Bienville parish, La., be annulled and set aside and canceled from said records; and the two deeds from W. H. Bogan to J. C. Givens, conveying the same property recorded in the conveyance records of Bienville parish, La., Book 88, folios 229 and 244, be annulled and set aside and canceled from the records; and that this judgment take effect from and after payment by plaintiff to defendants of the price and taxes paid and costs of said tax sale, amounting to $21.81, together with all subsequent taxes paid, with 10 per cent per annum interest on all sums from the date of such payments; and the right of plaintiff to sue for rent of said property is hereby reserved to him. Defendants and appellees to pay all costs of both courts.


author: STEPHENS, J.

text:
    No. 3730
    Second Circuit
    WARDLAW v. CONRAD
    (November 18, 1931. Opinion and Decree.)
    Richard H. Switzer, of Shreveport, attorney for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendant, appellant.
   STEPHENS, J.

The plaintiff sues to be declared the owner and entitled to the possession of a diamond ring, and, in the alternative, for its alleged value of $150. It is. alleged in the petition that the plaintiff presented the ring to the defendant, to whom he was engaged to be married, in and for the consideration of their future marriage; that the engagement was broken and the marriage never consummated; and that the consideration for which the ring was given, having failed, the plaintiff should be decreed the owner thereof and entitled to its possession, or, in the alternative the plaintiff should have judgment for its value.

The defendant filed a plea of prescription of one year, which was overruled. She then filed an answer, in which she admitted that she had a diamond ring which was presented to her by the plaintiff; that the engagement to be married to the plaintiff once existed, but had been broken, arid that the contemplated marriage did' not take place. She alleged that the ring was presented to her purely and simply as a donation free from any stipulation, condition, or consideration.

A trial of the case resulted in a judgment for the plaintiff as prayed for. The defendant appeals. The plaintiff answered the appeal, praying that it be declared frivolous, and that damages be awarded therefor.

The pertinent facts, in addition to those alleged and admitted, are that the ring was worth $150, and was given to the defendant in consideration of their future marriage. In other words, it might properly be designated as an “engagement ring.”

There are only two questions presented by the case: First. Is the action prescribed by one year? Second. May the ring be recovered because of the failure of the consideration for which it was given?

The defendant has founded her plea of prescription of one year on article 1561 of the Civil Code, which reads as follows:

“An act of revocation for cause of ingratitude must be brought within one year from the day of the act of ingratitude imputed by the donor to the donee, or from the day that the act was made known to" the donor.”

We think the article is not applicable to the situation that exists in this case, as the donation here sought to be revoked is not founded on the ingratitude of the donee, but upon the failure of the consideration for which it was made. The plea of prescription was correctly overruled.

.The second question must be answered in the affirmative. The articles of the Civil Code that are determinative of the question are article 1740 and article 1897. The former reads:

“Every donation made in favor of marriage, falls, if the marriage does not take place.”

This article is found under the chapter in the Code entitled “Of Donations Made by Marriage Contract to the Husband or Wife,” and is a literal .translation of the Code Napoleon. French commentators, however, have construed the article to apply not only to gifts by marriage contract, but also to pre-nuptial gifts, of the character here considered, when presented by one contracting party to the other.

Article 1897 reads as follows:

“The contract is also considered as being without cause when the consideration for making it was something which, in the contemplation of the parties, was thereafter expected to exist or take place, and which did not take place or exist. A gift in consideration of a future marriage is void by this rule, if the marriage do not take place.”

This article, which treats of the failure of an expected consideration, as in this case, refers to the law as written in article 1740 largely for the purpose of illustration.

In reference to the French Commentaries and the application of these articles, of the Code to the identical question here presented, the Court of Appeal for the Orleans circuit, in the case of Decuers v. Bourdet, 10 La. App. 361, 120 So. 880, 881, used the following language:

“Although these commentaries deal generally with gifts made in the marriage contract, the underlying theory which pervades the whole subject is that the consummation of the marriage is the end sought, and therefore the ultimate purpose of all such gifts. Necessarily the failure of the essential condition on which the gift is made makes the gift nullable.”

In the case quoted from, the court decreed that engagement presents might be recovered because .the marriage did not occur.

We are of the opinion that the judgment appealed from is correct, and it is therefore affirmed. Damages for frivolous appeal are denied.


author: McGREGOR, J.

text:
    No. 3855
    Second Circuit
    HUDSON ET AL. v. WHITWORTH ET AL.
    (November 18, 1931. Opinion and Decree.)
    Foster, Hall, Barrett & Smith, of Shreveport, attorneys for plaintiffs, appellants.
    Herndon & Herndon, of Shreveport, attorneys for defendants; appellees.
   McGREGOR, J.

This is a slander of title suit, converted by the defendants into a petitory action. The plaintiffs alleged themselves to be the owners of the S. W. % of the S. E. %, Section 3,0, Township 15 North, Range 16 West, basing their ownership on more than forty-five years actual, physical, uninterrupted, and undisturbed possession, and specially pleading the prescription of thirty years acquirendi causa, aver that the defendants are slandering their title by claiming to be the owners, of the property. They pray that the defendants be ordered either to disclaim title to the property, or to assert and establish their rights to it. In due time, the defendants answered and alleged that they were the real owners of the property, basing their title on a tax deed dated July 7, 1924, and recorded on July 11, 1924, in Book 155, page 668 of the Conveyance Records of Caddo parish, La. This tax sale was based on an assessment for state and parish taxes for the year 1923, in the name of “W. T. Fortson, Succession.” In sending out the customary notices to the “delinquent tax payers,” the sheriff addressed this notice as follows: W. T. Fortson, Succ’n, Bethany, La.

The registered letter containing the notice was never delivered, but was returned to the sheriff with the notation “unknown” stamped on the envelope. Without any further effort to notify any one of the intended sale of the property for delinquent taxes, the sheriff and tax collector proceeded with the usual advertisements, and accordingly, on June 28, 1924, the property was adjudicated to J. E. Whit-worth, husband and father of the defendants, for the state and parish taxes of 1923.

At the time of the tax sale, the plaintiffs were in the actual corporeal possession of the property, and knew nothing of the sale, but presumed that they had paid the taxes. Neither the tax purchaser, during his life, nor the defendants, his surviving widow and children, took any steps to assert ownership of the property by virtue of the tax sale, and plaintiffs continued in open corporeal possession of the property, and farmed it from year to year. It is in evidence that none of the plaintiffs were aware of the tax sale and the pretensions of the defendants to the ownership of the property until a short time before the filing of this suit. As soon as they learned of the tax sale and the claims of the defendants, the plaintiffs filed this jactitation suit, claiming the title to the property under the thirty years’ prescription acquirendi causa. The defendants answered and converted the suit into a petitory action by asserting their title and basing it on the tax sale. On trial of the case, the plaintiffs attacked the validity of the tax sale on the ground that no legal notice had been mailed to any one before the sale, as required by law, and, to meet this attack, the defendants filed a plea of prescription of three years, barring any attack on any tax sale after three years for any cause except the previous payment of taxes. Plaintiffs denied the application of this defense of prescription on the ground that they were in the actual, corporeal, and undisputed possession of the property at the time of the alleged tax sale, and had maintained this possession down to the day of the filing of the suit and the trial of the case. The learned judge of the lower court sustained the plea on the theory that, while the Supreme Court had held in numerous, cases that this three years’ prescription did not apply in cases where the tax debtor remains in possession of the property after the tax sale, in all such cases the tax debtors based their title on written deeds, and not solely on prescription acquirendi causa. There was judgment in favor of the defendants sustaining the plea of prescription and recognizing them as the owners of the property.

ON THE PLEA OP THREE YEARS’ PRESCRIPTION

The rule of prescription relied on by the defendants is found in article 10, section 11 of the Constitution of 1921, and reads as follows:

“No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within three years from the date of the recordation of the tax deed, if no notice is given.’’

A similar provision was contained in section 233 of the Constitution of 1898. In construing and applying this former provision of the Constitution of 1898, the Supreme Court, in the case of Carey v. Cagney, 109 La. 77, 33 So. 89, held definitely:

“There must be a possession, either ac-' tual or constructive, on part of the holder of a tax title to render effective in his behalf the statute of repose embodied in article 233 of the constitution of 1898.
“Where the original owner remains in the actual, corporeal possession of the property, such possession is in continuous conflict with the claim arising under the tax title, and a continuous protest against the same, and it cannot be held, under such circumstances that any prescription operating as a statute of repose runs in favor of the holder of the tax title.
, “Where the original owner was in actual possession at the time of the tax sale and so remains in possession, the initiative is not upon him. He stands on his possession against the world; it is a badge of ownership; and no prescription can be held applicable that would operate to deprive him of the right to defend that possession and the title upon which it is predicated.
“While constructive possession springing from a later title deed ousts constructive possession which had been held under an earlier deed, constructive possession can in no case have the effect of ousting actual possession held under an adverse title giving the color of right. One is a fiction of law; the other a tangible fact. The fiction is inoperative as against the fact; the unreal as against the real. The actual possession here referred to means the corporeal detention of the property.” (Sections 2, 3, 4 and 5 of .the syllabus.)

The interpretation of this provision of the Constitution in this case has become so well settled, and has been reiterated so many times, nothing short of a new declaration in the form of a constitutional amendment could change it. Defendants are forced to admit the correctness of this statement of the law, but they contend that it has no application in cases where the ownership of the property involved in a tax sale is based on thirty years’ prescription acquirendi causa. The same objection might be urged in cases where the ownership is based on ten years’ prescription. It will be noted in the citations from the Carey v. Cagney case that the party attacking the tax sale is. referred to solely as the “original owner,” and not as the “record owner.” One is just as much the “owner” of property on the basis of thirty years’ prescription as he would be if he held a perfect deed. In either case, the title is unassailable. An “owner” who has obtained the “ownership” solely through thirty years’ prescription “stands on his possession against the world” just as effectively as any other “owner,” if he “was in actual possession at the time of the tax sale and so remains in possession.”

Judge Cooley in his work on Taxation, on page 557 of the second edition, divides tax purchasers into three classes, namely: “(1) Those who take actual, corporeal possession of the property under and by virtue of the tax collector’s title. (2) Those who buy property not tangibly but only constructively in the possession of the tax debtor, and, themselves, obtain no other possession than the civil or constructive possession which follows the tax collector’s title to them and its registry in the conveyance' records. (3) Those who buy property which is tangibly and corporeally in the possession of the tax debtor, but who content themselves with merely accepting and recording the tax collector’s title, making no effort to dispossess the original owner.”

In discussing the first and second of these three classes, of tax purchasers, in the case of Ashley Co. v. Bradford, 109 La. 641, 33 So. 634, the court declared that the three years’ prescription did protect the tax purchaser against every attack except the payment of taxes; but in the case of Carey v. Cagney, cited above, the tax purchaser falls under the third class, and is not protected by the prescription. The reasoning of the court applies just as strongly in cases of title by prescription as it does in cases of title by deed. This plea of three years’ prescription interposed by the defendants, should not have been sustained.

ON THE MERITS

Having disposed of defendants’ plea of prescription, it becomes necessary to examine the validity of the tax sale by which defendants claim the ownership of the forty acres of land in controversy. The defendants have assumed the position of plaintiffs, in a petitory action. They have set up this tax deed as the sole basis of their title. The plaintiffs in the case, who are in the position of defendants in the petitory action, have attacked the validity of the tax sale, alleging that no legal notice was given by the sheriff before advertising the said property for sale for delinquent taxes. The proof is overwhelming that plaintiffs had been in the actual, corporeal, and undisputed possession of the land for more than forty-five years at the time of the tax sale. This establishes their title to the property, and they were, therefore, the “tax debtors” and under the law were the ones entitled to receive notice of the intended sale for delinquent taxes. In the case of In re Lafferranderie, 114 La. 6, 37 So. 990, it was held:

“A tax sale should be made only after giving notice to the delinquent. The delinquent referred to is the owner actually in possession on the day that proceedings are taken to advertise and sell the property for taxes due thereon.”

No pretense is made that any notice was sent to any one of the plaintiffs. Under the plain letter of the law, as stated in the above citation, the plaintiffs and no one else w®re entitled to receive the notice required by law with reference to the sale of this property for delinquent taxes. The only notice sent was addressed to W. T. Fortson, Succ’n, Bethany, La. Even though, for the sake of the argument, we should concede that the succession of W. T. Fort-son should have been notified, the notice sent was wholly insufficient. It should have been addressed one to each of the heirs of W. T. Fortson, or to the administrator of the succession, if there were one. The notice as sent amounts to no notice at all.

Since no notice whatever was sent to the plaintiffs or any of them, who, under the law, were the “delinquent tax debtors,” and since even the pretended notice addressed to W. T. Fortson Succ’n amounts to no notice at all, the irresistible conclusion is that the tax sale under which the defendants claim the ownership of the land in controversy is void, and confers no rights on the defendants.

For the reasons assigned, it is therefore ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, avoided and reversed, and it is ordered that the tax sale of the S. W. % of the S. E. Yt, Section 10, Township 15 North, Range 16 West, Caddo parish, La., for taxes of 1923, as recorded in Book 155, page 668 of the Conveyance Records, of Caddo parish, be annulled, set aside, and canceled. It is further ordered, adjudged, and decreed that the plea of three years’ prescription filed by the defendants be, and the same is hereby, overruled, and that the plaintiffs, Silas H. Hudson, John B. Hudson, Joseph R. Hudson, Harmon Hudson, Norman Hudson, Mrs. Emma Hudson Ingram, and Mrs. Mattie Hudson Hall, be, and they are hereby, recognized as the true and lawful owners of the said property. It is further ordered that the defendants pay all costs in both courts.


author: ELLIOTT, J.

text:
    No. 848
    First Circuit
    McGEHEE v. ASHLEY
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)
    A. W. Spiller, of Hammond, attorney for plaintiff, appellant.
    Rownd & Warner, of Hammond, attorneys for defendant, appellee.
   ELLIOTT, J.

A collision took place between an automobile belonging to Dr. Edward L. McGehee, while being driven by Victor G. Anderson, and one belonging to Louis P. Ashley, while being driven by himself, in which the automobile belonging to McGehee was seriously damaged. This suit is to recover of the defendant Ashley $89.55, the cost of repairing his ear, $100 as general damages to his automobile and $50 for loss of the use of his car while it was being repaired, a total of $239.55.

The accident occurred on the night of January 13, 1930, at the intersection of Cypress street and Coleman avenue in the city of Hammond.

The petition of the plaintiff alleges that his automobile was being driven north on Cypress street at a moderate rate of speed at the time of the collision, and entered its intersection with Coleman avenue in advance of said Ashley, that Ashley was driving at the time at a high and excessive rate of speed, in violation of the laws of the state and of the ordinances of the city of Hammond, and that the accident was caused solely and entirely by the fault, negligence, want of skill and care on the part of the defendant in driving his car.

Defendant in his answer denies the negligence, want of skill and care alleged against him. He admits that a collision took place between his car and that of the plaintiff at the intersection in question, but avers that it was due entirely to the fault and neglect of the driver of plaintiff’s car. He alleges that he entered the intersection first and was proceeding across it at a legal rate of speed, when suddenly and without warning he was run into and violently collided with by the automobile belonging to the plaintiff; that the automobile belonging to plaintiff was being operated at the time at a higher rate of speed than was permitted by ordinances of the city of Hammond and in disregard of the regulations of the state highway Commission; that the headlights on plaintiff’s car were dim, defective, and ineffective, which prevented him from clearly and safely distinguishing the objects in his pathway and giving a deceptive appearance to said car as to distance to any one viewing same as it approached, and was a proximate cause of the collision; that the accident might readily have been avoided by the driver of plaintiff’s car swerving slightly behind the defendant who had almost crossed the intersection, but plaintiff’s driver instead swerved his car to — (meaning the right) bringing it against the side of defendant’s car; that the driver of plaintiff’s car, irrespective of the question of right of way and regulatory traffic ordinances, had the last clear chance to avoid the accident, of which he did not avail himself, but instead drove into the collision. Denying that he was negligent, defendant alleges that plaintiff was negligent, and alleged alternatively, in case it be found that the defendant was negligent, that plaintiff’s contributory negligence barred his recovery.

The judge of the city court, assigning reasons therefor in writing, rendered judgment in favor of the plaintiff as prayed for. Defendant has appealed.

It is impossible to say from the evidence, other than that plaintiff’s car and that of defendant entered the intersection about the same time — it is not possible to say which one was first.

Victor G. Anderson, driver of plaintiff’s car, and Dr. Joseph Dantone, who was in the car with him, both say that they entered the intersection first, but their testimony also shows that defendant’s car arrived there about the same time, driving, they claim, at a speed which they estimate at 30 or 35 miles an hour.

Louis P.' Ashley, defendant, and Terry Alexander, riding in the car with him, going east on Coleman avenue, both declare that they were the first to enter the intersection; that they slowed down when they reached it and changed gear and kept going; that plaintiff’s car struck their car after they had crossed more than half over; that plaintiff’s car came into the intersection at a speed which they estimate at 30 or 35 miles an hour.

C. W. Beck, also riding in defendant’s car, testifies favorably to his contention.

Witnesses for the plaintiff and defendant speak of the southwest corner of the intersection as a blind corner. The reason it is so called is that there is a building there so that a party going north on Cypress street cannot see a party approaching from the west on Coleman avenue until he practically' enters the intersection. And, in the same way, a party coming east on Coleman avenue cannot see a person coming north on Cypress street until he practically ' reaches the intersection. The corner is therefore very dangerous.

The ordinance of the city of Hammond provides for automobiles within the incorporated limits a speed not greater than 15 miles an hour.

It is further provided by ordinance that “vehicles traveling on the following streets have the right of way approaching on intersecting streets, namely, Cypress street, from East Thomas street to East Coleman Avenue. All automobiles or other vehicles approaching the above streets from intersecting streets shall, before crossing or turning into same, come to a full stop.”

In the reasons, for judgment given by the judge a quo, it is stated that the testimony discloses that plaintiff’s car was being operated in a careful, prudent manner and at a reasonable rate of speed, proceeding along South Cypress street on the right side of said street in a northerly direction, when at the intersection of said street with Coleman avenue, etc.; further states that defendant, Ashley, admits that he did not stop his car before entering the intersection, as required by the traffic regulations of the city, but that he almost stopped. Looking at Ashley’s admitted fault in not having come to a full stop, the lower court places on him the entire blame and sole responsibility for the collision.

The opinion states that these traffic regulations and ordinances, are designed for the protection of human life and the safeguards of property, and should be literally observed. We agree with this, statement where ordinances have such an end in view. Jones v. New Orleans Ry. & Light Co., 123 La. 1060, 49 So. 706; Belden v. Roberts, 3 La. App. 338; Johnston v. Jahncke Service, Inc., 7 La. App. 348, and others. But, where an ordinance does not have such end in view, the same strictness of enforcement is not recognized. Lopes v. Sahuque, 114 La. 1004, 38 So. 810, and others to the same effect.

The duty to stop, before crossing a railroad track, is understood as follows:

“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.” Aymond v. Western Union Telegraph Co. et al., 151 La. 184, 91 So. 671, 672. Other decisions on same subject, Holstead v. Vicksburg, S. & P. R. Co., 154 La. 1097, 98 So. 679; Draiss v. Payne, Agent, 158 La. 652, 104 So. 487.

But this decision and others such as Holstead v. Vicksburg, S. & P. R. Co., 154 La. 1097, 98 So. 679, and Draiss v. Payne, Agent, 158 La. 652, 104 So. 487; Act No. 12 of 1924, are not authorities for the construction of city ordinances regulating speed on the streets of the city providing right of way streets, and that automobiles being driven on certain streets shall on coming to certain street intersections come to a full stop.

Such ordinances have for their purpose the protection of life, limb, and property, and, when they contain the express command that all automobiles coming to certain designated street intersections “shall, before crossing or turning into same, come to a full stop,” they must be substantially obeyed.

We therefore differ with the lower court in the conclusion reached, -that Ashley was entirely to blame and is solely responsible for the collision.

The evidence introduced by the plaintiff shows that his car was being driven at the time, on Cypress- street, beyond the speed limit. Anderson says, “I was driving about 18 or 20 miles an hour, as near as I can judge.” In another place he says he did not look at -the speedometer but “judged his car to be going 18 miles an hour.” In another place:

“Q. Then, as I get your testimony as to the rate of speed you were going, according to the best of your judgment—
“A. I would say that it wouldn’t be three miles variation either way.
“Q. Eighteen or twenty?
“A. No. Eighteen miles per hour and three miles more or less. I would say the exact speed we were going was 18 miles per hour.”

Dr. Dantone, questioned on the subject, says he was not noticing the speedometer.

“Q. Could you estimate the speed you were travelling in the car in which you were riding?
“A. I think, coming down the street in the middle of the block, 25 miles an hour, and when we neared the intersection we slowed up; it was 18 or 20, as the correct speed.”

In another place he says, “We were going 25 miles an hour but reduced the speed as we entered the intersection.”

The court has no right in the enforcement of the city ordinance to hold that 3 or 5 miles an hour above the speed limit will not be taken into account when such excess was, as in this case, the very thing that brought about the collision, because to do so is to set aside the ordinance.

Defendant and his witnesses estimated that plaintiff’s car entered the intersection running a great deal faster than Messrs, Anderson and Dantone claim was the case. But for the purpose of this opinion it may be said ,to have been as claimed by the plaintiff, in which event the statement in the opinion that the speed of plaintiff’s car was reasonable must be understood to mean that 18 or 20 miles an hour is to be looked on as not negligent, although the city ordinance fixes the limit at 15 miles an hour, and it is at the same time plain that, if plaintiff’s car had not been going faster than 15 miles an hour, defendant’s car would in all probability have gotten to the intersection, crossed it, and passed on beyond before plaintiff’s car arrived there, and there would have been no collision.

According to Ashley and Terry Alexander and C. W. Beck, riding in the car with him, he slowed down as he came to the intersection with Cypress street, but did not come to a full stop; he almost stopped.

According to Messrs. Anderson and Dan-tone, defendant’s car came into the intersection at 30 or 35 miles an hour, but, for the purposes of the decision of the present case, suppose his speed not to have exceeded 15 miles an hour, and take into account only the failure of Ashley to obey the ordinance that drivers, before crossing this intersection, must come to a full stop, upon which the judgment against him is baséd: .

Mr. Ashley says on this subject:

“I brought my car to almost a dead standstill.’’

In another place he says, answering a question:

“Q. Did you come to a full stop?
“A. No, sir. I put my foot on the brake and was not driving fast to begin with, but I didn’t come to a dead standstill. I was going the average, where there is so much traffic.”

He says in another place that there was no stop sign at the crossing.

Terry Alexander, riding in defendant’s car, says:

“Mr. Ashley didn’t come to a stop, but he changed gear. He didn’t bring the ear to a stop, he just shifted gears. I wasn’t looking, but I just supposed it slowed down and he went onto the street in low gear,” etc.

C. W. Beck, the other party in defendant’s. ear, says:

“We were travelling about 20 or 25 miles an hour and at the crossing of Cypress street we slowed down to five miles án hour, enough to avoid a car being nothing in the way,” etc.

So defendant did not stop before entering the crossing, he only slowed down.

If he had come to a full stop, plaintiff’s car would in all probability have gotten through it and passed on beyond, before defendant could have started up again, and there would have been no collision on that account. It is therefore plain that the disobedience of the driver of plaintiff’s car in driving faster than the ordinance permits, and that of the defendant in not coming to a full stop, as it directs, acting together at the same time and to the same end, brought about the collision, and for which the plaintiff is as much at fault and to blame and as responsible as the defendant. Such being the case, neither can recover from the other. Jones v. New Orleans Ry. & Light Co., 123 La. 1060, 49 So.' 706; Belden v. Roberts, 3 La. App. 338; Johnston v. Jahncke Service, Inc., 7 La. App. 348.

Defendant urges in his answer and argues in his brief several defenses which our views, concerning the result o£ the respective violations of the city ordinances by the driver of plaintiff’s car and by defendant in driving his own, makes it unnecessary to consider.

The judgment appealed from is in our opinion contrary to the law and the evidence.

For these reasons the judgment appealed from is annulled, avoided, and set aside, and it is now ordered and decreed that the demand of the plaintiff Dr. Edward L. McGehee against the defendant Louis P. Ashley be rejected.

Availing ourselves of the provisions of Act No. 229 of 1910, sec. 2, it is ordered that the plaintiff pay one-half of the cost in both courts herein and defendant pay the other half.