text:
    No. 13,122
    Orleans
    BLANCHARD v. MONROSE
    (January 27, 1930. Opinion and Decree.)
    (February 17, 1930. Rehearing Refused.)
    (March 31, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    R. E. Kerrigan, of New Orleans, attorney for plaintiff, appellant.
    Raymond Gauche, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

The preliminary facts of this case are so nearly identical with those in the matter entitled Carr vs. Geoghegan, 11 La. App. 74, 123 So. 371, decided by us, on June 10, 1929, that we have decided to adopt, in a large measure,»the statement of fact as it appears in that case.

This is an action in boundary. The line in dispute is that which forms or should form the rear line of most of the properties fronting on Audubon boulevard. The old Foucher plantation formerly comprised the ¡property which is now occupied by Tulane University, Loyola University, and the properties fronting' on both sides of Audubon boulevard. Defendant’s property fronts on the upper side of Audubon boulevard,' and that of plaintiff fronts on Audubon street, which is parallel to Audubon boulevard.

Between Audubon street and Audubon boulevard, as they are actually laid out, there is not sufficient property to accommodate the title measurements of the various owners, and for some time there has waged a more or less acrimonious dispute between the Audubon boulevard owners and those on the other side of the line as to which should suffer as a result of the shortage.

It is evident that the line, as laid out by Henry C. Brown, surveyor, is at the point in question in this case about four feet farther uptown than it should be.

That the Brown line is not correct is not seriously disputed. Mr. Frank A. Wad-dill, a surveyor of great experience and reputation, found that at the point mentioned it is in error to the extent set forth. So far, then, as the question of the location of the correct line is concerned, "we have no hesitancy in coming to the conclusion that plaintiff is correct.

The serious defenses, however, are a plea of prescription of 10 years and a contention that there can he no boundary suit, where there has been a visible separation of the properties by a fence, as there was here. In support of his plea of prescription of 10 years, defendant alleges that he and his authors in title have had ■actual physical possession of the small strip of land in question for more than TO years, and that this ¡possession has been under color of title.

In support of the contention that there can be no action in boundary where there has been a visible separation of the property, defendant calls our attention to the case of Opdenwyer vs. Brown, 155 La. 617, 99 So. 482, 483, in which the Supreme Court said:

“As long as there exist no physical bounds, whether because none have ever been placed or because those once placed have disappeared, the action to place or replace them cannot be prescribed against; for every one is entitled at all times to have his estate separated from that of his neighbor. R. C. C. art. 825. But if visible bounds actually exist, which have been placed there by consent, the action to rectify any alleged error in the location thereof must be brought within 10 years, or it will be prescribed. R. C. C. art. 853.”

Up to this point the facts are identical with those in the Carr case except for the slight difference in measurements.

We deem it advisable at this time to call attention to two facts which appear •here, but which were not present in the Carr case.

Here there had been a fence of some kind on the Brown line (the incorrect one; for considerably more than 10 years, whereas in the Carr case such fence or hedge as existed was neither on the Brown line nor on the correct line.

Then, too, in this case, there seems to have been no protest about the occupancy of the land in question, whereas in the Carr case the matter was actively disputed and protested for many years.

Por a good many years the courts seemed rather undecided as to whether a boundary could be fixed otherwise than as provided in the Code. Later, however, it seems to have been well established that, if two adjacent property owners agree, even extrajudicially, that the boundary between their (properties shall be a certain line and, as a result of that agreement, a fence is erected on that line and a period of 10 years is allowed co elapse, the right to bring an action to correct the boundary no longer exists. Opdenwyer vs. Brown, supra; R. C. C. art. 853.

For some time we found it difficult to understand the decision of the Supreme Court of this state in Williams vs. Bernstein, 51 La. Ann. 115, 25 So. 411, in which the court said:

“The mere fact that parties owning adjoining properties have cultivated land up to a certain line or up to a certain fence built either by one or both, or built by one and repaired by the other does not per se evidence an adverse possession or an acquiescence in, knowledge of or recognition of an adverse ownership or adverse possession. Neighbors constantly run up fences within or beyond the boundary lines or join fences, doing so With the knowledge, and understanding that such acts are merely temporary and done subsidiarily to and with reference to the right of both to ultimately ascertain and fix rights by an action of boundary, or through a formal, legal survey. Until this happens such land is held in ‘occupancy,’ and not in ‘adverse possession’ — certainly in the absence of a clear and direct claim advanced of adverse ownership and possession.”

We are now of the opinion that the decision in the Williams case is not inconsistent with that in the Opdenwyer case, and that all that the court intended to hold in the Williams case was that, in order for the erection of a consent fence to form the starting point of a prescriptive period, it must appear that the consent to or acquiescence in the erection of the fence was deliberate and intentional and not merely (passive. In other words, that, if one neighbor allowed a fence to be erected, he would *not later be estopped to contest the location thereof unless the circumstances showed that he fully understood that the fence was being erected as a boundary and not as a mere temporary barrier.

The distinction between a fence erected as a boundary and one constructed merely for temporary convenience is well set forth by the Supreme Court in Gray vs. Couvillon, 12 La. Ann. 730, in the following language:

“No such consent as contemplated by law is shown to have been given by the various proprietors to the line of defendant, and it is not proved that they considered it as the recognized and established boundary by which the limits of their lands were determined.

“On the contrary their consent seems to have been merely a tacit recognition for the time being of this line, until the boundaries of their lands should be accurately defined.”

It seems then that, although the Supreme Court has definitely decided that boundaries may be fixed by mere consent of the parties, and that such consent will form the basis of the prescription of 10 years, such consent must be more than mere (passive acquiescence in the construction of a fence and must, in fact, be affirmative recognition of the fence as the boundary line.

In Barker vs. Houssiere-Latreille Oil Co., 160 La. 52, 106 So. 672, we find a case quite similar to.that presented here. Plaintiff brought suit to compel the removal of a portion of a brick building which encroached upon his property. The building in question and the encroachment had existed for nearly 20 years. Plaintiff was not aware of the fact that there was an encroachment and, therefore, had passively acquiesced in the maintenance of the building on the line in question. It was contended that this acquiescence formed the basis of a plea of prescription. The court held that the boundary had not been fixed according to law, and that the defendant had not acquired the property by adverse possession of 10 years under survey. Since the Supreme Court in other cases has held that actual survey is not necessary, but that actual consent or active acquiescence may be substituted therefor, we think the result in the Barker case is decisive of the question presented here.

As the Supreme Court said in Frederick vs. Brulard, 6 La. Ann. 382:

“Under that state of facts, the consent alleged, if it was given, was clearly in error of the rights of the owner of the tract now held by the plaintiff, and would consequently fall within the principle on which it has been held more than once, that a mistake of this kind neither destroyed title nor conferred it.”

In Brown vs. Andrews, 1 La. App. 449, the Court of Appeal for the Second Circuit said:

“We do not think the proof sufficient to establish defendants’ claim that any line now shown on the ground has been so recognized as to render unnecessary a judicial fixing.”

The case of Cutrer vs. Dyson, 11 La. App. 472, 123 So. 904, 905, does not appear to us to be applicable for the reason that the court found:

“* * * That the old fence, mentioned by the surveyor, had been at the same place as a separation between the lands of plaintiffs and that of defendant for a number of years, far in excess of thirty.”

The question of whether or not fE'e 30-year prescription would be applicable is not presented in the case before us.

It, therefore, appears to us that the prescription of 10 years, as provided in R. C. C. art. 853, is not applicable unless the. boundary has been fixed by a surveyor and an error has been committed, or unless the boundary has been fixed by the consent of the parties or by their active acquiescence with a realization of the fact that they were actually consenting to a boundary and acquiescing in- the location thereof, and that the mere (passive failure to object to the location of a fence cannot form the basis of a plea of prescription of ten years.

It is, therefore, ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that there now be judgment in favor of plaintiff and against defendant dismissing defendant’s plea of prescription of 10 years, and that plaintiff be recognized as the owner of the strip of ground lying between the survey of Frank H. Waddill dated October 1, 1928, and that of H. C. Brown, surveyor, dated February 9, 1909, and measuring, according to said plan of Frank H. Waddill, 3 feet, 9 inches and 4 lines on the side line nearest to Cohn street of lot “P” and 3 feet, 10 inches on the side line nearest Hickory street of said lot by a width of 22^ feet on a line parallel with the line of the Foucher tract. It is further ordered, adjudged and decreed, that the boundary line between the property of plaintiff and that of defendant be fixed and established ac-. cording to the survey of Frank H. Wad-dill, dated October 1, 1928. It is further ordered that defendant pay all costs.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 11,843
    Orleans
    LANDRETH SEED CO. v. KERLEC SEED CO.
    (February 17, 1930. Opinion and Decree.)

      Montgomery & Montgomery, of New Orleans, attorneys for plaintiff, appellee.
    U. Marinoni, Jr., of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, a New Jersey corporation, brings this suit against defendant, the Kerlec Seed Company, a local partnership composed of Samuel Guerrera, Peter Manguno, and John B. Baldini, for $903.96 alleged to be due as the balance of the purchase price of certain plant seeds. Defendants answered that the seeds were not as represented and claimed in reconvention the sum of $1,464.04 as damages alleged to have been sustained by it because of the breach of plaintiff’s contract. There was judgment against the Kerlec Seed Company alone, and it has appeáled.

In this court plaintiff’s counsel filed a motion setting up that the omission of the names of the individual partners from the judgment was due to an error of the clerk below and asked that the judgment be amended so as to include these parties. On the trial of the case counsel for defendant objected to any consideration of this motion on the ground that it came too late, citing C. P. 890 and Succession of Solis, 10 La. App. 109, 119 So. 768. During argument on this branch of the case counsel abandoned his motion; consequently we are relieved from the necessity of considering it.

It is admitted that the contract covering the sale of the seeds for the purchase price of which this suit is brought, as well as the invoice and catalogue of plaintiff, contain the following disclaimer of liability:

“The D. Landreth Seed Company give no warranty, express or implied, as to description, quality, productiveness, or any other matter of any seeds they send out, and they will not be in any way responsible for the crop. If the purchaser does not accept the goods on these terms, they are at once to be returned.”

It is the contention of defendant that this disclaimer cannot affect plaintiff’s responsibility in the premises because of the implied warranty in all sales that the thing sold is fit for the purposes for which it is purchased. They cite Kelly vs. Lum, 75 Wash. 135, 134 P. 819, 49 L. R. A. (N. S.) 1151; Totten vs. Stevenson, 29 S. D. 71, 135 N. W. 715; Seed Co. vs. Busby, 118 Okl. 255, 247 P. 410; Davis Co. vs. Casso, 5 La. App. 565, and other authorities to this effect.

It appears that defendant ordered “Broad Leaf Flanders” spinach seed and “Lenz” beet seed, and that plaintiff shipped to defendant “Curley Top” spinach seed and “Root” or “Cattle” beet seeds. It is said that the local farmers to whom defendant subsequently sold the seeds bought by it from plaintiff would not use the substituted seeds, for the reason that the quality of spinach and beets produced from those seeds could not be sold in this market. There is much testimony in the record to this effect, including that given by truck farmers, who substantiate defendant’s position in this regard. There is no doubt in our mind that defendant did not get the variety of seed which it purchased. The record indicates that there is no way of telling in advance of germination just what variety of beets or spinach seeds will produce; consequently defendants could not determine on inspection whether they had been supplied with “Broad Leaf Flanders” spinach seeds and “Curley Top” beet seeds or not.

However, the case turns upon the effect to be given the disclaimer of warranty in the contract. This clause, according to the evidence, is in common use in contracts in the seed business though it does not seem to have been considered by the courts in this jurisdiction. Generally speaking, there is no limitation upon parties to a contract, and they are free to enter into any stipulation, covenant, or agreement not inconsistent with public policy which may mutually be agreed upon. We see nothing in this waiver of warranty which would take it out of the general rule. In other jurisdictions it has been the subject of frequent consideration and uniformly approved. For exaniple, in Leonard Seed Co. vs. Crary Canning Co., 147 Wis. 166, 132 N. W. 902 37 L. R. A. (N. S.) 79, Ann. Cas. 1912D, 1077, it was held that:

“No liability in damages exists because seed does not prove to be of the variety specified in the sale, where .the contract provides that neither the seller * * * shall give any warranty, express or implied, as to description, utility, productiveness, or any other matter of any seeds.”

Other cases cited are Bell vs. Mills, 68 App. Div. 531, 74 N. Y. S. 224; Blizzard vs. Growers’ Canning Co., 152 Iowa, 257, 132 N. W. 66; Jacot vs. Grossmann, 115 Va. 90, 78 S. E. 646; Seattle vs. Fujimori, 79 Wash. 123, 139 P. 866; Kibbe vs. Woodruff, 94 Conn. 443, 109 A. 169; Ross vs. Northrup, 156 Wis. 327, 144 N. W. 1124. The authorities relied upon by defendant are not in point, for the reason that they do not discuss disclaimers, but general principles of warranty.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,592
    Orleans
    WHITE v. J. P. FLORIO & CO.
    (January 27, 1930. Opinion and Decree.)

      Edward S. Spiro, of New Orleans, attorney for plaintiff, appellant.
    Gordon Boswell, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit by the wife of Henry Guidry, deceased, claiming compensation for the death of her husband, which occurred on May 10, 1927, at about 10 o’clock p. m. Defendant filed an exception of no cause of action, which was overruled, and the case, following a trial on the merits, was decided in favor of defendant. Plaintiff has appealed.

Defendant is engaged in business as a stevedore, and at the time deceased was killed was loading a cargo of cotton into the hold of the “S. S. Jacques Cartier,” then lying in the Mississippi river at the Third Street Dock in New Orleans. Deceased was employed by defendant as a longshoreman and assisted in placing the cotton in the hold of the vessel. The day he met his death he had been so employed from 7 .o’clock in the morning until 10 o’clock at night, when he concluded to quit work and notified defendant’s foreman of his intention, requesting his “time.” The foreman declined to give him his time immediately, whereupon deceased walked off the vessel onto the dock, and about half an hour later was killed by a dock board policeman.

Plaintiff contends that the policeman was instigated by the defendant’s foreman to kill her husband “if he did not continue at his work,” and that the foreman was present at the time; that her husband was shot while walking away from the policeman without cause or provocation. On the other hand, defendant says that the killing occurred without the knowledge of its foreman or other employees, and was the result of an altercation between the policeman and the deceased, Guidry, who resisted arrest and attacked the policeman with his cotton hook.

As to the exception of -no cause of action, it is argued that the deceased was engaged in a maritime occupation, and that therefore plaintiff’s rights are controlled by the maritime law because within the admiralty and maritime jurisdiction as established by section 2 of- article 3 of the Constitution of the United States. This contention is without merit. In Smith & Son vs. Taylor, 276 U. S. 179, 48 S. Ct. 228, 229, 72 L. Ed. 520, a Case which was considered by the Supreme Court of the United States on writ of error to this court, it was held that a longshoreman who, while standing on a gang-plank, was struck by a sling used in loading a vessel, knocked in the Mississippi river, and drowned, could recover under the state compensation law, because the place where the injury was received was the test of jurisdiction; if upon the land, the state compensation would apply, and if upon the sea, the admiralty jurisdiction, would attach. We quote the following from that decision:

“Deceased was engaged in maritime work under a maritime contract. If the cause of action arose upon the river, the rights of the parties are controlled by maritime law, the case is within the admiralty and maritime jurisdiction, and the application of the Louisiana Compensation Law violated section 2 I article 3. But, if the cause of action arose upon the land, the state law is applicable. The Plymouth, 3 Wall. 20, 33, 18 L. Ed. 125; Atlantic Transport Co. vs. Imbrovek, 234 U. S. 52, 59, 34 S. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157; Southern Pacific Co. vs. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Knickerbocker Ice Co. vs. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; Washington vs. Dawson & Co., 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed. 646.”

On the merits, we find the facts to be as maintained by defendant and as testified to by its witnesses. Guidry was shot by Pennington, the policeman, while resisting arrest, after having attacked Pennington with his cotton hook. It appears that after leaving the ship he loitered about the docks- muttering to himself and occasionally swearing. His employer had nothing to do with the killing, its foreman was not present, and, we are convinced, knew nothing of it until after it had happened. The testimony to the contrary is that given by the witness Hall, who says that Guidry was killed while running away from Pennington, who, with defendant’s foreman, O’Donnell, was in pursuit. There is an admission in the record that two other witnesses, who, like Hall, were fellow employees of the deceased, Guidry, would testify to the same effect. It is probable that Hall was mistaken and that he saw Guidry walking away after he had been shot, which -Pennington, who killed him, says he did, before collapsing. In any event, the evidence' in the record clearly preponderates in defendant’s favor, and we are unable to accept the suggestion of plaintiff’s counsel, that there was a conspiracy between the witnesses for the purpose of defeating the claim of Guidry’s “bereaved widow.” In the first place, • it is quite likely that Guidry’s employer would suffer no financial loss as a result of a judgment awarding compensation in this case, for it is a matter of common knowledge that those who employ large numbers of laborers in hazardous occupations seldom carry the risk themselves. However, that may be, their testimony is unimpeached, and we must accept it, particularly since it was accepted by the judge of the trial court.

It results, therefore, from our finding of fact in this case, that there can be no recovery, since the plaintiff’s death did not occur in the course of or arise out of his employment. The cases cited by plaintiff, Gilyard vs. O’Reilly, 4 La. App. 498; Schexneider vs. General American Tank Car Corp., 5 La. App. 84; Byas vs. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303; and Guderian vs. Sterling Sugar & Ry. Co., Ltd., 151 La. 59, 91 So. 546, are not in point.

The killing of plaintiff by a policeman in self-defense, following an altercation having no relation to defendant’s business, is not covered by the compensation statute.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,661
    Orleans
    HART v. SWIFT & CO., REFINERY
    (February 17, 1930. Opinion and Decree.)
    Woodville & Woodville, of New Orleans, attorneys for plaintiff, appellant.
    Chas. F. Fletchinger, of New ’Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

In this suit, the surviving widow of Hilary Hart sues for compensation for his death, which she alleges resulted from injuries received in the course of his employment as a result of “certain bags falling upon him and knocking him down and causing him to strike his leg on an iron wheelbarrow.” The defendant • denies that the alleged accident occurred or that the cause of Hart’s death was in any way related to his employment. There was judgment below in defendant’s favor, and plaintiff has appealed.

Hart died in the Charity Hospital of this city. The certificate from that institution, which has been offered in evidence, gives the cause of his death as chronic osteomyelitis of tibia, chronic nephritis, and general arteriosclerosis. There is medical testimony in the record to the effect that osteomyelitis is commonly caused by trauma, but there is no evidence, beyond certain statements of the dead man to members of his family and others that he was hurt in the manner set forth in the petition. No claim for compensation was made by Hart prior to his demise, although he lived three months after the alleged accident is said to have occurred, notwithstanding the fact that Hart had previously claimed and received from the defendant compensation for a previous injury, and it may therefore be assumed that he was familiar with his rights under the compensation statute (Act No. 20 of 1914, as amended). The records of the defendant indicate that Hart did not work on September 19, 1927, when he is said to have been injured. The hospital record gives a different account, evidently based upon Hart’s own statements, of the manner in which the accident happened. The explanation of his condition is there given as the result of striking his leg against a plank. Plaintiff has failed to make out a case, and must be denied recovery.

“It is incumbent upon the plaintiff, in a suit under the Workmen’s Compensation Act, to prove the fact of an injury accidentally happening to him in the course of his employment, and a causal connection between such injury and the disability he complains of.” Cordray vs. Standard Oil Co. of Louisiana, 9 La. App. 458.

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


author: •ELLIOTT, J.

text:
    No. 604
    First Circuit
    RIBUNDO v. KEMP
    (March 5, 1930. Opinion and Decree.)
    Ellis, Ellis & Ellis, of Amite, attorneys for pldintiff, appellant.
    A. L. Ponder, of Amite, attorney for defendant, appellee.
   •ELLIOTT, J.

A motortruck belonging to Rosalino Ribundo having been damaged to the extent of $165 in a collision with an automobile alleged by him to belong to Mrs. Pauline Kemp, he brought suit against Mrs. Kemp, an absentee, resident of the state of Mississippi, and for the purpose of giving jurisdiction to the local court, he attached the automobile which he alleges belongs to her, and which had damaged his own automobile in the collision. He alleges that the collision was caused by her wanton disregard of the law governing traffic on the public highways, her gross negligence, reckless driving, etc. The automobile which he alleges belongs to her, and which he contends she was driving at the time of the collision, was attached and held to satisfy his claim for damages.

Miss Pauline Kemp appeared by counsel and alleges that she had never been married and that she was Miss Pauline Kemp. That she had a right under the terms of the Code Practice, as a matter of law, to bond the automobile seized. She was permitted by the court to bond the attachment; the bond was given and the automobile released to her. She then appeared, and for answer to plaintiff’s demand, admitted that she was an absentee, resident of the state of Mississippi; denied responsibility for the accident complained of by plaintiff. Alleged that the automobile in question did not belong to her, but belonged to her mother, and that she was hot driving it at the time of the accident; that it was being driven by her sister and that she was in no way responsible for her sister’s driving, etc.

She further avers that her sister was not to blame for the accident, that it was due to the negligence, fault, and carelessness of the driver of plaintiff’s car.

There was judgment in favor of plaintiff as prayed for, sustaining the attachment.

Miss Kemp has appealed.

The attachment was based on article 240 of the Code of Practice, which authorizes attachments against debtors residing out of the state, and the further provisions of Act 215 of 1920, the claim being for damages.

But Miss Kemp having appeared by counsel and bonded the property, and further appeared by counsel answering plaintiff’s demand, the court was vested with jurisdiction in-personam as far as she was concerned.

The plaintiff urges in his brief that Miss Kemp, having appeared and bonded the automobile, cannot defend the suit by setting up in her answer that she did not own it and that it belonged to some one else; that at the time of the accident it was being driven by her sister, and that she was not responsible for her sister’s driving, etc.; but that she is,estopped by her acts and pleading from urging such defenses; that she must be regarded as the owner of the automobile and responsible for the way it was driven, no one -else having intervened claiming ownership.

In order to have urged estoppel against Miss Kemp on account of her acts and pleadings, plaintiff, following her answer should have filed a plea of estoppel against her. The record contains no plea of estoppel. It is not sufficient to merely urge in argument that she is estopped.

In Heirs of Wood vs. Nicholls, 33 La. Ann. 744, the court said:

“The defendant, urging that plaintiffs cannot assail the legality of the sale because they have ratified it, should have specially pleaded the estoppel and cannot set it up under the general issue. Such defense is analogous to that of payment, release, novation, etc., and must be specially pleaded.”

Thomas vs. Blair, 111 La. 678, 35 So. 811, and Hebert vs. Champagne, 144 La. 659, 81 So. 217, are to the same effect. Not only that, but when defendant tendered parol evidence under -.her ; answer, that she was not the owner nor the driver, nor responsible for the driving, it was received without objection.

But 'supposing plaintiff to have filed a plea of estoppel on the grounds mentioned, an absentee, brought into court by an attachment, may defend by alleging and showing that the court has no jurisdiction and to that end, that the property seized did not belong to him. Schlater vs. Broaddus, 3 Mart. (N. S.) 321; Smith vs. Kemper, 4 Mart. (N. S.) 430; Oliver vs. Gwin, 17 La. 28; Quine vs. Mayes, 2 Rob. 510.

In Pailhes vs. Roux, 14 La. 82, the court held:

“The defendant, whose property is attached, may have the attachment dissolved, after he has bonded the property. He has a right to this, in order to relieve himself ,and his surety from the obligation resulting from the bond.”

The defense was therefore proper, and the decided preponderance of the evidence is to the effect that the automobile seized belongs in fact -to Mrs. Simon Kemp of Hazelhurst, Miss., and at the time of the collision was being driven by Miss Rosaline Kemp, and that Miss Pauline Kemp had nothing to do with the driving. All the substantive proof is to that effect. The judgment appealed from is therefore erroneous and contrary to the law and the evidence.

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

LECHE, J., not participating.


author: ELLIOTT, J.

text:
    No. 574
    First Circuit
    PEOPLE'S BANK & TRUST CO. v. DUPONT
    (March 5, 1930. Opinion and Decree.)
    Ellender & Ellender, of Houma, attorneys for plaintiff, appellee.
    Wurzlow & Watkins, of Houma, attorneys for defendant, appellant.
   ELLIOTT, J.

People’s Bank & Trust Company, in liquidation, acting through the state bank commissioner, claims of Mrs. Esperance Dupont, .widow of Alphonse Du■pont, $1,000 on a note, -with interest and attorney’s fees.

The suit was filed in May, 1927. The note bears date November 16, 1921, and is payable three months after date to the order of the People’s Bank & Trust Company. Credit indorsements appear on its back for $21.25, dated February 16, 1922; another for $15.09 under date of January 2, 1926, with a further statement which reads: “Extended to January. 2nd 1926, secured by two mortgage notes of Joseph L. Ane for $500.00 each, $1,000.00.”

The defense is that the note sued on had long since been paid; that it had never been returned to defendant; that the bank kept it in its portfolio for the .purpose of bolstering up its assets, in violation of its duty, after payment; that the defendant never made the partial payments written on the back of said note, and never paid any interest thereon.

As for the mortgage note of Joseph L. Ane, said in the petition to be held as security, she alleges that she never owned the Ane notes, and could not have pledged them to the plaintiff; that the indorsements which the note appears to bear on its back are fraudulent; that the note, if not paid, is barred by prescription of five years, and this prescription is alternatively pleaded.

The evidence of a witness in favor of the bank is that the note was found in its portfolio with indorsements thereon, and the Joseph L. Ane note attached as security, all as alleged in the petition; that the bank books show no evidence of the note having been paid.

The defendant supports her averments by testimony that the note was paid; that the indorsements on its back were unauthorized and were a forgery; that the Joseph L. Ane notes represented a sale of community property, in which her interest was one-half, the other interest belonging to her children; that the Ane notes were deposited in the bank, but were not pledged to the bank. The testimony of the defendant is corroborated by one of her sons, also by facts and circumstances indicating that this note must have been paid.

The agent of the bank admitted that the bank books showed that the plaintiff had paid to the bank a note of $15,000 since the note sued on had. been executed. It was admitted that the writing appearing on the back of the note was that of the former cashier. The trial judge states in his reasons for judgment that this former cashier had been charged with serious irregularities in his administration of the affairs of the bank, convicted of embezzlement, and was, at the time, serving sentence on said account.

The lower court was inclined to the belief that the note sued on had been paid, but held that, if it had not been, it was prescribed, and sustained the plea of prescription.

¥e are satisfied that the note sued on had been paid. We agree with the district judge, however, that, if it was not paid, the indorsements on its back were unauthorized and fraudulent, and the note prescribed.

The plaintiff’s demand was properly rejected.

Judgment affirmed; plaintiff and appellant to pay the cost in both courts.

LECHE, J., not participating.


text:
    No. 589
    First Circuit
    FUSSELL v. BURRIS BROS., LTD. ET AL.
    (March 5, 1930. Opinion and Decree.)
    M. I. Varnado,' of Franklinton,' attorney for plaintiff, appellee.
    Ott & Johnson, of Franklinton, attorneys for defendant, appellant.
   ELLIOTT, J.

Mrs. Ella K. Fussell, wife of John M. Fussell, claims to be the owner for a valuable consideration of a tract of land containing 42.65 acres, described as being the same property acquired by her from Alcee D. Fussell on the 12th of October, 1928, as per deed on record in Conveyance Book 53, p. 147.

She alleges that notwithstanding her ownership of said property, Burris Bros., Limited, has caused the seizure thereof by the sheriff in the matter of Burris Bros., Limited vs. Alcee Fussell, No. 5143, and that unless they are enjoined and restrained by an order from the court, they will advertise and sell said property to her irreparable injury.

She further alleges ownership of a note for $600 secured by a chattel mortgage on a mule, horse, colt, ten head of stock cattle, and 20 head of hogs; but we understand from the record, that all claim on her part for an injunction, insofar as concerns said movable property, was abandoned in the lower court, and that there is no contest concerning same on this appeal. We therefore do not consider and express no opinion on the subject of her alleged chattel mortgage on this movable property, but confine ourselves entirely to the consideration of her title to said land.

The petition for injunction was filed on May 13, 1929. Service of the writ was waived by the opposite parties.

In getting out the injunction the plaintiff took no account of Act 29 of 1924, section 1, which provides:

“That hereafter no writ of injunction shall be issued without notice, given as hereinafter provided, to the opposite party or parties to be affected thereby, and without opportunity given for hearing of the opposite party.”

Her petition contains no request that Burris Bros., Limited, and the sheriff be notified.to show cause, as required by said act. The clerk of court in granting the order did not order that notice be given, and none was given; but an injunction bond was filed and a writ issued staying the sale.

On May 15, 1929, Burris Bros., Limited, ruled her into court to show cause why the writ of injunction should not be decreed to be null and void, for the reason that previous notice thereof had not been given them as required by law. Mrs. Fussell on the same day filed an amended and supplemental petition in which she prayed that notice of the injunction issue to Burris Bros., Limited, and to said sheriff calling on them to show cause, as the law directs. Burris Bros., Limited, moved to dismiss her amended and supplemental petition, but the minutes of the court do not show any action by the court on this motion. The minutes on the same day show that defendant’s rule on her to show cause why the writ should not be decreed to be null and void was acted on by the court and decreed to be illegal and null and void. But the record contains no judgment on the subject other than this minute entry.

Plaintiff’s original and amended and supplemental petition was then answered by defendant Burris Bros., Limited. In their answer they deny that she is the owner of the real estate described in her petition, and allege that the title which she sets up thereto is a pure simulation.

On October 24, 1929, defendant filed an exception to plaintiff’s original and amended and supplemental petition on the ground that the same disclosed no right or cause of action, which was overruled, and on the same day the trial of the case on the merits was taken up, resulting in a judgment in favor of the plaintiff, making absolute the injunction which she had sued out.

Defendant has appealed.

As for the exception of no right or cause of action filed by Burris Bros., Limited, the title which plaintiff sets up contains the following statement:

“It is understood that the vendee herein is purchasing with her own separate funds and is to be her separate property, and is not being purchased by her for the community, but for her own separate use and benefit.”

Under Act 132 of 1926, Mrs. Fussell has standing in court to claim and defend her right to property so purchased. The exception was properly overruled.

The lower court, it seems, after holding that the injunction sued out was null and void, held that the nullity had been remedied by the amended and supplemental petition. The amended and supplemental petition prayed for notice, and notice was then given. The plaintiff did not sue out a new writ; the one issued was not merely irregular or informal, it was an absolute and incurable nullity. But we think it well to place our judgment on the merits of the ease.

The defendant urged, against the issuance of the injunction, that the title in question was a pure simulation, and we agree with the defendant that such was the case.

The act in question is under private signature. The plaintiff in her petition for injunction, does not allege delivery of the property to her under said act. The evidence shows that none took place.

Alcee D. Fussell, defendant’s judgment debtor and plaintiff’s pretended vendor, is her son. He continued to reside on the property after, just as he did before, the sale. Mrs. Fussell says he paid her rent; but all her testimony, as well as that of Alcee D. Fussell, on the question of rent, and about the consideration for this sale, the money she had loaned to him which she claims he repaid by making the title over to her, is incredible. Acting on their answers to the questions propounded to them by the defendant, we are satisfied that the title is a pure simulation. That Alcee D. Fussell has not in fact parted with his title to this property, but that he merely placed the title in his mother’s name thinking to shield it from the seizure of Burris Bros., Limited. Such was also the purpose of his mother, the plaintiff. The intent to sell and buy and the consideration was not present in the execution of the act. Such being the case, the injunction must be annulled as having been erroneously granted, and the registry of the act spread on the conveyance record must be canceled.

For these reasons the judgment appealed from herein is annulled, avoided, and set aside. The act from Alcee D. Fussell to Mrs. Ella K. Fussell, set up in her petition, is decreed to be a simulation, and as such mill and void. The injunction granted by the lower court based on said simulated sale is dissolved, and it is further ordered that the registry of said act in the conveyance records be canceled.

Plaintiff and appellee to pay the costs in both courts.

LECHE, J., not participating.


author: LECHE, J.

text:
    No. 525
    First Circuit
    KARP v. POWERS ET AL.
    (December 3, 1929. Opinion and Decree.)
    (December 30, 1929. Rehearing Refused.)

      Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellant.
    Paul G. Borron, of Baton Rouge, attorney for defendant, appellee.
   LECHE, J.

Plaintiff was traveling as passenger in an automobile bus belonging to defendant, going along the Jefferson Highway from Port Allen, in the parish of West Baton Rouge, to Maringouin, in the parish of Iberville. When about two or three miles from Rosedale, a village on said route, the bus skidded into a side ditch and slipped sideways to an inclined position, the right front and rear wheels going to the bottom of the ditch. Another passenger, a very corpulent gentleman, who was sitting on the left or opposite side of the bus, fell on plaintiff, causing a fracture of plaintiff’s forearm.

Plaintiff alleges that the accident was the result of fast and reckless driving by the chauffeur, over a slippery road, the improper condition of the mechanism of the _ bus, and its negligent operation.

On the trial of the case it was shown by the evidence that, at the time the bus skidded into the ditch, it was being driven at a speed of 5 or 6 miles an hour, and no attempt was made by plaintiff to support the allegation that the mechanism of. the bus was in a defective condition. In argument, plaintiff urges that defendant’s chauffeur should have warned the passengers of the impending danger, before the bus skidded into the ditch.

The Jefferson Highway is under the control of the state highway commission, and at the time of the accident, in 1923, there was very little gravel on that part of it where the accident occurred. The road had recently been scraped with a road machine and the dirt from the sides dragged by the machine formed two ridges near the center of the road. Defendant’s chauffeur was able to guide the bus in the center of the road between the ridges until he reached a bridge, where the two ridges of dirt had been brought so close to one another that he was compelled to drive to the right and near the ditch bank. It had rained just prior to. the accident, and the bus slipped or skidded into the ditch.

Of course, the chauffeur saw that there was danger. The fact that he approached this situation, and this condition of the road, so slowly and carefully, shows that he was apprehensive of danger. But it is unreasonable to infer from this that he should have known the vehicle would slip into the ditch, or that he should have warned his passengers of the danger. Warning would not have availed him or his passengers. The danger was visible to them, as well as to himself. The well-known rule that a carrier must exercise the greatest caution in safely receiving, transporting, and discharging its passengers applies with equal force to carriers by bus as to carriers by railroad.

But it must be borne in mind that a railroad company is generally re sponsible for the condition of the tracks over which it runs its trains, while automobile carriers have no control of the public highways over which they transport their passengers. The courts are justified in taking judicial cognizance of the fact that travelers in automobiles must perforce assume the” risks incident to slippery roads and loose gravel along the highways, and that safety requires the exercise of great prudence and caution. That the chauffeur who operated the bus in this case acted prudently and cautiously seems to be abundantly (proved. The accident was brought about by conditions beyond his control.

We therefore believe that the judgment of the trial court, refusing plaintiff’s demand for damages, is in accordance with the facts and the law of the case; that it should be affirmed; and it is so ordered.


author: MOUTON, J.

text:
    No. 512
    First Circuit
    STONE v. BATON ROUGE YELLOW CAB COMPANY
    (December 3, 1929. Opinion and Decree.)
    (December 30, 1929. Rehearing Refused.)
    (February 3, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    Borron & Johnson, of Baton Rouge, attorneys for defendant, appellant.
   MOUTON, J.

About 11:30 at night, March 18, 1928, plaintiff was run over by a taxicab at the .intersection of Church and Main streets in the city of Baton Rouge. Joe Miledo, an employee of defendant company, was driving the cab at the time.

Suit was instituted by plaintiff for $7500 against defendant; judgment was rendered in his favor for $2,000, from which defendant appeals.

Main street runs east to west through the city of Baton Rouge, and Church street north and south. Jerome Bowling, witness for plaintiff, did n.ot see when plaintiff was struck by the taxicab, but heard the crash which was caused by the impact. He says he was coming from Third street on the south side banquette of Main street, and was going east, intending to cross Church street at its intersection with Main street. As he came to the corner of Church street, or just before he got there, he says he noticed a figure walking ahead of him some 30 or 40 feet. When he got to the corner, he says, “this figure was past middle-ways of the street.” His testimony is that as he stepped off from the sidewalk to go across Church street the cab “just missed” him; that he jumped back suddenly to the curbing of the sidewalk to avoid injury. He says he had looked to his left and north on Church street, and had not seen a taxicab nor heard the approach of a taxicab. As he jumped to the sidewalk or curbstone, and almost instantly, he heard the crash of the taxi with some object; that he then saw Stone, plaintiff, some 20 or 30 feet ahead of the taxicab trying to get up from where he had fallen. He tried a second time to get up, says the witness, was then taken into the cab Miledo was driving, and driven to the Baton Rouge General Hospital.

Plaintiff, at the time, was going east on Main street to his home. He was holding a piece of paper over his hat to protect it from dampness, we presume, as he says, a “sort of a mist ■ was falling.” When he came up to the corner of Main street, which was “brightly lighted,” he says that he looked up both streets and saw no pedestrians in front of him on Main street nor vehicles of any kind, nor any up Church street. He then says: “So I walked on out into Church street, and I remember being as far as the middle of the street. That is all I remember about that walk.” He then testifies he was struck by the cab when he was around the middle of Church street.

It seems that plaintiff first sued another corporation for the damages claimed herein. The original case was tried in December, 1928. It was brought out in the stenographic notes taken at that trial that Bowling, the witness referred to herein-above, had fixed the distance at 10 feet at which plaintiff was ahead of the cab Miledo was driving. In the ©resent case Bowling fixed the distance between 25 and 30 feet. Such a discrepancy as that in the testimony of a witness, in computing the approximate distance which may have actually existed at that time between the taxi and plaintiff, is not of such a character as to affect either his credibility or reliability. There may have been some doubt in the mind of the witness as to the distance plaintiff was ahead of him or of the taxicab at or about the time of the accident. Bowling says in his evidence that as he stepped into Church street to go across, the figure which he had noticed going in front of him (referring to plaintiff) was, to use his own words, “passed middle-ways of the street,” meaning Church street. It was then that plaintiff was struck, according to Bowling’s testimony. >

Plaintiff says he walked into Church street to go across, and remembers “being as far as the middle of the street.” This he says is all that he remembered.

Joe Miledo, the taxi driver, says plaintiff had made two or three steps in the street when he struck him. Hence, on this point as to where plaintiff was at the time of the collision, we have the evidence of the plaintiff and of Bowling, then a total stranger to plaintiff and entirely disinterested, as against that of Miledo, the taxi driver. The preponderance of the evidence therefore clearly shows that plaintiff was then in the middle of that street which, the record shows, was brightly illuminated at its intersection with Main street. In connection herewith it may be appropriate to state that the headlights of the taxi were burning brightly; also, that there is nothing in the testimony of Miledo to show that his vision was affected by the illumination at the intersection of these streets or that his vision was obscured by rain or moisture on the windshield of the taxi.

Miledo claims that he was driving south on Church street, and was not coming from the east through Main street. Bowling and plaintiff both say that as they stepped into Church street, they looked up into that street, and that there were no taxicabs or vehicles of any kind coming southward thereon.

Again we have two witnesses contradicting the testimony of the driver of the taxi on this proposition.' Whether Miledo came from Church street or from Main street is really unimportant, as he could and should have seen plaintiff then approximately in the middle of Church street, shown by the record to be over 40 feet wide at the intersection of these streets. As such was the situation, he could have passed on either side of the plaintiff with perfect safety. The accident was doubtless the result of reckless driving on the part of Miledo, or of inattention, carelessness, or negligence.

Counsel for defendant contends that if defendant was at fault, plaintiff was likewise at fault, and cannot recover. We have so held in many decisions and so has every appellate court in this state. Here, however, the record shows that defendant had a perfect right to go across Church street under the existing conditions, was therefore not at fault, and did not in any way contribute to the accident. The principle invoked by plaintiff does not apply.

Counsel also refers to cases of emergencies creating unexpected hazards which could not reasonably be anticipated. There was no emergency in this case creating any unexpected hazards. The driver could naturally expect that pedestrians would cross the street, and should have been on his guard to avoid accidents that might occur. If he had exercised ordinary care, he would unquestionably have seen plaintiff in time to avert the collision, and can find no refuge in the plea of emergency or unexpected hazards.

DAMAGES

No doubt, plaintiff was severely shocked by the collision, was temporarily dazed, and perhaps unconscious as a result. The next morning, however, as appears from the testimony of a physician and Kelly, a friend rooming next to him', he apparently had recovered his faculties, mental, if not physical. He' was in bed for a couple of weeks, and suffered pains at times, which, he says he had not before experienced.

Prom the viewpoint of a layman, it is difficult to say if at the time of the trial his ailments were due directly to the injury he had suffered or to some other cause or causes. Unfortunately this uncertainty was not cleared up by the testimony of the learned members of the medical fraternity who testified in the case. The physicians also disagreed as to the permanent character of the injury; some being inclined to the opinion that plaintiff’s injuries were permanent, while others entertained contrary views.

When such divergence of opinion exists between medical experts, it is rather difficult for judges, ignorant of medical science, to arrive at a definite conclusion on issues of this nature.-

After a careful consideration of the evidence in the record, we have, however, reached the conclusion that the injury inflicted on plaintiff is not of a (permanent character. He is doubtless entitled to damages for the sufferings he has undergone, but much as we dislike to interfere with the assessment of damages awarded by the trial judge, who is invested with much discretion on such questions, we think that the sum of $2,000 allowed below is excessive and should be reduced to $1,200, and as thus amended, affirmed; and it is so ordered, plaintiff, appellee, to be taxed with the cost of appeal, those of the lower court to he paid by defendant.


text:
    No. 582
    First Circuit
    BLAKENSHIP v. MEADOR
    (March 5, 1930. Opinion and Decree.)
    B. R. Miller, of Baton Rouge, and J. Y. Sanders, Jr., of Baton Rouge, attorneys for plaintiff, appellant.
    F. J. Whitehead, of Port Allen, and C. C. Byrd, of Baton Rouge, attorneys for defendant, appellee.
   ELLIOTT, J.

An automobile belonging to Macon 0. Blakenship was severely damaged while being driven southward by him on the Jefferson Highway in the parish of Ascension. Blakenship was accompanied by a young lady and a young man; the three being on their way to New Orleans on a pleasure trip. The accident occurred at about 8:30 p. m. on December 29, 1928.

The plaintiff alleges that he was driving cautiously on the extreme right-hand side of the road in the direction he was going, allowing ample space for the approaching automobile belonging to defendant, which he saw coming toward him. That defendant’s automobile swerved into him, struck, and damaged his car to the extent of $475, which amount he claims against defendant.

. Defendant Meador denies that the plaintiff was driving cautiously and on the side of the road on which he belonged in the direction he was going, and alleges that he himself was driving carefully, going north and on the right-hand side of the road in the direction he was going. That plaintiff’s car, driven at great speed, swerved into him and struck him, damaging his automobile to the extent of $368, which amount he claims of the plaintiff in reconvention.

According to the testimony of the plaintiff and his two companions, he was driving on the right-hand side of the road in the direction he was going. One of his companions estimated his speed at about 35 or 40 miles an hour, but marks on the ground and other evidence indicates that plaintiff was in fact near the middle of the road at the time of the impact; and in regard to his speed, judging by the violence of the impact, it must have been great, because the young man riding with him was, as a result, pitched forward more than 25 feet. And although the front wheel on the right-hand side of plaintiff’s car was completely knocked away, the car went forward on three wheels for 40 feet or more. The collision took place in a curve and it is evident that plaintiff was going too fast for the 'curve he was making.

Defendant, a middle-aged man, on his way home at Port Allen, was driving northward, he claims, at a moderate speed and on the right-hand side of the road in the direction he was going. He testifies that plaintiff swerved into and struck him, damaging his car to the extent stated.

The evidence indicates that the defendant was nearer the middle of the road than he thought he was, at the time of the impact. If plaintiff’s car was not nearer the middle of the road than, say eight or ten inches, and defendant’s car was at the same time near the middle, but not over it, there could have been no collision. But there was a terrific impact. It is certain that one or the other, or both of them, were driving in the middle of the road; and the evidence is such that it cannot be satisfactorily determined whether it was one or both of them. It cannot be determined from the evidence which one was on the wrong side of the road, or if both of them were driving in the middle of the road.

The district judge found it well to reject the demand of both. We have come to the conclusion 'that such was the proper judgment to render in the case.

Judgment affirmed; plaintiff and appellant to pay the cost in both courts.

LECHE, J., not participating.


text:
    No. 541
    First Circuit
    ROMANO v. LLANO DEL RIO CO. OF NEVADA
    (December 30, 1929. Opinion and Decree.)
    (March 5, 1930. Rehearing Refused.)
    (March 31, 1930. Writ of Certiorari and Review Denied by Supreme Gojirt.)
    P. L. Ferguson, of Leesville, attorney for plaintiff, appellee. •
    J. I. Foster, of Leesville, attorney for defendant, appellant.
   ELLIOTT, J.

On February 8, 1927, Frank Romano and Mary, his wife, became members of Llano DeT Rio Company of Nevada, paying $1,400 in cash for the purpose. They signed at the same time, with the Llano Del Rio Company, an agreement of employment, the first stipulation in which was that Romano and wife agreed to work for Llano Del Rio Company for a period of one year, periods of sickness, etc., excepted; the Llano Del Rio Company compensation to be in such sums as may be determined on from time to time.

The second stipulation was that the said Llano Del Rio Company agreed to employ Romano and wife for one year from date of the agreement, paying such sums as might be agreed on from time to time;-the first party to have full power at its discretion to determine the character and kind of employment, and to discharge the second party if it saw fit.

The agreement of employment contains a number of other stipulations. It concludes with the following:

“This is the only contract now existing between said parties relative to the subject matter of this instrument, and the said first party shall not be responsible for representations made, nor agreements not incorporated herein or attached hereto, unless by order of the Board of Directors of the Llano Del Rio Co., of Nevada.”

The receipt for the $1,400 states that it is for membership in said company. The agreement of employment was attached to and made part of plaintiff’s petition.

The plaintiff sues Llano Del Rio Company of Nevada, to recover the amount paid in by him. He alleges in his petition that he paid in the $1,400 to the Llano Del Rio Company for the purpose of purchasing stock in said corporation, with the specific understanding and agreement that, should your petitioner desire, he could at any time within twelve months from the receipt of his money demand a return thereof, and that the same would be returned to him.

The defendant denies that it is indebted to the plaintiff for the amount named, but admits that he deposited with it said amount, and avers, as its reason for not being indebted to him therefor and bound to return same, “that the defendant entered into a contract to perform continuous labor during the twelve months period, for the support of himself and family, upon the performance of which he, in that event, would be entitled to the return of his money at the end of twelve months. But that said plaintiff has violated his contract, in that he has refused to work, and is now indebted to defendant, as will hereinafter appear.” It then brings forward a demand in reconvention against plaintiff for $2,096.94, based on doctor’s bills for himself and daughter, merchandise account at the store, milk, meals for himself and family, house rent, lights, water, fuel, and credits plaintiff with $377 on account of labor by himself and wife.

The defendant filed an amended and supplemental answer in which the amount of its demand in reconvention was increased. The amended demand does not make any change in the original answer that requires special notice.

The defendant filed in this court an exception that plaintiff’s petition and documents attached failed to set forth any cause or right of action. This exception is urged in its brief. The argument is that plaintiff has not in his petition alleged compliance on his part with stipulations in the agreement considered by defendant to be essential to his right to recover the $1,400.

The answer of the defendant covers this ground, coupled with the evidence introduced on the trial without objection, leaving no ground for its exception. The exception is overruled.

On the merits of the case, the defendant carries the burden of proving its defenses against plaintiff’s demand for the return of his money. The agreement of employment is silent on this subject.

The evidence on the subject which we believe harmonizes with the intentions of the parties at the time the agreement was entered into does not support the defense. Accepting and acting on the testimony of the plaintiff as to the understanding that existed between the parties when he put in his $1,400, he has the right to withdraw and to have his money returned to him.

The agreement of employment stipulates that plaintiff was to be paid compensation for his labor from time to time, based on an agreement between the parties.

Defendant’s witness admits that no agreement on this subject was ever entered into.

The amount credited to plaintiff by defendant in its demand in reconvention was fixed by defendant for the purpose of this defense. It is an arbitrary statement, done without consulting or the consent of the plaintiff.

The plaintiff was sick part of the time; his family required some medical attention; but the evidence satisfies us that the parties, in entering into the agreement in question, had in mind to work and live in a socialistic and community way. It was their plan that members were to perform and receive services in common with each other, matters for which defendant would now hold a reckoning and charge plaintiff.

Defendant had the right to terminate the agreement at any time. Defendant did not choose to terminate it. The plaintiff had the same right and has acted.

The lower court held that he was entitled to receive back from defendant the $1,400 paid into it.

The judgment is correct.

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


text:
    No. 576
    First Circuit
    MUNCH v. WALKER
    (March 5, 1930. Opinion and Decree.)

      Harvey Peltier, of Thibodaux, attorney for plaintiff, appellant.
    J. A. O. Coignet, of Thibodaux, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff operates a general auto repair shop in the town of Thibodaux, where he is engaged in the business of repairing automobiles; also in selling of automobile parts and accessories.

He alleges in the first article of his petition that defendant owes him $799.57, with legal interest for this, to-wit, for repairs to different cars, furnishing accessories, parts, and materials for automobiles in the sum of $489.57; also for rent and the storage by defendant of autos in his place of business in the sum of $360, these two items making up the amount of $799.57, for which he prays for judgment against defendant, subject to a credit of $50.

The defendant interposed the plea of prescription of three years to that part of the demand in which plaintiff claims $360 for storage of the cars. The claim for that amount is not pressed on this appeal, and will be taken as being abandoned.

The item of $489.57 for materials, repairs, and accessories is set out in article 3 of plaintiff’s petition.

In article 8 of his original petition, plaintiff alleges that he was paid on August 15, 1924, $50 on account, by defendant, who he avers promised at the time to pay the balance as soon as possible. In article 3 of a supplemental petition, plaintiff avers that this amount of $50, paid by defendant, had been credited on the account for accessories and repairs. Obviously, this averment had reference to the item of $489.57, which plaintiff claimed in article 3 of his petition for materials, repairs, and accessories.

Defendant in his answer, article 7, says:

“In answering article 8 of the original petition and article 3' of the amended and supplemental petition, respondent admits that under date of August 15, 1924, he paid to plaintiff fifty dollars ($50.00), but denies that he at that time or at any other time, promised to pay the balance of the account, respondent now averring that it was understood between him and plaintiff that plaintiff’s account was being compensated by services,” etc.

The 'only denial in the foregoing allegation of defendant of what plaintiff had alleged in article 8 of his amended petition, was that part of article 8, where plaintiff had averred that, when defendant paid the $50, he had at the same time promised to pay the balance. The alleged fact that this amount had been paid on the item of $489.57 of the account was clearly admitted in article 7 of defendant’s answer, which also carried with it an admission of that debt resulting as a legal consequence from the plea of compensation, which is also urged in article 7 of the defendant’s answer.

In article 9 of defendant’s answer, he claims in reconvention over $1,000 from plaintiff for various alleged services rendered him; also pleads part of the amount claimed in reconvention in compensation and extinguishment of the $489.57 demanded by plaintiff, and referring thereto as follows:

“Less the sum of fifty dollars said amount representing plaintiff’s claim for accessories, parts and materials and automobile repairs.”

The averment thus made* is clearly and unmistakably directed against the claim of $489.57 asserted by plaintiff in article 3 of his original petition, referred to in article 8, and also in article 3 of his supplemental petition, where it is additionally alleged by plaintiff that he applied the $50 paid by defendant to his account. The claim of $489.57 sued for, as a portion of the sum of $799.57 originally demanded, was therefore admitted by the plea in compensation, Ashley vs. Sholars, 22 La. Ann. 442; Diggs, Hobson & Co. vs. Parish, 18 La. 6; Normand vs. Edwards, 23 La. Ann. 142, and also by the plea of payment of $50 on account.

Although defendant had in his answer admitted the correctness of the claim of plaintiff for the amount above referred to, plaintiff, as a witness, added more proof to defendant’s judicial admissions, by testifying to the fact that defendant had actually paid these $50 on the $489.57 claimed by him for these materials, accessories, and automobile repairs. That the payment was so intended is denied by defendant, but, in view of the admissions of defendant, his liability therefor must be held to have been clearly established.

Defendant claimed in reconvention $446 from plaintiff for carrying him almost daily in one of his service cars from plaintiff’s home to his place of business in the town of Thibodaux during a period of three years; also, the sum of $603.75 for taking plaintiff to New Orleans in his truck at various times, and for car service rendered plaintiff as a passenger from Thibodaux to Shriever on many occasions — ■ making a total for the two items of $1,049.75.

The record shows that plaintiff and defendant, at the time these mutual accounts were created, were on extremely friendly terms. Up to the time that these friendly relations were broken off there can be no doubt services were rendered one to the other by these litigants without either having the intention, at the time, of charging for such services. The record shows, as we read it, that plaintiff never intended to charge defendant for the storage of his cars in plaintiff’s place of business, and which plaintiff practically admits in his testimony to have been the case. It appears with equal certainty from the evidence that defendant never intended to charge plaintiff for the car service to and from the latter’s home to his .business establishment in Thibodaux, nor for passenger accommodations to Shriever, or for the occasional trips to New Orleans in defendant’s truck.

The district judge took that view of the case, concluded that neither of these litigants had ever intended to charge the other, and dismissed the claim of the plaintiff and defendant’s reconventional de mand.

The amount for which defendant reconvenes amounts to $1,049.75, which exceeds by $250.18 the whole amount asserted by plaintiff. Counsel for defendant is, however, asking for the affirmance of the judgment which simply dismisses both parties, and thus denies the sum claimed by defendant in excess of the amount for which plaintiff sues. This shows that counsel has little confidence in the correctness of the demand for which his client reconvenes; otherwise he would be asking for the difference in his. favor between the two demands, which was ig.nored or denied below.

While it may be true in a large measure that there was a mutual understanding between plaintiff and defendant for the free exchange of services, we do not think it is logical or reasonaDle to believe that plaintiff was also repairing defendant’s cars, furnishing materials, parts, and accessories free of charge to defendant. Charges of that nature cannot be characterized as mere services rendered by a friend to another, but necessarily imply an expenditure of money in the furnishing of parts, materials, and accessories, and for the payment of labor in the repairs of automobiles. Plaintiff is positive that he was charging defendant for all of that, and we feel no hesitancy in believing that he was, as it is not' to be supposed defendant was getting these benefits free' of cost.

We believe that defendant knew that plaintiff was charging for these materials, accessories, repairs, etc., which accounts for the admissions in his answer to whic.1 wé have hereinabove referred.' Plaintiff, we find, is clearly entitled to recover the sum of $489.57, with legal interest from judicial demand.

It is therefore ordered, adjudged, and decreed that the part of the judgment appealed from rejecting plaintiff’s demand be and is hereby avoided, annulled, and reversed; and it is further ordered and decreed that plaintiff have judgment against defendant in the sum of $489.57, with 5 per cent, per annum interest from judicial demand, that in other respects the judgment be affirmed, defendant to pay all costs of court.

LECHE, J., not participating.


text:
    No. 571
    First Circuit
    JACCUZZO v. MYRTLE GROVE SUGARS, INC.
    (March 5, 1930. Opinion and Decree.)

      Ellender & Ellender, of Houma, attorneys for plaintiff, appellant.
    Harris Gagne, of Houma, attorney for defendant, appellee.
   ELLIOTT, J.

The controversy in this case is, whether Joseph Jaccuzzo made a sale of his cane to Myrtle Grove Sugars, Inc., as alleged by him, and according to which defendant owes him a balance of $900.03, or was plaintiff’s cane delivered by him to Myrtle Grove Sugars, Inc., to be ground and converted into sugar, syrup, molasses, etc., under an agreement contended for by the defendant.

The defendant denied having purchased plaintiff’s cane, and alleges, and its president and manager, Dr. C. G. Cole, testifies, that plaintiff’s cane had been subjected to several freezes, its sucrose value was uncertain. That it was therefore received from the plaintiff and manufactured under an agreement whereby the plaintiff was to receive the value which the condition of the juice would justify, as determined by the results obtained in manufacture. That while plaintiff’s cane was being received and manufactured the amount of $1,750 was tentatively paid him, with the understanding that the amount was subject to future adjustment. According to defendant’s figures on a complete adjustment, plaintiff was overpaid to the extent of $250.

The burden of proof was on the plaintiff to establish his demand.

The testimony of Dr. Cole, president, that he did not buy plaintiff’s cane, but received it from the plaintiff and manufactured it into sugar and molasses, etc., under an agreement whereby plaintiff was to receive the value of it less the cost of manufacture, is supported by the preponderance of the testimony. The evidence as a whole does not warrant a judgment of any kind in favor of the plaintiff. Plaintiff’s demand was rejected in the ' lower court.

The judgment appealed from is correct.

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

LECHE, J., not participating.


author: LEBLANC, J.

text:
    No. 546
    First Circuit
    HENDERSON v. MAYER
    (March 5, 1930. Opinion and Decree.)

      F. E. Powell, of DeRidder, attorney for plaintiff, appellee.
    R. J. O’Neal, of Shreveport, attorney for defendant, appellant.
   LEBLANC, J.

This appeal is taken from á judgment in which a tax sale of two pieces of property in the parish of Beauregard was annulled for want of notice of delinquency.

A plea of three years’ prescription based on the allegations contained in a supplemental petition filed more than three years after the alleged tax sale was properly overruled in the lower court. The amended petition was merely an amplification of the allegations of one of the articles of the original petition and did not have the effect of changing any or presenting new issues in the case.

The appellant complains of the overruling by the lower court of a motion for a new trial based on the ground of newly discovered evidence. It is generally held that the granting of a motion for a new trial is a matter largely in the discretion of the trial court, whose ruling will not be disturbed unless it appear to be clearly erroneous, which is not the case here.

On the merits, the case was presented on an agreed statement of facts, from which it appears that Joseph H. Henderson, the tax debtor, .had been up to the summer of the year 1924, and for many years previous a resident of the town of Merryville, in the parish of Beauregard. The property involved in this suit was assessed in his name on the tax roll of the parish for the year 1924, and the name “Merryville” appeared following his name on the tax roll. In the summer of 1924, he moved with his family to Beaumont, Tex., where he went to reside permanently.

About March 30, 1925, the deputy sheriff of the parish, in charge of the collection of taxes and the sale of properties for unpaid taxes, mailed registered notices of delinquency to each tax debtor, in what it seems was the customary manner prevailing in his office. The custom was to make a list of all notices sent, in duplicate. The list contained the name and address of each person to whom a notice was addressed. The postmaster at De Ridder, La., the mailing post office, then placed a registry number opposite each name on both the original and duplicate lists, retained the duplicate, and returned the original to the sheriff’s office. From such list it appears a notice had been addressed to Joe Henderson at Merryville, La. No request was made for a return receipt and none was ever received. The addresses were all taken from the tax roll and no effort was ever made to find out if there had been any changes.

The records of the post office at De Ridder contained the duplicate list of notices received from the sheriff’s office on March 80, 1925, from which it appears that a notice under registry No. P435 was addressed to Joe. Henderson at Merryville, La. As no registry records are kept in that office longer than three years, no further information concerning the handling of the notice was obtainable from that source.

The Merryville post office records indicate that registry item No. P435 from De Ridder was received March 31, 1925 and forwarded to Beaumont, Tex., April 1, 1925. Neither the addressee’s name nor any street address either in Merryville or Beaumont appear in the records of that post office.

The records of the Beaumont post office for April, 1925, do not show the receipt of the item designated as registry No. P435 from De Ridder, La., addressed to Joe. Henderson, nor that any registered item from Merryville, La., post office addressed to Joe. Henderson was ever received by that office.

In the agreed statement of fact, Joseph Henderson is made to state that he has never received any notice from the sheriff of Beauregard parish in 1925 of unpaid taxes for the year 1924 on his property in that parish,.

It can well be said, we believe, that notice to the delinquent tax debtor is the very basis of every tax title. It is a constitutional right of which the taxpayer cannot be deprived before steps are taken to dispossess him of his property. Under the same provision of the Constitution which grants him that right, the Legislature is charged with the duty of providing the manner in which the notice shall be given.

We find the method adopted in Act No. 170 of 1898, from whose provisions we quote the following:

“Sec. 50. Be it further enacted, etc., That on the second day of January, 1899, and each subsequent year, or as soon thereafter as possible, the tax collector or sheriff shall address to each tax-payer who has not paid all the taxes * * * assessed to him on immovable property, written or printed notice in the manner provided for in Section 51 that his taxes on immovable property must be paid within twenty days after the service or mailing of said notice. * * * ”

“Sec. 51. Be it further enacted, etc., That the Tax Collector or sheriff shall either deliver to each tax-payer in person or,shall leave at his residence or place of business in the parish of Orleans one' of said notices and a return .or statement 'in writing of the mode of such service shall be made by the officer serving the same and be filed in the office of the tax collector or' sheriff and shall be received by the courts as prima facie evidence of notice. In the country parishes this notice shall be sent by registered mail. * * * ”

■ Section 51 was amended by the Legislature by Act No. 235 of 1928, but of course as the tax sale in this case took place in 1925, we have to consider the law as it existed prior to the amendment.

The Legislature must have realized that it was carrying out a mandate of the Constitution in a very important matter; and it prescribed a method which embodied formalities commensurate with its importance. For the taxpayer in Orleans parish it provided a manner of service equally as effective as in the case of service of citation. If for the other parishes it had not provided one equally as effective, the act would be open to serious attack as denying to the citizens of one part of the state the same protection afforded to those of another part, which of course would be violative of the Constitution of the United States.

It is worthy of nóte here that the amendment to section 51 by Act No. 235 of 1928 provides for a notice by registered’ mail in the parish of Orleans as well as in the other parishes. It may be that the Legislature had in mind the same idea which is here presented.

But we do not think that the Legislature intended to, nor did it, make any such discrimination between the citizens of the state in the original act, and if, at that time, it adopted a less cumbersome and expensive method of service of notice in the case of delinquent tax debtors in the country parishes, it was because the postal laws and regulations affecting registered mail insure the Handling of the notice as effectively as does a personal service.

The federal law regulating the sending of registered mail when Act No. 170 of 1898 was adopted, included the following provision:

Rev. St. section 3928:

“A receipt shall be taken upon the delivery of any registered mail-matter, showing to whom and when the same was. delivered, which shall be returned to the sender, and be received in the courts as prima facie evidence of such delivery.”

It will be observed that the return receipt which the sender obtains is to serve as the same kind of proof in court as the return of the serving officer in the case of personal or domiciliary service.

In 1910 (Act May 23, 1910, c. 255, 36 Stat. 416), the federal law (Rev. St. U. S. sec. 3928) was amended so as to require the return receipt only upon request of the sender, and again in 1925 (Act Feb. .28, 1925, c. 210, 43 Stat. 1068, 39 USCA sec. 386) it was changed so as to exact an additional fee of 3 cents on the part of the sender, for the return receipt.

It was the imposition of this additional charge, perhaps, which actuated the sheriff in this case, as probably it did many, others, in not ^requiring the return receipt when sending these registered notices. The amendment to the federal law, however, did not have the effect of amending the state law, and the extra expense charged to the sender of registered mail did not relieve tjie sheriff of any of his responsibility. The purpose in registering mail, while perhaps not to insure delivery, is to enable the sender to trace it through its course in the mails, and the surest means perhaps of ascertaining what disposition is made of it is by demanding the return receipt. Had the sheriff required it in this case, when delivery could not be made of the notice to the addressee at Merryville; La., he would have been entitied to that information and he most probably would have been advised of the removal of the addressee from that post office address, which would have prompted him to make further and more diligent effort to find out the correct address. We do not think, therefore, that he did all that could have been done to comply with the provisions of the statute.

Another thought which gives strength to the views we have in this case arises from a consideration of the fact that the registered notice which the sheriff mailed, after reaching the post office at Merry-ville, La., lost its character of registered mail, because it was not forwarded as such from that office. The presumption which may exist that mail which is registered is forwarded as such must yield when the proof is made from the records of the post office which show that it was not and the addressee testifies that he never received it.

We are not unmindful of those decisions which hold that it is not whether or not the delinquent taxpayer received the notice that prescribes the test to be applied in cases of this kind, but we also have in mind the holding in some of those same decisions and others that it is the duty of the tax collector to be diligent in trying to ascertain the correct address of the tax debtor and do what is reasonable to make the notice serve the purpose for which it was intended under the law.

We find that the district judge correctly decided the case on this issue, which, as he says and we also state, makes it unnecessary to consider the other grounds on which the sale was attacked.

The judgment is therefore affirmed.

LECHE, J., not participating.


text:
    No. 606
    First Circuit
    FUTCH v. ADDISON ET AL.
    (March 5, 1930. Opinion and Decree.)
    Ellis, Ellis & Ellis, of Amite, attorneys for plaintiff, appellee.

      A. L. Ponder, of Amite, attorney for defendant Richard Thompson, appellant.
   ELLIOTT, J.

Leroy Putch, accompanied by a young lady, and driving an automobile on the highway just south of Natalbany, ran head-on into the rear projecting end of two saw logs, one of them being about 14 feet and the other about 18 feet long, loaded on a trailer, receiving in the collision the severest kind of injuries. One of the logs projected out about 4 feet and the other about 8 feet behind the trailer. The accident occurred about 9:30 p. m. on November 29, 1928.

The truck which had been used to pull the logs, together with the trailer on which they were loaded, had been left on the highway by Bolivar Addison, defendant, since about 5 o’clock tp. m. on the day mentioned. The truck, trailer, and logs, though mainly on the western side of the road, occupied it in fact nearly up to the middle of the way. No watchman was left with the truck to warn of its presence in the darkness. No lights of any kind were .left or placed thereabouts to give notice of the danger.

Putch alleges that Bolivar Addison and Richard Thompson are commercial partners. He claims of them $3,500 in damages in solido on account of his injuries. There was judgment against them in so-lido for $1,500. Richard Thompson appealed.

Defendant Thompson argues that plaintiff was drunk, driving too fast, and not looking ahead, else he would have seen the truck and trailer with the logs on it in time to have passed around the obstruction.

The evidence shows that plaintiff was driving southward on the highway; he was not drinking, and was driving at a moderate speed. The obstruction was located 25 or 30 feet south of a bridge. The ground had been built up about 1 y2 or 2 feet at the approach to the bridge on each side. The bridge was not as wide as the roadway, and there were railings on each side of it. It also happened that, just as plaintiff reached the bridge, two automobiles were coming northward with glaring headlights; one of them was so near the bridge when plaintiff entered on it that it was necessary for it to slow down in order that plaintiff might get over the bridge before the one nearest entered on it. As plaintiff passed over the bridge, the other automobile, coming north, was about opposite the truck, and plaintiff had to swerve his car to the right as he crossed the bridge, in order to make way for it. The elevation of the road at the bridge, the railings at the ends of the bridge, together with the glaring lights on the two on-coming automobiles, all helped to hinder plaintiff from seeing the obstruction in the road ahead of him until he was, as he says, within 10 feet of it, and too close to avoid striking it head-on, as he did.

Leaving on the highway, unguarded and without lights, such a dangerous menace to everybody using the road after dark, was in violation of Act No. 296 of 1928, sec. 39. It was also such an act of inexcusable negligence that defendant’s liability on account of having left it there is too plain for argument.

Both Addison and Thompson deny that they are partners, and Thompson urges that, even if they are partners, Addison left the truck on the highway; that he (Thompson) was not present when it was done, and is therefore not liable for the tort of his co-partner.

The evidence shows that Addison and Thompson were engaged at the time in the business of buying standing timber, cutting it into saw logs, and selling and delivering the logs; the delivery being made by means of the truck and trailer which belonged to the partnership, and was operated by Addison in furtherance of the partnership business. The two logs on ‘the trailer belonged to the partnership, and Addison was taking them, in the course of the partnership business, to be delivered to Natalbany Lu«nber Company, to which they had been. sold.

Addison testified that, before he reached the place where the logs were to be delivered, his motor died, and he could not get the truck and the loaded trailer out of the road. He therefore left it at the place where it stopped and went to Independence to get a garage man to send his truck and pull the one in question out of the road. The accident to plaintiff happened while he was gone, engaged, he says, in an effort to get help to get the truck out of the road.

The trees that they bought, when cut into saw logs, became movable property. It was saw logs that they were engaged in selling and delivering. Their business made them commercial partners. Civ. Code, art. 2825.

The defendant contends that a member of a commercial partnership is not liable for a tort committed in his absence by his co-partner.

We find that they are liable in solido for the tort of one of the members of the firm, committed in the course of the transaction of the partnership business, as occurred in this case, although the other partner may not have been present. Birdsall vs. Bemiss, 2 La. Ann. 449; New Orleans Drainage Co. vs. De Lizardi, 2 La. Ann. 281; Baldey & Lightner vs. Brackenridge, 39 La. Ann. 660, 2 So. 410; Parsons on Partnership (4th Ed.), sec. 100, pp. Ruling Case Law, vol. 20, subject: Partnership, sec. 126, p. 914.

The judgment appealed from is correct.

Judgment' affirmed; defendant and appellant to pay the costs in both courts.

LECHE, J., not participating.


text:
    No. 607
    First Circuit
    WALLER v. HUTCHINSON
    (March 5, 1930. Opinion and Decree.)

      Ellis, Ellis & Ellis, of Amite, attorneys for plaintiff, appellee.
    Amos L. Ponder;' of Amite, attorney for defendant, appellant.
   MOUTON, J.

A collision occurred on a highway in the parish of Tangipahoa between a Chevrolet touring car plaintiff was driving and a Ford which was being driven by defendant. Plaintiff was going westward and defendant eastward. The accident occurred early in the morning about 8 or 9 o’clock in May, 1929. The highway was wide enough where the cars collided for the passage of three cars at the sanie time.

The record shows there is a curve in the road where the accident happened, not extremely sharp, merely an average curve. Plaintiff says he was on the north side of the road, his side, going westward, when his car was run into by defendant’s Ford. He is certain that he was not in the middle, and testifies that the injury to his car was on its left side.

W. G. Eris, who repaired plaintiff’s car, testifies it was struck on the left side, that the front fender was smashed and the radiator bent over to the side. Several witnesses saw the position of the two cars immediately after the accident, most of whom testified that plaintiff’s car was, at that time, on the north side of the roadway.

Robert Travis, witness for plaintiff, says he was talking with Uncle Williams somewhere near the place when the cars came together. He says plaintiff was coming from Tangipahoa, which the record shows is situated east from the spot where the accident happened. He testifies that plaintiff was driving about three feet from the ditch on his right-hand side of the road; that defendant was coming on the left-hand side. He thereafter explains in his testimony that he (witness) was coming into the road, that defendant hollered at him, and swung his car over to the other side of the road. His testimony is that it was a very foggy morning, that the windshields of the autos were heavy with dew, and that he is certain defendant had not seen plaintiff when he swung his car across the road a little too far, thus coming in contact with plaintiff’s car.

W. T. Phillips testifies that after the accident he had at his house a conversation with defendant in reference to the occurrence. He says he told defendant that he “was bound to have been looking at Bob (meaning Robert Travis who was coming towards the highway) to have caused you to run into him like that”; and that defendant answered, “I was.”

Williams, another witness, who was present at the conversation, confirms the statements so made by Phillips.

The evidence shows that either due to the condition of the windshield of the Ford defendant was driving, or to the fact that he was-looking at Bob Travis who he thought was coming into the intersection, defendant did not see plaintiff’s car on the north side, and ran into it causing the damages complained of.

Counsel for defendant refers to section 19' (b) of A.ct 296 of 1928, regulating traffic on our highways, contending that under that section defendant was not a,t fault because he had moved around to the left of the road, and thereby getting on the wrong side.

. We find in section 20(b) not 19(b), the following:

“The driver of a vehicle approaching but not having entered an intersection shall yield the right-oLway to a vehicle within such intersection and turning therein to the left across the line of travel of' such first mentioned vehicle, etc.”

Undoubtedly counsel intended to refer to section 20(b), and through inadvertence cited the preceding section. The section above quoted requires the driver of a car approaching an intersection to yield the right of way to a vehicle or car that has entered or is within the intersection and to turn to his left across his own line of travel. The section so relied on by defendant’s counsel does not apply to the facts of this ease, as Bob Travis testifies he was coming towards the highway, on a lateral road, but that he had stopped still, and did not enter the highway, and was not within the intersection when defendant suddenly turned to his left and ran into plaintiff’s auto. Even if defendant had been acting in obedience to a statutory requirement, his conduct would have been inexcusable, because, if he had been on the lookout, he would have seen or should have seen plaintiff’s ear on the other side of the roadway in time to have stopped his Ford before running across, into the other car.

Defendant was clearly at fault, and was properly held in damages for the amount decreed by the district judge.

LECHE, J., not participating.


text:
    No. 562
    First Circuit
    HEPTING v. DURAND
    (March 5, 1930. Opinion and Decree.)

      Lessley & Rouly, of Lafayette, attorneys for plaintiff, appellant.
    Voorhies & Labbe, of Lafayette, attorneys for defendant, appellee.
   LEBLANC, J.

Plaintiff, Martin Hepting, sues the defendant, Albert L. Durand, for damages in the sum of $15,000, alleging that the defendant falsely charged him with, and had him arrested for, stealing a cow. He describes defendant’s action as one done with “malicious intent to destroy his good name, fame, credit and reputation.” It is plain then that the suit is one for damages for defamation of character. It was dismissed on an exception of no cause of action in the lower court, whereupon plaintiff obtained an order of appeal made returnable to this court.

Defendant, the appellee, has filed a motion praying for the dismissal of the appeal on the ground that this court is without jurisdiction as the suit is not one for damages for physical injuries, and the amount sought to be recovered is over the sum of two thousand dollars.

Appellant answers the motion admitting that this court is without jurisdiction, but prays that the appeal be transferred to the Supreme Court.

This court has jurisdiction as an appellate court in excess of $2,000 only “in suits for damages for physical injuries to, or for the death of a person, or for other damages sustained by such person or his heirs or legal representatives, arising out of the same circumstances,” etc. Const. 1921, art. 7, sec. 10, par. 2. Defamation of character is not a physical injury, nor does it give rise to damages by reason of physical injury. It is obvious therefore that this court must decline jurisdiction, as it has frequently done before in cases of the character of the one here presented.

As the right of appeal is a constitutional one which is always favored by the courts, appellant’s motion to have the appeal transferred to the Supreme Court shall prevail over appellee’s motion to dismiss.

It is therefore ordered that, in accordance with the provisions of Act No. 19 of 1912, the appeal in this case be transferred to the Supreme Court, within thirty days from this date, March 5, 1930.

LECHE, J., not participating.


text:
    No. 572
    First Circuit
    LOWERY v. JACUZZO
    (March 5, 1930. Opinion and Decree.)

      •C. A. Blanchard, of Morgan City, attorney for plaintiff, appellee.
    Harris Gagne, of Houma, attorney for defendant, appellant.
   MOUTON, J.

After a careful consideration of this case, we find, that in furtherance of justice it should be remanded for a new trial.

It is therefore ordered, adjudged, and decreed, that the judgment appealed from be avoided, annulled and reversed; and, that this case be and is hereby remanded for a new trial. Appellee to pay the cost of this appeal.

LECHE, J., not participating.