author: JANVIER, J.

text:
    No. 13,785
    Orleans
    O’DAY v. KAPANICA
    (December 14, 1931. Opinion and Decree.)
    (January 11, 1932. Rehearing Refused.)
    Edwin I. Mahoney, of New Orleans, attorney for plaintiff, appellee.
    A. E. Rainold, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

This case grows out of an intersectional automobile collision. Plaintiff was driving his car on Clara street, and intended crossing Napoleon avenue from the lower to the upper side thereof. Defendant’s truck was on the lower side of Napoleon avenue, going toward the lake. Plaintiff states that, before attempting to cross Napoleon avenue, he brought his car to a stop and sounded his horn, and that he saw nothing approaching, and proceeded to cross, at a speed of about 5 miles an hour. He testifies that, as he entered Napoleon avenue, he saw defendant’s truck approaching at a speed of about 30 miles an hour, and that then it was about 125 feet from his car. He also maintains that he had practically crossed the lower roadway of Napoleon avenue, and that only the rear portion of his car remained in the roadway, when it was struck by the truck.

The truck driver states that the truck was equipped with a “governor,” which prevented the truck’s being driven at a speed in excess of about 17 miles an hour; that, as he approached the intersection of Clara street at a speed of 11 or 12 miles an hour, plaintiff’s car suddenly emerged from the intersecting street, running about 18 miles an hour, and attempted to cross in front of the truck; that he applied both the service and the emergency brakes; but that the street was wet and the truck was heavily loaded, and it was impossible to avoid the collision.

The testimony of plaintiff is not impressive, particularly with reference to his having stopped and to his. having made certain measurements a long time after the accident, and also with reference to his having followed the truck later and discovered by-his own speedometer that it could run faster than 17 miles an hour. We are given the impression from the entire record that plaintiff did not take such precautions, as he should have taken, before entering a boulevard having rights which, under the city traffic ordinance, C. C. S., No. 7490, were superior to those accorded to vehicles on intersecting streets.

If the truck was speeding along at 30 miles an hour, and if O’Day was driving at only 5 miles an hour, he had the better opportunity to stop, and he should have done so, especially since the street was wet with water and sleet. His failure to see the truck cannot be excused, since, manifestly, it was on the street, and was in view of any one who might look.

' We hesitate to reverse the finding of the trial court on a question of fact, but, since we believe that it is manifestly erroneous, we must do. so.

The judgment appealed from is reversed, and plaintiff’s suit is dismissed, at his cost.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 4194
    Second Circuit
    SERIO v. CALHOUN
    (December 9, 1931. Opinion and Decree.)
    (December 21, 1931. Rehearing Refused.)

      Hugh Tullís, of Vidalia, attorney for plaintiff, appellee.
    Dale, Dale & Dale, of Vidalia, attorneys for defendant, appellant.
   DREW, J.

Plaintiff brought this suit for $1,200, represented by a check made payable to him by defendant, dated April 12, 1926, and for 5 per cent interest thereon from the date of check until paid; and several other small amounts which were abandoned on trial of the case. He alleged the check was given for a valuable consideration and drawn on the Ferriday branch of the Vidalia Bank & Trust Company, and that upon presentation at the said bank payment was refused. He attached the check to the petition.

Defendant in answer admitted that he signed and executed the check sued on and that same was signed and executed to represent the purchase price of certain lots in the town of Newellton, Louisiana, purchased by defendant from plaintiff on April 12, 1926. That said check was not presented to the bank for collection until February 24, 1981; and that at the time the check was given, plaintiff was indebted to defendant in an amount about equal to the amount of the check, which indebtedness was later increased. That it was understood that the check was not to be cashed, but given merely 'as an evidence of the debt for the lots, and said check was to be paid by the said indebtedness that plaintiff owed defendant as soon as they could have a settlement. Defendant further alleged that a settlement was had in January, 1928, at which time defendant demanded the return of the check and was told by plaintiff that it had been destroyed by fire. That in said settlement, after giving plaintiff credit for the check for $1,200, there was left a balance due defendant of $665.60. He sets out in detail the items claimed by him against plaintiff and the items due plaintiff by him; and in reconvention, prays for judgment against plaintiff in the sum of $665.60, with legal interest thereon from February 16, 1930, until paid.

A motion by counsel for plaintiff to strike out the reconventional demand for the reason' that said demand was not necessarily connected with and incidental to the main demand, and plaintiff and defendant being residents of the said parish, was sustained. Counsel for defendant in brief admits the correctness of said ruling and asks for no change in it. Defendant does not plead payment, neither does he plead compensation or offset, unless the plea of settlement could be taken as a plea of compensation. The lower court rendered judgment in favor of plaintiff in the sum of $1,200, with 5 per cent interest per annum from the date of the check until paid, and defendant has appealed to this court.

If defendant’s answer could be taken as a plea of compensation, it would be of no avail to him for the reason that the amounts claimed by him tq be due him by plaintiff are not equally liquidated and demandable with the claim of plaintiff on the check. Civil Code, art. 2209; Guilbeau Bros. v. Melancon, 28 La. Ann. 627; Sullivan v. St. Anna’s Chapel, 168 La. 383, 122 So. 118; and cases cited therein.

If we consider the answer as a plea of compensation, it is an admission of the claim of plaintiff, and no evidence being admissible under the compensation plea, for the reasons above given, it would necessarily follow that plaintiff was entitled to judgment as prayed for.

Under defendant’s plea of settlement, an agreement between him and plaintiff in January, 1928, wherein he claims plaintiff admitted that there was a balance due defendant by him of over $600, a determination of that claim is purely a question of fact, and the lower court did not believe defendant. A careful reading of the contradictory testimony given by defendant, together with the most unreasonable statements made by him, convinces us that the lower court was eminently correct in not taking the testimony of defendant.

The testimony reveals the fact that the plaintiff is a Syrian, and that he and his wife had had domestic troubles. A divorce suit was filed. Just before filing the suit, defendant, under a pretense of helping plaintiff, took a deed to two lots in Newellton, Louisiana, for a recited consideration of $1,200, and gave his check in payment, instructing plaintiff not to cash it, and that he would later deed the lots back to him. Instead, defendant sold the lots for $1,450, and put the money in his pocket. After many attempts to collect the check from defendant, plaintiff presented it to the bank on February 24, 1931, and payment was refused. This suit followed.

It is unnecessary to review the evidence in the case. The lower court refused to take the testimony of defendant and correctly held that no settlement had been made between plaintiff and defendant. Defendant admitted signing and executing the check in payment of the two lots, and therefore judgment was rendered for plaintiff for $1,200, with 5 per cent per annum interest from date until paid. In the matter of interest allowed, the lower court erred. Interest should have been allowed from the time the check was presented to the bank for payment, which was February 24, 1931.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by allowing interest from February 24, 1931, instead of from April 12, 1926, and as amended, that the judgment be affirmed; cost of appeal to be paid by appellee.


text:
    No. 13,817
    Orleans
    MADISON LBR. CO. v. ALSON
    (December 14, 1931. Opinion and Decree.)
    (January 11, 1932. Rehearing Refused.)
    Deutsch & Kerrigan and Bert Flanders, Jr., of New Orleans, attorneys for plaintiff, appellant.
    Milner & Porteous and Wm. A. Porteous, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

The Madison Lumber Company claimed from defendant $120.76, the balance due for the installation of a roof on certain premises belonging to defendant. Defendant contended that the roof was improperly applied, and, in a reconventional demand, asserted that he had been damaged by the failure of plaintiff’s employees to use a tarpaulin to prevent rain entering the premises during the performance of the contract. When the matter was first before us, we affirmed the judgment in plaintiff’s favor for the amount claimed by it, but we found that there was not in the record evidence sufficient to enable us to pass upon the reconventional demand for damages, and we therefore remanded the matter for administering of proof on that issue. 13 La. App. 603, 128 So. 46.

The trial court, after the new evidence was offered, rendered judgment for deféndant, plaintiff in reconvention, for $215, and plaintiff, defendant in reconvention, has appealed.

The reconventional demand, as it now appears, is made up of two items, one for $50, being the amount paid by defendant to one of his tenants in settlement of a claim made by that tenant resulting from damage to the tenant’s furniture, and one for $200 for damage to the premises of plaintiff in reconvention.

We find that in attempting to prove the item of $50, Alson, plaintiff in reconvention, did no more than offer in evidence the receipt he had obtained from his tenant, when he made settlement for the damage which the tenant claimed he had sustained. There is no proof of any damage sustained by the tenant, and we have only the presumption which results from the fact that Alson paid this sum to the tenant. Of course, he would not have done so had he not been satisfied that the tenant had sustained damage at least to that extent, but such a presumption is not sufficient to justify the rendering of a judgment against defendant in reeonvention.

On the other item, the proof consists of the estimates of two contractors as to the respective prices they would charge to repair the premises.

Defendant in reconvention objects to such evidence, contending that it is not proper to prove damage by testimony of a contractor as to the price for which he would be satisfied to do the work and to make the repairs; and, in support of this argument, our attention is called to the following from Sedgwick on Damages (9th Ed.) secs. 1302, 1303:

“The value of services may be proved by the opinion of one, familiar with such value. * * * But the value of skilled services is to be estimated not by inquiring what A or B would charge for such services, but what the services are fairly worth by the common usage of custom of compensation; and it is error to receive'the testimony of witnesses as to what they would charge.”

We find in the record evidence not only that the particular contractor who offered to do the work for $200 stated that he would charge that sum, but also his testimony that, as an expert, he estimated the damage at that amount. In the absence of countervailing proof, we will accept this testimony as sufficient; but it is also in evidence that another contractor offered to make the repairs for $165; and, since this other evidence was also offered by the party who sustained the damage and who makes the claim, we feel that the trial court properly allowed only the amount represented by the smaller estimate.

The judgment appealed from is amended, and the amount thereof is reduced to $165, with legal interest from judicial demand; costs of this appeal to be paid by appellee.


author: HIGGINS, J.

text:
    No. 13,830
    Orleans
    GENOVESE v. KREBS
    (December 14, 1931. Opinion and Decree.)
    .(January 11, 1932. Rehearing Refused.)

      John A. Woodville, of New Orleans, attorney for plaintiff, appellee.
    John May and A. ,M. Suthon, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This, is a suit for damages alleged to have resulted from an intersectional automobile collision on December 25, 1929, at 10:30 p. m.

The charge of negligence against the defendant is that he was driving his car at an excessive rate of speed, and in disobeying the provisions of the traffic ordinance of the city, No. 7490, C. C. S., giving the plaintiff the right of way, as plaintiff was approaching from the right.

Defendant answered, denying that he was in any way at fault, and averring that the plaintiff’s negligence was the proximate cause of the accident, because plaintiff was operating his car at an excessive rate of speed, and failed to respect the provisions of the traffic ordinance, No. 7490, C. C. S., giving to the automobile first in an intersection the right to complete the crossing. In the alternative, defendant pleaded contributory negligence.

There was judgment in favor of the plaintiff for the sum of $105, and the defendant has appealed.

The record shows that plaintiff was driving a Star sedan automobile up North Rampart street in the direction of Canal street. The defendant was driving his Chevrolet sedan in the direction of the lake on Bartholomew street, which crosses North Rampart street at right angles. These streets are paved, and are approximately 30 feet in width. On the downtown river corner of Bartholomew and Rampart streets is a building which intercepted the views of both drivers as they approached the intersection.

The plaintiff, his wife and mother, who were in his car at the time of the' accident, substantially testified that prior to the time his car reached the intersection it was running about 25 miles an hour, but had slowed down to about 15 miles an hour as it approached the crossing and plaintiff sounded the horn; that defendant’s car, which was approaching the intersection from plaintiff’s left, without slowing down, or giving any signal, entered the intersection after plaintiff’s car had done so, and struck it on the left rear fender; that the force of the impact caused plaintiff’s car to turn over on the uptown side of the in-’ tersection; and that the defendant’s car continued on its way and ran into another automobile, which had stopped at the uptown lake side of Bartholomew street.

Defendant and his sister, who was a passenger in his car, and a man by the name of S. Desimone, a witness for defendant, testified that, as defendant’s car ap proached the intersection, it paused, or slowed down, the driver shifting into second gear; that the plaintiff’s car approached the intersection at a rate of speed of about 30 miles an hour, defendant’s sister saying that plaintiff’s car appeared to come up out of the ground, its approach being so sudden; that defendant applied his brakes in an effort to avoid the accident; that the plaintiff first attempted to swerve into Bartholomew street in the direction of the lake, but, being confronted by Desimone’s car, which was parked on the uptown lake side of Bartholomew street, turned again on North Rampart street towards Canal street; that the front portion of the defendant’s car struck the left rear wheel of the plaintiff’s car, causing it to turn over some 10 or 15 feet from the uptown sidewalk curbing of Bartholomew street; and that defendant’s car, because of the force of the collision, was driven into the Desimone car, defendant having lost control of his automobile.

Article 1, section 7, paragraphs (c) and (g) of ordinance No. 7490, C. C. S., of New Orleans, provides:

“(c) On all other streets, and at intersections of right of way streets with one another, all vehicles approaching intersecting streets from the left shall give right of way to vehicles approaching from the right.’’
“(g) The right of way herein given shall not be construed to mean that vehicles may be driven through street intersections in a reckless manner or at a speed beyond control, nor that they may take advantage of such right of way to drive through intersections regardless of the rights of vehicles on intersecting streets. The right of way given applies only where two vehicles approaching intersecting streets arrive at the intersection at approximately the same time, and does not authorize the vehicle traveling on the right of way street to disregard the rights of vehicles which have already entered the intersection from an intersecting street.” (Italics ours.)

Therefore the plaintiff’s car was entitled to the right of way, as. it approached from defendant’s right, unless the evidence shows that the defendant’s car entered the intersection first.

All of the plaintiff’s witnesses testified that his car entered the intersection first. Defendant and his. sister say he arrived there before plaintiff. The defendant’s witness Desimone testified that, at the time the defendant’s car entered the intersection, plaintiff’s car was just 3 feet from the intersection. The admitted physical fact that the defendant’s car struck .the plaintiff’s car on its right rear wheel, in our opinion, tips the scale in favor of the plaintiff’s version of how the accident occurred. We therefore conclude that the evidence establishes the fact that the plaintiff’s car entered the intersection first, and hence, under the provisions of the traffic ordinance, was entitled to the right of way, and should have been permitted by the defendant to complete the crossing.

The evidence also satisfies us that the defendant’s car was being operated at an excessive rate of speed because the force of the blow that it struck the plaintiff’s car not only caused plaintiff’s car to -turn over, but defendant’s car continued on its way and had a second collision with Mr. Desimone’s car.

Was the plaintiff guilty of contributory negligence? Plaintiff and his witnesses testified that he was going about 15 miles an hour as he entered the. intersection. Their testimony is. corroborated by the fact that plaintiff’s car turned1 over on the upper or Canal street side of the intersection. It appears to us that, if the plaintiff had been driving at the rate of 30 miles per hour, as the witnesses for the defendant state, his car would have gone considerably farther than they say it did. We find that plaintiff was driving at a moderate rate of speed at the time he entered the intersection.

Counsel Eor defendant strenuously argues that plaintiff was guilty of contributory negligence in not obeying article 1, section 1, of the traffic ordinance, which reads as follows:

“Keep to the Right. A vehicle, except when passing a vehicle going in the same direction, shall keep to the right and as near to the right hand curb as possible.”

Defendant’s counsel bases his whole argument upon the fact that plaintiff stated that he was not driving next to the right-hand curb on North Rampart street, as he approached the intersection, but was driving to the right-hand side of the center of that street. Conceding that there might have been a technical violation of this provision of the ordinance by the plaintiff, the most favorable view we could adopt, as far as defendant is concerned, but without deciding that issue, nevertheless we feel that his failure to obey this traffic rule in no way contributed to the accident, and that the sole and proximate cause of the accident was the excessive speed of the defendant’s car and its failure to accord to the plaintiff’s automobile the right of way which it had by virtue of the fact that it approached from the right and had entered the intersection before the defendant’s car.

There is an error in the judgment of the lower court in allowing legal interest from January 31, 1930, because the citation was not served upon the defendant until February 18, 1930.

It is therefore ordered, adjudged, and decreed that the judgment of the trial court be amended so as to allow legal interest from judicial demand, February 18, 1930, until paid; and in all other respects the judgment is affirmed, at appellant’s cost.


author: WESTERFIELD, J.

text:
    No. 13,851
    Orleans
    MOTION PICTURE ADVERTISING CO., INC., v. CAPELLE
    (November 30, 1931. Opinion and Decree.)
    (December 14, 1931. Rehearing Refused.)
    (February 1, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Weiss, Yarrut & Stich, of New Orleans, attorneys for plaintiff, appellant.
    W. M. Stafford and Daniel Wendling, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This, is a suit on an advertising contract for the sum of $430. On July 13; 1927, plaintiff entered into an agreement with Mrs. Virginia Capelle, as the owner of Capelle College, whereby plaintiff agreed to prepare a certain film, and exhibit it for 52 weeks in various moving picture theatres for a consideration of $10 per week, payable weekly, plus an additional charge of $30 for certain special work to be done in the preparation of the film; the entire contract price being $550, of which amount $120 was subsequently paid, leaving a balance of $430, for which this suit was originally brought against Mrs. Virginia Capelle.

Mrs. Capelle filed an exception of nonjoinder averring that Capelle College was a partnership composed of herself and one Soloman Scheyer, and that Scheyer and the partnership were necessary parties to the suit. Whereupon, plaintiff filed a supplemental petition asking that Scheyer be made party defendant, and alleging that the partnership between Scheyer and Mrs. Capelle had been dissolved and the affairs of the partnership liquidated without payment of plaintiff’s account, “the said Virginia Capelle succeeding to the business of the partnership and assuming, as petitioner is informed and so avers, all the obligations of the said partnership.” In the supplemental petition, judgment was prayed for against “Mrs. Virginia Capelle as successor to the business of said partnership, or in the alternative, that there be judgment in favor of petitioner and against said Virginia Capelle and said Soloman Scheyer, for his or her birile (virile) share.”

Exceptions to the supplemental petition were filed by both Mrs. Capelle and Solo-man Scheyer, which were subsequently overruled, and both defendants filed answers in which it was set up on behalf of Scheyer that the Capelle College was not a partnership enterprise, but one exclusively conducted by Mrs. Capelle, and, on behalf of both of them, that the contract though on its face for 52 weeks, was subject to cancellation at the end of ten weeks at the option of defendants, should the advertising prove unsatisfactory.

There was judgment below in favor of plaintiff and against Mrs. Virginia Capelle in the sum of $20. Plaintiff has appealed.

The contention of plaintiff is. that the entire amount sued for is due, and that judgment should be rendered against both defendants for their virile share, because ,;the Capelle College was not a separate undertaking but a venture of the partnership. The contract sued on is dated July 13, 1927, and is on a printed form. There had been a previous contract dated July 8, 1927, in which the same form was used, but in which the printed words “This order is not subject to cancellation” were changed with a pen so as to read “This order is subject to cancellation if no results.” No such privilege is reserved to the Capelle College in the contract sued on, which is attached to plaintiff’s petition; but it seems that it was made in duplicate and the copy which was retained by Mrs. Capelle, which was offered in evidence, has an ink line written through the word “cancellation” so that the clause as altered reads "This, order is not subject to,” which, of course, is not intelligible.

Mrs. Capelle testified that it was never intended that the contract should be more than an experiment, since the school or college was essentially so. Indeed there was only one pupil to enroll in the Capelle College which had a short and unsatisfactory existence. She says that she was induced to enter into .the contract for the motion picture advertising only. because of the privilege of cancellation after the first ten weeks. She is corroborated by E. G. Gable, who represented plaintiff at the time the contract was entered into but, who, at the time of the trial, was otherwise employed. Mr. Gable and his wife, Mrs. Gable, both testified to the same effect, and also stated that the reason for the contract of July 13, was a statement by an officer of plaintiff corporation that the first contract had been lost. However that may be, the copy of the contract upon which this, suit is brought contains no modification of the printed words giving defendants the right to cancel it before the end of the term contracted for, and defendants’ copy simply deletes the word “cancellation,” thus destroying the sense of the provision without giving Mrs. Capelle the right to cancel. It would therefore appear to us that if the provisions of the former contract was intended to be incorporated in the latter instrument, both contracts having been negotiated on behalf of plaintiff by Gable, that there would have been in both instruments the same provision that had been written into the first agreement, which specifically reserved to defendants the right to cancel; but such is not the case, and we therefore conclude that in the last contract the former provision was not agreed upon. Corpus Juris, volume 18, Page 271, Verbo “Deeds.” Ruling Case Law, Volume 8, Paragraph 74, Verbo “Deeds”; Heirs of Delogny v. Mercer, 43 La. Ann. 205, 8 So. 903.

The Capelle College was admittedly a venture of Mrs. Capelle. Soloman Scheyer was her partner in a kindred but different enterprise, the objects and purposes of which were stated in the original contract of partnership to be, “carrying on the business of a beauty parlor and the sale of beauty parlor equipment.” It will be remembered that the contract for the advertising was given in the name of Capelle College, the style of the partnership was Capelle Company. Both Mrs. Capelle and Scheyer testified that Scheyer had nothing whatever to do with the Capelle College, which was an idea of Mrs. Capelle. It is true that Mrs. Capelle in her pleadings originally claimed that the contract with regard to the advertising was a partnership contract, but her statement prepared by her counsel could not estop Scheyer, who is. represented in this proceeding by the same counsel, Mr. Wendling, who took the stand and testified that, in preparing the exceptions on behalf of Mrs. Capelle, he confused the activities of Capelle Company and Capelle College, and, in consequence, erroneously involved the partnership. The mistake of counsel cannot have the effect of establishing Scheyer’s liability. There is no evidence whatever connecting Scheyer with the beauty college, and we therefore conclude that he is without liability for its obligations.

For the reasons assigned, the judgment appealed from is amended by increasing the amount awarded plaintiff from $20 to $430, and, as thus amended, it is affirmed.


text:
    No. 13,897
    Orleans
    BARROW v. UNITY INDUSTRIAL LIFE INS. CO.
    (January 11, 1932. Opinion and Decree.)
    Nathan H. Feitel, of New Orleans, attorney for plaintiff, appellee.
    Loys Charbonnet, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff, as beneficiary, seeks to recover the sum of $150, representing the face value of an industrial life insurance policy.

Defendant admits issuing the policy, but denies- liability on the ground that the policy was obtained through fraud by the plaintiff, as she introduced to the insurance company’s representative a young person in sound health as Mattie Truss, the insured, when, as a matter of fact, Mattie Truss, the deceased, was an elderly sickly person, that the party who was accepted by the company is still alive and well, and that the company never did agree to insure the party who died.

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

The record shows that defendant is an industrial life insurance company organized and doing business under the laws of the state of Louisiana. The plaintiff had certain policies of insurance with the company, and the company’s agent, who collected the premiums, solicited plaintiff to take out other insurance policies on some of her relatives. On September 2, 1929, an application was made by plaintiff for a policy on the life of Mattie Truss, her stepmother, and on September 9, 1929, the policy sued upon was issued. On September 22, 1929, Mattie Truss, the stepmother of plaintiff,, suffered a paralytic stroke, of which the agent, who collected the premiums, was apprised by plaintiff on the occasions of his visits for .the purpose of collecting premiums. Thereafter the agent continued to collect the weekly premium of 13 cents per week for a period of about six months. But when he was informed by plaintiff that Mattie Truss was in the hospital in a dying condition, he refused .to accept further premiums on the ground that the policy was obtained by misrepresentation and that plaintiff should agree to cancel it. This she refused to do, and continued the payment of the premiums at the office of the' defendant company. Mattie Truss died at Independence, Lá., one year and about four weeks after the issuance of the policy. All premiums were paid, and due proof of death Was filed with the company, which declined to pay plaintiff, as beneficiary, the proceeds of the policy.

Plaintiff and one disinterested witness testified that, at the time the policy was issued, there was no other person present who was represented as Mattie Truss, plaintiff’s stepmother, but that plaintiff told the agent where her stepmother lived, and •the agent stated that he would call there and examine her. Another witness, corroborated plaintiff in that the deceased was in good health at the time the policy was issued.

The agent’s testimony is directly in conflict with this evidence and to .the effect that a young healthy woman was presented by plaintiff as Mattie Truss. It was sought to have his. testimony corroborated by Mary Tanner, but, on cross-examination, she admitted that she was uncertain as to the time that the deceased suffered the paralytic stroke.

The preponderance of the evidence is that no fraud or deception was practiced upon defendant, and, as the defendant bore the burden of proving its special defense by a preponderance of the evidence, we find that 'the judgment of the lower court is correct.

Counsel for defendant has filed a motion to remand the. case in order to take the testimony of a witness in Independence, La. After all the testimony had been .taken, in the trial on the merits, counsel for defendant asked the court for permission to take the testimony of this witness. Upon objection by the attorney for the plaintiff, the court refused to continue the case for that purpose. The record shows, that suit was filed on November 10, 1930, and the answer on November 22, 1930, and the case was tried on the 4th day of May, 1931. No satisfactory excuse or reason was offered why the witness could not be produced in court, or her testimony taken before the trial on the merits. Under these circumstances we believe the trial court’s ruling was proper, and therefore deny the motion to remand.

Counsel for plaintiff has answered the appeal and asks for 10 per cent damages for frivolous appeal. As a serious question of fact was involved, we decline to allow plaintiff’s request.

For the reasons assigned, the judgment is affirmed.


text:
    No. 13,854
    Orleans
    MOTION PICTURE ADVERTISING SERVICE v. MODICA ET UX.
    (January 11, 1932. Opinion and Decree.)
    Weiss, Yarrut & Stich, of New Orleans, attorneys for plaintiff, appellant.
    Claude W. Duke, of New Orleans,- attorney for defendants, appellees.
   JANVIER, J.

Defendant, Ben Módica, is the owner of a small grocery store in New Orleans. Finding business unprofitable he left the store in charge of his wife and betook himself to an agricultural section of the country in an effort to augment the family income. He was gone for four months during which time a representative of plaintiff corporation, which corporation is' engaged in the business of selling advertising which appears on mo-’ tion picture theater screens, called on defendant’s wife, who was in charge of the store, and prevailed upon her to sign a contract for the appearance, on the screen of a neighborhood motion picture house, of an advertisement for the grocery store. Upon the return of defendant, Módica, his attention was called to the fact that there was a large balance claimed to be due to plaintiff and he, thereupon, attempted to repudiate the contract, insisting that his wife had no authority to sign contracts for advertising; that when she signed the contract she believed that it extended only for ten weeks and called for payment of only a moderate amount, whereas the contract sued on required a payment of $180.10 and covered a period of fifty-two weeks.

Not being able to receive a satisfactory adjustment of the matter, plaintiff filed suit claiming $150 as the balance due on the contract, originally for $180.10, and for 15 per cent attorneys’ fees on the principal and interest. Both Mr. and Mrs. Módica were made defendants.

The trial court rendered judgment in favor of plaintiff and against Mrs. Módica but rejected plaintiff’s demand as against the husband. Plaintiff has appealed.

It has been held that a person who conducts a mercantile business and who appoints another as representative or manager constitutes that other as his agent and that such agent has apparent authority to make contracts for such reasonable requirements as may be usual in the ordinary course of such business.

In Dayton Scale Co. v. Capps, 9 La. App. 651, 120 So. 94, 95, the court said:

“Where one conducts a business to which the services of a manager are essential there is a representation that the person or persons performing duties of manager are the agents of the owner, with power to bind him for acts necessary in conducting the business (Lochte v. Gele, 1 McGloin 52; also Schmidt & Zeigler v. Sandel, 30 La. Ann. 353; Redmond & Son v. Wood, 6 La. App. 389).”

And in Perfection Garment Co. v. Lanasa, 7 La. App. 31, in which case a wife made purchases of merchandise to be placed on sale in a store operated by her husband, we said:

“Defendant conducted a dry goods store, selling women’s clothing. His wife was active in its management and in his absence in complete control. She bought the merchandise from plaintiff’s agent in defendant’s absence. Either she was capable of binding her husband by implied authority or no contract of sale resulted. Art. 3000, R. C. C., reads as follows:
“ ‘Powers granted to persons who exercise a profession or fulfill certain functions, of doing business in the ordinary course of affairs to which they are devoted need not be specified, but are inferred, from the functions which these mandataries exercise.’
“We are of opinion that this article, and not Article 2997 governs this case. It would subject all business transactions to great and unreasonable restraint to require an express special mandate to buy and sell the numerous items of merchandise dealt in by the many and varied mercantile establishments, partnerships and corporations doing business in this State. It is common practice for managers and executives, clerks and salesmen to act under implied powers in buying and selling the merchandise dealt in by their several establishments. Thousands of purchases and sales are made daily and hourly by agents and employees without express and special mandate. Article 2997 applies to transactions by persons ‘out of the ordinary course of affairs to which they are devoted.’ Article 3000 declares that the mandate need not be specific in fulfilling certain functions connected with the ordinary manner of doing business. Peter James v. Mrs. M. J. Lewis and Husband, 26 La. Ann. 664; Perrotin v. Cucullu, 6 La. 590; Bezou v. Pike Lapapeyre & Bros., 23 La. Ann. 788.
“Our conclusion is that the wife in this case had the implied authority, as agent for her husband, to purchase the merchandise.”

Defendant, Módica, says that when he left the city he gave his wife special instructions as to what purchases to make and that she had no authority to exceed his instructions or to contract for anything except merchandise to be sold in the store. The answer .to that contention is that a principal who gives his agent secret instructions cannot shield himself behind these instructions and, if the agent’s acts from which the claim results are reasonable and are such as would ordinarily be done by a person having the authority apparently exercised by the agent, the principal is bound. That this is true was held in Clasp Envelope Co. v. Trusilk Co., 5 La. App. 658, in which, we said:

“A party dealing with an agent, acting within the scope of his authority is regarded as dealing with the principal. Third persons cannot be bound by secret or private instructions to an agent. Cor. Juris, Yol. 2, verbo ‘Agent,’ .page 566.”

Defendant contends that the authorities to which we have referred do not justify our holding that an agent left in charge of a store may contract for advertising but that they merely hold that such an agent may purchase stock to be sold. If any agent may purchase stock to be sold, we are unable to see why the same agent may not contract for reasonable advertising to assist in the selling of the said stock.

The only question then remaining ia whether or not the contract which Mrs. Módica made was such a one as might reasonably be expected to be made by a person operating a grocery store of the small size and humble pretensions of that operated by defendant. It is not unreasonable for any grocery store to contract to spend $3.50 per week for advertising. It follows that the contract was reasonable and that the wife had apparent authority to execute it. The husband must be held responsible for the contract made by her.

Mrs. Módica did not appeal from the judgment against her. Nevertheless, it appears that judgment was not prayed for against her, except in the alternative and in the event that it be held that the husband, Mr. Módica, was not liable. In other words, plaintiff has not asked for a solidary judgment against the two, but only for a judgment against either the one or the other. Therefore, since we feel that the husband is liable, it becomes necessary to reverse the judgment as against the wife, even though she did not appeal.

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, Ben Módica, in the full sum of $150, with legal interest from judicial demand, together with 15 per cent attorney’s fees on the total amount due, all costs to be paid by defendant, Ben Módica.


text:
    No. 13,915
    Orleans
    PATERNO v. KENNEDY THE CLEANER, INC.
    (December 14, 1931. Opinion and Decree.)
    (January 11, 1932. Rehearing Refused.)

      Augusto P. Miceli and Dufour, St. Paul & Levy, of New Orleans, attorneys for plaintiff, appellee.
    Prowell, McBride & Ray and Welton P. Mouton, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff sues for the alleged value of three suits of clothes which were delivered to defendant, a corporation engaged in the clothes cleaning and pressing business in New Orleans, and which suits defendant admits having received and having failed to return to plaintiff.

Defendant seeks to avoid responsibility for the value of the articles, and alleges that, during the night, while the cleaning establishment was securely closed and locked, it was, broken into by some unknown person or persons, who stole the suits in question, together with many other articles of clothing.

The parties agree that the suits were received by defendant, as bailee, for the mutual benefit of both parties, and that, under such circumstances, liability may be avoided by a showing by the bailee that he has, used ordinary diligence and care in preserving and protecting the goods, and that he has taken the precautions which an ordinarily prudent person would take to protect his own property. That such is the obligation of a bailee for the mutual benefit of both parties is well established. New Orleans Soda Water Co. v. Leonard, 9 Orl. App. 220; Crescent Forwarding & Trans. Co, v. New Orleans Box Mfg. Co., 6 Orl. App. 412; Hartford Fire Ins. Co. v. Doll, 5 La. App. 226; Scott v. Sample, 148 La. Ann. 627, 87 So. 478.

Counsel for plaintiff admits that the evidence shows that the cleaning establishment was broken into, as alleged, and that all due care had been exercised by defendant in properly securing and locking the premises, but they contend that the three suits in question were not lost as a result of that robbery, but had been lost prior thereto, and, in fact, had never entered the establishment, having been stolen from an autotruck operated by one of defendant’s employees before the truck reached the headquarters of defendant.

Counsel contend that the said truck had been left by its driver unguarded, contrary to custom and in violation of orders and of the dictates of prudence, and that thus defendant is liable because of the negligence of its employee committed while acting within the scope of his employment.

Authorities are hardly necessary to show that a bailee is liable for loss caused by the negligence of his servants while acting within the scope of their respective employments, for, under articles 176, 2317, and 2320 of the Civil Code of Louisiana, we are made responsible for the acts of our servants and others acting as our agents or employees, and if, then, a bailee is responsible for his own negligence, he is likewise responsible for the negligence of those employed by him to carry out the purposes for which the bailment was undertaken.

For proof of the fact that the suits were stolen from the truck before it reached the defendant’s place of business, plaintiff relies on certain statements admittedly made by the truck driver to Miss Bankston and Mrs. Turner, who lived in the premises in which plaintiff resided, which statements were to the effect that the suits had been so stolen and that the said driver was anxious to prevent his employer from finding out about the loss.

Defendant’s counsel seek to explain the fact that the truck driver made such a statement by contending that the said driver had been instructed by his employers to make no mention of the robbery at the cleaning establishment for fear that too much publicity given to the said robbery might render the apprehension of the culprits and the recovery of the stolen articles more difficult.

Such instructions, may have been given the driver, and it may he that the story about the robbery from the truck was a pure fabrication on his part, but, in spite of the fact that that driver, at the time of the trial below, was still in the employ of defendant, and was available, he was not called as a witness. Since the entire case is based on statements admittedly made by that driver, and since he could have been produced as a witness had defendant deemed his presence beneficial to the defense, the failure to produce him to explain his fabrication weighs heavily against defendant. Rubenstein v. Files, 146 La. 727, 84 So. 33; Townsend v. Mo. Pac. R. Co., 3 La. App. 598; Perkins v. Long Bell Lumber Co., 8 La. App. 403; Tourmillion v. New Orleans Public Ser. Co., 3 La. App. 297; Geddes & Moss Und. & Emb. Co. v. Simkins, 4 La. App. 125; Succession of Krantz, No. 7210 Orl. App. Opinion Book 54, see Louisiana and Southern Digest; Steinhardt v. Hibernia Bank & Trust Co., No. 9071, Orl. App. Opinion Book 63, see Louisiana and Southern Digest; United Motor Car Co. v. Finin, 12 La. App. 160, 125 So. 158; Rossi v. Cust, 17 La. App. 349, 136 So. 103.

It is true that the robbery of the truck during the afternoon of the <Jay on the night of which the premises were also robbed is a most surprising coincidence, but it is. not at all impossible, and, in the absence of testimony by the driver, we must conclude, as did the trial judge, that the defendant, on whom rested the burden of freeing itself from the presumption of negligence, has not been successful in its efforts, to sustain that burden. Here, again we must repeat that the doctrine is well established that findings of the trial court on questions of fact will not be disturbed, unless manifestly erroneous.

ON MOTION TO REMAND

In a motion filed on the day this matter was argued before us, defendant asks that we remand th'e case for the submission of newly discovered evidence corroborative of the allegations in the answer to the effect that the premises of defendant were robbed on the night referred to. It appears from an affidavit attached lo the motion to remand that, unquestionably, one of the persons implicated in that robbery has been apprehended, and that thus, the fact of that robbery has been even more certainly established.

If there were any doubt that that robbery had been committed, and if the issue tendered depended upon proof of that fact, we would comply with the request ánd remand the matter for such new evidence as may be now available, as there can be no doubt of our right to do so, for in Keller v. Keller, 4 Orl. App. 309, we said:

“A case will be remanded on the ground of newly discovered evidence filed in the appellate Court, when it shall appear that the circumstances, of the application are extraordinary and exceptional and the ends of justice require remanding.” See, also, Succession of Emonot, 109 La. 360, 33 So. 368; People’s State Bank v. U. S. Fidelity & Guaranty Co., 154 La. 835, 98 So. 263; Schneider v. Etna Life Ins. Co., 30 La. Ann. 1198.

It is conceded, however, that such robbery actually occurred, and it would serve no useful purpose to reopen the case for the administering of further proof of a fact not only admitted to be true, but having no bearing on the issue involved.

ON THE QUANTUM

Defendant contends that the suits were not worth the amount allowed by his honor below, to-wit, $245. Plaintiff testified that he is in the Italian consular service, that the suits were new, had been ordered made in Italy for a special purpose, and that this was the first time that they had been cleaned. There is. no evidence to overcome the testimony of plaintiff that to replace the suits would have cost more .than the amount of the judgment. We find, then, nothing to justify a reduction in the award.

The judgment appealed from is affirmed.


text:
    No. 13,959
    Orleans
    GARLAND v. KEEN
    (January 25, 1932. Opinion and Decree.)
    See, also, 18 La. App. 312, 137 So. 343.
    Henry L. Garland, of New Orleans, attorney in proper.
    St. Clair Adams and St. Clair Adams, Jr.,' of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, alleging that he was injured as. a result of the negligence of Frank M. Keen, Jr., brought this suit against him for damages. A plea of minority was filed on behalf of the defendant, and, before the court could consider the plea, a supplemental petition was filed by plaintiff in which it was alleged that the cause of action would prescribe in a few days, and that it was necessary to make Frank M. Keen, Sr., the father of the original defendant, a party to the suit as against the possibility that the exception of minority should be maintained. The liability of the elder Keen was based upon familiar codal articles, which charge the father with responsibility for the torts of his minor children. Defendant filed a motion to strike the supplemental petition from the record on the ground that it was an attempt to ingraft a new and distinct suit upon the original petition in contravention of the provisions of Code of Practice, article 419. On January 23, 1931, the plea of minority and the motion to strike were heard before the judge a quo, and thereafter, on February 2, 1931, the plea of minority was maintained and the younger Keen dismissed from the suit, but the motion to strike the supplemental petition from the record denied. The case went to trial on the merits, and resulted in a judgment in plaintiff’s favor in the sum of $466.30. Defendant has appealed.

Article 419 of the Code of Practice reads:

“After issue joined, the plaintiff may, with the leave of the court, amend his original petition, provided the amendment does, not alter the substance of his demand by making it different from the one originally brought.”

Does the demand presented by the supplemental petition differ from the one originally brought? In the original petition, the plaintiff sets up a cause of action against the younger Keen, alleging that he was negligent in the driving of an automobile and that, due to his negligence, he (plaintiff) was injured. In the supplemental petition the claim is that, for the injuries caused by the younger Keen, the elder is responsible by reason of his liability for the torts of his minor son imposed by the law of Louisiana. The father is not sued as the tutor of his minor son, but directly and personally.

It is argued that amendments to pleadings are regarded favorably and should be allowed in all doubtful cases to the end that a multiplicity of suits may be avoided; the modern tendency being to yield as little as possible to technicalities and to afford aid, as far as practicable, to the filing of amendments which work no injury and prevent useless delays and costs. Davis v. Arkansas Sou. R. Co., 117 La. 320, 41 So. 587. Plaintiff particularly relies upon the case of Eugster & Co. v. La Compagnie Commerciale De Transports, 2 Mc-Gloin, 163. In that case it was held that where, in a petition setting up a cause of action in favor of a firm, it is stated, through error, that the firm is composed of one party named, an amendment should be allowed setting forth the true facts of the case, and disclosing the names of all the co-partners. We do not believe the Eugster case very helpful here because there an amendment was permitted so as to properly describe the partnership, which had been sued, and to supplement additional names inadvertently admitted. The partnership had been sued originally, but only a part of its members impleaded. Here, however, if it be conceded that father and son are separate legal entities, as it must be, a third person is, for the first time, introduced into the litigation by supplemental petition and a different cause of action set up. The mere fact that the parties to this litigation are closely related, as close as may be, perhaps, does not alter .the fact that each is a separate juridical entity. We are in full sympathy with what our Supreme Court and other appellate courts throughout the land have remarked as to the tendency of mod-era procedure to relax its rigidity and formality to the end that litigation may not be unduly delayed, and we would avoid the appearance of indulging in hair-splitting distinctions. But there is a limit beyond which the pressure of this modern •tendency must be resisted, lest it defeat its very purpose. It must be admitted that some procedural formality is necessary to the orderly administration of justice, and, however reluctant we may be to cause further delay in the decision of this case on its merits, we feel constrained to uphold defendant’s contention, for to do otherwise would, it seems to us, amount to judicial legislation.

In the case of Curacel v. Coulon, 2 Mart. (O. S.) 143, the syllabus of which reads, that “a petition shall not be amended by substituting another name,” the plaintiff undertook to amend his petition by striking out the name of Curacel and inserting that of Ganeson. The court held that:

“This cannot be done. It would not be amending, but making a new petition, and consequently making a new suit. If that could be allowed, the names of both parties could be changed, consequently an entire new suit substituted. In this way, a party whose right of action was lost by prescription, could, by engrafting his action upon another, brought some time before, deprive the defendant of his right, if he could find any suit standing against him, and obtain the plaintiff’s leave to substitute his own name by an amendment; and afterwards, by ano'ther, change the nature of the action.
“It is. true, parties are often added by leave of the court — but this is very different from substituting a new plaintiff in the room of the original one.”

In Stephen Duncan v. John M. Helm, 21 La. Ann. 303, it was held that an amended petition, substituting a new party plaintiff on allegations of ownership, conflicting with the recitals of the original petition, would not be allowed.

Our conclusion is that the defendant, Prank M. Keen, Sr., was improperly impleaded in this case. Consequently, and for the reasons, .herein assigned, the judgment appealed from is reversed, and it is now ordered that plaintiff’s suit be dismissed, without prejudice to any future claim which plaintiff may, in proper form, assert against Prank M. Keen, Sr.


text:
    No. 13,976
    Orleans
    TYLER v. PHILLIPS ET AL.
    (January 11, 1932. Opinion and Decree.)

      James J. Landry, of New Orleans, attorney for plaintiff, appellant.
    Prowell, McBride & Ray and W. P. Mouton, of New Orleans, attorneys for defendants, appellees.
   ON MOTION TO DISMISS

JANVIER, J.

Appellee moves to dismiss the suspensive appeal on the ground that “appellant has filed no legal bond for a suspensive appeal.” The order granting the appeals required that the amount of the bond for the suspensive appeal he fixed “according to law.”

The judgment appealed from was one of dismissal. It was not a judgment for a sum of money, and therefore the amount of the bond to he given in connection with the suspensive appeal should have been fixed hy the judge who granted the order of appeal.

“The law fixes the amount of the bond for a suspensive appeal only where the judgment is for a sum of money.” Braun et al. v. Veillon et al., 166 La. 564, 117 So. 719, 720.

“The jurisprudence of this court is well settled to the effect that in cases, appeal-able from the district courts, to which article 575 of the Code of Practice is inapplicable, the amount of the bond must be fixed by the judge; otherwise the appeal will be dismissed, for want of a bond.” Rozan v. Villere, 147 La. 746, 85 So. 899, 900.

See, also, Barker v. Voorhies, 6 Mart. (N. S.) 315; Slater v. Bank, 12 Rob. 187; Untereiner v. Miller, 29 La. Ann. 435; Union Nat. Bank v. Legendre, 35 La. Ann. 792; Day v. Bailey, 116 La. 961, 41 So. 223; Gottlieb, etc., v. Cohn, 128 La. 697, 55 So. 21; Layman v. Succession of Woulfe, 136 La. 767, 67, So. 823; Ruppert v. Fontenot, 138 La. 375, 70 So. 331.

As stated in Rozan v. Villere, supra, “that jurisprudence is predicated upon the peculiar phraseology of article 575.” See, also, C. P., art. 574.

. Counsel for appellant concedes that, since the order granting the appeal did not fix the amount of the suspensive appeal bond, the appeal (suspensive) was subject to dismissal; he contends, however,' that that right to move for dismissal was lost because of appellee’s failure to file such motion within three days of the day on which the transcript of appeal was filed in this court.

It is true that many motions to dismiss appeals, such as this, have been denied because filed too late. Richard v. Horecky, 13 La. App. 507, 128 So. 177; Scheen v. Hain, 141 La. 606, 75 So. 427; Walker v. Sauvinet, 27 La. Ann. 314; Webb v. Keller, 39 La. Ann. 55, 1 So. 423; C. P., art. 886.

But, in the case at bar, it appears that, although the motion to dismiss was filed more than three days after the lodging of the transcript, it was filed within three days of the return day, as fixed in the order of appeal; appellant having lodged the transcript prior to the said return day.

Article 886 of the Code of Practice allows to the appellee three days within which to file his answer to the appeal and on this article and on article 589 is’ based the jurisprudence which requires that motions to dismiss, such as this, be filed within three days. It will be noted that under both of these articles the three days referred to are not those following the actual lodging of the transcript or record, but the three days following the time fixed for the filing thereof. Under ,article 589 the three days, are those “After the time allowed for the appellant to file the record,” and under article 886, the three days allowed are those following the time fixed in the citation of appeal. The timé allowed for the appellant ‘‘to file the record” is the return day and not any earlier day on which appellant may see fit to file it. Likewise the time fixed in the citation of appeal is the return day as set forth in the order of appeal. Where the appeal is taken by motion and there is no citation of appeal, the time allowed appellee is nevertheless three days from the. return day.

To permit an appellant, by filing a transcript of appeal before the return day, to substitute for the three days permitted by law to an appellee to answer or to move to dismiss another and an earlier three-day period would place upon an appellee the duty of maintaining constant daily supervision and scrutiny of court records to the end that he might be advised immediately upon the filing of a transcript prior to the return day at the risk of being deprived of his right to answer or to move to dismiss the appeal. Such was not intended by the framers of our Code of Practice.

In a syllabus written by the court in State ex rel. Continental Supply Co. v. Fontenot, Sheriff (Dalby, Intervener), 152 La. 912, 94 So. 441, we find:

“A motion to dismiss an appeal is within the legal delay if filed within three days after the time allowed the appellant to file the transcript, and that delay is not affected by the filing of the transcript before the return day.”

In the body of that opinion the court said:

“The motion to dismiss, having been filed within three days, after the return day, was within the legal delay, to-wit, ‘within three days after the time allowed for the appellant to file the record.’ ”

The motion to dismiss the suspensive appeal is granted, and the suspensive appeal is dismissed, at the cost of appellant.


author: CULPEPPER, J.

text:
    No. 4007
    Second Circuit (Second Division)
    BROWN v. TEX. & PAC. RY. CO.
    (December 9, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Refused.)

      J. A. & J. H. Williams and C. H. McCain, of Colfax, attorneys for plaintiff, appellant.
    Spencer, Gidiere, Phelps & Dunbar, of New Orleans, and Peterman, Dear & Peter-man, of Alexandria, attorneys for defendant, appellee.
   CULPEPPER, J.

Plaintiff brought this action for damages as the alleged sister of Ernest Henderson who was struck and killed on the morning of July 8, 1928, by the defendant railway company’s passenger train, a short distance south of Cypress Station, but within its yard limits, in the parish of Natchitoches.

It is alleged that the deceased was a single man,, never married, 31 years of age, had no ascendants nor descendants, and no collateral relations other than petitioner, who was his sister and only legal heir at law. Plaintiff further alleged that the 'deceased was a devoted brother, a good provider, and his. death has deprived her “of his support, maintenance, companionship, love, affection, advice and society.” She prays for $4,000 for loss of support, $2,000 for loss of love and affection, $2,000 for loss of advice, and $2,000 for loss of society.

It is alleged that decedent’s death was. due solely to the gross fault and negligence of the defendant company, its agents and employees, for the following reasons: That at the time deceased was killed he was lying on or near defendant’s railroad track, in plain view for several hundred yards in either direction; that he could have easily been seen by the engineer and fireman in ample time for the engineer to stop the train before reaching deceased, but he failed and neglected to do so; and that the deceased “had a right to be there and was not a trespasser.”

Defendant, in answer, admitted its passenger train struck and killed the deceased on the day and at the place alleged, but denies that same was. negligently done. Defendant avers that Ernest Henderson; a trespasser, wandered upon defendant’s right of way and laid down upon the ground with his head on the end of a cross-tie and his body stretched away from the railroad track, and apparently went to sleep; that the engineer, as the train approached, did not discover that it was a human being until too late to stop- the train, due to a cattle guard nearby obstructing his view, and to the fact that the body was clear of the track.

Defendant denied plaintiff’s alleged relationship to the deceased, her dependency upon him for support, and otherwise entered general denial.

There was judgment rejecting the demands of plaintiff, and she has appealed.

Plaintiff’s right to recover is based upon article 2315 of the Civil Code. She alleges that the deceased left no ascendants nor descendants, no brothers, was never married, hence left no widow, and that plaintiff was his one and only sister. These allegations were denied by defendant. In the interpretation of the codal article relied on, the courts of this state have many times held that same applies to actual and legitimate relatives, and that its. provisions cannot be extended to reach other persons to whom they do not expressly apply. It is also the law that the burden rests upon those who claim to be actual and legitimate relatives to prove same. This is particularly true where the allegations of the existence of such relations, are denied, as has been done in this case. Green v. New Orleans, S. & G. I. R. Co., 141 La. 120, 74 So. 717, 719; Spillman v. Texas & Pacific Ry. Co., 17 La. App. 473, 135 So. 66.

The evidence as to plaintiff’s relationship to the deceased consists alone in her testimony as a witness on the stand in her behalf. There is no other testimony in the record, either by document or parole, upon the question of plaintiff’s kinship to decedent, except mere references in certain portions of the testimony to plaintiff as the sister of the deceased, or reference to him as her brother. Plaintiff testified that the deceased was her whole brother, that they had the same father and mother, and that her father and mother were both dead. Asked if her father and mother were married by law, plaintiff answered:

“1 guess so, I cannot tell what happened in those times, she been dead 21 years.”

She testified that she did not know how long her father had been dead; that her father and mother had been separated before her mother died. She testified that she was - a small girl when the deceased was born, and that her father and mother were, at the time, living together as man and wife, and that no one disputed that they were married. She also testified that her father and mother had lived together “in that country down there” as long as she nould remember before deceased was. born, and continued to live together until they separated a few years later.

Ernest Henderson, the deceased, was, so plaintiff testified, 31 years of age at the time of his death, and plaintiff was a few years his. elder. We gather from plaintiff’s testimony that the home of her father and mother, for many years, was in the locality* where plaintiff resides. If they were ever married, in all probability the records of Natchitoches parish would disclose that fact. Yet plaintiff has produced no evidence of any such record as existing, or that any such record ever existed and was later lost or destroyed. No witness was tendered to the court to testify that a marriage ceremony ever took place between the father and mother.

In order for plaintiff to have shown that her relationship to the deceased was that of legitimate brother and sister, she must have shown some written record of a marriage by their father and mother, or, in event such record had been lost or destroyed, such loss, must have been shown in order to permit secondary or inferior evidence of a marriage. Green v. New Orleans, S. & G. I. R. Co., supra. Plaintiff produced no. such evidence, nor did she offer to produce same. The sole testimony in this connection was the testimony of plaintiff herself, as above outlined. Such testimony, though not objected to, is. wholly insufficient. As stated in the Green case, already cited, the fact that such testimony as was introduced was not objected to does not relieve plaintiff of the obligation to prove that her parents were legally married; and, as the best evidence on that subject would have been a copy of the recorded act, certified to by the clerk of court, it is to be presumed that she would have produced such a copy, if the original had been recorded, as it is also to be presumed that an original act' would have been executed and recorded, if the marriage had ever taken place.

Marriage is considered in law in no other view than as a civil contract, and such marriages only are recognized by law as are contracted and solemnized according to the rules which it prescribes. C. C., arts. 86, 88. No minister or other person shall celebrate any marriage in this state, unless he shall have obtained previously a special license to him directed, issued, in this case, by the clerk of court of the parish in which one at least of the parties is domiciled. C. C., arts. 99, 100, 104. The marriage must be celebrated in presence of three witnesses, signed by the parties, and the act must be made in duplicate, appended to the license, one of which must be returned to the clerk of the court, and be by him filed and recorded in his office. C. C., art. 105. These laws have been in effect doubtless since long before the father and mother of plaintiff and Ernest Henderson became of marriageable age.

The provision of article 105 of the Code requiring the return and registry of the marriage act was added to the article by amendment in 1855 (R. S. sec. 2205). In Green v. New Orleans, S. & G. I. R. Co., heretofore cited, the court in discussing this question stated that:

“Since the améndment to article 107 (now article 105), requiring the return and registry of the act of marriage, to be a plain, elementary proposition that, in any case in which it is sought to prove a contract of marriage, the proponent should be required to produce a certified copy of the public record which the law declares shall be made of the contract, and that, until it be shown that such record has been lost or destroyed, no secondary or inferior evidence, offered to create a presumption that such contract had been entered into, should be received.”

The court follows by saying:

“If that be not true, then there can be no reason why any contract, whether of sale, mortgage, or otherwise, which the law requires to be reduced to writing and recorded, or any instrument, such as a will, required to be in writing, should not be proved by parol evidence, without an attempt to show either its original existence or its loss or destruction.”

The law has been similarly interpreted and applied in many other decisions of the Supreme Court. Lynch v. Knoop, 118 La. 611, 43 So. 252; Vaughan v. Dalton-Lard Lbr. Co., 119 La. 61, 43 So. 926; Mount v. Tremont Lbr. Co., 121 La. 64, 46 So. 103, 16 L. R. A. (N. S.) 199, 126 Am. St. Rep. 312, 15 Ann. Cas. 148; Landry v. American Creosote Works, 119 La. 231, 43 So. 1016, 11 L. R. A. (N. S.) 387.

It was likewise so held by this court in Spillman v. Texas & P. Ry. Co., hereinabove cited.

In the case of Vaughan v. Dalton-Lard Lbr. Co., above cited, also cited with approval in the Spillman case, the court held that article 2315, under which this suit is brought, is sui generis, and is neither a law of inheritance nor a law of marriage. It was also held that a putative wife could not recover damages for the death of her husband. This being true, it is certain that a sister could not recover for the death of her brother when they are the issue of a father and mother who are not shown to have ever been married. There is. no union, other than that solemnized in accordance with the codal provisions on marriage, the issue of which are entitled to recover under the article 2315 in question.

Since plaintiff has failed completely to show a legitimate relationship to the deceased, by virtue of which she must rely for recovery, we deem it unnecessary to pass upon the other features of this. case.

For these reasons, plaintiff, we think, cannot recover. The judgment rejecting plaintiff’s demands is therefore affirmed.


text:
    No. 14,057
    Orleans
    SIMMONS v. VICTORY INDUSTRIAL LIFE INS. CO. OF LA.
    (January 25, 1932. Opinion and Decree.)

      Lenfant & Villere, of New Orleans, attorneys for plaintiff, appellee.
    Chas. I. Denechaud and Ernest J. Robin, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a suit by the beneficiary of an industrial life insurance policy to recover the sum of $184, the face value thereof. The defense is that the insured came to her death as a result of self-inflicted abortion, which, it is averred, is a criminal offense under the laws of this state and specially excepted from coverage under the following clause of the policy:

“If the Insured shall, within three years from the date of this Policy, die by his or her own criminal act, or by suicide, sane or insane, voluntary or involuntary, the only liability under the policy shall be for all premiums paid, which premiums the Company agrees to refund to the person entitled thereto. If the Insured shall at any time engage in military or naval services, (militia when not in active service excepted) or be now or hereafter connected in any way, directly or indirectly, with the sale or manufacture of malt, alcoholic or spiritous liquors, this Policy shall be void, unless, the consent of the Company be endorsed hereon, signed by the President or the Secretary.”

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

The record shows that the deceased was an unmarried female, twenty-three years of age, and died on April 4, 1931, from blood poisoning or septicaemia, resulting from a miscarriage or abortion.

On the trial of the case on its merits, the defendant placed on the stand as its witness the attending 'physician of the insured, and sought to prove by him that the deceased had confided to him that she was in a pregnant condition and that she took about forty grains of quinine for the purpose of bringing on an abortion. The attorney for the plaintiff objected to the doctor testifying to any statements, made by the patient to the attending physician, on the ground that such communications were privileged. The trial court sustained the objection and excluded the evidence, to which the defendant’s attorney timely and properly reserved a bill of exception.

The propriety of the action of the trial judge in excluding this testimony is a matter on which there seems to be a conflict of authority. State v. McCoy, 109 La. 682, 33 So. 730; State v. Genna, 163 La. 706, 112 So. 655; article 6, sec. 12, Constitution of Louisiana of 1921; Cyc. of Law and Procedure, Vol. 40, sec. (v), page 2387, verbo “Witnesses”; Wigmore on Evidence, Vol. V (2d Ed.) secs. 2386-2387, pages 218-219, verbo “Privileged Communications” (Physician & Patient).

But conceding that the evidence should have been admitted, and viewing the record as if the fact had been established, a view most favorable to defendant, we pass to a consideration of the question of whether or not a pregnant woman, who intentionally commits an abortion upon herself, has violated any criminal law of this state.

In Corpus Juris, Volume 1, secs. 17 and 19, page 315, verbo “Abortion,” we find the following language:

Sec. 17. ‘‘The Woman. A woman who swallows a drug or submits to a criminal operation for the purpose of procuring abortion is not a principal, unless she is made so by statute; and it is generally held that the woman is not included by •the terms of a statute making it a crime for ‘any person’ toi administer drugs to or use an instrument on a woman with the intent to procure an abortion. In some states, however, she is, by separate statute, made liable to punishment, and in some cases to the same punishment as a person who commits the abortion on her.”

See. 19. “The Woman. According to the great weight of authority, in both England and the United States, the woman who takes drugs or other things, or submits to an operation with the intent to procure abortion is not an accessory or accomplice, even though she solicits the use of the means employed. She is looked upon rather as a victim than as- a co-offender. By statute, however, in some states, a woman who voluntarily takes, a drug administered by another for the purpose of procuring an abortion is an accomplice.”

In volume 1, Ruling Case Law, secs. 4 and 6, pages 71 and 73, the general rule of law is stated as follows:

Sec. 4. “The statutes with regard to attempts to procure and procuring abortions are directed against the persons who commit the act and not against the person upon whom the act is committed, notwithstanding it may be done with her knowledge and consent, and she, as a general rule, incurs no criminal liability.”

Sec. 6. “The language of the statutes of the different states, describing the offense varies somewhat, but they nearly all provide that whoever, with the intent to produce the miscarriage of any pregnant woman or of any woman, unlawfully administers, or causes to be given to her any drug or noxious substance whatever' or unlawfully uses any instrument or means whatever, with such intent, shall be guilty of the offense.”

In the state of Louisiana, only such acts as are prohibited by statute are criminal. State v. Comeaux, 131 La. 930, 60 So. 620; New Orleans v. Stein, 137 La. 652, 69 So. 43.

In this state, the law on the subject of abortion is found in the Revised Statutes, section 807, as amended by Act 24 of 1888:

“Whoever shall feloniously administer, or cause to be administered, any drug, potion, or ány other thing, to any woman for the purpose of procuring a premature delivery, and whoever shall administer, or cause to be administered, to any woman pregnant with child, any drug, potion, or any other thing, for the purpose of procuring abortion or a premature delivery, or whoever by any means whatsoever shall feloniously procure abortion or premature delivery, shall be imprisoned at hard labor for not less than one nor more than ten years.”

From a reading of the provisions of this statute it is clear that any one who feloniously administers, or causes to be administered, any drug or potion, or any other thing, to a woman for the purpose of procuring an abortion, or premature delivery, is guilty of a crime. In short, it is clear that the Legislature intended to cover third persons who committed such an offense. But whether the Legislature meant to make it an offense for a woman to commit such an act upon herself is not so easy of solution. The first two clauses of the act obviously relate to third persons. If the statute can be said to include the woman upon whom, the act is committed, it must necessarily come within the last clause, which reads “or whoever by any means whatsoever shall feloniously procure abortion or premature delivery. * * *” It appears that this language was added to the Revised Statutes, sec. 807, by Act 24 of 1888. Was it the intention of the Legislature, in adding on this language to Rev. St., sec. 807, to enlarge the scope of the section as to the means adopted in bringing on the abortion, or was it the intention of the Legislature to extend the provisions of the statute so as to cover the woman upon whom the act was committed, where she consented thereto or caused it to be done herself, or was it the intention of the Legislature to accomplish both of these purposes?

In the case of State v. Mauvezin, 136 La. 746, 67 So. 816, the Supreme Court had occasion to consider Rev. St., sec. 807, as amended by Act 24 of 1888, and said:

“Hence section 807 makes no distinction between the attempt and the actual procurement of abortion or premature delivery. The section was, however, by its terms restricted to the internal application of drugs, potions, or like things, for the purpose of procuring abortion.. Act No. 24 of 1888 sought to enlarge the scope of the section by interpolating the following clause:
“‘Or whoever by any means whatsoever shall feloniously procure abortion or premature delivery.’ ”

So there is not any doubt that the Legislature intended to cover cases where the abortion was brought on both by external as well as internal means; in short to enlarge the scope of the statute as. to the means employed.

It is elementary that criminal laws are strictly construed, and, unless an act can be said to fall within the meaning of the words of a statute, it is not a criminal act, though it comes within the mischief sought to be remedied and is equally atrocious. with the acts enumerated by the statute. State v. Fontenot, 112 La. 628, 36 So. 630. It is equally well established that:

“It does not suffice, in a criminal statute, that its purpose should be manifest. To be effective, that purpose must find expression in its language as required by legal rules. Courts may be authorized sometimes to restrain the generality of the terms of a law so as to exclude from its. operation exceptional cases, but not to enlarge the terms of a limited law. State v. Leo, 108 La. 496, 32 So. 447.” Louisiana Digest, verbo “Criminal Law,” Vol. 2, section 5, page 510.

So it is clear that the Legislature cannot make an act criminal by inference, or suggestion, but must do so by clear and definite language. Now it cannot be said that the last clause of the statute (Rev. St., 807 as amended by Act 24 of 1888) clearly or definitely makes it a crime for a woman to commit the act of abortion upon herself. This clause appears to add on to the statute a greater scope as to the means of procuring the abortion and not an additional class of persons. If the Legislature had intended to add a further class of persons, language conveying that meaning could have been easily and readily employed, so that there would not have been any uncertainty or ambiguity in the statute. There is no doubt that a woman who commits such an act, or suffers it to be done, is guilty of a great moral wrong; but we do not believe that the Legislature intended to make such women guilty of a criminal offense. One may be guilty of a moral wrong and not be guilty of a crime. Landry v. Independent National Life Ins. Co., 17 La. App. 10, 135 So. 110.

Having come to the conclusion that, even if the deceased had purposely brought on, by the use of drugs, the abortion which resulted in her death, she was not guilty of violating any criminal law of this state, the provision of the policy in question is inapplicable.

It was also suggested in argument at bar that the deceased might be said, under the above-quoted clause of the policy, to be guilty of “involuntary suicide.” Counsel was unable to enlighten us as to what was the meaning of this term. However, there is no showing of suicide in the record.

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