author: REYNOLDS, J.

text:
    No. 2013
    Second Circuit Appeal
    GOODE-CAGE DRUG COMPANY, INC., v NATIONAL CIGAR STORE, ET AL. CAMPBELL ICE CREAM FACTORY, LTD., v. NATIONAL CIGAR STORE, ET AL.
    (CONSOLIDATED)
    (March 17, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    ,1. Louisiana Digest — New Trial — Par. 3.
    An application for a new trial is addressed to the sound discretion of the lower court and when granted is rarely if ever disturbed by the Appellate Court for the reason that the trial court may, in its discretion, grant a new trial ex officio.
    2. Louisiana Digest — Sales—Par. 160.
    Where the evidence shows that the defendant bought and received the goods while' operating the National Cigar Store, that he sold the same or a greater part of them and received the money for same, he is liable for the purchase price.
    Appeal from the Second Judicial District Court of - Louisiana, Parish of Webster. Hon. Robert Roberts, Jr., Judge.
    These are consolidated cases against the National Cigar Store and Charles Dickens on open account.
    There was judgment for plaintiff and de.fendant, Charles Dickens, appealed.
    Judgment affirmed.
    Drew & Drew, of Minden, attorneys for plaintiff, appellee.
    Lee & Lindsey, of Minden, attorneys for defendant, appellant.
   REYNOLDS, J.

These cases presenting similar issues were consolidated and tried as one in the court below by agreement of parties.

In each the plaintiff filed suit against National Cigar Store and Charles Dickens on open account.

There were two trials. On the first there was judgment in each case rejecting the plaintiff’s demand.

The plaintiff in each case applied for a new" trial and it was granted.

On the second trial judgment was rendered in favor of plaintiff, Goode-Cage Drug Company, Inc., and against defendants, National Cigar' Store and Charles Dickens in solido for the sum of $231.01 with legal interest from judicial demand; and in favor of plaintiff, Campbell Ice Cream Factory, Ltd., and against defendants, National Cigar Store and Charles Dickens, in solido, for the sum of $383.50 with legal interest from judicial demand, and maintaining and perpetuating writs of attachment and garnishment sued out by plaintiff in this last named case.

The defendant, Charles Dickens, has appealed.

The defendant, Charles Dickens, now urges with great force that the new trial should not have been granted.

An application for a new trial is addressed to the sound discretion of the lower court and when granted is rarely if ever disturbed by the appellate court, for the reason that the trial court may, in its discretion, grant a new trial ex officio.

Code of Practice, 547.

Gale vs. Kemper, 10 La. 205.

Muller vs. Hoth, 105 La. 246, 29 South. 709.

OPINION

The plaintiff in each of these cases sued on an open account, the correctness of each of which is fully established hy the evidence; but defendant, Charles Dickens, denies liability on the ground that the business belonged not to him but to one A. B. Moreland.

The evidence shows that in December, 1921, or January, 1922, A. B. Moreland and Charles Dickens discussed a trade by which Moreland was to sell Dickens the National Cigar Store.

As to this proposed sale, Mr. Moreland testified, page 14:

“Q. Mr. Moreland, just state to the court in your own language what took place between you and Mr. Dickens when this property was sold to Mr. Dickens — if it was sold to Mr. Dickens?
.‘.‘A. You mean from the first?
“Q. State the whole transaction.
“A. Prom the first — the connection that we had together all through?
“Q. Just state the whole thing for the court’s benefit.
“A. Well, at the time that I was figuring on making this move, to the new store I was talking with Mr. Dickens in regard to the — he wanted to buy the business at this store down here which is known as the National. Cigar Store. We talked the matter over and We decided just that he would take the store and run it on a half interest basis.
“Q. When was that?
“A. 1921.
“Q. All right.
“A. You see, I moved away from there in April, 1921, to the new store that I now occupy.
“Q. Go ahead.
“A. We came to an agreement that he was to continue the store there and run the store and buy a half interest. The business ran from that year until 1922. Before the beginning of January, 1922, he came to me and wanted to buy. the business over. Buy the business complete, as he preferred to run it that way — on his own hook. I told him that was satisfactory as I had' as much as I could look after at my new store and for him to go ahead and take the business.
“Q. Did you make him a price?
“A. I did not at that time. We talked. it over and discussed the price and the price that was first mentioned was satisfactory — it ran into January and I told him that wé would make this inventory and then agree on the price. So the first of January I turned the business over to him and the inventory was made and after the inventory Was made we agreed on a price which was satisfactory.
“Q. What was the price?
“A. The consideration was three thousand ($3000.00) dollars..
“Q. He accepted that?
“A- He accepted that ana that was all that was said, and he went ahead with the business and then he began buying and signing the checks — buying on his own account. Prior to that time I was supplying drugs and sundries and things for the store, as' he could get his supplies from up there; that was during 1921.
“Q. Right there — you stated that you made a aeal for a certain price?
“A. Yes, sir.
“Q. He accepted the price?
“A. Yes, sir.
“Q. And you delivered the goods to him?
“A. Yes, sir, they were.
“Q. Turned over to him?
“A. Yes, sir, and I walked out.
“Q. Did you have anything to do with the management or running of the National Cigar Store during the year 1922?
“A. None whatever; dictated nothing.
“Q. Have you derived one penny from the National Cigar Store during 1922?
“A. I have not.
“Q. Have you handled the money?
“A. I have not.
“Q. Did you buy the goods?
“A. I did not because I notified these people that I was connected . with it no longer.
“Q. That you had nothing to do with it?
“A. Nothing to do with it.”

From the time Mr. Moreland walked out and left the business with Mr. Charles Dickens, thinking, as he states, that he had sold the business to him, the business was conducted by Mr. Charles Dickens.

Mr. Dickens, on page 13, says:

“Q. Mr. Dickens, you are one of the defendants in this suit?
“A. I am.
“Q. The Goode-Cage Drug Company, Incorporated, filed suit here for a debt of two hundred and thirty-one dollars and one cent ($231.01). Is that correct Mr. Dickens?
“A. I think it is, as well as I remember.
“Q. The Campbell Ice Cream Factory of Shreveport filed suit for the sum of three hundred and eighty-three dollars and fifty cents ($383.50). Is that account correct?
“A. As far as I know, yes, sir.
* * * *
“Q. You bought the goods?
“A. I bought part of them mostly from the Goode-Cage Drug Company — from Mr. Skoog.
“Q. You paid for some of these goods?
“A. Yes, sir.
“Q. How were the checks written?
“A. National Cigar Store per Charles Dickens.
“Q. You handled all of the cash in this business?
“A. Yes, sir, I did.
“Q. Where did you deposit the money?
“A. Webster Bank.
“Q. Under what name was the money deposited?
“A. National Cigar Store.
“Q. You were the only party checking against this account?
“A. Yes, sir.
“Q. You had absolute charge of the National Cigar Store?
“A. Yes, sir.
“Q. There was no interference with your management down there?
.“A.. No, sir, _ nothing at all.
Page 39
“Q. You got all of the money that went in there; you handled all of the money?
"A. Yes, sir; handled all of the money.
* * * *
“Q. Who paid the money for the rent the first six (6) months?
"A. I did.
Page 42
“Q. How much were you willing to pay for the business?
“A. I was willing to pay just his proposition; just as he came down and told me.
“Q. Three thousand ($3000.00) dollars?
“A. I would have, yes, sir.
Page 37
“Q. Well now, at the first of the year 1922, what kind of a price did he make you?
“A. He- made me a proposition that I would take it for three thousand ($3000.00) dollars.”

On page 29, Mr. Ed. Botton testified:

“Q. He continued to pay you in that same way — did he, or not? Did he ever give you a personal check?
“A. When the business changed hands —when he bought the business over all ■ of the checks was signed Charles Dickens.
* * * *
“Q. When did that change come about?
“A. Some time about January, 1922.
On Page 30
“Q. What did Mr. Dickens tell you, Mr. Botton?
“A. When I went to work there he told me that Mr. Moreland was ■ interested in the business — owned part of the business.
“Q. Yes.
“A. It went on that way until about January — some time in January or the first of February when Mr. Moreland came down there ozie’ day and they made the trade. It was my understanding that he said he had bought it. He said that he was going to run it different from what he had been running it.
“Q. Mr. Dickens told you that he had bought it?
“A. Yes, sir.
“Q. Did he say anything about running it his own way or how he pleased?
“A. Yes, sir; said that he could run it his own way now.”

On page 53 Mr. W. P. Devereux testified:

“Q. * * * I went down there and was beginning to look around and I told .Charlie what Mr. Moreland said and he just remarked that he didn’t understand Mr. Moreland, that he had bought it.
* * * *
“Q. Did you ever have any — did you ever have any stock of the National Cigar Store listed with you for sale?
“A. Well, X can tell you how it was. I don’t know whether it was l-isted or not.
“Q. Tell us?
“A. * * * Mr. Moreland asked me to sell the stock of goods and fixtures down there. I went down there and w’as meaning to look around and I told Charlie what Mr. Moreland said and he just remarked that he didn’t understand Mr. Moreland, that he had bought it.”

Prom the above testimony we are convinced that the two accounts w'ere sold to the defendant, Charles Dickens, while he was operating the National Cigar Store; that he received the goods; that he sold the same or the greater part of them; and that he received the money for same.

We therefore think that the judgment of the District Óourt holding him responsible for the price is in' accordance with both law and equity.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed at defendant’s cost.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 11,468
    Orleans
    ROYAL INS. CO., LTD., v. ROMAIN MOTOR CO., INC.
    (February 11, 1929. Opinion and Decree.)
    J. M. Brittingham, Jr., of New Orleans, attorney for plaintiff, appellee.
    St. Clair Adams, Jr., of New Orleans, attorney for defendant, appellant. ■
   JANVIER, J.

Defendant company, at the request of Leon Pfeiffer, undertook to make certain repairs to his Pierce-Arrow automobile.

Before commencing the repairs it was necessary to clean the outside of the motor of the car, and, in an effort to do this, a mechanic in defendant’s employ was scrubbing the motor with a brush which he dipped from time to time in either gasoline or kerosene. There is some dispute as to which was being used. The brush used was an ordinary paint brush hound with a metal band. In some manner the band of the brush came in contact with one of the connections of the starting motor and formed an electrical circuit with, the battery, which had not been disconnected. This electrical contact caused sparks -to fly and these sparks ignited the liquid which was being used, the result being that the car was rather seriously damaged by fire. Fortunately there were fire extinguishers readily accessible and the fire was put out after it had burned only a minute or a minute and a half.

Plaintiff company had issued to Pfeiffer a fire insurance policy and it adjusted the loss and paid to the assured, Pfeiffer, the agreed sum of $387.50.

At the time of payment the insurer obtained from the assured a written subrogation to all of the assured’s rights against the defendant, and this suit is the result.

Plaintiff alleges that the fire resulted from the negligence of defendant company.

Defendant contends that the motor was being washed in the usual and customary way and that as defendant was a bailee for the mutual benefit of both parties', it is not liable, but would only be liable for negligence.

Whether there is any difference between the liability of a bailee for hire and the liability of what defendant terms a “bailee for the mutual benefit of both parties,” we find it unnecessary to determine, because either is liable for his own negligence, and we feel that the fire which we have described resulted from the negligence either of defendant himself, in allowing the motor to be washed with kerosene or gasoline with the battery connected, or from the negligence of the servant of defendant in carelessly striking his brush against the electrical contact point. While some shops do not disconnect the battery before washing the motor, the evidence leaves us convinced that by far the safer practice is to follow the method advocated by a great many of the shops, that is to say, by disconnecting the battery wires. If, then, defendant was negligent, it is liable whether it be a bailee for hire or a bailee “for mutual benefit,” or even a gratuitous bailee.

The judge a quo allowed plaintiff $237.50, but disallowed the claim of $150.00 for damage to the motor. There is in the record no substantial proof of any damage to the motor, and the mere fact that an insurance company sees fit, in adjusting a loss with its assured, to agree with him on an arbitrary amount, not based on actual proof, does not render the party responsible for the loss liable for that amount, or, in fact, for any amount not actually proven. Not only is there no proof that the motor was damaged to the extent set forth, but, on the contrary, there is proof out of the mouth of plaintiff’s own witness, G-uarina, an automobile expert, that the motor in all probability .would not have been damaged as a result of a fire which lasted for so short a time.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, at the cost of appellant.


author: WESTERFIELD, J.

text:
    No. 11,116
    Orleans
    SUNSET REALTY & PLANTING CO., INC., v. FORTIER
    (January 21, 1929. Opinion and Decree.)

      J. E. Fleury, of New Orleans, attorney for plaintiff, appellee.
    Charles J. Mundy, of Thibodaux, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a petitory action. Plaintiff asserts title to the following described property:

“Lots fifty-nine (59), Sixty (60) and Sixty-one (61) in Sub-drainage district No. one (1) of the Sunset Drainage District, this Parish and State.”

Plaintiff acquired from A. V. Smith, by act before J. J. McCloskey, Notary Public for the Parish of Orleans, October 8, 1924; Smith acquired August 11, 1923, at a tax sale by the Sheriff of St. Charles Parish for taxes due for the year 1922,. the property being advertised in the name of C. J. Sorrells. The property has also been conveyed to Smith by act under private signature from C. J. Sorrells dated January • 3, 1925.

Defendant filed a number of exceptions, which were properly overruled by the trial, court, and, alleged that her mother bought the property from Joseph Fortier by act before J. C. Triche, notary public for the Parish of St. Charles on November 27, 1899; that her mother lived upon the property until she died, or about February 7, 1906; that, since then, she has resided upon the property and paid all taxes up to and including the year 1913; that she inherited the property from her mother; that the land was illegally and fraudulently, or by error, included in a certain drainage district for the Parish of St. Charles in violation of the provisions of Act 317 of 1910, and that consequently the property was never legally sold for drainage taxes “for the year 1912 or for any other year.”

The district judge, in deciding the case adversely to defendant, wrote a well con-, sidered opinion, from which we quote the following:

“The evidence of the plaintiff shows, by a complete chain of title which has been filed in the record, that this property, which is described as Lots Numbers Fifty-nine (59), Sixty (60) and Sixty-one (61), was originally acquired by A. Y. Smith at a Sheriff’s sale on August 11, 1923; said property being sold for the taxes due for the year 1922, and that this deed was registered in Conveyance Book ‘W,’ Folio 239; said property having been sold in the name of C. J. Sorrells.
“It is further in evidence that on October 8, 1924, by act before John J. McCloskey, Notary Public in the City of New Orleans, A. V. Smith sold said property which he bought at tax sale, and which is the subject of this suit, to the plaintiff in this case; said act being duly registered in the Conveyance Records in Conveyance Book ‘X’ folio 200.
“It is also in evidence that by act under private signature, acknowledged before Percy S. Benedict, Notary Public in the City of New Orleans, on January 3, 1925, and acknowledged before M. L. Brown, Notary Public for the City of New York, on January 8, 1925, Whereby C. J. Sorrells sold to the said A. Y. Smith all of his right, title and interest in Lots Numbers Fifty-nine (59), Sixty (60) and Sixty-one (61), as described in plaintiffs petition; which said act is registered in Conveyance Book ‘X,’ Folio 265; the said Smith, under the circumstances, acquired title not only by tax deed, but also by private deed.”

Concerning the alleged illegal inclusion of the property in the drainage district the judge said:

“I do not think the question of whether the land is high and dry, or whether it was included in the drainage district has anything to do with the case at bar, for the reason that the tax deed in this case, and which is the basis of ¡plaintiff’s suit, shows that the property in question was sold for State, Parish and other taxes, as well as the drainage taxes due for the year 1922, and hence even admitting for the sake of argument, if the sale for drainage taxes was a nullity because the land is high and dry, nevertheless this would not affect the sale of this property for the taxes due to the State, Parish and other local subdivisions of the State Government in St. Charles Parish, and as to these it strikes the Court, that the sale would be perfectly legal and valid.
“On the other hand, it appears that even although the property may be high and dry, and may have been included in the drainage district, that the defendant at no time raised her voice in protest, or took any action to have her property excluded from the drainage district, but be that as it may, eliminating the question of the drainage district, the Court is of the opinion that the tax sale was good and valid otherwise, and hence the question of its inclusion in the drainage district is of no moment in the decision of this case.
“Counsel for defendant, in his brief, admits that the defendant stopped paying the Parish and State taxes on this ¡property after the year 1914, which, to my mind, puts her out of Court, as the property which is the subject of this suit was sold for taxes to the plaintiff’s vendor on August 11, 1923, for State, Parish and all other taxes for the year 1922, and it is clear that a person cannot own property, live on it, and not expect to pay her prorata of the expenses of the State Government, and what she should have done, if she had any just complaint, was to file proceedings to obtain relief from the things of which she now complains, and failing to do so from 1914 to 1925, the year in which the ¡present suit was filed, it appears that she has been guilty of laches that clearly amount to an estoppel as against her.”

In his brief, counsel for defendant raises the question of insufficiency of the inscription in the tax deed, by which one William Cadow Required the property in July, 1913. In disposing of this question, the trial judge pointed out that the plaintiff was not asserting its title under the tax sale referred to, but under a tax title of August 11, 1923, ten years later.

Finally, defendant contends that prior to the date of the tax sale, August 11, 1923, by which Smith, plaintiff’s author in title, acquired the property, it had been adjudicated to the State of Louisiana at a tax sale in the name of Sorrells on the 10th day of August, 1916, which sale was duly recordeTT in Conveyance Book S, Page 528 of the Records of the Parish of St. Charles, and that it nowhere appears that the State of Louisiana ever resold this land to anybody or, that it was ever redeemed by Sorrells, or any person in his name, and that, consequently the State of Louisiana is the owner of the property today. In respect to this contention, the facts of which are established in the record, from which it also appears that the property following the adjudication to the State was continued on the tax roll in the name of Sorrells and subsequently sold for unpaid taxes to plaintiff’s author in 1923, at a tax sale for the taxes for the year 1922.

In Codifer vs. Aztec Land Co., 6 Orl. App. 214, it was held:

“Where the property was adjudicated to the State and the taxing officers continued to assess the property to the former owner and to collect taxes from the tax debtor who remains in possession such acts will be deemed a waiver of the State’s title binding on its vendee.”

And in Woolfolk’s Heirs vs. Witowski, 120 La. 496, 45 So. 401, it was held:

“If the property passed to the State under the adjudication to it, the original owners are not concerned in the legality of tax sales subsequently made.”

See also Gouaux vs. Beaullieu, 123 La. 684, 49 So. 285.

We are of the opinion that the trial court gave careful consideration to all defenses presented and properly determined the issue in plaintiff’s favor.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,717
    Orleans
    ASSOCIATED MOTORS, INC., v. BURK
    (January 7, 1929. Opinion and Decree.)
    See, also, Associated Motors, Inc., vs. Burk, 166 La. 655, 117 So. 763.
    L. R. Wertheimer, of New Orleans, attorney for plaintiff, appellee.
    Cyril F. Dumaine, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit on an open account in the sum of $146.17. The record consists of the testimony of plaintiff’s witnesses alone, one of whom testifies that the account was presented to defendant, who made no objection to any item appearing thereon, but, on the contrary, promised to pay the account.

The defense, as presented to this Court, amounts to the contention that the plaintiff should have been non-suited for failure to prove the several items making up the account.

The defense is without merit. The silence of defendant at the time the statement of account was rendered to him, together with his promise to pay, amounts to an acknowledgment of its correctness and gives the claim sued on the status of an account stated. Oakley vs. Weil, 7 La. Ann. 169; Bloch Bros. vs. Ferckaud, 13 Orl. App. 369. Flower vs. Millaudon, 19 La. 195; Putnam & King vs. Live Oak Mercantile Co., 122 La. 507, 47 So. 846.

The appellee has answered, asking for damages for frivolous appeal. We consider the appeal frivolous and will allow damages, which we fix at five, per cent.

For the reasons assigned, the judgment appealed from is affirmed. It is further ordered that plaintiff recover damages for frivolous appeal in an amount equal to five per cent of the sum sued on.


text:
    No. 11,497
    Orleans
    SURETY CREDIT CO., INC., v. FOUCHEAUX ET AL.
    (January 7, 1929. Opinion and Decree.)
    Frymire & Ramos and R. R. Hagen, of New Orleans, attorneys for plaintiff, appellee.
    Cyril F. Dumaine, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit on a promissory note. Tke defendant pleads payment. He is corroborated, in part, by the admission that the note was marked “paid” by plaintiff and mailed to defendant.

Tke sending of tke “paid note” is explained as a mistake. Several employees of the plaintiff company including the manager and cashier testified to that effect. There is no evidence to the contrary, other than tke admission referred to. There is a clear preponderance of evidence in favor of plaintiff, consequently the judgment appealed from must be, as it is hereby affirmed.


text:
    No. 11,410
    Orleans
    BICHARD v. LIDEL
    (January 7, 1929. Opinion and Decree.)

      Paul W. Maloney, of New Orleans, attorney for plaintiff, appellant.
    Edw. Dinkelspiel, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

The plaintiff was a lodger in a lodging house operated by defendant. He made a trip to Cuba, leaving some of his belongings in his room. When he returned some of his property was gone. He seeks to hold defendant responsible for his loss as an innkeeper. The value put upon the lost articles by plaintiff is $295.75. Defendant and other roomers who saw the property in plaintiff’s room, when plaintiff was absent in Cuba, refer to it as old clothes and trash.

Among the items claimed to have been lost by plaintiff are three diamond rings, one sapphire stick pin and two $10.00 bills in United States currency. If plaintiff left these items in his room during his absence in Cuba, he has more faith and less caution than the ordinary lodger and his statement in that regard, bears heavily upon our credulity.

The defendant landlord claims that, at the time plaintiff was absent, the room which plaintiff had occupied was vacant, by reason of plaintiff having left without paying his room rent or advising defendant of his intended departure, and, that, consequently such property as was left in the room, which he estimates at little or nothing in value was removed by Kim in order to permit the letting of the room to another lodger, and that in some way the effects abandoned by plaintiff were lost or stolen under circumstances involving no responsibility on his part. There is only plaintiff’s statement to the contrary. He insists that the room had been paid for in advance, and that he left his belongings there during his absence in Cuba, because they were not needed by him on his trip, and because he was confident of finding them there upon his return. This assertion on plaintiff’s part and denial on defendant’s part leaves the question of the relationship of innkeeper and lodger, relied upon by plaintiff as creating the responsibility in defendant for the value of his lost property, unproven and, besides plaintiff’s statement about his money and diamond rings does not add any force to his testimony nor increase its plausibility.

We are, therefore relieved of the necessity of considering the legal question .concerning the responsibility of an innkeeper under the conditions set forth in plaintiff’s petition.

The judgment appealed from, is for the reasons assigned, affirmed.


text:
    No. 11,719
    Orleans
    BRANDIN SLATE CO., INC., v. CREIDMAN
    (February 11, 1929. Opinion and Decree.)

      E. J. DeVerges and S. C. Hartel, of New Orleans, attorneys for plaintiff, appellee.
    J. H. Weiner and S. G. Roos, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, a corporation engaged in the business of selling slate and other roofing materials, and constructing roofs, sued defendant for $131.53, an alleged balance said to be due on a roofing contract. Defendant denies any indebtedness and reconvenes for $300.00.

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

The position of defendant is that the roof installed by plaintiff, leaked, and caused damage to his property, hence his reconventional demand.

It is clearly established that the roof leaked, but we are convinced that the leaks were due to faulty installation of the “flashing,” an operation not included in plaintiff’s undertaking. We are confirmed in this view by the fact that six months after the completion of the roof plaintiff was engaged to install another roof for defendant, and by the further fact, that the entire cost of the roof, about $600.00, was paid except $131.53, the amount sued for, a sum insufficient to compensate for the alleged damage to the property caused by the leaks, which is fixed in the reconventional demand at $300.00.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,452
    Orleans
    GRABER v. VICTOR
    (January 21, 1929. Opinion and Decree.)
    Hiller and Heard, of New Orleans, attorneys for plaintiff, appellee.
    Marcus and Cockern, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff was employed by defendant as a salesman in connection with defendant’s real estate business. He was to receive one-balf of all commissions paid on property sold through his efforts.

An arrangement was made by plaintiff with a Mrs. De Martinez, whereby Mrs. De Martinez agreed to buy a certain piece of property for $18,000.00, and agreed to sell a certain piece of property for $12,000.00.

Defendant and another real estate agent were to share a commission’of 4% on both transactions. Mrs. De Martinez failed to carry out her part of the agreement, and, admitting responsibility, paid the commission, which would have been due on the proposed sale of her property, or $480.00. Of this amount defendant retained one-half or $240.00, and the other agent received the balance.

The property which Mrs. De Martinez was to buy belonged to Mr. Paillet, an intimate friend of plaintiff. In preparing the different agreements relative to the proposed sale of the two pieces of property, plaintiff signed his name as owner of the Paillet property, but, because of that fact, defendant refused to pay to plaintiff any commission on the transaction.

When the case was tried, it was admitted that plaintiff did not own the property, and, Mr. Paillet testified that he had authorized the plaintiff to act for him in the negotiations leading up to the agreement of sale and purchase. It is contended on defendant’s behalf that it is not the custom in the real estate business, for agents to pay owners any commission and that since plaintiff signed the deed as owner of the property, which Mrs. De Martinez was to buy, he is not entitled to receive any commission on the sale of the property which Mrs. De Martinez was to sell.

The custom relied upon is not clearly proven,' but if it had been it would be of no importance, because whether plaintiff acted improperly in describing himself as owner of the property (it appears that plaintiff owned the adjoining property) or not is immaterial, the fact remains that he was instrumental in bringing a new client into his employer’s office and as a result defendant obtained a commission which was voluntarily paid. In other words, no commission was paid by Paillet and it was Paillet’s property that plaintiff erroneously, and we believe inadvertently, represented himself as owning.

We find no error in the judgment appealed from and it is, therefore, affirmed.


text:
    No. 11,728
    Orleans
    TROPICAL LANDSCAPE ENGINEERING AND MAINTENANCE, INC., v. LOEB
    (January 21, 1929. Opinion and Decree.)

      Harry J. Robinson, of New Orleans, attorney for plaintiff, appellee.
    C. E. Loeb Savoy, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff corporation is engaged in tlie business of landscape gardening. Defendant is sued for tbe amount due under a contract for garden work executed by plaintiff upon tbe lawn and premises of defendant’s residence. Tbe quantity and quality of gardening, as executed by plaintiff’s employees is questioned by defendant. There was judgment below in plaintiff’s favor as prayed for and defendant has appealed.

It is contended that the gardening was approved. by defendant, and her approval evidenced by the issuance of a check for $50.00 in part payment. It is admitted that the check was issued, but defendant explains that she gave the check out of sympathy for the plaintiff’s manager, who had tried very hard to please her and that she requested Mr. Perokop, to whom the check was given to hold it for several days, expecting in the interval that certain things would be done to the garden which were not done, and defendant thereupon stopped payment on the check. She admits, however, that at the time the check was issued she had no funds in the bank on which it was drawn, tier statement and explanation is denied by the witnesses for plaintiff.

In other respects the record exhibits the ( customary conflict in the testimony of witnesses affected by an interest in the controversy either by reason of kinship or employment.

The trial judge gave credence to the evidence offered in plaintiff’s behalf and rejected the testimony of defendant’s witnesses. We are unable to see that he was manifestly wrong.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,744
    Orleans
    AUTOMOBILE SECURITY CORP. v. VECINO, JR.
    (February 11, 1929. Opinion and Decree.)
    Geo. J. Untereiner, of New Orleans, attorney for plaintiff, appellant.
    R. Vecino, Jr., and First National Life Insurance Co., of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

An order of appeal was granted from an alleged judgment said to have been rendered October 24, 1928.

We .find no judgment in the record. There is physically attached to _the transcript, though not a part thereof, a folder, apparently of the sort used in the First City Court to enclose records. On the back of the folder there is written in lead pencil:

“10/24/28 Rule to traverse the answers of First National Life Ins. Co., garnishee be dismissed—S—”

It is insisted that the capital letter “S” in this inscription refers to Judge Wm. V. Seeber of the First City Court and that there is no necessity for any other signature. We do not think so. In the first place there are many names, the spelling of which begins with this letter, and, in the next place, a single letter is not a signature, assuming that other irregularities in the alleged judgment might be overlooked. No appeal can be had from an unsigned judgment. Reneau vs. Brown, 8 La. App. 474.

The appeal must be dismissed and it is so ordered.


text:
    No. 11,751
    Orleans
    SIZELER v. PINO ET UX
    (January 21, 1929. Opinion and Decree.)
    Howell Carter, Jr., of New Orleans, attorney for plaintiff, appellant.
    Paul W. Maloney, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

This is a suit against Paul Pino and Mrs. Pino on notes representing the purchase price of certain jewelry. Two of the notes were signed by Pino and one by Mrs. Pino. Plaintiff seeks to hold Pino, not only on the notes signed by him, but also on the much larger note for $253.00, signed by his. wife.

It is, of course, conceded that the husband cannot be held for the purchase price of jewelry purchased by the wife unless he authorized the transaction, or subsequently ratified it either expressly or by his actions. The burden is, therefore, on plaintiff to prove either the authorization or ratification.

We do not believe that plaintiff has- sustained this burden. It is argued that the testimony of the two defendants is incredible and that it should not be believed because it is preposterous to suppose that the wife could have possessed the jewelry for a year and a half; without the husband knowing of it. It is also argued, that it is highly improbable that the wife could have kept this jewelry, in what counsel for plaintiff terms, the family'safe, without the husband having discovered it. Such a situation may be unusual, but it is by no means impossible, and, in view of the positive denial by both of the defendants, we believe that the preponderance of evidence on this point, is with defendants. Plaintiff is a business man of experience and should have made certain that the husband expressly authorized these purchases and the execution of the note.

As to the amount which has been paid by the wife in reduction of the note, the situation is different. On this point the burden is on her to prove the amounts of these payments, and she has not entirely sustained this burden.

We believe that the evidence leaves it very doubtful whether she has really paid more than $67.50. If she had, she could have easily produced her receipts, and in view of the positive statement of plaintiff that this is all that has been paid, we feel that our judgment should go against her. Judgment should, therefore, be against her for $185.50, with interest at 8 per cent from the maturity of the notes i-nd attorney’? fees at 20 per cent on the whole amount.

We see nothing serious in the defense of the husband on the other notes. They were originally for $32.50 and he has paid $7.00, so that the balance due by him is $25.50 with interest at 8 per cent from maturity and $15.00 attorney’s fee.

It is therefore ordered, adjudged and decreed that the judgment against Paul Pino for $25.50, with 8 per cent interest from October 1, 1927, and $15.00 attorney’s fees, be affirmed, and it is further ordered that the judgment against Mrs. Pino be amended by increasing the amount to $185.50, with interest at 8 per cent from October 15, 1927, and 20 per cent attorney’s fees on the whole. The cost of this appeal to be paid one-half by plaintiff and one-half by defendant.


author: JONES, J.

text:
    No. 11,411
    Orleans
    MARSHALL v. FREEMAN
    (February 11, 1929. Opinion and Decree.)

      Arthur N. Curtis, of New Orleans, attorney for plaintiff, appellee.
    P. M. Milner, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a suit for '$8,441.00, damages for personal injuries sustained by ■plaintiff, a guest in a Ford coupe on December 1, 1926, about 6:30 p. m., at the corner of Prytania Street and Washington Avenue, this City.

The negligence charged against defendant is excessive speed and failure to, have his car under control as he approached this greatly used avenue.

Defendant denies all negligence and avers that he had done everything possible to avoid the accident, after the driver of plaintiff’s car had negligently driven across Prytania Street just in front of him, without stopping as required by the City Traffic Ordinance.

There was judgment below for $741.00, and defendant has appealed, and plaintiff has answered the appeal asking for an increase in judgment.

The sole issue before us is the negligence vel non of defendant, because even if there were contributory negligence on the part of plaintiff’s driver, it could not be imputed to plaintiff. See Smyth vs. Hill Stores, Inc., 8 La. App. 246.

The evidence shows the following facts. Plaintiff’s driver going towards the river on the uptown side of Washington Avenue, close to the curb had almost crossed Prytania Street,' when he was struck by defendant’s car, on the right rear wheel and knocked almost completely around over to the curb of Washington Avenue. Defendant’s car, driven by a man named Smith, was going towards Canal Street, when the collision occurred. There is a large two-story building on the property line of the uptown lake corner of Prytania and Washington, which would necessarily limit the view of the two drivers in this ease.

There is a dispute as to whether plaintiff’s driver stopped before crossing Prytania Street, as required by the City Traffic Ordinance. Plaintiff and her driver swear that he did so. Gardner and Smith deny this statement.

The trial judge held that Smith’s own testimony convicted him of negligence. He swears he was going down Prytania Street about eighteen miles per hour until within 10.0 feet of Washington Avenue, when he put his car in neutral and began to coast along so as to have it under perfect control as he knew that this was a blind corner; that he never saw the Ford until he was right on it because it stopped in front of him immediately behind two cars. He admits that he had no driver’s license at the time and that he had never driven this Dodge car before or since, and in fact had not driven any automobile for a year prior to the accident, as he was a general utility man at the store and not a chauffeur. The opinion of the trial judge reads as follows:

“I am of the opinion that the preponderance of evidence is in favor of the plaintiff, and that it shows the accident was caused by the negligence of Smith, the operator of the defendant’s car. The physical fácts bear out plaintiff’s contention. Mr. Knickerbocker, with whom the plaintiff was riding, had crossed over more than half of Prytania Street when his machine was struck by defendant’s car.
“If Smith, was as a fact, .driving at a speed of eighteen miles an hour and coasting ‘in neutral’ there is no excuse for his failure to have seen the Ford in which plaintiff was riding. Smith’s excuse that two upbound automobiles prevented him from seeing the Ford cannot be believed by anyone who operates an automobile.
“I have carefully considered Mr. Gordon’s testimony and when analyzed it is not sufficient to offset the positive testimony of the plaintiff, Mr. Knickerbocker, Mr. White and the undisputed physical facts in the case.
“Mr. Gordon’s position more than 125 feet away from the corner precludes any accuracy of statement as to details. He frankly admits that he could say practically nothing concerning the ‘oncoming’ Dodge.
“The Court believes that a judgment for the sum of Seven Hundred Forty One and No/100 ($741.00) Dollars will reasonably compensate the plaintiff. I have arrived at this amount as follows:
For physical pain and suffering--------$200.00
For disfigurement of face due to narrow scar, and loss and sensation in
small area around scar-------------------- 400.00
Loss of earnings-------------------------------------- 90.00
Medical bill ______________________________________________ 51.00
$741.00

As we think this does substantial justice both as to the liability for negligence and as to the amount allowed, though there is much contradictory evidence on the latter point, we have decided to adopt his views as our own.

Our decision as to negligence in this matter is supported on this point by that in the above quoted Hill Stores case, where we held that a car first entering an intersection was entitled to proceed, although the other car had the right of way. In that decision will be found other authorities.

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


text:
    No. 11,549
    Orleans
    CARTER v. WASHINGTON FIDELITY NATIONAL INS. CO.
    (February 11, 1929. Opinion and Decree.)

      L. Schwartz, of New Orleans, attorney for plaintiff, appellee.
    L. R. Hoover, of New Orleans, attorney !or defendant, appellant.
   JONES, J.

This is a suit on a health and accident insurance policy for $186.00. Plaintiff avers that she was taken sick on the 15th day of November, 1926, with a paralytic stroke, which totally disabled her and that defendant paid her twenty-eight sick claims up to July 13, 1927, but refused to pay anything further up to February 15, 1928, when the policy was lapsed, making in all thirty-one weeks at $6.00 per week a total of $186.00.

Plaintiff further avers that defendant attempted to lapse her policy on October 17, 1926, and that thereafter defendant’s agent refused to accept premiums, although they were tendered to him.

Defendant answered, admitting the payment of twenty-eight sick benefit claims up to July 1, 1927. It averred that the patient had then been discharged by Dr. Gilbert and that no sick benefit claims were filed by her after July 1, 1927, and that, later on, she had failed to pay four premiums, which failure cancelled policy. It admitted that she had paid $1.50 on November 8, 1927, but averred she had refused to sign the application for the revival of the policy, which was a condition precedent to reinstatement, and that defendant had later tendered back to her the sum of $1.50, as she no longer had insurance.

There was judgment below for the full amount, $186.00, and defendant has appealed.

Appellant, in his brief in this court, uses the following language:

“The writer would not have advised the appealing of this matter, if in his opinion there had been positive certain proof that the plaintiff had duly filed her proof of illness, and the defendant refused to pay. The jurisprudence all hold that in that event there is no further necessity to file additional claims.”

The sole question before us, therefore, is whether the record proves that defendant mailed two claims for sick benefits during the month of July, 1927.

Part of the policy relied on by defendant is the first sentence of paragraph 3 of the conditions on the back, which reads in part as follows:

“The Insured shall not be entitled to any benefits for sickness or accident under this Policy unless a certificate on the Company’s form by a regularly licensed and practicing physician who is satisfactory to the Company, showing the nature of the sickness or injury, shall first be furnished the Company or its authorized agents.”

The record abundantly shows that plaintiff was seriously ill from December 15, 1926; that Dr. Gilbert, her regular physician, paid her many visits at her home; in fact continued to visit her until she was unable to pay him any longer when the Insurance Company stopped its payments. She was sent to Charity Hospital for several months. The certificates of the Charity Hospital show she was suffering with enlarged heart, high blood pressure, chronic kidney disease, chronic congestion' of the liver, and the effects of an old cerebral hemorrhage.

Dr. Gilbert testifies that he filled out the two claim blanks for plaintiff, which defendant denies that it received. Hazel Anderson testifies that she was a close neighbor of plaintiff, living in the same yard with her; that she filled out all the claim blanks and mailed them herself to thé defendant company, and she particularly states that she mailed the two' claim blanks in dispute here, which Dr. Gilbert had signed. On cross-examination she testified that she filled out and mailed claim blanks from the beginning of plaintiff’s illness, until defendant refused to pay more; that she could not give the dates, but that she knew she mailed two in July.

The only adverse testimony was that of the manager of the defendant company to the effect that he had no record of receiving these two certificates.

We agree with the trial judge in thinking that the positive testimony of the doctor and of Hazel Anderson is worth more than the negative testimony of the manager of the company. Ón this point see Harvey vs. Kuhnholz, 3 La. App. 794, where this Court said:

“The presumption is that a letter properly addressed and mailed was received by the addressee * *

The record shows that defendant originally refused to pay further claims because their physician, Dr. Azar, recommended that nothing further be paid, as the patient was able to move around, and Mr. Kelly, the superintendent, when asked by his counsel why he quit paying plaintiff, answered:

“On Dr. Gilbert’s statement to me.”

The evidence does not sustain this contention of defendant as to failure to pay premiums. There are several witnesses who testify that they tendered payments to defendant’s agent between October 10th and November 8th, and we hardly think it probable that this penniless, ignorant colored woman, who was desperately ill, would have allowed her insurance to lapse. Furthermore, the evidence tends to show at least one payment was tendered by Lucille Carter, sister of plaintiff, about October 17th, and that she was told the policy had lapsed. This contention that the policy lapsed on October 10, 1927, is answered by the decision of this Court in the recent case of Victor Olezene vs. Eagle Life Insurance Co., Inc., 11 La. App. 153, 121 So. 881.

“An assured in an accident insurance cannot be denied benefits for non-payment of premiums when at the time they become due the company was . indebted to him for sick benefits.
“Sick benefits can be denied for nonpayment of premiums when due, only when the sickness begins or occurs within the period of non-payment.”

The judge of the trial court erred in failing to deduct the premiums falling due during the eighteen weeks of delinquency, and as these amounted to 30 cents per week, a reduction of $5.40 Should have been made from the amount allowed. In all other particulars the judgment is correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from he amended, and that there now be judgment in favor of the plaintiff, Ophelia Carter, wife of Green Austin, and against the defendant, Washington Fidelity National Insurance Company, in the full sum of one hundred eighty and 60-100 dollars ($180.60), with interest from judicial demand until paid, costs to be paid by appellant.


text:
    Nos. 11,554 and 11,555
    Orleans
    LIVINGSTON FINANCE CORP. v. BAUDIN ET AL.
    (February 11, 1929. Opinion and Decree.)
    F. B.- Freeland, of New Orleans, attorney for plaintiff, appellant.
    Dufour, Rosen & Kammer, and Puneck, Barrios & Landry, of' New Orleans, attorneys for defendants, appellees.
   JANVIER, J.

Plaintiff obtained judgment against several defendants, among them J. W._ Barfield, who was a motorman in the employ of New Orleans Public Service Inc. Plaintiff then caused garnishment proceedings to issue against New Orleans' Public Service Inc. and, for reasons, best known to it, repeated these proceedings at such frequent intervals that they more or less resembled machine gun fire.

Garnishee prepared answers to all of these garnishment proceedings and at different times handed these answers, always in due time, to the Clerk of Court, or one of his deputies.

On one occasion two such answers were handed to the Clerk, together, and one of them, through an oversight of the Clerk, was not marked “filed,” was not entered on the docket as “filed” and was not collected for. It was, however, actually placed in the record of the case in the Clerk’s office.

The first question presented for determination is whether or not the answer referred to was in fact filed and, consequently, whether a judgment “pro confesso” could be rendered under such circumstances. It will be seen that two of the clerical acts usual to the filing of documents were omitted. Collection was not made and the document was not stamped “filed”.

Do these omissions deprive the document of its power to prevent a judgment “pro confesso”? As to the payment of costs, the Supreme Court of Louisiana, in Leon Zion Mercantile Co. vs. Pierce, 163 La. 477, 112 So. 371, said:

“The matter of exacting prior payment of costs concerns the clerk alone.
.“The judge has no interest therein and it was not for him to urge the non-payment of costs as a reason for not signing the order requested of him.”

Clearly, then, the failure to pay the costs ordinarily required for the filing of a document can have no other effect than to give to the clerk a right to collect such costs from the party who filed the document.

In Armstrong vs. Ellerslie Planting Co., Ltd., 146 La. 559, 83 So. 830, the Supreme Court said:

“Clerk’s failure to indorse filing mark upon a motion for rule to traverse the answer of a garnishee before the expiration of 20 days from the notice of the filing of the answer did not have the effect of releasing the seizure under Act No. 73 of 1884, and plaintiff, having reasonably complied with such law, the motion will be treated as having been filed on the date it was handed to the clerk.”

It was conclusively shown that the answer was physically in the record at the time the motion for judgment “pro confesso” was filed. Therefore, under the authority of the Armstrong case, we now hold that the failure of the clerk to indorse the answer as “filed” and to enter it on the docket did not deprive it of its power to prevent the issuing of a judgment “pro confesso”.

The second point presented results from the fact that each employe of defendant, on entering its service, is required to deposit the sum of $25.00 in cash to indemnify the company for cost of uniforms, or for cash shortages, if any. This deposit is retained by the company until the employe leaves the service, and so long as he remains in the service he has no right to demand its return. Plaintiff contends that, at least to the extent of this sum, garnishee was indebted to defendant and must, under the “fi. fa.” and garnishment turn this amount over. We do not agree with plaintiff in this. If garnishee could be required to surrender this deposit, it would, as a condition to retaining the defendant in its service, exact another deposit, which of course would have to be accumulated from his wages, and thus would plaintiff obtain from defendant indirectly what it could not obtain directly (assuming, of course, that defendant’s wages are as he exempt from seizure). Another reason for our opinion that this deposit cannot be garnisheed so long as defendant remains in the employ of garnishee, is that he, himself, cannot withdraw the deposit, and it would be plainly improper to allow a creditor to secure property which the defendant himself has no right to obtain. The deposit is not due to the defendant until he leaves the service and until that time no one has the right to require gai’nishee to surrender it.

For these reasons we are of the opinion, that no judgment should be rendered against garnishee, either- “pro confesso” or otherwise.

Defendant, in the main suit, has moved to set aside the garnishment on the ground that he was a laborer and that, therefore, his wages were exempt from seizure. He was a motorman, and, under the decisions of this and other Louisiana courts, as such, he was a laborer. This was decided by this court in Commercial Credit Company vs. Parret, 6 La. App. 423. In another case involving the same question, McKernier vs. Metzger, No. 3163 of the docket of this court, 120 So. —, the question was decided in exactly the same way, and in that case the Supreme Court refused to issue a writ of certiorari.

It is therefore ordered, adjudged and decreed that the judgment setting aside the garnishment of wages of J. W. Barfield be and it is affirmed, and it is further ordered, adjudged and decreed that the judgment in favor of New Orleans Public Service Inc., and against Livingston Finance Corporation be and it is affirmed; all at the cost of appellant.


text:
    No. 11,070
    Orleans
    HAMANN v. SPICUZZA
    (February 25, 1929. Opinion and Decree.)
    Henry W. and Henry M. Robinson, of New Orleans, attorneys for plaintiff, appellant.
    Bond, Curtis, Hall and Foster, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This case results from an intersectional collision of two Hudson automobiles. The plaintiff claimed $413.55, as damages to his car and the defendant reconvened and prayed for judgment in the sum of $340.09, as damages to his automobile. The trial court dismissed plaintiff’s suit and awarded the defendant judgment in reconvention as prayed for.

The accident occurred in the intersection of Barracks and Chartres Streets. Plaintiff was driving in Chartres Street and approached the intersection from the direction of Canal Street. Defendant’s car, which was being driven at the time, by his son was in Barracks Street and being driven from the direction of the lake towards the river.

There is the usual conflict of evidence as to the speed of the two cars, and as to which car entered the intersection first. There were six occupants of plaintiff’s car, five of whom testified that the speed of their car was very slow and that they had almost effected the crossing, when run into by the defendant’s automobile. There were three occupants in defendant’s car, all of whom testified that plaintiff’s car was going very fast and that they were going very slow, and that their car had almost completed the crossing when run into by the plaintiff’s car.

The trial judge with the advantage of having seen and heard the witnesses, believed that the plaintiff was at fault because, notwithstanding the fact that he had the right of way, the other car had entered the intersection first, and, that, consequently the defendant’s car was entitled to proceed: Griffin vs. Chalmette Laundry Co., 8 La. App. 146; Vance vs. Poree, 5 La. App. 109; Hirsch vs. Asford, 5 La. App. 290. We are unable to say from the record before us, that there was any manifest error in this holding; consequently we will not disturb his findings in respect to "the negligence of the owner of plaintiff’s car.

The reconventional demand involves the question of the contributory negligence of the driver of defendant’s car. The judge, a quo, concluded that the speed of the car was very moderate and emphasized the fact that a young boy, a friend of the driver, had jumped on the running board of defendant’s car just before it reached the intersection and jumped off just before the collision, as conclusive evidence of the moderate speed of the car, and in this finding we also concur. However, we are of the opinion that in permitting the young boy to ride on the running board, which was on the right side of the automobile, and directly in his line of vision, obscuring his view of plaintiff’s approaching automobile, he was guilty of negligence, which to some extent at least contributed to the accident. Since defendant’s car was proceeding very slowly, if his vision had not been obscured by the presence of the boy on the running board, it is likely that he would have been able to prevent the accident by stopping his car.

We are of the opinion that the negligence of the driver of defendant’s car contributed to the accident, and precludes defendant’s recovery on the reconventional demand.

For the reasons assigned the judgment appealed from is amended insofar as it awards to defendant judgment in reconvention, and it is now ordered that there be judgment on the reconventional demand in favor of plaintiff, Richard H. Hamann, and against the defendant, Michel Spicuzza, dismissing the defendant’s claim in reconvention, and that defendant pay all costs in this court. In other respects the judgment appealed from is affirmed.


text:
    No. 10,884
    Orleans
    DIMM v. CHECKER CAB CO.
    (March 4, 1929. Opinion and Decree.)

      Charles Rosen and Louis L. Rosen, of New Orleans, attorneys for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, while standing in the intersection of Magazine and Poydras Streets, waiting for a street car, was run into and injured by a backing taxicab. He sues for damages.

The defendant relies upon its plea of contributory negligence based upon the averment that plaintiff should not have been standing in the street in the path of the backing cab.

The case was tried before a jury in the Civil District Court and a judgment rendered in plaintiff’s favor in the sum of $500.00. Defendant has appealed.

The accident occurred on Mardi Gras day, February 24, 1925. When plaintiff entered the street for the purpose of boarding the street car, the taxicab was parked along the curb some twenty or twenty-five feet distant, having discharged a passenger at that point. There were a number of other automobiles in front of the taxicab which prevented its forward movement, making it necessary for the driver to back his cab to get away from the parked cars. The driver of the taxicab claims that before starting to back he looked through the glass in the rear of his cab and saw no one. In doing so, however, he ran into plaintiff, knocked him down and injured his left foot.

Plaintiff was not negligent in standing in the street and waiting for the approaching street ear. He was in the intersection, at the place customarily used by intending passengers for the purpose of signalling and boarding the cars. The taxicab was at rest when he entered the intersection with its rear towards him. He had every reason to assume that before attempting to back the driver of the taxicab would sound his horn, and give proper warning of his intention. The chauffeur should have made certain that the way was clear. Whether he saw plaintiff, or not, he should have seen him. No horn was blown or warning given.

“A pedestrian who, in crossing a street encounters an automobile standing at the curb towards which he is travelling may assume that it will not be moved backwards without some warning.” Blashfield Encyclopedia of Automobile Laws, Yol. 2, page 1027.

Moreover the accident occurred at 11:00 a. m., on Mardi Gras day, when, as a matter of common knowledge, the streets and sidewalks of the City of New Orleans, particularly in the section where the accident occurred, are unusually congested by vehicular and pedestrian traffic, a situation requiring unusual care and skill in the operation of taxicabs.

We are of the opinion that the liability of defendant has been established.

Plaintiff’s injuries were not severe, his foot was hurt, but no bones broken. He was compelled to use crutches for ten days, during which time his foot had been placed in a plaster cast. He incurred an expense of $40.00 for medical services and $7.50 hospital charges, and was compelled to absent himself from his employment for two weeks.

It seems to us under the circumstances, that the award of the jury was somewhat excessive and should be reduced to the sum of $350.00.

For the reasons assigned the judgment appealed from is amended, by reducing the amount awarded plaintiff from $500.00 to $350.00, and as thus amended is affirmed.


text:
    No. 10,604
    Orleans
    HARRIES v. COURCIER
    (January 21, 1929. Opinion and Decree.)
    (February 11, 1929. Rehearing Refused.)
    (March 26, 1929. Decree Supreme Court, Writ of Certiorari and Review Refused.)
    Lemle, Moreno and Lemle, of New Orleans, attorneys for plaintiff, appellant.
    Dart and Dart, and L. L. Dubourg, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

The facts in this case are stated at length, in an opinion overruling the judgment maintaining an exception of no cause of action, rendered by this Court, April 27, 1925. (2 La. App. 134.)

The case was subsequently tried on the merits, and judgment rendered in favor of defendants. Plaintiff has again appealed. It is necessary to repeat briefly the following facts.

The defendants, Richard and Albert Courcier, purchased from the Nola Motor Company, Inc., an “Indiana’’ motor truck by notarial act of sale and chattel mortgage, for the price of $3,346.00. There was some cash paid but the consideration was largely credit, represented by promissory notes. There was one note for $659.72, payable sixty days after date, and, twelve notes, due respectively 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 months after date, each for an equal amount and aggregating $2,509.63, all made payable to the order of defendants and by them endorsed. Plaintiff purchased all the notes immediately following their execution, and, all were paid except one, the note for $659.72. That one, had been partly paid, the balance due being $285.59, for which amount this suit was instituted.

This note, bears on its face the usual paraph of the notary before whom the act of sale and mortgage was passed, “Ne Varieteur for identification,” etc. In the act, it was stated that the note was to be paid out of the sale of an International truck, the explanation being that the parties could not agree on the exchange value of the International truck, consequently, it was stipulated that it should be sold to the best advantage, and, the proceeds applied to the extinguishment of this note, the excess, if any, to be paid to the Courciers.

The trial court was of the opinion that the notarial paraph identifying the note with the act of sale and mortgage had the effect of reading into the note all of the conditions and obligations expressed in the act of sale and mortgage, and that, the words “payable out of sale of their International truck” meant that the note was payable only out of the proceeds of such sale. There being no proof that the truck had been sold in the record, plaintiff was denied recovery.

The first question to be considered is the effect of the notarial paraph upon the negotiability of the note.

Under Section 52, of Act 64, of 1904 (Uniform Negotiable Instrument Act) “A holder in due course is a holder who has taken the instrument under the following conditions :

“1. That it is complete and regular upon its face; •
“2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;
“3. That he took it in good faith and for value;
“4. That at the time it was negotiated to him he had no notice of any infirmity iin the instrument or defect in the title of the person negotiating it.”

Section 1 of Article 1 of the same act reads as follows:

“An instrument to be negotiable must conform to the following requirements:
“1. It must be in writing and signed by the maker or drawer;
“2. Must contain an unconditional promise or order to [pay a sum certain in money.
“3. Must be payable on demand, or at a fixed or determinable future time.
“4. Must be payable to order or to bearer, and,
“5. Where the instrument is’ addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty.”

Section 3 of Article 1 of the same act reads as follows:

“An unqualified order or promise to pay is unconditional within the meaning of this Act, though coupled with:
“1. An indication of a particular fund out of which reimbursement is to be made, or a particular account to be debited with the amount; or,
“2. A statement of the transaction which gives rise to the instrument. But an order or promise to pay out of a particular fund is not unconditional.”

It is admitted that plaintiff purchased the notes before maturity, and in good faith and for a valuable consideration. If, therefore, the instrument was negotiable he was a holder in due course, unless, at the time it was negotiated, he had notice of a defect in the title of the person negotiating it.

That the instrument was negotiable seems clear by the overwhelming weight of authority here and elsewhere. First State Bank and Trust Company of Bogalusa vs. Crane, 157 La. 427, 102 So. 513, 38 A. L. R. 347; Tyler vs. Whitney-Central Trust and Savings Bank, 157 La. 249, 102 So. 325; Van Tassell vs. McGrail et al., 93 Wash. 380, 160 Pac. 1053; Nichols vs. Ruggles, 76 Maine 25; Ouachita National Bank vs. Carpenter et al., 160 La. 1033, 107 So. 896.

It is not seriously denied that the law, in this regard, is as we have stated it, but, it is said that this case is not within the principle of the cited cases, because plaintiff had knowledge of the defects in the title of the Nola Motor Company and in asking that the chattel mortgage securing the notes be recognized and enforced he has waived any right to a judgment on the note alone because he cannot claim the benefits of a contract and at the same time, escape its obligations. In support of this last proposition, we are referred to Sherer-Gillett Co. vs. Bennett, 153 La. 304, 95 So. 777, where it was held:

“One will not be allowed to claim the benefits, and at the same time escape the obligations, of an undertaking.”

Our attention is also called to the fact that in only one case cited by plaintiff was there a judgment asked for on a note, and at the same time a prayer for the recognition and enforcement of the mortgage, the other cases being suits on the notes alone.

As to the contention that plaintiff had knowledge of the defects in the title of the Nola Motor Company, there is no evidence in the record to that effect. It is true that in his petition he refers to the act of mortgage, and the relief sought refers to the recognition and enforcement of the chattel mortgage, but this would only indicate that he knew that the notes were secured by the chattel mortgage, which information must have been known by anyone, who had come into possession of the notes, because they bore on their face evidence to that effect. It does not appear that his knowledge extended any further, and, the possession of such knowledge as he had is insufficient to affect his character as a holder in due course. Insofar as the contention that a party may not reap the benefits, without assuming the obligations of a contract, we fail to find any application of that principle to this case. The fact that the court is unable to award judgment to the full effect prayed for, does not prevent a partial recognition of plaintiff’s claim.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that the plaintiff, Edmund Harries, have judgment in his favor and against Richard Courcier et al., in solido, in the sum of $285.59 with interest at 8% per annum from August 16, 1922, until paid.


text:
    No. 11,562
    Orleans
    COYLE v. JOHN MAESTRI FURNITURE CO., INC., ET AL.
    (February 11, 1929. Opinion and Decree.)

      S. S. Goldman, of New Orleans, attorney for plaintiff, appellee.
    Leslie Moses, of New Orleans, attorney for defendants, appellants.
   JONES, J.

Plaintiff sues the John Maestri Furniture Co., Inc., and the Cigali Furniture Company, Inc., for $159.26, the unpaid price of certain feedstuff sold and delivered to the first named defendant between December 9, 1927, and January 6, 1928. He attaches to his petition itemized bills addressed to John Maestri Furniture Co., Inc., totalling the amount claimed and he further alleges that the Maestri Company made a bulk sale of its assets to the Cigali Company without complying with the bulk sales law (Act No. 270 of 1926), and prayed for judgment against the two corporations in solido.

The defense is that the feedstuff was sold to John Maestri individually and not to the John Maestri Furniture Company, Inc. There was judgment below in the amount as prayed for and the defendants have appealed to this court.

We find it useless to make a detailed analysis of the evidence, as only a question of fact is involved, and it amply sustains the decision of the trial court. The decision will be affirmed in accordance with the well recognized principle that judgments on questions of fact will not be disturbed by this court unless there is manifest error.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


author: WESTERFIELD, J. JANVIER, J.

text:
    Nos. 10,540 and 10,541
    Orleans
    BRADLEY v. SWIFT & CO. BALTHAZAR v. SWIFT & CO.
    (January 21, 1928. Opinion and Decree.)
    (April 23, 1928. Rehearing Refused.)
    (June 5, 1928. Writ of Certiorari and Review to Supreme Court Granted.)
    (March 4, 1929. Opinion and Decree of Supreme Court.)
    Norman, Breckwoldt and Schwartz, of New Orleans, attorneys for plaintiff, appelant, Balthazar.
    Paul A. Sompayrac, of New Orleans, attorney for plaintiff, appellant, Bradley. ■
    Miller, Miller & Fletchinger, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

On February 27, 1928, When these cases were before us originally, in an opinion rendered at that time we decided both cases in favor of the defendant, Swift and Company. The facts are stated in that opinion. It is only necessary, for our present purpose, to repeat that William Balthazar was killed in the course of his employment by the defendant, Swift and Company, and that Elizabeth Bradley, his widow, and Paul Balthazar, his father, claimed compensation under the Employer’s Liability Act (No. 20 of 1914, as amended). We decided that the wife could not recover because she was neither living with nor dependent upon her deceased husband to any extent at the time of his death (Section 8, subsection 2, paragraph (e), Act 216 of 1924) and that the father could not recover because of the existence of a surviving wife (Section 8, sub-section 2, paragraphs (g) and (h) of Act 216 of 1924). The Supreme Court issued a writ of review and in its opinion handed down October 29, 1928, 119 So. 37, the conclusion of this Court with respect to the widow, Elizabeth Bradley, was affirmed, but it was held that the mere existence of a surviving wife would not preclude the father from claiming compensation, it being necessary, under the compensation law, that the surviving widow be entitled to compensation in order to exclude the father, and that, since the wife in this case was not entitled to compensation, the father’s claim must be considered. The case was remanded to this Court for the purpose of determining the legitimacy of the deceased son and the dependency of the father, those questions not having been heretofore determined, the view of the matter taken by this Court rendering their consideration unnecessary.

Counsel for defendant admits the legitimacy of the deceased’s parentage and relies solely on the defense that, at the time of the death of William Balthazar, Paul Balthazar, his father, was not dependent upon him to any extent.

In order for the father to De deemed dependent upon his son, it is only necessary to show dependency in the slightest degree. In the record we find ample testimony which, if believed, would support the father’s case, and were it otherwise, and the question of whether the evidence, tending to prove dependency, preponderated in the father’s favor in doubt, we would be inclined to resolve that doubt in the father’s favor, conceiving it to be the proper judicial spirit in which all paternalistic legislation, such as the compensation law, should be interpreted and applied. But we are absolutely unable to believe the witnesses. The demand upon our credulity is too great. For example, it is said that the deceased, with unfailing regularity, over a period of twenty years, made quarterly remittances of $35.00 each to his father, and that these remittances were never made direct, but always conveyed to the father by his sister, Florence Prescott. Such is the testimony of the father and daughter. The father, an old and illiterate negro, seemed to derive much satisfaction from the use of the word “quarterly,” which was, apparently, a new addition to his meager vocabulary and used it in reply to a number of questions to which the word was in no sense responsive. In addition to the testimony of the father and the daughter, there is the evidence of a nogro preacher, living in St. Mary Parish, to the effect that he understood that William contributed $4.00 a week to his father, this amount being somewhat in excess of the quarterly payment testified to by the other witnesses. In our former opinion, referring to Elizabeth and William Bradley, we said:

“Elizabeth Bradley, or ‘Lizzie’ as she is frequently styled in the testimony, married the late William Balthazar in the Parish of St. Mary. Both were illiterate negroes and in lieu of their signatures to their marriage certificates affixed their marks. William proved to be inconstant and after a short residence with his bride, left for New Orleans, where for twenty years he led a rather purposeless and aimless existence, sometimes employed, and more often otherwise, but ever and always, so far as the record shows, impecunious. Shortly before his death he, for the first time obtained steady employment, and with the defendant.”

A reconsideration of the record confirms us in that view. William Balthazar, the deceased, was a shiftless, do-less, lazy negro, who lived from hand to mouth; who neither sought, nor found steady employment until shortly before his death, with the defendant.

Charlotte Jenkins, who claims to have known the deceased for more than twenty years, testified to this effect, saying, in addition, that she kept him at her home and that otherwise he would have had no place to stay, no place to eat, or sleep. It is true that we rejected the testimony of this witness in the former hearing, when she testified to the ability of the deceased, William Balthazar, to read and write and upon the principle ‘‘falsus in uno, falsus in omnibus’’ little confidence can be placed in her unsupported evidence. But the claim made by the father and daughter concerning the clock-like regularity of these quarterly payments, and the uniformity of method employed we simply cannot believe. The deceased reached the peak of his earning capacity just before his death, when he earned about $54.00 per month, or $158.00 quarterly. To believe that out of this slender income he gave his father more than 20% would be difficult enough, but this was his maximum income which he enjoyed only a short time, and when his probable average earning is considered, the difficulty- amounts to an impossibility. If we credit the deceased with the highest sense of filial obligation his income was so precarious that it must have often fallen far below the alleged quarterly payments, many times reaching zero, consequently however willing, he was not able to pay.

For the reasons assigned the judgment appealed from is affirmed.

JANVIER, J.

The rehearing granted in this case was limited to the question of whether or not a parent in destitute circumstances is to be considered as actually dependent to any extent on one of his sons solely by reason of such destitution, and although the son had, prior to his death, contributed nothing to the support of the parent.

It seems to us that the problem is one very difficult to solve. Although there are in the jurisprudence of Louisiana several decisions of the Supreme Court and of the various Courts of Appeal which are almost decisive here, in each of those cases there was some point on which a clear differentiation could be based, and hence the exact question presented here has not yet received from the courts of Louisiana judicial investigation.

Counsel for defendant argues that, if the statute contained simply the word “dependent’’ instead of the words “actually dependent”, destitution alone might be sufficient.

He also argues that the requirement of the statute, that the actual dependency must exist at the time of the injury or death, prevents its application to the facts presented here.

Except for the decisions to which we have alluded, the question would be one of extreme difficulty and, even with such illumination as is thrown upon it by these decisions, it is not free from doubt.

It should be borne in mind that the compensation laws of Louisiana were the result of compromise arrangements between employers and employes.

On the one hand, the amounts awarded in compensation are not commensurate with the actual loss sustained, and on the other hand, the award in compensation is made regardless of fault on the part of the employer. It was certainly the intention of the act to recompense the party deprived of support, to some extent at least, for each of the items of loss sustained.

With this thought in view we find the reasoning on page 1027 of the opinion of the Supreme Court in Bourg vs. Brownell-Drews Lumber Co., Ltd., 120 La. 1009, most persuasive. In that case the parent sued in damages for the death of his minor son. As an element of damage he claimed that he was deprived of the potential right to claim from his son the maintenance to which he was entitled under Civil Code, Article 229, which provides that:

“Children are bound to maintain their father and mother and other ascendants, who are in need, etc.”

It was argued that the father was deprived of this right and that this deprivation constituted a loss to him, and, therefore, an item of damage to be taken into consideration. The court refused to consider this item of damage, but in so doing said:

“But there has been no attempt to prove that plaintiff is in need or ever expects to be.”

It seems, then, that our Supreme Court, had the parent shown that he was in need, or that there was a probability that he would be in need, might have awarded damages on this item.

If, then, this is an item of damage which, when the parent is in need or in destitute circumstances, may be taken into consideration in a tort case, and, if the compensation act was intended in a small measure to recompense persons who, as a result of industrial accidents, sustain losses, then should not the destitution of the parent alone be sufficient to entitle him to recover from the employer of his deceased son?

Another case to which we have alluded, and which is almost though not quite decisive of the question presented here, is Heinzelman vs. Board of Commissioners of the Port of New Orleans, 149 La. 215. This case indicates that our Supreme Court intended that destitution alone should be sufficient to entitle a parent to compensation for the death of a son. This was a compensation case and in discussing the question presented here the Court said:

"Counsel for defendant argues that plaintiff is entitled to nothing, because, under the provisions of the Civil Code, Arts. 223 and 226, though parents are granted the usufruct of the estates of their children, until the children attain their majority, it is ¡expressly declared that such usufruct ‘shall not extend to any estate which the children may acquire by their own labor.’ Those provisions, however, deal with the interests of living children; and, moreover, they are not in conflict, but are to be construed with Article 229, which de-. Clares that ‘children are bound to maintain their father and mother, and other ' ascendants who are in need.’
“Here we have a statute providing for a different situation; not for the disposition that shall be made of the estate for the disposition of part of the wages that a child would, or might, have earned and would have contributed to the maintenance of his parents if he had lived, and which the statute under consideration declares shall he paid by the employer in whose service he was engaged when he lost hig life.”

This language, would seem to be very strongly indicative of a view in the Supreme Court that destitution alone is sufficient to constitute dependency.

Other cases in which the question has been discussed are Gregory vs. Standard Oil Co., 151 La. 228, 91 So. 717; Hansen and Wife vs. The Ohio Oil Co., 2 La. App. 690; and Nelson’vs. W. K. Henderson Iron Works and Supply Co., 1 La. App. 322.

In the Gregory case the Supreme Court said:

“The statute does not attempt to define what shall constitute ‘actual dependence for support to any extent,’ and the court cannot make any definite inflexible rule to govern every case. Each ease must be considered in the light of its own facts and attending circumstances. Our conclusion in this case is that it is not necessary that the plaintiff should have been actually receiving from their son, contributions or pecuniary aid at the time of his death; that the son’s parents, being in necessitous circumstances and he being a minor, that he had contributed his personal labor, in making a crop the year previous to his death and which went to their support; and when, after the crop was harvested, the son left, with the consent of his parents, to seek employment, promising his parents to send a stated amount of his monthly wages to employ a hand to take his place, constitute the parents actual dependents to such an extent as to bring them within the meaning of the statute.”

If, then, a promise to contribute is sufficient where the parent is in need, we fail to see why a legal duty to contribute should not likewise be sufficient and this legal duty exists under C. C., Art. 229.

In the Hansen case the court considered the very question presented here, but refused compensation for the reason that the parents were not in need at the time of the death of the deceased. In that case the Court said:

“In support of their case, counsel for plaintiffs have cited Article 229 of the Civil Code, which reads as follows:
“ ‘Children are bound to maintain their father and mother and other ascendants, who are in need; and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal.’
“But, as we have seen, the parents of the deceased were not in need at the time of his death.”

In the Nelson case it appeared that the son had contributed nothing to the support of the parents directly, but that the father, whose income was very small, was not able to support and send to school, all of his eight children and that under these circumstances the deceased son had been contributing $20.00 per month directly to the education of a minor sister. The Court found that it was the duty of the parent to educate his children and that, therefore, the father was under the legal obligation of educating the daughter, and if the son assisted him in assuming this obligation, although he paid nothing direct to the father, the father was dependent upon him. In that case the Court used most suggestive language as follows:

“The father’s total income was forty dollars a month. He lived in Shreveport, in a rented house, and even if he had been required to support himself alone this amount would not have been too much. To say that he did not need the assistance furnished by the son is preposterous, and if he needed it, he was dependent upon the son to some extent.”

Our conclusion is that, in the light of the cases to which we have referred, actual dependency at the time of the injury or death exists where the parent is, at that time, in need, although prior to the injury or death the deceased child may never have contributed anything to the support of the parent.

The deceased was killed long prior to 1928 and hence the recovery is not based on the pro rata which his former contributions bore to his average earnings. Of course, if it had been, since there were no previous contributions, there would have been no recovery. However, under the compensation law, prior to the amendment of 1928, claimant was entitled, if dependent to any extent, to the full percentage provided for in the act.

The trial judge found that the average weekly earnings of deceased were $13.50. We have gone over the evidence carefully and are of the opinion that in this regard the trial judge was correct. The claimant is therefore entitled to 32% per cent of $13.50 per week, or $4.39, for three hundred weeks.

It is therefore ordered, adjudged and decreed that the former opinion and decree be and it is hereby vacated and recalled, and it is now ordered, adjudged and decreed that there be judgment in favor of claimant, Paul Balthazar, and against the defendant, in the sum of four and 39/100 dollars ($4.39) per week, for three hundred (300) weeks, commencing April 1, 1925, with legal interest from November 5, 1925, on all instalments due at that time, and with legal interest on each subsequent instalment from its due date.

All costs to be paid by defendant.


text:
    No. 11,775
    Orleans
    PFEIFER v. BACHARACH
    (March 18, 1929. Opinion and Decree.)
    Smith, Matthews & Dunbar, Anna Wogan Matthews, of New Orleans, attorneys for plaintiff, appellee.
    Edward Rightor, William H. Sellers, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff claimed $226.45 for damages alleged to have been caused to his automobile on the afternoon of February 29, 1928, at the corner of Washington Avenue and Prytania Streets by the driver of defendant’s car. Attached to plaintiff’s petition, which was duly attested as required by law, is an itemized list of the damages claimed. Although defendant was duly served, he failed to appear in court and judgment by default was taken against him, the said judgment reading in part as follows:

“Defendant failing to appear and answer, and the legal delay in which to answer having elapsed and plaintiff making due proof of claim herein, it is ordered, adjudged and decreed, etc.”

Attached to the record is a certificate of the Clerk of the First City Court stating that the record contains all the proceedings, evidence and documents in the case.

When judgment was taken, the record shows that the following note of evidence was made:

“Counsel for plaintiff offers, introduces and files in evidence the petition, citation showing service on mother in law at the domicile 364 Walnut Street, the itemized bills attached to the petition and the affidavit signed by the plaintiff and the notation of the docket clerk showing no answer filed.”

Our courts have frequently held that judgment would be presumed to have been rendered on necessary proof. Stout vs.. Henderson, 157 La. 169, 102 So. 193; First Nat’l Bank vs. Richardson, 163 La. 15, 111 So. 475; Daily States Pub. Co. vs. White, 9 La. App. 70, 118 So. 839; Marx & Son vs. Leichner, 9 La. App. 563, 121 So. 685.

But in all those cases there was nothing in the record to show exactly what evidence had been offered. Here, the contrary is true, for the record shows that the judgment was rendered only on the affidavit and on the itemized bills, although the action was one in tort. Thus clearly the record shows that proof was not sufficient to sustain the judgment. See Code of Practice, Art. 312 (as amended); Fowler vs. Smith, 1 Rob. 448; Harrison vs. Creditors, 43 La. Ann. 91, 9 So. 15; Harrison vs. Soulabere, 52 La. Ann. 707, 27 So. 111; Lemoine vs. Dupuis, 2 La. App. 726; Black on Judgment, Sec. 271.

As plaintiff is clearly entitled to an opportunity to prove his claim, we think justice will best be served by a judgment of non-suit. Accordingly, it is ordered, adjudged and decreed that there be judgment dismissing plaintiff’s suit as in case of non-suit.


text:
    No. 11,746
    Orleans
    AETNA CASUALTY & SURETY CO. v. CRESCENT FORWARDING & TRANSPORTATION CO., LTD.
    (March 4, 1929. Opinion and Decree.)

      St. Clair Adams, Jr., of ' New Orleans, attorney for plaintiff, appellee.
    Edward Rightor and Wm. H. Sellers, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff, as subrogee of the Orleans Ice Manufacturing Company, sues for damages alleged to have been caused in an automobile collision with defendant’s truck on May 10, 1928, at Levee and Press Street, this city. The answer is a general denial. There was judgment for plaintiff and defendant has appealed.

The only question before the trial court was one of fact, namely, the identity of defendant’s truck, and in this court defendant contends that the record does not sustain the conclusion of the trial judge to the effect that the truck which caused the damage to plaintiff’s car belonged to defendant.

However, plaintiff put on the stand four witnesses, all of whom were on the truck at the time of the accident, and we think their testimony taken as a whole amply justifies the conclusion of the lower court.

The only testimony offered by defendant was to the effect that no accident had been reported and that, upon learning of the claim, they had questioned their drivers, all of whom denied any knowledge thereof.

There are some discrepancies in the testimony of plaintiff’s witnesses, but those discrepancies are not sufficient to justify the contention of defendant. On the contrary, the fact that the witnesses did not tell a story that fitted together in every particular tends to show that they had not concocted a scheme for robbing defendant.

For above reasons the judgment is affirmed.