author: JANVIER, J.

text:
    No. 13,513
    Orleans
    SUCCESSION OF ROBINSON
    (February 2, 1931. Opinion and Decree.)
    (March 2, 1931. Rehearing Refused.)
    (April 27, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Quintero & Ritter, of New Orleans, and Clyde V. St. Amant, of Donaldsonville, attorneys for appellees.
    Arthur J. Peters, of New Orleans, attorney for appellants.
   JANVIER, J.

Hugh J. Robinson, during the recent world war, had been in the military service of the United States.

After leaving the service he became incapacitated as the result of tuberculosis and was placed in one of the government hospitals.

He claimed disability compensation from the United States Veterans Bureau, but died before his claim was finally allowed.

After his death the bureau refused to pay the claim to anyone except “his personal representative,” so his sister, Mrs. Louis R. Moustier, qualified as administratrix of his estate and, in that capacity, received from the bureau the sum of $1,850.

This was the sole asset of the estate.

The administratrix, Mrs. Moustier, then filed an account on which, among other items, appeared the following:

“Mr. and Mrs. Louis R. Moustier, rent of room occupied by the decedent at No. 838 Camp Street, from April, 1927, to August 1st, 1928, 16 months at $15.00 per month, $2-10
“Mr. and Mrs. Louis' R. Moustier, amount due by decedent for room and board at No. 838 Camp Street for the period from August 1st, 1925, to March 31st, 1927, being twenty months at the rate of $30.00 per month, 600
“Amount due Mrs. Louis R. Moustier, being reimbursement of the amounts advanced to the decedent or paid out for his account with funds belonging to her. separate estate, and constituting her separate and paraphernal funds, viz.:
“Cash advanced to the decedent at the rate of $5.00 per week for a period of 68 weeks, from April, 1927, to July 31st, 1928, 340”

Since decedent left no will and was without ascendants or descendants, his only heirs at law were certain sisters and a half sister. Included among the sisters was Mrs. Moustier, the administratrix.

i‘ The three items mentioned above were opposed on various grounds, among which are found the following:

First, that under the World War Veterans Compensation Act, U. S. C. A., sec. 454, Title 38, the items shown on the. account áre prohibited from being paid since they are claimed to be debts of decedent’s estate.

■ Second, that part of the amounts shown on the items opposed are prescribed because, under article 3534 of the Revised Civil Code, claims of innkeepers for board and lodging are prescribed by one year.

Third, that the amounts are not; in fact, really due, or, if due, are excessive.

The judgment of the court below maintained the opposition and from that judgment the claimants have appealed.

The contention that the federal act under which the compensation allowance was awarded is itself a complete bar to the various opposed claims is, in effect, an exception of- no cause or right of action, and, if well founded, will dispose of the entire controversy, and we, therefore, deem it advisable to first consider the questions presented by that contention. Section 454, Title 38 of U. S. C. A. reads, in part, as follows:

“The compensation, insurance, and maintenance and support allowance payable under Parts II, III, and IV, respectively, shall not be assignable; shall not be subject to the claims of creditors of any person to whom an award is made under parts II, III, or IV; and shall be exempt from all taxation.”

The items in question are, if due, debts of the person to whom the award was made. Thus, those debts cannot be paid out of the award, for, whatever may have . been the purpose of the framers of the legislation, no exception is made in cases where the award is allowed to a former soldier, but he dies before collecting the amount thereof.

It was made to him and thus, in the plain words-of the statute, it “shall not be subject to the claims of (his) creditors.” If it were payable directly to his heirs, the situation might be different, but his personal representative stands in his position and the plain words of the statute prevent his creditors from collecting out of this fund.

The case of Funk v. Luithle, 58 N. D. 416, 226 N. W. 595, instead of supporting the contention of the administratrix, confirms our views as above expressed. There a former soldier died, leaving as his sole heirs and beneficiaries his mother and his father. Later the father died. A creditor of the mother obtained a judgment against her. Shortly thereafter the mother died. In the meantime certain unpaid installments due the estate of the soldier under his contract of war risk insurance were paid to his estate and through his estate were turned over to the estate of his mother.

The sole asset of the soldier’s estate and the sole asset of the mother’s estate consisted of these unpaid installments. The mother’s heirs contended that, under Section 454, Title 38, U. S. C. A., as quoted above, the creditors of the mother were prohibited from enforcing their claims against this fund, but the court said that the section in question did not go so far as to prevent the seizure, in the hands of ultimate heirs, of funds inherited from a former soldier just because the funds had originated as the result of a compensation or war risk insurance claim, but in that case the court said that, if the soldier had died and if, thereafter, his compensation claim had been paid to his estate, which is 'the exact situation here, then the section (454) “would be applicable to cases where creditors of the deceased soldier were attempting to enforce claims against his estate, and sought to subject this fund as his estate to -the payment of their claims.” As we have already said, this fund was due to the former soldier, the award was made to him, and, therefore, the proceeds cannot be subjected to' claims of his creditors.

It thus becomes unnecessary to discuss the other controversies presented.

The judgment appealed from is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 13,523
    Orleans
    BARONNE BUILDING, INC., v. MAHONEY
    (March 2, 1931. Opinion and Decree.)
    (March 23, 1931. Rehearing Refused.)
    (April 27, 1931. Writ of Certiorari and Review Refused by Supreme Court.)

      Monroe & Lemann and J. H. Morrison, Jr., of New Orleans, attorneys for plaintiff, appellant.
    Benjamin Y. Wolf, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

This is a suit by a landlord for rent claimed to be due by a tenant and also for the costs expended by the landlord in a previous ejectment proceeding.

The tenant, Mahoney, was occupying space in the building of plaintiff, Baronne Building, Inc., at a monthly rental of $55.

The installments due on September 1st, October 1st, November 1st, and December 1st, 1927, were not paid and the landlord instituted ejectment proceedings, electing not to act under the “acceleration” clause of the lease, which permitted it to declare all future installments due. The ejectment proceedings were fixed for trial for January 12, 1928, but, on January 11th, the day before that fixed for the trial of the rule to compel the tenant to vacate, he voluntarily abandoned the premises and the rule did not come up for trial.

On June 12, 1928, this suit was filed.

Plaintiff claims $121.90 rent for the balance alleged to be due by defendant for the period during which the premises were occupied, to-wit, from September 1, 1927, to January 11, 1928. The total amount for that period was $241.96, but, after abandoning the premises, and after repeated demands had been made on him by plaintiff, defendant paid the sum of $120.

Plaintiff also claims $16.75, the amount expended as court costs in the ejectment proceedings.

Defendant filed exception, which was directed to the claim for court costs expended in the former proceeding, and, on the trial of this matter, objected to all evidence with reference to that part of the claim, contending that, if plaintiff is entitled to recover these costs, judgment for same should have been obtained in the ejectment proceeding itself. In this we think defendant is correct. It is true that, by voluntarily abandoning the leased property prior to the trial of the rule to compel him to vacate it, defendant rendered it unnecessary that plaintiff proceed with the trial of that rule. Nevertheless, plaintiff cannot now, except in that proceeding, obtain judgment for the costs therein expended. Were we to consider the question of defendant’s liability for those costs, we would first be compelled to consider the question of whether or not defendant in the ejectment proceedings would have been compelled to vacate, had he resisted, and that is a matter with which we are now in no way concerned. Plaintiff, for the assertion of his rights with reference to those costs, must be relegated to the ejectment proceeding.

Defendant resists payment of the balance claimed for rent on the ground that, as expressed in the answer, “he is entitled to diminution of the rent, in an amount in excess of the amount of rent claimed.” The evidence shows, and it is not disputed, that during the period from September 1, 1927, to and including January 11, 1928, there were many days during which the landlord did not comply with its contractual obligation to furnish heat in the building and that, during that entire period,, no radiators or other heating devices were provided in the premises occupied by defendant, and it must be conceded that the facts in this regard, as 'shown by the evidence, would have warranted the tenant in vacating the premises, had he desired to do so, and that, had he done so, the landlord could not have held him liable for the rent for the unexpired term of the lease. Purnell v. Dugue, 14 La. App. 137, 129 So. 178; Keenan v. Flanigan, 157 La. 749, 103 So. 30, 38 A.L.R. 248; Keenan v. Legardeur, 5 La. App. 266. The question is, however, not whether the tenant could have vacated had he so elected, but whether, having elected to the contrary, he is liable for rent for the period during which he remained. He did not elect to vacate and, in fact, did not do so until after a suit to compel him to move had been filed, and even then not until the day before that suit was to have been tried.

The question seems to be well settled in this State that failure of the landlord to comply with his obligation with regard to such matters as heating, lighting, et cetera, does not justify the tenant in occupying the premises rent-free. He may follow either of two courses: abandon the premises, or, if the necessary repairs can be reasonably made, make them himself and deduct the cost from any rent due or to become due, but in any event he must pay rent for the period of actual occupancy. In Purnell v. Dugue and the two Keenan cases to which we have referred the rent had been paid in full up to the time at which the premises were vacated.

In Goldstein v. Stone, 12 La. App. 702, 127 So. 73, a landlord sued for $105, most of which represented future rent. We held that the tenant was justified in vacating the property-, but that he was liable for $18.52, the amount of rent which had accrued up to the time of the abandonment.

In oral argument defendant’s counsel sought to" convince us that, even though his client be held liable for the amount claimed as rent during the time he occupied the property, still he should not be compelled to pay same because he has sustained, according to counsel’s claim, damage in excess of the amount due for rent.

He makes no allegation in his answer which is sufficiently definite to permit of the introduction ■ of evidence with reference to- any such damage. In fact the only allegation in the answer in this regard reads as follows:

“There were many days when the temperature was below sixty degrees on the outside and that no heat was ever furnished respondent until ^ about one week before he vacated the premises, that although he constantly requested them to furnish heat same was not done and that by virtue of the failure to comply with the said lease he is entitled to diminution of the rent in an amount in excess of the amount of rent claimed.”

The only evidence which we find in the record with reference to any damage sustained is in the testimony of one Charles J. Sulzer, to the effect that at times he saw defendant wearing an overcoat in his office and the statements of defendant to the same effect.'

Mere inconvenience and discomfort do not, in our opinion, warrant a claim for damages—which the defense here seems to amount to—unless real injury or loss can be shown. In Fisher v. Johnson, 11 La. App. 314, 123 So. 433, 435, in which a tenant set up a claim for damages as in offset to the plaintiff’s claim, the court said:

“Damages must be alleged specifically and proven to the same certainty as in a direct action.”

In Whitlatch v. Milwee, 8 La. App. 575, which was a case in which a tenant claimed that, by reason of a leaky roof, he had been damged in an amount in excess of the amount of rent claimed by the landlord, the Court of Appeal for the Second Circuit said:

“We are impressed that defendant did not at any time during the lease seriously consider the matters which he set up in defense of this suit.”

In Ouachita National Bank v. McIlhenny, 169 La. 258, 125 So. 69, the Supreme Court approved the action of the trial court in excluding evidence in support of a reconventional demand interposed by defendant to plaintiff’s suit for rent because the defendant had not definitely set up the damages claimed.

We are, therefore, of the opinion that the claim for damages was not sufficiently alleged and has not been proven. In fact, the action of defendant in paying $120 on account after the ejectment proceedings had been filed, and while plaintiff was claiming $241.96, without a statement to the effect that it was tendered it in full payment, or that all rights were reserved to resist paying the balance, indicates that he had no thought of making any such defense as we now find presented.

The trial court rejected the demand of plaintiff for $16.75 court costs and, as we have said, in this we think it was correct, but on the other item the trial court’s allowance of only $60.98 is erroneous.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is amended by increasing the amount thereof to $121.96, with interest at 8 per cent from October 1, 1927, until paid, and with 10 per' cent attorney’s fees on the total amount due, and for costs.


author: HIGGINS, J.

text:
    No. 13,538
    Orleans
    BLANDIN ET AL. v. CROZAT
    (March 2, 1931. Opinion and Decree.)
    (March 23, 1931. Rehearing Refused.)
    (April 27, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Henry J. Rhodes and J. A. Morales, of New Orleans, attorneys for plaintiffs, appellants.
    Philip R. Livaudais and William Boizelle, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a petitory action in which plaintiffs claim title to lot No. 18 of square 110 in the second district of this city, measuring 31 feet, 9 inches and 6 lines front on Governor Nicholls by a depth of 120 feet, bearing municipal numbers 1131-33 Governor Nichols street. The petition alleged that Celestine, Emile and Joseph Blandin are the sole heirs of Joseph Montegut and Felicie Montegut, wife of Joseph Blandin, who were the sole testamentary heirs of the late Phillip Ross, who originally owned the property, and that they inherited the property in question through these parties.

The defendant filed a plea of prescription of 10 years, averring that she acquired the property by authentic act before Felix F. Dreyfous on May 10, 1909, recorded C. O. B. 225, folio 193, and that she remained in continuous, peaceable, public and unequivocal possession as owner in good faith under a deed translative of title.

Defendant also filed a plea of estoppel alleging that Felicie Montegut, wife of Joseph Blandin, and Joseph Montegut, plaintiffs’ authors in title, had instituted proceedings in the civil district court against La Societe Catholique D’Education Religieuse et Litteraire, a universal legatee, No. 51,578 of the docket, to recover the proceeds of the sale of the property in question after the said property had been sold in the Succession of Mrs. Adele Alzar Paure, No. 26,424 of the civil district court, through the executor by order of the court on April 1, 1889, to defendant’s author in title.

Defendant further interposed the plea of res adjudieata on the ground that the plaintiffs’ authors in title, Joseph Monte-gut and Pelieie Montegut, wife of Joseph Blandin, had institued a petitory suit against Nicholas Carbajal et al. (defendant’s author in title), No. 62,478 of the docket of the civil district court and that judgment had been rendered adverse to the plaintiffs therein and that since no appeal from that judgment had been taken plaintiffs are estopped from setting up the claim to the title of the property in dispute.

Defendant further pleaded res adjudicata and estoppel alleging that the question of the title to the property, had been fully heard and adjudged adverse to plaintiffs’ authors in title and in favor of defendant’s author in title in the proceeding entitled Madame Felix Montegut v. Paul A. Bacas,. Executor, No. 10,457 of the Supreme Court of Louisiana, reported in the 42nd La. Ann. page 158, 7 So. 449, and that the decree in the said case has the force and authority of the thing adjudged and that plaintiffs’ authors in title were found to have no title to the property in question and, therefore, plaintiffs are estopped from setting up their present' claim.

Thfe judge a quo sustained all of these pleas and dismissed plaintiffs’ suit and they have appealed.

Prom the record we gather that the defendant has been in continuous, uninterrupted, peaceable, public and unequivocal possession of the property in question in good faith under a deed translative of title, since May 10, 1909, the present suit only having been filed as of June 17, 1929. We are, therefore, of the opinion that the plea of prescription of ten years is good. C. C. art. 3478 and following articles.

We further find that plaintiffs’ authors in title ratified and confirmed the public sale of the property in the Succession of Mrs. Adele Alzar Paure, No. 26,424 of the civil district court, by instituting a suit against La Societe Catholique D’Education Religieuse et Litteraire, a universal legatee, for the proceeds of the sale of the property. Hence, plaintiffs are estopped from now attacking that sale.

It is also our opinion that as Joseph Montegut and Pelieie Montegut Blandin filed a petitory suit against Nicholas Carbajal et al., No. 62,478 of the docket of the civil district court, and judgment was rendered against the plaintiffs therein and they failed to appeal from that judgment, the matter became res adjudieata and plaintiffs are now estopped to assert title to the same property that the court held that their authors in title were not the lawful owners of.

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


author: WESTERFIELD, J.

text:
    No. 13,547
    Orleans
    HORRELL, SR., v. GULF & VALLEY COTTON OIL CO., INC.
    (March 23, 1931. Opinion and Decree)
    Merrick, Schwarz, Guste, Barnett & Redmann, of New Orleans, attorneys for plaintiff, appellee.
    Rosen, Kammer, Wolff & Farrar, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The plaintiff in this case is the father of the plaintiff in the case No. 13,711, Wm. Francis Horrell, Jr., v. Gulf & Valley Cotton Oil Company, Inc., page 91 herein, 133 So. 392, this day decided, as well as the plaintiff in No. 13,453 of the docket of this court, Wm. Francis Horrell, Sr., v. Gulf & Valley Cotton Oil Company, Inc., 131 So. 709, decided December 15, 1930. He was injured in the same accident which caused the injuries to his son. In this case, like the case No. 13,711, the question of liability is foreclosed and the only matter at issue is the quantum.

Plaintiff claims $12,986.35, made up as follows:

For the pain and suffering experienced as a result of the burns received on the arms, legs, face hands and back................................$ 2,500.00
For the pain and suffering in his eyes, as well as temporary blindness ................................................... 2,500.00
For the permanent impairment and defect in vision of petitioner caused by the explosion................ 5,000.00
For pain and- suffering experienced by petitioner, as a result of the wound upon petitioner’s head, and loss of blood due therefrom ............................................ 1,500.00
For physicians’ services:
Dr. G. A. Babn—Oculist____________$50
Dr. Dyer J. Farley______________________ 50
Dr. S. Geismar ____________________________ 5
Dr. Z. T. Young____________________________15 120.00
Hospital charges _............. 56.65
Two pairs of glasses------------------------ 24.00
For loss of income, due to inability to work _____________________ 1,200.00
For destruction of clothing------------ 76.70
Charity Hospital ----- 9.00
$12,986.35

With respect to the item of $1,200 “for loss of income, due to inability to work,” we find very meager testimony in the record, which we consider insufficient to establish this item of damage. The claim is for loss of profits in a contracting business which may be recovered when definitely established. But something more is required than an estimate which is the extent of the proof here. Tidwell v. Meyer Bros., Ltd., 160 La. 778, 107 So. 571; Kelly & Son v. Yellow Cab Co., 5 La. App. 69.

The actual expenses which have been proven amount to $286.35. The plaintiff in this case does not seem to have been as severely burned about the body as was his son, William Horrell, whose claim we considered under the No. 13,711, but he suffered a contused, lacerated wound of the scalp and has a permanent impairment of vision of 50 ¡per cent in the right eye and 30 per cent in his left eye as a result of the action of the caustic soda. He was awarded $6,000 by the jury for all items of damages claimed. We are unable to say whether the jury took into consideration the loss of profits, which we find to be inadequately sustained by the evidence, or not. In any event, in our view the award was excessive. We believe $4,000 to be proper for all items of damages claimed, except actual expenses, which, as we have seen, amounted to the sum of $286.35.

For the reasons assigned the judgment appealed from is amended so as to reduce the amount awarded plaintiff from the sum of $6,000 to the sum. of $4,286.35, and, as thus amended, affirmed.


text:
    No. 13,711
    Orleans
    HORRELL, JR., v. GULF & VALLEY COTTON OIL CO., INC.
    (March 23, 1931. Opinion and Decree.)
    Merrick, Schwarz, Guste, Barnett & Redmann, of New Orleans, attorneys for plaintiff, appellee.
    Rosen, Kammer, Wolff & Farrar, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff was injured as a result of an explosion which occurred in the plant of the defendant under circumstances which we have heretofore held involved the defendant with responsibility. Wm. F. Horrell, Sr., v. Gulf. & Valley Cotton Oil Company, Inc. (La. App.), 131 So. 709. The only question at issue here is the quantum of damages.

The damages claimed in plaintiff’s petition are fixed at the total sum of $11,-247.40 and are itemized as follows:

For pain and suffering experienced as a result of burns to his body, inclusive of burns to head, face, arms, back, legs and thighs $ 7,500.00
For pain and suffering to petit.oner’s eyes, as well as temporary blindness ............................... 2,500.00
For physicians’ services:
Dr. Dyer J. Farley____________________$75
Dr. Z. T. Young............................ 5
Dr. Charles A. Bahn__________________ 38
Dr. Chas. F. Gelbke, first aid treatment .........-..............................25
Ten visits at hospital, $3' per visit _______________________________________________ 30 173.00
For nurses’ services:
Miss L. M. Pericia, Mercy Hospital, 11 days at $7 .per day------------ 77.00
Miss Marie Bourg, Mercy Hospital, 11 nights at $7 per night— 77.00
Mercy Hospital charges-------------------- 70.90
For loss of clothing, burned by chemical solution ---------------------------- 46.50
Glasses .........................—.......-.............. 11.00
For loss of income due to inability to work ________________________________________ 792'.00
$11,247.40

The case was tried before a jury and resulted in a verdict in plaintiff’s favor in the sum of $5,250. From a judgment based upon this verdict, defendant has appealed.

The award was not itemized, but, since the record discloses the fact that $1,187.40 was proven to have been the actual expense for doctors, nurses and loss of earnings, it is probable that the remainder, $4,062.60, was allowed for the other items of damages claimed.

Plaintiff’s injuries consisted of burns caused by superheated steam and caustic soda, the contents of a tank which exploded while'he was employed in the vicinity. His face, his eyelids and his eyes were severely burned as was also from one-fourth to one-third of the entire skin area of his body, involving his hands, arms, face, back, buttocks and thighs. He remained in the hospital eleven days and was temporarily blind for three days and, at the time of the trial on November 19, 1930, seventeen months after the accident, was still under treatment of an oculist.

As to the painful character of plaintiff’s injuries his physician testified that a burn from caustic soda was one of the “most painful types we have because che action continues longer than a burn from fire. It lasts much longer than a fire burn would last. Fire burns will do their damage and then there is no more extent to that burn, but the caustic soda continues to act against the tissues and lasts longer than ordinary fire burns would last.” This physician also stated that heated steam would tend to aggravate the burns because the caustic soda “would be more active in a hot solution.”

Plaintiff’s mother testified concerning his appearance and the evidence of suffering which she observed and, of course, the plaintiff himself professed to have suffered most acutely. Counsel for the defendant, however, in his argument contended that the plaintiff’s testimony concerning his own injuries was very meagre and unsatisfactory. But, in our opinion, it is quite sufficient and as effective as testimony of that character may be. Moreover, the testimony of an injured person as to the extent of his suffering is not rendered more convincing by reiteration and has been held unnecessary.

“Direct evidence as to mental suffering is unnecessary in order that there may he an award therefor, and according to some authorities evidence of mental suffering other than evidence of the injury which is the alleged cause of action is inadmissible.” C. J. Volume 17, Verbo Damages, page 925.

In Stowe v. Heywood, 7 Allen (Mass.) 118, 124, we find the following:

“Mental suffering cannot be directly ¡proved as a fact by any one besides the sufferer, but is a matter of inference from causes which naturally tend to produce it. It cannot be measured aright by outward manifestations; for there may be a show of great distress where little or none is felt. And great distress may be concealed and borne in silence with ■an apparently quiet mind. Ab inquieto saepe simulator quies. Hence it is plain that the amount of a plaintiff’s damages for mental suffering is not to be affected by evidence of his language or condúct—which we suppose to have been the evidence admitted in the present case —but by the nature and extent of the injury which caused that suffering, and its natural tendency to produce it.”

There is no doubt, however, that the plaintiff in this case suffered severely, the character of his injury and its effect upon the sensitive organ of sight, his temporary blindness doubtless producing melancholia with agonizing apprehension of total loss of vision, the extent of the burns to his body—all impress us with their gravity. Our attention has been directed to a number of cases in this court and in the Supreme Court, in which the facts were more or less similar, and where sums differing very materially were allowed without apparent reason. We cannot reconcile awards whether approved by this court or the Supreme Court and will not attempt to do so. As was said in LeBlanc v. Checker Cab Company, 8 La. App. 472.

“The sums awarded in these cases are not compensatory and are not standardized. While it may be said that some uniformity should be attempted, so many differences exist in apparently similar cases that little uniformity of award exists or, in the natqre of things can be accomplished.”

We have concluded to allow plaintiff for pain and suffering the sum of $3,000. The amount of actual expenses, $1,187.40, is not in dispute, consequently and for the reasons herein assigned the judgment appealed from will be amended so as to reduce the amount awarded plaintiff from $5,250 to $4,187.40, and as thus amended it is affirmed.


text:
    No. 10,773
    Orleans
    W. K. NECKWEAR CO. v. RABINOWITZ
    (March 23, 1931. Opinion and Decree.)

      Montgomery & Montgomery, of New Orleans, attorneys for plaintiff, appellee.
    Sol Weiss, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff sued the defendant for the sum of $220, with legal interest from November 15, 1917, until paid, covering certain merchandise furnished to the defendant. Defendant denied liability for the full amount on the ground that some of the merchandise was not of the quality ordered, but admitted liability for $63.31, the value of the merchandise retained, and averred that this amount had been tendered to the defendant in the form of a check on January 8, 1918. There was judgment in favor of the plaintiff for $63.31, with legal interest from November 15, 1917, until paid, and for costs. The defendant appealed.

The sole issue in the case is whether or not the allowance of interest and costs by the court below is correct.

The record shows that interest was due on the amount of $63.31 from November 15, 1917, until it was paid. The check for the amount found to be due was dated January 8, 1918, but does not include interest that was due for the short period of about 23 days. The defendant did not make any formal tender of the $63.31 in cash, and it was not deposited in the registry of the court at the time the answer was filed, or thereafter, subject to the orders of the court.

The defendant seeks, to have us disallow the items of interest and costs on the theory that, having tendered a check for the amount which the court found to be due, to have tendered the cash or to have placed it in the registry of the court would have been doing a vain thing, because of the plaintiff’s peremptory refusal to accept -the check, citing McStea & Value v. Warren & Crawford, 26 La. Ann. 453; Alter v. Shepherd et al., 27 La. Ann. 210; Zimmerman v. Langles, 36 La. Ann. 65; Prey v. Fitzpatrick-Cromwell Co., 108 La. 125, 32 So. 437; Central Hdwe. Co., Inc., v. Elliott, 3 La. App. 572.

We do not believe the cases cited to support this contention are in point, because the check did not include the interest which was, due from November 15, 1917, to January 8, 1918. The tender of the check, therefore, is not sufficient to relieve the defendant of paying the interest due on the amount of $63.31 and the Costs of court. Brodnax & Co. v. Steinhardt & Co., 48 La. Ann. 682, 19 So. 572; Marr v. Hyde, 8 Rob. 13; Frey v. Fitzpatrick-Cromwell Co., 108 La. 125, 32 So. 437; Thompson v. Edwards, 23 La. Ann. 183; Stillman v. Bryant, 15 La. Ann. 175.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 13,259
    Orleans
    LORINO v. NEW ORLEANS BASEBALL & AMUSEMENT CO., INC.
    (March 23, 1931. Opinion and Decree.)
    Noah Lord, N. Morgan Woods II, of New Orleans, attorneys for plaintiff, appellant.
    Wm. H. Talbot, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Defendant, the owner and operator of a baseball park in New Orleans, is sought by plaintiff to be held liable for injuries sustained as a result of being struck on the head by a batted ball during the practice immediately preceding a game conducted by defendant, and to attend and view which game plaintiff had paid admission.

• In the baseball park are seats of varying degrees of safety and comfort. Plaintiff, in order to save the additional charge made for seats in the grandstand, in which stand there are many seats protected against dangers from foul balls or from balls improperly thrown, had chosen to go into the “bleachers,” which is in the uncovered section and in which cheaper seats are afforded, in front of which seats there is practically no protection against the dangers to which we have already referred.

When plaintiff entered the “bleachers,” the preliminary practice was already in progress, and, while he was looking around in an effort to determine just what seat would suit him best, a foul ball was hit which struck him on the side of the head and fractured two of the bones of his jaw.

It is contended on behalf of plaintiff that, since there was in front of the section in which he was about to secure a seat a small wire screen about five feet in height, he was justified in assuming that the screen was all that was required to afford him complete protection, and that, if there was danger of balls being knocked over that screen, defendant should have erected a higher one.

Defendant maintains, on the other hand, that, since there were available other seats in which .plaintiff would have been fully protected from such dangers, he, by voluntarily choosing a seat in an unprotected section, assumed such risks as might be attended upon such a selection. Defendant also contends that plaintiff was guilty of negligence, in that he. did not keep his eyes on the players, and thus was not aware of the approach of the ball, which he could easily have dodged, had he been on the lookout.

It is well known, as the evidence demonstrates, that it is not possible, at baseball games, for the ball to be kept at all times within the confines of the playing field. Errors must inevitably occur and foul balls 'must frequently be knocked, and on any such occasion there is danger that the ball may enter that portion of the park occupied by the spectators. Those who fear such dangers may, as we have said, secure protection in those seats in front of which screens are erected, and which screens extend from the ground to the roof and afford complete safety. Those who do not elect to take advantage of such protection assume the risks of such obvious dangers.

That plaintiff was familiar with the possibilities of such an occurrence is shown by his testimony to the effect that he had attended other baseball games and had been in this particular park on at least two prior occasions.

The nearest point of the section known as the “bleachers” is shown to be some 158 feet from the “home plate,” which is the spot at which the batter stands, and at this distance the danger is not so excessive as to require anything more than a low screen to protect spectators against the terrific force of fast-moving low balls direct from the bat sometimes known as “line drives.” Had the injury here resulted from such a blow, and had the ball entered through a defective screen, the legal situation would have been entirely different. We would then have been confronted with a situation similar to that presented to the court in Edling v. Kansas City Baseball & Exhibition Co., 181 Mo. App. 327, 168 S. W. 908, in which, to quote from plaintiff’s brief, “plaintiff chose a seat behind a screen and a foul ball passed through the defective screen and broke plaintiff’s nose.’’ As we have said, however, here a different case is presented. We are in thorough accord with the views which we. find expressed in Wells v. Minneapolis Baseball & Athletic Association, 122 Minn. 327, 142 N. W. 706, 707, 46 L. R. A. (N. S.) 606, Ann. Cas. 1914D, 922, in which the court said:

“It has been frequently held that one who invites the public to places of amusement, such as theaters, shows, and exhibitions, must exercise a high degree of care for the safety of those invited. As to stairways, platform, walks, and other structures, it may be said that the duty is somewhat similar in degree and nature to that owing from a common carrier to its passengers. Thompson on Negligence, secs. 995 and 996; Scott v. University of Mich. Athletic Ass’n, 152 Mich. 684, 116 N. W. 624, 17 L. R. A. (N. S.) 234, 125 Am. St. Rep. 423, 15 Ann. Cas. 515. But this rule must be modified when applied to an exr hibition or game which is necessarily accompanied with some risk to the spectators. Baseball is not free from danger to those witnessing the game. But the perils are not so imminent that due care on the part of the management requires all the spectators to be -screened in. In fact, a large part of those who attend prefer to sit where no screen obscures the view. The defendant has a right to cater to their desires. We believe that as to all who, with full knowledge of the danger from thrown or batted balls, attend a baseball game the management cannot be held negligent when it provides a choice between a screened in and an open seat; the screen being reasonably sufficient as to extent and substance.”

In Blakeley v. White Star Line, 154 Mich. 635, 118 N. W. 482, 483, 19 L. R. A. (N. S.) 772, 129 Am. St. Rep. 496, the court said:

“It is knowledge common to all that in these games hard balls are thrown and batted with great swiftness; that they are liable to be muffed or batted or thrown outside the lines of the diamond, and visitors standing in position that may be reached by such balls have voluntarily placed themselves there with knowledge of the situation, and may be held to assume the risk.”

In Crane v. Kansas City Baseball & Exhibition Co., 168 Mo. 301, 153 S. W. 1076, 1077, the court said:

“In view of the facts that the general public is invited to attend these games, that hard balls are thrown and batted with great force and swiftness, and that such balls often go in the direction of the spectators, we think the duty of defendants towards their patrons included that of providing seats protected by screening from wildly thrown or foul balls, for the use of patrons who desired such protection.
“Defendants fully performed that duty when they provided screened seats in the grand stand, and gave plaintiff the opportunity of occupying one of those seats. It is. unnecessary to consider the question of whether defendants were bound to have a protected seat available for the use of plaintiff. We are not dealing with a case where the patron was compelled to occupy an unprotected place or not see the game, but with a case where he was offered a choice between, a protected and an unprotected seat and, with full knowledge of the risks and dangers of the situation, voluntarily chose the latter.’’

Whether plaintiff was guilty of negligence in standing in an unprotected section without keeping his attention focused on the players, is a matter which we find it unnecessary to determine, since we believe that the fact that plaintiff, by selecting a seat in that section, assumed the-risk of all such accidents; but, since it is undisputed that such occurrences are most frequent, it would seem to be a more or less dangerous practice to fail to pay attention to the play.

We believe that the trial court, in finding for defendant and dismissing the suit, was correct.

The judgment appealed from is affirmed.


author: HIGGINS, J. JANVIER, J.

text:
    No. 13,434
    Orleans
    ENGLAND v. FIRST NATL. LIFE INS. CO.
    (February 16, 1931. Opinion and Decree.)
    (March 2, 1931. Rehearing Refused.)
    (April 27, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Chas. J. Mundy, of New Orleans, attorney for plaintiff, appellee.
    Frank Norman, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff, as beneficiary, brings this suit to recover the sum of $268, the aggregate face value ofi two policies of industrial life insurance in which her daughter, Lillie England, was insured.

The petition alleged that the policies were issued by the defendant; that all premiums had been paid; that the policies were in full force and effect, and that upon the death of the insured proper proof of death was- filed with the defendant.

The defendant answered admitting these allegations, but specially pleaded that only one-half of the face value of the policies was due or $134 (which amount was deposited in the registry of the court) under condition No. 9 of the policies which reads as follows:

‘‘Or if the Insured should die from Heart Disease, Tuberculosis, Chronic Bronchitis, Cancer, Bright’s Disease, Liver Trouble, Pellagra, or any chronic disease contracted within twelve months from date of policy, only one-half the sum otherwise provided for under this policy will be payable.’’

The record shows that on the trial of the case counsel for the plaintiff offered in evidence the two insurance policies making them P-1 and P-2, and rested his case. The defendant, without offering any evidence whatsoever, closed its case. There was judgment as prayed for, and defendant has appealed.

There can be no doubt that the plaintiff made out a prima facie case in view of the defendant’s admissions.

In support of the special defense that the deceased had died of tuberculosis contracted within one year from the date of the policies, and that, therefore, only one-half of the value of the policies was due, the defendant relies upon a printed form entitled ‘‘Claimant’s Statement,” the blank portions of which are filled in in ink and which purports to have been signed by Lillie England subsequent to her death and burial. .

The record shows that this document was never introduced in evidence by counsel for either party, and its presence in the record is only explained by the statement of counsel for the defendant in his argument at the bar that the document was bradded to one of the policies at the time it was offered in evidence. Counsel for the plaintiff denied that he had offered the document in evidence and stated that he had no recollection of it being bradded to one of the policies (P-1) at the time that it was offered. He is borne out in this statement by the stenographic report which shows that only the policy was introduced in evidence, no reference being made whatever to this document. No agreement either verbal or in writing has been entered into by counsel that would permit consideration of this paper as evidence by this court; consequently, under long-established jurisprudence, its mere presence in the record is not sufficient to make it a part of the transcript. O. K. Realty Co. v. Juliani, 1 La. App. 1; Jacobs Bros. v. Bel, 1 La. App. 14; Wilkin-Hale State Bank v. Tucker, 148 La. 980, 88 So. 239; Bilich v. Mathe, 149 La. 484, 89 So. 628; Broussard v. Rosenblum, 5 La. App. 249.

It would logically follow that the special defense must fail in the absence of evidence to support it. But, even if the document had been offered in evidence, we are of the opinion that it has no probative value. We first note that the document purports to have been signed by Lillie England, the insured, subsequent to her death. It states the cause of her death to be “acute pulmonary,” that the deceased quit work “1 year”; and that the deceased first consulted a physician concerning her last illness “1 year.”

The record shows that defendant caused a subposna duces tecum to be issued calling for the Orleans Anti-Tuberculosis League clinical report concerning Lillie England, and also summoned as witnesses Dr. G. S. Brown, medical director of the clinic, and Drs. J. A. Barnes and T. G. Wiltz, but the clinical report was not introduced, and the doctors did not testify.

There being no evidence in the record to establish the special defense, it must fail.

For the reasons assigned, the judgment is affirmed.

JANVIER, J.

(dissenting). In my opinion the facts shown on the document entitled “Claimant’s Statement” entirely defeat “Claimant’s’’ suit.

The document is physically in the record and is marked “P-1” and, as I recall, plaintiff’s counsel in oral argument finally admitted that he “must have” produced and offered the document, though he stated that he had no recollection of. having done so.

It is very evident that defendant’s counsel relied for his defense entirely on this document because he did not even place in evidence any proof of his own, though it is evident from the names of the witnesses summoned and from the character of documents called for in the subpoana duces tecum that there was available considerable proof.

If there is any dispute as to whether a document is offered in evidence, and if one of the parties relied on that document (particularly where it is conceded that it was produced by the adversary), then justice requires that the matter be remanded for ascertainment of the truth as to how the document found its place in the record.

I do not believe that the authorities cited by my associates to the effect that we may not consider documents, unless offered in evidence are in any way applicable here, because here there is a dispute as to whether the document is in evidence and the facts indicate that it was probably offered by the party who now seeks to have it excluded from consideration. The question is not what shall be done with documents not offered but what shall be done with documents present. where there is a dispute as to who offered them. I believe the matter should be remanded for ascertainment of the truth.

Nor do I agree with my associates that the document would have no probative value, even if properly in the record.

It should be borne in mind that the document, according to defendant’s counsel and according to my recollection as to v.-hat was said orally by plaintiff’s counsel, was produced and filed by plaintiff, and" that, therefore, any errors or uncertainties therein should be construed and interpreted against plaintiff.

There is. one error easily explainable and there are two possible uncertainties which, if interpreted against plaintiff, would defeat her suit.

The error lies in the fact that the name of the deceased is given in th'e blank provided for the signature of the claimant. Claimant is an ignorant negress and apparently through this ignorance caused deceased’s name to be signed as claimant instead of her own. But can she take advantage now of her own error in this regard and now be heard to say that because she caused a wrong name to be signed the document in all other respects cannot Be used against her? I think not.

The uncertainties result from the following answers contained in the said statement:

“Q. On what date did deceased first consult any physician for lasij illness?
“A. 1 year.
“Q. Cause of death? Give full particulars.
“A. Acute pulmonary.”

The first answer, to-wit, “1 year,” in my opinion shows that the deceased contracted the disease from which she died one year before her death. The answer “acute pulmonary” means to the ordinary layman “tuberculosis” and thus an interpretation of these two answers made by claimant herself shows that the deceased died from tuberculosis contracted one year prior to death and thus within the period during which the policy provides for only one-half payment. . But, if these statements are ambiguous, they were made by plaintiff and should be interpreted against her.

One fact stands out clearly, and that is that the truth is that, if the policy provision be legally enforceable, then the death occurred from a cause and within the time which would make only one-half of the policy due, and since the uncertainties, if there are any,' result from the action of claimant herself, the matter should be remanded for ascertainment of the true facts, and defendant should not be condemned because it relies on a statement prepared and filed by plaintiff.

I respectfully dissent.


text:
    No. 13,465
    Orleans
    FARROW v. GRAND UNITED ORDER OF ODD FELLOWS, DIST. GRAND LODGE No. 21
    (March 2, 1931. Opinion and Decree.)

      Martin, Woods & Woods, of Lutcher, attorneys for plaintiff, appellee.
    ■ J. V. Chenet, of Mt. Airy, attorney for defendant, appellant.
   HIGGINS, J.

This is a contest between the brother and the wife of a deceased member of a fraternal accident and benefit association. Plaintiff, the widow of Louis Farrow, brings this action against the Grand United Order of Odd Fellows, District Grand Lodge No. 21, to recover the sum of $500 alleged to be due under a policy dated June 26, 1918, covering the life of her husband.

Defendant answered admitting the issuance of the policy and that it was in full force and effect at the time of Farrow’s death on November 22, 1928, but averred that the deceased, by a notarial act dated November 16, 1928, had named his brother, Valsin Farrow, as beneficiary in lieu of his wife, who was the original beneficiary; that it was a mere stakeholder, ready and willing to pay $500, the face value of the policy, to whomsoever the court should decide was entitled to it; that Valsin Farrow should be made a party to the suit.

Thereafter Valsin Farrow intervened and claimed the proeeedg of the policy.

The judge, a quo, dismissed the intervention and gave judgment in favor of the plaintiff and intervener has appealed.

Since the appeal was lodged in this court, intervener died and his daughter, Albertha Farrow, wife of Olive Bolden, having been recognized as his sole heir, was made a party to the proceeding in lieu of her deceased father.

On the trial below the plaintiff offered in evidence ■ the death benefit certificate, the constitution and by-laws of the society, and proved that plaintiff was the lawful wife of the deceased and the same party named as beneficiary in the original certificate and then rested.

Intervener then offered in evidence the alleged notarial act purporting to change the beneficiary and established by the testimony of witnesses that Farrow, on November 16, 1928, in the presence of a notary public and two witnesses on a form furnished by the society, executed a change of beneficiary from his wife, to his brother; that this document was mailed to the Grand Master of the society, but was not received by him until after the death of the insured on November 22, 1928; that no new policy was issued; that the original policy was in the possession of Farrow’s wife, who had been residing in the state of Mississippi and living. separate and apart from her husband, during the last six years of his life, but who was present at his bedside, during the last several days of his illness, that it was impossible for the insured or intervener to surrender the policy at the time the written change of beneficiary was forwarded to the society, as it was at the home of plaintiff in Mississippi.

The claim of the brother is resisted upon the ground that the change in beneficiary from the wife to him was not made in accordance with the statute law of this state and/or the charter and by-laws of the benefit association, for the reason that the policy was not surrendered at the time of the attempted change and the sum of ?1 was not forwarded as required by the by-laws.

Section 6 of Act No. 256 of 1912, after declaring who may be beneficiaries in policies issued by fraternal associations, among whom are included both the wife and brother, recited:

“Within the above restrictions each member shall have the right to designate his beneficiary, and, from time to time, have the same changed in accordance with the laws, rules or regulations of the society, and no beneficiary shall have or obtain any vested interest in said benefit until the same has become due and payable upon the death of said member; provided, that any society may, by its laws, limit the scope of beneficiaries, within the above classes.”

Section 2 of the by-laws of the society reads as follows;

“Whenever a member desires to change the names of beneficiaries he must forward his policy with the name or names of the intended beneficiary or beneficiaries inserted at the proper place and have same attested to. For this change he muse enclose 50 cents.” (This was later changed to $1.)

It is clear that the insured had the right to change the beneficiary at any time, provided that the new beneficiary was one of those eligible under the provisions of the statute. It is also obvioue. that plaintiff’s interest as beneficiary was contingent and could only be a vested interest upon the death of the insured, assuming no change had been made.

While it is true that the law requires that a party wishing to change the beneficiary must comply with the by-laws of the society in order to effect a change of beneficiary, the courts have uniformly recognized an exception when it is beyond the power of a party to literally comply with the regulations by surrendering the original certificate.

In the instant case the evidence shows that the policy was in the possession of the wife at her home in Mississippi, and therefore it was impossible to surrender it at the time of the attempted change.

The great weight of authority appears to be that the original beneficiary cannot defeat the change of beneficiary by refusing to surrender the policy, and that the insured is entitled to have the change of beneficiary effected if it is beyond his control to surrender the policy where he has substantially complied with the by-laws of the order.

“If for any reason beyond the contwd of the insured, surrender of the policy is impossible, the failure to surrender it will not invalidate the change of beneficiary.” 7 Cooley’s Briefs on Insurance, p. 6453; 40 Cyc. 199; Supreme Council, Royal Arcanum v. Behrend, 247 U. S. 394, 38 S. Ct. 522, 62 L. Ed. 1182, 1 A. L. R. 966, etc., etc.
“So the original beneficiary, in whose possession the certificate is, cannot defeat the change by refusing to surrender the certificate.” 7 Cooley’s Briefs on Insurance, p. 6453. Delaney v. Delaney, 175 Ill. 1877, 51 N. E. 961, affirming 70 Ill. App. 130; Allgemeiner Arbeiter Bund v. Adamson, 132 Mich. 86, 92 N. W. 786; Lahey v. Lahey, 174 N. Y. 148, 66 N. E. 670, 61 L. R. A. 791, 95 Am. St. Rep. 554, affirming 66 App. Div. 623, 73 N. Y. S. 1138; Cade v. Head Camp, Pacific Jurisdiction Woodmen of the World, 27 Wash. 218, 67 P. 603; Modern Brotherhood of America v. Matkovitch, 56 Ind. App. 8, 104 N. E. 795; Holden v. Modern Brotherhood of America, 151 Iowa, 673, 132 N. W. 329; Modern Brotherhood of America v. Hudson, 194 Mich. 124, 160 N. W. 406; Polish National Alliance v. Nagrabski, 71 N. J. Eq. 621, 64 A. 471, etc., etc.
“There it was held in Sarver v. Vaughn (Tex. Civ. App.) 261 S. W. 193, that the provision relating to the surrender is directory only and designed to protect the association.”
“In Hull v. Hull, 204 Mich. 530, 170 N. W. 642, it was held that, if the insured endorsed on the forms sent him a change of beneficiary, and had them witnessed and sent to the insurer, which acknowledged recjipt, but stated its inability to complete the change because of the insured’s failure to send the duly endorsed certificate, which was sent after his death, the change was complete so far as the beneficiaries were concerned.”
“It has been held in Delaware that the failure of an insured to deliver the policy while attempting to change the beneficiary will not prevent the new beneficiary from recovery as equitable assignee.” •

O’Donnell v. Metropolitan Life Insurance Company, 11 Del. Ch. 4, 95 A. 289.

“Restrictions in laws of beneficial Society or to methods of changing a beneficiary are matters of contract between it and the insured (Supreme Court, Order of Patricians v. Davis, 129 Mich. 318, 88 N. W. 874), and though a change of beneficiary must be made in accordance, with the laws of the society, yet when the change is made substantially as provided by the laws to its satisfaction and that of the insured, the first beneficiary cannot object to the manner of change, because it was not made on strict conformity to the laws of the Society.” 7 Cooley’s 'Briefs on Insurance, p. 6465; Supreme Lodge, Order of Golden Chain, v. Terrell (C. C.) 99 F. 330; Depee v. Grand Lodge of A. O. U. W., 106 Iowa, 747, 76 N. W. 798; Manning v. Ancient Order of United Workmen, 86 Ky. 136, 5 S. W. 385, 9 Ky. Law Rep. 428, 9 Am. St. Rep. 270; Fischer v. Malchow, 93 Minn. 398, 101 N. W. 602; Earley v. Earley, 23 Ohio Cir. Ct. R. 618; Pennsylvania R. Co. v. Wolfe, 203 Pa. 269, 52 A. 247; Schardt v. Schardt, 100 Tenn. 276, 45 S. W. 340, and a full page of other decisions.
“Failure of a member' to comply strictly with the laws of a fraternal benefit association in making change in the beneficiary of his certificate can be asserted only by the association.” Jones v. Holmes (Tex. Civ. App.) 195 S. W. 306; Cooley’s Briefs on Ins., vol. 7, p. 6466.

That a member has a right to change a beneficiary without the surrender of the old certificate has also been held in Ptacek v. Pisa, 134 Ill. App. 155, affirmed 231 Ill. 522, 83 N. E. 221, 14 L. R. A. (N. S.) 537; Dell v. Varnedoe, 148 Ga. 91, 95 S. E. 977.

See also McDonald v. McDonald, 212 Ala. 137, 102 S. 38, 36 A. L. R. 761, annotated; 14 R. C. L. 1396; 3 R. C. L. Supp. 395; 19 R. C. L. 1297; Kimbal v. National Life & Accident Ins. Co., 8 La. App. 228.

The failure to forward the sum of $1 for the issuance of the new policy would not defeat intervener’s right, because this payment was for the purpose of issuing a new policy and such a new policy was never issued, and it further appears that this provision in the by-laws was solely for the protection of the society, and' we believe that the original beneficiary is not entitled to interpose this defense.

“Actual change in a policy of life insurance, is not necessary to effect a change of beneficiary.” 14 R. C. L. 1390; 3 R. C. L. Supp. 394; 19 R. C. L. 1295.
“The rule requiring the surrender of the old policy, and indeed most of the rules of procedure in effecting a change of beneficiaries, are intended only for the benefit of the association and may, there-; fore, be waived by it.” (Numerous cases cited.) 4 Cooley’s Briefs on Insurance, p. 3772.' .
“A right cannot be considered a vested right unless it is something more than such a mere expectancy as may be based upon an anticipated continuance of the present general laws; it must have become a title, legal or equitable, to the present or further enjoyment of property.” Cooley, cited in 40 Cyc. 199.
In Cooley’s Briefs on Insurance (2d Ed.) p. 6461, we read:
“The rule requiring the surrender of the old certificate, and indeed most of the rules, of procedure, in effecting a change of beneficiaries are intended only for the benefit of the association and may, therefore, be waived by it.” Citing: Adams v. Grand Lodge, A. O. U. W., 105 Cal. 321, 38 P. 914, 45 Am. St. Rep. 45; Delaney v. Delaney, 175 Ill. 187, 51 N. E. 961; Simcoke v. Grand Lodge, A. O. U. W., 84 Iowa, 383, 51 N. W. 8, 15 L. R. A. 114; Manning v. Ancient Order of United Workmen, 86 Ky. 136, 5 S. W. 385, 9 Am, St. Rep. 270; Schoenau v. Grand Lodge, 85 Min. 349, 88 N. W. 999.
“The' provision of the regulations of the War Risk Insurance Bureau that no change of beneficiary shall be valid unless and until it is recorded in the bureau is for the protection of the government, and may be waived by it.” Farley v. U. S. (D. C.) 291 F. 238, 239.

Counsel for the plaintiff, in his brief, asks that in the event the judgment of the lower court be reversed, the case be remanded for the purpose of giving plaintiff an opportunity of offering evidence tending to show that the deceased was not mentally or physically able to execute the change of beneficiary under which the intervener is claiming.

The record shows that after the plaintiff had established a prima facie case and intervener had offered his evidence, our learned brother below, being of the opinion that the intervener had failed to make out a case, decided the matter without giving the plaintiff an opportunity to rebut intervener’s evidence and to establish any special defense that the plaintiff might have.

At the same time, we note that counsel for the intervener also request that the case be remanded to give intervener an opportunity of producing additional evidence to support his claim that the by-laws of the society were properly' observed in effecting a change of beneficiary.

Having come to the conclusion that the judgment should be reversed, we believe that the case should be remanded in order to afford both parties litigant an opportunity to" produce such additional evidence as the pleadings may' warrant.

For the reasons herein assigned it is ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and it is now ordered that this case be remanded to the Twenty-Third judicial district court for further proceedings according to law and not inconsistent with the views herein expressed. ■


text:
    No. 13,561
    Orleans
    SANTOS ET AL. v. DUVIC
    (March 23, 1931. Opinion and Decree.)
    M. C. Scharff, of New Orleans, attorney for plaintiffs, appellees.
    Wm. H. Sellers and Edward Rightor, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiffs instituted this suit for damages for the death of their mother, who was fatally injured by an automobile owned and operated by the defendant at the intersection of Canal boulevard and Louque place, this city, on October 8, 1928, about 7 o’clock p. m. The charge of negligence against the defendant is that he ran down the deceased at the intersection, after she had practically negotiated it, while driving his car at an excessive and reckless rate of speed. Defendant denied the allegations of the petition and pleaded contributory negligence. There was judgment in favor of plaintiffs for the sum of $4,000 and defendant has appealed.

The record shows that Canal boulevard has a neutral ground with paved roadways on each side of it. Automobiles moving thereon in the direction of the lake use the downtown side thoroughfare and those proceeding towards the river use the uptown side roadway. Louque place crosses Canal boulevard at right angles. The de- ' ceased, a woman 67 years of age, was living with her daughter on the uptown side of Canal boulevard and was returning home from a domestic errand at the time of the accident.

The defendant was the sole eyewitness to the accident. and he testified that he was a salesman and had left his office to go home at about 6:30 p. m.; that he was driving his 1926 model Chevrolet coach on the downtown thoroughfare of Canal boulevard in the direction of the lake; that as he neared the intersection of Louque place he saw a dark object crossing from the lower to the upper side of Canal boulevard, about ten feet from the intersection of Louque place; that the object was past the middle of the street at the time that he saw it and that he was a distance of from 45 to 60 feet from it at that time; that he was traveling about 23 miles an hour, three or four feet from the neutral ground curb; that he slowed down and saw the object pass out of the range of his lights in the direction of the neutral ground, and continued on his course and accelerated his speed; that the object suddenly returned from the direction of the .neutral ground directly in the path of the automobile and that he attempted to swerve to the right, in order to avoid striking it, but that, before he could turn, he had already struck the object; that he brought his car to a stop' some 45 feet from where he struck the deceased, and that he then backed his car up and, with the assistance of bystanders, put her in the car and took her to the Charity Hospital.

On cross-examination of the defendant it was brought out that he did not blow his horn; that there were no other automobiles in front of him to interfere with his view and that there was nothing on his right to have prevented him from driving to the right in order to have avoided striking the deceased; that when he first saw the deceased crossing the street, he made no attempt to alter his course by driving to the right so as to have taken precaution to avoid striking the deceased; and that the deceased, having almost crossed the street, had the right of way.

Plaintiffs established by two disinterested witnesses that the body of the deceased was found twelve or fifteen feet from the intersection and three or four feet from the neutral -ground curb; that they were attracted to the scene by a loud crash and, upon arriving there, found the defendant’s car ninety or a hundred feet from the scene of the accident in the act of backing up in the direction where the deceased lay in the roadway; that the left front headlight of the car was broken and there was a dent in the left front side of the radiator shell. The defendant on cross-examination admitted that that was the portion of the car that struck the deceased.

It was also proven by the plaintiffs’ witnesses that the paved roadway in the direction of the lake, on which defendánt’s car was traveling, was thirty-one feet wide.

Plaintiffs further showed by a police officer that immediately after the accident defendant admitted that the brakes on his car were defective and would not hold, and that when the policeman attempted to drive the car he found the brakes ineffective. Defendant at first objected to this evidence, but withdrew the objection and then sought to rebut the evidence of plaintiffs tending to show that fact, but, we believe, unsuccessfully.

It is clear that if the defendant ran. down the deceased without giving her any warning of his approach by sounding his horn after he was aware of her presence and while a distance of forty-five to sixty feet away, running twenty-three miles an hour with a clear, dry and unobstructed road, which afforded him every opportunity of steering to the right or stopping in order to have avoided striking her— conceding that the deceased was guilty of negligence in attempting to cross the street—the defendant certainly had the last clear chance of avoiding the accident, and, therefore, would be liable. Johnson v. Boyle, 5 La. App.. 362; Kelly v. Ludlum, 9 La. App. 57, 118 So. 781; Gouzien v. Feraci, 2 La. App. 115; Martin v. Zatarain, 7 La. App. 629; Greer v. Hamilton, 3 La. App. 120; Parlongue v. Leon, 6 La. App. 18; Thornhill v. Yellow Cab Co. of Monroe, 6 La. App. 787; Green v. Moore, 4 La. App. 495; Kelly v. Schmidt & Ziegler, Ltd., 142 La. 91, 76 So. 250; Hodges v. Davis, 7 La. App. 327; Reed v. Sievers, 146 La. 391, 83 So. 685.

Defendant seeks to convince us that the old lady had completed the crossing and arrived on the neutral ground and, having found that it was impassible on account of debris and weeds, attempted to return into the roadway and suddenly stepped in front of his car and hence gave him no opportunity to avoid striking her. The judge of the trial court, in his reasons for judgment, refused to accept this part of the defendant’s testimony because, taking the defendant’s estimates of speed and distances, he was satisfied that the defendant struck the deceased as she was attempting to cross the street and was near the neutral ground. The application of mathematics to the speed of his car and distances, furnished by the defendant, adequately bears out the opinion of the trial judge. We observe that, had the old lady gone upon the neutral ground and then attempted to return, as the defendant says she did, his car would have passed her before she would have had an opportunity of walking from the neutral ground back into the street.

In his written statement to the police after the accident, defendant said that “some unknown white lady, after passing in front of his machine to the neutral ground of Canal boulevard, suddenly hesitated and stepped backwards into the street and was struck by his machine.” The following day, at the coroner’s inquest, defendant stated under oath that “as she came I slowed up and she passed directly in front of me and, as she reached the neutral ground, she either backed or turned around. I tried to swerve my car to prevent the accident.” In his testimony on the witness stand, under cross-examination, defendant stated that the deceased had returned from the neutral ground into the street about five feet, when he struck her. It is thus seen that defendant gives three different versions of how the old lady suddenly appeared in front of his car. This would be an additional reason for rejecting that part of defendant’s testimony.

We further note that the deceased sustained crushing injuries to her left side, which would strongly indicate that she was struck by defendant’s car while attempting to cross the street as his automobile approached her from that side, and not while she was returning from the neutral ground, because defendant would then be approaching from her right side.

Counsel for defendant complains that the trial court should either have accepted the defendant’s statement as a whole, or rejected it as a whole. If accepted as a whole, then defendant was vindicated; if rejected as a whole, the plaintiffs had failed to prove their case, as there was no other eyewitness to the accident; but no authority is cited by defendant to support this contention. We believe it was proper for the court below to accept such portions of defendant’s testimony as were plausible and reasonable in the light of human experience and to reject any portions of it that appeared to the contrary. This is particularly true in cases such as the present one. The defendant’s testimony, in the respects accepted by the court, is corroborated by the physical facts and, in a measure, by the testimony of the witnesses arriving at the scene immediately after the accident. The plaintiffs’ evidence certainly tends to show that the defendant was operating his car at an excessive rate of speed, with defective brakes, and that the deceased was killed at the crossing after having nearly completed it.

' Judicial admissions áre the strongest and highest evidence against the party making them. Succession of Hostetter,, 128 La. 468, 54 So. 961. Litigants are not required to prove what their opponents judicially admit. Peytral v. Lacourrage, 1 Orleans Appeal 38.

The trial court found that defendant had the last clear chance of avoiding the accident, and we have reached the conclusion that its finding is correct.

' The deceased was 67 years of age, in good health, and lived with one of her married daughters, and was seen regularly by plaintiffs, her major children, to whom she was attentive. She sustained a fracture of the third and fourth cervicle vertebrae, multiple fractures of the upper and lower arm, ribs on the left side from fourth to tenth crushed and fractured; bone below right eye fractured, and from which injuries she died almost immediately after the accident. The plaintiffs were not dependent upon their mother for support. The trial court allowed the sum of $4,000. Defendant complains that this is excessive and the plaintiffs have, answered the appeal and asked that the award be increased.

We have reached the conclusion that the amount awarded is in keeping with former awards and appears to be neither manifestly excessive nor inadequate.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 13,565
    Orleans
    LAWES v. PERLOFF
    (March 23, 1931. Opinion and Decree.)

      (No Syllabus)

    Hugh M. Wilkinson and McLoughlin & West, of New Orleans, attorneys for plaintiff, appellee.
    Moise & Dunbar, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a suit to recover property damages alleged to have resulted from an automobile collision at ‘the corner of South Broad and Gravier streets, this city, on February 9, 1930, at 9 a. m.

The charge of negligence against defendant is his failure to stop and blow his horn and give plaintiff the right of way accorded him by the provisions of the traffic ordinance of the City of New Orleans. Defendant denied liability and averred that the damage to plaintiff’s car was the result of plaintiff operating his car at an excessive rate of speed and not having it under proper control.

There was judgment in favor of plaintiff in the sum of $139.67 and defendant has appealed.

The record shows that plaintiff was driving downtown on the riverside roadway of Broad street which has a neutral ground in the center with paved thoroughfares on each side of it. The defendant’s automobile was moving on Gravier street in the direction of the river. The automobiles collided at the point where these two streets intersect, the front bumper of defendant’s car striking the left rear fender of plaintiff’s car which overturned on its right side. Defendant’s car came to a stop practically in the intersection.

Defendant does not pretend that he observed the provisions of section D of article 7 of ordinance No. 7490 C. C. S. by coming to a full stop and blowing his horn before leaving the neutral ground to enter the riverside thoroughfare of Broad street. It is clear that he was at fault in this respect. The sole contention before this court is that the blow that defendant’s car struck plaintiff’s car was not sufficient to cause it to overturn and, as the damages sued for were caused by plaintiff’s car overturning, defendant’s neglh gence was not the proximate cause of the damages, but that plaintiff was driving his car at an excessive rate of speed which ■caused it to overturn.

Defendant testified that he did not see ■ plaintiff’s car until the moment of the collision. The charge of excessive speed on the part of plaintiff is inferred from the fact that only the front bumper of defendant’s car was broken and the left rear fender of plaintiff’s car slightly damaged. From this it is argued that the blow was slight and, therefore, from the physical facts it is apparent that plaintiff’s car was traveling at an excessive rate of speed.

Plaintiff’s evidence, as to the speed of his car consisted of the testimony of a young lady, his sister, his wife and himself, which tends to show that he was traveling about twenty or twenty-five miles an hour at the time of the collision. Their testimony further shows that defendant slackened his speed as he approached the intersection and plaintiff says that he assumed, as he had a right to do, that the defendant was about to observe the traffic ordinance and stop his car in order to permit plaintiff to proceed on his way.

The evidence convinces us that plaintiff was not operating his car at an excessive rate of speed and that it was under proper control. It appears to us that plaintiff’s car turned over as a result of being struck by defendant’s car and plaintiff’s effort to suddenly swerve to the right to avoid the collision. The negligence of defendant was, therefore, the proximate cause of plaintiff’s car overturning.

No complaint has been made as to the quantum of damages allowed, consequently and for the reasons herein assigned, the judgment appealed from is affirmed.


author: PER CURIAM.

text:
    No. 13,489
    Orleans
    KEENAN v. CONWAY SPRANLEY TRANSFER CO., LTD.
    (March 23, 1931. Opinion and Decree.)
    (No Syllabus)
    Brewer & Sere, of New Orleans, attorneys for plaintiff, appellee.
    St. Clair Adams and St. Clair Adams, Jr., of New Orleans, attorneys for defendant, appellant.
   PER CURIAM.

Counsel for appellant in oral argument before us. declared that the trial judge intimidated one of his client’s witnesses to a degree which affected his testimony.

While not all of the incident as recited is depicted in the record, it sufficiently appears that the particular witness was not afforded an opportunity to testify fully and freely, and that, therefore, the interests of justice will best be served by our remanding the matter for a new trial.

The judgment appealed from is annulled, avoided and reversed and the case is remanded to the First city court of New Orleans for further proceedings according to law and not inconsistent with the views herein expressed.


text:
    No. 13,573
    Orleans
    KOPANICA v. LEVATA
    (March 23, 1931. Opinion and Decree.)

      Raymond Gauche, of New Orleans, attorney for plaintiff, appellee.
    Daly & Hamlin, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Peter Kopanica, a wholesale dealer in oysters, sues Anthony Levata, a retailer, for payment for seventy-three sacks of oysters at $1.50 per sack, amounting to a total of $109.50. Defendant admits receipt of the oysters and that the price, $1.50 per sack, is correct, but avers that each sack delivered was, short in measure, and, in a reconventional demand, claims- that prior to the deliveries sued for he had purchased many sacks of oysters from plaintiff, and that each sack delivered to him between December 29, 1928, and September 18, 1929,, had been short to some extent, and that the total value of the shortages amounted to $155.69.

By Act No. 51 of 1910, the Legislature of Louisiana established a standard measure for oysters. This act provides that the standard measure is a basket containing a bushel and a half and a sack of oysters must contain one standard basket. Defendant claims, that during the period covered by the reconventional demand he was not the owner of a standard measure, and therefore did not know that the sacks which were being delivered to him during that time did not contain one and a half bushels each, but that during that time he did have an ice box in which oysters were kept, and that he later discovered that the said ice box could only contain a certain number of sacks of oysters of standard measure, whereas it always contained more than that number of sacks of oysters sold him by plaintiff.

The evidence is conflicting, but we are oi the opinion that, to say the least, it does not preponderate in support of defendant’s contention. Plaintiff was a large wholesale dealer, and undoubtedly was in the habit of keeping close watch on his purchases and deliveries, and, in our opinion, defendant’s proof is not sufficiently definite or positive to convipt plaintiff of delivering short measures.

Furthermore, since the case involves only one of fact, the trial court should not be reversed, unless, manifestly erroneous, and we cannot say that the judgment here complained of is obviously incorrect. As we have intimated, the trial court rendered judgment in favor of plaintiff on the main demand and dismissed the reconventional demand. The judgment appealed from is affirmed.


text:
    No. 13,581
    Orleans
    KARL HANSEN CO., INC., v. BEEKMAN
    (March 2, 1931. Opinion and Decree.)
    (March 23, 1931. Rehearing Refused.)
    (April 27, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Charles J. Rivet, of New Orleans, attorney for plaintiff, appellee.
    Cahn & Cahn, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

The Karl Hansen Company, Inc., and Ben Beekman entered into a contract under which the former undertook to furnish and install in the store building of the latter certain show windows and to do other work, all in accordance with plans and specifications drawn and prepared by Messrs. Andry & Eeitel, architects. The work was to be done under the supervision of the architects.

Certain disputes arose as to whether some of the work required by the architects was in fact included within the plans and specifications, or constituted extra work. Delays ensued, due largely to the disputes over the proper interpretation of the plans, and finally, in order that the Hansen Company might secure payment, it was agreed that the architects should certify the work to be substantially completed if the Hansen Company would agree that, within thirty days after the issuance of the said certificate of substantial completion, it would do certain things mentioned in a certain letter as actually incomplete, and would submit a list of all of the extra work done and for which it intended to charge.

The list of extras was submitted, and the payment was made. In the list of extras there was not included various items which form the basis of this suit. Thirty days after receipt of the payment already referred to, a final payment in the sum of $4,455 was accepted by the Hansen Company, and. that company executed a receipt, on which appeared a statement made by the architects and reading as follows:

“N. O. La. Jan. 11th, 1927.
“The above sum of Four Thousand four Hundred and fifty-five dollars ($4455-00/100) is correct balance due to the Karl Hansen & Co. Inc. on show window contract and the extra work resulting from this contract.
“Andry & Peitel, Architects
“Per Paul Andry.”

After receiving this payment and on the same day, the Hansen Company, in writing, demanded of Messrs. Andry & Peitel, the architects, payment for certain extras, which, though not described in detail in the said written demand, formed the basis of this suit, and totaled, according to the petition, $305.

The said items, as we have stated, were not included in the list of extras sent to the architects when the certificate of substantial completion was issued, and plaintiff now contends that the acceptance by it of settlement in full from Beekman did not constitute a settlement for those extras, because it maintains that payment for those extras was not in fact due by Beekman because they were ordered by the architects and for their own account, and were made necessary because of faults and omissions in the plans and specifications. When demand was made on the architects, they denied their responsibility for any of the items, and referred the claimant to Beekman. Thereupon demand was made upon Beekman, who seems to have paid no attention thereto, and it is now claimed by plaintiff that Beekman’s silence and his failure to deny his responsibility for extras ordered by the architects constitutes his acquiescence in the statement of the architects that the said extras were properly chargeable to him.

It thus appears that it is now sought to hold Beekman, not because the work was done for him and not because it was done as an extra to the contract between him and plaintiff, but because, though it was originally done for some one else, he remained silent when he should have spoken and thus tacitly agreed that, if there was any liability, it was on him. The trial court appointed an expert to examine the evidence and the plans, and specifications and to report on the question of whether or not the items in dispute were actually included in those plans and specifications, or were, in fact, supplementary and in addition thereto. The expert reported that, in his opinion, the said items did not in fact constitute extras, but were properly within the contemplation of the original plans and specifications. It is said that, since the expert’s report was not formally homologated, it is not in evidence and cannot be considered by us, and the following authorities are cited in .support of this proposition: McNair v. Gourrier, 40 La. Ann. 353, 4 So. 310; Reynolds et al. v. Rowley et al., 2 La. Ann. 890.

Plaintiff also complains that the expert did not content himself with investigating and reporting on the facts and on matters within his expert knowledge, but undertook to advise the court with reference to the law applicable to compromises, and, in this, regard, we believe that the expert exceeded his authority and prerogative.

Whether the expert’s report may be considered by us and whether he exceeded his authority and prerogative are matters of no substantial importance, since the evidence on which the report is based is all before us, and since, whatever may have been the extent of the duties of the expert, our duty requires us to pass, upon the law.

Since we believe that plaintiff’s conduct, in allowing the architects and Beekman to make ..the. final, payment of $4,455, was such as to warrant the. belief that that amount was accepted in full settlement for all claims growing out of the work, we do not think that it is necessary, for us to pass upon, the* question of whether tne items now sued for were actually extras, or were included within the original plans and specifications. .

The letters which are in evidence show that the Hansen Company knew that Beekman was fully aware of the various disputes, and the work claimed as extra was so closely allied with the original work that both the architects and Beekman were justified in believing that these items, if they were extras, were contemplated as included in the statement on the receipt to the effect that it represented the balance due for work done under the contract and for extras. Plaintiff contends that compromises must be in writing and that everything intended to be compromised must be included in the document and that no one document sets forth a complete ¿compromise. We find that the compro.mise here did not consist of one d'ocujnent, but of several, and that a fair interpretation of those documents includes .the work now sued for.

If there was an intention on the part of the plaintiff to reserve its rights to claim from the architects an additional sum, we think the circumstances were such that it .should have made a clear reservation of that right. The fact that it waited until it had received settlement from Beekman to assert its claim against the architects indicates that there was some fear that, if ■ it first asserted its claim against the archi.tects, settlement .would not' be’ forthcoming from Beekman.

: The .fact that, on one prior occasion, the architects had themselves paid for work which was made necessary because of their oversight,' did not establish the custom that whatever they might thereafter order was for their account and not for account of the owner.

The trial court rendered judgment for one of the items amounting to1 $130. Defendant has appealed and asked for a dismissal of the suit. Plaintiff, by answer to the appeal, asked that the ' judgment be increased to $279. We think the suit should have been dismissed.

The judgment appealed from is. annulled, avoided, and reversed, and there is now judgment in favor of defendant, Ben Beekman, dismissing plaintiff’s suit, at the cost of plaintiff and appellee.


text:
    No. 13,583
    Orleans
    JOHN MEYER, INC., v. SEMINARY
    (March 23, 1931. Opinion and Decree.)

      (No Syllabus)

      J. Singreen, of New Orleans, attorney for plaintiff, appellee.
    Wilkinson, Coe, Oser & Nowalsky, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This ease results from a collision of two motor trucks on the public highway in Plaquemines parish near Jesuits Bend. Plaintiff claims $225.77 as damages to his truck. Prom a judgment awarding plaintiff $200, defendant has appealed.

Counsel for appellant insists that, though nothing but a question of fact is involved in this case, it should not be controlled by the rule which emphasizes the importance of findings of the trial court in such cases.

We have given the record most careful consideration and believe that in resolving the conflicting testimony the trial court has reached the correct conclusion. In any event there are no exceptional features which would remove this case from the influence of the rule concerning the findings of fact by trial courts.

Por the.reasons herein assigned the judgment appealed from is affirmed.


text:
    No. 13,580
    Orleans
    VALLEY SECURITIES CO., INC., v. DE ROUSSEL (HOME FINANCE SERVICE and GEORGE WRAY GILL, Interveners)
    (March 23, 1931. Opinion and Decree.)

      Connolly & Simoneaux, of New Orleans, attorneys for plaintiff, appellee.
    Warren M. Simon, of New Orleans, attorney for interveners, appellants.
   HIGGINS, J.

This is a contest between mortgage creditors to be recognized by preference and priority over each other. The Valley Securities Company, Inc., foreclosed on a mortgage executed in its favor by the defendant and seized “one certain Dodge three-quarter ton • truck, Graham Bros, body, bearing motor No. M-68265, serial No. E-135,889,’’ which truck was thus described and covered by the mortgage which formed the basis of the proceedings via executiva. This chattel mortgage, purporting to have been executed before A. R. Christovich, notary public, on February 24, 1930, was properly recorded in the mortgage office of Orleans parish on February 25, 1930.

The defendant answered, averring' that he had been placed in bankruptcy, and specially' excepted to the jurisdiction of the court, praying that the matter be transferred to the bankruptcy court, where plaintiff’s claim had been listed in his schedules, and also for an injunction enjoining and restraining the constable from proceeding with the sale of the truck.

Immediately after the foreclosure proceedings were instituted the Home Finance Service filed an intervention alleging that it was the holder of a chattel mortgage on “one certain Dodge automobile truck, motor No. 68254, serial No. 135889, located at 1237 General Ogden street, this city,” superior in rank to the plaintiff’s and executed in its favor by the defendant on October 16, 1929, by act before Leo Hyman, notary public, and duly recorded in the mortgage office of Orleans parish on November 5, 1929; and. praying that the constable be ordered not to sell the property seized unless it brought a sufficient amount to pay intervener’s full claim, and that intervener’s claim be paid by preference and priority over plaintiff’s out of the funds realized from the sale.

A similar intervention was also filed by George Wray Gill, asserting a superior claim to the plaintiff’s by virtue of a chattel mortgage executed by the defendant in his favor on December 21, 1929, by act before Warren M. Simon, notary .public, and recorded on December 23, 1929, in which the truck is described as “one certain Dodge automobile truck, Graham Brothers model, six cylinders, three-quarter ton truck, panel body, motor No. 68265, serial No. E-35889, and which truck is presently situated and located at 1237 General Ogden street, New Orleans, La.”

The trial court gave judgment in favor of the plaintiff, as prayed for, recognizing its chattel mortgage on the Dodge truck, refusing the injunction and also dismissing the interventions. Interveners alone have appealed.

The plaintiff admits that the two above purported chattel mortgages were recorded in the mortgage office prior to the recordation of its mortgage and would, everything being legal, prime its claim, but contends that these purported mortgages should not be given any legal effect as against plaintiff, because the descriptions of the trucks in interveners’ chattel mortgages are insufficient and fatally defective and cannot serve as notice to third persons under the provisions of Act No. 198 of 1918, known as the chattel mortgage law.

The interveners attacked the mortgage of the plaintiff on several grounds:

First, that the act of mortgage' was not passed before a notary and two witnesses; second, that the mortgage note was not properly identified with the mortgage; and, third, that the mortgage does not give the municipal location as to street name and number where the truck was kept o'r located, and, hence, that plaintiff’s mortgage is illegal, not being in accordance with the provisions of the above act. The record is clear that the plaintiff did not have any actual knowledge of the mortgages of the interveners and the first question before us is whether or not the description of the truck in the respective interveners’ mortgages is sufficient to serve as constructive notice of their existence, under the express provisions of section 4 of Act No. 198 of 1918.

Considering, first, the description in the Home Finance Service mortgage, it appears that it took a mortgage on a Dodge truck, but failed to specify therein that the truck had a Graham body. The mortgage recites that the motor number of the truck mortgaged is 68254, omitting the letter “M,” which properly, belongs before the number, and the correct motor number of the truck is 68265. Further, this mortgage described the truck as bearing serial No. 135889, whereas the proper serial number is “E-135889.”

The defects in the description of the Gill mortgage are that the truck is described as a “Dodge automobile truck, Graham Brothers model,” the proper description being a Dodge Brothers truck with a Graham Brothers body. In that mortgage, also, the motor number is shown as “68265,” whereas the proper motor number is “M-68265”; and the serial number is given as “E-35889,” while the correct serial number is “E-135889.”

In the case of Exchange National Bank v. Palace Gar Go., 1 La. App. 308, an automobile was described in the mortgage as “one .6-48 wire-wheel roadster, motor No. 50795, said car being manufactured by the Moon Motor Car Co.” The motor number of the car in controversy was 43075. The court said:

"It is clear, we think, that the car was not described in the mortgage, so as to make it possible to identify it (Section 2 of Act 198 of 1918) and hence that as to an . innocent third purchaser, it can have no effect.”

See, also, Stevenson v. Exchange National Bank, 10 La. App. 179, 120 So. 96.

In the case of Valley Securities Co., Inc., v. Stafford et al., 8 La. App. 607, plaintiff’s mortgage covered a “Ford roadster, motor No. 14525832.” The third opponent’s mortgage covered “one roadster, No. 14525832.” The court held that the description was insufficient to serve as notice to third parties.

. In the ease of McQueen v. Tenison (Tex. Civ. App.) 177 S. W. 1053, it was held that “1 ‘Maxwell 4-passenger automobile, factory No. 32466’ ” was not such a description as to charge the purchaser of a “five-passenger Maxwell automobile, 'model 1-3, car No. 2466” with notice that the car purchased was the one covered by the mortgage. See, also, 11 Corpus Juris, 461, sec. 81.

Where automobiles are manufactured by the thousands by the various automobile syndicates, there must be some differentiating marks by which they can be identified. The identification of automobiles upon which state licenses are issued are guided by the name and make of the car and the motor and serial numbers. The motor and serial numbers on automobiles are the distinctive marks by which cars of the same make and manufacture are identified one from the other. Failure to properly give the motor and serial numbers of the mortgaged automobile is not a sufficient compliance with the provisions of Act No. 198 of 1918 and definite enough description to operate as constructive notice to third persons of the mortgage on the automobile. The trial judge found that the description in both interveners’ acts was insufficient to charge the plaintiff with constructive ' notice of their existence, and we. are of the opinion that his conclusion was correct.

In the argument at bar, counsel for the interveners sought to have us first determine the question, vel non, of the validity of plaintiff’s mortgage, upon the three grounds of asserted illegality.

In this connection we note that the defendant filed a special plea to the jurisdiction of the court, asking that the matter be transferred to the bankruptcy court, and under such a plea the allegations of the plaintiff’s petition to the effect that, it was the bona fide holder and owner of the notes secured by its chattel mortgage were admitted. City of New Orleans v. Waggaman, 31 La. Ann. 299; Block v. Fitche, 33 La. Ann. 1095; Pinckard, Steele & Co. v. Hampton, 22 La. Ann. 439; Barnett et al. v. Cate & Co., 18 La. Ann. 160; Blanque v. Woods, 11 La. Ann. 103.

It is also settled beyond dispute that an intervener must take the suit as he finds it and cannot complain of the form of the action, or of the informalities or defects in the proceedings between the original parties. Layman v. Succession of Woalfe, 136 La. 767, 67 So. 823.

Interveners in the present case, in their respective petitions, prayed for recognition by preference and priority of their claim o’ier the plaintiff’s on the proceeds of the sale of the mortgaged truck in the foreclosure proceedings. In the case of Albert Pick & Co. v. Stringer, 171 La. 131, 129 So. 731, 735, the Supreme Court of this state held:

“It is our opinion that the third opposition is not the remedy afforded for determining the rank of valid and subsisting claims. The law provides another remedy for determining the validity or legality of such claims. This court has uniformly held that, an opposition will not lie where the opponent attacks the validity of the judgment or mortgage and in the same action claims to be paid by preference out'of thé proceeds realized from the sale of property. Theurer v. Knorr, 24 La. Ann. 597; Tarleton v. Kennedy, 21 La. Ann. 500; Peychaud y. Citizens’ Bank, 21 La. Ann. 262; Livaudais v. Livaudais, 3 La. Ann. 154; Layman v. Succession of Woulfe, 136 La. 767, 67 So. 823. The last-cited case merely holds that an intervener must take the case as he finds it.”

Interveners cannot in the same proceeding attack the validity of a mortgage on which the foreclosure proceeding is instituted and the order of seizure and sale issued, and also ask that they be paid by preference out of the proceeds of the sale. They cannot be permitted to attack the authenticity of the mortgage, which is the basis of the foreclosure proceedings, and, at the same time, claim the proceeds of the sale.

It would appear to us that the interveners are in the same position as a plaintiff in a petitory action. They must depend upon the validity of their own mortgage, rather than upon the illegality of their adversary’s. It was incumbent upon interveners to show that they had a valid, subsisting mortgage before they could assert any rights as against the plaintiff. The mortgages under which they asserted their rights were found by the lower court and by this court to be defective because of insufficient description of the truck and, therefore, could not affect third persons. Hence, they are without any right to question the validity of the plaintiff’s mortgage particularly where the defendant in the case did not raise such an issue.

For the reasons assigned the judgment appealed from is affirmed.