text:
    No. 11,524
    Orleans
    HIRSCH v. L. R. & N. CO.
    (February 11, 1929. Opinion and Decree.)
    H. W. Robinson, of New Orleans, attorney for plaintiff, appellee.
    Milling, Godchaux, Saal and Milling, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

This suit was filed in June, 1924, for $2,045.50, as damages for a sprained ankle suffered in an accident which occurred on July 17, 1923.

Plaintiff alleges as follows:

On the evening of July 17, 1923, she was riding in an automobile driven by her son-in-law on the New Basin Shell Road, going toward Carrollton Avenue from West End, approaching the point at which the track of the Louisiana Railway & Navigation Company crosses the Shell Road and the New Basin Canal, where defendant ,maintains gates to warn travelers of the approach of trains. Articles V and VIII of the petition read as follows:

“That, as the said automobile reached the tracks of defendant, the gates were up, thereby indicating that it was safe to proceed; that, relying upon said signal, the operator of the automobile in which petitioner was riding proceeded to cross the tracks of defendant; that, as said automobile was on the tracks of defendant, a train of defendant was seen by the occupants of said automobile and petitioner coming upon the said automobile at a great rate of speed; and that all of the occupants of the said automobile, including petitioner, realizing that something was wrong, became frightened and terrified, and jumped out of the said automobile.’’
“That defendant is liable for the said accident in' that it not only failed to give the driver of the automobile in which petitioner was riding notice or warning that a train was about to cross immediately in front of the said automobile, but defendant actually invited the driver of the said automobile to proceed by having the gates, at tha.t point, up; that defendant’s said neglect was the direct and proximate cause of petitioner having become frightened and jumping from the said automobile as aforesaid and defendant is therefore liable for the injury which she sustained.”

Defendant, after denying negligence, and averring due care in operating its train and the injury, if any, as caused by plaintiff’s negligence, in ■ Paragraph IV, made the following statements:

“In answer to paragraph 4 of the plaintiff's petition, defendant admits that, where its tracks cross the West End Roadway, it maintains gates, which are sometimes used for the purpose of warning travelers of approaching trains, and also that when said gates are down, such fact is an indication to the traveling public that a train is approaching, but defendant denies that when said gates are up, that fact is an indication to the public that no train is approaching, because your defendant maintains other signalling devices at the said crossing, which are also used for the purpose of warning travelers of the approaching of its trains, and it further maintains a watchman at the said crossing and the bridge over the New Basin Canal, which said watchman operates signals, flashes such lanterns, waves such flags, etc., as the particular situation demands. Except as herein expressly admitted, defendant denies the allegations of paragraph 4 of plaintiff's petition.” .

The case was tried on March 20th and 21st, 1928, almost five years after the accident, and there was judgment in favor of the plaintiff in the sum of 1545.00, with interest and costs, from which judgment defendant has appealed.

The evidence shows that the accident occurred on July 17, 1923, about 9:30 p. m., on a warm, dry night; that the road along the New Basin Canal was hot paved, but was a shell road sufficiently wide to accommodate two parallel lines of automobiles. The track of the defendant crosses the shell road and the New Basin Canal at a forty-five degree angle about three hundred yards from the point at which Carrollton Avenue crosses the New Basin Canal, and at that point traffic wan frequently greatly congested.

Defendant’s track extends in a straight line from the New Basin Canal for about a half mile and then makes a curve to-words the Seventeenth Street Canal, which forms the boundary line of Jefferson Parish and is at least three-fourths of a mile from the point at which the accident happened. At the time there were no houses along the track, and one driving an automobile along the New Basin Canal Road toward Carrollton Avenue had a clear view for at least half a mile. Defendant has a bridge over the New Basin Canal, with a bridge house in the center, which is about one hundred and twenty feet °rom this crossing. In this bridge house defendant keeps a bridge tender, who operates the crossing gates and the electric crossing bells.

At the time of the accident plaintiff was a guest in a five-passenger open car which was being driven by her son-in-law, Masson. On the front seat, with the driver, sat his wife, Mrs. Masson, plaintiff’s daughter, and on the rear seat were plaintiff, her sister, Mrs. Mebyovich, and three children, the plaintiff sitting on the left hand side toward the New Basin Canal, just behind the driver of the car. On account of the congestion at Carrollton Avenue and the Shell Road, where a traffic policeman was located, Masson’s car was caught in a solid line of traffic extending for three or four blocks on both sides of the railway crossing. This'line moved only a few feet at a time, and when the accident happened, Masson’s automobile was directly across the track of the defendant company-—unable to move either forward or backward on account of the congestion.

Masson testified that he did not look for trains before going on the track, but after he was stopped on the track he heard the crossing bell ring and got out of the car, when he saw the train about a block away, coming from the direction of Jefferson Parish. He then shoved the automobile off the track with the assistance of some other men, as the bridge tender had by that time made the other cars in front of him move up closer together. The train then passed behind his automobile about ten miles an hour.

Mrs. Masson testified that a few moments after the automobile stopped on the track the crossing bell began to ring, but they did not get out right away as they did not thinlc it necessary, but after the bell had rung for half a minute they got out; they did not see the train until they got out of the car, when the train was about half a block away. Neither she nor her husband remembers seeing any light on the train, which backed up with a box car on the end nearest the canal.

Plaintiff herself testified that the. automobile first stopped about ten feet from the track, at which time she looked towards Jefferson Parish and saw nothing; that after the automobile had been on the track three or four minutes, the crossing bell began to ring, when she looked again and saw a red reflection. Then she jumped out of the car hurriedly, being greatly frightened because she had a baby on her arm. She then placed her foot on a stone or piece of cross-wood in the road which was paved with shells at the time, and it turned over, spraining her ankle and causing her to fall. She confirms her son-in-law as to the automobile being shoved off the track.

On cross-examination she testified that the light she saw was a red reflection and that when she heard the gong ring, she hollered “we might as well jump for our lives.” She did not know how long it took to get the car off the track, or how soon the train passed, as she was suffering too much to notice, but she thought it was probably ten or fifteen minutes; that it was always her custom to look up and down before crossing a railroad track. She does not complain of lack of light in the road, and there must have been sufficient* light, as all the automobiles were presumably lighted.

Her sister testified that she iooked to the right and left as they approached the track, but saw nothing, and after they stopped on it they saw the train coming about a block and a half away, with a red light burning on the end of the box car next them; the automobile remained on the track three or four minutes before it was rolled off. When they saw the train, all hollered and Mrs. Schnetzer, who had a baby on her arm, wanted to jump out.

Roggenkamp, who was not employed by the company, testified that a red fusee was burning on the end box car of the train next the road.

Alexander, the bridge tender, who had been working in that position for defendant more than five years, testified that it was his duty to operate the bridge and gate from the tower about ten feet above the bridge, and protect the crossing; that on the evening in question he had observed the heavy traffic on the road carefully,' as he was expecting this train about 9:30, the usual hour at which it crossed; as soon as he saw from the tower the red reflection about three-fourths of a mile away, he sounded the warning bell, but did not lower his gates, as it was impossible to do so without striking an automobile; that he then took his lantern and walked over to the road to clear the traffic and signal the approaching train, if necessary; when he reached the crossing, which was only one hundred and twenty feet away, plaintiff had already jumped out of the automobile; under no circumstances would the train have proceeded to cross the road until he had given the signal that the crossing was clear; the purpose of the electric gong, which was placed at the right side of the road between the road and the car-track, was to warn traffic of the approach of a train; the train was more than a half-mile away, around the curve, when he first sounded the gong that night; he received the usual signal from the engineer—four whistles—but did not give any signal to come ahead with his lantern until the track was clear, and the train was at least four or five hundred feet away when he finally gave the signal to proceed.

J. R. Welsh and H. N. Welsh testified that they were riding on top of the lead box car; that <each. had a white lantern in his hand and that a red fusee (like a roman candle) was burning at the end of the car next to the canal; that it was their duty to transmit by lanterns the signals received from the bridge tender at the crossing, to the engineer, by relaying the samp to Gernon, another member of the crew, whose position was on the top of the box car next to 'the engineer, and then Gernon would in turn transfer by lantern the signal to Roggenkamp, the engineer.

All of the above named testify that the train was being operated that evening in the usual prudent manner; that it crossed the Seventeenth Street Canal going about six or eight miles an hour, and that, as they crossed canal, the engineer blew four blasts of the whistle to warn the bridge tender of his approach; they did not receive any signal from the bridge tender and, accordingly, they slowed down until they were barely moving; that finally, when they were within a few hundred feet from the crossing, they received the signal from the bridge tender and then the train continued over the road; the train consisted of twenty-five or thirty box cars, some loaded and some empty, which had been collected in the yards in Jefferson Parish and were being brought into the city to be left at warehouses and terminals.

Graham, Superintendent of Terminals of the defendant company, testified as to the rules of the company then in force, and also as to the yard limits which he said began at mile post 298.36, New Orleans, about a half-mile from Jefferson Highway that runs up to Shrewsbury; that the regular signal in approaching a' "crossing or bridge was four blasts of a whistle and that there was no rule requiring that the gates of the crossing be always lowered.

The above analysis of the evidence shows that the train was at least one-half a mile away when the bell began to ring and that it slowed down almost to a stop at least four or five hundred feet from the crossing and that there never was any danger of a collision, as the engineer could not proceed until the bridge tender gave the signal, which "he would not do until the crossing was clear. It further shows that plaintiff’s sister was mistaken in thinking that she saw the train one and one-half blocks away, while the auto was on the track, and that plaintiff, who was sitting on the left hand of car, was mistaken in thinking the train so near, as stern car was then one-half mile away.

In his petition plaintiff makes two charges of negligence:

First: That defendant failed to warn the chauffeur that a train was about to cross in front of him, and

Second: That defendant invited plaintiff upon the tracks by having the gates up.

The evidence shows that the first charge is unsupported because defendant did give ample warning that the train was approaching and that it took all the usual precautions to clear the track before it permitted the train to come over.

In answer to the second charge, we quote from Gibbens vs. N. O. Terminal Co., 159 La. 347, 105 So. 367, in which the Supreme Court said:

“This court has never yet held directly or by reasonable inference that the failure of a railroad company to close the gates at public crossings and to keep them closed continuously in times of danger is of itself such a breach of duty and such an act of negligence as to constitute the immediate and proximate cause of an accident resulting in injury, and which would relieve the injured party from the duty of looking and listening or from exercising ordinary care and prudence to see for himself that there was no danger and that the route was sure and safe.
“To hold so would be to make the railroad company an insurer against every accident happening at such crossings by collision with its trains when the gate was open, and that, too, without regard to whether the gate was left open intentionally, by accident, or through some defect in the appliances.
“To establish such a rule of jurisprudence, as safd by some learned authority, would be ‘to make gates and flagmen harmful creators of negligence instead of helpful aids to safety.’ ’’

During the trial defendant’s superintendent, under cross-examination, read two rules from the current book of rules as follows:

“When the cars are pushed by an engine, except when shifting or making up trains in yards, a white light must be displayed on the front of the leading car by night.
“You will send a man ahead to flag street cars and wagons before proceeding over the following crossings in New Orleans Terminal, at Shell Road, Carrollton Avenue, Hagan Avenue, Broad Street, Galvez Street, Claiborne Avenue and Magnolia Street. This is very important and these instructions shall be lived up to the letter.”

When plaintiff’s attorney asked the bridge tender if he had any orders not to lower the gates when traffic was heavy, he answered:

“No. But there is no chance to lower these gates when traffic is close to one another.”

Plaintiff contends that failure to obey these two rules constituted additional negligence to that charged in the petition. This argument is untenable because the evidence shows that each of the trainmen on the end of the approaching box car had a white lantern, and that the red fusee attached in the same place, (described as being like a Roman candle), gave a sufficient reflection to be seen at least half a mile away, and there is no evidence to show that a white light would have done any better or even as well. Furthermore, as the bridge tender went down on the road and cleared the traffic before he allowed the train to cross, the second rule was substantially obeyed.

The operation of the railroad facilities has to fit in with use by the public of this Shell Road. The public is entitled to use it and the defendant would not be justified in lowering the gates an hour before a train was expected. At what moment, then, does prudent conduct on the part of the defendant, considering the circumstances, considering that the street crossing should not be obstructed by the railroad company any longer than is necessary, require this towerman to turn on his electric bell, and if possible, to lower the gates? The tower-man certainly was not justified in doing ^ either of these things until he had the first warning of the approach of the train. His testimony shows that he was expecting the train, that the moment he saw the reflection of the light on the head end of the train, then about three-quarters of a mile away, he turned on the electric bell to warn traffic of the approach of the train. Up to that he certainly was not required to prevent automobiles from running over the track. It happened that the plaintiff’s automobile was on the track at the first moment that this towerman was justified in starting the warning bell. At that moment, if the towerman had lowered the gates, he would have trapped the plaintiff’s automobile upon the crossing.

As plaintiff’s daughter, sitting on the front seat, testifies that she did not think it necessary to get out of the automobile right away as soon as the gong sounded, we conclude that plaintiff became unnecessarily alarmed and, in her nervous fright, jumped out on' rough ground when she could have alighted with safety. Apparently she concluded the gong meant immediate approach of train, whereas it meant to clear the tracks and get ready for the train to cross. On this point see Laborde vs. La. Railway & Navigation Co., 121 La. 47, 46 So. 97, in which the Court said:

' “In this case, as no such collision oc-. curred, the injuries received by the plaintiff are not chargeable to the neglect to whistle. The injuries received by the plaintiff were the result of a woman apparently of nervous organization, thrown into a situation to which she was not accustomed, losing her nerve and becoming unnecessarily alarmed as to what the horses she was driving might do, and led on the strength of apprehensions which were not warranted into doing an act which resulted in personal injury to herself. We think it fairly appears from the evidence that, if the plaintiff had remained in the buggy and retained the reins in her hands, the horses could have been easily controlled.
“The defendant company cannot be made to respond in damages for plaintiffs’ belief that such was not the fact, no matter how honest she may have been in her opinion on that subject. It may be well to say that nothing occurred on defendant’s train, while passing along its track in rear of the buggy, which would give to its passage any exceptional feature.”

In the case of Chretien vs. N. O. Railways Co., 113 La. 761, 37 So. 716, 104 Am. St. Rep. 519, plaintiff’s son was a passenger on one of the electric cars of defendant company, when a broken wire fell just before day, striking the dashboard of the car. Although the lights went out, and there was an explosion, neither the car nor any passenger was injured except plaintiff’s son, who, while standing near the open door at the rear, jumped from the car and fractured his skull. In confirming a decision for the defendant, the Supreme Court quotes with approval from South Covington & C. St. Ry. Co. vs. Ware, 84 Ky. 270, 1 S. W. 493, as follows:

“The character of the impending danger, or at least its apparent character, is to. be considered. If one acts unreasonably, rashly, or becomes frightened at a trivial occurrence not calculated to alarm a reasonably prudent man, and thereby brings injury upon himself, there is no liability. * * * It is urged that when one is frightened by something resulting from the neglect of the carrier he cannot be charged with contributory neglect to any extent. He, however, must act upon reasonable apprehension of peril. Hiq conduct must conform to that of an ordinarily careful man under like circumstances. He has no right, upon the happening of some trivial occurrence, or such as would not create fear or apprehension of injury in the mind of an ordinarily prudent and careful person, to bring injury upon himself, and then recover damages by reason of it.”

The principle of law that where a railroad company acts in the usual and customary manner, its action is not negligent, was stated by the Supreme Court, in., the case of Spizale vs. Louisiana Railway & Navigation Company, 125 La. 190, 54 So. 715, where the Court said:

“The negligence charged against the defendant company is that the bell was not rung before the locomotive moved, nor the whistle sounded; that a proper lookout was not kept; and that this little ditch, or drain, was left uncovered.
“The evidence shows that it was not customary to ring the bell or sound the whistle upon this yard while switching, except in passing the street crossings; the not doing so on this particular occasion was therefore not negligence.”

Although the situation was unusual in the instant case, on account of the very heavy traffic at this crossing, plaintiff has failed to prove defendant guilty of negligence, and the suit must therefore be dismissed.

It is therefore ordered, adjudged and decreed that plaintiff’s suit be dismissed.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    No. 11,810
    Orleans
    PITTSBURGH PLATE GLASS CO. v. LEPOW
    (March 4, 1929. Opinion and Decree.)

      Deutsch and Kerrigan, of New Orleans, attorneys for plaintiff, appellant.
    H. W. Kaiser, of New Orleans, attorney for defendant, appellee.
   JONES, J.

On July 16, 1928, plaintiff obtained a default judgment against defendant, and on August 1st, seized certain furniture in the premises 2204 Jefferson Avenue, belonging to him.

On August 11th, Peter Stankoffich intervened and claimed that a chattel mortgage on this furniture in his favor had been executed by Charles Lepow before Y. J. Thiberville, Notary Public, November 23, 1927, recorded in Mortgage Office Book 1379, folio, 101, to secure a note for $3,000.00. By agreement the property was sold under the writ, and on January 10, 1929, there was judgment in favor of intervener, recognizing his prior privilege on the proceeds of the sale. From this judgment plaintiff has appealed.

Plaintiff argues chattel mortgage is invalid because there “are no special marks of identification to identify the property” and that “there is no statement relative to the location of the property.”

The property mortgaged herein is a lot of furniture which is described as: “4 pc. wicker porch suite; 2 tapestry chairs; 6-tube rad-io and table; 4 pc. over stuffed living room suite; 2 carpets; 1 walnut dining room suite,” but no location is given. As pieces of furniture do not bear distinct- marks or numbers, it would be difficult to make them readily recognizable by description alone, but definite location seems, for this reason, .all the more necessary.

Section 2 of Act 198 of 1918, the controlling law in this ease reads in part as follows:

“Be it further enacted, etc., That every such mortgage of property mentioned in Sec. 1 shall be in writing, setting out a full description of said property to be mortgaged, so that same may he identified.”

Section 5 requires that the mortgagor shall not remove the property mortgage» from the parish where said mortgage is given, without a written consent of the mortgagee, designating the parish to which it will be taken.

Section 6 of the same act requires that .the Recorder of Mortgages shall keep a chattel mortgage book and that under the heading of Property Mortgaged he shall enter a description of the property and the particular place xohere it is located.

The above quotations show that the property must be so described as to be identifiable and the fact that location is required to be given by the Recorder tends to show that it must be in the mortgage, otherwise that officer cannot possibly comply with the law.

The question is apparently new in Louisiana and a thorough search of the decisions of all the appellate courts reveals no case immediately in point. We, therefore, quote some decisions from common law courts sustaining principles laid down by textbook writers, which seem to us to be based on sound reasoning and to be consistent with the principle and purpose of this act.

“A statement as to the location of the chattels mortgaged is one of the most important elements in the description. Other details without this element often amount to little or nothing, whereas its presence with other slight details often makes easy the ascertainment of the property meant to be designated * * * A description is, of course, insufficient where there is no location indicated and nothing else to identify the property * * * There should be a designation of the property conveyed, and of the place where it may be found.” 5 R. C. L. 424.
“When neither the location, the ownership, nor the possession of the property is stated in the mortgage, it is ordinarily fatal to the description. And in all cases the location of the property mortgaged must be stated, where the property cannot otherwise be sufficiently identified, or it is not otherwise sufficiently described.” 11 C. J. 485.
“The situs of the property covered by chattel mortgage is usually regarded as an important fact in its identification which must be accomplished by the description, to validate the mortgage against creditors and others who may acquire adverse rights.” In re Peterson (D. C.), 252 Fed. 849.
“Description as regarding portion of mortgage covering personal property without limiting location held insufficient to constitute constructive notice to third person.” Reinig vs. Johnson, 212 N. W. 59, 202 Iowa 1366.
“Description of property only inferentially locating property in certain county is too indefinite to impart constructive notice.” First National Bk. vs. Maxwell, 198 Iowa 813, 200 N. W. 401.
“A most important element in the description of (chattel) mortgaged property is a statement of its location, which should never be omitted.” Joslyn vs. Moose River Lumber Co., 83 Vt. 49, 74 A. 385, 138 Am. St. Rep. 1067, 21 Ann. Cas. 1024.
“There is nothing in the bill of sale that would suggest to any person where he could secure information by which he could find and identify the property. If it had gone farther and had given the location of the property it would have been sufficient; * * * but with no suggestion at all as to how the property may be found, the description is wholly insufficient.” Cummins vs. King, 217 Mo. App. 371, 266 S. W. 748.
In the following four decisions our appellate courts have interpreted the chattel mortgage act as requiring a description definite enough to identify the property, and the general course of reasoning therein seems to sustain our conclusion that location should be given in the act of mortgage.
Continental Bank & Tr. Co. vs. Succ. of McCann, 151 La. 555, 92 So. 55.
Durel vs. Buchanan, 147 La. 804, 86 So. 189.
LeCorgne vs. Garner, 7 La. App. 148.
In re Peterson, (D. C.) 252 Fed. 849.

The evidence shows that Lepow owns several pieces of property in this city and that he had recorded in Conveyance Office lease of two buildings, which he said were vacant, at the time of the lease, but there is absolutely nothing in the mortgage to show location of mortgaged furniture, and nothing to differentiate it from thousands of other articles of the same kind. If the act stated that this was the only furniture then owned by the mortgagor, or if there was any other clue or suggestion which might lead to the identification of the property, the chattel mortgage might be good without location, but it seems to us, as only fair and reasonable that one who wishes to give another preferential rights on certain movables and thereby exempt them from liability to his other creditors ought to state where the movables are then located, or where they have been bought or give some identification.

Interveners argue that appellant has no right to question the validity of a mortgage and quote from Ruling Case Law, page 464: “Only a creditor with a lien on the property can question the validity of a mortgage and a general creditor has no right to do so.” Here plaintiff had a lien as seizing creditor under C. P., Art. 722, and further Article 1968 of the Civil Code provides that the property of a debtor is a common pledge of all his creditors.

For above reasons the judgment is reversed and it is now ordered that petition of intervener be dismissed. Intervener to pay all costs in both courts.


text:
    No. 11,561
    Orleans
    EDWARDS v. MONAHAN, JR., ET AL.
    (March 4, 1929. Opinion and Decree.)
    Hugh M. Wilkinson, McCloskey and Benedict, of New Orleans, attorneys for plaintiff, appellee.
    Milner and Porteous, of New Orleans, attorneys for defendants, appellants.
   JONES, J.

Plaintiff alleges that on Sunday, October 4, 1925, about 3:00 p. m., he was struck by a car driven by Thomas P. Monahan, Jr., one of the defendants, at the corner of Prytania Street and Louisiana Avenue, in this city. He claims of the father, as owner of the car, and of the son, as driver, the sum of $5,000.00 as damages for a fracture of the wrist sustained by him. He alleges that he was walking along the uptown side of Louisiana Avenue in the direction of the river, and upon reaching Prytania stopped, looked and listened, and seeing nothing approaching except a down-bound street car, stepped into Prytania Street to board the car, when, without warning, he was struck by an automobile which was then being driven by Thomas P. Monahan, Jr. The following specific charges of negligence were made:

(1) Failure of defendant to have" his automobile under control when turning into a right of way street, without stopping, as required by traffic ordinance.

(2) Failure to blow a horn.

(3) Failure to look ahead and observe petitioner.

(4) Turning the corner of Prytania Street and Louisiana Avenue at a speed in excess of fifteen miles an hour.

The father and son are made defendants because at the time of filing suit it was not known definitely whether the son was a minor.

Defendants admit that T. P. Monahan, Jr., was driving the car, but deny that it ran into plaintiff, and especially aver that plaintiff was too intoxicated to cross the street in safety, and that any injury which he might have sustained was the direct result of his intoxicated condition and of his negligence caused thereby.

The original answer was filed on November 19, 1926, and a supplemental answer on February 13, 1928, the day before trial. In the latter document it was averred that the car was being driven by Adolph Jastram and not by T. P. Monahan, Jr., as had been admitted in original answer. On the trial of the case plaintiff’s attorney objected to any evidence tending to sustain the supplemental answer on the ground that it changed the issue, and the trial judge sustained the objection. This ruling was correct, as the defendant had admitted in his first answer that T.. P. Monahan, Jr., was driving the car.

The case was tried before a jury and a verdict of a thousand dollars was awarded plaintiff. Defendant has appealed but plaintiff has not answered the appeal.

Although there is the usual conflict of testimony, we find that the defendant has entirely failed to prove his special defense of intoxication and that the record, taken as a whole, proves the charges of negligence as set forth in plaintiff’s petition, as we are convinced that the driver of the car entirely failed to obey the traffic ordinance in making the turn from Louisiana Avenue into Prytania Street.

The injuries sustained amply justify the amount awarded by the trial court.

For above reasons the judgment is affirmed.


author: ■WESTERFIELD, J.

text:
    No. 11,461
    Orleans
    JACOBY ET UX v. GALLAHER
    (March 4, 1929. Opinion and Decree.)

      Borah, Himel and Bloch, of New Orleans, attorneys for plaintiffs, appellants.
    Gordon Boswell, of New Orleans, attorney for defendant, appellee.
   ■WESTERFIELD, J.

Plaintiffs appeal from a judgment maintaining an exception of no cause of action.

Andy Jacoby and his wife, Flora, are residents of Jefferson County, Missouri. They bring this suit against Robert H. Gallaher for damages in the sum of $10,210.00 for the alleged negligent killing of their five-year-old son, Carl Andrew Jacoby.

The petition alleges that the defendant, Gallaher, who resides in New Orleans, was, at the time of the accident, motoring through the State of Missouri along “Federal Highway No. 61” in Jefferson County; that about 10:30 a. m. on Sunday, July 31, 1927, their deceased son, with his elder brothers, was returning from Sunday School and walking in a northern direction along the left hand side of the roadway; that the boys were in plain view of Gallaher, who was traveling on the same road in the same direction, for at least a half mile; that Gallaher was speeding along the road at the rate of thirty-five to forty-five miles an hour, in violation of a statute of the State of Missouri adopted in 1921, which provides that speed in excess of twenty-five miles an hour is “evidence presumptive, but not conclusive of driving at a rate of speed which is not careful and prudent;” that he gave no warning of his approach; that when the boys reached a “frequently used crossing leading to H. Chouteau Dyer’s place,” the younger boy exclaimed, “Here’s where we cross,” and started across the road, when he was knocked down by defendant’s automobile and his skull crushed, from which injury he died without regaining consciousness; that Carl Andrew Jacoby “broke loose from his brother Clarence, who at that time was leading him by the hand, and ran across the road. The older boys then for the first time noticed or saw the car coming, and undertook to grab their younger brother, but the car was coming so fast and was so nearly on them all, that it was impossible for them to rescue their brother;’’ that in approaching the boys it was the duty of defendant to slow down, sound his horn, give warning of his approach, and have his car under such control as would enable him to avoid the accident should any or all of the boys cross the road; that “instead of slowing down, said Robert H. Gallaher was driving at thirty-five or forty-five miles an hour and on approaching sounded no horn and gave no alarm.”

Defendant contends “that the petition not only fails to recite a cause of action, but goes further and exculpates defendant,” because “manifestly, the child’s actions made it humanly impossible for defendant to have avoided the accident. In fact, the actions of the child were so sudden, swift and unanticipated that the older boys, because of the proximity of defendant’s automobile when he ran into its path, realized that it would have been suicidal for them to have made any effort to have rescued him.” In support of this contention we are referred to Payne vs. Seibert, 4 La. App. 591; Valcour vs. Hubig Co., 4 La. App. 521; Powers vs. Simmons, 7 La. App. 523; Elmendorf vs. Clark, 143 La. 971, 79 So. 557, L. R. A. 1918F, 802.

In each of the cited cases, with the exception of Payne vs. Seibert, recovery was denied for the injury or death of children running from sidewalks into city streets and across the path of automobiles at a time when no opportunity was afforded the driver to avoid running into them.

In this case the child was walking along a public road in a rural section and had been in plain view of defendant for half a mile. There is, in our opinion, a marked difference between a roadway in the country and a street in the city—a difference which distinguishes this case from the principle underlying the cited cases. A driver who observes children walking along a sidewalk adjacent to a city street has no reason to suppose that they will run across his path, and he is under no obligation to guard against the possibility of their doing so. In the first place the sidewalk in the city is dedicated to the use of pedestrians only and under normal conditions there is no occasion for, or necessity of, pedestrians using the city streets, which, except for passage at intersections, is, under ordinary circumstances, exclusively dedicated to vehicular traffic. But when children are seen walking or playing in the city streets, automobiles must take extraordinary precaution to prevent injuring them. Jn Albert vs. Munch, 141 La. 686, 75 So. 513, L. R. A. 1918A, 240, it was held that the chauffeur of an automobile, which ran over and killed a 10-year-old boy, was negligent, because he saw the boy in the street in a little soap box wagon, affixed to an ice wagon by a rope, from 90 to 150 feet before he reached him, and failed to prevent the accident, the Court saying:

“It is admitted that both he (the defendant) and the chauffeur saw the ice wagon with the soap box wagon, containing the two boys, trailing behind it in ample time (whether within a distance of 150 or of 90 feet) to have enabled them to have fully appreciated the situation and have taken ■the precautions necessary to avoid an accident. There is no suggestion in the record that there was any other vehicle in the street that interfered or threatened to interfere with them, and all they had to consider was how not to run over the boys.”

After referring to other things that should have been done by the chauffeur, the Court' said:

“The next precaution should have been to slow down the automobile so that in no event or situation that was conceivable to its occupants could they kill the boys.”

In Danna vs. City of Monroe, 129 La. 138, 55 So. 741, it was held:

“When a motorman and conductor of a street car see a child 20 months old in the street facing or approaching the track and in dangerous proximity thereto, the car should be brought, and kept, under control until there no longer exists a possibility that the child will get on the track and be run over; and by bringing and keeping the car under control is meant that the motorman should cut off the power, reduce the speed, and keep the brake chain wound up so that the car may be stopped instantly or within one or two feet.”

In Monge vs. N. O. Ry. & Light Co., 145 La. 435, 82 So. 397, it was held:

“A motorman, seeing a two-year-old child by itself on a street less than eight feet from the car track, should take all necessary precautions for guarding against the possibility of the child going suddenly on the track, and, in the case where a motorman failed to take such precaution and the child was injured, the verdict finding the street car company negligent was warranted.”

In Fulco vs. Shreveport Traction Co., 138 La. 809, 70 So. 812, it was held:

“A motorman, operating an electric car, and seeing a child under four years of age running ahead of the car and in dangerous proximity to the track, is guilty of gross negligence if he fails to maintain such slow speed and keep his car at such distance from the child as to be able to avoid a collision in case the child attempts to cross the track.”

In Hahn vs. P. Graham & Co., 148 La. 55, 86 So. 651, where plaintiff was not allowed to recover because the driver of the truck which ran into him was held blameless, because he did not see the boy before the accident, the Court said:

“If he had seen the child at any time before the accident it might be held that it was a duty to have kept the child in view so as to have avoided a possible accident.”

In the country the public roadway is shared by vehicles and pedestrians and there is no impropriety, nor is there any negligence implied, in the practice of country residents walking along the side of the road. The highway is intended for their use as well as for the use of automobiles. Consequently, when a motorist observes pedestrians on the roadway he must be careful not to injure them. It is his duty to give warning of his approach and to keep his automobile under control. This is true in the case of adults, but in the case of children, extraordinary precaution is necessary.

Greater care is required of one who is running an automobile where there are children in the roadway than is necessary in the case of adults. Children are only required to exercise such care as may reasonably be expected of them. In other words, such as children of the same age ordinarily and reasonably exercise under like circumstances. (See Elliott, Roads and Streets, Vol. 2, page 1545.)

In Kelly vs. Ludlum, 9 La. App. 57, 118 So. Rep. 781, decided June 28, 1928, by our brethren of the Court of Appeal for the First Circuit, it was held:

“It is conceded, of course, that plaintiff was not negligent in walking along the roadway, and it is, we think, well settled, that he did not have to maintain a lookout for automobiles approaching from his rear (McKenna vs. Lynch, 289 Mo. 16, 233 S. W. 175; Darus vs. West, 179 Wis. 279, 191 N. W. 506; Blashfield, Automobiles, vol. 2, p. 1057) having the right to assume that the driver of the automobile would exercise care in maintaining a lookout for him, and the sole question is whether or not the driver did maintain such lookout and exercise ordinary care in operating the automobile. * * *
“The driver of the automobile had a clear view of the situation as the car approached plaintiff, and there was ample time, distance and space for him to have changed the course of the automobile so as to allow a greater margin of safety, and, when the plaintiff apparently did not notice the signals given he was bound to realize the hazard of driving the automobile so close to plaintiff due to the fact that plaintiff might deviate from his course or that he might be taken unawares by the sudden discovery of the automobile and make such a deviation as to bring him in front of the automobile. Blashfield, Automobiles, vol. 1, p. 597.
“Each of the parties had the right to use the highway, but the danger or hazard from a collision was much greater for plaintiff than for the driver of the automobile, and the driver was bound to take notice of the danger and to drive the automobile accordingly; that is, the driver of the automobile was charged with notice that plaintiff might vary slightly from his course or that he might be taken unawares by the discovery of the automobile in close proximity to him and involuntarily place himself in front of the automobile, and the evidence showing that the driver operated the car with such danger in view and that the accident resulted from the danger which should have been anticipated by the driver of the automobile, the owner of the automobile, under whose direction the automobile was beingy operated, was liable.”

See also, Hornbuckle vs. McCarty, 295 Mo. 162, 243 Southwestern 327, 25 A. L. R. 1508.

In the case at bar it was the defendant’s duty, on seeing the children in the roadway, to have sounded his horn and checked the speed of his car. The fact that the child broke away from his brother and ran across the path of the automobile was not the proximate cause of the accident, for, if warning had been given, the child would have been removed by his elder brothers to a place of safety, or at least would have been firmly held and prevented from running across the road when reaching the pathway leading to H. Chouteau Dyer’s place. In any event, if defendant had slowed down and had his car under control he could have avoided the accident.

The rule that motorists are held to unusual care where children are concerned, applies also to adults, who, to the knowledge of the driver, possess some infirmity, such as deafness, or impaired sight, or who suffer from some temporary disability such as intoxication. The physical infirmity in one case, and the extreme youth in the other, affect the ability to sense impending danger and to exercise judgment in the emergency by the selection of proper means and observing the necessary precaution to avoid an accident.

We are of opinion that the petition in this case presents a cáuse of action and that the judge, a quo, erred in maintaining the exception of no cause of action.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that this case be remanded for further proceedings according to law, and consistent with the views herein expressed.


author: WESTERFIELD, J.

text:
    No. 10,891
    Orleans
    SURPLUS LUMBER CO. v. ULMER
    (February 11, 1929. Opinion and Decree.)
    F. B. Freeland, of New Orleans, attorney for plaintiff, appellee.
    H. M. Ansley, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit on an open account for $574.62, for lumber sold and delivered to the defendant. Defendant admits the delivery of the lumber, but claims that a proper accounting would show a balance in his favor. He reconvenes and' asks for judgment in such amount as will appear to be due him as the result of the accounting. There was judgment for plaintiff as prayed for and defendant’s reconventional demand dismissed, as in case of non-suit. On the trial of the case defendant attacked the prices chafged him for the lumber as incorrect, but failed to state what the proper charge should have been. In fact, his evidence was exceedingly vague and unsatisfactory, and wholly insufficient to maintain his "defense.

The judgment appealed from is correct and it is, therefore, affirmed.


text:
    No. 11,348
    Orleans
    DAVILLA v. FRUIT DISPATCH CO.
    (March 4, 1929. Opinion and Decree.)
    Emerson Bentley, H. W. Robinson, of New Orleans, attorneys for plaintiff, appellant.
    John May, of New Orleans, attorney for defendant, appellee.
   JONES, J.

Joseph D. Davilla, father and natural tutor of his minor son, Howard, originally sued for compensation for personal injuries to his minor son, who is alleged to have been injured on March 5, 1927, about 5:30 p. m., while working for defendant as a banana checker at Thalia Street wharf, this city, at $25.00 per week. He alleged that his son slipped and fell on both knees while coming down from a concrete platform about4 four feet high, with two registers in his hands; that his right knee was so badly injured that another checker had to finish his work; that shortly thereafter he took his son home and applied simple remedies and on the next morning called in his family physician, who applied antiflogistine without effect, and two or three days later took his son to Touro Infirmary, where he was treated by Dr. Hatch for ten days without effect; that his son could not state the cause of his disability, but apparently some bone in the leg had been broken, or some ligament displaced.

While exception of no cause of action was pending supplemental petition was filed by Howard, then a fully emancipated minor, who, after adopting the allegations of his father’s original petition, averred that his injury grew out of his employment as a banana checker on the wharf, which employment was hazardous, because the bananas were dropped and crushed on the floor on the wharf by the loaders of the cars and also because he was obliged to climb in and out of box cars while a multitude of laborers were hurriedly carrying the fruit.

Defendant admitted the employment but denied that any injury had been received in the course of such employment and also that the work was hazardous. It further alleged that plaintiff had stopped, while descending from a platform with registers in his arms, and had stated that he was suffering from an ' old injury to his knee, and there had been no objective symptoms at the time or later.

Dr. O’Ferrall, a distinguished bone specialist of this city, who examined plaintiff on May 5, 1927, sixty days after the alleged accident, testified that he then had a complete dislocation of the internal semi-lunar cartilage of the right knee, which produced considerable disability. He was unable to fix the probable date of the injury, as plaintiff might have worked for months without the cartilage slipping, or it might possibly have slippéd back of its own accord; that such injuries usually occur repeatedly and that it might have happened in this instance as alleged, as it usually is caused by a blow on the knee when the leg is bent; the leg was slightly atrophied when he saw plaintiff and there was some apparent lack of flexion in the joint, which would be entirely removed by operation. The doctor read from his notes as to history of plaintiff’s ailments that plaintiff had been treated once before by Dr. Souchon and also Dr. Hatch.

Howard Davilla testified that he began working for defendant on February 1, 1927; that the four registers he carried | weighed about ten pounds each and that he worked between cars on a concrete platform thirty feet wide and four feet high, which was slippery with crushed bananas; that he had been down in the holds of ships two or three times and frequently had to go up a little plank-walk into box cars; that he actually had four registers and not two as stated in his petition in his arms when he slipped going down the steps from the concrete platform; that after his family physician failed to help him he had been carried to Touro Infirmary, where his leg was stretched by Dr. Hatch for two or three days with suspended weights and thereafter was put in a plaster cast; that after a stay of ten days he left the hospital and wore a rubber bandage or brace for a month and a half; that he still suffers if he puts iweight on his leg, and can no longer do his former work satisfactorily; that two or three years before March, 1927, he had a slight sprain in that knee while playing baseball and was treated by Dr. Souchon, who gave him a rubber stpcking to wear for several months and then discharged him as cured. On cross-examination he said that Martinez helped him up; that the checking machines worked on a dial, with glass fronts like those formerly used in street cars; that after the accident he did not know whether the checking machines were broken; that Dr. Hatch did not seem to know what the trouble was and he had never told anyone that his pain was caused by an old injury.

The father testified that he never knew of any prior injury, but he admitted bn cross-examination that he had taken his son to Dr. Souchon two or three years before, who had made him wear a rubber stocking over the injured knee for three months.

Frank Martinez, wharf auditor for the defendant, under whom plaintiff worked, testified that he was about three feet off when plaintiff, who was coming down the steps from the concrete platform with two registers in his arm, stopped and said he had an awful pain in his leg; that he then sat down on the steps placing his registers by him and stated that the pain came from an old accident. George Lapotaire and George McLean, two other employees, were also present at the time.

Lapotaire testifies that he saw plaintiff in the office shortly thereafter and was told by him that his leg was troubling him again; three or four weeks before this plaintiff had stated that he had hurt his leg in a motor car.

Joseph Calamia, chief clerk of defendant, said that plaintiff had also told him several times of a previous injury to his leg by an automobile.

Fred Lovelly, another employee, said that he had asked plaintiff, when he saw him sitting on the steps that afternoon, if he had been hurt; that plaintiff did not reply, but Martinez said in plaintiff’s presence that his old ailment was troubling him again.

Assistant Superintendent McLean said that plaintiff told him in the office, while waiting for his father that afternoon, that he was suffering from an old injury to his knee, as he had come to work that day without his brace; he had injured the knee some time before while playing baseball.

In this court defendant argues that the employment in which plaintiff was engaged was not hazardous and that it was not covered by Act 20 of 1914 or any of its subsequent amendments. In support of this contention he cited as authority two decisions. Shipp vs. Bordelon, 152 La. 797, 94 So. 399, and Dejean vs. Ujiffy, 15 Orl. App. 231.

Although these cases tend strongly to support the contention of defendant, we do not find it necessary to pass upon this exception, as the above analysis of the evidence convinces us that plaintiff has entirely failed to prove that he suffered any injury while in the employ of defendant.

Our conclusion on this point is based on the testimony of the five witnesses who said that plaintiff had told them of a former injury to his knee, and by the admission of plaintiff himself that h'e had worn a rubber stocking for several months, and also by the testimony of Dr. O’Ferrall that a misplaced cartilage was likely to occur again and again. We are also impressed by the fact that plaintiff seems to have shown no outward signs of any injury at the time, and that the record entirely fails to show that the glasses on the front of the registers were broken, a result that seems a foregone conclusion if plaintiff had fallen down the steps, as alleged, with these registers in his arms.

While we recognize that the compensation statute is humane in its purpose, and that its provisions should be liberally construed so as to include all occupations that can reasonably come within its purview. Section 18, paragraph 4, of the Act itself (as amended by section 1 of Act No. 85 of 1926), provides all injuries must be proved by competent evidence, of which there must have been objective conditions or symptoms proven not within the mental or physical control of the employee.

The injuries themselves here have not been proved as alleged.

For above reasons the judgment is affirmed.


author: JANVIER, J.

text:
    No. 11,684
    Orleans
    PADERAS v. STAUFFER
    (March 4, 1929. Opinion and Decree.)
    C. S. Hebert, of New Orleans, attorney for plaintiff, appellee.
    J. C. Henriques, Frank T. Doyle, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

This is a suit for personal injuries sustained by plaintiff as a result of being crushed between an automobile driven by Mrs. Stauffer and a post on the corner of Canal and Royal Streets, in New Orleans. In making the turn to the right, Mrs. Stauffer drove too close to the post, with the result that the rear portion of her car struck -plaintiff and crushed him between it and the post, which was on the corner.

Defendants admit that, in so far as Mrs. Stauffer is concerned, there is no valid defense to the suit, and they concede that the only question before us is the quantum of damages to be allowed.

It is contended on behalf of Mr. Stauffer that, as Mrs. Stauffer was driving her own car and was not on any mission for him, he cannot be held liable for her negligence.

Even conceding that a husband is not liable for the torts of his wife resulting from her negligence while driving her own automobile in her own separate affairs and concerns, it seems to us that Mr. Stauffer’s testimony falls far short of showing that Mrs. Stauffer, at the time of the accident, was so engaged. Just what was the object of Mrs. Stauffer’s trip in the automobile is a matter so completely and exclusively within the knowledge of -,the two defendants that the burden of producing evidence concerning the reason for her making the trip is placed upon them. Their failure to prove that she was on a mission for her separate benefit results in the inevitable conclusion that, as a matter of fact, she was on a community errand. Especially is this so where the evidence shows, as it does here, that she was shopping. If she was shopping for the household she was on a community errand, and if she was engaged in selecting clothes, or hats, or any of the numberless things a woman requires for her own comfort or adornment, then, likewise, she was on a community errand, and in either such event she was just as much the agent of her husband as head and master of the community as would have been the family chauffeur.

“Clothing of the wife (paid for by the husband belongs to the community.”

Munch vs. Central Laundry, 2 La. App. 123.

See also, Shield vs. F. Johnson & Son Co., Ltd., 132 La. 773, 61 So. 787.

If, then, the wife’s act in purchasing clothing, or groceries, or household necessities, could make the husband, as head of the community, liable for the purchase price, we fail to understand why the wife’s negligence in driving the automobile to and from the place of purchase should not likewise be chargeable to the husband.

On the question, then, of the liability of the husband, we feel that the judgment is correct.

We next come to an investigation of the extent of the injuries sustained by plaintiff. In the first place it seems to us that the trial judge has erred in his finding that the burden of proving that plaintiff’s injuries were not serious is on defendants.

Our conception of the laws of evidence applicable here leads us to the belief that the duty of showing affirmatively that his injuries were serious was on plaintiff.

In view of the fact that Dr. Tedesco’s statements as to plaintiff’s condition were entirely subjective, that is, based solely on what plaintiff himself told him, and in view of the fact that his conclusions are not corroborated by any other physician or* surgeon,, but are, in fact, contradicted by the other two doctors who testified, we are of the opinion that plaintiff did not sustain the burden of proof which is placed upon him and did not, by a preponderance of evidence, prove the seriousness of his injuries. Dr. Tedesco’s testimony was not positive and, so far as we are concerned, it is not convincing.

According to the testimony of Dr. Ficklen, an outstanding surgeon of this city, and Dr. Fenno, a reputable physician, plaintiff’s injuries consisted of a slight concussion of the brain and a small hematoma. A hematoma, in nursery language, is a black and blue spot.

The chart of the hospital corroborates Dr. Ficklen and Dr. Fenno as to the extent of these injuries and shows conclusively that there could have been no serious internal disorder. After the first few hours in the hospital plaintiff’s pulse, respiration and temperature all became normal and it is impossible to believe that any serious internal disorder could have existed without causing a rise in temperature, or without manifesting itself by its effect on the pulse or respiration

Plaintiff claims serious interference with his hearing and permanent injury to his bladder. In view of the positive testimony of Dr. Ficklen and Dr. Fenno, who were in constant attendance during plaintiff’s stay in the hospital, we are inclined to accept their views as to the extent of his injuries as correct. He no doubt suffered severely and these pains were unquestionably much agumented by the temporary nervous derangement of his urinary system and the consequent difficulty of urinating. However, he was disabled only about three months and except for a partial deafness, which seems to us to be exaggerated, and the frequent desire to urinate, which in all probability resulted rather from a prior disorder than from the accident, his recovery is complete.

It is, of course, not possible to estimate physical sufferings accurately, and to determine just what amount in dollars and cents will compensate for those sufferings. Considering former allowances by this Court and the Supreme Court, and taking into consideration all that the record contains with regard to plaintiff’s loss of time, suffering and expenses, we feel that the amount awarded by the trial court is excessive, and that an allowance of $3,000.00 will be adequate.

It is therefore, ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount thereof to three thousand dollars, and that as thus amended it be affirmed.

Plaintiff obtained judgment against the defendants in the sum of $4,500.00. Defendants appealed suspensiyely and devolutively and furnished appeal bond in the sum of $7,500.00. Plaintiff, in the trial court, then proceeded by rule to test the surety. The trial judge held the surety sufficient. Plaintiff filed another motion for appeal from this finding, but has never filed in this Court the transcript of the record on his rule to test the surety. He relies on the fact that the defendants in the main case have lodged a transcript of the record made up on the trial on the merits, and it is contended that there was no necessity for plaintiff in the rule to test surety to file another transcript.

The rule to test the surety is a matter separate and distinct from the main issues, and it is plainly necessary that the appeal from the trial court’s decision on the said rule be perfected by the lodging in this Court of a transcript. C. P. Art. 575. Metropolitan Bank et al. vs. Blaise, 109 La. 92, 33 So. 95. Plaintiff’s failure in this regard cannot be cured by a renewal in this Court of his rule to test the surety. The trial court decided that issue against him and his remedy was by appeal to this Court. By not filing his transcript, he appears to have abandoned that appeal. Tlje question of the sufficiency of the surety is therefore not before us and plaintiff’s motion to dismiss this appeal for want of sufficient surety is therefore overruled.


text:
    No. 11,562
    Orleans
    SUCCESSION OF LAWSON
    (February 25, 1929. Opinion and Decree.)

      James Barkley Rosser, Jr., and Arthur McQuirk, of New Orleans, attorneys for Henry T. Thibodeaux, appellee.
    Clarence F. Favret, of New Orleans, attorney for Albert Lawson Thomas, intervener, appellant.
    Charles J. Mundy, of New Orleans, attorney for Celeste Adams and Zenobia Booth Simmons, opponents, appellants.
    Bert Flanders, Jr., of New Orleans, attorney for McNeal Franklin, Louisa McNeal Chaffe and Jas. McNeal.
    Arthur J. Ryan, of New Orleans, attorney for Mrs. David Thomas.
   JANVIER, J.

Nathan Lawson died intestate at his domicile in New Orleans on February 10, 1926. His half brother, Henry T. Thibodeaux, with whom he lived, applied for and obtained letters of administration and thereafter duly administered the affairs of the estate.

On the filing of the final account, Celeste Adams, Lawson’s widow, and Zenobia Booth Simmons, his grandchild, appeared for the first time and, through the medium of an opposition to the account, attempted to set aside the appointment of the administrator as having been unnecessary and they furthermore, opposed 'every item on the account.

It seems that decedent had formerly been a resident of Terrebonne Parish, where he had married Celeste Adams. He deserted her and moved to New Orleans, where he married Loretta McPherson, though he had never secured a divorce from his first wife. Albert Lawson Thomas is a child of this, second union.

After his second marriage he accumulated a small estate worth about one thousand dollars. So far as the attack on the appointment of the administrator is concerned, we are qf the opinion that this comes too late. The administrator is the half brother of the decedent, his application for letters was duly advertised, and we are of the opinion that it is now too late, particularly by way of opposition to a final account, to oppose the appoint•ment of the administrator.

So far as the account itself is concerned, the principal attack of the opponents is directed at two items, one for $500.00 in favor of Thibodeaux, who claims compensation for services rendered to decedent prior to his death, and one for $450.00, claimed by the attorneys as fees.

The trial court recast the account, striking out the claim of Thibodeaux and reducing the allowance to the attorneys to $250.00. The administrator has not appealed, consequently the judgment eliminating his claim for $500.00 for prior services is final.

We are of the opinion that the fee of the attorneys as fixed by the lower court "s slightly above what is justified by the record. It is quite true that the work required to perfect the title and the labor involved in the administration of this succession were such as would justify a considerably higher charge, were the assets of the estate sufficient to warrant such a charge. Unfortunately, attorneys are often called upon to perform services onerous and burdensome in matters of little importance, or involving property of little value. In these situations it is manifestly impossible for the attorneys to be recompensed as fully as in larger cases. In view of the very small amount involved here, we feel that an allowance of $200.00 to the attorneys is all that is justified.

This brings us to the necessity of determining how the net proceeds of the estate should be distributed.

We find as claimants four persons:

(1) A legal wife;

(2) A legal granddaughter;

(3) A putative wife;

(4) A daughter of the putative wife.

We further find that the estate was accumulated during the existence of the second or putative community.

Under our Code, such a marriage as the second was produces its civil effects as it relates to the parties and their children, if it was contracted in good faith. R. C. C. Art. 117.

Article 118, R. C. C., provides:

“If only one of the parties acted in good faith, the marriage produces its civil effects only in his, or her favor and in favor of the children born from the marriage.”

The Supreme Court has decided in several cases, particularly Jermann vs. Tenneas, 39 La. Ann. 1021, 3 So. 229, and Patton vs. Cities of Philadelphia and New Orleans, 1 La. Ann. 98, that property accumulated during the second community should be divided equally between the legal widow and the putative widow. Reasoning by analogy, it seems to us that where there are children of either or of both widows the property should be divided into two equal parts, one to be distributed according to the laws of inheritance among the members of the first family, and the other among the members of the second family. We feel, therefore, 'that" under these authorities the net estate should be divided into two equal parts and that each of these parts should likewise be divided into two equal parts, making four equal shares. The first or legal widow is entitled to one of these parts in her own right. The grandchild by the first or legal widow is entitled to one of these parts subject to the usufruct in favor of the first or legal widow. The second or putative widow is entitled to one of these parts in her. own right, and her daughter is entitled to one of these parts subject to the usufruct in favor of her mother, the putative widow. See Harrington vs. Barfield, 30 La. Ann. 1297.

It is therefore ordered, adjudged and decreed that the judgment appealed from so far as it recasts the final account filed by the administrator and homologates the account as recast, be and it is amended so as to reduce the fees of the attorneys to $200.00, and it is further ordered, adjudged and decreed that Celeste Adams be and she is recognized as the widow in community of Nathan Lawson, .and, as such, sent and put in possession of an undivided one-fourth of the estate of decedent and of the usufruct of an undivided one-fourth; and

It is further ordered, adjudged and decreed that Zenobia Booth Simmons be sent and put into possession of an undivided one-fourth of the estate of decedent, subject to tbe usufruct in favor of Celeste Adams; and

It is further ordered, adjudged and decreed that Loretta McPherson Lawson be and she is recognized as the putative widow of decedent and, as such, sent and put in possession of an undivided one-fourth of the estate of decedent and - of the usufruct of an undivided one-fourth of the estate; and

It is further ordered, adjudged and decreed that Alberta Lawson Thomas be sent and put into possession of an undivided one-fourth of the estate of decedent, subject to the usufruct of Loretta McPherson Lawson; and

It is further ordered, adjudged and decreed that each claimant and intervener pay her own costs.

In all other respects the judgment appealed from is affirmed.


text:
    No. 11,709
    Orleans
    FRANCIS v. BARBAZON
    (February 11, 1929. Opinion and Decree.)
    (February 25, 1929. Rehearing Refused.)
    A. A. Calogne, of New Orleans, attorney for plaintiff, appellee.
    Bond, Curtis, Hall and Foster, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff sues for $130.00 alleged damages to his car caused by defendant’s truck, and also for $10.00 additional for loss of use of his auto. Judgment by default was rendered in favor of plaintiff on September 7, 1928. Motion for new trial and exception of no cause of action were filed on September 10, heard on September 17, and promptly denied. Defendant has appealed. The transcript contains no evidence. The record contains affidavits signed by defendant’s counsel showing the following:

1 Realizing the appellate court would be powerless to review the facts unless it had some evidence, defendant’s counsel, prior to filing his motion for appeal requested counsel for plaintiff to assist him in preparing a statement of fact, setting forth the testimony offered by plaintiff on trial of the case, and upon counsel declaring his inability to do so, defendant made a like request of the trial judge. Apparenlly, this was the remedy provided by the Code of Practice in Articles 602 and 603, which read as follows:

“Article 602. When the depositions of witnesses have not been taken in writing in the inferior court, the party intending to appeal, or his advocate, must require the adverse party, or his advocate, to draw, jointly with him, a statement of the facts proved in the cause, and this statement thus drawn and signed, either by the parties or their advocates, shall be annexed to the records and a transcript of the same transmitted to the Supreme Court.”
“Article 603. * * * If the adverse party, when required to do so, refused to join in making out the statement of facts, or if the parties cannot agree as to the manner of drawing same, the Court, at the request of either, shall make such statement according to their recollection of the facts, or from the notes they have taken of the evidence.”

The trial judge said that he had heard so many cases on that day that he was unable to remember the facts proved in each individual case, and was, therefore, unable to furnish the statement requested.

The right of appeal is expressly granted by Article 565 of the Code of Practice, reading in part as follows:

“One may appeal from all final judgments rendered in causes in which an appeal is given by law, whether such judgments have been rendered after hearing of the parties or by default.”

This court has frequently remanded District Court cases for re-trial where the stenographer died or became incapacitated before transcribing his notes, when the record shows due diligence on the part of counsel.

There is a long line of decisions of the appellate courts in this city holding that judgments by default will be presumed correct, even if there is no evidence in the record, upon the principle “omnia rite acta presaesumuntium” and we have so held.

In those cases counsel had made no effort to get a statement of fact for appellate court, as required by Code of Practice, and as far as we are able to find, this is the first instance in which this step has been taken. Here defendant has done all that was possible to complete his record.

Accordingly, in the interest of justice, the judgment of the lower court must be reversed and the case remanded for new trial, that the record of the testimony and evidence may be made and preserved. On this point see the following authorities:

Fletcher vs. Ozone Lumber Co., 123 La. 514, 49 So. 158.

Nichols vs. Harris, 32 La. Ann. 646.

Martinez vs. N. O. City Ry. Co., 23 La. Ann. 28.

Counsel has renewed his exception of no cause of action in this Court and has argued ably in support thereof. His contention is that the petition alleges malicious and wilful injuries by defendant’s driver without making the essential averment that these injuries were done within the scope of the driver’s employment.

This conclusion seems to us untenable when the petition is taken as a whole, but even if the exception were maintained, plaintiff would be entitled to amend, for the whole trend of modern procedure is to do away with technicalities, and to permit additional averments by supplemental petition, where the failure to state a cause of action is. due to insufficiency of allegation.

See Blake vs. Jefferson-St. Charles Tr. Co., 8 La. App. 310.

For above reasons', the judgment is reversed, and it is now ordered, adjudged and decreed that this case be remanded to the trial court for a new trial, in accordance with the opinion herein expressed.


text:
    No. 11,145
    Orleans
    ALOST v. J. MOOCK WOOD & DRAYAGE CO., INC.
    (March 4, 1929. Opinion and Decree.)
    Dart and Dart, Felix J. Puig and M. A. Woodruff, of New Orleans, attorneys for plaintiffs, appellees.
    Milner and Porteous, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff, a guest in an automobile, sues for $25,000.00 damages for personal injuries alleged to have been caused by the negligent driving of defendant’s chauffeur in a collision with a truck at the intersection of Magnolia and Clio Streets in this city about 12:30 p. m. on February 26, 1926. Her husband joins in the suit, claiming $1,373.20 for hospital and medical expenses incurred by his wife as a result of her injuries and $5,000.00 damages to him for loss of the companionship of his wife and for loss of possible joys of parenthood.

The negligence charged to the truck driver was excessive speed and failure to stop or slow down at a right-of-way street, as required by the traffic ordinance of the city.

Plaintiff alleges the following physical injuries:

All the muscles of the left side of the abdomen, including the peritoneum and fascia were so torn and lacerated as to allow the intestines to protrude through the rent to under surface of the skin, forming a large hernia, or hematoma, which necessitated immediate operation; small blood vessels that supply the nourishment to the intestines seriously damaged; traumatic appendicitis, and phlebitis of the femoral vein of left thigh, which prevented use of left leg and necessitated the use of crutches about the house; and nervous shock which has weakened her permanently.

Defendant admitted the collision, but denied all negligence, and in the alternative plead contributory negligence as follows:

(1) Unlawful speed;

(2) Car not under proper control; and

(3) Failure to protest against unlawful speed and sitting on front seat with two other persons.

The trial court, after the case was twice fully argued, found that the driver of the truck was guilty of negligence and assessed the damages to wife at $4,000.00 and to the husband at $1,373.20. No finding was made as to the negligence of the plaintiff’s driver.

The record shows the following:

The collision occurred at the intersection of Clio and Magnolia Streets in New Orleans. Clio Street is paved and traversed by a single electric car track running from the river towards the lake. From this street another track branches off at Magnolia Street in the uptown direction. Magnolia Street at the point of intersection and below Clio Street was paved with brick or stones. At the lower river corner of the intersection is a building situated on the property line and described as Hyams’ Stable. On the opposite corner, i. e., the lower lake corner, is an open yard separated from the street by a board fence known as Hyams’ Coal Yard. On the uptown river corner is a grocery, and on the uptown lake corner is a one-story double cottage. Magnolia Street is twenty-eight feet six inches' wide from curb to curb, and the sidewalks are eight feet, eight inches wide, 'making the total width of Magnolia Street forty-five feet, ten inches. Clio Street has a width of twenty-eight feet, eight inches from curb to curb, with sidewalks of eight feet, eight inches, making the total width of this street also forty-five feet ten inches. Plaintiff was on the front seat of a Yelie automobile with Mr. and Mrs. Edward Riehl, going out Clio Street towards the lake, and defendant’s truck was going up Magnolia Street towards Carrollton. The traffic regulations make Clio Street a right-of-way street and vehicles thereon have the right of way over vehicles approaching on intersecting streets, which must come to a full stop. A horse and wagon, at the time of the collision, were approaching Clio Street from the lake on the uptown side near the curb, and, when, the automobile was turned over by the impact with the truck, the horse was knocked down and a wheel of the wagon broken. After the collision the automobile was lying in Clio Street near uptown curb, facing toward the lake, about twenty-five feet from Magnolia, with its broken top touching the horse, and the truck was several feet from the corner on the lower side of Clio Street, pointing toward the lake. The right rear fender and right rear door of the automobile were smashed in by the impact with the truck, also a part of the running board between the two fenders, and the left rear wheel was broken by contact with the curb. The rear part of the engine of the truck was damaged just behind the motor.

It would serve no useful purpose to analyze the three hundred pages of testimony, which is, as usual in such cases, full of contradictions. A careful study of the entire record convinces us that the statements of the truck driver, and defendant’s other witnesses who claim to have seen the accident, do not comport with the physical facts. Had plaintiff’s car been going at a speed of thirty miles per hour and only half a block away when the truck, after coming to a full stop, started across Clio Street at two miles per hour, the automobile would have gone three hundred and seventy-five feet, while the truck was going twenty-five feet, and it would, have been out of danger. Furthermore, the truck could not have made the turn to the right if its front wheels were already five feet over the uptown rail on Clio Street, without striking the sidewalk, and it would have been suicidal for the driver of plaintiff’s car to have tried to go around the front end of the truck, which was then within six feet of the uptown sidewalk of Clio Street, with a horse and wagon just twenty feet ahead, directly in his path.

The damages to the two colliding cars and their positions after the accident also support the conclusion that the statements of defendant and his main witnesses are improbable. Accordingly, we conclude with the trial judge that the driver of the truck was guilty of negligence, because he failed to stop at a right-of-way street as required by the City Ordinance. Had he done so he would necessarily have seen the automobile approaching, and no accident would have occurred.

We do not find it necessary to pass upon the question as to the negligence of the driver of plaintiff’s car, as it has been repeatedly held that the negligence of the driver cannot be imputed to a guest.

The argument that plaintiff is guilty of contributory negligence, because she failed to protest to her host at his method of driving, seems to us unsound both in law and fact, as the record shows that plaintiff had had but little experience with motor cars, had never driven one and knew little or nothing about them, while her host had been driving them for some years and was thoroughly familiar with them. Furthermore, the record does not show any such evidence of negligent driving or such close proximity to danger as to necessitate a protest by the guest. Experience tells us that back seat suggestions as to the handling of a car are disconcerting and irritating to the driver.

We further find that there is nothing in the charge that plaintiff was negligent in rfding with two other persons sitting in front seat. The evidence on this point is that the seat was amply large for the three thin persons who were seated on it and that the driver was not obstructed by the presence of the other two persons.'

We also agree with the trial judge that neither traumatic appendicitis nor permanent injury was proved, although there are over one hundred pages of medical testimony.

The surgeon, Dr. Tilly, testified that he performed a very serious abdominal operation; that the operation, which was a major one, showed a small portion of the intestines badly bruised and congested; that for sometime thereafter the patient was in danger of her life and that her condition was affected by a number of complications for ten days, when, phlebitis developed and also appendicitis.

Dr. Danna, a distinguished surgeon of this city, testified that the operation was necessary, in his opinion, and that it had been performed with great skill, and the three physicians of defendant all admitted that the operation would have been necessary ultimately, although they thought it had been performed sooner than necessary under the circumstances.

The record shows that plaintiff was at the Charity Hospital for two days, that she was then moved to the Hotel Dieu, where the operation was performed on February 9th, and where she remained until March 11th, under the constant care of Dr. Tilly with occasional visits from Dr. Danna; that she was then moved to her home, where her continued illness necessitated the use of a rolling chair and crutches for some weeks; in fact she did not finally discard her cane until the latter part of June.

Under all the circumstances, although we are firmly convinced that plaintiff has suffered much and has been subjected to great discomfort and pain, the amount of $4,000.00 seems disproportionately high when compared with other judgments of our appellate courts in somewhat similar cases, and we think that a judgment for $3,000.00 for the suffering and pain of the wife will do substantial justice, as we are convinced that there will be no permanent injuries. In Gelpi vs. Wilbert, 9 La. App. 170; So. Rep. Vo'l. 119, p. 455, decided November 10, 1928, the Court of Appeal of the First Circuit uses the following language:

“In determining the amount which constitutes fair remuneration for medical services, many factors must be taken into consideration, some of which are the skill and reputation of the physician, the time he devotes to the case, and the inconvenience and expense to which he may be subjected. Another important fact to be considered is the amount of the estate and the ability of the patient to pay.”

The record shows that plaintiff and her husband are in moderate circumstances, that she has to do her own work and her husband has had to borrow money from his father to pay the hospital bills and the bill of Dr. Danna for $25.00. The bill of Dr. Tilly of $800.00 has not yet been paid. Considering the circumstances of plaintiff, the duration of her illness, and the fact that the above quoted statement correctly sets forth the controlling law, the surgeon’s bill of $800.00 is unreasonable and should be reduced to $400.00.

For the , above reasons, the judgment is amended, and it is now ordered that there be judgment in favor of plaintiff, Lillian Orr, wife of Herbert Alost, and against defendant, J. Moock Wood & Drayage Company, in the sum of three thousand dollars ($3,000.00), and in favor of plaintiff, Herbert Alost, and against defendant, J. Moock Wood & Drayage Company, in the full sum of nine hundred seventy-three and 20/100 dollars ($973.20); with legal interest from judicial demand until paid. Costs to be paid by appellee.


text:
    No. 10,602
    Orleans
    FEIBLEMAN v. MISSISSIPPI CANE SYRUP CO., INC.
    (February 25, 1929. Opinion and Decree.)

      Edwin F. Marx, of New Orleans, attorney for plaintiff, appellee.
    Hubert M. Ansley, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a suit for $500.00 alleged to be a balance due to plaintiff as a traveling salesman for defendant during the year 1925.

Petitioner alleges that he was employed at a salary of $150.00 per month beginning January 1, 1925, was paid $1,300.00, leaving a balance due of $500.00, and that he left the employment of defendant on January 1, 1926. He also claims, as a clerk or secretary, a lien and privilege on the contents of the business of defendant company, under Article 3191 of the Civil Code.

Defendant answered admitting the employment of plaintiff, but averred he had been employed from month to month' at a salary of $150.00 and that he had not worked during the months of November and December, 1925, but had been loafing around the office. It further admitted that he had been allowed $50.00 per week for traveling expenses while on the road, but averred that he had failed to account for this fund, as he had contracted to do, and it therefore filed a reeonventional demand for an accounting and for judgment for the balance found to be due after such accounting.

The trial judge refused to grant a lien, but gave judgment for plaintiff in the sum of $447.50, having deducted from the amount claimed $52.50, because this sum had been paid to plaintiff in error.

Defendant has appealed and plaintiff has answered appeal asking for the full amount claimed, for recognition of his lien, and also for 10% damages for frivolous appeal.

Only questions of fact are involved and we find that the record abundantly shows that Feibleman was employed as a drummer during the year 1925 at a salary of $150.00 per month; that he was allowed $50.00 a week expense money while traveling and that he offered to submit a statement of his traveling expenses when he returned from his first trip, but his offer was declined and no subsequent demand was ever made on him for such accounting. He was never discharged, but continued in the employment of the company during the months of November and December. He sent in his resignation to become effective December 31, 1925.

W. R. Taylor, president of defendant company, testified that he had paid $52.50 to Feibleman in error as a commission on a shipment of 525 cases of syrup to the Fordson Grocery Company of Corsicana, Texas; that this was follow-up business on an order originally given plaintiff while he was being paid a salary. The testimony of plaintiff on this point tends to sustain this contention of Mr. Taylor, as he entirely failed to prove that this shipment resulted from his solicitations after the first of January, 1926, as claimed by him on the trial of the case.

Subdivision 6 of Article 3191 of the Civil Code provides that the salaries of clerks, secretaries and other persons of that kind are entitled to privileges on all the movables, but we have been referred to no decision holding that a traveling salesman is either a clerk or a secretary, and such does not seem to us a fair interpretation of the article. Clerks and secretaries are generally employed around the office, whereas the duties of a salesman are all outside of the office, and privileges must be strictly construed.

Although the contentions of defendant are not sustained by the record, we think that there are sufficient discrepancies in the testimony to justify refusal to allow damages for a frivolous appeal.

For above reasons the judgment is affirmed.


author: WESTERFIIDLD, J.

text:
    No. 11,604
    Orleans
    CROWLEY v. RABB
    (February 25, 1929. Opinion and Decree.)
    Frymire and Ramos, of New Orleans, attorneys for plaintiff, appellee.
    ' Janvier, Bond, Curtis, Hall and Foster, of New Orleans, attorneys for defendant, appellant.
   WESTERFIIDLD, J.

This is a suit for damages growing out of a collision between automobiles at a street intersection. There was judgment below for plaintiff as prayed for, in the sum of $110.71. Defendant has appealed.

The accident occurred in the intersection of St. Ann and Dauphine Streets. Plaintiff’s car, which was proceeding up St. Ann Street, in the direction of Canal Street, admittedly had the right of way under the Traffic Ordinance. The defendant contends that his car had entered the intersection first and was, therefore, entitled to proceed, notwithstanding plaintiff’Si right of way.

The principle of law relied upon by defendant is well settled. Smyth vs. Hill Stores, 8 La. App. 246, and authorities there cited.

The question presented is one of fact, that is, which car first entered the intersection?

The trial court resolved this question in favor of plaintiff, and our examination of the record fails to disclose any manifest error in its conclusion.

The amount of damages does not appear to be in dispute. The judgment appealed from is, therefore, affirmed.


text:
    No. 11,339
    Orleans
    ROMAIN v. FISHER
    (February 11, 1929. Opinion and Decree.)
    Bernard Titche, Jr., of New Orleans, attorney for plaintiff, appellee.
    Samuel J. Tennant, Jr., of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

This is a suit on a promissory note. Defendant’s actions indicate that he has no serious defense.

In the court below judgment was rendered by default. Defendant obtained a new trial which, in our. opinion, should not have been granted, but which, however, the trial judge allowed him. After the granting of the new trial, defendant filed answer, but did not appear for trial and again judgment went against him. Again he asked for a new trial, which this time was refused. He has filed no brief with us. His tactics appear to be prompted by a desire for delay, and his appeal is utterly without merit and frivolous.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by allowing plaintiff damages at 10 per cent on the amount of the judgment appealed from and, as thus amended, affirmed at the cost of appellant.


text:
    No. 10,961
    Orleans
    RICAU, RECEIVER, v. SCHLATRE
    (March 4, 1929. Opinion and Decree.)

      Baldwin J. Allen, of New Orleans, attorney for plaintiff, appellee.
    C. S. Hebert, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff, as receiver of C. C. Gaspard, Inc., sues defendant for $364.00, together with interest and attorneys’ fees, which amount is claimed as the balance due on an alleged subscription to four units of capital stock of the said corporation. It is alleged that the subscription was dated March 30, 1926, that under it defendant obligated herself to pay $404.00, and that she has paid $40.00 thereof.

Defendant admits that on March 30, 1926, she signed a subscription for stock but claims that it was for only one unit and that she agreed to pay only $101.00. She admits that she has paid $40.00 thereof and she further claims that she executed and has paid another subscription of date March 3, 1926.

She produced and introduced in evidence a carbon copy of a subscription for one unit bearing date March 30, 1926, and bearing the signature “Elizabeth Schlatre.”

The alleged subscription for four units on which this suit is predicated bears the signature “L. Schlatre,”

Defendant admits that she was generally known as “Lizzie” and that she wrote a letter to the company or to the Receiver and signed it “L. Schlatre” but claims that always in signing formal documents and particularly in signing the subscription in question she signed the full name “Elizabeth.”

She asks in her answer that the entire transaction be set aside as having been consummated as the result of fraud and that all the money paid out by her be ordered returned to her.

Judgment was rendered in the court below in plaintiff's favor but for only $61.00. This represents the balance due on one unit after deducting from the subscription price thereof the amount admitted to have been paid. Defendant has appealed and plaintiff has answered the appeal and now asks that the judgment be increased to the amount originally asked for. The trial judge, in his reasons for judgment stated that he found the disputed signature to be genuine but that he believed that the figures showing the number of units had been altered from one to four and that the amount of money to be paid had been changed from $101.00 to $404.00. During the trial, on .an objection to evidence, he had ruled out any testimony going to show that the document had been altered because he held, and we think correctly, that the defense that the signature had been forged, deprived defendant of the right to set up any other contention. His finding, then that the signature was genuine but that the figures had been changed after signature seems to be inconsistent with his previous ruling, and as we are of the opinion that his first ruling was correct we are necessarily now of the opinion that his second finding was not in accordance with Article 326 of our Code of Practice, which article reads as follows:

“The defendant, whose signature shall have been proved, after his having denied the same, shall be barred from every other defense, and judgment shall be .given against him without further proceedings.”

If, then, he believed that the signature was genuine, he should have rendered judgment against defendant for the full amount, and if we believed that the signature is genuine we would ourselves be forced to do so. But the record convinces us that the signature on the subscription for four units is not genuine. Two other subscriptions bearing the signature “Elizabeth Schlatre” are offered in evidence and a .comparison of those with the one in dispute, together with the fact that we see no reason why defendant should have signed the full name in those cases and only the initial of her “nickname” in the disputed case, and the improbability that a person of Miss Schlatre’s limited income . and means would have signed for so much stock, furnishes ample ground for our conclusion. Furthermore, it would have been most peculiar for her to have signed two different subscriptions, one for one unit and one for four units, on the same day, and it is quite evident from the carbon copy submitted in evidence that she did actually sign a subscription for one unit on that day.

Defendant contends that the whole transaction was tainted with fraud and that, therefore, she should not only be not required to pay the balance due, but that such amounts as had been paid by her should be returned to her. We do not believe that there is any positive proof of fraud, except with regard to the forging of defendant’s name to the stock subscription. We feel, however, that the fact that the corporation, or some of its agents, resorted to an act of this kind, will well justify us in refusing to allow them to recover anything more from plaintiff. But, inasmuch as plaintiff herself has admitted that she did sign a document, and that she did pay something under that document, we do not feel that we should order returned to her such amounts as have been ¡paid.

It is therefore ordered, adjudged and decreed that- the judgment appealed from be • annulled, avoided and reversed, and that there now be judgment in favor of defendant, dismissing plaintiff’s suit.