author: LidBLANC, J. ELLIOTT, J.

text:
    No. 737
    First Circuit
    VUILLEMOT ET AL. v. GONSULIN ET AL.
    (May 5, 1931. Opinion and Decree.)
    (June 30, 1931. Rehearing Refused.)
    (October 6, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      L. A. Goudeau, of Lake Charles, attorney for plaintiffs, appellants.
    Porteus R. Burke and Weeks & Weeks, of New Iberia, attorneys for defendants, appellees.
   LidBLANC, J.

In stating the case, we deem it proper to recount briefly, as it appears from the record, some of the history connected with this litigation:

In December, 1917, Adrien Gonsulin, one of the defendants herein, .petitioned the then Nineteenth Judicial District Court, sitting in and for the parish of Iberia, for letters of administration on the estate of his deceased grandparents, Francois Gonsulin and Marie Louise Celesie de la Goutrais. In his application he alleged that they had left property consisting of real estate situated in the state of Louisiana; that there were debts both privileged and ordinary due by their estate which rendered ah administration of the joint succession necessary. The petition also contains a recital that on December 30, 1906, he had presented a similar application to the court; that it had been duly published; that he had been appointed administrator and qualified as such,' furnishing the required bond, etc., but that the file containing all the papers and documents referred to had been lost or mislaid and that nothing had ever been recorded except the bond which he had furnished. Because Of the loss of the papers and as no action whatever having been taken under the appointment, he asks that those proceedings be ignored and that his present application be considered. It may be timely here to remark that in this last application, the dates of the respective deaths of his grandparents appear in blank.

There was no opposition filed to his application which was duly advertised, and after the expiration of the delays he was appointed administrator. An inventory had been taken as ordered and he furnished the bond fixed by law. An attorney at law was appointed to represent the absent heirs and he qualified by taking the prescribed oath. The only property inventoried as belonging to the joint succession was the undivided two-thirds of a tract of land described as “all that portion of irregular Section 19, Township 17 South Range 11, East, known as the Belle Isle grant or concession, and containing 1218.75 acres.” The interest of the succession was appraised at $1,626.67.

Upon the administrator’s application, an order was issued by the court for the sale of the property in order to realize funds with which to pay debts. The sale was properly advertised and took place according to law, and the property was purchased thereat by the administrator, Adrien Gonsulin, and Mrs. Branch K. Miller in the proportion of an undivided one-half each, for the sum of $1,900. The administrator then filed his account, which showed that the succession was indebted to him in an amount in excess of $2,600. The account was published and homologated and in due course he was discharged and bis bond -was ordered canceled.

About five years afterwards, to be exact on January 12, 1922, Adrien Gonsulin and Mrs. Branch K. Miller instituted monition proceedings in the same court in Iberia parish to have their title to the property they had acquired at the succession sale, confirmed. Public notice of these proceedings was given by publication for more than thirty days in the official journals of both Iberia and St. Mary parishes. Approximately sixty-five persons appeared to oppose the monition, mostly on the ground that the property had been sold to satisfy post mortem debts, some of which had been created by the administrator himself, and that the sale was illegal further because the administrator who was acting in a fiduciary capacity was precluded from .purchasing the property at the sale. They all attacked the legality of the sale and reconvened asking that Gonsulin and Mrs. Miller be ordered to turn over to them their lawful interest in the property. Trial was had on an agreed statement of facts and resulted in a judgment in favor of the plaintiffs confirming and homologating their title to the property and making the same perfect and complete, and rejecting the reconventional demands presented by the various defendants. An appeal was taken by most of the defendants to this court. The appellants perfected their appeal but made no appearance and the judgment of the lower court was affirmed. That was on December 12, 1923.

Some time during the year 1928, Mrs. Dorcienne Gonsulin Gravet, wife of Jules Gravet, claiming to. be an heir of Jean Francois Gonsulin, and as such an owner of an undivided interest in the property involved in his succession above referred to, brought suit in the district court in which she attacked the whole of those proceedings as well as the monition proceeding had subsequently. Her contentions were that the succession of her ancestor, Francois Gonsulin, had been duly administered in the court in the parish of St. Martin where he had died in the year 1819, and that as all proceedings therein had long since terminated, the district court of Iberia parish was without jurisdiction ratione materiae to again or further administer the same. From an adverse judgment in the lower court, an appeal was taken to this court where it was held that because the plaintiff’s father, together with numerous heirs of Francois Gonsulin, had asked Adrien Gonsulin to look after and administer the lands of their ancestor, and had contributed funds at his request in meeting the necessary expenses involved, and that the plaintiff herself had acquiesced in those acts after her father’s death and had also made similar contributions, she was estopped from attacking the acts of her agent. The exception to the jurisdiction which the plaintiff in her petition had styled an exception to the jurisdiction ratione materiae was said to be' in reality an exception to the jurisdiction ratione personae which, it was stated, could be waived, and in fact had been waived by the plaintiff by her conduct and inaction, who moreover was held to have ratified the defendant Gonsulin’s action.

It thus appears that these defendants have been called upon twice already to defend their title to the property they purchased in .1917 at the succession sale of Francois Gonsulin and his wife, and that defendant Adrien Gonsulin has been put to severe legal test to retain his interest therein which he had to take in satisfaction of an indebtedness he claimed to have incurred in behalf of his very numerous co-heirs. In view of the apparent honesty with which he rendered his accounting to to the court, which not having been opposed was approved and homologated, and of the opportunity given the heirs, which many availed themselves of by resisting him in the monition suit, and in view also of the length of time that has again intervened before this suit, truly the interminable deláys of the law so often spoken of, must appear to him to be an existing fact.

It seems that as to a number of the plaintiffs in this suit, the issue might be readily disposed of on the basis of our decision in the case of Gravet v. Gonsulin, 10 La. App. 553, 119 So. 785,120 So. 643, as their ancestors had also, like the father of the plaintiff in that case, joined in an authorization to Adrien Gonsulin to administer . the property and contributed funds to that end, all of which acts had been ratified by those of the plaintiffs referred to. Indeed, the force given to the monition proceedings in the Gravet suit in sustaining a plea of res adjudicata might again be used with regard to all the plaintiffs in this case without much further consideration, were it not for the earnest effort of their counsel in presenting a case of fraud before the court.

The whole case, as it seems to us, is pitched on the alleged concealment by Adrien Gonsulin of certain knowledge and his failure to disclose facts which he knew existed, with the wilful intention to deceive the court and lead it to grant him his application to administer the succession of their ancestors. His deception, they contend strikes at the very foundation of the proceedings inaugurated by him and carried on in the court in Iberia parish. They charge that he deliberately withheld the dates of the respective deaths of his grandfather and grandmother in his petition with the view of keeping the court in ignorance of the mortuary proceedings in his grandfather’s succession which had taken place in • St. Martin parish nearly one hundred years before; they charge that he made no mention of those proceedings with the well considered purpose of hiding them from the court because they showed that the succession had been fully administered and terminated that many years ago; they charge also that he purposely omitted making reference to various suits and notarial documents which contained judicial admissions constituting unconditional acceptances of their successions hy the heirs of Francois Gonsulin and his wife Marie Louise de la Goutrais with the view of leading the court to believe the estates were still open to administration. All of this, they charge, Gonsulin did to collect alleged debts against the succession which did not and could not in reality exist. Hence, we find those proceedings assailed and their absolute nullity invoked in two important particulars: First: That the court was without jurisdiction ratione materiae because the decedent at the time of his death was domiciled in the parish of St. Martin and therefore the only court vested with jurisdiction to administer the estate was the court which sat in that parish; and second: That the Iberia court was without jurisdiction further because the succession had already been administered and closed and that the defendant, if he had any claims, could no longer proceed against the succession but had to proceed against the heirs individually.

The first plea to the jurisdiction was one of the questions considered in the case of Mrs. Gravet in 10 La. App., and we see no reason why it should he. injected again merely for the sake of repeating what was said in that decision.

We are left therefore, with only the question of jurisdiction as raised in the second particular which presents the direct proposition as to when does a succession cease to exist. If the succession of Francois Gonsulin had already been administered and closed by reason of the proceedings in St. Martin parish; if it was no longer a legal entity which could be brought into court, then clearly the proceedings in Iberia parish brought by Adrien Gonsulin were just idle formalities which have no legal base on which to stand. That we believe is a legal proposition which is well settled. The question then is, was there any such administration and closing of the succession in St. Martin parish under the proceedings thereof over one hundred years ago, and, if there was not such closing of the succession, have these heirs, by any act of theirs, accepted the succession purely, simply and unconditionally, in such way as to fore'close the rights of any creditor against the estate itself and force him to resort to a proceeding against them individually?

The answer to the first part of this question, that is, whether or not there was a closing of the succession under the proceedings taken in St. Martin parish, depends upon what was done and accomplished by those proceedings. At the most, our examination reveals that there was nothing done to justify the conclusion that a succession had been administered and closed. Wbat of that record appears in the record before us is of very little consequence as far as it relates to the opening and winding up of an estate. No administrator, such as contemplated under the Code was ever appointed. Some party who styles himself agent, filed a tableau of distribution which apparently was homologated after due notice of its filing had been given by publication. Such was the condition of the record when in 1868 the parish of Iberia was formed by act of the Legislature from territory carved out of the area which comprised St. Martin parish. Under the provisions of that act, as shown in the Gravet decision all court proceedings concerning property in the newly formed parish had to be transferred to the new parish of Iberia. In this new parish, there appears, as far as the record shows, no steps taken in the succession of Francois Gonsulin until the time when it was opened by the defendant herein. Whilst we recognize the principle as stated in the various cases cited by counsel for plaintiffs that the law contemplates an early settlement of a succession and that after it has been closed the heirs become the owners of the property and are individually liable for its debt, still we believe that by the closing of the succession the law means the due observance of all the legal formalities required, and that extends to the payment of all debts, followed by the discharge of the administrator and the cancellation of his bond and the placing in possession of the heirs. In all of the cases cited, the court refers to the placing of the heirs in possession or to the partition of the property among them, when it holds that the succession was closed and had ceased to exist as a legal entity. In Freret v. Freret, 31 La. Ann. 506, there certainly had been far more done than we find was done in this succession proceeding in St. Martin parish. The heirs in that case had been put in possession by a judgment of court. In Succession of Thibodeaux, 38 La. Ann. 716, the court held'that the record fully established that there were no debts due and that the heirs had been placed in possession of the property, and that therefore there was no reason for an administration. In Succession of Aronstein, 51 La. Ann. 1052, 25 So. 932, there was no judgment placing the heirs in possession, but an account which had been opposed was homologated by judgment of court, which is referred to as a final judgment, and the distribution of assets according to the account followed. At least there appears to have been a distribution of the assets of the succession, not the mere filing of a tableau and its homologation by the clerk of court as | appears in the proceedings had in St. Martin parish in this case. Viewed from the standpoint of that record alone, we do not believe, as already stated, that the succession of Francois Gonsulin had been terminated, and, if it was not so terminated, it now remains to be determined whether by any act of the heirs evidencing an unconditional acceptance it was closed in that manner.

Here "again we are confronted with an intricate question such as generally arises in all matters concerning jurisdiction. In the words of the Supreme Court in Freret v. Freret, 31 La. Ann. 506, it is qne of those vexatious questions which is not very useful, and “upon which hinges the validity of protracted legal proceedings, and which after all involve no permanent legal principle, worthy to engage the intellect, but only a verbal construction, that is soon rendered of no service, by the adoption of another phraseology.” Might we not also indulge the same hope that court did, that the forum of jurisprudence might be fixed beyond dispute.

It is clear, as appears from a consideration of the provisions of article 988 of the Revised Civil Code, as well as of some of the authorities cited, that there may be an unconditional acceptance of a succession by the heirs by an express declaration made by them in some judicial proceeding or in some authentic or private instrument. Samford v. Toadvine, 15 La. Ann. 170; Brashear v. Conner, 29 La. Ann. 347. We may mention, en passant, that it is equally true that an acceptance of a succession under those circumstances must appear in terms so clear and distinct as to leave no doubt as to the real intention to accept under the full responsibilities that attach to an acceptance pure and simple. The heir must make it plain by his declaration that he has accepted in such manner that he is ready and willing to assume the burdens of the estate as well as to enjoy its advantages. Mumford v. Bowman, 26 La. Ann. 413; Griffin v. Burris, 109 La. 219, 33 So. 201. Article 990, Revised Civil Code, prescribes as a condition necessary, “that the intention should be united to the fact, or rather manifested by the fact, in order that the acceptance be inferred.” If we were to judge the intention of some of the heirs in this case by the subsequent facts as manifested in their refusal to ipay claims presented by their agent for the administration of their property, we would be prompted to place them in that category of heirs who are willing to accept the succession for what benefit they may derive .from it, but are unwilling to do their part in meeting some' of its obligations. There is hardly any doubt, we presume, that, had they all paid their contribution to their agent, Adrien Gonsulin, the administration of this succession would never have been provoked.

Be all that as it may, however, we do believe that, in some of the judicial proceedings offered in evidence, particularly the suit of Carlos Greigg et al. v. Heirs of Gonsulin, in which Adrien Gonsulin was a defendant and agreed with the .others to the partition therein demanded, the effect of the declarations made can hardly leave any doubt about there being an acceptance pure and simple of the succession, and ordinarily the creditors of the estate would have been relegated to an action against the heirs to enforce the claims which they might have had. But it must be borne in mind that here the nullity of the proceedings is based on the lack of jurisdiction of the court in Iberia parish to entertain the application for administration at all, and this especially because of the alleged fraud of Adrien Gonsulin in making the application.

We believe that these plaintiffs are confusing the jurisdictional power of the court with one of its discretionary rights. In 1906, when Gonsulin applied for administration, the succession o.f Francois Gonsulin had really never been administered and that of his wife had not been opened. At that time the proper forum to provoke the administration was in Iberia parish. The same-condition prevailed in 1917, when he presented a second application. That court being vested with jurisdiction over the estate, in ease an administration were necessary, was the competent court to pass upon the application that had been presented before it. The court was open to Gonsulin, and we can think of no way in which he could have been deprived of his right at least to file his petition, and on order properly granted advertise his application for administration. This done, it theii became a matter of discretion with the court, after hearing any opposition that might have been urged, to say whether he ' should be appointed or not. There seems to be no hard and fast rule relative to the appointment of an administrator for a succession where some of the ‘ heirs have accepted unconditionally or where there are no debts. It is a matter which addresses itself entirely to the discretion of the court. See Succession of Comeau, 158 La. 372, 104 So. 119, 121, wherein the court said:

“Our analysis of the divers and diverse .decisions on this question, of the right of •the judge to appoint an administrator when one of the heirs accepts the succession unconditionally and another claims the benefit of inventory, shows that the court has not always regarded either article 1047 of the Civil Code or article 976 of ■the Code of Practice as laying down a hard and fast rule. The court has been disposed to judge each case by its own peculiar facts, deferring largely to the judgment and discretion qf the district judge.”

In Succession of Theriot, 116 La. 25, 40 So. 519, first syllabus reads:

“The question" as to whether a succession shall be placed under administration is to a very considerable extent submitted to the sound discretion of the trial judge, to be exercised for the benefit of all parties in interest, and especially for the benefit of parties advancing claims against the succession. Where there are 30 or more heirs in a small succession, some of whom are minors and others majors, and some residing out of the state, parties asserting rights as creditors should not be driven to personal actions against all of these different heirs. They are entitled to have their claims passed upon as quickly and as economically as possible in Louisiana in a single suit.”

That language is strikingly pertinent in this case, when it is considered that we are also dealing with a small estate and that the heirs, numbering at least two hundred, are scattered in different parishes of the state and some reside outside.

That there was no abuse of discretion in this case on the part of the trial judge is apparent from the fact that there was no opposition presented to Adrien Gonsulin’s application for administration. It was duly published according to law, and no one raised any objection. His petition contained an averment that the succession owed him a considerable sum of money and yet no one denied it. His account showing these debts was filed in court and notice of its filing given as provided for by law, and still all remained silent. It is not until five years later, when in the monition suit he again gives public notice of all that had transpired and invites them all again to come into court to assert any rights or objections they may have, that some of them appear to question his claims, and after trial of their opposition, his title to the property is confirmed by the court. That judgment is appealed from by some, but even they abandon the contest by failing to prosecute the appeal. It would seem,' therefore, that these heirs have had their “day in court,” and that, by their silence and inaction in the original proceedings instituted in 1906 and re-instituted in 1917, and their acquiescence in the judgment in the monition suit by abandoning the appeal, they are now estopped from invoking their nullity. Under Revised Statutes, secs. 2375 and 2376, the judgment in the monition suit was of itself conclusive evidence that the monition had been regularly made, and it has now attained the force of res adjudieata.

But counsel .for the plaintiffs confidently asserts that they have uncovered the fraud and deception practiced by Adrien Gonsulin on the court of Iberia parish in his determination to obtain title to this land, and for that reason, above all, the proceedings brought and conducted in his name are stricken with absolute nullity. They further urge his knowledge and judicial admissions and declarations in various proceedings and acts showing that the succession no longer existed and that the property had passed to the ownership of the heirs, as res adjudieata and estoppel to the defenses presented by him and his co-defendant in this suit. The record, however, does not bear proof of the fraud they allege, and the letter of Senator Edwin S. Broussard, which by agreement was accepted as his testimony in the case, disproves any fraud whatsoever. Senator Broussard himself is one of the heirs of Francois Gonsulin, and his letter states that it was on his advice that Adrien Gonsulin applied for the administration of the succession in order to have his expenses, incurred in attending to the property, reimbursed, after all other efforts to collect them had turned out to be futile. Besides, it is not shown that Adrien Gonsulin had any more knowledge of the facts and matters he is charged with having concealed from the court than any of the other heirs. Most of these matters- were of judicial record long before the sale of the property in the succession proceedings and the monition suit. The same knowledge of their legal effect with which Adrien Gonsulin is charged they are presumed to have had, and it strikes us that now, these many years after all of these proceedings regularly conducted in a court of competent jurisdiction have been concluded, it is too late to bring up this issue.

The judgment of the lower court sustaining the defendants’ pleas of res adjudicata and estoppel and rejecting the plaintiffs’ demand and also the latters’ pleas of res adjudicata and estoppel is correct, and it is therefore affirmed.

ELLIOTT, J.

(concurring). The petition of the plaintiffs, with the documents annexed to and made part thereof shows that the territory where Jean Francois Gonsulin and Marie Celeste de la Gautrais, his wife, had lived and died in the parish of St. Martin, and in which their respective successions had been opened by their death, had become, at the time their successions were administered, a part of the parish of Iberia.

It therefore appears therefrom, when an administration was prayed for in 1917, none having taken place in the parish of St. Martin, that the Iberia court was the competent court to authorize it to be done. Code Prac. arts. 75, 76, 86, 87, 90, 92, 93. It had succeeded to the jurisdiction of the St. Martin court in that respect. Act 206 of 1856.

A similar question of jurisdiction was determined in favor of the competency of the Lafayette parish court in the case Grevemberg v. Bradford, 44 La. Ann. 400, 10 So. 786. The parish of Lafayette was created with territory taken for the purpose from the parish of St. Martin. Acts 1823, p. 6. The jurisdiction of the Lafayette parish courts was fixed with language almost exactly like that used in fixing that of the parish of Iberia.

The act creating the parish of Iberia had the effect, as to estates which had been opened by death in the parish of St. Martin, but not administered, of giving jurisdiction to the parish of the situs, as to all court matters, not performed in the parish of the former situs.

The cases Harang v. Harang, 7 Mart. (N. S.) 51; Patouillet v. Patouillet, 2 La. 270; Forstall v. Forstall, 4 La. 214, and Beale v. Walden, 11 Rob. 67, were decided previous to and therefore can have no controlling effect on the act creating the parish of Iberia. The Iberia court, having been the competent court to authorize an administration of the Gonsulin estates in 1917, it follows that the judgment of that court, homologating the monition proceedings in question, no matter whether right or wrong, cannot be set aside for error now. Defendant’s plea of res adjudicata, based on the judgment of the Iberia court, homologating the monition proceedings, applies, not only to the Gonsulin heirs who appeared and opposed the proceedings, but to all the present plaintiffs who could have appeared and did not. Revised Statutes, sec. 2370 et seq.; Montgomery v. Samory, 99 U. S. 482, 25 L. Ed. 375.

I therefore respectfully concur in the majority decision.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 13,789
    Orleans
    LANDRY ET AL. v. BLACHE ET AL.
    (October 19, 1931. Opinion and Decree.)
    Borah & Bloch, of Franklin, attorneys for plaintiffs, appellants.
    Sanders, Baldwin, Viosca & Haspel, of New Orleans, attorneys for J. Henry Blache, defendant, appellee.
   JANVIER, J.

■ Plaintiffs pray for a judgment ordering the return to them of a deposit of $800 placed by them with defendant Blache, real estate agent, in connection with a proposed purchase by them of real estate.

Defendant Smith is an attorney at law, and judgment is sought against him bel cause it is alleged that he conspired with Blache to bring about the situation of which plaintiffs how complain.

Inez and Georgia Landry became attracted to certain real estate on Louisiana avenue in New Orleans. After negotiations it developed that the property could be purchased for $9,750, which price was satisfactory to the Landrys.

During the negotiations Smith conferred with them on 'several occasions, as well as with the real estate agent, whether as friend or as attorney at law is much in dispute; and on June 1, 1929, the said Smith signed a written offer to purchase the realty for $9,750 cash. The offer was signed, “F. B. Smith, A-tty.,” and was at once accepted in writing by the owner, Voelkel.

In the said offer it was agreed that the prospective purchaser, in the event of failure of consummation due to his fault, should pay to Blache a commission of 4 per cent, together with all fees and costs necessarily incurred in the collecting of the said commission. At the time of the execution of the offer the said Smith did not make the contemplated deposit of $975, with the result that Blache called upon him, in writing, on June 5th, to comply with the obligation to deposit and also called upon him verbally several times thereafter.

Smith maintains that, in making the said offer, he was acting for Inez and Georgia Landry and he called upon them to produce the amount of the required deposit.

They contend that they did not know that Smith had already executed the offer to purchase and that, therefore, on June 14th, having obtained from different sources $800 in cash, they called at Blache’s office, together with Smith, for the purpose, they allege, of executing an offer to purchase and of making an $800 deposit in connection therewith.

They now charge that on that day, June 14th, they signed a written offer to purchase the property for $9,750, not for cash, but through the Dryades Building & Loan Association. That they produced and delivered to Blache, through Smith, the $800 referred to is not disputed.

Upon receiving the said deposit, Blache gave to Smith a receipt therefor, which receipt recited that the deposit had been made in connection with the offer which had been executed on June 1st by Smith as attorney.

Later it developed that plaintiffs could not obtain the necessary funds, except through a loan on the property. No loan was granted either by the Dryades Building & Loan Association, or otherwise, and the transfer of the property was never completed.

Plaintiffs now allege that they are entitled to the return of their money because their offer, which they aver was made on June 14th, was subject to their ability to obtain the necessary loan, which proved to be impossible.

Defendants assert that the deposit was made in connection with the cash offer executed by Smith on June 1st on plaintiffs’ behalf and that, since they (plaintiffs) are responsible for failure of consummation of that transaction, commission and fees are due under the contract of that ' date.

There is a controverted legal problem which must be investigated before it becomes necessary to solve the disputed questions of fact and that legal problem results from the fact that there was no authority in writing from plaintiffs to Smith authorizing him to sign the June 1st offer on their behalf. The offer itself had for its object the transfer of title to real estate, and, of course, authority to an agent to sign such an offer should have been in writing in order to bring into existence the right of specific performance, or to otherwise affect the title to the realty. See Turner v. Snype, 162 La. 120, 110 So. 109, 110, in which our Supreme Court said:

“As the law requires that a contract to buy or sell real estate must be in writing, so also must a power of attorney to make such • contract be in writing. Hall v. Sprigg, 7 Mart. (O. S.) 243, 12 Am. Dec. 506; Muggah v. Greig, 2 La. 593; Badon v. Badon, 4 La. 168; Miller v. Canal & Banking Co., 8 Rob. 242; Chapman v. Hardesty, 10 Rob. 35; Breed v. Guay, 10 Rob. 37; Bauduc v. Conrey, 10 Rob. 472; Stevens v. Wellington, 1 La. Ann. 72; Dubroca v. Her Husband, 3 La. Ann. 332; Seaton v. Sharkey, 3 La. Ann. 333; Phelps v. Hodge, 6 La. Ann. 525; James & Co. v. Wade, 21 La. Ann. 548; Keary v. Ducote, 23 La. Ann. 196; Kunmengeiser v. Juncker, 28 La. Ann. 678; Hackenburg v. Gartskamp, 30 La. Ann. 900; Succession of Edwards, 34 La. Ann. 231; McKenzie v. Bacon, 40 La. Ann. 162, 4 So. 65; Dohan v. Dohan, 42 La. Ann. 452, 7 So. 569; St. Landry State Bank v. Meyers, 52 La. Ann. 1769, 28 So. 136.”

But it is not the whole contract which is here sought to be enforced and it is not title to real estate which it is here sought to affect, but we are only concerned with that part of the contract hy which the offeror agreed to pay commission to the real estate agent, and there was no necessity that such portion of the contract be in writing, as has been several times held by this court and by our Supreme Court. In Whatley v. McMillan et al., 152 La. 978, 94 So. 905, 906, the Supreme Court said:

“One of C. Y. McMillan’s defenses as part owner is that the agreement in question was. not in writing, and that agreements relating to real estate must be in writing. They must J)e .when they purport to affect the real estate, to transfer or incumber it, but the said agreement does not purport to do that. It affected the real estate in no way. It merely enlisted the personal services of plaintiff for a certain agreed-upon consideration, and therefore did not need to be in writing.”

. In Jacobs v. Curso, No. 9128, Court of Appeal, Parish of Orleans, Opinion Book 64 (unreported (see Louisiana and Southern Digest)), we said:

“But two decisions of this court have said that authority to sell immovables may be conferred and proven by parole when ■the object is not to prove title but only to show employment and to recover a commission for effecting a sale.”

In Fellman v. Mrs. Sporl, No. 7942, Court of Appeal, Parish of Orleans, Opinion Book 57 (unreported (see Louisiana and Southern Digest)), appears the following:

“But parole evidence is- admissible to establish a contract to pay compensation for securing a purchaser of real estate. Houston v. Boagni, 1 McGloin, 164. And the reason is that the subject matter of such contract is personalty (money compensation for services); parole evidence being inadmissible as to real estate only when the offer of the evidence is for the purpose of affecting the title to such real estate. Bernheim v. Pessou, 143 La. 609, 613 (79 So. 23); Bellocq v. Gibert, 36 La. Ann. 565, 568.”

See, also, Freed Realty Co., Inc., v. Deneve, No. 9377, Court of Appeal, Parish of Orleans, Opinion Book No. 65 (unrepor.ted (see Louisiana and Southern Digest)).

That title to -realty is not involved in a situation where neither the proposed purchaser nor the owner seeks the enforcement of’ the contract was held by our Supreme Court in Villemeur v. Woodward, 171 La. 831, 132 So. 361. Since it was not necessary .that the authority given by Inez and Georgia Landry to Smith be in writing, it becomes necessary to carefully examine the record to determine whether there can be found therein sufficient oral proof that such authority was given. The direct evidence on the question is much in conflict, but the production by the Landrys of the $800 and their acquiescence in the depositing by Smith of this sum is strongly corroborative of his testimony that they did so: authorize him. Their explanation that they permitted the deposit to be made, believing that it was in connection with the offer which they say they signed on June 14th, cannot be accepted in view of the very convincing evidence that no such second offer was made, and because of the admission several times repeated by one of the sisters that, prior to June 14th, she was aware of the fact that the offer had been made by Smith. Other evidence leads, to the inevitable conclusion that there was no contract of June 14th and that on that day both plaintiffs were aware of Smith’s former offer on their behalf.

The district court rendered judgment against plaintiffs and in favor of Smith and against plaintiffs and in favor of Voelkel, and also rendered judgment in favor of plaintiffs and against Blache for $800, and in Blache’s favor in reconvention for $488, $390 of which represented commission to which he was held to be entitled, and the balance, $98, represented attorney’s fees allowed by the court for legal services in the court below. We believe that to the amounts allowed to, Blache should be added $100 to compensate him for legal services rendered in this court and for which he is responsible, and that, instead of rendering judgment for the full $800, subject to a claim for reconvention, it would be better to render one judgment in favor of plaintiffs for $212, the balance due them by Blache, after deducting the amounts, to which he is. entitled.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is amended so as to read as follows:

It is ordered, adjudged, and decreed that there be judgment -herein in favor of defendant Prank B. Smith and defendant Michael Voelkel, and against the plaintiffs, Inez Landry and Georgia Landry, rejecting the demands of plaintiffs and' dismissing their suit as. against Smith and Voelkel at the cost of plaintiffs.

It is further ordered, adjudged, and decreed that there be judgment herein in favor of the plaintiffs, Inez Landry and Georgia Landry, and against the defendant J. Henry Blache, in the sum of $212, with legal interest thereon from date of judicial demand.

It is further, ordered that all costs of these proceedings not herein otherwise, provided for be paid by J. Henry Blache.

As thus amended the judgment is. affirmed.


author: WESTERFIELD, J.

text:
    No. 13,889
    Orleans
    O’HANLON v. PHOENIX BLDG. & HOMESTEAD ASSN.
    (October 19, 1931. Opinion and Decree.)
    Joseph Rosenberg, of New Orleans, attorney for plaintiff, appellant.
    Delvaille H. Theard, of New Orleans, attorney .for defendant, appellee.
   WESTERFIELD, J.

The Phoenix Building & Homestead Association on April 24, 1930, brought suit against Mrs. Mamie M. Quarella and James O'Hanlon, and in its petition alleged that Mrs. Quarella was indebted to it in the sum of $6,126.07, less certain credits on a promissory note secured by a vendor’s lien and mortgage effecting certain real estate described in the petition. It also alleged that the note sued on was additionally secured by a certain pledge of O’Hanlon of sixteen shares of full paid stock in the plaintiff corporation, the pledge having been made on January 27, 1927, by virtue of a certain instrument in writing, reading as follows:

“I, the undersigned, agree to' deposit with the Phoenix Building & Homestead Association Sixteen hundred and 00/100 Dollars ($1,600.00) paid up stock as security for a loan' to Mrs. Marie Messina Quarella.”

’■ Judgment was prayed against Mrs. Quarella for the amount due under the note sued on, and against OHanlon in foreclosure of the pledge. To this petition, an exception of no cause of action was filed by O’Hanlon, which was maintained, and the suit as to O’Hanlon dismissed.

Thereafter, on August 4, 1930, O’Hanlon brought the present suit against the Phoenix Building & Homestead Association alleging that the homestead was in possession of a certain certificate No. 16,071 calling for sixteen shares of its capital stock which the homestead arbitrarily declined to surrender to him, and prayed that he be declared the qwner of the stock, and that the homestead be ordered to deliver same to him.

The homestead answered setting up its right to retain the stock under a pledge, and setting up in addition to the agreement of February 10, 1927, relied on in its suit against O’Hanlon and Mrs. Quarella, the following agreement of October 5, 1929:

“You are hereby authorized to have your Notary prepare the necessary Act of Assumption allowing the Messrs. R. and S: Oavevich to assume the loan which you have made to Mrs. Mamie Messina Quarella, on property known as: 936-39 St. Roch Avenue, on which loan I have Sixteen Hundred Dollars of Full Paid Stock pledged as additional collateral, and agree to allow this stock to 'So remain pledged against the loan that is being assumed by the Messrs.' Oavevich, under all the terms and conditions agreed on when the stock was pledged for account of the loan made Mrs. Mamie Messina Quarella.”

It asked for judgment rejecting plaintiffs’ demand, and for recognition of its right of pledge upon the stock demanded by plaintiff. Plaintiff .filed a plea of res judicata based upon the dismissal of the former suit.

The plea of res judicata was overruled, and the pledge of the homestead recognized. Plaintiff has appealed.

Article 2286 of the Civil Code reads as follows:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between- the same parties, and formed by them against each other in the same quality.”

The homestead company in its suit against Mrs. Quarella and O’Hanlqn relied upon the agreement of January 20, 1927, to the effect that O’Hanlon agreed to deposit with it “Sixteen hundred and 00/100 Dollars ($1,600.00) paid up stock as security for loan to Mrs. Marie Messina Quarella.” There was no allegation in that suit that O’Hanlon had deposited the stock, consequently the petition was fatally defective in that regard, since delivery is essential to constitute a pledge. In re» Pleasant Hill Lumber Company, 126 La. 743, 52 So. 1010. The exception of no cause of action addressed to the petition in that case was properly maintained.

In the present suit, in addition to the writing of January 20, 1927, the defendant sets up another instrument under date of October 3, 1929, signed by O’Hanlon, which admittedly evidences a complete pledge of the stock in question. Plaintiff objects to a consideration of this second agreement upon the ground that defendant’s failure to plead it in the former suit precludes its consideration here, citing Samuels v. Parsons, 146 La. 262, 83 So. 548, 551, to the effect that “all the issues urged, or which might have been urged, as defenses necessarily arising in a suit, are concluded by the judgment.” Plaintiff’s contention would be correct if the petition had fully set forth the merits of the claim so that a judgment therein would be decisive of the issue presented. But a judgment maintaining an exception of no cause of action because of insufficiency of allegation, and not going to the merits” of the controversy, cannot form the basis of a plea of res judicata. Interdiction of Giacona, 158 La. 148, 103 So. 721; Succession of Herber, 119 La. 1064, 44 So. 888; Ducros v. St. Bernard Cypress Co., 164 La. 787, 114 So. 654; Plantiazo v. Snell, 3 La. App. 590.

The plaintiff’s case is pitched solely upon the exception of res judicata which we, like the trial judge, find to be inapplicable here. There being no defenses on the merits, the judgment appealed from, for the reasons herein assigned, is af firmed.


author: WESTERPIELD, J.

text:
    No. 13,673
    Orleans
    SONTHEIMER v. LITTLEJOHN
    (October 19, 1931. Opinion and Decree.)

      Herbert S. Weil and Gordon Boswell, of New Orleans, attorneys for plaintiff and appellant, and defendant, appellee, in reconvention.
    John May, of New Orleans, attorney for defendant and appellee and plaintiff, appellant, in reconvention.
   WESTERPIELD, J.

Plaintiff, Sontheimer, brings this suit for $110, the damage alleged" to have been sustained by his automobile as the result of a collision with the automobile of the defendant, Miss Cynthia P. Littlejohn. Miss Littlejohn reconvenes and claims $104 as damage to her automobile.

The trial court, believing the drivers of both vehicles at fault, dismissed both the main and the reconventional demands. Both parties have. appealed.

Miss Littlejohn, at the time of the accident, was driving her. car in Dufossat street across St. Charles avenue and towards Lake Pontchartrain. She had crossed the riverside driveway of St. Charles avenue, and upon reaching the neutral ground of that thoroughfare, looked in the direction of approaching traffic, and, according to her statement, saw the plaintiff, Sontheimer, one block or 300 feet away. Believing that she could cross in safety, she proceeded into the lakeside driveway, where, after having gone some 15 feet, she was struck in the side by plaintiff’s automobile with such force as to turn her car completely around, cause it to mount the curbing of the sidewalk on Dufossat street, and to come to rest some 75 feet distant from the intersection on the lawn of a private residence situated on that corner.

Miss Littlejohn failed to blow her horn before entering the roadway, and in consequence is charged with a violation of article 1, section 7, subsection (d), Of the traffic ordinance, to the effect that vehicles crossing neutral grounds with street car lines shall have the right of way to complete the crossing, “provided they shall come to a full stop when about to leave the neutral ground and enter the roadway, shall signal with their horns and give an opportunity for approaching vehicles in the roadway to come to a stop.”

Miss Littlejohn, who stated that she was familiar with the traffic ordinance in this respect, explains her failure to sound her horn upon the ground that plaintiff was so far away that there was no necessity to signal, as she had every reason to believe that she could cross in safety. She charges Sontheimer with responsibility for the accident because she says he was driving very fast.

It appears to us that Miss Littlejohn is mistaken, for it is extremely improbable that Sontheimer would or could have driven 300 feet while she was going only 15 feet into the roadway, and it is our opinion that at the time the Littlejohn car started from the neutral ground that Sontheimer was much nearer the intersection. In any event, Miss Littlejohn saw the Sontheimer car, and, even though it were a block away, she should have kept it under observation and should not have entered the roadway without signalling with her horn and giving Sontheimer an opportunity to bring his car to a stop. The faster the Sontheimer car was going the more necessity there was for caution. Stout v. Lewis, 11 La. App. 503, 123 So. 346; Gaspard v. Malochee, 16 La. App. 527, 133 So. 409, 411; Bacon v. New Orleans Public Service, ____ La. App. _____, 137 So. 213, this day decided.

Turning now to a consideration of the manner in which the Sontheimer car was operated, we find that he also was guilty of negligence which was a contributing cause of the accident because of his excessive speed. His statement to the effect that he was driving only 20 miles per hour is unconvincing, in view of the violence of the impact. Denham et al. v. Taylor et al., 15 La. App. 545, 131 So. 614.

The authorities relied on by counsel for Sontheimer, Norwich Union v. Cohen, 1 La. App. 512; Belden v. Roberts, 3 La. App. 338; Trowbridge v. Rackle, 3 La. App. 369, are not in point. See Gaspard v. Malochee, supra.

Our conclusion is that the accident was due to the joint and concurrent negligence of both parties, and that consequently the judgment appealed from is correct.

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


author: HIGGINS, J.

text:
    No. 13,901
    Orleans
    RICHARD v. ROQUEVERT
    (November 3, 1931. Opinion and Decree.)
    Sidney F. Gautier, Jno. B. Fisher and Eraste Vidrine, of New Orleans, attorneys for plaintiff, appellant.
    • Spearing & McClendon, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit by a guest to recover damages for personal injuries alleged to have been sustained on October 24, 1930, at 11:30 a. m. when the automobile in which he was riding on the public highway about nineteen miles from Baton Rouge ran into the side of a bridge and turned over several times down an embankment, coming to rest in a canal.

Defendant filed exceptions of no right or cause of action which were sustained by the judge of the lower court, and. plaintiff has appealed.

The pertinent allegations of the petition are as follows:

“2. That on or about the 24th day of ^the ,month of October, 1930, it became nec-' essary for petitioner to go to Baton Rouge on legal business for Mr. John Paul Vasquez, who was to accompany petitioner there.
“3. That the question, whether petitioner and Mr. . Vasquez would go to ’ Baton Itouge by railroad or by automobile, was disposed of by Mr. Vasquez who informed petitioner that the defendant, Roquevert, would drive petitioner as. a guest to Baton Rouge, La., in company with him.
“4. That Thursday evening, October the 23rd, 1930, 'Mi-. Vasquez, in company with the defendant, earled at petitioner’s home, to inform petitioner that the defendant would take us to Baton Rouge the next morning between ten and eleven o’clock.
“5. Answering my question, the defendant stated that his automobile, a Chevrolet Roadster, was in good -condition, and he.was quite familiar with driving an automobile on gravel roads.
“6. October 24th, 1930, about eleven thirty o’clock A. M-., petitioner, Mr. Vasquez and Mr. Roquevert left for Baton Rouge; that when about eighteen or nineteen miles-from Baton Rouge, on the Hammond Highway, a gravel road, we came upon a road machine, then engaged in repairing the gravel road; that it was necessary, so as .to ,avoid the- road machine, for defendant, who was at the steering wheel, to drive from the right to the left of the road..
“7. After having passed the road machine, say for a mile or more and while approaching a highway bridge at a speed of about 35 miles an hour, the defendant remarked that he would move to the right, and suiting his actions to his words, the defendant negligently and carelessly steered his car. to the right, too precipitatedly as. a result of which the front wheels of his car hit a 'loose gravel ridge in said highway; that, thereupon, defendant lost complete control of his automobile, negligently let go the steering wheel, the car -all the while zigzagging violently, first to the right and then to the left of the r.oad, all the while taking on more speed, due to defendant putting on the gas, instead of applying the brakes.
“8. That almost before petitioner could realize in what terrible predicament we were, the said automobile crashed with "terrific violence into the left' apron and end of the bridge, completely catapulted down an incline on the left side of the bridge, rolled over three or four times' down the embankment, landing in a creek, some 60 feet beyond, in 3 or 4 feet of water and mud, completely demolishing and wrecking said automobile.
“9. That the said accident was due solely to" the fault, negligence and gross carelessness, lack of knowledge- by defendant how to drive .an automobile on a gravel road, and completely losing his head and control of his car in his attempt to. drive from the left to the right of the road, and petitioner in no wise contributed to said accident.”

Defendant contends that the petition does not allege that the automobile was. 'being driven at an excessive or negligent rate of speed because under an act of the Legislature 45 miles per hour is lawful. He further contends that the charge that he drove “too precipitatedly” across the road is a mere conclusion of plaintiff and not an alleged fact tending to show negligence on his part.

There is no doubt that defendant owed plaintiff, wh.o was a guest in his car, the duty of driving carefully in order not to injure him. Centanni v. Ferrito, 7 La. App. 759; Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L. R. A. 1917F, 253.

Section 5, subds. (a) and (b) of Act No. 296 of 1928 read as follows:

“Restrictions of Speed.
“(a) Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at such speed as to endanger the life, limb or property of any person.
“(b) Subject to the provision (a) of this section and except in those instances where a lower speed is specified in this Act, it shall be prima facie lawful for the driver of a vehicle to drive at a speed not exceeding the following, but in any case when such speed would be unsafe it shall not be lawful.’’

After setting forth the respective speed limits, paragraph 8 of subdivision (b)' of section 5 provides that a speed of 45 miles per hour is permitted under all other conditions.

In the case of Hamburger v. Katz, 10 La. App. 215, 120 So. 391, 392, the allegations of negligence against the defendant were as follows: “* * * The said defendant Harry Katz being guilty of negligence in operating his automobile at a rate of speed of more than 30 miles, per hour, in loose gravel, about two feet from the edge of the steep embankment of the road at that point and in not keeping his automobile under control” — yet this court said:

“Much as we respect the views of our learned brother in his appreciation of the law, it is our opinion that the burden of explanation of this accident, in so far as it may be obscure, rested upon .defendant, under the maxim ‘res ipsa loquitur.’ An automobile, properly driven at moderate speed over the public road under the conditions obtaining in this case, would have held the road in the ordinary course of things, and the fact that the automobile driven by Katz catapulted over the embankment, and rolled over two or three times before coming to rest at the foot of the embankment, is a circumstance which, in the absence of explanation, gives rise to the presumption of negligence. A prima facie case is madei out, which can only he overcome by proof exculpating Katz.” See, also, Lawson v. Nossek, 15 La. App. 207, 130 So. 669, 670.

As we view the allegations of the petition, defendant is charged with negligence in driving his car on a - graveled • road at the rate of 35 miles per hour when approaching a highway bridge and suddenly, sharply, and quickly turning from the left to the right side of the road through a loose gravel ridge, in the highway, causing him to lose complete control of the car and" releasing" his hold on the steering wheel; accelerating the speed of .the car instead of releasing the throttle or gas and applying his ..brakes,, and thereby causing the car to zigzag out of control, crash into the left apron on the end of the bridge, and roll, over three or four times1 down an embankment and -into a -creek.- It is- our opinion that the petition clearly charges defendant with negligence in' operating his car at an excessive rate of speed under the .circumstances and in not using caution and care by sloping down when approaching a dangerous, portion of the highway, and in turning too sharply at such a point.

We conclude that the allegations of the petition do set forth a cause of action, and for the reasons assigned the judgment appealed from is annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that the exceptions of no right or cause of action be, and the same are hereby, overruled, and the case remanded to the lower court for further, proceedings according to law.


text:
    No. 13,845
    Orleans
    COSEY v. SCOTT
    (November 3, 1931. Opinion and Decree.)
    F. Carter Johnson, of New Orleans, attorney for plaintiff, appellant.
    Walter M. Barnett, Jr., of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

Mrs. Elizabeth Cosey alleges that she was a tenant in the premises No. 2612 Belmar Place, owned by the defendant, and that on August 20, 1928, while descending the steps leading from the front porch, they gave way on account of their rotten condition and she fell, sustaining an injury to her foot, ankle and leg, necessitating medical attention and confinement to her home in bed for two months, and the application. of a plaster cast for the same period of time. She claims $2,000 damages for the paip and suffering and permanent injury tq her ankle. Defendant admits that he was the owner of the property and that plaintiff was a tenant therein, but denies that the steps were in a. decayed or weakened condition and that the plaintiff sustained any accident or injury.

There was judgment in favor of defendant dismissing the suit and plaintiff has appealed.

The case presents solely a question of fact. Plaintiff and one Charlie Harris, a carpenter, testified that on August 20, 1928, about 9:00 o’clock in the morning, plaintiff, while walking down the front step of the rented premises, fell due to the fact that the support of the step gave way on account of its decayed' condition; that in falling plaintiff’s leg became engaged in the boards of the step and that it was necessary for Harris tq lift her and assist her into the house. Plaintiff and her husband (who did not witness the accident) testified that she was confined to the house and her bed, except for the times that she went to the doctor’s office with his assistance. Dr. Smith testified that he treated the plaintiff on or about August 20, 1928, for a sprained ankle and applied a plaster cast; that he treated her for about 25 days and that she did not return for further attention.

The defendant’s evidence as to the condition of the steps in question consisted of the testimony of himself, Lilly Viola Eugene, a woman who lived in half the house with plaintiff, Donel Castain, a contractor who had built a garage for the defendant and a residence .for the plaintiff and her husband, and Antoine Charles, a carpenter who did repair work for the defendant. All of these witnesses testified that they frequently observed the step and that it was in good condition and in a proper state of repair before and after the accident. Antoine Charles testified that he had repaired the step in January, 1928, and that he used good sound material in doing so. His testimony as to these repairs was corroborated by the defendant.

On the question of plaintiff’s physical condition, Marx Jeffer, a real estate salesman, James Malochee, secretary and manager of a building and loan association, and Donel Castain, carpenter and contractor, all witnesses for the defendant, testified that on September 20, 1928, the plaintiff went from her residence to the United Fruit Company Building, in which the building and loan association had its office, where she transacted business for about ten minutes; that she did not appear to have been under any physical disability and walked unaided and unassisted. This testimony is in flat contradiction of her own. and her husband’s testimony, that it was necessary for her to be supported on either side and that she walked with a crutch. Donel Castain and Lilly Viola Eugene, testified that they observed the plaintiff at her residence during the months of August and September, 1928'; that she was doing her own housework, washing and ironing, et cetera, and the only evidence of injury that they saw was a piece of gauze on her foot. Lilly Viola Eugene ' also testified that the plaintiff had told her that she had a blister on her foot from wearing a tight shoe and she further testified that on or about August 20, 1928, the plaintiff slipped and fell while attempting to ascend the front step, complaining that she had hurt herself; that her fall was due not to any defect in the step, but the fact that • she was not looking where she was going. Dr. William A. Love, defendant’s witness, testified that he examined plaintiff’s foot and ankle on December 23, 1930, and had an x-ray picture taken and found them to be in a normal condition. The plaintiff’s excuse for not having presented herself sooner for examination to this doctor, as requested, was that she had been ill.

The testimony of the plaintiff’s and the defendant’s witnesses is hopelessly in conflict. To accept the evidence of the plaintiff and her witnesses as true would establish a case for her, and to believe the defendant’s testimony and that of his witnesses would establish a bar or defense to plaintiff’s recovery. The case, in its last analysis, involves a matter of credibility. It appears to us that the disinterested witnesses produced by the defendant contradicted the plaintiff and her witnesses in material respects, i. e., as to the condition of the step and her. disability, which seriously affects their credibility. This must have been the conclusion reached by the trial judge, who heard and saw the witnesses and then rendered judgment dismissing the plaintiff’s suit. In any event plaintiff had the burden of proving the case by a preponderance of the evidence and we believe that she has failed to do so.

For the reasons assigned the judgment is affirmed.


text:
    No. 13,860
    Orleans
    COOPER v. DENNIS SHEEN TRANSFER, INC.
    (November 3, 1931. Opinion and Decree.)
    A. Melville Wolfson, of New Orleans, attorney for plaintiff, appellant.
    Leslie P. Beard and Alvin B. Christovich, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Tom Cooper, a laborer, received injuries on February 5, 1929, while working for his employer, Dennis Sheen Transfer, Inc.

He was - a member of a labor gang engaged in unloading creosoted telephone, posts and pilings. The facts of the accident are not in controversy and are related by counsel for Cooper as follows:

“The gang, while attempting to lift this piling, had lifted it high enough to get a truck under it. When the piling rolled off the truck, one end pinned the plaintiff, Cooper, against a box car, in such a position that the right hand of Cooper was resting against his shoulder, with the right elbow pinned against his right side, with Cooper’s body crushed against a box car. This piling weighed about 2,000 pounds.”

On the next day, February 6, 1929, Cooper was sent by defendant, or its insurer, to Dr. H. B. Gessner, by whom he was treated until March 9, 1929, on which day he was discharged as cured. During: that period of slightly more than one month he was seen on practically each second day by Dr. Gessner and treated by him for a sprained or strained back, and at no time during that period did he tell Dr. Gessner that he was. suffering from a hernia. Nor did he tell the doctor of any pain or other trouble than that located in his back.

For the period of his disability he received compensation payments, and no claim for any portion of that time is now made.

Shortly after his discharge by Dr. Gessner, Cooper, on visiting a doctor of his own selection, was found to be suffering from a right inguinal hernia, and claim is now made for compensation based on permanent total disability on the averment that the hernia was caused by or resulted from the injury of February 5th.

The trial court, finding that there was no direct or indirect connection between the accident of February 5th and the hernia of which. Cooper now complains, rendered judgment dismissing the suit, and from that judgment Cooper has appealed.

An attempt is made to show by two of Cooper’s fellow laborers that about two weeks after the accident, and while Cooper Was still under Dr. Gessner’s treatment, he was suffering from hernia. These men stated that they visited him; that they were familiar with the external appear; anee of protuberances caused by hernia, and that there can be no doubt that Cooper was at that time the victim of a large hernia, which they themselves saw; that the protuberance was. so large that' it would fill two hands cupped together.

It is admitted that at no time did Cooper tell Dr. Gessner of such a lump, nor did he complain of any pain in that locality. Explanation of Cooper’s failure in this regard is sought to be found in the theory that Cooper had a peculiar philosophy to the effect that it was¡ the doctor’s duty to discover for himself what was wrong.

This, theory cannot be accepted. It strains credulity to the breaking point for two reasons: First, because no man suffering such an injury as Cooper is said to have sustained, and with a hernia so large as that which the witnesses claim to have seen, would have visited a doctor without at once calling such a thing to his attention; and, second, because, even without his attention having been directed to it, we cannot believe that an experienced, capable physician would have overlooked such an obvious extreme abnormality. We, therefore, say without hesitation, that when Dr. Gessner discharged Cooper on March 9th, no hernia had exhibited itself. .

Of course, if it later developed as a result of the accident, the liability of the defendant would result, and since there is no doubt that a hernia did later develop, it might have been difficult for defendant to have avoided legal responsibility therefor, but for the admitted fact that on March 10th, after his ■ discharge by Dr. Gessner, Cooper sustained another injury in no way connected with his employment and, immediately thereafter, exhibited signs of intense pain and suffering. He says that on that day, as he attempted to chop some firewood for his own use, he struck himself in the side with an axe.

It seems to be well established that when a hernia occurs, immediate pain is the result, and it is highly improbable that a hernia could have been sustained on February 5th, when the first accident occurred, since at that time no pain or outward evidence of hernia was manifest at the spot at which the real hernia was afterwards discovered; whereas, after the second accident on March 10th, immediate and intense pain was suffered in the immediate locality of the hernia and, shortly thereafter, the second doctor consulted discovered that a hernia actually did exist.

It is suggested that, possibly, the hernia had been caused by the first accident and that the blow by the axe at the time of the second accident had caused strangulation of the already existing hernia, with the resulting extreme pain. This theory cannot be accepted because, as we have already said, no immediate pain in that spot was suffered on February 5th, and further because, had there been a strangulation on March 10th, it is practically certain that an emergency operation would have been advised, since all the physicians agree that the strangulation of a hernia is most serious and usually causes death, unless relieved by an operation. The evidence shows that there has never been an operation.

We believe that the accident of February 5th had no connection whatever with the ultimate hernia and that defendant is in no way responsible for the condition now complained of.

The judgment appealed from is affirmed, at the cost of appellant.


text:
    No. 13,801
    Orleans
    THEODORE v. J. G. McCRORY CO.
    (November 3, 1931. Opinion and Decree.)
    Johnston Armstrong, of New Orleans, attorney for plaintiff, appellee.
    W. H. Sellers, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a customer against the proprietor of a retail store for damages for physical injuries caused by the unsafe condition of the floor of the storehouse and resulting in plaintiff striking his foot against a splinter, which penetrated his. skin. He claims $300. The answer denies all charges of negligence, and, in the alternative, pleads contributory negligence, in that "instead of wearing the proper shoes, fully protecting his feet, he (plaintiff) was at the time alleged wearing upon his left foot a shoe on which there was a large circular hole directly under the ball of the foot. The said hole acted two-fold in causing plaintiff injury. First in that the edge around the hole acted as a sharp tool prying the piece of wood up from the flooring board and secondly the hole allowed the sliver of wood to pierce plaintiff’s right foot.”

There was judgment below in favor of plaintiff in the sum of $150, and defendant has appealed.

Plaintiff’s evidence consists of his own testimony to the effect that he was a customer in defendant’s store, and that, in walking out after making his purchases, he struck his foot on a splinter about the size of a match; that he stumbled and fell and was taken to a doctor, where two small incisions were made and the splinter removed; that he was more or less • incapacitated for several weeks, and feared tetanus infection, but finally completely recovered. He is corroborated by the doctor who treated him and by an individual who saw him 'fall. Defendant offered no proof whatever in support of the defense made in his answer, and, in this court, in argument and in brief, relies solely upon the contention that it was necessary for plaintiff to have alleged and proven prior knowledge on the part of defendant of the defective condition of the floor. "We have been referred to no authority which would apply to the situation presented by this case, and we know of none. It is very certain, having been the subject of repeated adjudication, that a store proprietor must afford his patrons a safe place in which to trade with him, and, under the facts of this case, he must be presumed to know the premises were dangerous, for a wooden floor which has so far decayed as to split up in fragments is manifestly unsafe. There is no showing that plaintiff saw the splinter before walking on it, and, as has been said, there is no testimony on the part of defendant or anybody else giving any explanation Whatever of the cause of plaintiff’s accident, or any reason for the presence of the splintered flooring.

Under the circumstances, we believe that defendant is liable, and are also of the opinion that the amount allowed below is correct.

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


text:
    No. 13,807
    Orleans
    CROCHET v. FAUST ET AL.
    (October 19, 1931. Opinion and Decree.)
    (November 3, 1931. Rehearing Refused.)
    Ed. J. de Verges and Lubin F. Laurent, of New Orleans, attorneys for plaintiff, appellee.
    Legier, McEnerny & Waguespack, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

Plaintiff, a contractor, claims from Mr. and Mrs. Faust, defendants, $770.50, ¡vhich lie alleges is the balance due him for labor and material furnished in making alterations and repairs to certain buildings belonging to Mrs. Faust. The contract stipulated for a total payment of $2,500.

During the course of the work certain extras were ordered and certain other work was done by plaintiff, and the controversy now before us results from a disagreement over certain items which plaintiff contends should" be paid for as extras, but which, according to defendants, should not have been charged for because of the fact that those items ' were' required to be done solely because of defective work originally done by plaintiff.

The district court rendered judgment in plaintiff’s favor for $593 and ordered the cancellation of the recordation of the lien.

The record is voluminous, and we have found it extremely difficult to analyze the detailed contentions of the parties.

So far as Mr. Faust is concerned, we are well convinced, as was our brother below, that he was • not a ■ party to the contract and incurred no responsibility in connection therewith.

While the dispute was in progress, the parties presented to Mr. Fromherz, an architect, their various contentions, and an accounting was at that time prepared, which showed that the total work for which at that time plaintiff claimed payment amounted to $3,136.80, $2,500 of which represented the original contract price and $636.80 of which represented the extras, for which he was then claiming payment. There were two items totaling $57 for which Mrs. Faust should have been allowed credit, so that the total amount due plaintiff for the whole work was. $3,-079.80. During the progress of the work defendant paid to plaintiff on account and plaintiff accepted $2,631.03. If this amount be deducted from the total amount due, we find that there was a balance to which plaintiff was entitled amounting to $448.77.

Some time before this suit was filed, defendant sent to plaintiff check for $475, on the back of which she had written the following words:’

' “Endorsement1 constitutes receipt for all 0 work done at premises Nos. 5900 and 5902 Prytania Street as per contract dated Jan. 16, 1928 between A. P. Crochet and Marie E. Faust.”

The check was received by Crochet, but shortly thereafter he notified defendants' that he would not accept it in full settlement and thereafter he filed this suit, retaining the check in his possession. Since defendants had informally tendered to. plaintiff more than the amount to which he was entitled, they were not required by law to do the vain thing of making a formal tender. Plaintiff’s refusal to indorse and deposit the check and his notification to them that he would not accept the amount relieved them of the necessity of doing so, especially since he retained the check in his possession. Since, then, defendants have at all times been willing to pay even more than the amount to which plaintiff is entitled, it follows that they should not be required to pay the costs of the suit.

The conclusion which we have reached makes it unnecessary that we consider the technical defense of estoppel relied upon to some extent by defendants, which estoppel they claim results from the fact that plaintiff retained'-'in' his possession the check which was tendered in full settlement. We also feel that the pretended lien was not properly ■ recorded and that since the amount claimed is not due, and since defendant, Mrs. Faust, has at all times, been .willing, to pay, at least, the correct amount due, the lien should be canceled at the cost of plaintiff.

Since defendant admitted an indebtedness of $475, we think the judgment should be for that amount.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is amended by reducing the amount thereof to $475, and, as thus amended, it is affirmed, all costs to be paid by plaintiff.


text:
    No. 13,755
    Orleans
    REIMANN CONSTRUCTION CO. v. HEINZ
    (November 3, 1931. Opinion and Decree.)
    Daniel Wendling, of New Orleans, attorney for plaintiff, appellee.
    Sidney Gautier, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff, a general contracting company, having decided to bid for the contract to do certain reconstruction work on the eleventh and twelfth floors of the Masonic Temple, a large building in this city, submitted through its president, G. Emile Reimann, to defendant, Charles A. Heinz, a plumber, the plans for the said work, to the end that the said Heinz might estimate the cost of doing the plumbing work included in and required by the said plans.

Thereafter, being of the opinion that the said Heinz had offered to do the plumbing work for $1,345, and having estimated the cost of the remainder of the contemplated work, the said Reimann, on behalf of his corporation, offered to do the entire job for $5,554, and the said offer was accepted.

Very shortly thereafter, since the contract required substantial completion within 28 days, the said Reimann Company called upon Heinz to commence and rush to completion the plumbing work. On receiving this notice, Heinz sent to the Reimann Company, by special delivery, a letter reading as follows:

‘T regret to inform you I will not be able to accept plumbing job in the Masonic Temple as I madei a serious error in addition, I failed to carry the one in the first column and the original proposal should have been $1,975.00.”

The Reimann Company answered the said letter in writing by insisting that Heinz commence work within twenty-four hours and by stating that in default of commencement of the said work, the next lowest plumbing bid would be accepted and that Heinz would be charged with the additional cost,

Heinz did not commence the work; the next lowest bidder was given the plumbing subcontract for the sum of $1,542; and the object of this suit is the recovery by the Reimann Company from Heinz of the said loss, to-wit, the sum of $197 With interest, etc.

■ The trial court rendered judgment as prayed for and defendant has appealed.

The jurisdiction of the trial court is questioned, and it is argued that, inasmuch as the determination of this suit depends upon the question of whether there was or was. not a contract for the payment of $1,345, that figure fixes the jurisdiction and that the city court had no authority to hear the matter.

It is true that the question of whether there was or was not a contract is incidentally involved, but the only matter in dispute is the claim for $197, and, as has been held by our Supreme Court in Villemeur v. Woodward, 171 La. 831, 132 So. 361, the fact that a contract, itself, may be incidentally involved, does not fix- the jurisdiction in accordance with the amount of the contract if the only matter really in dispute is a different sum.

Heinz admits, that he stated to Reimann, before the general contract was entered into, that the plumbing work could be done for $1,345, but claims that he made no formal offer or bid to do the work at that price and that it was well understood between himself and Reimann that that figure was merely mentioned informally and verbally as -the probable cost, and that it was intended that he should make a more careful estimate and that the subcontract should later be reduced to writing and should be based, not on the verbal estimate, but on the figure which a more careful study should show to be correct.

Reimann, on the other hand, insists that it was not contemplated that the contract should be reduced to writing or that there should be any revision thereof; that Heinz well knew that when he quoted the price of . $1,345 that figure would be used by the Reimann Company in preparing its bid for the whole reconstruction work, and that it was quite customary to make verbal contracts with Heinz for plumbing work.

It is true, of course, that if parties, in contemplation of making a written contract, agree on some of the terms thereof, but intend later to settle other remaining points and to then execute a written evidence of their agreement or if parties, having agreed verbally on all points, further agree that no contract shall result until the total understanding is reduced to writing and signed, then the verbal agreements are not binding upon either, since it is the intention of both that the document to be later executed shall evidence the whole contract. Laroussini v. Werlein, 52 La. Ann. 424, 27 So. 89, 78 Am. St. Rep. 350.

But it is also well settled that, if all terms and conditions are agreed to and it is later suggested that the agreement be reduced to writing so that the contract will be less mutable and more easily proven, then the verbal contract is entirely binding, even though the written contract may not be later executed. Carlin v. Harding, 10 La. 225.

Here, the evidence as to whether the contract was complete is not. harmonious. One witness testified each way, but, we find ■that the terms of the plumbing contract, with the exception of the price, were entirely included in the main contract and that the only thing left to be agreed upon between the parties was the price, and we feel that, since the Reimann Company, before making its bid, called upon Heinz for his estimate for the plumbing subcontract, it would not thereafter have submitted the main bid without having obtained moi;e than a preliminary guess from Heinz as. to what his part of the work would cost.

We believe that the evidence sustains this view, and furthermore the trial judge who saw and heard both witnesses seems to have come to this conclusion.

The principle involved in this case is similar to that which this court considered in the matter of Schorr v. Nosacka, 16 La. App. 20, 132 So. 524, in which it was held that a subcontractor who, through carelessness or otherwise, makes a mistake in his bid, is liable to the general contractor for such loss as the general contractor may sustain by reason of having to let the work to another subcontractor at a higher price.

The judgment appealed from is affirmed.


author: DUNBAR, J. ad hoc.

text:
    No. 13,814
    Orleans
    BRENT v. UNION INDEMNITY CO.
    (July 1, 1931. Opinion and Decree.)
    (October 19, 1931. Rehearing Refused.)
    (November 30, 1931. Writ of Certiorari and Review Refused by Supreme Court.)

      Edward Rightor and William H. Sellers of New Orleans, attorneys for plaintiff, appellant.
    J. C. Henriques, Prank T. Doyle and Harry M. Mayo, of. New Orleans, attorneys for defendant, appellee.
   DUNBAR, J. ad hoc.

This is a suit by William C. Brent against the Union Indemnity Company, as insurer of plaintiff’s employer, for compensation for permanent total disability as a result of an accident that occurred July 31, 1929, admittedly within the scope of plaintiff’s employment.

Defendant paid plaintiff compensation from the date of the accident until approximately October, 1930, when further ■ payments were refused on the ground that the accident was not the proximate and legal cause of the condition from which the plaintiff was then suffering, hut that the condition was due to the normal and usual development and was the result of a pre-existing disease. The plaintiff claims compensation for permanent total disability for a period of 400 weeks, subject to a credit for compensation paid.

Judgment was rendered against the plaintiff, and he has appealed.

Plaintiff was employed as a carpenter by Caldwell Brothers and Bond Brothers, contractors, in the erection of the new Municipal Auditorium. On July 31, 1929, at about 9:30 p. m., while plaintiff was working upon a scaffold, a cross member supporting a piece of planking upon which he was standing broke in half, and plaintiff was precipitated towards the ground. In falling plaintiff struck another cross member about eight or ten feet below, and then fell to the ground, a distance of another two feet. As a result of the fall, plaintiff fractured the fifth and sixth ribs on the left side posteriorly. He remained at work after the accident during the rest of the night, and the next day, on account of pain resulting from the fall, he was sent .to the company’s physician for treatment. Subsequently, plaintiff called in his own physician, Dr. Cole, who strapped him and treated him for the fracture of the ribs. Between eight and nine days after the accident, plaintiff discovered a tumor or mass forming in his upper abdomen. It later developed that this tumor or mass formation, accompanied by pain, resulted from the beginning of an acute condition or crisis due to hydropyonephrosis with stone; that is to say, a badly diseased kidney of long standing and the presence of a kidney stone. It became necessary to operate on plaintiff on December 18, 1929, and his kidney, which was badly diseased and which contained a large kidney stone, was removed, producing the total disability alleged.

The contention of counsel for plaintiff is that this stone which they claim was in the pelvis of the kidney where stones usually form, was, as a result of the fall, firstly, either dislodged from the wall of the pelvis, or, secondly, if unattached, was caused as a result of the sudden jolting which the kidney received in the fall, so as to become lodged in the head of the ureter where it joins the kidney at the pelvis, and as a result the secretion of urine formed the mass which plaintiff noticed, and this mass of urine diseased the kidney and necessitated its immediate removal by an operation.

Defendant’s contention is that the accident and resulting trauma had nothing to do with the formation of the kidney stone or the diseased condition of the kidney, and that on account of the unusually large size of the kidney stone which was later removed, it was clear that the disease had existed and the stone had been forming for a long period prior to the accident, and that the later development of the tumor and acute condition necessitating an operation and the removal of the kidney and stone was a development normal and natural in the light of medical science and experience in connection with such diseases, and that the acute condition of, the kidney would have resulted and the necessity for the operation would have arisen in the same way and at the same time in the ordinary course of events.

It is admitted that the kidney disease and kidney stone existed long prior to the accident, and the only issue presented is one of causation, namely, whether or not the trauma accelerated the diseased condition and caused a “flare-up” necessitating an immediate operation before the normal development of the disease would have resulted in such a crisis and necessity for an operation.

Only questions of fact are involved in the case, and the record consists primarily of the testimony of the expert witnesses called by the plaintiff and defendant. The expert testimony deals with medical and scientific facts, and a discussion of the symptoms, inferences and conjectures with reference to the problem of causation involved in this case, which is peculiarly and wholly within the field of medical science.

Counsel for plaintiff in their brief argue with considerable emphasis that the conclusions and opinions of some of the experts for defendant were based on an erroneous assumption as to the fact in relation to the period of time after the operation within which the tumor and pain in the abdomen of plaintiff appeared for the first time. Counsel for plaintiff contend, in this connection, that the tumor as well as the pain, was discovered and complained of by plaintiff within four or five days after the accident, and not eight or nine days after the accident, which fact was assumed in connection with the reasoning and opinions of some of the experts. This difference in time is emphasized as important by counsel for plaintiff, because one of the reasons given by the experts for their opinion that there was no connection between the accident and the beginning of the acute condition necessitating the operation, was that if the fall and resulting tumor had injured the kidney, causing the “flare-up” and crisis in plaintiff’s diseased kidney condition, there would have been immediate- symptoms of pain and swelling in the abdomen within 24 to 48 hours after the accident, and, according to one expert, “within two or three days at the most.” Counsel for plaintiff argue that according to Dr. Cole’s testimony, the tumor and pain in plaintiff’s side were complained of by plaintiff and discovered four or five days after the accident, and that the expert testimony, therefore, in the light of this correction, would tend to support plaintiff’s theory of the case. The record, however, in this connection shows that Mr. Brent, the plaintiff, was asked how long it was after the accident when he first noticed a pain or a lump in his side, .which indicated the beginning of the condition, and his reply was: “I am sure it was about between eight and nine days.” Although on one occasion Dr. Cole did testify, as counsel for plaintiff pointed out, that the tumor or lump and pain indicating the beginning of the acute condition were discovered four or five days after the accident (which was inconsistent with plaintiff’s testimony), he later corrected this statement and corroborated plaintiff’s testimony when he was questioned by the court on this point, and plaintiff’s testimony was called to his attention. In the light of the testimony taken as a whole, therefore, it seems to us reasonable to accept as a fact that the tumor and pain were not complained of or noticed until between eight and nine days after the accident, which is the fact assumed, among others, by the experts in arriving .at their conclusion.

The three physicians who -testified as experts for the defendant, Drs. Martin, Mattes and Menendez, one of whom specialized in urology, or genito-urinary diseases, stated very positively and unequivocally that after studying the history and facts of the case from a medical standpoint, there was no connection'of any kind between the accident and the tumor and acute condition. of the diseased kidney resulting in the operation. It is true ’ that these three physicians, when pressed by counsel for plaintiff in cross-examination, admitted that plaintiff’s theory of the case was possible. At the same time,- however, they made it very clear that in their opinion the contention1 or theory of plaintiff that the accident brought on the crisis and necessity for the operation was neither probable nor plausible, and merely a remote possibility.

We are very much impressed with the fact that Dr. Gordon, the specialist in urology, or genito-urinary diseases, who was called by the plaintiff as an expert, did not state that in his opinion the accident and trauma caused the “flare-up” and beginning of an acute condition necessitating an immediate operation before it would have developed in the normal course of the disease, nor did he state that it was even probable that the accident or trauma was the cause for the necessity of an immediate or earlier crisis and operation. On the contrary, Dr. Gordon, in this connection, testified only that it was possible the accident caused the crisis, but would not say it was probable under the circumstances of the case.

Dr. Menville, an expert in the field of radiology, was also called by plaintiff as an expert witness on the questions of medicine involved in the case. Dr. Menville voluntarily stated on two occasions that he had not seen enough cases of the type under consideration to enable him to answer accurately some of the questions propounded to him, and although his testimony on the whole favors the plaintiff’s theory of the case, it is conservative, cautious and qualified in relation to the problem of causation. '

The testimony of plaintiff’s physician, Dr. Gole, who performed the operation and removed plaintiff’s kidney, is rather positive in support of plaintiff’s theory of causation. Dr. Cole, at one point in his testimony, stated that in his opinion, “the fall evidently excited the condition, stirred it up and possibly started to dislodge that stone and possibly did some damage to the pelvis of the kidney, and possibly started this condition, this acute condition, this ‘flare-up’ in other words.” Dr. Cole seemed to consider as one of the most important reasons justifying his conclusions in this regard the fact that the plaintiff had not suffered from or been conscious of his diseased condition prior to the accident. The weight of expert testimony, however, in this connection seemed to be that there was nothing unusual about plaintiff’s ignorance of his condition and the fact that he did not suffer from the condition prior to the time ot the crisis and appearance of the tumor after the accident. It seems that the experts agree that a diseased kidney condition, similar to plaintiff’s, and the development of a kidney stone may go on for a considerable period of time -without any pain or distinct symptoms, and then in the ordinary and normal course and development of the disease, a crisis is reached, swelling appears accompanied by pain and an acute condition arises which results in the necessity for an operation.

An analysis in detail of the testimony with reference to the discussion of the various symptoms, medical facts and inferences involved in the question of causation, would serve no useful purpose. On the whole, the weight of expert opinion seems to be that although possible, it was not probable, or a reasonable and natural inference from all of the facts and circumstances, that the accident accelerated the previously existing kidney disease of the plaintiff, and brought on an earlier operation than would have normally been the case.

It is, of course, well settled, in Louisiana at least, since the decision of the Supreme Court in the case of Behan v. John B. Honor Co., 143 La. 348, 78 So. 589, 590, L. R. A. 1918F, 862, “that the fact that a person was already afflicted with a dormant disease that might some day produce physical disability, is no reason why he should not be allowed damages or compensation for a personal injury that causes the disease to become active or virulent and superinduces physical disability.” See, also, Sutton v. New Orleans Public. Service, Inc., 14 La. App. 684, 130 So. 859. The same rule has been announced in other jurisdictions. See Hilliard v. Chicago City R. Co., 163 Ill. App. 282; Larson v. Boston Elevated R. Co., 212 Mass. 262, 98 N. E. 1048.

It is equally well established, however, that the plaintiff bears the burden of proof, with reasonable certainty, that the disability was the result of the injury. Wilson v. Harris Oil Co., 3 La. App. 195; Ashcraft v. Louisiana Central Lbr. Co., 4 La. App. 112; Piske v. Brooklyn Cooperage Co., 143 La. 455, 78 So. 734.

The Louisiana Supreme Court, in Haddad v. Commercial Motor Truck Co., 150 La. 327, 346, 90 So. 666, 673, has gone even further and said that evidence of probability alone is not sufficient to establish causation with legal certainty. In this connection the court said:

“Upon the whole, and after a careful reconsideration of the case, we have concluded that plaintiff has not shown that the death of her husband was from an accident arising out of his employment. And that on the contrary, the defendant has shown that the death was in all probability from the tumor having ruptured in due course of its development.
“Even if the theory of plaintiff’s case— that the man had fallen out of the .truck as the result of some accident and had come to his death by being pressed against the ditch embankment — were probable, this would not suffice; for the matter would still be involved in grave doubt, so much so that the court could not know with any sort of certainty that the' defendant was liable. A case must be made out to a legal certainty; this is elementary, and is as true in the case of a suit under the Workmen’s Compensation Act, like the present, as in any other. Piske v. Brooklyn Cooperage Co., 143 La. 455, 78 So. 734.”

In the present case, causation is not proved with reasonable certainty, but, on the contrary, the preponderance of the testimony, as we have already pointed out, is to the effect that the accident or trauma was a possible, but not the probable cause of the disability, and as we have seen, the Louisiana Supreme Court has indicated that even evidence of probable causation would be insufficient to sustain •the burden of proof required of a plaintiff in cases of this character.

As laymen, and without the benefit of experience and learning in medical science and history, we must admit that plaintiff’s theory as to causation is tempting and persuasive, in view of the apparently logical sequence of events in this case. The question of causation, however, in this case, is a problem peculiarly within the domain of medical science and the opinion of trained experts, Weller et al. v. Turnerized Roofing Co. et al., 14 La. App. 150, 129 So. 443, and we must be governed largely by the conclusions and opinions of these experts based on the circumstances and medical history of the case, and this expert opinion, when analyzed and considered as a whole, as we have heretofore pointed out, does not establish plaintiff’s theofy of causation with reasonable certainty.

The trial court heard the experts testify and denied recovery evidently upon the same ground upon which we base our conclusions, and as was so aptly said by Judge Westerfield in Landry v. Phoenix Utility Co., 14 La. App. 334, 124 So. 623, 625, a case in which somewhat similar problems were involved:

“If we and our brother below have ■ erred, the responsibility must rest with the medical profession and not the judiciary.”

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

WESTERFIELD, X, and MORENO, X ad hoc, participating.