text:
    No. -
    First Circuit
    WERLEIN v. DUCHAMP
    (February 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sales—-Par. 152, 229.
    The purchaser of a player-piano cannot resist payment of the balance due on account of it being out of order, after paying on it five years and admitting in a letter that the piano was out of order because it remained idle too long.
    Appeal from the Parish of St. Martin. Hon. James D. Simon, Judge.
    Action by Philip Werlein, Ltd., against Joseph H. Duchamp.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Martin & Martin, of St. Martinville, attorneys for plaintiff, appellee.
    Voorheis &• Labbe, of St. Martinville, attorneys for defendant, appellant.
   ELLIOTT, J.

Action on contract to compel payment of a player-piano.

Philip Werlein brought suit against Joseph H. Duchamp to compel payment of one hundred and seventy-four dollars and fourteen cents, with interest and attorney’s fees, alleged to be the balance due on account of a Foster player-piano, and alleging a vendor’s privilege on the piano, obtained a writ of sequestration under which it was seized; but the writ was dissolved on account of an insufficient verification >f the petition.

The defendant resists payment of the balance claimed, alleging that the piano was defective. That the player part was heavy and stiff from the first, and, growing worse, would not reproduce the selection on the roll. That to operate it required so much labor that but little pleasure was obtained from the instrument. That defendant, complained to plaintiff’s agents of the defect, which they as often promised to repair, but nothing was done.

That in selling the piano to defendant the plaintiff guaranteed it to be trouble-proof.

The district judge rendered judgment in favor of the plaintiff.

Defendant appealed.

The defendant 'testifies that the player part of the piano gave trouble from the start, and grew from bad to worse. That he repeatedly requested plaintiff’s agents to fix it, and they always promised, but never fixed it.

Mr. Landry, a piano tuner, apparently without interest in the result, examined the .instrument in 1922 and found it out of order. The player would not work at all until he worked on it. He says that the valves leaked and were dirty, the plates and stems corroded. He offered to fix it for $35.00, but defendant would not pay it, giving as his reasons for refusing that Werlein had promised to keep it in satisfactory repair.

The witness examined the piano again at the time of the trial in 1925, and found it in the same condition in which it was when he examined it in 1922.

He testifies that the trouble could have been caused by the lack of use, and says that a player-piano should be looked after and cleaned about once a year.

The defendant himself, in- a letter written to plaintiff, June 5, 1922, asking for time and indulgence as to payments, requests in a postscript that plaintiff have its agents, when in his vicinity, call and adjust “the player part of my piano, which has been out of order for some time, caused, I believe, by remaining idle too long”.

The price of the piano was six hundred and fifty dollars. The order for it was signed November 20, 1919, and $110.00 cash was paid for it at the time. The order is in form, a promise^ to pay $18.00 per month on or before the 20th of each month.

This suit was filed April 15, 1925, more than five years after the purchase. The evidence shows that defendant has been paying all along, in all twelve payments, which amounts in the aggregate, allowing and counting interest on the payments, to $671.78. The defendant, charging interest at the same rate on deferred payments, leaves the balance claimed in this petition. These payments were made in 1920-1921-1922-1923rl924.

Defendant gave, in 1925, pre-dated checks covering the balance due on the piano, but he' stopped payment of the checks. He did so, he says, because plaintiff did not live up to its promise to fix the piano.

It is almost inconceivable that defendant would have paid so much and at times so far apart, $180.00 being paid at one time in 1921, finally giving checks for the balance due, if he had felt that he had a just defense against the balance due on account of defects in the piano. If the piano had been defective defendant would likely have stopped paying as soon as the defect manifested itself. By continuing to pay, we conclude that defendant felt that the trouble was as stated in the postscript of Ms letter of June 5, 1922. He has not filed a brief in support of his defense in this court.

The district judge, for written reasons, rendered judgment in favor of the plaintiff as prayed for. It is our conclusion that the judgment is correct.

Judgment affirmed, defendant and appellant to pay the cost in both courts.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. —
    First Circuit
    ADLER & CO. v. MOSES, ET AL.
    (February 12, 1927. Opinion and Decree.)

      {Syllabm by the Editor)
    1. Louisiana Digest — Appeal—Par. 508; Judgment — Par. .78, 79.
    In view of Articles 543 and 546 of the Code of Practice an appeal taken before the judgment was read and signed in open court is premature and the appeal will be dismissed.
    Appeal from the Parish of St. Tammany. Hon. Prentice B. Carter, Judge.
    Action by A. Adler & Company against E. R. Moses, et al.
    There was judgment for defendant and .plaintiff appealed.
    Appeal dismissed.
    A. J. Finney, of Covington, attorney for plaintiff, appellant.
    Morgan & Simmons, of Covington, attorneys for defendant, appellee.
   LECHE, J.

Plaintiffs appeal from a judgment maintaining an exception of no cause of action as against three of the defendants.

The minutes show that such a judgment was rendered, but they do not show that it was read and signed in open court, nor do we find any written and signed judgment in the record. Every final judgment must be written, read and signed in open court. C. P. 543-546.

The appeal was taken before the judgment became final and is therefore premature. Eckhardt vs. Materne, 128 La. 1, 52 South. 172; Hanchey vs. St. Louis, I. M. & S. Ry. Co., 135 La. 352, 65 So. 487; Mitchell vs. Shreveport Creosoting Co., 123 La. 958, 49 South. 655; Hauch vs. Drew Inv. Co., 116 La. 488, 40 South. 847; State vs. Hodge, Dist. Atty. vs. Oliver, Sheriff, 132 La. 180; Franke vs. Shaw, 154 La. 509, 97 South. 793.

The appeal is therefore dismissed.


text:
    No. -
    First Circuit
    FOSTER v. T. & P. RY. CO.
    (January 7, 1927. Opinion and Decree.)
    (February 12, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal—Par. 625; Railroads — Par. 88.
    The finding of the trial court that the railroad used ordinary care to avoid the killing of live stock, notwithstanding Act 70 of 1886, which throws the burden of proof on the railroad, being clearly correct, is affirmed.
    Appeal from the Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by J. C. Foster, Jr., against Texas & Pacific Railway Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    John W. Lewis, of Opelousas, attorney for plaintiff, appellant.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff appeals from a judgment refusing his demand for one thousand and twelve and 50-100 dollars, value-of a horde and three mules killed by a train of defendant company.

The killing occurred about two o’clock in the morning of November 15, 1925, near the station of “Morrow”, a village in the parish of St. Landry. The main line of the T'exas & Pacific Railway lies along the edge of the village. The fast through ¡passenger train of the defendant company, which ran into the animals, is due at that station at 2:10 in the morning, but under its regular schedule it does not stop at Morrow. On this particular occasion it was dark, it was very foggy and raining, and it was impost iible for the locomotive engineer to see farther than about 100 feet ahead. These weather conditions are sworn to by the engineer, the fireman and four other members of the train crew, and their testimony is unimpeached. The engineer says that he only saw two heads of live stock and, at the time, they were about seventy-five feet ahead of the locomotive. He further says that, owing to the weight of the train, consisting ■ of eight coaches, and the a®eed at which he was running, it was impossible for him to have stopped in time to avoid striking these animals. The speed at which the train was being run, forty-five miles per hour, was five miles slower than permitted by the rules of the railway company.

Of course, plaintiff does not contend that a passenger train under these weather conditional should only be run at such speed as would enable the engineer, on seeing obstructions on the track, to stop in time to avoid running into them, but he • says that', on other occasions, cattle and stock had been killed about this same place and, for that reason, the engineer should have approached carefully enough to have avoided killing his mules. It sems to us that it would be unrear bnable to require a railroad company to slow down during heavy fogs and delay its trains at every point along it's line, where cattle or live stock might at some time in the past have been killed. Such a regulation would almost paralyze passenger traffic on railroads.

Both the fireman and engineer say that the weather conditions were such that' they could not see over 100 feet, ahead of the locomotive, that they saw the mules about 75 feet ahead, and the fact that neither one of them was ar*ked whether they were on the lookout for stock on the track, and that nothing was said as to whether they were or were not on the lookout, can have no bearing under existing conditions.

Plaintiff also contends that the station, agent who, before the arrival of the train, had caught a glimpse of a gray mule going and disappearing behind a box car on a side track, about 100 feet away, beyond' .¡the station, should have flagged the train and thereby have avoided any danger of killing the. animal. The agent had no reason to suppose that the mule would come up on the main track, and we do not believe that, under existing conditions, it waq incumbent upon him to have attempted to signal and stop the train. The agent saw the mule about' thirty seconds before the train went by, and the signal would have appeared too late to. enable the engineer to stop in time to avoid the accident.

The jurisprudence is that a railroad company is only required to use ordinary care to avoid killing live stock by its trains. The testimony in the record justifies the belief that the defendant did exercise ordinary care and that it has ■ cleared itself of the negligencq which the statute imputes to it in such cases.

The trial judge so found and we concur in his finding.


author: ELLIOTT, J.

text:
    No. 9470
    First Circuit
    VALLEE v. PESSON
    (February 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal—Par. 625; Bills and Notes — Par. 231, 243.
    The finding of the trial court that the preponderance of evidence showed that there was no consideration to a note, being clearly correct, is affirmed.
    2. Louisiana Digest — Bills and Notesi — Par. 44.
    In view of Article 1893 of Civil Code, a note without consideration in the hands of the payee is without effect against the maker.
    Appeal from the District Court, Parish of Vermilion. Hon. W. W. Bailey, Judge.
    Action by Louis Vallee against Mrs. Josephine Bayard Pesson.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Nugier and G-ordy, of Abbeville, attorneys for plaintiff, appellant.
    J. E. Kibbe, of Abbeville, attorney for defendant, appellee.
   ELLIOTT, J.

Suit one note alleged to have been executed by defendant in payment of advances made to her minor son.

Louis Vallee instituted suit against Mrs. Josephine Bayard Pesson, wife of E. G. Pesson, on a note for six hundred dollars, which he alleges she executed, with the authority of her husband, in payment of the amount of his advances to her son, Denis Pesson, who was engaged in farming at the time, and that plaintiff had advanced him the amount named for that purpose. The note bears date December 1, 1920. Suit was filed November 28, 1925, accompanied by supplemental allegations for an attachment on the ground that defendant had left or was about .to leave the state permanently.

The defendant, answering, denied that she was indebted to the plaintiff; alleged that the note sued on was blank at the time she signed it, on plaintiff’s representations; that it was on her (part an abandonment of her homestead rights on a tractor and some mules on account of which her husband was indebted to the plaintiff, and that he was taking a chattel mortgage on the tractor and mules from her husband at the same time. She denied that her son, Denis Pesson, was engaged in farming at that time, and denied plaintiff’s, avermnent that he had made advances to him for such a purpose as alleged in his petition. She alleged that her son had never farmed for the plaintiff, that he was only eighteen years old at the time. She denied signing a note for the purpose qf guaranteeing her son’s debts. That plaintiff did not inform her that her son owed him anything and that the note signed is blank was a personal responsibility on her part. That the did not know the amount of the note until it was placed in the hands of attorneys for collection. That her husband, E. G. Pesson, had farmed for plaintiff during the year 1920.

In the alternative, and in case it was held under the above facts that she had actually signed a note and that her signature was binding on her, she then, in that event, alleged that it was taken as a collateral to secure the indebtedness of her husband, and that plaintiff retorted to what was done in order to obligate her separate and paraphernal property for the débts of her husband, or for their community; that the note was, on that account, not binding on her.

Plaintiff’s allegations that the note sued on was executed by defendant in his favor in payment of the amount of his advances to Denis Pesson, who was engaged in farming, and to whom he had advanced for that purpose, is not in accord with the preponderance of the testimony on that Subject. It is not even sustained by his own testimony. His testimony is that the note does not evidence advances made; he says that neither the defendant nor any one of her family owed him a cent at the time the note was signed; but the amount was to be used by her son in raising a rice crop on land which her son had leased from R. J. Vallee, plaintiff’s son. About the only matter in which the plaintiff is supported in his evidence is his statement that Denis Pesson was 16 or 17 years old at the time. The defendant says that her son was 18 years old at the time. Plaintiff testifies that he wrote the note and that defendant signed in two or three days afterwards, not in his presence, but that, after writing it, he gave it to Miss Pesson (meaning, we think, Mrs. Pesson), and he presumed that it was signed at her residence. That he was not present when it was signed by E. G. Pesson. Defendant and her daughter both testify that plaintiff handed defendant a blank note in front of his store, representing to her that it' was for the purpose of waiving her homestead rights on a tractor and some mules on account of which her husband owed him, and that defendant signed it in plaintiff’s presence, sitting in her buggy in front of his store. Plaintiff asked about his dealings with E. G. Pesson, defendant’s husband, in 1920, as we interpret the testimony, supplementing a few words which appear to have been inadvertently omitted in reducing it to. writing, says that E. G. Pesson came to him and said that, in addition to the advances which the plaintiff had-made to.his wife, that his son would be in need of more money, and that he would like to open up an account with the Vallee Company for the future needs of his son, and gave the Vallee Company a chattel mortgage on a tractor for the purpose of securing advances to be made to his son. That E. G. Pesson did not owe him anything at the time plaintiff identified the act of chattel mortgage in the record marked D-I as the chattel mortgage which E. G. Pesson had executed for the purpose, and the act shows that, in addition to the mortgage on a tractor, the. mortgage included two mules, and the act states that the mortgage is for the purpose of securing an existing indebtedness of six hundred dollars due the Vallee Company by E. G. Pesson. The declarations contained in this act are not in accord with plaintiff’s testimony. Plaintiff states, as a witness, that E. G. Pesson did not owe him anything at the time the mortgage was granted; that the six hundred* dollars- which E. G. Pesson had arranged for was to be advanced to his son, Denis Pesson, to enable him to make a rice crop on land which Denis Pesson had leased from R. J. Vallee, plaintiff’s son.

The decided preponderance of the evidence is to the effect that' Denis Pesson did not make ¡any rice crop in 1920, as alleged by the plaintiff. That he never leased any land for such a purpose and never undertook anything of the kind. The evidence shows that E. G. Pesson and a man named Abshire leased land from plaintiff that year and made a rice crop, and that Denis Pesson worked in the crop as a minor member, of his father’s family. The only evidence that plaintiff adduced to show that Denis Pesson made a rice crop are some warehouse receipts for rice delivered at a warehouse. The evidence on the subject is to the effect that Denis Pesson drove the truck that hauled the rice to the warehouse, which his father and Mr. Abshire had made. That it was customary for the drivers to obtain receipts in their names to show that they had delivered the rice sent' to the warehouse. Plaintiff did not [produce on the trial any account showing advances by him or the Vallee Company to Denis Pesson for that year or at any other time, nor as advanced to anybody else. As he was dealing with a minor, who he supposed to be sixteen or seventeen years of age, it was incumbent on him to keep an account of what he had advanced to him. The preponderance of the evidence ■ is that plaintiff did not advance Denis Pesson anything as he claims in his petition and that the note sued on is without consideration. A note without consideration is in the hands of the payee, without effect against the maker. Civil Code, Art. 1893. It fact, the plaintiff has not deemed it worth while to support his demands by a brief. We find no error in the judgment appealed from. Judgment affirmed, plaintiff and appellant to pay the cost in both courts.


author: MOUTON, J.

text:
    No. -
    First Circuit
    BABINEAUX v. MILLER
    (February 12, 1927. Opinion and Decree.)

      (Syllabus ly the Editor)

    1. Louisiana Digest — Pleading—Par. 56, 71, 73; Parties — Par. 12.
    Where there are separate and conflicting demands against two or more defendants the court, upon an exception of misjoinder of defendants, must dismiss the suit against all defendants.
    Appeal from the Parish of St. Martin.» Hon. James E. Simon, Judge.
    Action by Lucien Babineaux, et al., against Virginia Miller, widow, et al.
    There was judgment for defendant and plaintiff appealed.

      Judgment affirmed.
    A. V. Pavy and W. C. Perrault, of Opelousas, attorneys for plaintiff, appellant.
    Voorheis & Labbe, of St. Martinville, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiffs, Lucien Babineaux and Mrs. Uranie Babineaux, allege that, with Freddie, Hermanee, Lucie, Madeline, Lawrence, Alfred, Emilie and Euphemon Babineaux, the children of Sherman Babineaux, a deceased brother, issue of his marriage with Virginia Miller, who survives him, they are the heirs of Alexandre Babineaux and his wife, Arthemise Leblanc, now both decased.

They allege that their deceased parents, Alexandre Babineaux and Arthemise Leblanc, bought during the existence of the community a tract of thirty-two acres of land With improvements, situated in the parish of St. Martin.

They allege that, in 1896,- at which time their father, Alexandre Babineaux, was then deceased, that their mother, Arthemise Leblanc, made a donation of these thirty-two acres of land to Sherman Babineaux, their brother, who has since died. They attack this donation on several grounds, and as having been obtained by fraudulent representations. They further aver that in furtherance of his scheme to despoil them of their rights in said land that the said Sherman Babineaux caused their mother to make him a salé of her undivided interest in the property in September,- 1908, for a pretended consideration of $600.00 cash, which was never paid, and that this sale was a pure simulation.

They further allege that their mother,' after the death of their father, who had been a Confederate soldier, was rceiving a pension which she turned over to Sherman Babineaux, and after his death gave the money she was getting as a pensioner to Virginia Miller, his surviving wife, which amounted altogether to a sum exceeding $18,000.00.

They further allege that, with Freddie, Hermanee, Lucie, Madeline, Lawrence, Alfred, Emilie and Euphemon' Babineaux, children of Sherman Babineaux, their deceased brother, they should be recognized as the forced heirs of Alexander Babineaux and Arthemise Leblanc, and as such be decreed co-owners of said land in the proportions allowed by law. They aver that the property is not divisible in kind and that it should be sold to effect a partition among the heirs. Plaintiffs pray for citation of the aforementioned children of Sherman Babineaux and of his widow, Virginia Miller, for judgment against them annulling the pretended donation and sale made by Arthemise Leblanc to Sherman Babineaux; for recognition of their co-ownership with the children of Sherman Babineaux in said land, and for judgment against Virginia Miller, widow of Sherman Babineaux, ordering her to account for all the pension money she received from Arthemise Leblanc, and for the. revenues of the property, since the death of her deceased husband, Sherman Babineaux.

The defendants filed an exception of misjoinder of defendants, which was maintained. Plaintiffs appeal.

It is clear that the heirs of Sherman Babineaux, hereinabove named, have no concern or interest, as defendants, in accounting for the pension money which their mother might have to. account for to the plaintiffs. The claim for that money is demanded against Virginia Miller, and is distinct from the action against them, as appears from the allegations of plaintiffs’ petition. It is also apparent that the interest of thec.e heirs would be to maintain the donation as against the sale, because, if maintained, they would be entitled to the sole ownership of the land, whereas, if the validity of the sale were upheld, their mother would become owner of an undivided interest as widow in community. It is obvious that there is no privity of interest between these heirs and their mother. On the contrary, their interests in this litigation are not only di-'tinct and separate, but are also, in some respects, conflicting or adverse. In such cases (parties can not be joined as co-defendants. Mavor vs. Armant, 14 La. Ann. 181; Davidson vs. Frost-Johnson Lbr. Co., 126 La. 542, 52 South. 759; Dobel vs. Delavallade, 30 La. Ann. 606; Breaux Bridge Lbr. Co. vs. Hebert, 121 La. 188, 46 South. 206.

Coumtel for defendants refers us to State vs. Breffeihl, 130 La. 912, 58 South. 763, and Durbridge vs. Crawley, 43 La. Ann. 504, 9 South. 95.

In the Forty-third Louisiana Annual the court held if the plaintiff, the Baldwin Co., sought to avail itself of demands not cumulative, it had, at least, the right to one of its demands, and “defendant’s remedy was to compel it to elect upon which demand it would continue its suit”. In that case there was a demand against one defendant, and evidently -there was no exception of misjoinder of defendants. Here, there are distinct, depárate and conflicting demands against two defendants. In a case of this character defendant is not bound to compel plaintiff to elect, and may ask the court to dismiss, and the court is even without power to discriminate in such a case by dismissing as to one party rather than another, but must dktniss as to all. Barrelli vs. Wehrli, 121 La. 542, 46 South. 620.

The Forty-fifth Louisiana Annual, cited by counsel for plaintiff, was a suit between the same persons in the same capacity, and does not govern in the instant case for the reasons above stated.


text:
    No. 709
    First Circuit
    TOLLE v. MENTZ
    (February 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Builders and Buildings — Par. 30; Evidence — Par. 53.
    The burden of proof is upon the contractor to prove that matters- not explicitly provided for by the contract, but which may be comprehended by it, is extra work not included in the contract.
    2. Louisiana Digest — Builders and Buildings — Par. 14, 18.
    Changes which the contractor made in the construction of a house not contemplated by the contract must be paid for by the contractor.
    Appeal from the District Court, Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by Albert Tolle against Henry A. Mentz.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Ellis & Ellis, of Amite, attorneys for plaintiff, appellant.

      J. J. Jackson, of Hammond, attorney for defendant, appellee.
   ELLIOTT, J.

Suit by contractor to recover for extra work and material used in erecting a dwelling hous'e and sidewalks.

The plaintiff, Albert T'olle, agreed by written contract and according to written specifications with Henry A. Mentz to build for the latter a dwelling house, furnish material and labor, for a certain price; but during the work, some changes were agreed upon and extra work undertaken. This suit is to recover on account of extra work and material not provided for in the original contract and specifications.

The plaintiff alleges that defendant is due him $1023.89 on account of extra work and materials. That a bill of $218.82, which plaintiff had furnished defendant on said account was due to. an error of fact on part of plaintiff. That there is really due him $1023.69 on account of extra work, which amount he claims; by suit.

After filing an exception of vagueness, which was overruled, defendant, answering, denies being indebted to the plaintiff. He admits that extra work was done and material furnished pursuant thereto, but that everything had been paid for and that he owed the plaintiff nothing.

Judgment was rendered in plaintiff’s favor for $218.82 and the balance of plaintiff’s demand was rejected. The plaintiff appealed.

The item which plaintiff claims under the head, “bill rendered”, $218.82, is not disputed. Defesdant, as a witness, admits, that this amount remains unpaid; he says that he held it back because plaintiff has not finished the cement sidewalk according to their agreement', and as it should have been done.

The evidence on the subject of this sidewalk shows that the workmen, in constructing it, dropped cement on it in places, making low bumps, etc. This should not have been done, and the plaintiff should clean it off and deliver the sidewalk to the defendant in the condition in which it was intended at the time the work was undertaken.

We are going to assume that plaintiff will do that and not interfere with the judgment allowing him $218.82, because of such a small matter. As for the items, $91.25 for sanding and scraping pine floor, $50.00 for tile batp in bathroom, $115.00 for full length screens in outside openings, they appear to be expressly provided for in the contract between the parties and "in the specifications of the work to be done and are not extra, but work required by the contract. Not only the above, as to the items mentioned, but the record contains a receipt in favor of the defendant, signed by the plaintiff, for $1906.56, dated September 25, 1925, in which it is stated that defendant has finally paid for all material, labor and ■construction work, and there is no recordation as to anything. This receipt ia not said to contain anything, not true, and that it is not as general as it purports to be. Defendant says that it is correct and that he has paid everything due the plaintiff except $218.82 held back as above stated. We can not hold against this receipt and the evidence of the defendant that the other items claimed by plaintiff, $300.00 on account of - painting plastered walls, $35.00 for brick and tile border on main entrance porch, $49.00 for tile border on sun iparlor, $89.00 for tile hearths and tile base at fireplaces, are not paid for. It looks from-the specifications that they may well be comprehended in the matters therein provided for; but suppose them not to be; the burden of proof is on the plaintiff and lie has not carried it. His evidence on the subject of these extra charges and extra sums due him is not as clarifying aa it might be. The defendant is positive that he does not owe them. There is an item of $75.00 claimed on account of difference between cost of cypress and pine lumber for frames and sashes. The specifications call for pine and defendant says he did not authorize any change in that respect. It appears that plaintiff made the change of his own accord; therefore, he should bear the difference. The judgment allows the plaintiff $218.82, and this amount is established; but the other part of his demand was properly rejected. Judgment affirmed, plaintiff to pay the cost in both courts.


text:
    No. -
    First Circuit
    STOER v. PEARSON
    (February 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Brokers—Par. 18.
    The owner of real estate must pay a broker’s commission if the broker secures a customer who withdraws from the deal because of misinformation given by the owner to the broker as to the date of expiration of a lease on the property.
    Appeal from the Parish of Calcasieu. Hon. Jerry Cline, Judge.
    Action by Newt B. Stoer against Mrs. Pollie Cole Pearson.
    There was judgment for . plaintiff and defendant appealed. .
    Judgment affirmed.
    Craig, Bolin & Magee, of Shreveport, attorneys for plaintiff, appellee.
    Cline & Plauché, of Lake Charles, attorneys for defendant, appellant.
   ELLIOTT, J.

Suit by real estate broker, claiming commission on sale, negotiated, but not consummated, due to a mistake on the part of the defendant as to the time during which a lease had to run.-

Mrs. Polly Cole Pearson employed Newt B. Stoer by correspondence and exchange of letters to sell certain improved real estate belonging to her, situated in the city of Shreveport. The plaintiff is a real estate broker, duly licensed and authorized to engage in that business, and in this instance he engaged to find a purchaser on a commission basis.

Mrs. Pearson states in her letters to Mr. Stoer on the subject that the property which she commissioned him to sell for $25,000.00 cash was under a lease, and more than once wrote him, stating about what time the lease had to run. It turned out that the time stated was about two years longer than was the fact. This was not intentional. The act of lease was in her hank at Lake Charles, about sixteen miles distant from her place of residence. At the time of writing she had not read the lease in about two years and, trusting to her memory as to the time it had to run, she made a mistake. The lease was not recorded. If it had been, it might be said that plaintiff should have looked at the record and that the prospective purchaser of the property must take cognizance of the time in which it had to run, by reference to the record. As it was, plaintiff was justified in accepting and acting on defendant’s statements as to the time in which it had to run and in representing that to be the case to the parties to whom he sought to sell the property.

Plaintiff found a purchaser for $25,000.00 cash, the price which defendant agreed to take, based on defendant’s statements in her letters as to the time during which the lease had to run. The prospective purchaser entered into a written contract to buy with Mr. Stoer, based on defendant’s statements as to the time during which the lease had to run. A copy of the lease was then obtained from defendant and placed before the prospective purchaser as a preliminary to the sale, and the lease disclosed to him that it had two years longer in which to run than had been represented to him by defendant and Mr. Stoer. Upon this discovery the prospective purchaser took the position that the monthly rental of $100.00 stipulated in the lease, being a low return on a $25,000.00 investment, declined to carry out the contract unless defendant would make up his estimated earning by reducing the price by $2000.00. The defendant declined to do this and the prospective purchaser then withdrew from the agreement to buy. The plaintiff claims that he has earned his commission. That his commission agreed on amounts to $875.00. That the 'sale which he negotiated did not take place, due to the fault of defendant in the matter stated and that she should bear the loss.

Mrs. Pearson contends in her answer and argument that plaintiff and his prospective purchaser should not have been guided entirely by her representations as to the period of time during \yhich the lease had to run. That her mistake was not sufficient to justify the prospective purchaser in declining to consummate the sale. That as the lease was not recorded the prospective purchaser did not have to notice it and could have bought the property free of encumbrance. We are unable to agree with defendant in that matter. The prospective purchaser was buying under a written contract with Mr. Stoer, which informed him that the property was under a lease and he was obligated to assume the lease, though her letters misinformed him as to the period of time during ■which it had to run. It is not only questionable, if he had bought, whether he would have been bound to permit the lesee to have the property at the monthly rental provided for in the lease for the full time of the life of the lease; but such a sale and purchase, if attempted, would have been a fraud on the lessee. If the lease had been cut short by a sale, as argued, the defendant might not have been able to defend herself against the demand of the lessee for damages caused by her act.

We agree with the lower court that a monthly rental of $100.00 for a $25,000.00 cash investment was a poor return and that the prospective purchaser was justified in declining to consummate the sale. The sale failed through the fault of defendant and, although unintentional, she should bear the loss, due to her lack of information about a matter as to which she should have been properly posted. She was asked several times to state the period of time during which the lease had to run and should have stated it correctly.

The judgment rendered in favor of plaintiff is correct.


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    No. —
    First Circuit
    STEWART LBR. CO. v. AMACKER
    (February 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal—Par. 625; Evidence! — Par. 351.
    The finding of the trial court that the •plaintiff had proved the case by preponderance of evidence, being clearly correct, is affirmed.
    Appeal from the Parish of Washington. Hon. Prentice F. Carter, Judge.
    Action by Stewart Lumber Company against C. F. Amacker.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Brock & Carter, of Franklinton, attorneys for plaintiff, appellee.
    Ott & Rich, of Bogalusa, attorneys for defendant, appellant.
   LECHE, J.

This suit -is on an open account for lumber sold by plaintiff to defendant, and involves one hundred and forty-five and 54-100 dollars. Defendant, in his answer, denied his liability, but on the trial of the case acknowledged that he owed twenty-nine and 85-100 dollars of the amount claimed by plaintiff, and he accordingly made a tender of that amount with accrued costs in open court.

The other items of the account, which amount to one hundred and fifteen and 69-100 dollars, constitute the difference between the parties.

Defendant attempted, on the trial of the case, to show that one David R. Miller was the real purchaser of the lumber in dispute, and, with that end in view, he offered in evidence two contracts between himself and said Miller. The trial judge, upon objection, properly excluded these offerings as. res inter alios acta," not binding upon plaintiff and therefore not pertineni to the issue.

The vice-president and manager of the plaintiff company testified that defendant had told him, in anticipation of the pur chase of the lumber in dispute, that he would send Mr. Miller to get some lumber with which he wanted to build an office. Miller did come and he did buy the lumber, which was delivered at the place where the office was to be built. A salesman of plaintiff also inquired of defendant whether plaintiff should deliver the lumber ordered by Miller. It seems that plaintiff did not believe that Miller’s credit was good and, for this reason, the salesman would not deliver until defendant had confirmed the order. The testimony of these two witnesses shows that the lumber was ordered by defendant and for defendant’s own use and benefit. Defendant simply denies the truth of this testimony.

The trial judge believed plaintiff had proved its case by a preponderance of evidence, and we agree with him in this finding.

The judgment appealed from is, therefore, affirmed.


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    No. -
    First Circuit
    MOORE v. HEBERT
    (January 7, 1927. Opinion and Decree.)
    (February 12, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on a matter of fact, namely, the damages suffered as a result of an indecent' assault, being clearly correct, is affirmed.
    2. Louisiana Digest — Damages—Par. 3, 13.
    The parents can only recover damages for sufferings' of their daughter due to an indecent assault and not for their own shame and humiliation.
    3. Louisiana Digest — Damages—Par. 104.
    Five hundred dollars considered sufficient quantum of damages for an indecent assault on a girl under ten years of age.
    (Civil Code,, Art. 2315. Editor’s note.)
    Appeal from the Parish of Calcasieu. Hon. Jerry Cline, Judge.
    Action by Jules Moore and wife against Felix Hebert.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    E. F. Gayle, of Lake Charles, attorney for plaintiff, appellee.
    Griffin T. Hawkins, Cline & Plauche, of Lake Charles, attorneys for defendant, appellant.
   LECHE, J.

Plaintiffs in this suit-sue, for the benefit of their little daughter, for damages suffered by her as a result of an indecent assault committed upon her by the defendant. The assault is neither charged nor shown to be one amounting to an assault with intent to commit rape, and the cade (presents only questions of fact for solution.

The trial judge awarded plaintiffs damages in the sum of five hundred dollars and defendant has appealed.

As is usual in matters of this kind, the only eye-witnesses to the main fact in dispute are the plaintiffs’ daughter and the defendant. The little girl was then a little under ten years of age, and had gone to defendant’s place of business under a public dance hall to look for a hair comb which she believed she had dropped and lost while attending a Mardi • Gras performance, in the hall, on the preceding night. She says defendant followed her, and, being alone, made the assault upon her, the details of which are too salacious to be inserted in this opinion. She was then on her way to school during noon recess, and she afterwards proceeded to her classroom. She complained to her mother on her return from school, and the present suit was filed as a result. The little girl appears to be intelligent and she relates all the details of the assault in a, consistent, straightforward manner. It may be, however, that she exaggerates the (physical and mental effects upon herself. She suffered no bodily injury, and her right to compensation can only be measured by the shame and humiliation she must have undergone.

Defendant admitsi the truth as to the time, the place and the circumstances under which the little girl says she visited the dance hall, and he also admits that he was with her alone for a few moments, but strenuously denies the assault.^

It is almost incredible that this little girl could have invented such a story. The trial judge, with hisi knowledge of the parties, and relying on some little details which seem to confirm the truth of some of the statements of the girl, found in favor of plaintiffs, and we see no reversible error in that finding.

As to the quantum of damages, plaintiffs are only entitled to recover for the sufferings of their daughter from shame and humiliation, for, no matter how reprehensible defendant’s conduct may have been, he cannot be punished by the infliction, in this care, of punitory damages. Let the amount of damages remain as fixed by the trial judge.


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    No. 12,277
    First Circuit
    FAIRBANKS, MORSE & CO., INC., v. BIENVENU, ET AL.
    (Feb. 12, 1927. Opinion and Decree.)

      (Syllabus 6y the Editor.)
    1. Louisiana Digest — Chattel Mortgage— Par. 3.
    The description in a chattel mortgage “on one-half of rice crop, sixty acres, 1920 crop”, is insufficient to create a valid chattel mortgage.
    2. Louisiana Digest — Bills and Notes— Par. 109.
    One who endorses a promissory note after ' knowledge that the rice crop which was mortgaged as security for the note had been lost cannot have his endorsement cancelled for want of consideration due to the loss of the chattel mortgage as security.
    Appeal from the District Court, Parish ■ of St. Martin. Hon. D. W. Voorhiss, Judge ad hoc.
    Action by Fairbanks, Morse & Co. Inc., against Gabriel Bienvenu, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Martin & Martin, of St. Martinville, attorneys for plaintiff, appellee.
    Porteous R. Burke, of New Iberia, attorney for defendant, appellant.
   ELLIOTT, J.

Suit against the makers and endorsers of a note, the defendant endorsers claiming that the consideration for their endorsement had been lost, due to the negligence and delay of the payee in recording a chattel mortgage.

Gabriel Bienvenu executed a note in favor of Fairbanks, Morse & Co., Inc., for fourteen hundred twenty-five dollars, with Duchamp Hardware Co., D. É. Duchamp and J. H. Duchamp as endorsers.

Duchamp Hardware Co., Inc., is a commercial partnership composed of D. E. Duchamp and J. H. Duchamp. The note was secured by a chattel mortgage on a Fairbanks, Morse & Co., Inc., engine and half of a rice crop on sixty acres 1920 crop. A vendor’s privilege existed on the engine in favor of Fairbanks, Morse & Co., Inc., for the reason that the note represented part of the purchase price of' the same.

Bienvenu wanted to sell the engine but the purchaser would not buy unless the Fairbanks, Morse Co.’s mortgage and privilege thereon was cancelled. This company would not consent to cancel its mortgage and privilege without a payment of seven hundred fifty dollars on the note, and the delivery to it of a new note for five hundred seventy-six dollars, fourteen cents, with interest and attorney’s fees, signed by Bienvenu with Duchamp Hardware Co., D. E. Duchamp' and J. H. Duchamp as endorsers. Gabriel Bienvenu, in conformity with this requirement, executed and delivered to Fairbanks, Morse & Co., Inc., a new note for five hundred seventy-six dollars, seventy-four cents, with interest and attorney’s fees, with Duchamp Hardware Co., D'. E. Duchamp and J. H. Duchamp thereon as endorsers, paying seven hundred fifty dollars in addition. Plaintiff then surrendered the old note, and its mortgage and privilege on the engine was cancelled. This new note taking the place of the first note, to the extent stated, is the note sued on in this case.

Gabriel Bienvenu made no appearance in the lower court. The judge a quo states in his reasons for judgment, that judgment by default in favor of the plaintiff was entered and confirmed against Bienvenu; but the minutes of the court do not show what was done against him.

Duchamp Hardware Co., D. E. Duchamp and J. H. Duchamp appeared and filed an answer. It- is useless to recapitulate in de,tail their various defensive allegations; they complain that Bienvenu granted a chattel mortgage on a rice crop to secure the note in favor of the plaintiff, but that plaintiff failed and neglected to seasonably record the -act of mortgage, and that as a result the mortgage was lost. That if the mortgage had been timely recorded, the proceeds of the rice crop would have been assurred, applied to the note, and would have paid the balance due on the

note. The plaintiff’s first mortgage on the rice crop was lost because of the delay of the plaintiff in recording same. That defendants endorsed the note because of this security, and relied upon it for protection.

The act of sale whereby Bienvenu bought the engine from plaintiff contains all that we can find on the subject of a chattel mortgage on a rice crop. It provides for a mortgage as follows: “On one-half of rice crop, sixty acres, 1920 crop.” The land or field on which the rice crop was growing, or in which it was to be planted, is not described, nor can same be identified by reference to the act.

The stipulation in the act about a chattel mortgage on a rice crop is not sufficient to create a mortgage. In order to create a mortgage on a crop, the situation of the crop must be in the act. C. C. Arts. 3306 and 3348. We regard the chattel mortgage as unavailing for any purpose as far as a rice crop is concerned.

Not only the above, but Fairbanks, Morse & Co., Inc., received the note sued on as part of their consideration for its chattel mortgage and vendor’s privilege on the engine. Duchamp Hardware Co., D. E. Duchamp and J. H. Duchamp endorsed the note sued on after the rice crop which the act contemplated had been taken by another; after knowledge that it had been lost as far as plaintiff was concerned. Consequently, Fairbanks Co. have a right to hold the defendant as endorsers. It was deefndants’ endorsement that served as the consideration for the releasé of plaintiff’s chattel mortgage and vendor’s privilege on the engine.

Duchamp Hardware Co., D. E. Duchamp and J. H. Duchamp enumerate further reasons as to why they should not be held as endorsers. We have examined all their contentions, and find no well-grounded defense. They made- no appearance in this court, and have filed no brief in support of their appéal.

We concur in the reasons of the trial judge. His judgment is correct.

Judgment affirmed. Defendants and appellants to pay the costs in both courts.


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    No. 13,646
    First Circuit
    BERDON-CAMPBELL FURN. CO. v. NURRAH
    (Feb. 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on a matter of fact, namely, that a “Heatrola” was suited for the purposes for which it was sold, being clearly correct, is affirmed.
    Appeal from' First Circuit, State of Louisiana. Hon. Jerry Cline, Judge.
    Action by Berdon-Campbell Furniture Company against George Nurrah.
    There was judgement for plaintiff and defendant appealed.
    Judgment affirmed.
    J. Sheldon Toomer, of Lake Charles, attorney for plantiff, appellee.
    A. R. Mitchell, of Lake Charles, attorney for defendant, appellant.
   ELLIOTT, J.

’ Action to compel payment of -the purchase price of .a heater. The defendant claiming that it would n-ot function, nor perform the work for which it had been sold.

Berdon-Campbell Furniture Co., Ltd., sold and delivered to George Nurrah; an Estate Heatrola No. 4-D, and sues ' to compel payment of the price.

The defendant, Nurrah, alleges that the Heatrola will not work, nor function- as represented by the plaintiff in selling it to him. That in attempting to demonstrate that it would heat the house as claimed, plaintiff damaged the paper of two rooms in defendant’s house, to .the extent of fifty dollars, which sum he claims in reconvention.

The defendant urges that the court erroneously refused' to hear certain evidence, the purpose of which was to show certain warranties beyond the contract of sale evidenced by a written order signed by defendant’s wife. There are no allegations of fraud, error or deception urged in the answer. The ruling of the court was correct. There exists a legal warranty that a thing sold will do the work for which the seller sells it, if properly handled. The lower court heard all of the evidence on this subject that was offered by the defendant.

The evidence shows that the Heatrola will heat all right. There is no doubt about that; but it must be properly fueled, the heat must be looked after and regulated, else it may get too hot and if the house it left open it will not be warmed. Defendant is charged with knowing these things. The success of the heater also somewhat depends on its location in the house. The heater appears to have been properly erected. The defendant erected this heater and explained to a party residing .in the house and present at the ■time how to operate it. It did not give satisfaction and defendant sent in complaints. Plaintiff sent an employee on two occasions to show and demonstrate the way to operate the heater to the defendant, but defendant failed to keep appointments made for that purpose. A member of his family was there to see it done; but the evidence indicates that defendant did not care much, about explanations on the subject.

The evidence leaves the impression that after the heater had been ordered and erected, defendant would have preferred it had not ben done, was sorry it had been ordered and would be glad to get out of paying for it. If that be the case, he should have considered the matter longer before permitting his wife to order it and have it erected in his house.

The evidence does not enable, us to say ' that the lower court erred. The judgment appears to be correct. Judgment affirmed. Defendant and appellant to pay the costs in both courts.


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    No. -
    First Circuit
    BANK OF ACADIA v. LAFOSSE
    (Jan. 7, 1927. Opinion and Decree.)
    (Feb. 12, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 220, 236, 240.
    Parol proof is properly admitted as evidence- against a third party of a retrocession of one-half interest in land to the vendor who credited the, note with the consideration for the retro-cession.
    2. Louisiana Digest — Fraudulent Conveyances — Par. 12, 29, 31, 134.
    A retrocession of one-half interest in the land sold before a judgment was obtained by a third party will not be considered a simulation or fraudulent transfer for the purpose of defeating the interest of the third party, the evidence showing that the retrocession was made merely because the purchaser could not pay for the land.
    Appeal from the Parish of Acadia. Hon. W. W. Bailey, Judge.
    Action by Bank of Acadia against Hubert Lafosse.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Medlenka & Bruner, of Crowley, attorneys for plaintiff, appellant.
    Gremillion & Smith, of Crowley, attorneys for defendant, appellee.
   MOUTON, J.

In 1918, John S. Thibodeaux sold to Hubert Lafosse, ‘defendant, 20 acres of land for $400.00 cash, as was declared in the act of sale, November 12, 1924, Hubert Lafosse deeded an undivided half of the same 20 acres to John S. Thibodeaux, from whom he had acquired. On November 28, 1924, plaintiff bank obtained a judgment against Lafosse, defendant, for $1000.00, which was recorded on the same date.

Plaintiff brings this suit to annul the sale by Lafosse to John S. Thibodeaux as being a sham or simulation; and in the alternative, because it was a pignorative contract, a frudulent transfer, or a fraudulent giving in payment by Lafosse to Thibodeaux to the injury of plaintiff, a creditor; and lastly, on the ground that the price given for the property was one-fifth below its real value. The, issues presented for decision are ás to whether the sale was a simulation or a payment by Lafosse attempted to defraud the bank of its just rights.

The demand was rejected. Plaintiff appeals.

It was declared in the deed from Thibodeaux to Lafosse that the price for the 20 acres was for $400.00 cash. Plaintiff objected to parol evidence offered by defendant to show that instead of $400.00 cash, Lafosse had given Thibodeaux a note for that amount as a consideration for the land.

Mrs. Lafosse having died after Lafosse bought the property, their children became owners of 10 undivided acres. Lafosse being unable to pay the $400.00 for the purchase of the land, made a retro-cession of his one-half to Thibodeaux, the vendor, who credited the note with $200.00 in consideration of the one-half so retro-ceded. The parol proof was offered to show those facts; was admitted by the court, and, we think properly, particularly as against plaintiff, a third party. Barry vs. La. Ins. Co., 11 M. (O. S.) 630; State vs. McCloskey, 136 La. 739, 67 So. 813; Com. Jer. Trust & Savings Bank vs. White, 145 La. 54, 81 So. 753.

The retrocession made by Lafosse is attacked by plaintiff on the grounds above stated. In the contract of sale, the nonpayment of the price is the event constituting the resolutory condition. C. C. 2651. The accomplishment of this condition has a retroactive effect to the day of the contract. C. C. 2141. Things are put in the same condition as though the contract had never been made. Chase vs. Bell, 32 La. Ann. 461. It is not disputed that the retrocession was made before plaintiff had obtained its judgment against Lafosse, or had had it registered. It is therefore clear that by the retroactive effect of the retrocession by which Thibodeaux was restored to his ownership, that the land was unaffected by any mortgage rights that could have resulted from the judgment of the bank. Counsel for plaintiff refer us to State vs. Williams, 28 La. Ann. 604. In that case, the record owner of the property gave a conventional mortgage on it to Beckner and Brother. Suit was brought to have the sale dissolved, under the resolutory condition, and for the recovery of the land free of the incumbrance which had been placed upon it. This was denied, and the mortgage was enforced. Here, there was no incumbrance resulting from any mortgage, judicial or conventional, in favor of the bank at the time of the retrocession, and the rule of law governing in the case cited by plaintiff does not apply.

In their brief counsel for plaintiff say:

“It is hornbook law in Louisiana, that a debtor can not give to one creditor, to the prejudice of other .creditors, anything but cash current money.”

Standing on that statement, if we properly appreciate contentions of counsel, the bank contends that the retrocession by Lafosse to Thibodeaux was a giving in payment in fraud of its rights as a creditor. The obligation of the buyer is to pay the price of sale. C. C. 2549. If he does not pay, the seller may obtain a dissolution of the sale by suit, or by retrocession from the vendee, who having a defeasible title, restores the ownership of the thing to the vendor. Things are thus placed in the same condition as though the contract had never been made. In making such a retrocession the vendee is not giving a thing in payment which belongs to him and to the detriment of his creditors.

The principle of law invoked by plaintiff does not govern in a case of this character. It is clearly proved that the defendant owed the price he had agreed to pay for the property, and that it was retroceded for its non-payment. It is therefore apparent, that the act of retrocessionwas neither a simulation or a fraudulent transfer. It was simply a retrocession which placed the parties in the same situation which existed prior to the sale from Thibodeaux to Lafosse, and which afforded no basis for the complaints urged by plaintiff.

The action was properly dismissed.


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    No. --
    First Circuit
    McCASKEY REGISTER CO. v. FRANKLIN
    (Feb. 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    (ON MOTION TO DISMISS APPEAL.)
    1. Louisiana Digest — Appeal—Par. 516, 517.
    Where the petition for appeal does not pray that appellee be cited, and no citation was made and there was no security on the appeal bond, it will be dismissed on motion.
    Appeal from the Parish of Yernon. Hon. Hal. A. Burgess, Judge.
    Action by McCaskey Register Company against S. S. Franklin.
    There was judgment for plaintiff and defendant appealed.
    Appeal dismissed.
    S. I. Foster, of Leesville, attorney for plaintiff, appellee.
    D. D. Newman, of Leesville, attorney for defendant, appellant.
   ELLIOTT, J.

Plaintiff and appellant by its counsel moves to dismiss this appeal on the ground that it has not been cited to appear in this court and answer the appeal and that there is no security on the appeal bond.

The petition for appeal does not pray that the appellee be cited. The appeal was not prayed for in open court, but by petition, and the order granting the appeal does not direct that the appellee be cited and it was not cited, and has made no appearance except to move for the dismissal of the same. The appeal bond was signed by the judgment debtor only.

The motion to dismiss must prevail. The appeal is dismissed at the cost of the appellant.


author: MOUTON, J. LECHE, J.,

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    No. --
    First Circuit
    LEGENDRE v. BARKER
    (February 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Admiralty—Par. 4.
    A contract of employment of the chief en- ' gineer of a steamboat, operating on navigable waters, is maritime in its nature.
    2. Louisiana Digest — Admiralty—Par. 2; Master and Servant — Par. 156.
    The state courts of Louisiana have no jurisdiction in the case of the injury or death of an employee while working on a steamboat operating on navigable Waters between two Louisiana ports, because the action is based on a maritime contract, the Federal Employers Liability Act applies, and the Federal courts have exclusive original cognizance.
    3. Louisiana Digest — Master and Servant —Par. 153.
    An action for compensation under the Employer’s Liability Act, No. 20 of 1914, is based upon a contract and not a tort.
    4. Louisiana Digest — Admiralty—Par. 1, 2; Courts — Par. 168.
    Under Article 3, Section 2, Paragraph 1, of the Constitution of the United States, Federal district courts have exclusive original cognizance of maritime cases under the Federal Employer’s Liability Act.
    Appeal from Lafourche Parit'h. Hon. "Robert B. Butler, Judge.
    Action by Mrs. Felix Legendre against Alexander James Barker.
    There was judgment for plaintiff and defendant appealed.
    Plea to the jurisdiction maintained and case dismissed.
    Howell, Wortham & Bourg, of Thibodaux, attorneys for plaintiff, appellee.
    John D. Nix, of New Orleans, attorney for defendant, appellant.
   MOUTON, J.

Felix Legendre, Jr., was, in July, 1925, an employee of the defendant, Barker, as the chief engineer of the steamer, Climax, which was owned and operated by defendant.

On July 24, 1925, as the result of a sudden squall, which occurred on the Mississippi river, the steamboat, Climax, was capsized and Legendre was drowned in the river.

Felix Legendre was unmarried at the time of the accident, and this suit is brought by his surviving mother, widow of Felix Legendre, Sr., against defendant under the Employers’ Liability Act of this state.

Among other defenses presented by defendant, he filed an exception to the jurisdiction of the District Court, claiming that this case .falls under admiralty jurisdiction.

This exception was overruled. Defendant appeals.

As it is undisputed that deceased lost his life in the Mississippi, a navigable river, the sole question to be determined is as to whether his, employment was maritime in its nature.

In the case of Jones vs. Crescent City Ice Co., S. R., Vol. 110, No. 2, p. 182, it was shown that the. deceased, Beasly, while carrying ice to the steamship, Garry, while the vessel was lying in the Mississippi river, fell through an open hatch on board the steamship and was killed. The court, on rehearing, held that Beasly was employed in carrying out a maritime contract, precluding jurisdiction. of the state court under the Workmen’s Compensation Act of 1914. In support of their contention that the state court has jurisdiction, counsel for plaintiff refer us to the case of Millers Underwriters vs. Braud, reported in United States S. C. Reports, advance sheets February 1, 1926. In that case plaintiff sued under the Workmen’s Compensation Act of Texas for the death of her brother, who lost his life as a diver on a floating barge some 35 feet from the bank of the Sabine river, a navigable stream. Counsel for plaintiff contend that, though the drowning of Boudreaux in the case above cited was a maritime tort, yet the subject was so local in its nature that the regulatory provisions of the Compensation Act could work no prejudice to the harmony and uniformity of the maritime law; that Boudreaux’s employment, though maritime, was purely of local concern, and had no special relations to commerce and navigation between states or with foreign states.

Arguing from these premises, counsel contend that, though plaintiff’s employment in this case was maritime, it was purely local and had nothing to do with commerce and navigation between the states or with foreign countries. Counsel for plaintiff argue that this suit, being based on the Workmen’s Compensation Act, as was the Braud case, above mentioned, is a matter of local concern which could not in any way jeopardize or disturb the uniformity and harmony securing the application of admiralty jurisdiction as established under the grant of the Federal Constitution.

They contend that the cases of Jensen vs. Knickerbocker, Inc., Co. and Peters vs. Yeazy, decisions,' of the Supreme Court of the United States, are not at variance with the conclusions of the court in the Braud case, and do not conflict with the ruling in that case, as they understand or construe the decision.

In the case of Jones vs. Crescent City Ice Co., above referred to, though the court made no reference to the Braud case, which had, however, been decided several months before, it based its decision among other cases, on the cases of Jensen, Veazy 'and Knickerbocker, and held contrary to the contentions of counsel for plaintiff, that the contract in that case being maritime in its nature the state court had no jurisdiction under the Workmen’s Compensation Law of 1914. This is the interpretation the Supreme Court of this state placed upon those decisions and to Which we must adhere in the exercise of our inferior jurisdiction.

We now pass to the consideration of the next question upon which plaintiff relies for the maintenance of the jurisdiction of the District Court. In the statement of facts upon which this case comes to usi we find the following admission: “It is admitted that the Climax was engaged in running and transporting freight, etc., from Lockport, located in the parish of Lafourche, to the city of New Orleans, through Bayou Lafourche and the Harvey canal leading into the Mississippi river”.

It is evidence from the foregoing admission that deceased was employed in navigation for commercial purposes from Lock-port through Bayou Lafourche and the Mississippi, two navigable rivers, to the city of New Orleans. On this question counsel for plaintiff say, though there can be no doubt that plaintiff’s son was employed on a boat operating on navigable waters and that his death was a maritime tort, still the jurisdiction of the admiralty court' does not attach, as he was operating a boat entirely within the state of Louisiana, and had no possible occasion to ply his craft in interstate or foreign waters. In this case it is not disputed that the accident was a maritime tort, as it occurred in a navigable river. Such being the situation, the fact that the steamboat in question was plying its trade between Lockport and the city of New Orleans, two points within the boundaries of this state, cannot avail plaintiff, as the Supreme Court of the United States in the case of the Steamboat Belfast in Book 19, 7, Wallace, p. 266, on this subject, held as follows,:

“Admiralty has jurisdiction over maritime torts, though the voyage is between ports and places in the same state.”

This ruling of the court disposes of that contention, unless it has since been overruled by some later decision of which we are not aware, and to which we have not been referred. In that case the court reaffirmed the doctrine that locality is the true test of admiralty cognizance in all cases of maritime torts, which was also recognized as the settled rule by our court in Jones vs. Crescent City Ice Co. The proof shows that Legendre was drowned in the Mississippi river, which was clearly a maritime tort. The Federal courts have “exclusive original cognizance” of such cases, and the state tribunals have no jurisdiction. . .

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided and set aside; that the plea to the jurisdiction of the court below be maintained, and that this case be dismissed at the cost of the plaintiff in both courts.

LECHE, J.,

concurring. Felix Legendre, Jr., was chief engineer on the “Climax”, a steamboat which was navigated on bayous, shallow lakes and on the Mississippi river, while engaged in the business of a common carrier between Lockport and New Orleans, inside the territorial limits of the state of Louisiana. He was drojvned as the result of a storm, and without any negligence on the part of the master of the boat. The defendant, who Was owner of the “Climax”, carried no accident insurance as indemnity against accidental injury or death of his employees, the crew of the boat. The plaintiff, who is the mother and a dependent of Felix Legendre, Jr., sued for compensation under the Louisiana Employers’ Liability Act. She recovered judgment in the District Court, and defendant prosecutes the present appeal from that judgment.

The question in the case is whether the ' Employers’ Liability Act of the State of Louisiana may be applied to the present cause of action, as being under Federal admiralty jurisdiction. The Louisiana statute does not in express terms mention engineers engaged on steamboats while plying upon navigable streams, but it does include within the terms of its provisions persons engaged in “the operation * * * 0f * * * vessels, boats and other watercrafts * * so that the employment of Felix Legendre, Jr., the deceased, may be conceded to be covered by it's provisions.

It must further be observed that, under the terms of that statute, the right of the employee to recover compensation, except where the employer and the employee have agreed otherwise, forms part of the contract of employment (Philps vs. Guy Drilling Company, 143 La. 956, 79 South. 549), and, therefore, that the present cause of action is not' based upon tort but upon contract. The statute further limits the employee solely to a demand for compensation and negatives his right to redress in an action for tort.

The employment of the deceased is conceded to have been of a maritime nature. Indeed, the Supreme Court of the United States, in the case of State of Washington vs W. C. Dawson & Company, 264 U. S. 219, says that “the work of a stevedore, in which, the deceased was engaged, is maritime in its nature; his employment was a maritime contract; the injuries which he received were likewise maritime; and the rights and liabilities of the parties in connection therewith were matters clearly within the admiralty jurisdiction”. A fortiori was the work of an engineer on a steamboat plying upon navigable streams maritime and within the admiralty jurisdiction. In the case of Grant Smith-Porter Ship Co. vs. Herman F. Rohde, 257 U. S. 469, the court held that (quoting from the syllabus):

“In contract matters, admiralty jurisdiction depends upon the nature of the transaction, and, in matters of tort, upon the locality.”

Conceding that the' deceased was employed in a maritime occupation, and that his contract of employment was within the admiralty jurisdiction, plaintiff claims, nevertheless, that the Louisiana statute is applicable and she cites in support of her contention the case of Millers’ Indemnity Underwriters vs. Nellie Boudreaux Braud, decided by the U. S. Supreme Court, February 1, 1926, and reported in advance oheéts of February 15, 1926. It was held in that case (quoting from the syllabus), “although the work of a.n employee in removing the timbers of an abandoned set of ways in navigable waters of the United States is maritime in its nature, the state in which the work is being performed may make its Workmen’s Compensation Act exclusively applicable to injuries received in the course of the Work so as to exclude the jurisdiction of admiralty over the claim, since the matter is one of mere local concern and its regulation by the state will work no material prejudice to the characteristic feature of the general maritime law”. She also relies upon the case of Grant Smith-Porter Ship Co. vs. Rohfe, 257 U. S. 469, already cited in this opinion, where it was held that: “A shipbuilding company and a carpenter employee having both accepted and proceeded under a state workmen’s compensation statute, by making payments to an industrial accident fund, cannot be said to have contracted consciously with each other in contemplation of the general system pf admiralty law governing their rights, obligations and consequent liabilities in case the employee should be accidentally injured while engaged in the work of finishing an incomplete vessel lying on navigable waters within the state’". In the course of the opinion the court says:

“The contract for constructing the Ahala,” the vessel on which the complainant was injured, “was not maritime, and although the incompleted structure upon which the accident occurred was lying in navigable waters, neither Rohde’s general employment, nor his activities at the time had any direct relation to navigation or commerce.”

It is apparent that the last cited case is not parallel With the case at bar. The shipbuilding company and the employee had accepted and acted under the accident insurance contract and the employee’s labor was held as having no direct relation to navigation or commerce.

In the Braud case the employing company, carried a policy of in: jaranee with the plaintiff in error and was regarded as a subscriber to the Texas Employers’ Insurance Association. The suit was by the employee’s beneficiary directly against the insurance company and the employing company does not appear to have been a party thereto. It also appears from the conceded facts in that case that the employee’s occupation at the time had no direct relation to navigation or commerce, and the court held the matter to be one of merely local concern and that ito regulation by the state did not work any material prejudice .to the characteristic feature of the general maritime law.

The employee in the present case was employed for and actively engaged in the operation of a steam vessel plying upon navigable streams, -and his employment had direct relation with navigation and commerce. It does not appear that either he or his employer contracted with reference to the Louisiana Employers’ Liability Act. The cases cited by plaintiff do not, therefore, appear to be authority to sustain the judgment from which the defendant has appealed.

By Article 3, Section 2, Paragraph 1, of the Constitution of the United States, its judicial power extends to all cases of admiralty and maritime jurisdiction and by the judicial code of the United States, Act of Congress, March 3, 1911, Section 24, Paragraph 3, the District Courts of the United States are vested with exclusive original cognizance of all civil cauces of admiralty and maritime jurisdiction. Again, the Louisiana statute, if applied to. this case, would, in effect, destroy the uniformity of the maritime law as generally recognized throughout the country, for all maritime contracts made in the state would, by virtue of the statute itself and not by the will and with the consent of the parties, be conditioned With a stipulation providing for compensation as an integral part of such contract's.

It therefore appears, that the employment in which Felix Legendre, Jr., was engaged is beyond the control of the state legislature, and that to apply the Louisiana Employers’ Liability Act in the present case would be an encroachment upon Federal admiralty jurisdiction.

For the foregoing reasons I hereby concur in the opinion.


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    No. --
    First Circuit
    ALSTON v. COOLEY
    (January 7, 1927. Opinion and Decree.)
    (February 12, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Automobiles, Par. 4 (d).
    One driving in the center of a road at night with qne headlight burning is violating the law and is negligent.
    2. Louisiana Digest — Automobiles—Par. 4, 4 (a,).
    One driving at a reasonable speed on the right-hand side of the road at night is not negligent if his headlights blinded the driver of another car, the collision resulting not being due to that circumstance.
    3. Louisiana Digest — Damages—Par. 41.
    Mental anguish of one person for the sufferings of another person ia not actionable, the right to damages is personal to the latter.
    (Civil Code, Art. 2315. Editor’s' note.;
    Appeal from the Parish of Beauregard. Hon. Thos. F." Porter, Judge.
    Action by Nathan A. .Alston against W. I. Cooley.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Ped C. Kay, of' DeRidder, attorney for plaintiff, appellant.
    Elmer L. Stewart, of DeRidder, attorney for defendant, appellee.
   LECHE, J.

Plaintiff appeals from a judgment refusing his demand for damage arising out of an automobile colllision.

Plaintiff was driving a Ford roadster in which, were his, wife and his little boy, going along the public highway from Long-ville to. DeRidder, and defendant was driving a Ford sedan in which was his wife, when the two automobiles collided. Plaintiff’s roadster was capsized, he, his wife and little boy were pinned under the car, and defendant’s sedan was somewhat damaged but remained upright on the road and the occupants escaped injury. Plaintiff’s boy had both of his legs broken and his wife was also - injured, but not so seriously. The roadster was badly damaged.

The question in the case is by whose negligence was the collision caused.

Our learned brother of the District Court found that both partiesi were at fault and rejected plaintiff’s demand.

The accident occurred the latter part of October, 1925, between 6:30 and 7 o’clock in the evening. The left front' hub caps of the two automobiles came in contact, that on defendant’s automobile passing.'' under that of. the plaintiff’s. Defendant’s wheel then veered under the fender and running board of plaintiff’s. roadster, causing the latter to turn over.

Defendant was running in the center of the road with only one headlight. In both of these particulars he was at fault, violating the rule of the road in the first instance and violating the law of the state in the second instance. Plaintiff was: on the right side of the road where he had a right to be; he was running at the very reasonable speed of 15 to 20 miles an hour, and if his headlights blinded or inconvenienced defendant, as claimed by the- latter, he had no knowledge of the fact, and it was, in our opinion, defendant's duty to steer to the right and stop. It is our belief that the collision .was due entirely to the fault and negligence of defendant.

The proved damages suffered by plaintiff are seventy-five dollar^ for physician’s fees, twenty dollars for the administration of anaesthetics, and sixty-four dollars ' sanitarium charges for the treatment of his little boy; ninety-three and 67-100 dollars for repairs to his roadster and eighty-eight and 74-100 dollars, time lost for absence from his work in attending to the boy’s, treatment, amounting altogether to three hundred and forty-one and 41-100 dollars. Plaintiff is entitled to judgment in this amount, but he is not entitled to recover for the sufferings of his wife and boy. The menal anguish of one person for the sufferings of another person is not actionable; the right to damages is personal to the latter. Kaufman vs. Clark, 141 La. 320, 75 South. 65; Brinkman vs. St. Landry Cotton Oil Co., 118 La. 846, 43 South. 458; Sperier vs. Ott, 116 La. 1087, 41 South. 323.

For these reasons the judgment appealed from is avoided and reversed, and it is now ordered that plaintiff have judgment against and recover of defendant three hundred and forty-one and 41-100 dollars, with legal interest thereon from October 17, 1925, together with all costs of this suit.


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    No. -
    First Circuit
    ANDREPONT v. T. & P. R. R. CO.
    (January 7, 1927. Opinion and Decree.)
    (February 12, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Railroads—Par. 61, 62.
    Where the evidence in a crossing accident chows that the engine whistle was blown, that there was a lookout on the tank of the locomotive observing, and the requirements of the law were complied with, the railroad company is not guilty of contributory negligence.
    2. Louisiana Digest — Rrailroads—Par. 63, 64.
    An auto driver Who stops, looks and listens but does not do this in such a way as to avoid a collision with an engine, is guilty of contributory negligence, barring recovery.
    3. Louisiana Digest — Railroads—Par. 64.
    The stopping, looking and listening at a railroad crossing must be done in such a time and place as to make it effective and sufficient to save the situation.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Parish of St. Landry. Hon. B. H. Pavy Judge.
    Action by Mrs. Adele Andrepont, wife, against Texas & Pacific Railroad Company.
    There was judgment for plaintiff aud defendant appealed.
    Judgment' reversed.
    R. Lee Garland, of Opelousas-, attorney ior plaintiff, appellee.
    Peterman, Dear & Peterman, of Álexan dria, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff lives on Vine street, which runs east and west through the town of Opelousas. The tracks of defendant' company run through Opelousas from northeast to southwest, and across Vine street, almost at right angles.- Plaintiff’s residence is situated about two blocks west of the railroad track where it crosses Vine street. She left her home in an auto about 2 o’clock in the afternoon to go out shopping in Opelousas. Her sister, Mise Lillian Andrepont; sister-in-law, Mrs. J. P. Andrepont; Miss Boon, a young girl 12 years of age, and two or three children were with her in the car. At the crossing where the . defendant’s track intersects Vine street the auto plaintiff was driving collided with a tender and engine of defendant company. As a result of the collision she suffered bruises to her hand and a nervous shock, for which she sues the company in damages for the sum of $1500.00.

The district judge gave her judgment for $1000.00, from which the company prosecutes this appeal.

Plaintiff, after leaving her home in the auto, drove eastward along Vine street towards the crossing, and halted her car at the stop signal of defendant company, which is at a distance of fifty-eight feet from' the edge of the rail of the railroad track. The proof shows that there is a warehouse north of Vine street, which is 24V2 feet from the railroad track. Plaintiff says when she got to the sign post she stopped, looked and listened to see if any train was coming towards the crossing. The proof shows that she stopped at that point, looked and listened for the purpose stated by her. From where she stood in her auto after stopping near the sign post, plaintiff says she taw south of Vine street a freight train with coaches that were standing on the main track near a sawmill, which w'as connected with the main line of defendant company by a spur track. The other occupants of the car also saw this freight train, and coaches standing there. Counsel for plaintiff, after stating that after plaintiff and the other occupants of the car had listened for an approaching train, says in his brief:

“That hearing neither sound of bell or whistle or noise of approaching train or locomotive, and observing to the right of her a train of box cars, with caboose attached, parked on the main line, near the spur track leading to the Thistlewaith sawmill, plaintiff was led to believe that the engine had gone to the sawmill to do some switching.”

The district judge in hici reasons for judgment, in referring to the statement of plaintiff and the other occupants of the car that they saw this freight train with caboose on the main line, says:

“They concluded that the engine was on that side of the street, probably switching at the sawmill.”

We believe that the evidence justifies this conclusion and that plaintiff erroneously concluded that the engine and tender which had been detached from the freight car were rjwitching near the sawmill south of Vine Street.

No doubt, plaintiff looked for approaching trains after stopping at this sign post or stop signal and listened. Prom that point she immediately saw the freight car and caboose on the main line south of Vine street, as there were no obstacles in that direction to obstruct her vision. If the engine and tender with which she collided had been approaching from that direction, no collision would have occurred. Her looking that way would have been effective. The engine and tender had, however, been detached from the freight car, had gone north of Vine street and of the crossing to get some water from the tank at the depot. On returning from that direction the accident happened at the crossing.

As the warehouse was north of Vine street and of the stop signal where plaintiff had stopped and looked, her vision from that point looking northward, the direction from which the engine was coming, was therefore entirely obstructed, and looking that way was of no avail. Her listening was of no avail either, as she could not possibly hear the coming of the engine and tender which were moving then, as the record shows, at about six or seven miles an hour. The stopping, looking and listening must be done at such time and place as to make it effective and Sufficient to save the situation. State vs. Citizens Bank, 52 La. Ann. 1094, 27 South. 709; Snyder vs. N. O. & R. R. Co., 48 La. Ann. 12, 18 South. 695. The looking or listening of the plaintiff at that point was, therefore, in vain, and could not have saved “the situation”. After looking and listening at the stop signal, plaintiff proceeded towards the crossing at about six or seven miles an hour, the speed at which the engine and tender were moving.

The proof shows that the eastern tide of the warehouse was 24% feet from the outer edge of the railroad track. Plaintiff says that, after emerging from the eastern side of the warehouse, she looked both ways along the railroad for approaching or incoming trains. Between this warehouse and the railroad track there was an open space of 24 feet, and from the crossing at Vine street there was no obstacle or obstruction that could have prevented plaintiff from seeing at a long distance northward along the track. If she had cast a glance in a northerly-direction, when she came from behind the warehouse, it is impossible to believe that she would not then have seen the engine and tender coming towards the crossing. She would have seen them immediately after emerging from behind the warehouse, and, no doubt, at a distance of at least 15 or 20 feet from the track. Looking at that time would have ■ been effective and would have “saved the situation”. The fact is that plaintiff had concluded that the engine and ¿tender were at the time in the vicinity of the sawmill near which the freight car and caboose had been parked on the main line, as was said by the district judge in his reasons for judgment. Having so concluded, she took it for granted that the engine was in that direction, she proceeded to make the crossing without looking for approaching trains, as she emerged from the warehouse. It is true plaintiff had stopped, looked and listened at the stop signal in compliance with the requirements of the statute on the subject, and, although this was commendable on her ©art, it did not relieve her of the duty which w'as incumbent upon her to look for incoming trains the moment or soon after she had parsed from behind the warehouse. Although she had stopped, looked and listened once, she was still under the obligation of continuing to keep a watch on the track before attempting to cross it. Reed vs. Mo. Pac., 3 La. App. 608.

When plaintiff saw the engine and tender it was too late for her to stop the auto to avoid the accident. She applied the brakes, killed her engine, and succeeded in stopping just before the auto got on the rail, with the fender projecting about four inches over the rail. The step on the side of the tank hooked the fender of the auto and shoved the auto about eighteen inches or two feet towards the ditch. If plaintiff had looked at the. opiportune time, and as the situation required, no doubt she would have stopped her auto several feet before it reached the rail of the track and no injury would have resulted. The evidence shows she was living on Vine street, in close proximity to the crossing, and obviously had often walked or driven over it. She was, therefore, familiar with the conditions, that existed there, and, by failing to exercise ordinary care in attempting to negotiate the crossing, she was guilt of contributory negligence.

Counsel for plaintiff refers us to the cast of Draiss vs. Payne, 158 La. 652, 653, 104 South. 87. In that case the court held that the failure of a railroad company to use proper care and precautions to safeguard the citizens upon the streets assumes the risk of injury to them, even if the injury received by a citizen is due partly to the latter’s imprudence or forgetfulness. In the case cited the court found that the railroad company had disregarded all care and caution in attempting to hack its train over a crossing at night, without lights or signals, and in utter darkness. In this case plaintiff contends that the crew on the engine and tender failed to ring the bell or to blow the whistle for the crosflng, as required by Act 12 of 1924; that the company was, therefore, at fault' and cannot be exonerated from liability under its ©lea of contributory negligence, as was held in Draiss vs. Payne, 158 La. 652, 653, 104 South. 87. The members of the crew who were on the engine and tender testify that the bell was ringing and that the whistle was blown as they approached the crossing, and that they had a brakeman on the tank, thus observing all the requirement:! the law imposes on the company to safeguard pedestrians or autoist's that might he going over the crossing. Plaintiff and her companions in the auto are positive in their testimony that they did not hear the bell qr whistle, and positively contradict' the evidence of the crew on this question. Let us tiay that the testimony of defendant’s witnesses on this subject should be accepted as the true version of what really occurred, and that the defendant company failed to sound the proper alarms before reaching the crossing. If this was the real situation, would this case fall under the authority above cited upon which plaintiff in a large meariure relies for recovery?

In that case all the precautionary measures usually observed had been flagrantly violated by a crew that was backing a train in total darkness over a crossing in the street of a populous city. Not only was the train backing in utter darkness, but the approach of the train was obstructed from view, as was said by the court. The court in that case, as it is proper to note, said as follows:

“The requirement of the exercise of the physical senses in darkness and without any note of warning of an approaching train would be unreasonable under the circumstances of the car/e.”

It is upon this condition of affairs that .the court held the company liable, although the accident was “due partly to the plaintiff’s imprudence or forgetfulness”. Here, the accident occurred about two in the afternoon, on a clear bright day, at a place familiar to plaintiff, with no obstruction whatsoever to impede her view for a long distance northward, the direction from which the engine and tender were backing up to the crossing. In the instant case plaintiff was certainly required to exercise her physical sense. of sight, which the court said could not have been required of plaintiff under the circumstances existing in the cited case, as it would have been unreasonable. The present case, and the one above cited, are different in all essential particulars. Here, the defendant is entitled to the benefit of its plea of contributory negligence, which the evidence sustains, and debars plaintiff of the right of recovery.

It isi therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and that the demand of plaintiff, be rejected at her cost in both courts. •


text:
    No. 7489
    First Circuit
    LOUISIANA ELECTRIC CO. v. MOUTON
    (February 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Expropriation—Par. 59.
    In an expropriation suit it is not necessary for the plaintiff to allege the period of time during which the right-of-way will be required nor the exact place of ingress and egress, nor the exact manner in which the right-of-way is to be uc.ted.
    2. Louisiana Digest — Expropriation—Par. 59.
    In view 'of Civil Code, Article 2630, et seq., and Revised Statutes, Section 1479, in an expropriation suit the court may allow' the defendant to amend his answer claiming damages, etc., after plaintiff has closed his evidence, if neither side suffered harm thereby.

      3. Louisiana Digest — Appeal—Par. 492, 495.
    Appellee cannot answer an appeal on a question which has not been appealed.
    Appeal from the Di&ltrict Court, Parish of Lafayette. Hon. W. W. Bailey, Judge.
    Action by Louisiana Electric Company, Inc., against Azelie Mouton and husband.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Mouton & Debaillon, of Lafayette, and Pujo & Bell, of Lake Charles, attorneys for plaintiff, appellant.
    St. Julian, Fouret & Mouton, of Lafayette, attorneys for defendant, appellee.
   ELLIOTT, J.

Suit to recover right-of-way for a high-powered transmission line, etc.

The plaintiff brought suit to expropriate a right of way for a high-powered transmission line over the land and through the inclosure of the defendant. Defendant excepted to plaintiff’s petition on the ground that it did not allege the time during which the right-of-way was to be exercised nor any definite place of ingress and egress, nor the manner in which the same was to be used.

Tile exceptions were overruled and defendant, then answering, denied that a right-of-way was necessary through her inclosure and prayed that plaintiff’s demand be refused and rejected. The case was tried before a jury of freeholders, who returned a verdict in favor of the plaintiff, fixing the value of the land to be taken at $7.00 and defendant’s damages at $157.50. Judgment in favor of the plaintiff for the right-of-way was rendered, the value of the land fixed at $7.00 and the damages at $157.50, which the plaintiff was required to pay.

It was not necessary for the plaintiff to allege the period of time during which the right-of-way will be required. The plaintiff does not know. The petition is practically a prayer for a right of way during the period of its chartered existence. An exception of the kind was considered and decided by the Supreme Court in Railroad Co. vs. Hinds, 50 La. Ann. 781, 24 South. 287, and was ruled on adversely to the defendant.

As for the extent and place of ingress and egress, plaintiff’s allegations are in line with those of the plaintiff in Commercial Cable Co. vs. Prevost, 133 La. 44, 62 South. 347. The exceptions were - properly overruled.

Defendant does not claim damages in her answer, and when she sought to introduce evidence on the subject of depreciation, etc., plaintiff objected on that account. The trial court permitted all the evidence on the subject which either side tendered to go to the jury just the same as if damages had been claimed in the answer, while the plaintiff was offering evidence in chief. After the plaintiff had closed its evidence in chief, the defendant offered to file an amended answer claiming damages, etc. The court permitted the amendment to be filed, directed that it stand as part of defendant’s pleadings. When defendant had closed, the court permitted to go to the jury all that plaintiff tendered in rebuttal on that subject. The plaintiff claims that the amendment came too late; but the ruling was correct in an expropriation suit. The record shows that neither side suffered any harm by the ruling and action of the court. The case, Mouton vs. Comeaux, 5 A. 655, has some bearing. Louisiana Railway Navigation Co. vs. Sarpy, 117 La. 156, 41 South. 477, was an expropriation,- suit in which the defendant claimed a lump sum of damages. The plaintiff objected when defendant sought to prove the various grounds and causes o‘f damage which went to make up the lump sum. The court sustained the objection and on appeal the ruling was held to be correct; but the case was at the same time remanded in order that the defendant might amend his petition and set out his damages in detail. In an expropriation suit i tis incumbent on the plaintiff to have the damages assessed and to pay same befo.re taking possession. Civil Code, Arts. 2630, etc., and Revised Statutes, Section 1479 (Amd. 123 of 1910). The plaintiff in this case prays that the damages be fixed so that they can be paid as a prerequisite to taking possession as a matter of legal necessity. The court ruled and acted properly.

The jury fixed defendant’s damages at $17.50. The plaintiff’s appeal is restricted to the question of damages. The plaintiff contends that the amount is excessive. The proximity of the transmission line to defendant’s property will be an advantage, likely, if service should be required; but that does not, in our opinion, off.iet and meet on equal terms the inconveniences and disadvantages due to the long period of time during which the servitude may he exercised; the time is really unknown. Then there is the further inconvenience, due to the fact that all the time the right-of-way is maintained, it will be quarterly over her inclosure and over the highest part of her field.

The jury saw the premises and we are unable to say that their return is excessive or otherwise erroneous. It' is our opinion from the evidence on that subject that the judgment is in that respect correct.

Defendant, in answering plaintiff’s appeal, contends that the judgment is correct as to the amount of damages allowed, but that the valuation of the land taken should be increased from $7.00 to $105.00. The defendant has not appealed; neither did the plaintiff from that part ’of the judgment which fixes the value of the land. An appellee cannot answer an appeal when there is no appeal, and, as stated, there is none in regard to the value placed on the land.

In order for that matter to he reviewed, it will be necessary for the matter to be brought before us by an appeal. As for the value of the land, we, therefore, express no opinion; we have not considered that matter; it is not before us on the present appeal. The judgment appealed from is correct.

Judgment affirmed, plaintiff and appellant to pay the cost in both courts.