text:
    No. 2091
    Second Circuit
    PRESTON BRASHER v. RICHARD H. GRANT, SR.
    (January 12, 1925, Opinion and Decree)
    (May 11, 1925, Case Remanded for a new trial)
    (February 8, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 625, 630.
    Where the finding of the trial court as to the amount due the plaintiff on a contract being clearly erroneous is increased.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rap-ides, Hon. L. L. Hooe, Judge.
    This is a suit which was previously decided by this court and reported in 1 La. App 457, and on a rehearing was remanded to the district court for a new trial. On the second trial the district judge adhered to his original judgment but corrected a slight error of one dollar which he made in addition.
    Plaintiff has again appealed.
    Judgment amended and increased.
    Thornton, Gist and Richie, of Alexandria, attorneys for plaintiff, appellant.
    Blackman and Overton of Alexandria, attorneys for defendant, appellee.
   ODOM, J.

The testimony in this case is very conflicting. Mainly for that reason we affirmed the decision of the lower court when the case was before us some time ago. On application for rehearing we remanded the case for further testimony, especially for testimony concerning the document marked “Defendant’s 2”.

On the new trial of the case both plaintiff and defendant were called and testified. We have re-read the testimony taken on the first trial and have read that which was taken on,the second trial and our final conclusion is that the plaintiff is entitled to judgment as prayed for.

On the second trial the district judge adhered to his original judgment but corrected a slight error of one dollar which he made in addition.

Plaintiff has again appealed.

It is plaintiff’s contention that the contract price for furnishing all material and the installation thereof was $389.00 and that subsequent to the submission of his bid the defendant decided to install a “built-in” bath tub instead of a “leg tub” which was originally agreed upon, and that an additional charge of $75.00 was made for that. Also that defendant had him change the location of a lavatory and install a range stove at an additional cost of $24.50 for the two. This makes a total contract price according to plaintiff of $488.50.

These last two items are not seriously disputed.

It seems that the contract called for two drain boards which were not installed and credit for $7.00 was given for those items, reducing the total price to $481.50 which is the amount sued for.

Defendant, on the contrary, contends that the contract price for all material complete and installed was $325.20, which included a shower bath and curtain at $31.70, which, not having been installed, that amount as' well as the amount for the installation of one drain board not installed, $3.00, should be deducted, leaving the amount due by him only $290.50.

It is not worth while, we think, to review all the testimony in the record. Suffice it to say, however, that the main dispute between plaintiff and defendant is this: plaintiff, on the one hand, contends that the prices contended for by the defendant are the wholesale prices of the items to be installed and did not include the labor for installation. He admits that he did submit to defendant thrqugh Gremillion, who had the contract for the building of the defendant’s residence, the figures as set out by defendant; but he says that those figures were furnished by him from a list of prices of the items f.o.b. Alexandria, Louisiana, and were given to enable defendant to compare them with other prices which he might be able to procure from other dealers in the city.

Plaintiff says that the bid which he submitted was $389.50, which included the price of the materials installed in the residence, also an item which he paid to the city for water.

To corroborate his testimony on this point plaintiff introduced and filed in evidence on the second trial a document marked “Plf. 12,” which is an invoice of plumbing fixtures which he purchased in March, 1922, only a few months previous to the date on which the contract was let. This invoice shows prices which he paid for either the items installed or similar ones. We note that the evidence on the invoice correspond with the figures submitted by plaintiff on his document “Def. 2”. This is a very strong corroboration of plaintiff’s testimony that the prices claimed by defendant were those submitted by him not including installation.

If defendant’s contention be correct, plaintiff would have received nothing at all for his work in installing the fixtures. It is not reasonable to suppose that plaintiff would have agreed to furnish the material at cost and make no charge for the installation thereof.

On the first trial Gremillion testified that on the same contract Zoder, another plumbing contractor, bid $396.00 on the same work installed. This was more than plaintiff’s bid. This testimony also corroborates that of the plaintiff. Gremillion, however, became very much confused in his testimony, and for that reason we attached but very little weight thereto on our former consideration of the case and attach but little to it now.

On the second trial plaintiff called Mr. Dezendorf, manager of Zoder’s business, and offered to prove by him that he had received a bid from that concern and offered to show the amount thereof. This testimony was excluded by the court on objection by defendant, and plaintiff was not permitted to take his testimony and attach it to his bill of exceptions. We think the court erred in not receiving this testimony. It would have cleared up a very vital point. However, it is not necessary to remand the case to receive that evidence.

Defendant offered in evidence a document marked “Def. 2”. This document is written with pencil. At the top of the sheet and in the center Othereof are found the items which went into defendant’s residence. These items as listed including $31.70 for shower and curtain total $325.20, which is the amount which defendant contends plaintiff agreed to charge for all the fixtures and the installation thereof. Below the above figures and in the left hand corner of the sheet there is a different set of figures, and upon the deciphering and interpretation of these latter figures a determination of this case largely hinges. These latter figures as originally written have been partially erased and others written over them. Our final conclusion is that the original figures are as follows:

388
75
463 00
3170
494 70

The “388” has been changed so as to read “325 20”; the “75” remains the same; but the “463 00” has been changed so as to be “400 20”; the “3170” remains the same; but the “494 70” has been changed to “431 90”.

There is some controversy as to which figures were written first, but we have satisfied ourselves after a most careful examination of the said document that the figures hereinabove first written were the ones originally placed thereon.

The plaintiff contends that the original bid which he submitted contemplated the installation of a “leg tub” at $105.00 and that later defendant ordered a “built-in” tub and that it was agreed that there was to be an extra charge of $75.00 for that.

Defendant, on the contrary, says the “built-in” tub was specified in the original price. Opposite and to the right of the figures “388” written with pencil are the words “with leg tub” and to the right of the figures “75” are the words “built-in tub”; to the right of the figures “3170” are the words “for shower and curtain all complete” and to the right of the figures “494 90” are the words “all complete and installed”.

Defendant admitted on the last trial that he did all this writing to the right of these figures, but he does not admit that he made any of the figures referred to, either the original one or those written over them. On the first trial he said these figures were made by Major Thornton, a member of the law firm of Thornton, Gist & Richie, counsel for plaintiff, when he, defendant, went to their office to effect a settlement of the case. Major Thornton did not testify on that trial. He did testify on the second trial, however, and stated positively that he did not make them and further that those figures were not on the statement which defendant submitted to him at that time; and he strengthens his testimony on that point by producing a copy of the statement which he made at the time and preserved in his office. The copy does not show the figures in the lower left hand corner of said document marked “Def. 2”. Defendant, on being cross-examined on that point on the second trial, was not sure that Major Thornton had made them but contends that he was figuring on the sheet.

Counsel for defendant say in a supplemental brief filed with us:

“Mr. Thornton testified that the left hand figures were not on the document ‘Defendant 2’ at the time it was brought to his office.”

Counsel, of course, do not mean to mislead the court in thus commenting on the testimony. The fact is that Major Thornton did not testify that the document “Defendant’s 2” was brought to his office but, on the contrary, testified that said document was never shown him by defendant and that the first time he saw it was after the trial when he found it attached to the record as made up by the court reporter. He does say, however, that when Grant went to his 'office he presented a statement showing all the figures on that document except those in the lower left hand corner thereof and that he then and there made a copy of the statement presented and he produced that copy in court.

It seems that the statement shown Major Thornton by Grant was one which Grant had sent Brasher along with his check for $290.50, the amount which Grant claimed as the balance due.

It is evident, therefore, that Grant made a copy of the document “Defendant 2” except the figures and writing in the lower left hand corner.

On the trial defendant introduced and filed the document “Defendant 2”. He says that the figures thereon in the upper part were given him by Brasher and that he wrote them in Brasher’s office. Brasher says the defendant did not write them in his office. But whether he did write them there or elsewhere is not material. The fact is that Grant says he wrote them. This document having been written by Grant and having been introduced and filed in evidence by him therefore must have been in his possession all the time. He does not pretend that any one other than Major Thornton ever saw it and his effort to show that Major Thornton saw it has failed. The conclusion therefore is irresistible that all the figures on that document, including those in the lower left hand corner, were made while the document was in his possession. Now Grant admits that he wrote the words “with leg tub all complete and installed”, etc., opposite these figures. Unquestionably these words were written after the figures were made, .otherwise the writing is meaningless.

This document having been in Grant’s possession all the time, and he having written the words after the figures, the conclusion that he wrote the figures is inescapable.

An examination of the document clearly reveals the figures “388” with “75” added and the total “463”; then the figures “31 70” added and the total “491 70”. These figures were written over but they are clearly visible. These are the figures that Brasher claims he gave Grant for the work complete and installed.

Now' the question arises, If Brasher did not give Grant these figures where and how did he get them?

It seems too plain for further discussion.

Under the view which we take it does not matter which figures were written first. The point is that Grant wrote down at some time on the document which he filed the figures which completely corroborate plaintiff’s testimony as to the contract price.

Plaintiff says the original price submitted was $389.00 for the work complete and installed, and that he gave out the figures $388.00 through error in addition. This did not include the shower and curtain, and while these ftems were added they were not included in the price of $389.00.

Plaintiff says it was agreed that $75.00 should be added for the “built-in” tub, and from the figures and writing above described we think that charge is correct.

That makes- a total of $464.00. To this should be added $12.00 for changing the location of a lavatory and $12.50 for installing a range. Making a total of $488.50.

Prom this amount must be deducted $7.00 for two drain boards not installed.

Leaving $481.50 due plaintiff.

Por the reasons assigned, it is now ordered, adjudged and decreed that the judgment appealed from be amended so as to mcrease the amount awarded plaintiff from $315.00 to $481.50, and that as thus amended the judgment be affirmed. All costs to be paid by defendant.


source: Caselaw Access Project

author: WESTERFIELD, J. WESTERFIELD, J.\

license: Public Domain

text:
    No. 9097.
    Orleans
    ED. ADAM KREIDER v. JOHN H. KRAAK, Appellant.
    (November 16, 1925. Opinion and Decree.)
    (November 30, 1925, Rehearing Granted.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Surveyors and Surveys—Par. 11.
    Where a purchaser of real estate buys with knowledge of the fact that the long established boundaries between the purchased property and the property of the adjacent proprietor encroach upon the title dimensions of the property he is buying he will be held to have acquiesced readjustment of boundaries to comport with his title.
    ON A REHEARING.
    2. Louisiana Digest—Surveyors and Surveys—Par. 24.
    Visible boundaries existing for over thirty years should prevail over those given or described in deeds or titles.

      Appeal from Civil District Court. Hon. Porter Parker, Judge.
    This is a petitory action. Defendant pleaded a prescription of thirty years acquirendi causa liherandi causa and a plea of estoppel.
    There was judgment for plaintiff as prayed for and defendant has appealed.
    Judgment reversed.
    M. M. Manion and H. W. Kaiser of New Orleans, attorneys for plaintiff, appellee.
    H. S. Suthon and Fred Zingle of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a petitory action. Kreider, the plaintiff, purchased lots 13, 14 and 15 in square 715, First District of this City, hounded hy Telemachus, Gravier and Genois Streets and T'ulane Avenue. “Said portion of ground begins at a distance of 57 feet 7 inches and 4 lines from the corner of Genois Street, and measures 83 feet 3 inches and 3 lines front on Tulane Avenue by a depth between equal and parallel dines of 114 feet and 6 inches as per survey by F. Waddill, Surveyor, January 12, 1921.” Plaintiff acquired the property by purchase from the Hibernia Homestead by act before J. P. Sullivan, Notary, on January 27, 1921.

This suit relates to a strip of land 86 feet 4 inches and 4 lines in width by a depth of 3 feet 10 inches and 4 lines along the rear of plaintiff’s property and included within his title, which is now possessed hy defendant.

The defendant pleads estoppel based upon the fact as alleged that plaintiff was aware of his occupancy and possession of the property in. dispute before his acquisition of title thereto. He also pleads the prescription of 30 years acquirendi causa and liherandi causa. There was judgment below in plaintiff’s favor as prayed for and defendant has appealed.

Our attention is first directed to the plea of prescription. The evidence is conclusive to the effect that the present boundaries have been established for a period considerably longer than 30 years. A fence and a shed mark the division of the properties of plaintiff and defendant, whose property adjoins plaintiff’s in the rear, and this fence and shed or some other fence or shed have been on that line continuously for more than 30 years. There has been, therefore, adverse possession for the prescriptive period. But defendant acquired title to his property and his occupancy of the disputed strip in 1902, consequently he has not the actual possession for the full 30 years as required for prescription acquirendi causa without title.

R. C. C. 3503. “How favorable soever prescription may be, it shall - be restricted within just limits. Thus in the prescription of 30 years, which is acquired without title, it extends only that which has been actually possessed by the person pleading it.” Opdenwyer vs. Brown, 155 La. 618, 99 South. 482.
There is therefore no prescription acquirendi causa. The prescription liherandi causa is based upon Art. 3548 R. C. C. This article reads as follows:
“All actions, real as well as personal, are prescribed by thirty years without the one who invokes this prescription being obliged to produce a title, or its being possible to oppose to him the exception resulting from bad faith.”
In Harang vs. Golden Ranch Land & Drainage Company (on rehearing), 143 La. 1007, 79 South. 768, the court, in referring to this Article, said, through Mr. Justice Provosty:
“The question of whether this article, which, it will be observed, makes no mention of possession, dispenses the party pleading this prescription as against the petitory action or action in revindication of real estate from the necessity of showing the possession requisite for the prescription of 30 years acquirendi causa was raised for the first time in the case of Orvise vs. The Brothers of St. Visteur. Sirey, 1879, Yol. 1, p. 313, Journal du Palais, 1879, p. 777. In that case Orvise, the plaintiff, sued to . recover a tract of land which has father had sold to the defendant religious association more than 30 years back. His ground of action was that the sale had been null, had not divested the ownership of his father, because, religious organizations being prohibited in Prance, these religious brothers had had no legal existence, and hence could not possibly have acquired the property. In the course of his argument Attorney General Robinet de Clery invoked this article 2262 as a bar to plaintiff’s action in nullity of the sale. The court sustained the prescription, but as reproduced in Journal du Palais, 1907, first part, p. 276, sustained it only as to the action in nullity, not as to petitory action.”

The learned judge proceeds in an elaborate and extremely able opinion to discuss the question, and in conclusion holds that possession is necessary to support the plea.

The plea of prescription liberandi causa must be overruled.

The plea of estoppel is based upon the following facts:

Plaintiff before buying the property the rear end of which is encroached upon by defendant caused, it to be surveyed. As a result of this survey it appeared that all the property holders in the block facing Tulane Avenue in which the property bought by plaintiff is situated had encroached several feet upon the banquette in erecting improvements on their property due to some mistake in the common property line. This fact was known to plaintiff before he purchased the property, as was the fact that defendants’ boundaries had encroached upon the property he .was considering several feet in the rear. After purchasing plaintiff promptly extended his building line over the banquette also, so as to take advantage of the situation, by erecting a gallery to the premises he bought.

Plaintiff deliberately bought the property knowing that the strip of land m the rear, the object of this suit, was not m possession of his vendor, though included in his title. Upon the trial of the case it developed that the rear boundaries of plaintiff’s property had remained as at present established for nearly forty years, so that plaintiff’s vendor or his authors in title had been out of possession of this strip of land for at least that length of time.

We are of opinion that the plea of estoppel is well founded. Plaintiff can not be allowed to disturb the long existing conditions, of which he was aware. Having purchased with knowledge of the actual boundaries, he is presumed to have acquiesced. He was not slow to accept the benefit of the improper building line in the front of his property, however precarious his occupancy of the banquette may be, and he can not be heard to question the rear boundary of the property. He has accepted the benefits of the situation and is estopped to complain of it.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that plaintiff’s suit, be dismissed at his cost.

ON REHEARING.

WESTERFIELD, J.\

Per Curiam: Aftter careful consideration of the issues involved in this suit, and of the able arguments presented on rehearing, we find no reasons for departing from our former conclusions. As was said in Opdenwyer vs. Brown, 155 La. 626, 99 South. 482.

“It is our firm conviction that the public interest requires that boundaries established for more than thirty years should not be disturbed.”

It is therefore ordered that our former decree be reinstated.


author: BELL, J.

text:
    No. 10,284.
    Orleans
    MRS. CARRIE MAHAN, WIDOW OF JOHN C. SMITH, Appellant, v. JULIAN L. LAFAYE.
    (January 4, 1926. Opinion and Decree.)
    (January 18, 1926. Rehearing Refused.)
    (March 1, 1926. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Landlord and Tenant—Par. 78, 88.
    Where a lessor terminates his tenant’s right of occupancy by rule to vacate and subsequently sues for all rent which could have accrued under the entire term of the lease, the tenant is only liable for such rent as is due at date of dispossession. The dissolution of the lease by rule to vacate deprives lessor of right to hold lessee for rent which could have subsequently accrued.
    Appeal from First City Court, City of New Orleans, Section “A”, Hon. W. Alexander Bahns, Judge.
    This is a suit for rent and possession of the leased premises. There was judgment for plaintiff for the rent which had accrued up to the day that the lessee vacated the premises.
    Plaintiff appealed. Judgment affirmed.
    Theo. Cotonio of New Orleans, attorney for plaintiff, appellant.
    J. J. Lafaye and R. W. Lafaye of New Orleans, attorneys for defendant, appellee.
   BELL, J.

Plaintiff, as lessor under a written lease for the term of one year at $40.00 per month, obtained possession of his premises by rule to vacate taken against his lessee and brought one month prior- to the expiration of the lease. The lessee acquiesced in the proceeding by removing from the premises after five days service of the rule to vavate. He was then in arrears to the extent of $155.50, representing unpaid rent due up to the first day of the last month for which the lease was to run. Plaintiff subsequently sued the lessee, making him and his surety parties defendant in this suit now brought for the recovery of the above amount, and also for $40.00 as rent yet to accrue under the last month of the lease. The total amount claimed was therefore $195.50. Defendant answered by pleading a general denial. There was judgment in plaintiff’s favor for all rent which had accrued up to the day upon which the lessee had vacated the premises; rent claimed subsequently thereto was denied. Plaintiff appeals.

We find the judgment to be correct.

In Sigur vs. Lloyd, 1 Ann. 421, the lessor sued for dissolution of a lease, alleging that it had been breached for nonpayment of rent. In the same action he prayed for a recovery in the District Court of all unpaid rent, consisting of that rent which had accrued at the date of suit as well as that which was yet to accrue under the written lease. The rent—as in the instant case—was payable monthly in advance. The Supreme Court, rejecting the claim for unaccrued rent, held, in part, as follows:

“Here the lessee failed to pay the rent, which was one of his engagements, and by this breach an implied resolutory condition of the contract took effect, of which the lessor, by this suit,' has availed himself, and in which the lessee acquiesces. The lease being thus dissolved, the covenant of the lessee for future rent has also ceased to exist. The rent was to be the compensation for the occupation of the property under the contract. The contract has been annulled, and the possession taken from the tenant by the decree. The defendant could not have taken advantage of his own default to annul the lease; but the injured party could, and he has availed himself of it. The dissolution is the result of his own voluntary-option.”

A like ruling was made in Fox, et al., vs. McKee, 31 La. Ann. 67, where it was said:

“In our opinion, plaintiffs are entitled to a judgment against defendants, dissolving the two leases and condemning said defendant to pay them for rents—but only whilst the relation of lessors and lessee continued between them, that is, until the 16th day of March, 1878, when the leases were dissolved.” See also Walls vs. Collins and Truxillo, 18 Ann. 471.

It is contended in the present case, however, that at the time defendant acquiesced in the rule to vacate, all of the rent was due and exigible under the terms of the lease, the defendant then being in arrears for several months’ rent. The evidence shows that plaintiff allowed defendant to become in arrears on several occasions, in one instance for as much as three months’ rent. Under such conditions, he must be held to have waived the above noted stipulation in the lease. Briede vs. Babst, 131 La. 159, 59 South. 106; Bonnabel vs. Metairie Cypress Co., 129 La. 929, 57 South. 271; Brewing Co. vs. Anderson, 121 La. 935, 46 South. 926; 3 Ct. App. 324; 7 Ct. App. 424.

For the foregoing reasons, the judgment appealed from is affirmed. Cost of appeal to be borne by appellant.


author: CLAIBORNE, J.

text:
    No. 10,333
    Orleans
    TONY BUSKO v. JOHN MIHALJEVICH, Appellant.
    (January 1, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Appeal—Par. 512.
    When the appeal is frivolous damages will be allowed.
    Appeal from First City Court, Div. “C”, Hon. W. Y. Seeber, Judge.
    This is a suit upon a promissory note for $150.00, with interest and ten per cent attorney’s fees. There was judgment for plaintiff and defendant appealed, but did not argue the case or present a brief in the Court of Appeal.
    Judgment affirmed, with ten per cent damages for frivolous appeal.
    A. B. Leopold of New Orleans, attorney for plaintiff, appellee.
    Clarence J. Dowling of New Orleans,' attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit upon a promissory note for $150, interest and ten per cent attorney’s fees.

The defense is that the note was given in part payment of a restaurant and fixtures; that the ■ plaintiff took away from the same against defendant’s consent a number of articles of the value of $150, which defendant pleads in compensation.

Upon the trial of the ease the defendant, although represented by counsel, offered no evidence, and judgment was rendered against him, reserving his rights under his plea of compensation. From this judgment the defendant has appealed. Plaintiff prays for damages for frivolous appeal.

In this Court the defendant has not favored us with argument or brief to indicate error in judgment below.

We see none ourselves and the judgment is therefore affirmed -with ten per cent damages for frivolous appeal.


text:
    No. 9818.
    Orleans
    WM. A. PEEL, AUDITOR, v. VIOLA ST. ANN AND OMER VILLAC ET AL.
    (January 4, 1926. Opinion and Decree.)
    (January 18, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Sales—Par. 287, 295.
    The vendor of an automobile can be condemned to pay to his evicted vendee only the actual loss in money which the eviction has caused him, and not the original price of the automobile.
    Appeal from Civil District Court, Hon. Wm. A. Byrnes, Jr., Judge.
    This is a suit in which the purchaser of an automobile who had been evicted obtained a judgment which he attempted to- execute against his warrantor. The warrantor enjoined the execution of the judgment, but the injunctio'n was dissolved by the lower court.
    The warrantor appealed. Judgment reversed.
    Delvaille H. Theard of New Orleans, attorney for plaintiff, appellant.
    M. C. Scharff of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a call in warranty by a vendee against his vendor.

The facts of this case are fully detailed in the judgment No. 8219 of this Court. They are as follows:

Viola St. Ann sold an automobile to Omer Villac; Villac sold the same to Dudley Duplantier for $800 cash.

Peel, administrator, brought suit against Viola St. Ann and Dudley Duplantier to recover the ownership of said automobile.

Duplantier called Omer Villac in warranty. In the suit, No. 8219 of this Court, there was judgment in favor of plaintiff and condemning Omer Villac “to pay unto Dudley Duplantier the sum of $800” eonditional upon the said Dudley Duplantier first restoring “the car unto plaintiff in such condition as it existed at the date of its sequestration.”

Dudley Duplantier did not restore the car, but instead, by agreement between Peel and himself, the car was sold for $12^0, which was paid to Peel, and in addition Duplantier paid Peel $275, in full payment, in lieu and stead of restoring the car to its original condition as provided by the judgment.

Nevertheless, Duplantier issued against Villac an execution for $800. Villac enjoined the execution on the ground that Duplantier did not pay $800 nor spend any amount whatever in restoration.

There was judgment in favor of Dudley Duplantier dissolving the injunction. Villac has appealed.

We take a different view of this case from that of the District Judge. Duplantier has not returned to Peel a car of the value of $800 at the time of the judgment against him. He had bonded the sequestration and had used and enjoyed the car for over three years, and its value had been diminished by so much wear and tear. Its market value at that time was fixed by the price of its sale at $120. That determined the amount of Duplantier’s loss as far as the car was concerned.

The parties realized the impossibility of restoring the car to its pristine condition, and in order to avoid haggling over the question of how far Duplantier had complied with the judgment, the plaintiff accepted from Duplantier $275 in full satisfaction of the judgment requiring restoration. That sum represented the amount in money which Duplantier might have paid for restoration, and the amount of his loss in money. The two items of $120 and $275 represented Duplantier’s entire loss.

The sum total of Villac’s obligation, as vendor, was to imdemnify Duplantier for any loss he might suffer from eviction. That sum has been fixed by him at $395. To allow him to recover $800 from Villac would be giving him the enjoyment of the oar for three years without consideration, and thus to recognize his right to enrich himself at the expense of Villac. C. C. 2508.

To give him a judgment against Villac for $395 secures reimbursement of his real loss and makes him pay only $405 for the use of the car for three years.

To condemn Villac to pay Duplantier only $395 reduces his warranty by $405. He has no cause to complain, as Duplantier has acted as his agent to minimize his loss.

It is therefore ordered that the judgment appealed from be reversed and set aside; and it is now ordered that the writ of fieri facias herein issued be reduced to three hundred and ninety-five dollars, and, as thus reduced, that the Civil Sheriff be authorized to proceed with the execution thereof to the extent of three hundred and ninety-five dollars and costs.

The costs of both Courts to be paid by Omer Villac.


text:
    No. 10,310.
    Orleans
    C. A. MINOR v. CITY OF NEW ORLEANS, Appellant.
    (January 4, 1926. Opinion and Decree.)
    (January 18, 1926. Rehearing Refused.)

      (Syllabus by the Oourt.)

    1. Louisiana Digest—Municipalities—Par. 260.
    Where a municipality or its parking commission is not shown to have had actual or constructive knowledge as to the dangerous condition of a tree I growing on a sidewalk and having protruding branch overhanging a driveway so as to cause damage to a motor vehicle passing under or near the tree, there is no legal liability justifying recovery.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the' First City Court, Section “B”, Hon. Val J. Stentz, Judge.
    This is a suit for damage to an automobile and injury to the minor son of plaintiff arising from a collision of the automobile with a protruding branch of a tree.
    There was judgment for plaintiff and defendant appealed. Judgment reversed.
    W. E. Westerman of New Orleans, attorney for plaintiff, appellee.
    T. Simmes Walmsley of New Orleans, attorney for defendant, appellant.
   BELL, J.

Plaintiff sues the City of New Orleans for damage to his automobile and injury to his minor son arising from a collision of the automobile with a projecting branch of a tree which had been planted on the sidewalk for about ten years. The branch, some 8 feet high from the ground, overhung the public driveway at the place of accident. The facts of the case are not disputed, and we do not find that plaintiff’s son, as driver of the car, was guilty of the contributory negligence with which he was charged by defendant. The evidence does not indicate that there was any extraordinary or distorted growth of the tree which rendered it patently dangerous.

The City’s principal defense is that it had no actual or constructive knowledge concerning the dangerous condition of the tree, if such existed.

Our appreciation of the case is that it involves only a question of law as to the liability of a municipality, through its Parking Commission, in an action ex delicto under such facts as are here presented.

This Court in the recent case of Wiltz vs. the City of New Orleans, 2 La. App. 444, decided, in reversing the trial court which had awarded damages to a pedestrian who had stepped into a depression on a city sidewalk, that there being no evidence of the City’s knowledge, either actual or constructive, as to the defective sidewalk;, there was no liability. Nothing 'can be added to throw further light on this principle of law than is found in the authorities cited by this Court in the Wiltz case. A like ruling was made in the case of James vs. City of New Orleans, No. 8050 Orl. App., where the plaintiff suffered injuries somewhat similar to those in the Wiltz case. In both of these cases applications for writs of certiorari were made and denied, the Supreme Court holding that the decisions were correct.

Upon the foregoing authorities, we are of the opinion that the judgment appealed from should be reversed, and it is so ordered.


author: WESTERFIELD, J.

text:
    No. 10,303.
    Orleans
    VICTORY OIL COMPANY, INC., Appellant, v. F. F. WILLOZ.
    (January 4, 1926. Opinion and Decree.)
    (January 18, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Evidence—Par. 141. 160.
    In a suit upon an open account, defendant cannot be held liable when the evidence shows that the merchandise was bought by, charged to and delivered in the name of a third person. The fact that defendant signed the dray receipt evidencing delivery without indicating that he acted for the party in whose name the goods were delivered, creates no liability in defendant to pay for the goods.
    Appeal from First City Court of the City of New Orleans, Hon. W. Alexander Bahns, Judge.
    This is a suit on an open account.
    There 1 was judgment for defendant and plaintiff appealed. ' Judgment affirmed.
    Jas. N. Buttingham, McCloskey and Benedict of New Orleans, attorneys for plaintiff, appellant.
    W. J. Formento of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Defendant sued on an open account for $121.73, denies all responsibility therefor.

It appears that W. W. Lemmon conducted an oil filling station in Esplanade Street and bought oil and gasoline from the plaintiff Company. Lemmon organized the Lemmon Motor Company, with Willoz, defendant herein, as vice-president, and continued to buy supplies from plaintiff. The account on plaintiff’s books continued in the name of W. W. Lemmon. The gasoline and oil, for the payment of which this suit was brought, was delivered to the place of business and placed in the tank of the Lemmon Motor Company. It was receipted for by the defendant Willoz, or by his son, who seems to have been employed about the place.

The contention of plaintiff is that it sold to Willoz and not to the Lemmon Motor Company, and there is evidence of plaintiff’s refusal to deal with the Lemmon Motor Company because of worthless checks having been given plaintiff by that concern. Lemmon, testifying for plaintiff, says that at the time this oil and gasoline was delivered, he had leased the station to the defendant, Willoz, upon a basis of one cent per gallon on all sales, that is to say, the corporation of which Lemmon was president did so. On the other hand, the account on plaintiff’s books was carried in the name of W. W. Lemmon at all times and the dray receipts signed by Willoz and his son were in the name of W. W. Lemmon. Willoz denies the lease of the place testified to by Lemmon and there is nothing beyond Lemmon’s statement that there was a verbal lease to support it. No resolution by the Board of Directors or any evidence of corporate action was shown.

Albert Jannack, who sold the oil for plaintiff, when placed in the station by plaintiff, testified as follows:

“Q. As a matter af fact, where did you deliver this stuff?
“A. I delivered it at 1501 Esplanade Avenue.
“Q. What was there?
“A. A filling station.
“Q. Whose filling station?
“A. W. W. Lemmon.
“Q. As a matter of fact, when those receipts were signed, to whom were those goods and material billed to?
“A. To F. F. Willoz.
“Q. Will you kindly look at this receipt No. 22597 and tell me who bought this oil?
“A. W. W. Lemmon, 1501 Esplanade Avenue, bought of the Victory Oil Company, Incorporated, truck No. 12, 600-W five gallons, signed by A. Jannack, receipted by H. Willoz.
“Q. As a matter of fact, this bill shows W. W. Lemmon bought this oil; who is H. Willoz?
“A. That is the kid.
“Q. He signed this receipt?
“A. Yes, sir.
“Q. To show the oil was delivered to this particular oil station?
“A. Yes, sir.
“Q. These 116 gallons, who bought this oil?
“A. W. W. Lemmon, 1501 Esplanade Avenue, signed by H. Willoz.
“Q. These 210 gallons, who bought this oil?
“A. W. W. Lemmon, 1501 Esplanade Avenue, signed by H. Willoz.
“Q. These ten gallons, who bought this oil?
“A. W. W. Lemmon.
“Q. Who signed the receipt?
“A. F. F. Willoz.
“Q. 230 gallons, who bought that oil?
“A. W. W. Lemmon.
“Q. That was signed by who?
“A. F. F. Willoz.
“Q. These 100 gallons, who bought that oil?
“A. Lemmon.
“Q. Receipt was signed by who?
“A. H. Willoz.
“Q. These 200 gallons, who bought that oil?
“A. W. W. Lemmon, signed by H. Willoz.”

The merchandise was sold to Lemmon, charged to Lemmon, and billed to Lemmon. We fail to see how defendant can be held responsible. The question of agency discussed at length in defendant’s brief has no application since it .is not shown that defendant had anything to do with the purchase of the merchandise beyond receiving it when delivered. Under the circumstances, the judgment appealed from must be and it is affirmed.


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    No. 10,306.
    Orleans
    DAVIS WOOD LUMBER COMPANY, Appellant, v. FRANK BENINATE.
    (January 4, 1926. Opinion and Decree.)
    (January 18, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Evidence—Par. 59, 344.
    Defendant’s unsupported testimony will not prevail over the denial of plaintiff.
    Appeal from Second City Court, Hon. George P. Platt, Judge.
    This is a suit for the price of lumber sold and delivered. The defendant alleged a contract whereby $200.00 was to be paid —no extras were to be charged.
    There was judgment for defendant and plaintiff appealed. Judgment reversed.

      E. J. Robin of New Orleans, attorney for plaintiff, appellant.
    Jos. Lautenschlager of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for lumber sold and delivered.

Tbe plaintiffs allege that they sold and delivered to the defendant between September 7 and October 22, 1924, lumber amounting to $318.77, for wbicb tbe defendant has been credited with $7.53 lumber returned and $200 paid cash on December 21, 1924, leaving a balance due of $111.24, wbicb defendant refuses to pay. All of which appears by detailed bills annexed.

According to tbe detailed bill, $203.87 are charged as “Contract” and were delivered on or before October 10, 1924; and $114.90 were sold and delivered on October 22, 1924, and are charged as “Extra.”

Tbe defendant admitted “that tbe plaintiff did furnish him with tbe lumber set forth in tbe itemized account attached” to tbe petition, but denied that any part thereof was “Extra”; be averred that be was about to erect a building; that be bad plans and specifications made; that be submitted tbe same to tbe plaintiff, who told him that he would furnish tbe necessary lumber for $200; that when tbe plaintiff delivered tbe first lumber be noticed that it was short and called tbe attention of plaintiff, who furnished tbe additional lumber, but that be never agreed to pay more than tbe original estimate of $200; that be paid tbe $200 as per contract, but refused to pay tbe extras because be does not owe them.

There was judgment for defendant and plaintiff bas appealed.

Tbe only question is one of fact, did plaintiff agree to furnish all tbe lumber for $200, of course, tbe burden of proof is upon tbe defendant.

He swears that be went out to see Mr. Wood, without saying wbicb one, and presented bis plans to him, and asked him what would be tbe amount of lumber to furnish; and Mr. Wood told him to come back in a day or two and be would give him an estimate and a price upon it; be went back, but Mr. Wood was not there, but tbe man in tbe office, whose name be does not give, was there, and be said $200; defendant told him all right; be furnished no list to Mr. Wood, nor did Wood furnish him with any list; tbe plaintiff sent tbe lumber estimated at $203.87 tbe next day; tbe carpenter that was doing his work noticed a shortage at once; be made out a list of what be was short, and defendant sent it to tbe plaintiff; tbe plaintiff then delivered tbe shortage a few days after, amounting to $114.90.

It is this amount of this shortage wbicb tbe plaintiff is claiming; tbe four dray receipts for tbe shortage are all marked “Extra”, but tbe defendant did not notice this mark “Extra”; tbe receipts for tbe original order are marked, “loe eon.”

There was no agreement as to tbe price of this shortage; after tbe bill for tbe shortage was presented to him be called at tbe office of plaintiff; Mr. Wood was not there,' but be spoke to tbe office man and told him be did not owe that bill.

Robert M. Wood, secretary-treasurer of plaintiff’s, testified that be caused a list to be prepared in bis office of tbe lumber that they would furnish and that be fixed tbe price tbereon; and that it was customary to furnish tbe applicant for lumber a copy of that list witb tbe estimate; they do not make contracts on specifications because they know nothing of building operations; they make a list of what they think tbe contractor wants, or tbe contractor usually submits a list, and they make a copy of it and submit a price on it; they never bid according to. plans and specifications; the defendant furnished the list of articles needed and they gave him a price on it, and that estimate was presented to defendant; the estimate was prepared from a list furnished by defendant; he furnished a list with short lengths which they do not supply, as they do not cut their lumber; but they supply a long piece from which short lengths are cut. The defendant spoke to him when he called at their office; it is customary to hand the list and the estimate to the con-' tractor showing what they would supply for so much money; they do not agree to furnish anything except what is stipulated on the list; “he never, at any time, undertook to supply the defendant with all the lumber that was necessary for him to make the repairs to that particular building, for a fixed price”; they do not know enough about building to guarantee to do such work; it is customary .for the contractor to furnish a list on which they bid; they do not agree to furnish according to his list, but according to theirs, and it is up to him to check it and determine whether the right amount and grades are being furnished.

Defendant has failed to prove that plaintiff agreed to supply him with all the lumber necessary to make his improvements. He swears to it; but plaintiff denies it; and all the circumstances and customs of the trade are against the defendant. Defendant says the agreement was made' with “a man in the office” because Wood was not there at the time; but he failed to identify or to produce the man in the office. His memory also is somewhat deficient.

He says the extra lumber was delivered a day or two after the “local contract,” October 7, 1924, while the dray receipts for the “extra lumber,” signed by 'him, are all dated October 22nd. He says he paid the $200 by cheek two days after delivery of extra, but he does not produce the check. According to plaintiffs’ itemized account annexed to petition the $200 were paid on December 31st, at least two months after the completion of the work.

In deciding for the plaintiff we do the defendant no injury, as he will have received the value of his money. Were we to decide for the defendant he would be enriching himself at the expense of the plaintiff, which the law will not permit. C. C. 1965. The defense is doubtful and must be decided against the defendant.

It is therefore ordered that the judgment herein be reversed and set aside; and it is now ordered that the defendant Frank Beninate be condemned to pay to the plaintiff, the Davis Wood Lumber Company, Inc., the sum of one hundred and eleven 24-100 dollars, with five per cent per annum interest from November 22, 1924, till paid, and all costs of suit with privilege on the dwelling No. 512 Opelousas Avenue; Algiers, Fifth Municipal District of the Parish of Orleans, in the square No. 118, bounded by Opelousas Avenue, Evelina, Yerret and Olivier Streets.


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    No. 9201
    Orleans
    MISS NATALIE V. SCOTT, ET AL., v. JOSEPH A. BRENNAN AND HIS WIFE
    (February 15, 1926. Opinion and Decree.)
    (March 1, 1926. Rehearing Refused.)
    (Writ granted. See Supreme Court Record)

      (Syllabus by the Court.)

    1. Louisiana Digest—Fixtures—Par. 1, 2.
    A water' heater actually attached to a building and connected with the water pipes and heating thereof is “an immovable by its nature” within the meaning and purview of Article 467 of the Revised Civil Code, as amended by Act 51 of 1912.
    2. Louisiana Digest—Fixtures—Par. 8, 11, 12.
    A purchaser of a building may recover such a fixture or its replacement value when it is unlawfully removed by the former owner as vendor of the building.
    Appeal from Civil District Court, Div. “C”, Hon. E. K. Skinner, Judge.
    This is a suit for damages for the removal of a water heater which was attached to and formed part of a certain building, sold by the defendants.
    There was judgment for plaintiffs, and defendants appealed. Judgment affirmed.
    R. B. Montgomery and W. H. McClendon, of New Orleans, attorneys for plaintiffs, appellees.
    H. T7. Robinson of New Orleans, attorney for defendants, appellants.
   BELL, J.

Plaintiffs sue defendants in damages for removal of a water heater which plaintiffs allege was attached to and formed part of a certain building sold to them by defendants. The court a qua awarded plaintiffs the replacement value of the heater in the amount as claimed, but denied other damages. Defendants have appealed. Plaintiffs have not answered the appeal.

There is some conflict of testimony as to whether there was any agreement or representation concerning the heater or its retention by the vendor when selling the building. No such stipulation appears to have been made in the act of sale by which the building and appurtenances were conveyed to plaintiffs.

Defendants, answering the petition, admit that they sold plaintiff the property and improvements described; they deny that the heater was included in the act of sale, and aver that the heater belonged to one of the defendants herein, who removed it when vacating the property. This defendant, as the sole witness for defendants, states that he removed the heater because he considered it to be his property; that its value, eleven years ago, was about $12.00, and that he believes he purchased it at auction for $5.00. The evidence is clear that the heater was attached by the defendants as owners of the building to the water pipes and heating pipes of the building, and that these connections ran to four bathrooms on the several floors of the property. Considering the emergency which required that plaintiffs' should immediately replace the heater with another of equal capacity in order to accommodate several tenants in the building, and further considering that the heater bought by plaintiffs for this purpose was only a second-hand fixture, a fact indicating plaintiffs’ desire to minimize the damage resulting from 'the removal of the old heater, we are unable to agree with the contention of appellant that the amount allowed by the trial judge was excessive.

The important issue presented on appeal is one of law, as to whether, under the provisions of Act 51 of 1912, the fixtures here involved passed to the plaintiffs as an immovable forming part of the property or building conveyed to them by defendants. The Act reads as follows:

“Section 1. Be it enacted by the General Assembly of the State of Louisiana, that Article 467 (458) of the Revised Civil Code of Louisiana be amended and re-enacted so as to read as follows:
“Art. 467 (458). Wire screens, water pipes, gas pipes, sewerage pipes, heating pipes, radiators, electric wires, electric and gas lighting fixtures, bathtubs, lavatories, closets, sinks, gas plants, meters and electric light plants, heating plants and furnaces, when actually connected with or attached to the building by the owner for the use or convenience of the building, are immovable by their nature.
“Section 2. Be it further enacted, etc., that no court shall have jurisdiction or power to declare that any such articles above referred to are movables and treat them as such.”

It is contended by counsel for appellant that the foregoing provision of the Act which nominated the several objects or things which are to be considered immovable is in no sense illustrative, but, on the contrary,, is in every way restrictive, and that if the lawmaker, after naming the various things referred to in the Act as immovables, had added the words, “et cetera,” or the words, “or other similar things connected to the building,”.it might be argued that water heaters were included, but no such expressions having been used, the Court cannot supply them. We do not give to the Act such a restricted judicial interpretation, for it is plain that the fixture involved in this case is such as was contemplated by the Legislature. It should be noted that in the second section of the Act, the provision is made, “that no court shall have jurisdiction or power to declare that any such articles above referred to are movables.” (Italics ours.)

The learned judge of the trial' court did not err in applying the provisions of the aforesaid Act to the instant case.

It is therefore ordered that the judgment appealed from be affirmed, at defendant’s cost, in both courts.


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    No. 9168
    Orleans
    CITY OF NEW ORLEANS, Appellant, v. MRS. ANNA GLASER, Executrix, ET AL.
    (February 15, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Appeal—Par. 694; Pleading—Par. 62.
    When counsel for defendant and appellee fail to appear for argument and fail to file a brief in this court, a judgment maintaining an exception of no cause of action will be reversed where the petition of plaintiff, superficially considered, appears to present a cause of action and no reasons are given for judgment by the trial court.
    Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.
    This is an appeal taken by the plaintiff from a judgment maintaining an exception no cause of action.
    Judgment as to exception no cause of action reversed and case remanded for further proceedings. Judgment on the merits amended and affirmed.
    I. G. Kittredge and W. C. Jones of New Orleans, attorneys for plaintiff, appellant.
    H. S. Suthon and F. Zengel of New Orleans, attorneys for defendant, appellees.
   WESTERFIELD, J.

This is an appeal from a judgment maintaining an exception of no causé of action.

The City .of New Orleans sued Mrs. Anna Glaser, widow of Michel Glaser, Jr., and Albert Glaser in solido, alleging that:

“Mrs. Anna Glaser is the widow of' Mi chel Glaser, and at one time was the executrix of his succession, No. 132,017, C. D. C. The succession owned several pieces of property in the City of New Orleans on which the taxes for 1920 had not been paid.
“During the month of August, 1921, the city treasurer was preparing to advertise and sell these properties for the unpaid taxes of 1920, and was also about to sell four certain lots in this city assessed in the name of M. Glaser, Jr., and owned by M. Glaser, Jr., and Albert Glaser, sons of Michel Glaser, Sr., the deceased.
“At this juncture Mrs. Anna Glaser, accompanied by Mr. Glaser, Jr., called on the city treasurer and tendered him a post dated check covering all of the taxes due on the properties belonging to the succession, as well as the taxes due on the four lots owned by the sons of Michel Glaser.
“Acting on the faith of this check and defendants’ subsequent promises to make same good, tbe city treasurer discontinued the advertisements and proposed sale of all the properties, and issued tax researches showing that the taxes for 1920 had been paid.
“The property belonging to M. Glaser, •Jr., and Albert Glaser was sold under these conditions by the civil sheriff, who, acting upon the clear certificates, did not deduct the taxes for 1920, and presumably turned over the proceeds of the sale, including tbe amount due for the taxes of 1920, to-wit, $528.75 to Michel Glaser, Jr., and Albe: t Glaser.
“As a matter of fact, these taxes had not been paid, and have never been paid, because the post dated check given to the city treasurer was in due course dishonored and never made good as far as tbe amount of taxes due on the property of Michel Glaser, Jr., and Albert Glaser was concerned.”
(As epitomized in plaintiff’s brief.)

Upon the calling of the case in this court no appearance was made on behalf of any defendant, and we have not been favored with any brief by defendant’s counsel. No reasons for the judgment of the trial judge appear in the record. Under the circumstances we are not informed of the nature of the contention of defendants successfully urged below. The petition seems to us, superficially, at least, to support a cause of action as to Mrs. Anna Glaser. Since taxes are not a personal debt, Converse vs. Fitzpatrick, 135 La. 619, 65 South. 761, the exception is obviously good as to the defendants Michel Glaser and Albert Glaser.

For the reasons assigned the judgment appealed from is amended in so far as it is in favor of Mrs. Anna Glaser, and it is now ordered that the exception of no cause of action, in respect to Mrs. Anna Glaser, be overruled and the case remanded for further proceedings. In all other respects it is affirmed.


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    No. 10,068
    Orleans
    FERNAND CAPDEVIELLE, Appellant, v. JOHN CHRISTINA
    (March 1, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Assault and Battery —Par. 1, 8.
    Under a general denial in a suit for assault and battery the defendant may not show provocation as a defense, but only in mitigation of damages.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Twenty-fourth Judicial District Court for the Parish of Jefferson, Hon. Prentice E. Edrington, Judge.,
    This is a suit for damages done by defendant’s hogs and for the price of bread sold and delivered, which were admitted by the defendant to be due, and also for damages for assault and battery.
    There was judgment for defendant upon the three items, and plaintiff has appealed. Judgment reversed as to the third item of damages for assault and battery. Allowance made for actual disbursements.
    T. F. tTiessier of New Orleans, attorney for plaintiff, appellant.
    T. A. Middleton of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

The plaintiff sues upon three causes of action:

First. $13.25 for damage by defendant’s hogs to his property.

Second. $13.34 price of bread sold and delivered by plaintiff to defendant.

These two items are admitted by' defendant to be due to plaintiff.

Third. $1,650.25 damages for assault and battery by defendant upon plaintiff.

There was judgment for defendant upon the three items and plaintiff has appealed.

The plaintiff alleged that he was a neighbor of defendant; that on August 25th, 1923, the defendant, John Christini, maliciously and without probable cause assaulted and beat him on his property, causing him to employ a doctor and to remain in bed for nine days with great suffering; that plaintiff is a baker by trade; that he bakes and delivers his bread in person; that in consequence of his confinement he was compelled to employ a baker, whom he paid $58.50; a helper to deliver bread, whom he paid $22.50; an X-ray picture, $15.00, and a doctor, $54.25, making a total of $150.25; and that his sufferings are worth $1,500.00.

The defendant admitted that plaintiff and he were neighbors; he admitted that he owed plaintiff $13.34 for bread, but denied all the other allegations of the petition.

There was judgment for defendant, and plaintiff has appealed.

Upon the trial of the case the defendant offered testimony to show the cause leading to the assault by defendant upon plaintiff. To the introduction of this testimony the plaintiff objected upon “the ground that the defense in this case is a general issue; if the defense is to show a justification for assault and battery, that that is a special defense, and has not been made.”

The objection was overruled and the testimony admitted. The testimony was admissible “in mitigation of damages.” Caspar vs. Prosdame, 46 La. Ann. 36 (38), 14 South. 317.

Besides, the plaintiff could not be surprised by the testimony. 2 H. D. 1155 No. 1.

The facts of this case are as follows;

Madison Edwards, an employee of plaintiff, was dumping wood from a cart upon the ground; the defendant remonstrated with him and told him that the ground upon which he was dumping the wood was his property, and that he objected to it; and that if he continued he would have him arrested. Thereupon Edwards desisted and went to the plaintiff and informed him of defendant’s objection; the plaintiff told Edwards to continue to dump the wood anyhow; this Edwards refused to do, when plaintiff told him he would do it; plaintiff then proceeded to the cart and took up a piece of wood, which he threw upon the ground in the presence of defendant; the defendant then told him that he had had the ground surveyed by Zander, a surveyor; that the surveyor had driven stakes in the ground to designate the lines; he showed the plaintiff the stakes, and those stakes showed that the place where' plaintiff wanted the wood dumped was upon defendant’s property; that plaintiff had refused to join defendant in having the survey made; that nevertheless the plaintiff persisted and proceeded to take sticks of wood from the cart and throw them upon defendant’s land; that defendant then picked up the sticks and threw them back into the cart; finally he struck the plaintiff and they grappled, and both fell upon the ground; they continued the fight until plaintiff was badly beaten, with the result that he was disabled from work for nine days.

Although the courts cannot condone the action of the citizen in asserting his rights with violence, it looks with indulgence upon this method of protecting his property and accepts the act in mitigation of the damage. Under the circumstances of this case we are of the opinion that the plaintiff is entitled to be reimbursed the money actually disbursed by him, but nothing more. This is:

Expense for baker --------------------------------$ 58.50
Expense for helper ______________________________ 22.50
Doctor _____ 54.25
X-ray ___________ 15.00
Damage by hogs ____________________________________ 13.25
Bread ____________ 13.34
Making a total of-------------------------$176.84

It is therefore ordered that the judgment herein be reversed and set aside; and it is now ordered that the defendant John Christini be condemned to pay to the plaintiff the sum of one hundred and seventy-six 84-100 dollars, with five per cent per annum interest from October 6th, 1923, till paid, and all costs of suit.


author: MOUTON, J.

text:
    No..........
    First Circuit
    ADRASTE LANDRENEAUX v. LOUISIANA WESTERN RAILROAD CO.
    (December 8, 1925. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial court that a shipment of potatoes were damaged in transit by the railroad, being clearly correct, is affirmed.
    Appeal from the Parish of Evangeline, Hon. B. H. Pavy, Judge.
    This is a suit to collect damages for deterioration of potatoes while in transit due to the negligence of the railroad.
    There was judgment for plaintiff and defendant appealed. Judgment affirmed.
    J. H. Dore and J. C. Fruge of Ville Platte, attorneys for plaintiff, appellee.
    Dubuisson, Perrault & Burleigh of Opelousas, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff, January 16, 1924, shipped a lot of sweet potatoes from Mamou, La., to Waco, Texas, over the lines of defendant company. The consignee refused to accept the potatoes when they arrived at their point of destination because of their deteriorated condition. They were sold in the open market at a price much under their usual commercial value. This suit is brought against the company for $434.95, the loss plaintiff alleges he has suffered. Judgment was rendered in favor of plaintiff for $408.59.

Defendant appeals.

The potatoes reached Waco three or four days after they were shipped. There was no delay in transit. They were, however, in bad condition when they arrived in Waco, and had to be disposed of at a loss. Plaintiff, the record shows, has a sweet potato curing plant at Mamou, and has three or four years’ experience in shipping potatoes. He supervised the shipment and instructed those that loaded the potatoes to ship only those that were good and sound. Bess Richard and his son, Nelson, loaded the potatoes, which were assorted and classified by them before they were loaded. They both say they were good and sound. Bess Richard says they had no field cuts, meaning, he says, cut by the plow. Plaintiff says he had always instructed the loaders not to load any that had field cuts.

Professor J. J. Taubenhaus, Chief of the Division of Plant Pathology and Physiology of the Agricultural College of Texas, testified in the case. He had examined samples of the potatoes after their arrival in Waco. He said the specimens in the package submitted to his investigation showed “evidence of cuts and bruises.” The evidence of the witnesses of plaintiff, above referred to, flatly contradicts this statement, and shows there were no cuts on these potatoes.

Plaintiff admits there were bruises on them when shipped, but says “we can’t help that in handling them.” Clearly such bruises must be slight and are the necessary result of handling, the potatoes for shipment. Professor Taubenhaus said cuts and bruises have the effect of opening the way to mush rot or soft rot in potatoes. There were no cuts when they were shipped, as appears from the preponderance of the evidence, and there were no openings for the entering of the poison that could have brought on the decay of deterioration in the potatoes. As to the bruises, they were the necessary result of their “handling.” The potatoes were assorted and classified, and the inference is, were carefully handled. These bruises must have been slight, and it is not probable affected a considerable part of the shipment. We do not think such bruises were the cause of the decay which appeared in the potatoes when they reached Waco. If such bruises, which plaintiff says could not be helped in handling the potatoes, could cause such deterioration, it would be practically impossible for farmers to ship them to distant markets for sale. They would, in most every ease, be debarred of recovery for damages in cases of the character here presented.

Bess Richard, one of the loaders, says the potatoes were sound, but had scratches which were made by their finger nails. There is no evidence from Professor Taubenhaus or any other witness showing that such scratches could have caused the deterioration in the shipment.

Across the bill of lading plaintiff wrote these words: “Vents open.” Attorneys for defendant contend that these words are the only instructions given by plaintiff at the time of shipment. Counsel say: “The notation was the expression of a fact and amounted to a warning, meaning: ‘The vents on this car are open; if a freeze comes be sure to close them.’’ True, this shipment was in January, but as the direction given by the shipper was that the vents were open, it must be presumed that the weather was 'then not cold, or rather warm for the season, and so continued to the time of the arrival of the potatoes in Waco, as there is no proof to the contrary. It is shown by t'he testimony of Miller, a resident of Waco, and with fifteen years’ experience in handling potatoes, that he found the car in which the potatoes had been shipped, with three, plugs in, and one out, vents down and the car practically sealed up. He says on inspection he found the car “full of steam rising from the heated potatoes.” This evidence makes it clear that the putting down of the vents had caused the overheating of the potatoes, which were steaming hot, if we are to believe this witness, whose credibility is not attacked. It was the duty of the defendant, common carrier, to take reasonable precautions to preserve these potatoes from injury. The defendant can not say as an excúse for not keeping the “vents open” that it was obeying the instructions of the shipper. To the contrary, it had taken the opposite course even if we are to accept the meaning of the • words written across the face of the bill of lading as merely conveying a message or warning to keep the “vents open.” The deterioration in the potatoes was not the result of any cuts, bruises or scratches existing when shipped for which plaintiff can be held responsible. The loss was not caused by the wrong or fault of the shipper. It was the result of the fault of defendant company in transporting the goods without proper ventilation, or its failure to exercise reasonable precautions to protect them from injury.

The amount of $408.59 accorded, being supported by the proof, the júdgment is affirmed with cost.


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    No. -
    First Circuit
    WILLIE LEBRAY v. SAM VICARI
    (November 10, 1925, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest—Appeal—Par. 625.
    Tbe finding of tbe trial court as to a matter of fact, namely, tbe question of negligence of the minor son of the defendant, being clearly correct, is affirmed.
    Appeal from the Parish of East Baton Rouge. Hon. W. Carruth Jones, Judge.
    This is a suit arising out of an automobile accident in which a truck in which the plaintiff was riding overturned.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Leslie A. Fitch, attorney for plaintiff, appellant.
    Charles A. Holcombe, of Baton Rouge, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff was injured in an automobile accident on the Highland road in the Parish of East Baton Rouge on Saturday, December 8, 1923. Plaintiff was riding in a truck which was being driven at the time by Collie Vicari, the minor son of defendant herein, against whom this suit is brought in damages. The claim was rejected and plaintiff appeals.

No question of law is raised in this case, the issue presented being almost entirely one of fact. The sole contest submitted is as to whether Collie Vicari, the minor son of defendant, who was driving the truck, was guilty of negligence at the time of the occurrence.

Sam Vicari, defendant, is a merchant and runs a store on the Highland Roadway some distance from the place where plaintiff was injured. His son, Collie, left the store in a truck to make delivery of merchandise at different points. Upon leaving plaintiff got in the truck with Collie and Spina, a companion of the driver. Much is said as to whether plaintiff was riding in the truck as an invitee. The proof is not clear on this question, but we will consider him as such in passing on the issue presented.

Collie was driving southward and his truck, upon reaching a portion of the Highland road where it is cut in a hill forming banks on each side, was turned over, resulting in the injuries of which plaintiff complains. These banks, as the record shows, rise to a height of some six or eight feet on each side of this roadway. In his petition plaintiff alleges: “That as the truck approached the bottom of the hill (which is the portion of the road above described) that Collie Vicari lost control of said truck in such a manner, as to cause it to swerve to the west side of the road, which it did, striking the bank on that side with such force and violence as to completely overturn said truck, and the momentum by its speed just prior thereto propelled your petitioner through the air a distance of approximately twenty feet, in such a manner that he fell upon the ground, severely injuring him”. The defendant, on the other hand, alleges as the cause of the accident, that the truck his son was driving on the Highland road was struck by a large automobile which was coming in a northerly direction on said road; that plaintiff, realizing the certainty of a collision, jumped out of respondent’s truck .and was thereby injured. Defendant, in his answer, ascribes the accident to the fault of the driver of the automobile that ran into his truck, and asks exoneration for the damages claimed.

•Willie Crockett, witness for plaintiff, when asked if he knew anything about the “wreck”, answered: “Yes, sir, ‘in parts’.” Thereafter, he explains that he knew nothing of the accident' except the impression he saw on the back of the truck where it struck the ground, but that lj.e did not see when it happened. Jake Keller, another witness for plaintiff, says he was about 55 or 60 yards from the truck when the accident happened. He says he saw when the truck hit the west bank. When asked if he claimed to know how the wreck occurred, he said: “No, sir, no more than hearing him strike the bank. That is all I seen.” He testifies that the truck was coming down hill at the speed of about 30 miles an hour; that he did not see any other automobile at the time of the wreck, and from the position he occupied would have seen one if any had been on that roadway. Tobe Richardson, another witness for plaintiff, says Collie Vicari was ^driving the truck fast, and in a reckless manner. He likewise saw no other automobile at the time. The only thing he could see, he says, “was the hole in the ground where they ran into the ditch bank”. This witness seems to have seized on the leading issue of the complaint in saying he had seen a hole in. the ground caused by the impact of the truck, a fact not testified to by any other witness, if we have correctly read the note of evidence. This testimony in reference to the “hole” does not harmonize with the theory of the defense where counsel explains that the truck “did not run to the bank head on, but approached it at an angle, etc.”, and where, he says further on, in referring to the truck, that it will thus be seen that the right side would never come in contact with anything that could injure it, etc.” If the impact of the truck was such as to tear a hole in the ground, as stated by Richardson, the truck unquestionably came in contact with something that could injure it.

Richardson was walking on the Highland road and was going in the same direction that defendant’s car was traveling, which passed him, as he testifies, a long while before it got to the place where the wreck occurred. He says he did not see how it happened; that he was around the corner from the car and did not know if he was “three or four or five blocks”. He does not seem to have heard the wreck as was the ease with Crockett, the other witness. The record shows that Richardson has a police record and had been six or seven times in jail for drunkenness and disorderly conduct. Two officers, well acquainted with him, testified they would not believe him under oath. In all probability, from the character of his evidence, and his record, the court reached the same conclusion as to his veracity.

Lebray, plaintiff, testified that Collie, with whom he was riding, was speeding along the highway, and that he cautioned him against running at such a rate of speed, particularly, as it was Saturday night wheh many cars were traveling this roadway; that Collie continued in this reckless speed down the hill and that as he got around the curve ran into the bank which skirted the road, throwing him out of the car, thus inflicting the injuries for which he sues in damages. He is certain there was no other auto around at the time which ran or could have run into Collie’s car, as asserted by defendant.

Dr. E. 0. Trahan, a practicing physician of the city of Baton Rouge, was called upon to attend to the injuries of the plaintiff, and which he says he understood was immediately after the accident. He testified that he asked plaintiff how the accident happened, to .which he veplied that “he saw they were going to run into somebody”; that he tried to jump out and in doing so fell down. On cross-examination counsel for plaintiff asked the doctor if he had not asked plaintiff “if this was a wreck between two cars”. His answer to this question is: “He told me that he thought another car had run into him.” If we understand counsel for plaintiff correctly, he points out that the questions propounded by the doctor were suggestive, and in a way account for the answers of defendant. Not only did the plaintiff answer that another car was about running into Collie’s auto, but also said that he had tried to jump out, and, in doing so, fell. There was nothing in the question that could suggest such an answer, which was made immediately after the accident when the facts were still fresh in plaintiff’s mind. This answer of plaintiff not only contradicts his testimony when he says the cause of the accident was the running of Collie’s auto into the bank, but also that portion of his statement where he says the car ran into the bank with such great speed that it “throwed me out of the car”, which is contrary to his statement that he “tried to jump out”. These statements of the plaintiff to Dr. Trahan are also in direct conflict with the grounds of complaint of the plaintiff, as appears in his petition above reproduced.

Collie, the driver, and Spina, his companion, both testify they were going at about 15 or 20 miles an hour when a big auto going northward, in the opposite direction to the car of defendant, ran into their car on the left side, causing the damage. This was on a dark night, as testified by all the witnesses. Spina and Collie both say that the auto which ran into them was running fast and had no lights; that their car Was being driven on the right side of the road when the collision happened. Their testimony in reference to their car being run into by the auto is in line with the admission of the plaintiff to Doctor Trahan that he tried to jump out to avoid an impending collision. The first parties to appear on the scene after the wreck were Lungaro, Lassario, Melancon and Percy Ivy.

Lungaro and Lassario were traveling in a car going in a direction opposite to that in which defendant’s car was moving. They both say a big . car going in the same direction they were traveling passed ahead of them, going fast and without lights. Lungaro did not see when the cars collided, but saw the lights flicker when defendant’s car turned over, while Lassario says he saw the collision and heard the noise caused by the wreck. Percy Ivy was in his yard working, heard the noise of the wreck, and came immediately upon the scene. He says he heard the noise of more than one car, although he admits he did not see another automobile. He testifies that the damage to the truck was on the left side, and that it was turned over on the right hand side of the road. Melancon, who was also an occupant of Lungaro’s car, says he saw this big auto pass along without lights at a lively speed and going northward. He did not see the collision, but heard the noise and saw the light of the Collie car flicker out. It is well established by the record that the left side of defendant’s car, the running board, also the fender, were badly broken or torn up. It is also well shown that defendant’s car was found immediately after the wreck, on the right side of the road. These physical facts make it quite clear that the damage was caused by another car running into defendant’s car, as the smashing up of the left side of defendant’s car could not possibly have been the result of the defendant’s car climbing up the bank on the west side of the road, as counsel for plaintiff attempts to explain. Counsel for plaintiff attempts to throw a doubt on the evidence of Lungaro, Lassario and. Spina, because, with defendant, they are of the Italian lineage or race, and even on friendly relations with defendant. The fact that they were friends and of the same nationality is certainly not sufficient to affect their credibility as witnesses, and to discredit them in a Court of Justice. Let us say they are Italians, and that it were permissible to allow a feeling of suspicion to hover over their testimony because of their lineage; there still remains the evidence of Melancon and Percy Ivy, which corroborates the evidence of Collie Vicari in all of its essential particulars. In addition thereto comes the evidence of Dr. Trahan, the physician of defendant, but certainly not of Italian extraction, to whom plaintiff made the damaging admission that he had jumped out of the car to escape the danger of a collision.

In conclusion, we will say, that the noise which Jake Keller, witness for plaintiff, heard, which Percy Ivy also heard from his yard, was, it may reasonably be inferred, the noise that was caused by the impact of these two cars going in opposite directions or the collision testified to by Collie Yicari, Spina and Melancon. We have made a .careful, elaborate and possibly a too lengthy analysis of the evidence in the record, but are unable to find support of the claim of the plaintiff that the injury had been caused by defendant’s car running in the hank on the side of the Highland Roadway. Evidently the District Judge arrived at the same conclusion, found it was not shown defendant was at fault, rejected the demand, and correctly.

Affirmed.


author: ELLIOTT, J.

text:
    No. 2225
    First Circuit
    OZEUS VIDRINE, ET AL., v. ZENON GUILLORY
    (December 8, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Transaction or Compromise—Par. 15.
    Under Articles 3071 and 3120 of the Civil Code and Articles 448 and 454 of the Code of Practice, parol evidence of a compromise agreement is inadmissible.
    2. Louisiana Digest—Waters and Water Courses—Par. 8.
    Under Articles 660, 661 and 777 of the Civil Code, one can recover for the damages to his estate done by the artificial obstruction of drainage on an adjacent estate and compel the removal of the obstructions.
    Appeal from the Thirteenth Judicial District Court, Parish of Evangeline. Hon. B. H. Pavy, Judge.
    This is a suit to compel a landowner to take down his levees and restore the bottom of a slough to its natural condition so that it can drain the lands of the plaintiff and defendant unobstructed, and for damages caused by this obstruction.
    There was judgment giving plaintiffs partial relief.
    Defendant appealed.
    Plaintiffs answered appeal.
    Judgment amended and affirmed, giving plaintiffs the relief prayed for.
    O. E. Guillory, of Ville Platte, attorney for plaintiff, appellee.
    A. H. Garland, of Ville Platte, attorney for defendant, appellant.
   ELLIOTT, J.

Ozeus Vidrine and Avit Guillory, each owning a tract of land, contiguous to a tract which belongs to Zenon Guillory, situated below them, allege that their tracts are drained by a slough which runs through the tract owned by Zenon Guillory and that he has erected levee's on his land which obstruct the free flow of the water from their lands down through said slough, and prevent the water from flowing off their estates, thereby injuring them; they pray that he be required to take down his levees and restore the bottom of the slough to its natural condition, so it can drain their lands naturally as it did before it was obstructed by him.

Defendant denies the existence of levees on his lands and avers that as a result of a compromise agreement entered into between them, the plaintiffs and himself, several years previous, and on account of a former suit between them on the same subject matter, he had removed his levees so as to allow a space of 60 feet, in which the water could flow from plaintiffs’ lands through his land, in the vicinity of said slough.

That the dirt taken from said slough in building said levees was replaced by him where it had been taken from; therefore, if there is complaint, the fault lies with plaintiffs for having demanded the restoration of the land to its former condition.

The district judge rendered judgment, taking the compromise agreement alleged by defendant as the basis for the same. He gave the plaintiffs partial relief and condemned the defendant to pay the cost.

The defendant appealed. The plaintiffs have answered his appeal and pray that the judgment appealed from be corrected and amended so as to compel defendant to remove his levees and restore the drain to its natural condition and as prayed for in their petition.

It is true, legal servitudes may be altered by agreement in some cases, not in every instance. C. C. Art. 752.

The plaintiffs deny that they ever agreed to the alteration of this drain, and when the plaintiff was on the stand in his own behalf, defendant asked him on cross-examination a question, the purpose of which was to get him to'admit that a compromise agreement had been entered between the plaintiffs and defendant, as alleged in defendant’s answer; the plaintiff by his counsel objected on the ground that a compromise was not admissible in evidence and must be shown to have been in writing. The objection was overruled- and a large amount of testimony was heard and considered concerning a compromise agreement which was to have been reduced to writing, signed by the parties and made the judgment of the court. The suit then pending has been lost and cannot be found.

The defendant testified on the present trial that a certain arrangement was agreed to and that he complied with it. The plaintiffs contend that the arrangement which they entered into was otherwise and that defendant has not complied with it. Whatever the agreement was, it was not reduced to writing; the parties never signed anything and the court never rendered any judgment based on any agreement. The objection should have been sustained, the evidence on the subject excluded. C. C. Arts. 3071, 3120; C. P. Arts. 448 and 454.

The ruling of the court admitting the evidence will be set aside and all the evidence on the subject will be disregarded.

The defendant has been giving the plaintiffs trouble for years and causing them damage by his conduct concerning said drain. He did take off the tops of his levees, but be placed the dirt taken from the top of the levees in the bottom of the slough.or drain in such a way that the bottom was filled up and raised, with the result that the water was held by the elevation of his land on the land of plaintiffs and could not flow off down through said slough on his land as it did before he erected levee and . filled up the drain on his land.

Defendant’s artificial works obstruct the drainage of plaintiffs’ lands through said slough and injure plaintiffs, and have been doing so for several years. The evidence shows that plaintiffs are entitled to the amendment prayed for in their answer. C. C. Arts. 660, 661, 777; Hooper vs. Wilkinson, 15 La. Ann. 497; Ludeling vs. Stubbs, 34 La. Ann. 935; Foley vs. Godchaux, 48 La. Ann. 466, 19 South. 247.

It is therefore ordered, adjudged and decreed that Zenon Guillory, defendant, as soon as this judgment becomes final, take down all the levees and obstructions erected by him on his land, which obstruct and hinder the flow of the water from plaintiffs’, Ozeus Vidrine and Avit Guillory’s land above him, through said natural drain or slough on his land, take out all the dirt and other matter placed by him in the bottom of the slough or drain to the extent necessary to give the bottom the same depth and level on his land that it formerly had before he filled in the same, and so as to not embank and hold the water in said slough on the lands of plaintiffs, but permit same to flow off their lands down said slough through his land, without hindrance from his works, and that he maintain said drain on his land in said condition. As thus amended and corrected the judgment appealed from is affirmed, the defendant and appellant to pay costs in both courts.


author: LECHE, J.

text:
    No. -
    First Circuit
    BASQUIN RIDER v. EUGENE ARDOIN
    (December 8, 1925, Opinion and Decree)
    (January 28, 1926, Rehearing Refused)

      (Syllabus by the Editor.)
    1. Louisiana Digest—Libel and Slander— Par. 50.
    In an action arising out of slanderous assertions it is not necessary for the plaintiff to allege the exact and precise language in which the slander was uttered in order to state a cause of action.
    Appeal from the Parish of Evangeline. Hon. A. H. Garland, Judge ad hoc.
    This is a suit for damages for slander.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A. V. Pavy, of Opelousas, attorney for plaintiff, appellee.
    S. W. Gardiner and J. H. Dore, of Ville Platte, attorneys for defendant, appellant.
   LECHE, J.

Defendant appeals from a judgment condemning him to pay to plaintiff two hundred dollars damages for slander. Plaintiff in his answer to the appeal, asks that the judgment be increased to the sum of one thousand dollars and as thus amended that it be affirmed.

Two workmen were building or graveling a road that seperates the properties of plaintiff and defendant, and in company of plaintiff were standing in front of the latter’s premises when defendant came upon them. Defendant was evidently dissatisfied with the location of the road and this accounts for the words he uttered to plaintiff. He was accompanied by other persons and he complained that more of his land than that of plaintiff had been taken for the purpose of building the road. A general discussion then ensued and, without cause or provocation, defendant finally roused himself into great excitement and indulged in the insulting remarks which he addressed to plaintiff in the presence of the bystanders. He told plaintiff that he was a hog and charged him with stealing lard belonging to one Johnson. Plaintiff as a witness says that the words used by defendant were: “I am more honest than you; you stole the lard of my best man; you are a thief”. Another witness says that defendant used the following language in addressing plaintiff: “I am far from being as crooked as you; I never stole lard from anyone as you did; you stole all the lard that I could advance to one of my best men, Clin Johnson.” Several persons were present when these words were spoken, and a similar charge was uttered by defendant to other persons on other occasions.

Defendant does not deny having made the utterances which were testified to by plaintiff and several other witnesses, but he contends in defense of plaintiff’s claim for damages that both he and plaintiff indulged in opprobrious epithets to one another in a moment of excitement; that plaintiff is not entitled to any damage and, on trial of the case, he attempted to prove the truth of his remarks in justification.

The testimony is clear to the effect that there was no mutual exchange of abusive language and insults, that plaintiff was cool and, on the contrary, attempted to calm defendant and to convince him that no wrong had been done to him; that the persons present, and especially he and the laborers, had had nothing to do with locating the road. Defendant’s attempt to prove that plaintiff had stolen lard from Olin Johnson was equally abortive.

It is also contended by defendant that the proof is at variance with the language in which the slander is charged in the petition, is substantially the same as testified to by the witnesses. We know of no law which compels a plaintiff in charging a defendant with slander' to allege the exact and precise language in which the slander was uttered, though it may be different with regard to libel.

The whole matter at most is trivial. It is not shown that plaintiff, who enjoys a good reputation in his community, has suffered any great injury beyond some humiliation. Tiie amount allowed to him by the trial judge is ample and sufficient redress.

The judgment appealed from is therefore affirmed.


author: WESTBRFIELD, J.

text:
    No. 10,110.
    Orleans
    VINCENT PICATACCI ET AL., Appellant, v. GEORGE PALERMO.
    (January 4, 1926. Opinion and Decree.)
    (February 1, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Assault and Battery —Par. 4, 5.
    In an action for damages for physical injuries alleged to be due to an assault and battery where the evidence shows the plaintiff to be the aggressor, defendant will not be held liable, particularly where it appears that the assault consisted of a slap or push with the hands in return for a blow upon the neck.
    2. Louisiana Digest—Assault and Battery —Par. 8.
    The fact that the defendant was convicted of assault and battery in Criminal Court based upon the same incident made the basis of a suit in damages is a circumstance unfavorable to the defendant, but is not conclusive, and when the evidence adduced in the civil suit clearly preponderates in defendant’s favor, the unfavorable impression which the conviction of defendant created will be removed.
    (Civil Code, Art. 2315. Editor’s Note.)
    Appeal from the Civil District Court, Parish of Orleans, Div. “B”, Hon. Mark M. Boatner, Judge. ,
    This is a suit brought by the father and mother in behalf of their minor son for damages on account of alleged injuries due to assault and battery on their son.
    There was judgment for defendant and plaintiff appealed. Judgment affirmed.
    Woodville and Woodville of New Orleans, attorneys for plaintiff, appellant.
    A. Landry of New Orleans, attorney for defendant, appellee.
   WESTBRFIELD, J.

Vincent Picatacci and Corinne Picatacci, father and mother, respectively, bring this suit on behalf of their minor son, Matteo Picatacci, against George Palermo, claiming $13,000.00 as damages on account of alleged physical injuries suffered by their son as the result of an alleged assault and battery said to have been committed by- the defendant upon the person of their said son. Plaintiffs allege “that on or about May 21st, 1923, at the corner of Chartres and Governor Nicholls Streets, George Palermo, of lawful age and a resident of this City and State, for no cause or reason, and without provocation, brutally beat, struck and mauled and kicked their minor child, Matteo Picatacci."

Defendant avers that plaintiffs’ son, “a large boy, apparently fourteen years of age, together with other boys, were creating a disturbance at the corner of Governor Nicholls and Chartres Streets, where defendant conducts a grocery store and resides; that Matteo Picatacci and his companions were abusing and threatening to fight and beat a boy about their age who was in defendant’s place of business; that defendant ordered said Matteo Picatacci and his companions away from his place of business; that when defendant advanced toward' said Matteo Picatacci and ordered him away, the said Matteo Picatacci struck him, defendant, with his fist; that in order to defend himself, which he had a right to do, defendant gave said Matteo Picatacci a slap, and that this was the only blow struck by him, and only after provocation and in self-defense.”

There is no doubt of the fact that plaintiffs’ son was severely injured at about the time of the alleged assault. Dr. Salerno testified to that effect, and there is no evidence, to the contrary. But to what extent the injuries may be said to be due to an assault, whether committed by defendant or someone else, is difficult to determine. There is evidence to the effect that Matteo fell from a moving truck and that he also fell in a successful effort to break jail in Memphis, both incidents occurring shortly before the date of the alleged assault. It is probable that the bruises and contusions about his body were of very recent origin, whatever may be said of the fracture of a bone in his hand. We conclude on this point that Matteo was injured on the date mentioned in his petition and from an assault or fisticuff and we will assume that it was defendant’s fist that injured him, though this is not by any means clear. But if Matteo was the aggressor, he cannot re-cover. William Page vs. Robert Hilliard, 14 Orl. App., p. 11; Webre vs. Troscler, No. 9516 Orl. App. If defendant assaulted plaintiff in self-defense, he is not liable in damages. Stothart vs. Louisiana-Arkansas R. Co., 127 La. 409, 53 So. 658; Hingle vs. Myers, 135 La. 383, 65 So. 349; Carneglia vs. Fratello, 144 La. 795, 81 So. 318; 5th Corpus Juris 635; Cooley on Fists, p. 165.

Vincent Delosandro, Nuzio Brocato, Ignozio Giordino and plaintiffs’ son Matteo Picatacci met in front 'of the defendant’s grocery store and engaged in general swearing and some fighting. Defendant, George Palermo, undertook to quell the disturbance which centered about plaintiffs’ son, Matteo Picatacci. Plaintiffs’ witnesses and plaintiffs’ son declare that Palermo beat Picatacci severely without provocation, at least, nothing more than a verbal barrage of denunciation. Two witnesses testify to this effect, Joe Vaccaro and Mrs. Paulino Ponniglio. On the other hand, defendant claims that Pieatacci struck him in the neck with his fist and that he (defendant) did nothing more than to stop or push Picatacci in return. Defendant is corroborated by Prank L. Paust, who says that Picatacci hit “George” in the neck and that “George” shoved him and he tripped and fell down on the banquette. Mary Ganco says: “I seen Mr. George Palermo going towards the ice house when the boys jumped on him. Picatacci started at George Palermo, but I never see George hit Picatacci at all.” Nuzio Brocato testified that, “Mr. George Palermo went up and told them to stop cursing, they had some ladies nearby, and after Mr. Palermo stepped into his grocery, they started again and he came out and said stop it again. They were raising a disturbance. And after-wards they sent some boy named Joe to the grocery to tell George Palermo they wanted to fight George, and George went up to them and they hit George in the back of the neck.”

“Q. Who hit George in the back of the neck?
“A. Matteo Picatacci, he hit George and shoved him and naturally he fell on the side and everything was over.”

Ignacia Giordina testified: “So this little kid came over there and said ‘Come on and fight, they will fight you.’ They meant Delosandro. We told Delosandro to get away, and they were cursing, and Mr. George Palermo went over and told them to quit cursing, and the Picatacci boy hit Mr. George Palermo on the neck and George just shoved him off.”

Vincent Delosandro testified: “I was standing on Chartres and Governor Nicholls, and my little cousin, Vincent Brocato, called me over and said they wanted to fight me. So I told them that if they wanted to fight, and they said yes and the whole three of them said yes. So I wanted to take them on Barracks and Chartres Streets. I said I don’t want to fight here and I went to the grocery and I stood there and a fellow named Serreo came over and said he wanted Mr. George Palermo, and Mr. George went over there and said, Get away, and Picatacci punched Mr. George and Mr. George shoved him away.”

“Q. Did Mr. George kick or punch him?
“A. No, sir.”

There is evidence tending to affect the credibility of plaintiffs’ son and one of his witnesses, and the same might be said of one of defendant’s witnesses, but, giving to every witness the same consideration, the evidence largely preponderates in defendant’s favor.

Our attention is directed to the fact which appears in the record that George Palermo was convicted in the Criminal Court of assault and battery growing out of this occurrence. We concede this to be an unfavorable circumstance, but we cannot regard it as conclusive. On the record before the defendant cannot be convicted of civil responsibility, much less criminal. The proof in the Criminal Court, we are advised, was different, due to the forced absence of some of defendant’s witnesses, but be that as it may, we can only deal with the record as we find it, and we think there is abundant justification of the finding of the lower Court.

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