author: WESTERFIELD, J. JANVIER, J. JANVIER, J.,

text:
    No. 13,331
    Orleans
    HOGAN v. N. O. PUBLIC SERVICE, INC.
    (January 5, 1931. Opinion and Decree.)
    (February 2, 1931. Rehearing Refused.)
    (March 30, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Jules A. Grasser, Weiss, Yarrut & Stich and H. W. & H. M. Robinson, of New Orleans, attorneys for plaintiff, appellant.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff sues .for damages for personal injuries sustained by him as the result of a collision on March 8, 1926, between a Studebaker automobile, in which he was riding, and a street car operated by the defendant corporation. The accident occurred on Metairie road, New Orleans, at a point where the tracks of the defendant corporation cross the paved roadway diagonally.

The motorman of the street car of. the defendant corporation is said to have been negligent, in that he failed to look before him when crossing the road, and emerged from the right of way of the railway company on the right, into the two-way paved road, much frequented by automobiles, without having his car under control and without sounding his bell or other warning signal prior .to his having attempted to cross the highway.

At the time of the accident plaintiff was. employed by Dan S. Lehon Detective Agency, a corporation engaged in the business of making investigations, furnishing watchmen, and protecting persons and property. He was one of the occupants of a Studebaker automobile belonging to his employer, the other occupants being Dan S. Lehon, the president of the corporation, Percy Beil; negro chauffeur, Harry O’Brien, W. W. Ward, and W. W. Ward, Jr.

Dan S. Lehon, who was injured in the same accident, was awarded a verdict against this same defendant by a jury in the civil district court in the sum of $17,-247.83. This verdict, however, was set aside by the trial judge, who expressed the view that the contributory negligence of Lehon’s chauffeur barred Lehon’s recovery, whether the defendant railway company was negligent or not. This court, in reviewing the Lehon judgment, expressed the samé view. Lehon v. New Orleans Public Service, Inc., 10 La. App. 715, 123 So. 172. When the present case was tried, the testimony in the Lehon case was, by agreement, read in evidence and, with the exception of some testimony by Hogan and his physician as to the extent of his injuries, makes up .the entire record. This case was also tried by a jury, which this time returned a verdict for defendant, which was approved by the trial judge. The jury’s, action here is said to have been influenced by the charge of the judge on the subject of joint enterprise, which, it is contended, had no application to the facts of this case, and it appears to us that such was the situation. In other words we believe that the jury and the trial judge were of the opinion that the present plaintiff was barred because he was engaged in a joint enterprise. The negligence of defendant, therefore, has not been passed on by any court in either case.

The six passengers in the Studebaker automobile in which plaintiff was riding at the time of the accident were situated as follows: Mr. Lehon was on the front seat with the driver; two of the other passengers occupied the áüxiliary seats in the tonneau; and plaintiff was seated on the rear or back seat on the left-hand side, with one of the other passengers, whose name is unimportant, but very likely Mr. O’Brien. Both Hogan and O’Brien were armed for the ’ purpose of protecting a truck belonging to the Lehon Agency, which preceded the Studebaker by several hundred yards, and in which money was being transported for use at a dog track situated near the scene of the accident. In other words, the truck had gone ahead and the Studebaker was following it at a safe distance to circumvent possible highwaymen.

The argument concerning joint enterprise is based upon the fact that Hogan was the superintendent of the Lehon Detective Agency, Inc. His sway over its affairs being co-extensive with the duties of that office, and, as he rather boastfully puts it in his testimony, “over all the works.” We have, therefore, the situation of two officers of the same corporation, one the president and the other the superintendent, albeit the superintendent’s duties at the time of the accident would not indicate high executive authority, since he and O’Brien were merely acting as armed guards protecting the treasure chest in the armored truck which was preceding them.

The automobile was in charge of another employee of the company, the negro chauffeur whose name was Percy Bell. It is the contention of defendant’s counsel that the superintendent in that situation should have asserted himself and should have given such orders to the driver as would have resulted in an avoidance of the accident.

The mission of the Studebaker automobile is said to have been a joint enterprise participated in by its occupants, at least by Lehon and the other employees of his company, and the negligence of one, in this case the driver, must be imputed to all.

We are referred to Blashfield’s Cyclopedia of Automobile Law, vol. 2, page 1149, where, in discussing the nature of the authority of those engaged in joint enterprises, we find it stated that;

“* * * Each must have some voice and right to be heard in the control or management of the undertaking, and the joint enterprise in which the. occupants of an automobile must be engaged before the contributory negligence of the driver can be imputed to the passenger must be one whose nature gives the passenger some voice in the control and direction of the vehicle.”

The industry of counsel, his experience and skill, has failed to. develop any case, and we know of none where an employee of a corporation, in the presence of the president, has been held negligent for failure to assume direction of any enterprise or transaction prosecuted or undertaken in the interest of the company. It seems to us that for Hogan to have attempted to direct the chauffeur of the Studebaker automobile, from the back seat, with Mr. Lehon, the president of the corporation and owner of the automobile, sitting beside the chauffeur on the front seat, would have been presumptuous and insubordinate.

The doctrine of concurrent negligence is thus, stated in volume 45, Corpus Juris, page 1019:

“In, order that the concurrent negligence of a third person can be interposed to shield another; whose negligence has caused an injury to one who was without fault, the injured person and the one whose negligence contributed to the injury must have sustained such a relation to each other, in respect of the matter then in progress, that in contemplation of law the negligent act of the third person was the act of the person injured. Or, as sometimes expressed, they must stand in such relation of privity that the maxim, qui facit per alium facit per se, directly applies.”

Quoting further from pages 1020, 2021:

“The mere fact that two persons are doing something together does not make each chargeable with the negligence of the other, nor does the fact that they have certain plans in common.”

Again on page 1032 we find the following:

“To constitute occupants of a conveyance joint adventurers, there must be not only joint interest in the objects and purposes of the enterprise, but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance.”

In Wagner v. Kloster, 188 Iowa, 174, 175 N. W. 840, 841, cited in the footnotes, supra, we find the following:

“Parties cannot be said to be engaged in a joint venture or common enterprise within the meaning of the law unless there be a community of interest in the objects or purposes of the undertaking, and an equal right in each to direct and govern the movements and conduct of each other with respect thereto. Each must have some voice and right to be heard in its control or management.”

In Jacobs v. Jacobs, 141 La. 272, 74 So. 992, 993, L. R. A. 1917F, 253, we find the following:

“Negligence on the part of the driver of an automobile is not imputable to his guest in the car; nor does one who accepts an invitation to ride in an automobile' thereby engage in such a common enterprise or joint venture with the driver that neither would be liable to the other for an act of negligence.”

See, also, Daull v. New Orleans Railway & Light Co., 147 La. 1012, 86 So. 477.

“To create the* imputation of negligence the passenger must have assumed control and direction of the vehicle. Merely making suggestions as to the route to be taken, or warning the driver of the danger, does not amount to sufficient authority or control.” 45 C. J., p. 1034, Negligence.

On this point our conclusion is that plaintiff is not chargeable with the contributory negligence of .the chauffeur of the Studebaker automobile.

Plaintiff is also said to have been independently negligent, in that, according to his own testimony, he saw the street car when the automobile was fifteen feet from the track and uttered no word of caution or alarm. With respect to this suggestion we observe that it sufficiently appears from the record that at that time Mr. Lehon, the president of the company, was shouting to the motorman, and, if any warning could have had any effect, it was given.

We now come to .the final question in the case, the negligence, vel non, of the defendant street railway company. The fault imputed to the motorman of the street car consists in the alleged fact that he was not sounding his bell as he approached the crossing, which was a dangerous one; that he was not looking ahead of him at the time; that he entered the paved roadway without having his car under control and without taking such precautions as the dangerous crossing required. There is much testimony in the record and many photographs.

Dealing with the question of whether there was or was not an opportunity to observe the street car at an appreciable time before its appearance upon the paved roadway from the defendant’s right of way, because of the hedge, brush, and trees which are said to obscure the view of motorists, in our former opinion we found that the hedge along the right of way was only three feet high and not an important obstruction to the view. The writer of this opinion has, since the decision in that case —in fact only a short while before the preparation of this opinion—visited the scene of the accident, and is of the opinion that, as it appears, at present, there is little difficulty in seeing an approaching street car from the roadway. But, at the same time, the locality is not a crossing, and the car tracks 'cross the highway obliquely from right to left without any visible indication other than the presence of the tracks in the roadway to suggest the danger involved. The situation is one which imposes upon the railway company, as^well as upon the drivers of vehicles on the highway extraordinary care.

Defendant’s motojman claims to have sounded his -bell as he approached the highway, and in this he is corroborated by the conductor and by a negro passenger, who was in the car at -the time. He was moving at the rate of from five to eight miles per hour and described his entry into the roadway as. follows:

“A. Well, I first looked towards New Orleans and then I looked back toward Jefferson Parish side and, when I looked towards New Orleans seeing these automobiles was a sufficient distance from my car to allow me to cross, I continued to move on and looked back towards the Jefferson Parish line and, when I looked that way I didn’t see anything to interfere with my crossing. I looked back again to the New Orleans side and that is when I saw this automobile coming.”

In another part of his testimony he says that he saw the Studebaker when between eighty and one hundred feet distant, and that he estimated its speed at from forty to fifty miles per hour. Two witnesses, occupants of an automobile which approached the crossing just ahead of the Studebaker, Shillinger and Neilson, both of whom were put upon the stand by the defendant corporation, testified that they heard no gong. All of the other witnesses, with the exception of the negro passenger, the conductor and the motorman, testified to the same effect.

Under the circumstances, particularly since two of the witnesses of defendant are in accord with all of the witnesses of the plaintiff, our conclusion is that the motorman failed to sound his bell or gong.

Both Shillinger and Neilson were disinterested witnesses and had an unusual opportunity for observation. Shillinger, who was very familiar with the crossing, since he passed there three or four times a day, testified that he had narrowly avoided an accident at that point on three or four occasions because of the habit of street cars entering the roadway without sounding their gong.

Neilson testified that the motorman was looking backward as he entered the roadway. In fact, the motorman admits that he was looking back “towards the Jefferson Parish Line.”

It is evident that the motorman was not maintaining a proper lookout. Moreover, if he saw the Lehon car approaching very rapidly when eighty or one hundred feet away, as he claims he did, he1 should have immediately applied his brakes and stopped his car, which he could have done almost instantly at the rate of speed he was maintaining, which was from five to eight miles per hour. He apparently made no effort to stop his car before the accident. We conclude that defendant was- guilty of negligence.

The plaintiff sustained a Colle’s fracture of the distal end of the radius bone of the right wrist with upward and backward displacement. His wound was infected, which, together with the necessary-splinting and casting, caused him considerable pain. He was unable to use his hand for several months, gradually regaining practically complete and normal function. In addition to the wrist injury he suffered a gash on his left shin and smaller contusions and abrasions. Plaintiff’s injuries were painful, but not permanent. We are of the opinion that $1,500 would be an appropriate allowance.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment be reversed, and that there now be judgment in favor of the plaintiff, Clarence V. Hogan, ahd against the defendant, New Orleans Public Service, Inc., in the sum of $1,500, with legal interest thereon from judicial demand until paid, and with all costs.

JANVIER, J.

(dissenting). I disagree with my associates in two particulars: First, I am of the opinion that the record shows that there was no negligence on the part of the motorman of the street car, and, second, I feel that, even if there was negligence on the part of the motorman, the negligence of the ' chauffeur of the automobile in which plaintiff was riding is imputable to plaintiff, the superintendent of the company for which the chauffeur was working at the time, and that, thus, that negligence would bar recovery by plaintiff.-

The record convinces me that the motorman operated the street car with all necessary care, and that the collision could not have occurred but for the extraordinary carelessness of the driver of the automobile in which plaintiff was seated.

There is no evidence of extraordinary speed on the part of the street car. In fact, the witnesses state that it was very moderate.

The evidence as to the ringing of the gong is contradictory, bub surely it cannot be said that it preponderates towards plaintiff’s contention that it was not rung, and on plaintiff rests the burden of proof.

It is said that the motorman of the street car was looking towards his right, instead of towards his left, which is the side from which plaintiff approached. The motorman was required to look in both directions and he could not look in both directions at the same time. He first looked towards the left and saw that the automobile in front of that in which the plaintiff was riding had stopped. He was certainly justified in assuming that those in the rear of the halted car would also stop and would not come dashing around it in an effort to beat the street car to the crossing. Having seen that the traffic from that direction appeared to be stopped, he looked to the right, as he was justified in doing. ■ He was, therefore, not negligent in this particular.

My associates, find that in all probability the jury was misled by the charge delivered by, the judge below. I see no reason to come to a conclusion that a jury Is misled^ and believe, on the contrary, that the jury was fully cognizant of the facts as adduced on the witness stand and believed that the motorman was without fault.

But, even if the motorman was at fault, I cannot lose sight of the fact, as we have already found, in Lehon v. New Orleans Public Service, Inc., 10 La. App. 715, 123 So. 172, that the driver of the automobile was grossly at fault, and it appears to me that his negligence is chargeable to plaintiff here. Plaintiff was the superintendent of the detective agency in the business of which the automobile was being driven at the time. Whether or not he exercised supervision over the driver is unimportant, because he had the right to do so in view of his position, he having stated that he had charge of all outside operations of that agency.

"The negligence of a chauffeur is imputable to his employer or master who is riding with him; and this is true regardless of whether the latter is so situated that he can give directions.” Berry, Law of Automobiles (6th Ed.) vol. 1, p. 511, sec. 642.

It is conceded that, had Mr. Lehon, the president of the corporation and the owner of the automobile, not been present at the time then the negligence of the chauffeur would have been imputed to the plaintiff here by reason of his position as superintendent of the agency. I cannot see what difference it makes that Mr. Lehon himself was present. The presence of the president of the corporation did not deprive Hogan of his position or prerogatives as superintendent of all outside operations, and it was his right and prerogative, as such, to warn the chauffeur about his apparent recklessness. If he had this right, then his right to recover is barred by the negligence of the chauffeur. I do not believe that it can be said- that, where an automobile is engaged in carrying out the business of a corporation, the negligence of the driver of the automobile can be imputed only to the highest ranking officer who happens to be present. If there are two or more officers present, and any one of them would have the right to issue instructions or warnings to the chauffeur, then ■the negligence of the chauffeur is imputable to any one who has that right, whether he exercises it or not.

I respectfully dissent.

JANVIER, J.,

dissenting from refusal to grant a rehearing.

In dissenting from the refusal to grant a rehearing I depart from an established custom, but I do so because I find that a point raised by defendant and most exhaustively and conclusively presented in the brief was. not discussed by me in my dissenting opinion and was scarcely even referred to in the majority opinion.

Defendant contends that, apart from the imputability of the negligence of the chauffeur to the superintendent, Hogan, he, Hogan, was guilty of independent negligence on his own part, and that this negligence should bar his recovery.

That a passenger in an automobile driven by another may be guilty of negligence independent of any fault that may be chargeable to the driver has been intimated often and held directly on several occasions, and we have so decided very recently in the matter of Williams v. Lenfant, 15 La. App. 515, 131 So. 857, No.13,506 of our docket, decided by us on January 19, 1931. But so greatly does the argument of counsel for defendant impress me that I shall again refer to the jurisprudence on which the contention is based and shall attempt toi show that, under the facts presented by the record, that jurisprudence is applicable here. That our courts have decided that the negligence of the driver is not chargeable to an invited guest has often been decided and need not be discussed, but it has never been decided that such a guest cannot be guilty of contributory negligence on his own part so as to bar recovery, but, on the contrary, our Supreme Court and this court have, on many occasions, intimated that he may be guilty of such negligence and that such negligence may defeat his action. In Churchill v. Texas & Pacific Ry. Co., 151 La. 726, 92 So. 314, 315, the Supreme Court said:

“Granting that Hayslip, the driver of the automobile, was guilty of negligence in approaching the crossing without slackening his speed, and attempting to beat the train across, should this defeat plaintiff’s right to recover for the death of his father, who was the guest of Hayslip? Under the jurisprudence of this court, it would not, unless the circumstances were such that the deceased could be charged with negligence of his own. Daull v. New Orleans Railway & Light Co., 147 La. 1012, 86 So. 477, and authorities therein cited. Churchill, not having charge of the operation of the machine, was not required to keep a lookout for danger, but could rely upon the discharge of that duty by the driver, who was responsible for its operation; and it not appearing that the deceased saw the approaching train until almost the instant of the collision, and, having shouted the warning as soon as it was discovered, we do not find that he was guilty of negligence.”

In the Churchill case plaintiff was an invited guest passenger in a car driven by his son. In Leopold v. Texas & Pacific Railway Co., 144 La. 1000, 81 So. 602-603, the plaintiff was a guest passenger and his son was the driver. A railroad crossing was approached at a speed of about fifteen miles an hour, which was reduced to about half of that. The car struck a soft spot in the highway and the engine stalled. While the son was cranking it, as it had no starter, plaintiff testified that he looked and saw no train, but that he mentioned to his son that a train was about due and that they started to cross the track; and “that he never looked any inore for the approach of a train, for the reason that his attention was attracted to his son’s manipulation of the car, as the latter had been away from home several months, and he was afraid the son would not be* able to operate it readily.” The car went upon the track and was struck by the train. The Supreme Court found that the railroad company was guilty of negligence in that the crossing was in bad condition and in that it had permitted obstructions to grow upon the right of way, and in this regard the court said:

“These conditions placed upon both parties the duty of exercising extreme care at this crossing; and, inasmuch as Dr. Leopold admits that he never looked any more after stopping until the train was almost upon him, we 'must conclude that he, too, was guilty of negligence.”

And later the court said:

“Some effort is made to excuse his failure to look again on account of the condition of the crossing, but the doctor says it was his fear that his son did not remember fully how to operate the car, on account of his absence. Be that as it may, he admits that he knew it was about train time, having mentioned it to his son, and the duty to look out for the train was far more important than the matter mentioned. He was not driving himself, so that he was compelled to have his attention on the car.”

We find the doctrine under discussion very well stated in 29 Cyc. 561, as follows:

“Notwithstanding the fact that the negligence of the driver will not be imputed to a passenger, yet it is necessary that the passenger himself 'must exercise ordinary care. And the rule denying the imputation of the negligence of the driver to the passenger has no application where such passenger has an opportunity to discover the danger, it being his duty in such case to discover and avoid it. While the passenger is not required to exercise the same watchfulness as the driver, he cannot - rely impllcity on the care of the driver when in a position to see. No recovery can be had where the passenger acquiesced or participated in the negligent acts of the driver, or had knowledge of the danger and accepts the risk to be encountered.”

I Relieve that the Leopold decision is ample authority for the view that plaintiff in the present case cannot recover because in that case Dr. Leopold was fully cognizant of the danger. He was not driving the automobile; therefore 'his attention was not in any way diverted and he was in better position to see. He realized that some duty rested upon him, for he did look, though he says, he did not continue to do so. In the present case Hogan was fully familiar -with that crossing. If it was dangerous by reason of obstructions to the view, or because of the peculiar curve made by the street railway tracks, no one knew, of these conditions better than did he. In fact he admits that he knew of all these things and goes so far as to say that he, because of his location on the right side of the ear, could see better 'than the chauffeur. On page 90 of his testimony he says: “I could see the car. The chauffeur could not see the car.” That he had an unobstructed view is evidenced by his own testimony, as it appears on page 77:

“Q. In what seat of the automobile were you?
“A. I was sitting on the back seat, on the right hand side of the machine looking forward.
“Q. In that seat, could you see and hear freely and unobstructedly?
“A. Absolutely.”

That his attention was fixed on the car appears from the evidence given by him as I find it in the record on page 78:

’ “A. * * * I could see the street car all right, but I wasn’t ■ paying no attention to the track. I was watching that car.”

■ That' he knew they were approaching the crossing, even before he saw the street car and that he assumed the attitude that it was not his business to have anything to do with the driving of the car appears on page 88 of the testimony:

“Q. But if you know that there is a. railroad track there, and had passed over it several times, you don’t need a sign to tell you it is there, do you?
“A. Well, personally, I don’t suppose I would, but I am not here to vouch for anybody.” .

Again, that he realized that possibly the driver could not see, but that he could, I find in his- testimony on page 92:

“A. Anyone in the back of the car can see it, or on the right hand side of the car, but I am talking about the driver now. I seen that car when it was thirty or forty feet away, between thirty and forty feet away from me, but I had no control over the street car, the street car nor the automobile.” , ....

It appears, then, that Hogan was familiar with the crossing; knew long before the car got there that the tracks must be crossed; realized that it was difficult to see a street car approaching; must have realized that the automobile in which he was, was going too fast and was driven recklessly, as we so held in Lehon v. N. O. Public Service, Inc., 10 La. App. 715, 123 So. 172, and yet made no protest and uttered no sound of warning. '

If such conduct is not negligence, then I am not familar with the meaning of the word “negligence” and I do not know what the* Supreme Court meant when, in the Churchill case, supra, it intimated that a guest passenger might be refused a recovery if “the circumstances were such that the deceased could be charged with negligence of his own.”

Bearing in mind that Hogan, the plaintiff, stated that not only could he see as well as the chauffeur, but that, in fact, he could see better than' could the chauffeur, and that he was unusually familiar with the crossing, having gone over it many times, I cannot see how it can be held that he was not himself negligent independently of the negligence chargeable to the chauffeur. In Toups. v. Morgan’s La. & Tex. R. R. & S. S. Co., 4 La. App. 136, in which both a husband and wife sued for damages sustained when the automobile in which they were riding was struck by a train of defendant company, we held that neither could recover because “each of them were recklessly disregardful of the approaching train, and that their negligence in this respect precludes recovery as to either of them.” In McQuiston v. Shreveport Rys. Co., 12 La. App. 277, 124 So. 706-711, recovery was denied to McQuiston, a guest passenger in. an automobile driven by another person, because the court felt that the guest passenger himself was guilty of negligence in not taking independent precautions on his own part. The court said that the accident was caused by the “joint negligence of Langford, the driver of the truck on which plaintiff was riding, and plaintiff himself.”

In Roberts v. Eason, 6 La. App. 703, recovery was denied where the injured party was a guest passenger in an automobile driven by another because of the fact that t.he injured party had no opportunity to know of the danger and made no protest. That the court was of the .opinion that there was a duty in Mrs. Roberts, the passenger in the car, to keep a lookout’ on her own account and to insist that proper care be exercised in the operation of -the automobile, is shown by the following:

“But considering the record admissions of both Mr. and Mrs. Roberts by their own testimony herein Quoted, we are constrained to conclude that each of them was recklessly disregardful of their own safety in traveling so rapidly and trailing the car ahead of them so closely and not maintaining a better lookout and.that their negligence in these respects precludes recovery by either of them.”

Throughout the testimony of Hogan in ■the case at bar runs his admissions that he knew that they were approaching the-crossing, that he knew that it was dangerous, that he knew that he could see better than the chauffeur, and that he knew that the automobile in which he was riding was going very fast.

In Berry on Automobiles, Sixth Edition, vol. 1, p. 532, sec. 655, is found the following:

“A guest or passenger in an automobile should keep a reasonable lookout for danger, if necessary; the degree of care which he is required to exercise depending upon all the attendant circumstances,”

In the casé at bar the attendant circumstances were as I have already stated; that Hogan had full knowledge of the dangerous crossing and that he admitted that he knew he could see better than could the chauffeur.

Also, in Berry on Automobiles, Sixth Edition, vol. 1, on page 631, is found a discussion of whether or not a guest passenger may read a newspaper, or otherwise allow himself to become oblivious of dangers, The author states that under certain conditions a guest passenger- may fulfill his full duty and yet take only very slight precautions on his own part, but that, even under such circumstances, “there arise in the- course of the drive conditions which clearly fix on the guest the duty to give warning. Some of these circumstances may be clear and obvious, as, for illustration, an automobile may be so operated as to attract the, attention of á guest even though he he otherwise occupied, as a car driven recklessly, carelessly, or with excessive speed, driving on the wrong side of the road, etc.” Here, again, the condition's which fix such duty on the guest are found to exist in this case. • It should he remembered that Hogan was looking out; that thus, he could see that the automobile in front of him had stopped before crossing the street car tracks, and yet, in spite of Hogan’s knowledge that the street car tracks created an extreme hazard, he permitted the driver of the automobile in which he was riding to dash at an excessive speed around the stopped automobile and directly into the path of the street car. He uttered no word of warning.

For these reasons. I am of the opinion ■that, if the doctrine announced ih the many cases to which I have referred is correct, and if a guest passenger is under Some obligation to take precautions for his own safety and to warn of a danger which ho knows is approaching, Hogan’s right is defeated by his own negligence.

I believe that a rehearing should be granted because the point which I have jtist discussed was not adequately considered and I believe that ultimately the judgment based on the verdict of the jury should be affirmed and that plaintiff’s suit should be dismissed for the following reasons :

First, because defendant’s employes were guilty of no negligence.

Second, because the negligence of the Chauffeur should be imputed to the superintendent riding in the car with him; and,

Third, because' the superintendent, plaintiff here, was guilty of independent negligence in failing to warn the chauffeur and caution him at a place which he, the superintendent, knew was extremely dangerous.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 13,623
    Orleans
    JACKSON HOMESTEAD ASSN. v. ZIMMER (J. J. Clarke Company, Inc., Defendant in Rule)
    (April 13, 1931. Opinion and Decree.)
    (May 11, 1931. Rehearing Refused.)
    (June 22, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Wisdom & Sokolsky and John Minor Wisdom, of New Orleans, attorneys for plaintiff, apipellee.
    Dart & Dart and Leo L. Dubourg, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This is a contest over the distribution of a portion of the proceeds of the sale of certain real estate sold by the civil sheriff under executory process instituted by the mortgage creditor, Jackson Homestead Association. '

J. J. Clarke Company, Inc., asserts its prior right to so much of the proceeds as is necessary to satisfy its claim for the unpaid balance- due for certain building material used for the construction of the improvement erected on the real estate in question.

The important facts are as follows:

High 'Grade Realty Company was the owner of certain unimproved real 'estate, Which' it agreed to sell to' one Matthew H. Zimmer. The said agreement to sell was not placed of record in the ¡parish of Orleans, in which the realty was situated.

Before taking title to the real estate Zimmer contracted for the ‘ erection of ,a house thereon with one Ernest Charbonnet, - a contractor. However, the building .contract does not appear to have been formally prepared or executed, and it was not recorded.

Upon completion of the work, Zimmer, finding himself in need of funds to comply with his obligation to purchase the property, applied to Jackson Homestead Association for a loan. The loan was approved, and thereafter, in accordance with custom and with its rules, the homestead association purchased the property from High Grade Realty Company, paying cash therefor, and then sold it to Zimmer, retaining vendor’s lien and mortgage to secure repayment to it of the amount of its loan.

In the meantime, the J. J. Clarke Company, Inc., had recorded in the mortgage office a lien for $317, being the amount of the unpaid balance due to it for material used in the erection of the improvement. The said claim, however, was recorded only against Zimmer, and there appeared in the mortgage records no recordation of the said claim as against High Grade Realty Company, the owner of the property. When the homestead association purchased the property from the realty company, it obtained all usual certificates in the name of the vendor, High Grade Realty Company, and, of course, on the said certificates no note was made to show any incumbrance resulting from the recordation of the lien in favor of the Clarke Company, Inc., and against Zimmer.

The only right which Zimmer had at the time of the recordation of the lien by Clarke Company, Inc., was to purchase the property from the High Grade Realty Company, and that right in no way could be effective to any extent against third persons, since it was not placed of record.

Therefore, unless there be any statute giving to materialmen who furnish supplies or material under the circumstances above set forth a lien against the improvement, or against the land, it is manifest that, the Clarke Company has only a personal claim against Zimmer, and cannot assert any lien to the prejudice of the holder of the ' vendor’s lien and mortgage, properly and seasonably recorded, since the holder of the mortgage, in accepting it, relied upon the certificates to which we have referred, and which made no mention of any claim of the Clarke Company.

But counsel for the Clarke Company maintains that, under the provisions of Act 298 of 1926, the rights of his client are protected, and that under that act a lien recorded against a prospective purchaser for materials sold to him is effective against and primes the rights of a mortgagee, even though the contract between the owner and the prospective purchaser be not registered or recorded.

The pertinent part of section 11 of Act No. 298 of 1926, which is the section of the statute with which we are concerned, reads as follows:

“Where any work as hereinabove set forth, is done or buildings or other improvements made, where the person for whom the work is done or with whom the contract is made, or by whom the work is done, is not the owner of the land upon which the work is located, then he 'shall be subject to all the obligations that are made incumbent on the owner by this act, and the liens and privileges created and established by this act shall operate upon whatever right said person having the work done or doing the wprk may have to the use of the land as lessee. * * *”

It is our belief that the statute cannot be construed as contended for by appellant. All that was intended by the section quoted was to give to the furnisher of materials the right to a lien effective, only to the extent of the right of the tenant or lessee in or to the property. The mere fact that one person holds an unregistered and unrecorded right to purchase the real estate of another does not give. to a third person who furnishes material any right against another innocent party purchasing from the owner, or lending money on the property on the faith of clear certificate's. Of course, as to the owner himself the situation might be different, if, by his permission, the prospective purchaser was afforded the opportunity to erect improvements, because the owner, by granting such permission, may, under certain circumstances, create an estoppel which will prevent him from contesting the rights of the materialman.

Counsel for appellant contends that Union Homestead Association v. Monte-gut et ah, 168 La. 369, 122 So. 68, 71, is authority for the view contended for by him, but we are unable to agree with him, because in that case the agreement of sale had been recorded, and in that agreement of sale the prospective purchaser was given the right to take immediate possession for the purpose of at once commencing construction. Therefore the homestead which purchased the property had knowledge both of the agreement of sale and of the fact that a building was to' be erected by the prospective purchaser prior to transfer of title.

The court in that case, with reference to the prospective purchaser, said:

“She had, at that time, a recorded contract to buy the lots from the Picheloup Realty Company for $4,000, and it was stipulated in the contract that she should have ‘immediate possession for building purposes.’ Therefore, when the homestead association examined the title, with the view of making a loan upon the property, for the purpose of paying for the construction of the buildings on these lots, the association was informed that, at the time when the buildings were constructed, Mrs. Montegut was in possession of the lots for the purpose of constructing the buildings, and under a contract to buy the lots. * * *”

And in the same decision, Union Homestead Assn. v. Montegut et al., 168 La. 380, 122 So. 68, 72, we find:

“And the important fact, as far as the homestead association is concerned, is that Mrs. Montegut's right of possession, and the extent of her right, was a matter of record.”

In that case (Union Homestead Assn. v. Montegut), the statute involved (section 3 of Act No. 139 of 1922) created in favor of a furnisher of material a lien and privilege effective against such right as the “person having the work done, or doing the work, may have to the use of the land as lessee, usufructuary or otherwise.” Here, however, the statute (Act No. 298 of 192,6) in section 11 limits the right to a lien in favor of a furnisher of supplies, and makes it effective only against the right of a lessee who undertakes to do work on land belonging to another, for we find that, from the later act (Act No. 298 of 1926), the words “usufructuary, or otherwise,” which words appeared in the act of 1922, are omitted.

Privileges must be strictly construed, and, if there were ambiguity in the statute, under which the privilege is claimed, we should resolve the doubt against him who claims the privilege.

While the facts in Hearne v. Victoria Lumber Co., Ltd., 131 La. 646, 60 So. 22, appear to be very similar to those now under consideration, still there seems to be a fundamental difference between that case and this, in that there Hearne, the purchaser of the property, who was seeking to defeat the claim of the furnisher of supplies, knew when he bought that “a privilege was claimed by Victoria Lumber Company,” whereas here there was no knowledge, actual or constructive, that it was attempted to assert a lien, We do not find that Capital Bldg. & Loan Association v. Carter, 164 La. 388, 113 So. 886, 887, is analogous, because there it was held that, if a claimant is entitled to a lien, he may record his lien at any time within the period provided by law, and that it will be effective even against third parties. Here we do not believe that the claimant is entitled to a lien at all, and it cannot be asserted, in view of the fact that the agreement of sale, which would have given to the world knowledge of the fact that Zimmer had an interest in the property, was not registered or recorded. Had there been on the public records under the name of the owner any notation of a right of Zimmer in or to the property, a prospective purchaser or lender would have been put on his guard and could have obtained certificates in the name of Zimmer.

Appellant suggests that thé fact that the Jackson Homestead Association required* a lien bond before it accepted title to the property is an indication that it had knowledge that there were in existence claims against the property. This does not necessarily follow. In Capital Bldg. & Loan Assoc. v. Carter, supra, our Supreme Court said:

“The furnishing of the bond was merely a personal matter between plaintiff on the one side and McKendriok and the Indemnity Insurance Company of North America on the other side.”

We think that the really important question is whether or not an innocent party may purchase property, or may lend money on property, and- in doing so rely on the public records, and our view that he may do so is confirmed by many decisions of our Supreme Court:

“One who, upon faith in the public records, purchases real estate, the recorded title to which stands in the name of his vendor, is entitled to be protected in his purchase against any claims or equities arising out of the previously existing relations between his vendor and the latter’s author or other persons.” Breaux v. Royer, 129 La. 894, 57 So. 164, 38 L. R. A. (N. S.) 982.
“A purchaser of real estate in good faith from the owner of record is not affected by equities which may have existed between former owners of the property and third persons, but which do not appear of record.” Duson v. Roos, 123 La. 835, 49 So. 590, 131 Am. St. Rep. 375.
“The conveyance records are the. only thing to which one dealing with real estate needs to look, under the repeated decisions of this court, nor can innocent third persons purchasing upon the faith of the public records be bound by any knowledge except such as is disclosed by such records.” Cole v. Richmond, 156 La. 262, 100 So. 419, 423.

That a mortgagee, just as a purchaser, may rely on the mortgage records, has also been often decided, notably in Boyer v. Joffrion, 40 La. Ann. 657, 4 So. 872, 873, in which is found the following:

“No third person, under the peremptory provision of the law, can, as a rule, be bound by an alienation of real estate in or to which he may have some title or claim, unless it appear from the proper public records that his debtor, whoever he be, has parted with his title, or has incumbered his estate; and even then only to the extent, if any, expressly prescribed by law. Moore v. Jourdan, 14 La. Ann. 414.
“A different interpretation of the law would prove destructive of the benefits which it intends to confer, and would place capitalists at the mercy of their debtors, and jeopardize loans of money on mortgage security.
“We therefore conclude that a money lender may safely deal, as far as the question of ostensible ownership goes, with one whose title to real estate appears on the proper public records, and that he cannot be injuriously affected by any anterior transfer of the property, unless the same be made by the ostensible owner, or by his authorized agent, or by judicial authority, and the transfer has become patent by proper registry. No other notice can prove knowledge.”.

The court below rendered judgment in favor of Jackson Homestead Association, and ordered canceled the inscription of the lien claimed by the Clarke Company, Since we think the said court is correct, it is ordered, adjudged, and decreed that the judgment appealed from be, and it is, affirmed, at the cost of appellant.


text:
    No. 13,699
    Orleans
    CLAUDE NEON FEDERAL CO., INC., v. FOUR HUNDRED CLUB ET AL
    (April 27, 1931. Opinion and Decree.)
    (May 11, 1931. Rehearing Refused.)
    (June 22, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Thomas, J. Martin, of New Orleans, attorney for plaintiff, appellee., ■
    Michel Provosty and Oliver P. Carriere, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

Plaintiff, a foreign corporation, seeks a solidary judgment against the Four Hundred Club, an alleged commercial partnership, and the three individuals composing the said partnership, all residSnts of New Orleans.

The amount claimed is $837, with interest, which petitioner alleges was stipulated for as liquidated damages in a contract entered into between the parties, which contract, according to plaintiff, has been breached by defendants.

On or about October 17, 1929,"a Mr. Winter, salesman for plaintiff, prevailed upon defendants to order from his company an electric display sign for use in advertising the Four Hundred Club. The salesman prepared the contract on a printed form of his company, and to it, by use of a typewriter, he attached his name above the word “salesman.” It was then signed by the three individual defendants, who affixed their signatures below the typewritten words “Four Hundred Club” and above the word “owners,” appearing in ink.

The contract contained among others, the following stipulation:

“This agreement is subject to the acceptance of the General Sales Manager, or an executive officer of the company, and is not binding on the company until so accepted.”

Under date of November 11, 1929, the contract was formally accepted by the general sales manager on behalf of plaintiff.

There was in the contract no stipulation as to the time within which the sign should be furnished and installed;

On December 11, or, possibly, December 12, 1929, tbe sign, which had been constructed by plaintiff at its factory in another state, had arrived in New Orleans, and plaintiff’s employees, in an effort to install the sign, called on that day at the place at which the Four Hundred Club had formerly been in existence, only to find that the establishment had closed.

Thereafter all reasonable efforts were made to deliver and install the sign, but to no avail, and plaintiff now seeks to avail itself of the remedy provided in the contract and reading as follows:

“If there be default in payment of any monthly rate as herein provided, or other condition as herein expressed, or upon refusal or neglect of the Customer to accept the 'sign when tendered by the Company, or upon the happening of any contingency whereby the Company shall feel insecure or the sign be placed in jeopardy, or if the circumstances require a cancellation of this agreement, it is hereby agreed that in any such event the Customer shall pay the Company upon demand as liquidated damages, 60% of the sum of the monthly payments that would accrue during the unexpired portion of the agreement, which sum is agreed to be the actual loss which would be suffered by the Company in any such event and is not a penalty. The Company may also in any such event remove the sign from the Customer’s premises in addition to requiring the payment of liquidated damages as aforesaid.”

There seems to be no dispute over the fact the plaintiff’s mathematical calculations are correct, and that, if the technical legal defenses resorted to by defendants are found to be unsound, the judgment to which plaintiff will be entitled should be for the amount prayed for, to-wit, $837, with interest from judicial demand. Defendants resist payment, interposing four defenses, as follows:

First. That plaintiff, a foreign corporation, before attempting to contract for business in this state, did not comply with the requirements of article 13, sec. 4, of the state Constitution of 1921, and there-has no right to maintain in the courts of this state an action growing out of such contract.

Second. That plaintiff failed to tender performance of the contract within a reasonable time, and therefore itself breached the contract, and cannot maintain this action.

Third. That in any event defendants have partially performed their obligation, in that they have paid $135 on account of the contract, and that thus the provision for liquidated damages may be modified by the court under the provisions of article 2127 and of paragraph 5 of article 1934 of our Civil Code, reading as follows:

Art. 2127: "The penalty may be modified by the Judge, when the principal obligation has been partly executed, except in case of a contrary agreement.”
Art. 1934, par. 5: “Where the parties, by their contract, have determined the sum that shall be paid as damages for its breach, the creditor must recover that sum, but is not entitled to more. But when the contract is executed in part, the damages agreed on by the parties may be reduced to the loss really suffered, and the gain of which the party has been deprived, unless there has been an express agreement that the sum fixed by the contract shall be paid,- even on a partial breach of the agreement.”

Fourth. That, if any judgment is rendered, it should be against defendants jointly and not solidarily, because of the alleged absence of proof that the said Four Hundred. Club was a commercial partnership.

Defendants, in addition to praying that plaintiff’s suit be dismissed, asked for judgment in reconvention for $135, the amount paid to plaintiff when the contract was signed by them.

The district court rejected all the defenses referred to, and rendered judgment for plaintiff, as prayed for.

The facts are in dispute only in the few unimportant details to which we shall refer when necessary.

Defense No. 1. Plaintiff is, it is true, a foreign corporation, but it had, prior to entering into the contract, according to a certificate of the secretary of state of Louisiana, filed with the said official here “a certified copy of certificate of incorporation and articles of incorporation,” and was thus authorized “to exercise the same powers, rights and privileges as are accorded similar domestic corporations.” According to another certificate issued by the same official, plaintiff had also filed “a written declaration as required by law setting forth and containing the place or locality of its domicile, the place in the state where it is doing business, the place of its principal business establishment, and appointing N. Burrell, of the City of New Orleans, State of Louisiana, as its agent, upon whom service of process may be made in this state.” But, say defendants, plaintiff had not established, and did not maintain, in this state an office for the transaction of its business “where transfers of stock shall be made, and where books shall be kept for public inspection showing the amount of capital stock subscribed, the names of owners of stock, the amount owned by them respectively, the amount of said stock paid, and by whom, the transfers of said stock, with the date of transfer, the amount of its assets and liabilities and the names and places of residence of its officers,” all of which requirements are found to be imposed by article 13 of section 4 of the Constitution of 1921, upon “every corporation, domestic or foreign, doing business in this State.”

It is conceded that, in such office as plaintiff maintains in this state, no such stock transfer records, or capital stock records, or books showing assets and liabilities, are kept. Does this failure deprive plaintiff of its right to recover?

Defendant’s answer is in the affirmative, and they cite considerable authority. For instance, in a situation somewhat similar to this, the United States Circuit Court of Appeals for the Sixth Circuit, in Phillips Co. v. Everett, 262 F. 341, 345, said:

“It is, of course, unfortunate that ' the appellant [Phillips Company] must lose the cost of the material and labor * * *; but that is not the fault * * * of the court. The appellant [sprinkler company] could easily have protected itself from loss by complying with the laws of Michigan. * * * It failed, neglected, or refused to do this, and the courts cannot relieve it from the consequences of its own neglect.”

In Mississippi we find a similar decision in Peterman Construction, etc., Co. v. Blumenfeld, 156 Miss. 55, 125 So. 548, 550, in which the court said:

“A contract made without first complying with the provisions of the above quoted statute could not be enforced in * * * this state. * * * We cannot vary the law, because our sympathy may be excited by the harshness of its particular application-to the particular individual.”

In a case involving a claim for the contract price of signs, the Supreme Court of Michigan, in General Highways System v. Dennis, 251 Mich. 152, 230. N. W. 906, held, that the foreign corporation was doing business illegally, and that it was therefore unable to sue on its contract in Michigan.

Defendants also cite a Louisiana decision, Thomas Cusack Company v. Ford, 138 La. 1096, 71 So. 196, 197, and maintain that the views expressed therein are authority for the doctrine contended for.

It is, of course, well settled that a state may prohibit foreign corporations from engaging in business in the state, except • upon compliance with such reasonable requirements as the state may feel justified. in imposing, and included in this' right is the right to refuse to enforce contracts, or rights arising thereunder, if they have been entered into without compliance with such restrictions or regulations. Therefore the question of the validity of such a contract made before the corporation has obtained the right to do business is to be determined solely by statutory interpretation.

The authorities are much in conflict as to whether such unauthorized contracts are valid. There is one class of cases in which the statute imposes a penalty for engaging in business without prior compliance with the statutory requirements, and in almost all such cases it has been held that, where a penalty is imposed, the contracts cannot be held void or unenforceable, because to so hold them void would be to impose a penalty in addition to that specifically prescribed. Illustrative of this type of case are Clark v. Middleton, 19 Mo. 53; Toledo Tie & Lumber Co. v. Thomas, 33 W. Va. 566, 11 S. E. 37, 25 Am. St. Rep. 925.

If no penalty is imposed, but the staL, ute contains what may be termed prohibitory language, such as “no foreign corpo- ■ ration shall engage in business until,” in i nearly all such cases it has been held that the contracts so entered into are void and unenforceable. See In re Comstock, 6 Fed. Cas., page 244, No. 3078; Armour Packing Co. v. Vinegar Bend Lumber Co,, 149 Ala. 205, 42 So. 866, 13 Ann. Cas. 951; Northwestern Mutual Life Ins. Co. v. Elliott (C. C.) 5 F. 225; National Mercantile Co. v. Watson (D. C.) 215 F. 929.

In another very similar class of cases, in which the statute provides specifically for the illegality of such contracts, it has been held practically universally that such illegality cannot be escaped and that the contract is unenforceable. Examples of this type of case are numerous, and among them are two much relied on by defendants : Phillips Co. v. Everett, supra, in which the statute provided that “it shall be unlawful, etc.”; and General Highways System, Inc., v. Dennis, supra, in which the court stated that “the statute made it unlawful,” etc.

It will be noted that the constitutional provision involved here does not fall within any of the classifications above mentioned. No penalty is provided. The provision does not contain prohibitory language, nor does it require that “prior to engaging in business” the requirements shall be complied with. It merely states or declares that “every corporation, domestic or foreign, doing business in this state shall” do the various things therein set forth and heretofore mentioned. Had it been intended that contracts entered into without prior compliance with the constitutional provision should be null and unenforceable, it would have been quite simple for the framers thereof to have so declared. In Thomas Cusack Co. v. Ford, supra, defendants find a case which they ■ contend sustains their views, but in this [ we are unable to agree.

There, as here, plaintiff, a foreign corporation, contracted to erect signs in this state, and was compelled to resort to the courts in an effort to collect the stipulated price. The defense made was that the corporation had not qualified to do business in this state, and therefore could not maintain in the courts of this state a suit on such a contract. At that time there was a provision in the Constitution (that of 1898, art. 264) to the effect that no domestic or foreign corporation should do any business in this state without having one or more' known places of business and an authorized agent or agents in the state upon whom process might be served. Act No. 54 of 1904 was enacted to carry the above constitutional provision into effect. Section 1 of the Act No. 54 of 1904 was amended by Act No. 284 of 1908, and secion 1 was again amended by Act No. 243 of 1912, but the various amendments are unimportant at this time, because it is the penalty provided in section 2 of the act which makes the present argument submitted by defendants interesting. That penalty clause provided that failure to comply with the requirements of section 1 should subject the corporation to suit in any parish in which it might do business, and should authorize service of process upon the secretary of state.

The court in that case (Cusack v. Ford) held that failure to comply with the requirements of section 1 of the act did not result in the inability of the foreign corporation to enforce its contracts, and counsel for defendants in the case at bar' argues that the court in that case reached that conclusion because qf the statutory (penalty provided for violation of section 1, and that a different conclusion would have 'been reached had no penalty been provided; in oth^r words, that that case fell within the classification No. 1 heretofore discussed. We do not so read that decision. It is true that the court did, in commenting upon the decision of the Supreme Court of the United States in Fritts v. Palmer, 132 U. S. 282, 10 S. Ct. 93, 33 L. Ed. 317, say that in the Fritts case it was held that the result of failure to comply with such requirements “was not the nullity, or unenforceability, of the contract, but merely the penalties mentioned in the statute,” and it is true that that language, read by itself, might be construed as a holding that, if there were no penalty, then the effect of non-compliance should be nullity, but the words which we have quoted are followed immediately by these: “If the statute had intended that contracts entered into in the course of such business should be null, or unenforceable, it would have said so.”

Here, as we have stated, it would have been very simple to have provided in the constitutional provision for absolute nullity of contracts made prior to compliance therewith, but we find no such provision in the Constitution.

It is our opinion that failure to comply with the comparatively unimportant requirements referred to should not deprive the offending corporation of all rights under its contracts, but that the proper officials of the state may, by proper action, force either the departure of the corporation or its compliance with such requirements. That those officials may encounter practical difficulties in instituting such action does not alter the situation. The corporation is in the status of a de facto corporation, to sáy the least. It will be noted that, in regard to the requirements mentioned, a. foreign corporation and a domestic corporation are treated similarly, and we are well convinced that, if a domestie corporation, having complied with all other requirements of law, as did plaintiff, should fail only in the particulars complained of here, the courts of this state would not hold the domestic corporation without right to enforce its contracts. In this regard we note that in such a situation the Supreme Court of this’ state held that a domestic corporation, which had substantially complied .with the legal prerequisites to corporate existence, but had failed in details similar to those omitted here, was, nevertheless, a .de facto corporation, and was authorized to maintain in the courts of this state an action growing out of one of its contracts. See Gerth’s Realty Experts, Inc., v. Kracke et al., 156 La. 36, 100 So. 41, 43. There, as here, the plaintiff corporation, or de facto corporation, had executed its-articles of incorporation, and had substantially complied with all of the laws of the state, and, apparently, had obtained from the secretary of state a certificate of corporate existence. It seems, however, to have failed in complying with other more or less unimportant details. The Supreme Court quoted with approval the following:

“‘“If the state acquiesce in the usurpation .of corporate powers, individuals cannot complain." This rule finds authority in Cyc. vol. 10, p. 256, wherein it is said that the rightfulness of the existence of a body claiming to act, in fact acting, in the face of the state as a corporation, cannot be litigated in an action between private individuals and the assumed corporation. * * * The rightful existence of a corporation cannot be raised in a collateral proceeding.’ New Iberia Sugar Co. v. Lagarde, 130 La. 393, 58 So. 18; Nelson v. T. & P. Ry. Co., 152 La. 117, 92 So. 754."

We find that, in considering the question of substantial compliance with such requisites, Ruling Case Law, vol. 12; p. 88, sec. 63, states:

“Even though it is held that the statute of a state requiring foreign corporations to do and perform certain acts before commencing to do business in such state is mandatory, and must be complied with before such corporations will be allowed to maintain actions to enforce contracts, yet it is usually h-eld that a substantial compliance with the statute by the foreign corporation will entitle it to enforce its contracts, * *

In Goodwin et ux. v. Colorado Mortgage & Inv. Co., 110 U. S. 1, 3 S. Ct. 473,, 475, 28 L. Ed. 47, the Supreme Court of the United States considered a defense very similar to that now before us, in which it was sought to defeat an action by a foreign corporation on the ground that it had not complied with the requirements of the Constitution and statutes of Colorado. The laws required that, prior to entry into the state for the purpose of doing business, foreign corporations, among other things, should designate an authorized agent upon whom process might be served, and it appeared that the corporation in question had filed a certificate to the effect that the “general manager” of the corporation should be the agent for the service of process. The court held that this was not strict compliance with the requirement, but said “that the certificate in question-was in substantial conformity to the law.”

Here the corporation had filed its articles of incorporation, had named an agent for the service of process, and, according to the certificates of the secretary of state, was authorized to do business in this state. We think, therefore, that, because of the language of the constitutional provision, which is not prohibitory, and also because of' the substantial compliance with the requirements thereof, plaintiff corporation should be permitted to maintain this action.

Second Defense. Defendants assert that the contract was breached by plaintiff by its failure to tender delivery within a reasonable time.

No time of delivery was stipulated for in the written contract, and in that contract we find a provision that “no verbal contract or agreement has been entered into, other than expressly covered by this instrument.” It is contended, however, that by verbal agreement it was understood that "delivery should We made within five weeks. of the day on which the order was placed. There is considerable dispute as to whether there was such a verbal agreement as to the date of delivery, and it is argued that such verbal agreement would have been ineffective, even if made, in view of the contract provision from which we have just above quoted, and which declared that the entire agreement was contained in the written document. Delivery of the sign was tendered about seven and one-half weeks after the order was placed, and it satisfactorily appears that no protest at the delay was made, and that, had it been tendered within five weeks, it could not have been accepted or paid for, since, even at that time, the defendant partnership had ceased to, operate.

Plaintiff maintains that, in view of the failure to stipulate for a date of delivery, the law writes into the contract an agreement for delivery within a reasonable time. Haskins Trading Co. v. S. Pfeifer & Co., 14 La. App. 568, 130 So. 469; H. T. Cottam & Co. v. Moise, 149 La. 305, 88 So. 916; Wilson v. Broom, 6 La. Ann. 381; Pratt v. Craft, 19 La. Ann. 131; Bartley v. City of New Orleans, 30 La. Ann. 264; Thompson v. Woodruff Co., 7 Cold. (Tenn.) 401. Defendant claims that delivery should have been tendered within five weeks. We need nót solve this problem, because it is evident that time was not of the essence of the contract to the extent that an additional ten or fifteen days was of importance, since it was so unimportant that it was not written into the first contract, which it would have been if of the essence, and for the further reason that plaintiff was not put. in default, and for the additional reason that the result would have been the same had the delivery been tendered, even within the time contended for by defendant.

“In an action on account for work and labor performed under an agreement, the objections by the defendant that it was not done within the time specified, and was not satisfactorily done, comes too late if not made until after the work has been done.”—Syllabus, Lyons v. Dymond & Lally, 23 La. Ann. 709.

Third Defense. Under this defense is not raised the question of liability, but only whether or not plaintiff can claim under that provision of the contract with reference to liquidated damages, and, if so, whether the whole amount due under that provision should be awarded. Defendants’ argument is that they have partially complied with their obligation, and that thus, under the two codal provisions which we have already set forth, we should not grant judgment for the liquidated damages in full, but for only such sum as will repay the damage actually sustained by plaintiff.

The only partial compliance which has been made by defendants is the payment of $135, which was paid when they originally signed the contract, and which was already paid. Therefore, when they stipulated in that contract for the liquidated damages in case qf their default, to hold that that payment, made at the time the contract was confected, has the effect of writing out of the contract another provision for liquidated damages, does not appear to us logical. Credit for the payment has been given, and that is all to which defendants are entitled.

Fourth Defense. Was defendant, Four Hundred Club, a commercial partnership? The record shows that that organization was a so-called “night club.”

The Civil Code, in article 2825, defines commercial partnerships, and in paragraph 1 thereof declares such partnerships to be such as are formed “for the purchase of any personal property, and the sale thereof, either in the same state or changed by manufacture.”

What is a “night club?” Is it engaged in the business of buying and selling personal property in the same state or changed by manufacture? We have no hesitancy in saying that it is. We know that a restaurant buys and sells articles of food. We know without evidence that a “pig stand” does likewise.

While we do not plead guilty to a knowledge of all the ramifications of the business of “night clubs,” we need no evidence to convince us that in them and by them personal property consisting of food and drinks is bought and sold. It is thus a commercial partnership, and the members thereof for its defaults are solidarily liable by reason of the second paragraph of article 2872 of the Civil Code, reading as follows:

“Commercial partners are bound in so-lido for the debts of the partnership.”

We believe that all of the defenses interposed by defendant should be overruled, and accordingly it is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, affirmed, at the cost of appellants.


author: WESTERFIELD, J.

text:
    No. 13,598
    Orleans
    CLOVERLAND DAIRY PRODUCTS CO., INC., v. LEACH, JR., ET AL.
    (May 11, 1931. Opinion and Decree.)
    St. Clair Adams and St. Clair Adams, Jr., of New Orleans, attorneys for plaintiff, appellant.

      Spencer, Gidiere, Phelps & Dunbar and Louis B. Claverie, of New Orleans, attorneys for defendant, .appellee, Neal Leach, Jr.
   WESTERFIELD, J.

This case grows out of an accident resulting from the collision of a delivery .wagon, drawn by two mules, and belonging to the Cloverland Dairy Products Company, Inc., with a Stutz roadster automobile driven by Neal Leach, Jr. As originally filed, John Maher was joined as co-defendant upon the theory that he was the owner of the automobile driven by Leach. The claim against Maher has since been abandoned, and we are now only concerned with the liability of Neal Leach, Jr.

The accident occurred on South Claiborne avenue, between Leonidas and Monroe streets, at about 1 a. m., December 15, 1928. The plaintiff’s wagon, unattended and filled with milk in bottles, was parked on the right side of the roadway; its driver being absent at the moment of the collision for the purpose of making a delivery of milk at a residence within a few feet of the road. The defendant, accompanied by a young lady, whom he afterwards married, was driving along Claiborne avenue in the direction of Leonidas street and away from Carrollton avenue.' The wagon, according to some witnesses, was faced in the opposite direction; that is to say, with the mules toward the Stutz, and, according to others, in the other direction, with the rear of the wagon toward the automobile. This question as to the manner in which the plaintiff’s wagon faced is considered of great importance by both counsel in the case, and was so regarded by the judge a quo. The theory of plaintiff is that the mules were blinded by the glare of defendant’s headlights, and, in their terror,, moved slightly toward the path of defendant’s automobile, which was coming at a very rapid rate, and was recklessly guided because of the intoxication of its driver. On the other hand, the defendant maintains that the rear of the wagon was toward him, and' his headlights not within view of the mules, which, for some reason, started directly across his path at a time when it was impossible to avoid the accident, that he was going at a very moderate speed, 20 miles an hour, and that the accident was due to the carelessness of the driver of the milk wagon in leaving the mules unattended, such action being in violation of section 6 of article 8 of Ordinance No. 7490, C. C. S., which reads as follows;

“No horse or mule shall be left unattended in any street or highway unless securely fastened, or unless the wheels of the vehicle to which it is harnessed are securely tied, fastened or chained, and the vehicle. is of sufficient weight to prevent its being dragged at a dangerous speed with wheels so secured.”

He also cites article 2321 of the Civil Code to the following effect:

“The owner of an animal is answerable for .the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment,” and also Damonte v. Patton, 118 La. 530, 43 So. 153, 8 L. R. A. (N. S.) 209, 118 Am. St. Rep. 384, 10 Ann. Cas. 862; Bentz v. Page, 115 La. 560, 39 So. 599; Zambelli v. F. Johnson & Son Co., 115 La. 483, 39 So. 501; Trenchard v. N. O. Ry. & Light Co., 123 La. 36, 48 So. 575.

It is admitted that plaintiff’s mules were unattended on the public highway, and we are satisfied that the driver of the milk wagon was guilty of violating the municipal ordinance referred to. If this fact may he said to he the (proximate cause of the accident, of course there can be no recovery.

A consideration of the testimony in the record, however, convinces us that the defendant Leach was driving in a very reckless manner, and that he was under the influence -of liquor. The evidence clearly preponderates to this effect. One of the witnesses puts his speed at 90' miles an hour, one at 50, and one, without attempting to estimate the speed, says that the noise of the engine “sounded like an aeroplane.” Another, who happened to be an automobile mechanic, and who arrived on the scene immediately after the accident, examined the speedometer, and testified that it had locked at 72 miles per hour. Moreover, the violence with which the automobile struck the wagon is indicative of high speed. One mule was killed outright, and the other so badly injured that it had to be shot immediately. The wagon was badly damaged, and the automobile practically demolished, and this notwithstanding the fact that there were skid-marks on the paved roadway for a. distance of 30 feet, showing that the brakes had locked for that distance before striking the wagon. The Stutz car was a high-priced, high-powered automobile, equipped with four-wheel brakes. It had been taken in by a finance company operated by a friend of defendant’s, and was being tried out by Leach at the time of the accident with a view of purchase. The unusual hour, 1 a. m.,’ was selected for the tryout. As to the intoxication, it was established by the testimony of at least three disinterested witnesses. In view of all of the circumstances, the testimony of the defendant and of his; wife (she wasi married at the time of the trial) to the effect that Leach had not been drinking and that they had not exceeded the modest speed of 20 miles per hour is unconvincing.

In our opinion, it is of no importance whether the mules were facing the Stutz, or headed in the opposite direction, for the rule of sudden emergency relied on by defendant cannot be invoked under the circumstances of this case, because the emergency was created by the defendant himself1 by reason of his reckless driving.

In Huddy on Automobiles (8th Edition) sec. 447, we find the law in this respect to be well stated, as follows:

“The driver o'f a vehicle in a street must exercise reasonable care to avoid getting into a dangerous situation, from which he will be unable to extricate himself without colliding with another vehicle; and if he o'mits such care, his later vigilance though of the greatest degree, will not avail him when danger arises from his prior negligence. For example, when the driver of an automobile, has proceeded at an excessive speed, the fact that when he discovered a wagon in his path, the greatest diligence and effort were unable to avert a collision, does not excuse him from liability.”

See, also, Dill v. Colley, 3 La. App. 305; Southall v. Smith, 151 La. 967, 92 So. 402, 27 A. L. R. 1194; Anderson v. Davis, 151 Minn. 454, 187 N. W. 224; Simonson v. Huff, 124 Wash. 549, 215 P. 49.

The quantum does not appear to be in dispute.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of Cloverland Dairy Products Company, Inc., plaintiff, and against the defendant, Ndal Leach, Jr., in' the sum of $584.83, with interest thereon from judicial demand and all costs.


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    No. 13,739
    Orleans
    UCHELLO v. ARNOLD
    (June 8, 1931. Opinion and Decree,.)
    Waverly A. Henning, of New Ox-leans, attorney for plaintiff, appellee.
    ■ • F. A. Middleton, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Mrs. Edwin C'. Arnold employed Joseph Uchello, the plaintiff herein, a real estate broker, to sell a piece of real estate, the title to which was in -her name. She entered into a written contract -authorizing the sale of the property for $10,000 cash and agreeing to pay Uchello a commission of 4 per cent and 25 per cent as attorney fees in the event of the employment of an attorney to enforce the contract. The term of the contract was 90 days.. Within that period Uchello succeeded in obtaining a purchaser in the person of Anthony M. Rouprich, who made a deposit with Uchello of $1,000 and agreed to take the property on Mrs. Arnold’s terms. The sale was not consummated, however, due to the objection of Edwin C. Arnold, defendant’s husband, whereupon this suit was brought by Uchello for his commission of 4 per cent and the 25 per cent attorney fees.

There was judgment below in plaintiff's favor as prayed for, and defendant has appealed.

Defendant admits employing plaintiff, but denies liability because the property, though in her name, is, as a matter of law, the property of the community which she had. no power to alienate, Rev. Civ. Code, art. 2402; Succession of Andrus, 131 La. 940, 60 So. 623; that the plaintiff in this case knew or should have known that in contracting with her for the sale of the px-operty she could' not consummate the sale, and he should have consulted her husband. But, the question here is not whether Mrs. Arnold, a married woman, has a right to dispose of community property or to bind the community for her debts, but, as was said in Mathews Bros. v. Bernius, 169 La. 1071, 126 So. 556, “the proper solution of the case depends upon 'whether a married women has the right to bind hex-self to pay commissions and attorney’s fees thereon, with the end in view of selling property, which she assumes, at the time to be her property, but which later developments disclose she is unable to convey title to, because it is not her separate property, but is property belonging to the community of acquets and gains, existing between her and her husband, which, he alone, as head and master of the community, has the right to sell.”

As will he observed from the quotation, the question presented here is precisely the one before the Supreme Court in the. cited case. It was there held that in view of Act No. 244 of 1918 conferring upon a married woman a privilege, not theretofore enjoyed by her, of contracting as freely as a femme sole with respect to her paraphernal property, it is< immaterial to whom the property belongs, because she contracted with defendant to pay him if he obtained a purchaser for the property she assumed to own' or control. Quoting further from Mathews Bros. v. Bernius, we find:

“The wife, in such' a case as. the one here presented, is in the same position as she would be, if it appeared that she could not convey title, not because the community owned the property, but because some stranger owned 'it. The fact that the community owned the property, instead of some third person, is here an unimportant circumstance. Where, as was the case here, the broker’s contract was to find a purchaser, his right to his commission is dependent upon whether he has found and produced one, who is able, ready; and willing to buy on the terms prescribed by his principal. When the broker produces such a purchaser, he is entitled to his commission, although the sale is not. consummated, because of the inability of the vendor to comply with his -offer. 2 C. J. pp. 769, 770. The broker, in such a case, in the absence of notice to the contrary, has the right to act upon the assumption that his principal has a marketable title. R. J. & B. F. Camp Lumber Co. v. Tedder, 78 Fla. 183, 82 So. 865.”

We can find no distinction in principle between the instant case and. the case of Mathews. Bros. v. Bernius,- supra; consequently, and for the reasons given in that case and the authorities there cited, • the judgment appealed from is affirmed.

HIGGINS, J., takes no part.


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    No. 13,660
    Orleans
    JANUSA v. SCOVOTTO
    (June 8, 1931. Opinion and Decree.)
    Chas. A. Danna,. of New Orleans, attorney for plaintiff, appellant.
    I. E. Uzzo, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This' is a' Suit on a promissory note given by the defendant to a life insurance agent for the sum of $205.-60, the first year’s premium on a policy of life insurance. The defense is want of consideration. The plaintiff, Janusa, solicited and obtained an application from Scovotto, defendant, for a policy of the face value of $5,000, which stipulated for certain features relative to double indemnity. Plaintiff transmitted the application to his principal, the New York Life Insurance Company, which declined to issue the policy upon the ground that the applicant was overweight. However, another 'policy was inclosed and issued in the name of defendant, which was said by the company to ‘‘meet as nearly as possible the applicant’s desire for insurance.” Defendant thought the policy tendered him far from desirable and refused to accept it or to pay the premium. However, plaintiff insisted that he should retain it until his “hard head became soft,” when its merit would be apparent to him, promising that if Scovotto should at any time reduce his weight, a policy nearer to his heart’s desire would be substituted. But Scovotto’s head did not soften, nor his determination weaken, and he could not see the advantage of the policy tendered him. He refused to accept it time and again, whereupon, it was left with his wife and plaintiff would not accept its return.

Whatever may be said of the commendable zeal of plaintiff in the prosecution of his chosen vocation, or of the desirability of defendant’s life being insured upon terms acceptable to the New York Life Insurance Company, it must be conceded that defendant should be consulted and his decision final, whatever may portend for weal or for woe. It is clear that the note sued on is without consideration.

The.judgment appealed from is affirmed.

JANVIER, J., takes no part.


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    No. 13,839
    Orleans
    BOUDREAUX v. LOUISIANA POWER & LIGHT CO.
    (June 8, 1931. Opinion and Decree.)

      Beard & O’Keefe and Leslie P. Beard, of New Orleans, attorneys for plaintiffs, appellants.
    John May, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

The widow and min- or children of David E. Stansbury, deceased, bring this action against the defendant, Louisiana Power, & Light Company, claiming damages in the sum of $71,115.90 for the alleged negligent killing of their husband and father.

There was judgment below in favor of defendant dismissing plaintiffs’ suit, .and plaintiffs have appealed.

On August 12, 1930, at about 7:45 a. m., David E. Stansbury, an employee of Frank P. Shadwell, was electrocuted under thé following conditions:

Shadwell had contracted to build a bridge across what is known as the “Outfall Canal” on the Behrman highway in Jefferson parish. Preparatory to the execution of his contract Shadwell sent his motortruck, upon which was superimposed a crane, to the vicinity of the proposed bridge. The crane was in charge of a crew composed of a foreman, a crane operator, and four laborers, Stansbury being one of the laborers. The crane on the truck is 36 feet long and is designed to operate a clam shell bucket weighing 2,100 pounds, which, when opened, has a spread of 7 feet. The crane is mounted on the bottom of the truck, 4 feet above the ground. The clam shell bucket is attached to the crane by means of., an iron cable. On the morning of the accident with the- intention of parking the crane on the side of the road until such time as it would be needed, Shadwell instructed his foreman,- to unload the clam shell bucket and place it on the extreme right of the roadway. The bucket was thereupon hooked up to the cable and was moved in response to signals of the foreman and crane operator. In the execution of this maneuver Stansbury and several other -members of the crew were ordered to take hold of the bucket to push it in the desired- direction. While so engaged all the members of the crew who were called upon to assist in this manner were severely shocked and Stansbury was killed.

The defendant, a public utility corporation, has, in the vicinity of the accident, high-tension wires strung on poles, and its liability is pitched upon 'the alleged negligent construction of these wires in that they were strung over the highway without due regard for the safety of -those whose employment required that they be in close proximity. It is- alleged that the wires were not insulated; that no notices or warnings of danger were posted and that “jumpers” were not properly installed, in that they were’ placed under instead of over the wires; that the wires were not covered with insulation and that defendant in general was guilty of gross negligence and carelessness in connection with the erection of its poles and wires, with the result that “the-current on said wires, then and there under the exclusive control of defendant corporation, in a manner unknown to petitioner, escaped therefrom, untimately (ultimately) and in some unknown manner reaching the clam shell bucket, being the sole and proximate cause of the death of petitioner’s husband.”

There is, no doubt that Stansbury’s death was due to the fact that the cla'm shell bucket was in some manner charged with electricity, since he received the shock as soon as he placed his hands on the bucket, but how the bucket received the charge is very uncertain.

Plaintiffs offer, as a possible solution, the suggestion that the electric current entered -the earth by means of a “guy wire” (the wire leading from the pole into the earth) attached to a “dead man” (a post, 6 or 8 feet long buried, from 2 to 3 feet in the ground), and that? contact between the bucket and the earth caused the bucket to be charged with electricity. The guy wire, it is said, should have been insulated, which was not done in this case.

On the other hand, defendant explains the accident by saying that when the crane was moved the arm made contact with the high-tension wire, thus communicating the electrical energy to the bucket. ■ However, all of the witnesses declare that the bucket, at no time, was any nearer to ■ the wire than 12 inches, and the uncontradicted evidence of experts is that electricity of the voltage which this wire carried would not “jump” á span in excess of one-fifth of an* inch.

The record establishes the fact that the' best modern practice does not require insulation of high-tension wires suspended as this one was, about 30 feet from the ground, nor is' there any appropriate legislation requiring insulation. It ' does not appear that any custom or law required the posting of notices of the dangerous nature of the overhead wires and, moreover, the several members of the crew operating the crane were familiar with the danger involved. Consequently, notices and warning signs would have made no difference. It also appears that the power lines of defendant in the vicinity of the accident were constru'cted in accordance' with the requirements of the United- States Bureau of Standards. There is, therefore, no proof of any negligence on the part of the defendant, but counsel for plaintiff says that, in the ordinary course of events and when proper care has been exercised in the erection and equipment,of wires and poles conveying electrical energy, no danger to the public Results and that, having shown that Stansbury. was electrocuted under circumstances indicating that the electricity which caused his death came from one of the wires of defendant company, a presumption of negligence arises under the doctrine of “res ipsa loquitur.”

“Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in-the absence of explanation by defendant, that the accident arose from want of care. . This statement of the- rule of res ipsa loquitur based on the expression in an early English case, which has been widely quoted with approval, has been in substance most frequently adopted and applied in subsequent decisions so that the occurrence of an injury under the circumstarices therein set forth raises, a presumption or permits an inference that the party charged was guilty of negligence.” C. J. vol. 45, verbo “Negligence,” p. 1193.

We do not believe this doctr.ine applicable here. It is commonly relied on in negligence cases to supply, by presumption or inference, the lack of direct proof. Where the known facts surrounding an accident create a reasonable probability that its occurrence was due to negligence, the law infers, without actual proof, that there was negligence because of the common experience that like effects are due to like causes. If, for example, a roof collapses and injures some one and there is no explanation of the ■ accident, it will be presumed that the roof fell on account of being improperly supported, because, otherwise, roofs do 'not, ordinarily, fall. However, the doctrine is not to be extended beyond proper limits and will not serve as a substitute for proof. It has no place in the presence of direct evidence, nor can it apply unless, from the proven facts, a reasonable inference of negligence "may be drawn. The defendant is considered to have superior knowledge of the cause of the injury and is called upon to explain when it appears that the accident was due to the faulty character of some instrumentality in his possession”, or under his control. The rule is different where there is no contractual relation:

“Excepting where contractual relations exist between the parties, as in-the case of carriers of passengers and some others, negligence will not be presumed from the mere happening of the accident and a consequent injury, but the plaintiff must show either actual negligence or conditions which are so obviously dangerous as to admit of no inference other than that of negligence. Stearns v. Ontario Spinning Co., 184 Pa. 519 [39 A. 292, 39 L. R. A. 842, 63 Am. St. Rep. 807].” Corpus Juris, vol. 45, p. 1210 (footnote).

In' the case at bar the most reasonable explanation of the accident does not invoke the liability'of defendant. In moving the crane the arm must have come in contact with the feed wire of defendant. We are aware that all witnesses^jyho have testified on this point are agreed that no actual contact occurred, and we are convinced of their sincerity, but believe them to be mistaken. It is most probable that, in attempting to pull the bucket to the desired poinc on the roadway, the crane touched the wire. It was only necessary that contact be established for an instant in order that the deadly fluid might be communicated to Stansbury’s body. Indeed, it is likely that, in swaying about, the arm of the crane only touched and immediately parted with the wire so as to deceive the crew, who testified that it was at all times 12 inches or more away from the wire. Moreover, Mr. Ricker, an electrical engineer, holding -the degrees of Bachelor and" Master of Science of the Massachusetts Institute of Technology, testified that jn his opinion the. accident . cqul.d not possibly have happened except through contact between the crane arm and the wire. Mr. Ricker’s testimony in this respect is hot contradicted by any other expert, nor is there any attempt to explain the accident upon ' any other reasonable theory. The crew of the crane were admittedly familiar with the danger of contact with the highly charged wire and, consequently, are alone to blame for the unfortunate accident, which was due entirely to their negligence.

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