author: TALIAFERRO, J.

text:
    No. 4240
    Second Circuit (Second Division)
    SMITH v. CHADICK-HAYES CO., INC.
    (February 16, 1932. Opinion and Decree.)
    (March 16, 1932. Rehearing Refused.)
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellant.

      Thatcher,- Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellee.
   TALIAFERRO, J.

Plaintiff sues to recover judgment against defendants for injuries to him and his Pontiac coupe arising from a collision between his said car and the Chrysler coupe of defendants. Marx Maritzky and Isadore Maritzky, while operated by the wife of the former, on the Shreveport-Minden highway, about 12 miles east of the city of Shreveport, in the forenoon of January 29, 1929. He alleges that a truck of defendant Chadick-Hayes Company, Inc., and said Chrysler coupe collided at said place and at said time, resulting in the truck running into a ditch on south side of said highway and turning over, and said Chrysler coupe remaining on said highway, completely obstructing traffic thereon; that he was driving his car behind said Chrysler coupe, and, as the collision of said truck and the coupe was so sudden and unexpected, it was impossible for him to bring his own car to a stop before running into the Chrysler car, notwithstanding he exercised due care and caution for his safety, operating his car carefully, at a lawful and reasonable rate of speed and maintaining a proper and reasonable distance between it and said Chrysler coupe.

The defendants, the three Maritzkys, residents of Claiborne parish, excepted to the jurisdiction of the court. This plea was sustained, and they passed out of the case. Only the Chadick-Hayes Company, Inc., remains as defendant to contest plaintiff’s suit to recover for his injuries and damages.

The specific acts of negligence charged against defendants are; (1) That defendant drove its said truck at a fast and reckless rate of speed and on the wrong side of the highway; (2) that defendant Brody Maritzky operated said Chrysler car recklessly, losing control thereof, and running it into said truck; (3) that the drivers of said motor vehicles failed and neglected to have them under proper control as they approached each other; that each vehicle was swerved to the left toward each other and to -the wrong side of the highway just prior to. the collision; (4) that neither driver kept a lookout or gave any notice or warning of his or her approach.

Defendant denies all of the allegations of negligence imputed to it by plaintiff, and avers “.that if plaintiff had been driving his car in a safe and proper manner, and under proper control, and had been maintaining a proper distance between his car and the car in front of him, and had maintained a proper lookout ahead, the car driven by him would not have collided with said Chrysler car.” And further avers that the collision between plaintiff’s car and the Chrysler car was due either to his own negligence and lack of care in operating his car, or to the combined negligence of himself and the driver of said Chrysler coupe, and not to any negligence of the operator of defendant’s truck; that, if there was- any negligence on part of said operator of the truck, plaintiff is barred from recovering on account of his own contributory negligence as above set out; and, in any event, he had the last clear chance to avoid the accident, and failed to do so.

The lower court rejected plaintiff’s demand, and dismissed his suit, from which judgment he has appealed.

There are no written reasons of the district judge in the record, but we gather from briefs that he found and held that plaintiff’s contributory negligence precluded recovery.

The present is the second suit to reach this court, growing out of the three-cornered collision involved herein; the first one being by the two Maritzkys against the Chadick-Hayes Co., Inc., reported in 12 La. App. 104, 124 So. 566, 567. In that case plaintiffs sought to hold the truck owner responsible for the damages inflicted upon their Chrysler car, and defendant reconvened for damages done to the truck, by the collision. The district court, while holding defendant’s truck driver negligent, declined to give judgment to plaintiffs, for the reason that the driver of the Chrysler car (the wife of Marx Maritzky) contributed to the accident to such extent as to bar recovery. On appeal, this judgment was affirmed by this court. The facts and issues involved in that case were well stated by the district judge in a written opinion which was adopted by this court and embodied at length in its opinion referred to supra. A perusal of these reasons will impart the true facts of the collision between defendant’s truck and the Chrysler coupe, but these do not cover all the facts of the collision between plaintiff’s Pontiac car and the Chrysler coupe.

The testimony in the adjudicated case referred to was introduced and filed as. evidence in the present case, and this testimony, together with additional evidence adduced on trial of the present case, is before us for consideration. We have given careful consideration to all of it, and now reaffirm the conclusions reached by us in the former case. However, these conclusions are not necessarily binding on us in this case; the parties plaintiff and the causes of action being different. Civ. Code, art. 2286; Ford v. Simmons, 13 La. Ann. 397; Mestier v. N. O. Ry. Co., 16 La. Ann. 354; Woodcock v. Baldwin, 110 La. 270, 34 So. 440.

It is our opinion plaintiff is not entitled to recover in this suit. We believe a decision could safely be predicated alone on his. own testimony.

Plaintiff testified that he had been to Ruston, from his home in Shreveport, the morning o'f the accident, and was in a hurry to get back home; that he first observed the Maritzky car as it came onto the Shreveport-Minden highway, ahead of him, 4 miles west of Minden, and he trailed it, going at the rate of from 30 to 35 miles an hour, and at an average distance of 100 yards therefrom, for some 17 miles, to the place of the accident; but that immediately prior to the accident he was distant from the Maritzky car 75 or 100 feet; that both cars, were traveling faster than the other cars on the highway at the time and passed many of them, in fact all of them, going west, to the scene of the collision; that, when he realized a collision was imminent between the truck and Chrysler coupe, he applied his brakes, causing the car to zigzag in the loose gravel, but was unable to stop it before running into the Maritzky car. His testimony on the vital question of his looking out and ahead to observe what was going on, immediately prior to the accident, is equivocal. He states that he realized a collision was imminent some seconds beforo it happened, but says that he is not certain he saw the truck and Chrysler car when they collided, though they were not over 100 feet from him and were directly in his path of travel, and again he said he did not know how far he was from the first collision when he saw it. He states that the truck was about the middle of the road, and that the Maritzky car could not pass on its side. If this were true, the collision would have been head on, whereas it is. beyond dispute that the Maritzky car struck the truck at an angle at a point behind the left front wheel, raising and damaging the fender and breaking a rod connecting the steering apparatus with the front wheel, resulting in the truck’s driver losing control of it and it going off of the road into the right-hand ditch and -turning over, some 80 feet from the bridge. It is established that the road was 21 feet wide, and that there was clearance of 8% feet between the overhang of the truck and north edge of road, thus allowing sufficient space for the Maritzky car to pass. Defendant further states that there was considerable dust on the road, and that, after the collision of the truck and Chrysler car, it was so dense “he could not see a thing.”

Plaintiff’s car was so badly damaged that he did not have it repaired. The Maritzky car suffered like fate, while the motor of the truck was disconnected from its fastenings to the frame as a result of the blow from the Maritzky car. These results indicate most positively that the automobiles were moving at a rapid speed when the collisions occurred.

The Maritzky car, by the force of the impact with defendant’s truck, was turned about, facing east near the middle of the road, and, while there is some dispute as to how far it was from the bridge when struck by plaintiff’s car, the preponderance of the evidence fixes this distance at 30 feet.

These accidents happened on the east side of a small concrete bridge across the highway. It is not as wide as the road. On each side of the bridge, the road slopes gradually towards it. Plaintiff’s car was going down grade when the accident occurred.

We are inclined to believe, and in fact do believe, that the Maritzky car, and that of plaintiff, was traveling at a rate of speed much faster than alleged and testified to. When we consider that these cars were traveling faster than all the other cars on this stretch of the highway, passing them one by one, and that plaintiff was in a hurry to reach home, and that they were going down grade when the collisions occurred, coupled with physical effects of the impacts, it requires no exceptional effort to arrive at this conclusion.

We quote the following resume of Judge Mills in the case of Maritzky v. ChadickHayes Co., referred to above, touching the negligence of both parties; and adopt same in so far as. pertinent .to the present opinion:

“We think that Mrs. Maritzky was clearly negligent in approaching a dangerous situation at a speed so great that she did not have her car under control. Her statement that the truck suddenly swerved from its right-hand side of the road onto the left-hand side and struck her is completely disproved by the testimony of her own witnesses that the tracks of -the truck from the bridge to the point of the collision were straight ahead and did not turn in any direction.
“In any 'event it was broad daylight; the whole situation was- before her. If the truck was on the righthand side of th$ road it had been there ever since it went upon the bridge. The situation was before her, and even though the truck was whore it should not have been, she should have avoided, by the use of due care, any collision with it. We, therefore, think that plaintiffs cannot recover.
“On the other hand there is no doubt that the truck was on, at least to the extent of two feet, the righthand side of the road. We have no doubt that this wrongful position of the truck, at least after it had left the bridge, caused the dangerous situation which confused Mrs. Maritzky and led to the collision. We think,’ then, that both parties were guilty of negligence, and that the law should leave them where they are. The fact that the truclj, driver continued straight ahead after crossing the bridge instead of cutting to the right to give the oncoming cars their full portion of the road, convicts him of contributory negligence and bars recovery on the reconventional demand.”

Plaintiff admits that he saw the truck of defendant as it was crossing the narrow concrete bridge, or immediately before it entered thereon. He was well acquainted with the highway there, and knew that Mrs. Maritzky was a short distance ahead of him. He knew the road was dusty and that its surface carried loose gravel. He was traveling down grade, and admits that he trailed the Maritzky car for many miles, keeping around 100 yards from it, until just before the accident, when this distance was reduced to between 75 feet and 100 feet. Why he drew closer to the car at this critical point is not explained. The condition of things as plaintiff approached the bridge required of him the most careful action. He should have reduced his speed to a minimum, kept his car under perfect control, and maintained a distance from the Chrysler car within which he could have brought his own car to a sudden stop if the exigencies of the situation required it. He should have known that under the situation of things as they then existed there the chances for accidents were enhanced.

It is shown that, traveling at 35 miles per hour, it required S3 feet in which to stop plaintiff’s Pontiac coupe on a gravel road like that at the place of these accidents. Plaintiff must be held to have known this, and yet he admits he traveled at times not more than 75 feet from the Maritzky car.

Plaintiff alleges in his petition that the collision between the Maritzky car and defendant’s truck occurred so suddenly and unexpectedly that he could not stop his own car in time to avoid the accident. He supports this allegation by his evidence. He is correct. No doubt he was traveling at a rapid rate of speed, assuming that things ahead of him would transpire without any difficulty or trouble, and, when he was. suddenly confronted with an emergency, he did not have the time nor opportunity to avoid the accident. His own negligence was the proximate cause of the collision in which he was injured. Had he observed the elementary rules of safety under such conditions, the fact that the first collision occurred a short distance ahead of him would not have involved him in the least.

Under the statutory law of the state, the permissible speed of motor vehicles is 45 miles per hour, but the circumstances and conditions existing have a material influence upon what may be a reasonable rate of speed at a given time and place. In the ease of Overstreet v. Ober, 14 La. App. 633, 130 So. 648, 650, the Court of Appeal, commenting upon the question of reasonable rate of speed, said:

“Admittedly the car was making 25 or 30 miles an hour. Under ordinary circumstances, that would not be an excessive rate of speed, but the question whether an automobile is running at an excessive rate of speed depends upon the conditions, and circumstances surrounding the particular point under consideration.’’

Our courts have often been called on to decide cases involving the legal principles presented in this case. We refer to some of them.

In Millsaps v. Hornsby, 6 La. App. 651, the court said:

“Even though the defendant was negligent, the plaintiff was contributorily negligent in approaching the meeting place of the two cars at such a speed that he could not stop in time to avoid the collision, defendant’s car being slightly over on the left side of the ‘ road at the moment of impact.”

With respect to dust or other elements obscuring the view of the operator of a motor vehicle in Pepper v. Walsworth, 6 La. App. 610, it is said:

“When a driver finds that he is unable to see the road ahead of him, for any reason whatever, whether blinded by bright lights, smoke, dust, fog or for any other reason, it is his duty to at least bring his car under such control that it can be stopped in a moment in case of emergency and in extreme cases it is his duty to stop.”

In Roberts v. Eason, 6 La. App. 703, the court said:

‘‘It is the duty of one driving an automobile behind another automobile to so regulate the speed of his car and the distance between it and the car ahead of it as not to collide with a truck parked in the public street in front of him in case the car that he is trailing turns, sharply to avoid striking the truck.”

With regard to one car trailing another, Blashfield’s Cyclopedia of Automobile Law, vol. 1, p. 454, says:

‘‘In trailing other cars, a motorist must govern his speed or keep back a reasonably safe distance so as to provide for the contingency of a car in front suddenly stopping, and so that he can stop without a collision, or can turn out sufficiently to pass the vehicle in front without going across the street in the way of traffic approaching from the opposite direction, as that will naturally result in collision with such traffic.”

Subsection (a) of section 17 of Act No. 296 of 1928'.provides:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard ■to the speed of such vehicles and the traffic upon and condition of the highway.”

And the following cases are pertinent: Henican v. Woodman & Baldwin, 1 La. App. 281; Green v. Moore, 4 La. App. 496; Hardee v. Nevers, 10 La. App. 539, 120 So. 227; Stevens v. Dean, 6 La. App. 537; Youman v. McConnell & McConnel, 7 La. App. 315; Testard v. Board of Commissioners, 7 La. App. 533.

Learned counsel of plaintiff say:

“It is true the defendant’s negligence was not the sole cause of said collision and the obstructing of the highway, but it is sufficient that it was one of the proximate causes thereof,” and cite 22 R. C. L. 128, as follows:
“It is well settled that negligence, in order to render a person liable, need not be the sole cause of an injury. While mere concurrence of one’s negligence with the proximate and efficient cause of the disaster will not create liability, one is liable if his negligence concurred with that of another, or with an act of God, or with an inanimate cause, and became a part of the direct and proximate cause, although not the sole cause.”

They also quote from Blashfield’s Cyclopedia of Automobile Law, vol. 2, pp. 1204 and 1205, viz.:

“There may be more than one proximate cause for the same injury, and the mere fact that some other cause co-operates with the negligence of the defendant to produce the injury for which suit is brought does not relieve him from liability.”
“Under the principle stated in the foregoing section, if the negligence of defendant is one of the proximate causes of the injury of which plaintiff complains, he cannot escape liability by showing that the negligence of a third person also contributed to the injury, and that the accident would not have happened, but for such negligence of the third person.”

Many cases from other states are cited, holding the doctrine enunciated in the above-quoted excerpts, and also the Louisiana case of Welsch v. Standard Oil Co., reported in 3 La. App. 734, on same subject.

These authorities are not applicable to the present case, as in none of them is there an intimation or suggestion of negligence on the part of the plaintiff. If plaintiff in this case had been free of contributory negligence, the cited authorities would be controlling, but, as we have found, and hold, that his own negligence constituted the proximate cause of the accident in which he was involved, they are not pertinent.

We find no error in the judgment appealed from, and it is accordingly affirmed.


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    No. 4255
    Second Circuit
    EVANS v. LOUISIANA GAS & FUEL CO.
    (March 16, 1932. Opinion and Decree.)
    (April 5, 1932. Rehearing Refused.)
    Argued before DREW, McGREGOR and PALMER, JJ.
    Jones & Jones, of Marshall, Texas, and Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellant.
   PALMER, J.

This action is brought under the Employers’ Liability Act (Act No. 20 of 1914, as amended) for the recovery of compensation in the sum of $8,000, payable in 400 weekly installments of $20 each, less credits aggregating $409.50.

The plaintiff was working for the defendant company as telephone lineman, at a salary of $130 per month, at the time he was injured. His duties were to inspect, repair and maintain the telephone lines operated by the defendant. One of these lines extended from Shreveport, in Caddo parish, to Cotton Valley, in Webster parish.. On the day of his injury, plaintiff, in pursuit of his regular duties, went from Shreveport to Cotton Valley and performed some of his regular work. He traveled via an automobile or truck owned and furnished him by the defendant company.

After completing his work at Cotton Valley, plaintiff started back to Shreveport, and, after having traveled on the return trip a distance of about fourteen miles, during which time he was caught in a snow 'storm, the car in which he was riding overturned, severely injuring him, producing a fracture of his skull, and causing concussion of the brain. The fracture was described by plaintiff’s attending physician as located on “the left side of the occipital region; ranged through the back portion of the skull.” As a result of the injury, plaintiff immediately became unconscious and continued in that condition, or a semiconscious condition, for some time.

The defendant company • paid plaintiff from the date of his injury, weekly compensation in the sum of $1950, until March 26, 1931, at which time these payments were discontinued. The defendant also paid as medical fees for services rendered plaintiff, a sum in excess of the maximum amount provided by law for medical attention to injured employees

In the original answer, defendant, after alleging that they had been paying plaintiff weekly compensation, but on medical advice they desired to carry him to a specialist for examination and that lie refused to go, then avers that:

“Your defendant shows that if plaintiff is suffering any disability, it is the direct result of his own arbitrary, unreasonable refusal to accept medical attention and treatment as above stated.”

On the same date the original answer was filed (June 20, 1930), defendant also filed a motion to stay proceedings during the refusal of plaintiff to accept medical examination and treatment This motion was never passed on by the lower court.

The case stood in this situation until April 13, 1931, at which time defendant filed a supplemental answer, alleging in substance, that it had just learned, since paying the last weekly installment of compensation, that plaintiff “was drunk and intoxicated and under the influence of liquor at the time he received his alleged injury, and that his intoxication was the real cause of the accident on account of which he was injured.”

Defendant then alleged that the said payments of compensation and medical expenses were made through error. It asked that plaintiff’s .demands be rejected; that it be awarded judgment, in reconvention, against plaintiff for the amount it had paid him as compensation and as fees for medical expenses.

On these issues the case went to trial, resulting in a judgment for plaintiff for compensation in the sum of $19.50 per week during the period of his disability, not to exceed 400 weeks, payable weekly, subject to a credit of $1,365, with legal interest on the past due installments from their respective maturities until paid.

From this judgment, defendant has appealed.

OPINION

In our consideration of this case, the necessity of passing on any other questions, except the charge that the injury was caused by the plaintiff’s intoxication at the time of the injury, is obviated, because there is no dispute over the questions of the extent of the injury, and that plaintiff was in line of duty when injured. Counsel for defendant say in the beginning of their original brief that “the one issue in this case is the question of drunkenness.”

Section 28 of Act No. 20 of 1914, as amended, provides that no employee shall be entitled to compensation when his injury is caused by his intoxication at the time. Paragraph 2 of this section provides that, “in determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for the causes and reasons set forth in this Section, the burden of proof shall be on the employer.” As a general rule of law, special defenses must be specially pleaded and proved by a preponderance of evidence, by him who urges the plea. However, the Legislature evidently was unwilling to leave open to any possible doubt the question of who carries the burden of proof in a case, such as we are now dealing with, so paragraph 2 was written into section 28, specifically fixing that burden upon the employer.

As we have said, there is but one question for decision in this case: Were the injuries plaintiff received caused by his intoxication at the time of the injury? We shall therefore only consider that part of the testimony which bears upon this question.

J. T. Powell, a witness called by defendant, testified that when he first saw plaintiff on the day of the injury, he was at the defendant’s gasoline plant in Cotton Valley “doing some connection work,” and that when he had finished, he came over where he and others were, stopped a few minutes and left for Shreveport; said when plaintiff reached the place where he (the witness) was, he was “popping off. Talking”; said he was pretty full at that time; that he had had about all (liquor) that he could carry; that he was not walking straight, but was wobbling; that he had too much (liquor) in him to be driving a car; that plaintiff was a drinking man; that he went to the scene of the accident soon after it occurred and found plaintiff had been carried into a negro’s house nearby and was vomiting, and that the odor of liquor was present; that he found one bottle on the ground which had a little liquor in it and found two or three empty bottles in the back of the car which had the odor of whiskey in them.

L. F. Pa.rkerson was placed upon the stand by defendant. He testified that plaintiff, on his way to Cotton Valley the day of the accident, picked him up at Ivan, and that he rode with plaintiff on to Cotton Valley, a distance of about seven miles; that the only whiskey he saw plaintiff imbibe was one drink taken on the way to Cotton Valley; that plaintiff, after taking the one drink, said “I don’t want to take too much,” and that “he couldn’t afford to get too much on the job that he had”; that after taking the drink, plaintiff said he was not going to take the bottle on into Cotton Valley, so he took it out of the car and laid it down hy a dump on the wayside; said plaintiff drove faster than he likes to ride; that after taking the drink, he drove some faster than before; said the only difference in the way plaintiff drove the car before and after taking the drink was that he drove a little faster afterward; said that plaintiff handled the car all right and drove it carefully; that he slowed down as they approached Cotton Valley; said plaintiff talked all right and appeared to know what he was doing; that he would not say plaintiff was drunk; said he saw nothing wrong with his talk; said plaintiff did not act like he was unbalanced when he placed the bottle of whiskey on the roadside.

The testimony of Drs. Hall and Bell, introduced by defendant, is to the effect that they saw plaintiff at the negro’s house near where the accident occurred, about one hour afterwards; that he was vomiting and that the odor of liquor was very pronounced; that plaintiff was in a semi-delirious condition when they saw him; that they saw no external signs of any injury, and, smelling the odor of liquor on his vomitus to a very pronounced degree, they considered him drunk; that they saw a bottle picked up' from among the tools of the overturned car which had a little whiskey in it. Said they did not know whether his condition had anything to do with the accident or not.

G. C. Sheppard, a' witness for defendant, said he went to the scene of the accident at the time Drs. Hall and Bell were there; that he smelled whiskey as soon as he drove up where the car turned over; that he went up to the house where plaintiff .was and that when he (plaintiff) vomited, you could smell whiskey “all over”; that there was some whiskey in bottles laying around there; that he would not say just from the signs of whiskey he saw that plaintiff’s ability to drive a car was affected, explaining: “Sometimes a man can drink right smart whiskey and still drive a car”; said the left front wheel of plaintiff's car was broken and the casing had a blowout; said there were signs where the car kicked up dirt and snow, spreading out, making a curve around to pass another car.

Amos Jennings, the colored occupant of the cabin where plaintiff was first carried after the accident, testified on behalf of defendant. He said he was at home and saw the accident; said he did not know | what caused the accident, but that it happened as plaintiff attempted to pass a car in front of him; that he went immediately to the scene and found plaintiff lying upon the highway; that a little later others came and they carried plaintiff into the house; said he saw no whiskey bottles and smelled no whiskey until after plaintiff was carried into the house and vomited, at which time he smelled something, but says he did not know whether or not it was whiskey; said he could not tell whether he was drunk or not; that the only signs of life present were his breathing, until after the doctor came and gave him the hypodermic, after which he roused up; said plaintiff did not vomit until after the hypodermic was administered.

Plaintiff, testifying on behalf of himself, said that on the date he was injured, he went to Cotton Valley to carry some material, pipe and fittings, with orders from the superintendent of the defendant company to. repair some telephones while he was there; that upon arriving at Cotton Valley, he unloaded the material he had carried at the warehouse of the company’s refinery; that he fixed two telephones; that he then started back to his home in Shreveport, traveling in a snowstorm; that after traveling fourteen to sixteen miles, he met a man and after passing him, he pulled over to get back to a proper place in the road when something went wrong and he took a left turn to the side of the road, going into a ditch; that the wheel or casing “went bad” on him; that after passing the man he met, his car dropped down and began jumping like the wheel was broken; then he was knocked unconscious and that he did not know anything afterwards until he woke up in the sanitarium, eight or nine days later; said on his way to Cotton Valley he picked up L. P. Parkerson, at Ivan; said Parkerson had some liquor and that he took one drink with Parkerson and that was the only drink he took on that trip; that after taking the drink, he made Parkerson take the liquor out of the car; that he had no whiskey in his car; that when he saw J. T. Powell (witness who testified for plaintiff) he (Powell) and five or six others were in the refinery yard; that after seeing these men, he repaired a telephone by putting a condenser in it.

He then described the details of the work he did in that undertaking; that he then repaired another phone at the warehouse; that he had taken but one drink and was not drunk or staggering, and that he did his work properly, which an intoxicated person could not do.

Just how much liquor plaintiff imbibed on the day of his injury, no one would or could say, except plaintiff himself, who claims he took only one drink. If he had had but one drink, it was evidently a huge one, since the odor of liquor was very pronounced when plaintiff would vomit after the accident. However, the smell of liquor on the vomitus, regardless of how pronounced it was, would not necessarily prove that defendant was wholly intoxicated at the time of the accident.

In analyzing this evidence, we find the testimony of Drs. Bell and Hall of very little value. They both made emergency ¡alls to see plaintiff, while he was still at he negro’s cabin. About the time they arived (they traveled separately but reached |the scene near the same time), plaintiff vomited and the smell of whiskey was very pronounced on his vomitus. They knew an ambulance was expected from Shreveport momentarily to transfer plaintiff to a hospital, so as there were no external signs of injury, and smelling the odor of whiskey, they assumed that plaintiff’s trouble was intoxication and not personal injury. Regardless of his condition as to intoxication, the doctors were proved to be clearly in error as to the injuries plaintiff had received and the cause of his delirium, for the x-ray showed he had a serious skull fracture and that he had, at that time, concussion of the brain. Any conclusions they expressed as to plaintiff’s inability to drive a car safely at the time of his injury, due to his intoxication, were based entirely upon their smell of liquor in the room where he lay; hence, such opinions are of little value to defendant in discharging the “burden of proof” resting upon it.

The testimony of G. C. Sheppard is in the same class with that of Drs. Bell and Hall. He did not see plaintiff until after the accident. His views as to plaintiff’s intoxicated condition were based entirely upon the fact that he saw some bottles at the scene of the accident which contained the odor of whiskey, and also he smelled the odor of liquor in the' room where plaintiff was carried.

The only eyewitness, except plaintiff, was Amos Jennings (colored). He saw nothing to show that plaintiff was intoxicated, except he says he smelled something after plaintiff vomited. He gave no testimony to the effect that plaintiff was improperly handling the car when the accident happened. If plaintiff was driving as a drunken man does, this witness, who was looking at him at the time, certainly would have seen some evidence of it, and yet he gave no testimony that such was the case.

The witnesses, Parkerson and Powell, are the only two testifying who had any chance to know anything of plaintiff’s condition as to intoxication before the injury. Both were placed upon the stand by defendant. At the time of the trial, Powell was still working for defendant, while Parkerson had no connection with it. Parkerson rode with plaintiff from Ivan to Cotton Valley, and lie says lie drove all right, except a little fast; that he talked all right and appeared to know what he was doing; that he did not wobble while walking, and that he would not say he was drunk. On the other hand, Powell, who saw plaintiff right after Parkerson left him, says he wobbled when he walked and was too drunk to drive a car.

Thus, we find defendant’s two most important witnesses widely differing on very material matters. Defendant vouched for both of them. If they are honestly differing, then which one is in a better position to be correct in what he says? Powell only saw plaintiff a few moments at a time he, Powell, was engaged in his regular work. Parkerson was with him for some time; rode in a car driven by plaintiff, and hence, saw him in action at the steering wheel. He talked to plaintiff for some time and if he was too intoxicated to drive a car safely he certainly would have observed it, and yet he says his driving was all right, except a little too fast for him.

It is therefore apparent that what defendant proved by Powell was largely destroyed by what it proved by Parkerson, so very little, if any, progress was made by defendant in the testimony of these two witnesses in discharging the “burden of proof” resting upon it.

It will be noted that plaintiff did certain work on repairing telephones at Cotton Valley that an intoxicated man could hardly perform. This work was done at or near the time when the witness, Powell, said plaintiff wobbled when he walked and was too drunk to drive a car. There is no dispute over the fact that plaintiff did make such repairs at the time stated. Such facts dispute the testimony of Powell, while they corroborate that of Parkerson.

Plaintiff testified, in effect, that he was not intoxicated at the time of the accident, but that his left car wheel broke and the casing blew out as he attempted to pass a car on the highway, and that his accident resulted therefrom.

In the case of Watkins v. Roach, 4 La. App. 261, in dealing with facts somewhat similar to those in this case, this court said:

“Our conclusion, therefore, is that plaintiff, on the occasion of the injury, was intoxicated to some extent. However, it may be that his groggy, drowsy condition immediately following the accident was due to some extent to the shock resulting from the injury.
"But whether plaintiff was in an intoxicated condition at the time of the injury, we think, makes no difference, for the reason that there is no testimony that plaintiff’s intoxication caused the injury.”

Discussing the burden of proof in that case, the court said:

“The compensation act as quoted above, specifically provides that the burden of proof shall be upon the employer to show that the injury was caused by the intoxication.
“The defendant has failed to discharge this burden. If the court should hold that plaintiff is not entitled to compensation, it would have to assume that plaintiff’s intoxication caused the injury. We cannoij assume that, under the plain letter of the statute to the effect that the burden of proof on that particular point is upon the defendant.”

We would not hold that plaintiff was not^ intoxicated to some extent at the time of the injury, although the proof is not sufficiently strong to justify us in making a definite ruling to that effect. But whether plaintiff was intoxicated or not is immaterial, for the reason that there is absolutely no proof that any intoxicated condition he might have been in caused the injury.

It is certain the left wheel broke and the casing on it blew out right at the (place where plaintiff was injured. The most reasonable thing to expect under such conditions is for the car to turn over, just as was done in this case, when traveling at a rather fast rate of speed.

We see no error in the judgment of the lower court, so it is therefore affirmed; defendant to pay all costs of appeal.


author: PALMER, J. DREW, J.

text:
    No. 4271
    Second Circuit
    RICHARDS v. ROUDILION
    (March 16, 1932. Opinion and Decree.)
    (April 5, 1932. Rehearing Refused.)
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for plaintiff, appellee.
    Wilson & Abramson, of Shreveport, attorneys for defendant, appellant.
   PALMER, J.

Plaintiff, alleging himself to be the owner of a beauty parlor, known as the “Hollywood Shop,” in the city of Shreveport, and as having been in the undisturbed possession, ownership, and enjoyment thereof for more than one year, and that defendant has taken possession of funds belonging to said shop and of the key thereto, and is interfering with him in the operation and enjoyment of the said property by persisting in remaining upon the premises without right, etc., seeks an injunction against defendant prohibiting her from in any way interfering with him in the conduct of said business.

He asks that the defendant tbe cited to show cause on a date to be fixed by the court why a preliminary writ of injunction should not issue, as prayed for. He further alleges that he is entitled to a temporary restraining order against defendant, upon furnishing a hond according to law.

On the day the suit was filed (March 16, 1931), the court issued a rule nisi directed to the defendant, ordering her to show cause on the 20th day of March, 1931, at 10 o’clock (a. m.), why a preliminary injunction should not issue in this case, as prayed for. Also, on the same date, the court signed an order directing that a temporary restraining order be issued against the defendant, upon plaintiff furnishing bond in the sum of $500, with good and solvent security and conditioned according to law, temporarily restraining and prohibiting her from in any way interfering with plaintiff in the conduct, control, and operation of the said beauty parlor, and specified that the said restraining order would expire on the 20th day of March, 1931.

Based upon this order, a temporary restraining order was issued on the 16th day of March, 1931, and served on the defendant on the same day.

On the 19th of March defendant filed an answer to the merits of plaintiff’s petition. This answer was likely filed in the clerk’s office, for it does not appear to have been noted in the minutes of the court until March 21st. In the answer, after denying the material allegations of plaintiff’s petition, defendant alleges that, at the time the restraining order issued, she was in complete control of the business as the active managing partner of the plaintiff, pursuant to an agreement of partnership entered into on December 5, 1930, under which she alleges she became an equal partner with plaintiff in the operation of the business. She 'denies that plaintiff was ever in active charge of the shop.

Defendant further alleges that plaintiff obtained said restraining order solely for the purpose of appropriating to himself her interest in the shop and in order to deprive her of her rights as an equal partner. She alleges that the restraining order was sued out maliciously and without any justification whatever, in an attempt to harass, and embarrass her.

She further alleges that, by virtue of the wrongful issuance of the said restraining order, she has suffered damages as follows:

For loss of salary.___________________________________$ 25.00
For humiliation, embarrassment, mental anguish and worry____________ 250.00
For attorney’s fees to obtain a dissolution of the restraining order____ 200.00
$475.00

She prays that the demands of plaintiff be rejected; that the writ of injunction sought by plaintiff be denied; that the restraining order be dissolved, and for judgment against plaintiff in the amount of $475, for damages covering the items above mentioned.

On the 6th day of May, 1931, counsel for plaintiff filed an objection to the allowance of the answer of defendant on the grounds that it came too late, and on the same date also filed a motion to strike out a portion of the allegations of the answer, on the grounds that the restraining order had expired by its own terms, and that no answer to the rule “nisi” was filed on the return date, and that there were no issues between plaintiff and defendant, and that the allegations relative to damages should be stricken out. On May 7th, the day the case was called for trial, the court overruled the objection to the allowance of the answer, and the motion to strike out was denied; so plaintiff thereupon dismissed his petition by entering a voluntary nonsuit.

The lower court rendered judgment in favor of plaintiff authorizing and confirming his action in taking a voluntary nonsuit, in so far as the demands of plaintiff were concerned, and rejecting the reconventional demands of defendant. Under the judgment, plaintiff was condemned to pay the cost up to the date of nonsuit, and thereafter all costs incurred were ordered paid by the defendant. From this judgment, the defendant in the main demand, and plaintiff in reconvention, prosecutes this appeal.

The only issue now before the court is the claim of defendant for damages on her reconventional demand. Counsel for plaintiff contend that the reconventional demand of defendant cannot lie because it is not necessarily connected with and incidental to the main demand. The right of a defendant in any suit to institute a demand in reconvention is governed by Act No. 50 of 1886, amending and re-enacting article 375 of the Code of Practice. Under that statute, where plaintiff and defendant are both residents of the same parish, it is necessary that the reconventional demand be necessarily connected with, and incidental to, the main demand.

But this article of the Code of Practice contains this proviso: “That in all cases of arrest, attachment, sequestration, provisional seizure and injunction, the defendant may in the same suit, by reconventional demand, recover from the plaintiff the damages he may have sustained by the illegal resort to such writ.” Defendant, as a basis of her claim for the damages, alleges “that by virtue of the restraining order which plaintiff caused to be issued on March 16, 1931, your respondent has been damaged in the following particulars, to-wit,” and she then sets out her items of damages.

The further argument is made by plaintiff’s counsel that a temporary restraining order is not an injunction, and hence is not included in the above-qouted proviso. In the case of Albert Pick & Co. v. Stringer, 171 La. 139, 129 So. 731, 734, the Supreme Court said:

“Restraining orders granted upon the furnishing of bond have, under the provisions of Act No. 29 of 1924, the same temporary force and effect as preliminary injunctions. The restraining order stays action pending judgment on the applica? tion for a preliminary injunction, and the latter writ stays action pending the hearing of the merits of the case.”

Under this decision, temporary restraining orders are in the same class as injunctions. Therefore defendant has the right by demand in reconvention to sue for such damages as she has alleged, but in such reconventional demand she assumes the position of plaintiff and carries the burden of proving, not only the damages she alleges, but the wrongful issuance of the temporary restraining order as well. Let us see if she has discharged that burden. There is. attached to defendant’s answer a document she alleges was her contract of partnership, but, upon the trial of the case, this document was not offered in evidence. The only testimony bearing upon the alleged partnership was developed by the trial judge, and, at most, the answers of defendant to the questions propounded to her by the court amount to conclusions of law only.

Whether there was such a partnership depends upon an agreement the defendant had with plaintiff, if there did in reality exist such an agreement. The document defendant alleged upon and attached to her answer, as already stated, was not offered in evidence. Therefore we cannot hold that the defendant proved the first essential of her claim, viz., the wrongful issuance of the temporary restraining order. It certainly was necessary for her to prove, as she alleged, that she was a partner in the business, if she established her claim of the wrongful issuance of the restraining order. As we read this document, even had it been introduced in evidence, it would not have been self-evident proof of a partnership. It is clearly susceptible of an interpretation ' of a contract to sell, and hence it would have taken parol evidence to have proved the intention of the. parties.

Counsel for defendant seem to accept the principle that they had not offered any proof to show the wrongful issuance of the restraining order. They rely upon the fact that the voluntary nonsuit by plaintiff was an admission on his part of the wrongful issuance of the restraining order. They refer to the cases of Ludwig v. Kohlman, 5 La. Ann. 298, and Barthe v. City of New Orleans, 42 La. Ann. 43, 7 So. 70, as sustaining these views. We do not find that the principles enunciated in these cases are applicable to the case at bar.

As previously stated, the temporary restraining order issued March 16th and, by its very terms, expired March 20th. The voluntary nonsuit was not entered until May 7th. Therefore, when the nonsuit was taken, the temporary restraining order had been extinct for several weeks. In other words, the voluntary dismissal by plaintiff of his suit could have no bearing whatever upon the temporary restraining order. He did not nonsuit the restraining order, for it had expired by limitation long previous to the dismissal of the suit. To hold that a voluntary nonsuit of the main action in this case is an admission on the part of plaintiff that the temporary restraining order wrongfully issued, when that order had expired weeks before, is indeed stretching the doctrine enunciated in the two cases relied on by defendant. In our view of the situation, defendant failed to prove the wrongful issuance of the temporary restraining order, and, without affirmatively establishing that fact, her claim for damages necessarily falls.

The judgment of the lower court is therefore affirmed; defendant, appellant, to pay all cost of the appeal.

DREW, J.

(dissenting). I respectfully dissent from the majority opinion of the court, for the reason that the plaintiff in rule abandoned the restraining order he had issued by failure to ask for its extension, together with his failure to appear and proceed with his application for temporary injunction on the date fixed for hearing on the rule nisi, which was the same date of the expiration of the restraining order (Act No. 29 of 1924); and later, on the day of trial, dismissed his case as of nonsuit. His actions had the same effect as a judgment rendered contradictorily and decreeing the restraining order to have been wrongfully issued. Barthe v. City of New Orleans, 42 La. Ann. 43, 7 So. 70. His actions can be reasonably construed as an admission or confession that the restraining order had been wrongfully obtained, and defendant in rule was relieved from proving the wrongful issuance of the restraining order.

furthermore, the • restraining order was not issued in conformity with Act No. 29 of 1924, which reads as. follows:

“Every such temporary restraining oi'der shall be endorsed with the date and hour of issuance.” Section 2.

This was not done. “Shall forthwith be filed in the Clerk’s Office and entered of record.” The record fails to disclose that this was done. “Shall state why the order was granted without notice.” It fails to so state or attempt to state.


author: WESTERFIELD, J.

text:
    No. 13,865
    Orleans
    COBB v. UNITY INDUSTRIAL LIFE INS. CO.
    (April 18, 1932. Opinion and Decree.)
    Normann, McMahon & Breckwoldt, of New Orleans, attorneys for plaintiff, appellee.
    Loys Charbonnet and Joseph A. Casse, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit on an industrial accident insurance policy. Plaintiff claims six weeks’ indemnity at the rate of $7 per week, double indemnity and a reasonable attorney’s fee as authorized by Act No. 310 of 1910. The disability is admitted, but liability denied upon the ground that subsequent to the issuance of the policy an agreement was entered into between the insurer and the insured, the effect of which was to relieve the insurer of any future liability under its policy for accidental injury. The agreement was offered in evidence and objected to upon the following ground:

“Firstly, that the purported release shows on its face that it is a nudum pactum and void for want of any consideration; Secondly, that the alleged release is not attached to nor made' part of the policy sued upon, and hence inadmissible.”

The court below sustained the objection to the admissibility of the document and rendered judgment in plaintiff’s favor as prayed for, fixing the attorney’s fee at $15. Defendant has appealed and plaintiff has answered the appeal asking that the attorney’s fee be increased from $15 to $25.

The agreement relied upon by defendant is in the record and reads as follows:

“Received from the Unity Industrial Life Ins. Co. the sum of Twenty-four Dollars and Fifty Cents, being all the benefits due on claims filed March 26, April 2nd, 9th, and 16th. The first three at $7.00 each, and the last one at $3.50. This is in full settlement for all claims that I may now or hereafter have against said Company for this accident of contused ankle, or any other accident occurring in the future.”

The objection of want of consideration rests upon the fact that the alleged release is quite evidently a receipt for the payment of benefits which had accrued prior to its confection and, on this point, the case of National Life Insurance Company v. Jackson, 18 Ga. App. 494, 89 S. E. 633, is cited and the following excerpt quoted:

“A release of a policy is without consideration where the expressed consideration consists of payments already made as sick benefits.”

3rd Decennial Digest, Vol. 16, p. 625, “Insurance,” sec. 603.

Upon the second point we are referred to section 2 of Act No. 227 of 1916, reading as follows:

“Be it enacted, etc. That every policy of insurance issued or delivered within the State on or after the first day of January, nineteen hundred and seven, by any life insurance corporation doing business within the State shall contain the entire contract between the parties and nothing shall be incorporated therein by reference to any constitution, by-laws, rules, application or other writings unless the same are endorsed upon or attached to the policy when issued; and all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties, and no statement or statements not endorsed upon or attached to the policy when issued shall be used in defense of a claim under the policy unless contained in a written application, and unless a copy of such statement or statements be endorsed upon or attached to the policy when issued. Any waiver of the provisions of this section shall be void.”

Defendant contends that the above act has no application because the writing which he seeks to introduce was confected subsequent to the issuance of the policy, and, therefore, could not have been attached to it “when issued.” In other words, it is only such writings as may be in existence at the time the policy is issued which the act requires to be incorporated in the policy. We cannot agree with counsel in this view since it would only be necessary, in order to modify the contract of insurance, as it is expressed in the policy, to have a subsequent agreement issued one day, or one week or one month later, whereas the plain intendment of the law is that the respective obligations of both parties to the contract of insurance be determined by the policy itself unqdalified by any extraneous instrument regardless of its date. Barnett v. Merchants’ Life Ins. Co., 87 Okla. 42, 208 P. 271; 2 Cooley’s Briefs on Insurance (2d Ed.) p. 1014.

Our conclusion is that the instrument relied on by defendant was properly excluded and, since that is its sole defense, the judgment appealed from must be affirmed.

In regard to the attorney’s fee which the court below fixed at $15, we believe the amount to be too small and have concluded to increase it to $25, the amount asked for by plaintiff.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is amended by increasing the attorney’s fee awarded counsel from $15 to $25 and as thus amended it is affirmed.


author: JANVIER, J.

text:
    No. 13,893
    Orleans
    O’KELLEY v. MOCKLIN
    (March 7, 1932. Opinion and Decree.)
    (April 4, 1932. Rehearing Refused.)
    Harry M. Mayo, Jr., of New Orleans, attorney for plaintiff, appellee.
    John May and A. M. Suthon, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

O’Kelley claims reimbursement in the sum of $292.10 for damages sustained by his Pierce Arrow automobile in an intersectional collision at the corner of Thalia street and the driveway of Claiborne avenue used by vehicles proceéding in an uptown direction.

O’KeUey was himself driving his automobile, going uptown, and defendant’s truck was being operated by his son on Thalia street towards the river.

From a judgment for plaintiff, as prayed for, defendant has appealed.

We are convinced that defendant’s, truck was driven into the intersection directly into the path of the on-coming Pierce Arrow after it was too late for the latter to be stopped or turned aside and that the latter, proceeding at a lawful speed, was, under the traffic ordinance of the city of New Orleans, No. 7490, C. O. S., entitled to the right of way, by reason of the superior right accorded by the ordinance to vehicles on Claiborne avenue, at that point.

It is contended, however, on behalf of defendant, that plaintiff was himself violating a provision of the ordinance, in that he was driving near the neutral ground, which was. to his left instead of alongside the right-hand curb. This fact is admitted, and it necessarily follows that in that regard he (O’Kelley) was guilty of a technical violation of the ordinance.

We are unable to attach to the violation any importance, as we do not see that there was any causal connection between the said violation and the subsequent collision, except the mere chance that the two vehicles happened to arrive at the spot, at which the collision occurred, at exactly the same time, whereas possibly if one of them had been driving along a different line of the roadway on which he was proceeding, they might not have reached at the same time the spot at which they actually did collide. It is true that since the collision occurred near the neutral ground there must have been open space behind the truck through which space possibly the Pierce Arrow might have passed had it been near the curb, but this is no more than saying that if the Pierce Arrow had not been on the street at all it is certain that there would have been no accident. There was no more causal connection between the location of the Pierce Arrow on the left of the street and the ultimate collision than there was between the actual presence of the Pierce Arrow on the street at all and the final result. It might well be argued, in answer to this contention of defendant, that even if the Pierce Arrow had been alongside the curb, nevertheless the accident would have happened if the speed of the truck had been a little bit less than it was.

Unless there is. result from technical violation of law, such violation plays no part in determining legal liability.

“It is, then, not sufficient for recovery to show that there has been a technical violation of law, but it must also appear that, as a natural result of the violation, the accident occurred; that there was causal connection between the two.” Michael Millannos et al. v. Mervin Patter, Sr., 138 So. 878, 880, 18 La. App. 708.

It is argued that the amount claimed is excessive. On this score we see no error in the. findings of the trial court.

The judgment appealed from is affirmed.


author: ELLIOTT, J. MOUTON, J.

text:
    Nos. 783-890
    First Circuit
    LANDRENEAUX v. DERGIN (LANDRENEAUX, Intervener)
    (May 5, 1931. Opinion and Decree.)
    (June 16, 1931. Rehearing Granted.)
    (February 8, 1932. Opinion and Decree on Rehearing.)

      j J. H. Dore and S. W. Gardiner, of Ville 'Platte, attorneys for plaintiff, appellee.
    O. E. Guillory and E. H. Guillory, of Ville Platte, attorneys for intervener, appellant. '
   ELLIOTT, J.

Adraste Landreneaux alleges that during the year 1930 he advanced Austin Dergin to the amount of $200 cash to enable him to make a crop for said year on a farm belonging to Mrs. Euclide Landreneaux.

That said Dergin and his wife, Cora Fontenot Dergin, secured him for the amount by pledging and hypothecating to him his crop of corn, cotton, rice and potatoes to be made on said farm for said year.

That said pledge was evidenced by an authentic act, executed in conformity with the law (Act No. 66 of 1874 and amendments thereto), duly recorded in the crop pledge book of the parish of Evangeline. That he has a privilege on said crop resulting from said pledge. Alleging fear that said Dergin would conceal, part with, or dispose of the crop, he prayed that the crop be sequestered in order to protect his rights, and the crop was seized as-prayed for.

Euclide Landreneaux intervened in the suit, opposed the privilege claimed by the plaintiff and prayed that the seizure be set aside. He alleges that he is the owner in possession of an undivided one-third of the crop, and in possession of the other two-thirds as pledgee, with privileges thereon.

That the crop was grown on a plantation belonging to his wife. That he was the administrator, in full charge of that plantation as head and master of the legal community of acquets and gains which existed between his wife and himself. That he hired Dergin to raise the crop, the consideration being that Dergin was to have two-thirds of the net profits of the corn and cotton, less two-thirds of the cost of the fertilizer and less the cost of the necessary family supplies and feed for his teams, furnished him, used in cultivating and making said crop.

That pursuant to his contract with Dergin he advanced him fertilizer to the amount of $27, corn to the amount of $33, rice to the amount of $32.50, and $20 worth qf meat used for the purpose stated. That Adraste Landreneaux, threatening to use his rights under said crop pledge to seize the crop and waste it in court cost, he exercised his right of legal subrogation and tendered Adraste the amount he had advanced on the crop. That Adraste, claiming more than he had in fact advanced for said purpose, refused tq accept same and subsequently caused said crop to •be seized. ' That out of the $200 which Adraste Landreneaux claims to have advanced to said Dergin for the purpose of enabling him to make said crop, Adraste paid $54 to Dorselin Sonnier on an account due him by said Dergin for the year 1929, and $20 in the same way to Edovic Rogeau for a debt due him by said Dergin for the year 1929. That these amounts were not secured by the crop pledge obtained from said Dergin.

Intervener and third opponent makes further averments and filed an amended and supplemental petition opposing the interest and attorney’s fees claimed by the plaintiff, on the ground that same was not covered. by his crop pledge. But a further statement does not appear to be necessary to the understanding of the issues.

Euclide Landreneaux prayed for judgment against Charles H. Pucheu, sheriff, Austin Dergin and Adraste Landreneaux, recognizing him as the owner of an undivided one-third of the crop raised on said farm and in possession thereof, with privilege on the other two-thirds.

He prayed for judgment against said Dergin for $113.10, the amount of his advance on said crop. That his tender to said Adraste Landreneaux be recognized as having been made to him before the filing of his suit herein, and that his legal subrogation to the rights of Adraste be recognized. That the sequestration caused by Adraste to be made herein be decreed null and void, and judgment for $50 against Adraste on account of attorney’s fees, etc.

Dergin, defendant, and Euclide Landreneaux, intervener and third opponent, filed motions to dissolve the sequestration, while Adraste Landreneaux on his part moved to strike intervener’s motion to dissolve out of the record on the ground that he had no standing to urge same.

The motion tq dissolve the sequestration was by the court, over the objections of defendant and intervener, referred to the merits.

The plaintiff answering the petition of intervention, alleges that he obtained the sequestration in good faith, denies having been tendered the amount due him and .reasserts his alleged privilege on the crop.

In answer to article I of the petition of intervention he practically admits that Eu-elide is owner of one-third of the crop seized, as lessor, and. does not deny intervener’s claim in that respect. In his answer to article 2 of the intervention he also practically admits that Dergin entered into an agreement with Euclide, becoming his tenant on the terms stated in said petition of intervention, but prays that his pledge be recognized against the intervener and third opponent.

Dergin answering the petition of Adraste Landreneaux denies all the averments in the petition.

After trial there was judgment in favor of the plaintiff as prayed for.

Euclide Landreneaux and Austin Dergin have appealed. No brief has been filed in this court by Adraste- Landreneaux nor Austin Dergin. None of the motions filed in the lower court are urged on appeal.

The motions filed in this court by defendant and intervener and third opponent praying that the judgment appealed from be annulled and avoided and plaintiff’s suit dismissed on grounds appertaining to the merits of the case, will be considered in dealing with the merits.

The evidence shows that Austin Dergin and his wife executed a note for $200 on February 6, 1930, payable to the order of Adraste Landreneaux on September 1, 1930, drawing 8 per cent per annum interest from date and 10 per cent attorney’s fees if sued on or placed in the hands of an attorney for collection. This note was secured by a crop pledge executed by said Dergin and his wife in favor of Adraste Landreneaux on the same day that the note was signed, under the provisions of Act No. 66 of 1874, as amended by Act .No. 93 of 1922 and Act No. 44 of 1882.

This crop pledge is in authentic form, was duly recorded, and the said Dergin and his wife therein pledged to Adraste Landreneaux the crop that they would make and cultivate for that year on the farm which belonged to Mrs. Euclide Landreneaux.

A question under the petition of intervention and third opposition is whether Euclide Landreneaux is to be regarded as the landlord, and as such the lessor of Austin Dergin as to said crop, or as having hired said Dergin to make the crop. His allegations are, in effect, that Dergin was both his lessee and hired man.

Adraste Landreneaux, in his answer to Euclide Landreneaux’s averments on this subject, practically admits that the relations between Euclide and Dergin were as alleged by Euclide Landreneaux. The testimony of Euclide on the subject is rather indefinite, but throughout his testimony he speaks of the crop as belonging one-third to himself and two-thirds to Dergin, subject to the charges mentioned in article 2 of his intervention. He recognized the crop pledge executed by Dergin in favor of Adraste Landreneaux, to the extent of two-thirds of the crop.

Adraste recognized Dergin as the owner of the crop by taking from him a pledge on it. Dergin testified on the subject. Questioned as to the bargain or agreement entered into between him and Euclide Landreneaux, he says (without objection):

“Q. You were working on the 3rd?
“A. Yes, sir.
“Q. You own your pair of horses and wagon ?
“A. Yes, sir.
“Q. Your bargain was, that you were going to get two-thirds of the crop that you made and Mrs. Euclide Landreneaux was going to get one-third for rent?
“A. Yes, sir.
“Q. Was that not after your advances by Mr. Euclide Landreneaux were paid, that you would get two-thirds?
“A. Yes, sir.”

As Mrs. Euclide Landreneaux was to get one-third of the crop for rent she must be looked on as lessor and Dergin as lessee and tenant.

We find that Euclide Landreneaux was the lessor and Dergin his tenant. That Euclide Landreneaux was the owner of one-third and Dergin of two-thirds of the crop. Euclide Landreneaux was not a party to the act of pledge which Dergin executed in favor of Adraste, and not having recognized the pledge" except to the extent of two-thirds, which he concedes belongs to Dergin, it results that under the provisions of Act No. 211 of 1908, sec. 1, the pledge must be restricted to the two-thirds which the lessee and tenant had the right to pledge, and the one-third belonging to Euclide must be held to be not affected thereby, nor subject to any privilege claimed by Adraste thereunder. La. Farm Bureau, etc., v. Clark, 160 La. 294, 107 So. 115; La. Farm Bureau, etc., v. Bannister, 161 La. 957, 109 So. 776.

As for the tender which Euclide claims to have made to Adraste, no particular amount of money was tendered, and there was no formal tender made, such as the law provides for. The tender and subrogation claimed has not been established. The evidence shows that Ehclide- Landreneaux was, with Dergin’s consent, taking possession of and handling the entire crop without caring for the pledge which Dergin had executed in favor of Adraste Landreneaux, and which to the extent of two-thirds was covered by said pledge, in violation of the plain terms of Act No. 192 of' 1908. Therefore under the provisions of the law, Code Practice, art. 275, clauses 7 and 8, and Act No. 192 of 1908 and Act No. 190 of 1912, the plaintiff had just ground to sue out a writ of sequestration in the protection of his rights.

The evidence shows, however, that $54 of the $200 called for by the note sued on-was not advanced by Adraste Landreneaux to Dergin for the purpose of enabling him to plant and cultivate the crop in question, but was paid by Adraste to Dorselin Sonnier at the request of Dergin in satisfaction of a debt due Sonnier by Dergin for the previous year.

The evidence also shows that $20 of the amount named in the note was not in fact advanced by Adraste to Dergin for the purpose of enabling him to make a crop as claimed, but was advanced to Dergin with the understanding on the part of Adraste that it would be and was used by Dergin to pay a debt due by him to Edovic Rogeau for the previous year. Adraste’s advances to the extent of $74 are therefore not protected by said pledge and , no privilege exists for $74 of said amount. These amounts deducted from the $200 leave' $126, for which Adraste is entitled to a privilege on the crop resulting from the pledge. But we think the interest due on the $126 and attorney’s fees, to the same extent, are entitled to the privilege claimed. The pledge and privilege and seizure made by Adraste Landreneaux must also be restricted to the two-thirds of the crop that belonged to Austin Dergin, and beyond that it must be set aside. Limited, as stated, the pledge and privilege claimed by Adraste Landreneaux will be recognized and ordered enforced with preference and priority over Euclide Landreneaux.

The evidence shows that Euclide Landreneaux made advances to said Dergin to the extent of $113 on Dergin’s crop for said year and he is entitled to a privilege on the two-thirds of the crop that belonged to Dergin by virtue of the provisions of the Civil Code, art. 3217, and Act No. 89 of 1886.

This conclusion makes it necessary to correct and reform the judgment appealed from.- In order to get the judgment in proper form we will set it aside and write the judgment in conformity with the views stated.

The judgment appealed from herein is therefore annulled, avoided and set aside, and now proceeding to render the judgment which we think should have been rendered, it is ordered and decreed that there be judgment in favor of Adraste Landreneaux and against Austin Dergin for $200, with 8 per cent per annum interest thereon from February 16, 1930, until paid, and for 10 per cent in'addition thereon as attorney's fees. It is further ordered that there be judgment in favor of Austin Dergin and Euclide Landreneaux and against Adraste Landreneaux, limiting and restricting the crop pledge and privilege in favor of Adraste Landreneaux against said Dergin and the sequestration herein made by Adraste to $126, with 8 per cent per annum interest thereon from February 6, 1930, and 10 per cent thereon as attorney’s fees. The said seizure, pledge and privilege, beyond the sum stated, is set aside and decreed to have no effect. The said seizure, pledge and privilege is also limited and restricted to the undivided two-thirds of the crop, which was the share of Austin Dergin therein. And the seizure, pledge and privilege is annulled and set aside as to the other Two-thirds of the proceeds of the crop is to be applied to the payment of the amount due Adraste, which is secured by pledge, with preference and priority over Euclide Landreneaux. The other one-third of the crop is to be delivered by the sheriff to Euclide Landreneaux.

It is further ordered that there be judgment in favor of Euclide Landreneaux against Austin Dergin in the sum of $113, with legal interest thereon from December , 17, 1930, until paid, with recognition of privilege as furnisher of necessary supplies on the two-thirds of the crop of Austin Dergin; the privilege to have rank inferior to that of Adraste Landreneaux, as provided by law, Act No. 89 of 1886.

Judgment is rendered in favor of Adraste Landreneaux against Austin Dergin for the cost of the main demand and cost o.f the seizure.

The cost of the intervention and third opposition is to be paid one-third by Euclide and two-thirds by Adraste Landreneaux. And Adraste Landreneaux is to pay the cost qf this appeal.

ON REHEARING

MOUTON, J.

In this case plaintiff is claiming $200 on a crop pledge given by defendant with interest and attorney’s fees.

In our original opinion, we held that of the $200 claimed for advances made to defendant, $54 thereof had been paid by plaintiff at the request of defendant, to Dorselin Sonnier in satisfaction of an old debt due the latter; also, that $20 of the amount claimed by plaintiff for advances had not been advanced to defendant on his crop, but with the understanding that defendant would use it to pay to Edovic Rogeau, his creditor.

Plaintiff testifies that he advanced the $200 to defendant on his crop for the current year, and denies positively that he ever paid $54 to Sonnier in settlement of a debt due by defendant or that $20 was given defendant to be used in payment of a debt he owed Edovic Rogeau.

Defendant, Dergin, admits that he received advances to the amount of $200 from plaintiff, and that he could use them as he thought proper.

There is no evidence in his testimony to show that these items of $54 and $20 were used for the payment of defendant’s debts to other creditors or that he was directed by plaintiff to so apply the advances.

These two amounts total the. sum of $74, which being deducted from the $200 claimed reduced the demand to $126, for which we rendered judgment for plaintiff. In making this deduction we fell into an error which must be corrected by increasing our original judgment to the sum of $200 in favor of plaintiff, and in not restricting his crop pledge to the sum of $126, with interest and attorney’s fees, as originally decreed by us.

It is therefore ordered, adjudged and decreed that our former decree reversing the judgment of the district court be set aside in the particulars above stated; and that it be and is hereby amended by increasing the amount therein decreed from $126 to the sum of $200, with 8 per cent interest and 10 per cent attorney’s fees on said amount, and with recognition of the crop privilege up to said amount; and as thus amended our original judgment be reinstated and made the final judgment of this court; and, that all the other grounds set out in the two applications for rehearing be and are hereby denied.


text:
    No. 13,997
    Orleans
    JOHN J. PALMISANO v. FRANK P. SCHADWELL
    (April 4, 1932. Opinion and Decree.)
    Herbert W. Kaiser, of New Orleans, attorney for plaintiff, appellant.
    H. W. Robinson, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit for $262.14, based upon an alleged verbal contract. There was judgment below in defendant’s favor and plaintiff has appealed.

It appears that the defendant owned an excavating machine and undertook certain work in connection with the construction of the Eleanore McMain High School.

Plaintiff contends that he procured the work for defendant and that it was performed under an agreement that he was to receive one-half of the profits, which, he claims, amounted to the sum sued for. Defendant denies that he had any agreement with plaintiff to share the profits derived from the contract, which, he insists, was undertaken on his own account.

There were no witnesses to the verbal agreement and the circumstances under which the work was performed and the price paid appear to corroborate defendant’s statement. At any rate, the plaintiff has failed to establish the contract which is the basis of this suit.

For the reasons assigned the judgment appealed from is affirmed.


author: DREW, J.

text:
    No. 4281
    Second Circuit
    BROOK-MAYS & CO. v. ALFRED
    (March 16, 1932. Opinion and Decree.)
    (April 5, 1932. Rehearing Refused.)
    Argued before DREW, McGREGOR and PALMER, JJ.
    Wilson & Abramson, of Shreveport, attorneys for plaintiff, appellant.
    J. F. Phillips, of Shreveport, attorney for defendant, appellee.
   DREW, J.

Plaintiff, Brook-Mays & Company, filed suit against Glen Alfred for rent in the amount of $451.18, claiming a lessor’s lien and privilege on the property in the leased premises, and had issued a writ of provisional seizure.

The amount of rent due is admitted, otherwise, the allegations of plaintiff’s petition are denied. Defendant contends that he is not the owner of “Milburne’s Studio,” the business that occupied the space for which the rent is alleged to be due, and denies that he entered into the contract of lease sued upon or was a party to it. His contention is that the business belonged to his son, Milburne Alfred, and that he is responsible for the rent.

On trial of the case in the lower court, there was judgment for defendant, rejecting the demands of plaintiff as of non-suit and plaintiff has prosecuted this appeal. .Defendant has not appealed or answered the appeal, and, in brief, asks that the judgment of the lower court be affirmed.

The testimony offered in the case is very vague, indefinite and uncertain. There is no doubt about the amount of rent that is due plaintiff and that someone owes this amount to him. However, the evidence is not sufficient to justify the judgment against the defendant, Glen Alfred, on any theory advanced by' plaintiff. It was, no doubt, upon this theory that the lower court rejected the demands of plaintiff as of non-suit. We think the judgment is correct.

It may be that plaintiff can produce sufficient evidence to show that the defendant herein is responsible for the rent — if not, it can sue whoever is responsible.

In an application to reopen the case in the lower court, plaintiff alleged it had discovered new evidence showing the incorporation of the Milburne Studio, with Glen Alfred as president. The lower court refused to reopen the case and we are not asked to remand it for that purpose. However, the application alleged the incorporation to have taken place long after the time when the contract for rent was made on December 1, 1930, and we fail to see what bearing it could have o.n the case. Without a discussion of the testimony in detail, we are convinced that it is not sufficient to award judgment for plaintiff against defendant, and as defendant has failed to answer the appeal or to appeal, we are without authority to do anything other than affirm the judgment of the lower court.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court he affirmed, with costs.