text:
    No. 9246.
    Orleans
    REIMAN CO., LTD., v. BOARD OF COMMISSIONERS, Appellant
    (March 15, 1926, Opinion and Decree)

      (Syllabus by the Court)

    1.—Louisiana Digest—Builders and Buildings—Par. 5, 17.
    In a building contract based on a unit price as the measure of compensation on an estimated approximate cost and quantity, the contractor can recover only the contract price of the work actually done by him and not the amount stated in the contract as the approximate cost and quantity of the work to be done.
    2. Louisiana Digest — Corporations — Par. 130, 134.
    No officer of a corporation has the right to make a building contract for the corporation nor to change one already made by its board of directors.
    Appeal from Civil District Court, Division “E”, Hon. W. H. Byrnes, Jr., Judge.
    Action by G. E. and E. E. Reiman Co., Ltd., against Board of Commissioners of the Port of New Orleans.
    There was- judgment for plaintiff.
    Defendant appealed.
    Judgment reversed.
    H. W. Robinson, of New Orleans, attorney for plaintiff, appellee.
    Arthur B. Hammond and Harold A. Moise, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit on a building contract.

The plaintiff alleged that on January 31, 1922, it entered into a contract with the defendant for the sum of $34,187.52 for the erection on the river front of the Robin Street shed and of the Bienville Street shed extension, as appears by a letter of J. H. Walsh, general manager of said board, in lieu of the contract entered into by petitioner and the defendant on February 15, 1921, for the Poydras Street end extension; that the board fixed 200 feet long by 55 feet wide for the Bienville Stfeet shed, and 480 feet long by 100 feet wide for the Robin Street shed, and pointed out and designated the same on the blueprints as the work to be performed for said price; that petitioner performed his contract and earned the $34,187.52; that, in addition thereto, he performed extra work stated in the annexed itemized account amounting of $3182.26, making the total sum of $37,369.78; that he has received on account thereof $35,587.69, leaving a balance due of $1782.09, which he claims from defendant.

The defendant admitted that it entered into a contract with the plaintiff but denied the correctness of the. construction placed upon it by plaintiff; it denied that it fixed the dimensions of the Bienville Street and Robin Street sheds mentioned on the blueprint as the work to be performed for the price of the contract; but that said dimensions were merely for the purpose of showing the lines which the Pensacola steel would reach- on the shed; that the defendant paid to the plaintiff $1000.00 in settlement of all expenses incurred by the plaintiff and resulting from the change of one shed to another, but that -it was agreed that the plaintiff should carry out the original contract of February 15, 1921, with the understanding that the work contemplated therein would be performed on the Robin Street and Bienville Street shed extensions, and that in all other respects the contract as executed would remain in full. force and effect; the defendant further averred that the work was bid in on a unit price and that the plaintiff had to perform the same quantity of work to obtain the unit price of so much per square yard on the new shed, under the new agreement of January 31, 1922, which they would have performed on the Poydras Street shed under the old agreement of February 15, 1921, the original contract remaining the same except as to location; it annexed a list showing the area and quantity of work actually performed by the plaintiff; that the plaintiff has performed less work than was contemplated, and that on the basis of a unit price the balance of the work to make up the equal quantity on the unit price according to the agreement amounts to the exact amount for which plaintiff sues.

There was judgment for plaintiff and defendant has appealed.

The whole controversy between the plaintiff and defendant is whether the contract called for the erection of the Poydras Street shed for the flat sum of $34,187.52 mentioned in the contract, or whether it intended that it should be built on a unit basis price according to the estimated amount of work to be done and probable cost, the plaintiff asserting the first proposition and the defendant the latter.

The history of this contract is as follows:

The defendant proposed to erect sheds at the foot of Canal street as a continuation of the Poydras Street sheds. For that purpose they invited proposals from contractors for the furnishing, erecting and painting the material in accordance with specifications prepared by the chief engineer of the board.

The proposals 'provided:

“That said work shall be done for the full unit price and estimated total lump sum as stated below * * *:
“I. Siding to be removed, lump sum $48; approximately 19 squares;
“II. Siding to be furnished in place: Unit price per sq. ft. or net area $20.66, lump sum $3102.00, estimated quantity 160 sqs.
“III. Roof sheathing, lump sum $9310.00, approximate quantity 115 M ft.
“IV. Painting woodwork, lump sum $2624.00.
“V. Roofing to be furnished in place, unit price per sq. ft. of net surface 19,295, total $12,580.00, estimated quantity 622 sqs., using Barrett specification roof.
“VI. Sheet metal work, lump sum $3422.00.
“VII. Doors 13, unit price each $11.00, total $Í43.00.
“VIII. Doors 11, unit price each $32.00, total $352.00.
“IX. Sash lights, lump sum $730.00.
“X. Downspouts, unit price each $35.00, total $490.00.
“XI. Electric, lump sum $685.00.
“XII. Miscellaneous lump sum $500.
•‘Grand total $34,187.52.
“The said contractor shall be paid for said work in accordance with method B, specified in said specifications and accepted by it, as follows: Method ‘B’: Once a month the engineers shall cause to be made an estimate of the work in position, applying the unit prices to the quantity of work erected. The contractor shall then be paid 90% of this amount. When the work is completed to the satisfaction of the chief engineer of the board and accepted by him, a survey of the work shall be made to determine the exact quantities in place, to which unit prices shall be applied; the contractor shall then be paid in full for the work done under the contract.’
“It is agreed and understood that the quantities given in the proposal as ‘approximate’ are only approximate and are to serve as a guide to the bidder in fixing his lump sum bid for such item. The board does not hold itself responsible for the correctness of said quantities. Quantities given in the proposal as ‘Estimated’ are estimated and shall serve as a guide to the bidder in fixing his unit cost bid for such items; final quantities of these items under unit cost will be determined as follows: Sidings and roofings: Net area covered. Doors and cast-iron downspouts. As called for the proposal.”

The plaintiff became the successful bidder under those specifications. But neither the plaintiff nor the defendant has offered the bid in evidence. The officers of defendant swear that the bid was a unit bid and not for a lump sum. They have no interest in the matter. Nowhere in the testimony does plaintiff deny this. The letter of the specification supports, the defendant’s interpretation. They are different from ordinary building contracts. Why are they different and why are all these estimates as to price and quantities given, if the shed were to be erected for a flat price?

The best rule of interpretation is that prescribed by Article C. C. 1956 (1951): “When the intent of the parties is doubtful the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.”

It is in evidence that when more work was done by the plaintiff than was mentioned in the approximate estimate contained in the specifications, the plaintiff was paid more for it, and that when less work was done, the difference was deducted.

Samuel Young is the Chief Engineer of the defendant Board. He testifies:

“Q. Now take the first item on his bid; he bid no unit price, but a lump sum price. ' How did you arrive at a unit price on that for him?
“A. He bid on approximate 19 squares, and we paid him for 31 squares which he did. Where he did less, we paid less; where he did more, we paid more.
“Q. You divided 19 into $48 and paid him on the higher price accordingly?
“A. Yes. * * *
“Q. Now, whenever- he did more work than contemplated in the original contract, he was paid for more, you said?
“A. Yes, sir, paid for extras.
“Q. And when he did less, you applied the unit prices?
“A. ' Yes, sir.
“Q. And you paid him on the basis of 480 feet, in accordance with the Poydras Street contract, and no more?
“A. Yes, sir.”

L. C. Le Corgne, estimator and superintendent for plaintiff, says:

“Q. At what price did you do more or less?
“A. We did a little more roofing, which was paid for; we did a little more sheet metal work, which was paid for.”

It nowhere appears that the plaintiff was to perform all the work mentioned in the Poydras Street contract for the flat price of $34,187.52. But it seems apparent, on the contrary, that unit prices were fixed for every part of the work contemplated, and an approximate estimate af the whole made for the work; subject to increase or decrease as the amount of work done varied from the estimate.

But it seems that aftér the bids were made and accepted for the construction of the sheds at the head of Canal Street, some protest was made and heeded by the Board. The sheds on Canal Street were abandoned and in lieu thereof two sheds were built, one on Bienville Street, 55x200, and the other on Robin Street, 100x480.

The plaintiff was given the construction of both.

Plaintiff testifies that he took this amount of $34,187.52 for his contract. Le Corgne, his superintendent, testifies that he (Comer) said: “You are going to erect 24 bents on this blue print 480 feet by 100 feet;” “and I said, ‘Does these two pieces of shed complete all of our contract?’ and Mr. Comer said, ‘Yes.’ Mr. Young told me yes. I was led to believe by Mr. Young and Mr. Comer that if we took the Bienville Street shed and the Robin Street shed that that settled the contract, plus the $1,000 given to Reiman.”

Although the two engineers of the defendant Board, Young and Comer, did not specifically deny these statements, their testimony, in denial of plaintiff’s claim, is a continuing denial of them. Besides, neither Young nor Comer had authority to make a contract for the Board or to release a contractor from any part of his obligations under a previous contract with the Board. C. C. 439, 8372 Ct. App., 12 Ct. App. 366; Bright vs. Metairie Cemetery Association, 33 La. Ann. 58; New Orleans B. R. & B. S. P. Co. vs. Brown, 36 La. Ann. 142; Burchfield vs. City of New Orleans, 42 La. Ann. 238, 7 South. 448; Police Jury vs. Mayor and City Council of Monroe, 38 La. Ann. 631; Jackson Brewing Company vs. Canton, 118 La. 823, 43 South. 454; Reynolds and Henry Construction Company vs. Police Jury, 44 La. Ann. 870, 11 South. 236; Jeanerette Rice & Milling Company vs. Durocher, 123 La. 160, 48 South. 780; Bradshaw vs. Knoll, 132 La. 829, 61 South. 839.

The only reliable and authoritative evidence in the record relative to this matter is the following letter:

“January 31, 1922.
“Board of Commissioners of the Port of New Orleans:
“G. E. and E. E. Reiman Co., Ltd.,
“Weiss Building, New Orleans, La.
“Gentlemen—This will confirm our conversation of this morning with reference to your contract with the Board of Commissioners of the Port of New Orleans for the trim of the Poydras Stróet end extension.
“The Board agrees to pay you the sum of $1,000 in settlement of all extra expense incurred by you due to the delays in executing the work contemplated by this contract. It is further agreed that you will proceed to carry out the contract as entered into between you and this Board on the fifteenth of February, 1921, with the understanding, that the work as contemplated therein will be performed at Robin Street and Bienville Street shed extension, and that in all other respects the contract as executed will remain in full force and effect, reserving to you the right of compensation for any extra work which may be necessary by reason of change of the location of said work as contemplated by the fourth article of the said contract under the heading of ‘Extra work.’ Kindly acknowledge receipt of this letter confirming the above.
“Very truly,
“J. H. WALSH,
“General Manager.”

There is not a word in this letter in support of plaintiff’s claim of a change in the original contract, or that the work that would be done on the Bienville and Robin Street sheds would be paid the price of $34,187.52. The work that was contemplated to be done on Canal Street on the Poydras Street extension,' according to the original contract, would be performed at tbe Robin Street and Bienville Street sheds on the same terms and conditions. The change was only in the location of the work to be done. “In all other respects the contract as executed will remain in full force and effect.” The burden of proof was upon plaintiff to establish the change of price, and we do not think he has done so.

The sum of $1,782.09 “represents the difference between the quantity of work contemplated in the Poydras Street contract and the work that they (the plaintiff) actually performed at Robin Street and Bienville Street”; in other words, represents the price of an amount of work which the plaintiff did not do. To this it is not entitled under its contract.

It is therefore ordered that the judgment herein be reversed and set aside, and that there now be judgment in favor of defendant rejecting plaintiffs’ demand at its cost in both courts.


source: Caselaw Access Project

author: MOUTON, J. ELLIOTT, J.,

license: Public Domain

text:
    No______________
    First Circuit.
    STRICKLAND v. THE LIVINGSTON BANK
    (March 2, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Attorneys—Par. 68, 73.
    Where there was no demand on the part of an attorney for the recognition of a lien on jüdgments obtained, the court must allow judgment against the defendant for attorney’s fees where proven, but cannot recognize any lien for attorney’s fees on a judgment obtained by the attorney against other parties while representing the defendant.
    Appeal from the Parish of Livingston, Hon. Columbus Reid, Judge.
    Action by H. K. Strickland against the Livingston Bank for the collection of attorney’s fees.
    Judgment for plaintiff in part and plaintiff appealed.
    Judgment increased and affirmed.
    J. Y. Sanders, Jr., of Baton Rouge, attorney for plaintiff, appellant.
    Inman and Cornish, of Ponchatoula, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff, an attorney of East Baton Rouge, brings this suit against defendant bank for $612.53, with legal interest from judicial demand for professional services he alleges to have rendered the bank. He alleges that from the incipiency of his services he was to receive from the bank not less than 10 per cent of the amount of any item placed in his hands for collection or suit, and that the bank always paid him on that basis.

In the alternative, he alleges, he is en1 titled to recover on this basis, on a quantum meruit.

Plaintiff testifies that it was his custom to charge the bank for this percentage and that the bank repeatedly paid him on that basis whether the claims placed in his hands for collection were collected or not. The record shows that plaintiff was in the services of the bank from the year of 1913 or 1914, when he was employed up to the 24th of February, 1924, during a period of about ten years. His relations with the bank appear to have been very cordial and satisfactory up to February, 1924. At that time their relations were broken off upon plaintiff receiving an impertinent letter from the president of the bank. This suit followed.

The record shows that plaintiff received notes from the bank for collection against one Cowart; that he obtained a mortgage from Cowart to secure their payment, and that in the mortgage his ten per cent attorney’s fees were recognized; also, that the bank recognized his commission of ten per cent on a judgment he recovered for it against Stafford and Bomerals, and upón which he received $7.50 on account. The fact that the bank took a mortgage in which the ten per cent commission of plaintiff was recognized and paid him on that basis on the judgment above mentioned, and where it does not appear it had been collected, corroborates plaintiff in his statement that jmder his agreement with the bank he was to be paid on a ten per centum basis. The only witness who testified for the bank is its present cashier, Mr. Sullivan. He says his understanding of the agreement with plaintiff was that plaintiff was to receive for his services ten per cent on amounts collected. The record shows Sullivan became cashier in 1918, some four or five years after plaintiff had entered into his engagement with the bank. He frankly admits that he had no actual knowledge of the agreement made between plaintiff and the bank, and that he derived his information in respect thereto, to “only what was said.” It is therefore but fair to conclude that the record supports the testimony of plaintiff in reference to the percentage he was , to receive as the attorney for the bank.

The record shows that a note against Bencasse and Sanchez for $700.00 was placed in the hands of plaintiff by the bank for collection; that through his efforts this claim was adjusted by the bank receiving its interest thereon and accepting a renewal note. On this claim plaintiff was allowed $15.00 by the court below, instead of $70.00, to which he is entitled. It also appears that plaintiff recovered for the bank a judgment against Sidney Fair-child for $1,250.00, upon which he received the sum of $26.20. The court allowed him $50.00 on this claim, subject to the credit for what he had received. He is entitled to $120.48 for his commission on this judgment, as appears from the evidence, subject to the credit stated. He is also entitled to a small increase on the claim of the bank against Morgan. The proof shows that plaintiff recovered two judgments against E. F. Lambert for amounts entitling him to $663.19, calculated on a basis of ten per cent. He received $300.00 commission on this amount, leaving a balance of $363.19. '

The lower court, in reality, allowed plaintiff his commission of ten per cent on the balance due on ■ the judgments against Fairchild and Lambert; did not, however, decree it against the bank, but merely granted a lien on the judgments in favor of the plaintiff. In other words, made the commission dependent upon the collection of these judgments. It is true these judgments will not be collected through the agency of the plaintiff, as he had been superseded by other attorneys who are not representing the bank, but this should not deprive him of his commission, as was held in Christoval Morel vs. City of New Orleans, 12 La. Ann. 485. There is no proof plaintiff was to recover his fees on a contingent basis, and there was no demand on his part for the recognition of the lien recognized below on these judgments. The Court allowed plaintiff judgment against the bank for $87.91 and a lien on said judgments. The amount granted against the bank must be increased in accordance with above views, and the lien on the judgments must be set aside.

It is therefore ordered, adjudged and decreed that the judgment rendered below for $87.91 be increased to the sum of six hundred and nine 33/100 ($609.33), in ■which amount it is decreed that plaintiff have judgment against defendant with legal interest thereon from judicial demand.

It is further ordered and decreed that ■ the lien recognized in the judgment on the judgments against E. F. Lambert and Sidney Fairchild be annulled and set aside; and as thus amended the judgments be affirmed with cost.

ELLIOTT, J.,

dissents as to the amount for reasons given below.

I dissent from the amount allowed by the majority of the court. I think the plaintiff Strickland entitled to an amendment of the amount allowed in the lower court as to the Bencaz and Sanchez note. Defendant sent this note to plaintiff for collection. The principal was $700.00. There was interest due and the note contained the usual printed stipulation, it appears, whereby the debtors bound themselves to pay ten per cent attorney’s fees in case the note was placed in the hands of an attorney for collection. The plaintiff attorney wrote Bercaz and Sanchez upon receipt of the note that he held it for collection and requesting payment. The debtors called on the defendant bank and effected an amicable settlement by giving a new note that was satisfactory to defendant, but the ten per cent attorney’s fees which the plaintiff had earned was not provided for. The plaintiff was entitled to the attorney’s fees, the fee belonged to him as much as did the principal 'and interest to defendant. The judgment appealed from allowed plaintiff $15.00 on account of this item. Plaintiff testifies that he was never paid anything and he was entitled to ten per cent. Defendant could not let the amount due plaintiff go without plaintiff’s consent.

The plaintiff can not collect the ten per cent now, as he is no longer in position to do so. I think the judgment appealed from should be increased to $70.00, making the allowance on this item $70.00 instead of $15.00, and as thus amended I think the judgment appealed from should be affirmed.


author: ELLIOTT, J.

text:
    No. 8848.
    First Circuit.
    LE BOEUF v. BENOIT.
    (January 28, 1926. Opinion and Decree.)

      (Syllabus by the Edito?-.)

    1. Louisiana Digest — Automobiles — Par. 4 (a), 4 (d).
    Where one drives an automobile at a fast rate of speed, thus causing a collision with another which is turning to the left, he is negligent and responsible for the resultant damage.
    (Civil Code, Art. 2315. Editor’s Note.)
    Appeal from the Seventeenth Judicial District Court, Parish of Terrebonne, Robert B. Butler, Judge.
    Action by Paul Le Boeuf against Adam Benoit, arising out of an automobile collision.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Harris Gagne, of Houma, attorney for plaintiff, appellee.
    Ellender and Ellender, of Houma, attorneys for defendant, appellant.
   ELLIOTT, J.

The plaintiff, Paul LeBoeuf, claims damages of defendant, Adam Benoit, in the sum of $178.00 on account of injuries to his automobile which he alleged resulted from the fault, negligence and reckless driving of Maurice Benoit, defendant’s minor son. Plaintiff alleges that he was driving on the public highway just outside of the city limits of Houma, when just before reaching the intersection of Jenner Street or lane, intending to turn out of the highway into said street, he extended his left arm outside of his automobile to indicate to any automobile following him that such was his intention, and had commenced to enter the street, when defendant’s son, driving defendant’s automobile at a reckless speed, ran into him, damaging his car. That the repair bill he was forced to pay amounted to $108.05. The balance of the sum claimed is for the loss of the use of his automobile while it was being repaired and for damages to same not included in the bill paid.

The defendant for answer admits that his son, driving his car, collided with the plaintiff, but claims that the collision was due to plaintiff’s fault. Defendant alleged that his son was driving at a moderate speed and going in the same direction as the plaintiff desired to pass the defendant and blew his horn as a signal to plaintiff to take to "the right so he could pass. That plaintiff did bear to the right and his son, thinking that it was to enable him to pass, undertook to pass him, when plaintiff immediately and without warning swerved his car sharply to the left directly in front of his son. That his son did all he could to avoid striking plaintiff, but it was unavoidable and due to plaintiff’s fault in turning without warning, etc. Defendant alleges that his automobile was damaged to the extent of $94.00. He prays that plaintiff’s demand be rejected and that he have judgment against plaintiff in reconvention for $94.00, etc.

The District Judge rendered judgment in favor of plaintiff for $108.05.

Defendant appealed.

OPINION.

The evidence shows that the collision occurred as alleged by the plaintiff. The plaintiff was driving at a moderate speed. The defendant, coming behind him, driving much faster and overtaking plaintiff. As the plaintiff approached Jenner Street or lane, the plaintiff himself and four eyewitnesses testify that he held out his left arm. That he held out his arm in a proper way and for sufficient time that it should have been noticed by defendant’s son is indicated by the fact that four others besides the plaintiff noticed it. Two of these witnesses were near the road side corner where Jenner Street or lane intersects the highway and were looking at plaintiff’s car and defendant’s and saw that a collision was going to take place due to the fact that plaintiff was swerving to turn out of the highway into the intersecting street and defendant’s son was coming up behind him very fast and so close to plaintiff when he commenced to turn that he must almost inevitably strike him as he turned. This is all indicated by the fact that when defendant’s son did see plaintiff turning in front of him he was able to swerve his car far enough to the right to avoid striking plaintiff in the middle as he would have otherwise done and strike only the rear end of his car as it entered Jenner Street; but could not slow down enough to avert a collision. Maurice Benoit, driving defendant’s car, testifies that he did not see plaintiff’s extended arm, and defendant argues from this that when plaintiff started to turn out of the highway into Jenner Street or lane he should have looked behind him, etc. That would have been well, and some automobiles are equipped' with reflectors, so the party driving can see an automobile behind him; others are not. The fault and blame for this collision lies on the defendant. If Ms son did not see plaintiff’s extended and warning arm it was because his son was driving fast and not looking ahead; and not taking proper precautions as he came up behind the plaintiff and started to drive past him. If proper precautions had been observed by defendant’s son, plaintiff would have been able to turn out of the highway into Jenner Street in safety. Defendant is therefore responsible for the damages resulting from the collision.

The judgment appealed from is correct.

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


author: REYNOLDS, J.

text:
    No. 2347.
    Second Circuit.
    CARLISLE v. LOUISIANA OIL REFINING CORPORATION.
    (April 10, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Automobiles—Par. 8.
    To recover damages caused to an automobile by its running into a truck operated without lights at night it is necessary for the plaintiff, owner of the damaged automobile, to prove that the accident was caused by the negligence of the operator of the truck, and that he, plaintiff, was not guilty of any negligence which created or aided in the accident.
    Deikhman vs. M. L. & T. R. R. Co., 40 La. Ann. 787, 5 South. 76.
    Bemiss vs. N. O., etc., R. R. Co., 47 La. Ann. 1675, 18 South. 642.
    Clements vs. Louisiana Electric Light Co., 44 La. Ann. 695, 11 South. 51.
    Peters vs. Pacific Guano Co., 42 La. Ann. 690, 7 South. 790.
    White vs. Vicksburg, S. and P. R. R. Co., 42 La. Ann. 994, 8 South. 475.
    2. Louisiana Digest—Appeal—Par. 625.
    In an action for damages for personal injuries, where the evidence is conflicting, the conclusion of the trial judge on the question of fact is entitled to great weight, and will not be reversed unless manifestly erroneous.
    Hillard vs. Manufacturing Co., 120 La. 364,- 45 South. 278.
    3. Louisiana Digest—Automobiles—Par. 4, 4 (d).
    It is negligence to drive an automobile on a narrow one-way bridge at night in a cloud of dust at such a high rate of speed that the driver of the car cannot stop it within the radius of the lights on his automobile; and the greater negligence of another in driving a truck at the same time and place without lights in no way excuses the driver of the automobile from his own negligence.
    Frierson vs. Shreveport Gro. Co., 3 La. App. —, advance sheets, No. 6, page 45.
    (Civil Code, Art. 2315. Editors’ Note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. J. H. Stephens, Judge.
    Action by S. L. Carlisle against Louisiana Oil Refining Corporation for damages to an automobile in collision.
    Judgment for defendant, and plaintiff appealed.
    Judgment affirmed.
    W. B. Hamilton, of Shreveport, attorney for plaintiff, appellant.
    Wise, Randolph, Rendall and Freyer, of Shreveport, attorneys for defendant, appellee.
    STATEMENT OF THE CASE.
    This is a suit by the plaintiff to recover damages done to an automobile while being driven by his friend in a head-on collision with a truck driven without lights after dark. The collision occurred in a cloud of dust on a one-way bridge after dark.
   REYNOLDS, J.

Plaintiff claims that defendant’s negligence in allowing its truck to be driven after dark without lights was the sole cause of the accident.

Defendant contends that plaintiff was guilty of contributory negligence and is therefore barred from the right to recover damages.

On these issues the case was tried, and there was judgment for defendant, and plaintiff appealed.

OPINION.

The defendant in this case was undoubtedly guilty of gross negligence. The question to be decided is, does the gross negligence of defendant excuse plaintiff’s contributory negligence.

Plaintiff’s evidence as to how the accident occurred is found in the testimony of H. B. Rogers, pages 3, 4, 5, 10.

“Q. State how it occurred, how this accident occurred?
“A. Well, there was a car passed right ahead of me, went around me and stirred up a great lot of dust there, and so I went on the bridge,, and I got in about fifteen feet of this truck before I saw it, so when 1 saw it I put my brakes on, but we didn’t stop before we hit.”
$ $ $ ‡
“Q. I will ask you what, if anything, prevented your lights from showing the presence of the truck any sooner than they did?
“A. Well, it was the dust and the truck was coming from around the curve, too.”
‡ $ $ $
“Q. Was it going pretty fast when it hit you or had it slowed down?
“A. He had slowed down; wasn’t going fast when we hit.”

Both occupants of the truck testified that the truck had stopped and was standing still at the time of the accident.

“Q. When you got onto the bridge the dust from this car was still very dense?
“A. Yes, sir.
“Q. So dense that the rays from your headlight wbuldn’t penetrate it?
“A. Oh, yes, it would to a certain extent, yes, sir.
“Q. How far?
“A. Well, I don’t know exactly; I couldn’t hardly say.
“Q. Approximately how far?
“A. I think maybe twenty or twenty-five feet, something like that.”
“Q. Driving at the rate of fifteen miles an hour, how far wipuld it take you to stop the ca,r in an emergency, that car on that road?
“A. Well, it would take about fifteen feet to stop it.
“Q. You could have stopped that car in an emergency in about fifteen feet?
“A. Yes, sir, something like that.”

Prom this testimony of the driver of plaintiff’s automobile it appears that he could have seen defendant’s truck without lights on it fifteen or twenty feet away and could have stopped his car in about fifteen feet. Had he done so the accident would not have happened, for he could have stopped his car before it reached the truck. Under this condition We are not prepared to say that the driver of plaintiff’s car was not guilty of contributory negligence when he not only failed to stop his car before running into the truck, but struck the truck with such force as to cause damages to the car, according to plaintiff’s petition, in the sum of $521.44.

The question as to whether or not the driver of plaintiff’s car contributed by his negligence to the accident is one of fact to be determined by the evidence in the case. In this case, the judge who saw and heard the witnesses testify decided the issue of fact in favor of the defendant. Under all the evidence in the case, we think his finding of fact is entirely correct, and it is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed.


author: WEBB, J.

text:
    No. 2542.
    Second Circuit.
    GUARANTY BANK AND TRUST COMPANY v. SCOTT, ET AL.
    (February 8, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Mortgages—Par. 203.
    Under Articles 679, 683 and 706 -of the Code of Practice the purchaser must retain in his hands such an amount of the purchase price as will be sufficient to cover the amount of the privileges which are superior to the claim under which the property was sold; but if the purchaser passes this to the sheriff he thereby constitutes the latter, his own agent, for that purpose.
    2. Louisiana Digest—Mortgages—Par. 197, 203.
    The holder of a privilege, a paving lien, under Act 27, Extra Session of 1915, is entitled to recover judgment against a purchaser of a property at judicial sale made under a special mortgage, when the amount of the bid sufficient to cover the privileges was paid by the purchaser to the sheriff, and to have the privilege recognized and enforced against the property in the hands of the purchaser.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides, Hon. R. C. Culpepper, Judge.
    Action by Guaranty Bank and Trust Company against R. M. Scott, et al.
    There was judgment against the purchaser, J. H. Hempen, of the property at sheriff sale, and J. H. Hempen, one of the defendants, appealed.
    Judgment affirmed.
    Hakenyos, Scott and Provosty, of Alexandria, attorneys for plaintiff, appellee.
    G. P._ Whittington, of Alexandria, attorney for defendants, appellants.
   WEBB, J.

This is an action to enforce a paving privilege against property purchased by the defendant J. H. Hempen at sheriff’s sale, under executory proceedings in the enforcement of a special mortgage.

The City of Alexandria, Rapides Parish, instituted proceedings under Act No. 27,» Extra Session of 1915, and amendments thereto, for paving Marye Street from Bolton Avenue to 25th Street, and after the completion of the work passed an ordinance accepting the paving and levying and assessing the cost against the abutting property, among which were lots 17 and 18, square 13, Marye Street, against which eight hundred and thirty and 57-100 dollars was assessed under the name of R. M. Scott, and a copy of this ordinance was inscribed in the mortgage records of Rapides Parish on March 2, 1921.

R. M. Scott paid one-fifth of the amount of the assessment and gave four paving certificates for the balance, one being for the sum of one hundred and sixty-six and 11-100 dollars, dated at Alexandria, Louisiana, February 28, 1921, due four years after date, passed, in due course, into the hands of the Guaranty Bank and Trust Company.

Proceedings under executory process were instituted by J. F. Peterman against R. M. Scott, under which the- above described lots were seized and sold by the sheriff of Rapides Parish to J. H. Hempen on September 29, 1923, for. the sum and price of sixty-three hundred dollars, which amount was paid by the purchaser into the hands of the sheriff, and following a deed was given by the sheriff to Hempen, which was recorded in the conveyance records of Rapides Parish on October 13, 1923.

On April 22, 1925, the Guaranty Bank and Trust Company instituted the present action against R. M. Scott and J. H. Hempen, in which it is sought to obtain judgment against them for the amount shown by the paving certificate, with six per cent per annum interest from February 28, 1921, and ten per cent attorney’s fees, less a credit of forty-five and 22-100 dollars, and for recognition and enforcement of the privilege on the property above de-, scribed.

Service was not made on R. M. Scott.

J. H. Hempen answered, especially pleading the sheriff’s sale made to him in the proceedings under executory process, and that the property passed to him free and clear of all privileges and mortgages.

Judgment was rendered against Hempen for the amount claimed, with recognition of the privilege asserted against the property, and He'mpen appeals.

OPINION.

This cause presents for determination the following questions:

Is the holder of a privilege (paving lien under Act No. 27, Extra Session of 1915) entitled to recover judgment against a purchaser of the property at judicial sale made under a special mortgage, when the amount of the bid (sufficient to cover the privilege) was paid by the purchaser to the sheriff, and to have the privilege recognized and enforced against the property in the hands of the purchaser?

While we have not been directed to a decision covering the exact point, we have been unable to find any holding the negative. ,

The articles of the Code of Practice applicable to sales under a fi fa have been held to apply in cases where the sale is made under executory process (Pepper vs. Dunlap, 17 La. 170), and under Articles 679, 683 and 706 it appears that the purchaser must retain in. his hands such an amount of the purchase price as will be sufficient to cover the amount of privileges which are superior in rank to the claim under which the property was sold.

In Bacas vs. Hernandez, 31 Ann. 86, where the purchaser at a sale made under a fi fa had paid the full amount of the bid into the hands of the sheriff, although there were special mortgages and vendor’s privileges, superior in rank to the seizing creditor, the court said:

“The sheriff is not authorized to receive from the purchaser of property at judicial sale the amount of the mortgage or privilege debts which rank the claim of the seizing creditor.”

Also:

Firemen’s Ins. Co. vs. Gillingham, 1 Rob. 305.

Hibernia Nat. Bank vs. Smith, 27 La. Ann. 60.

Merchants Bank vs. Jarvis, 5 Rob. 214.

Alford vs. Montego, 28 La. Ann. 593.

And in Forrey vs. Strange, 158 La. 950, 105 South. 21, it was said:

“It is well settled jurisprudence in this state that it is the duty of a purchaser at a sheriff’s sale to pay to the sheriff only the amount called for by the writ, and to retain in his own hands the amount of his bid in excess thereof to be applied to the payment of junior mortgages; and if he fails to do so, but pays same to the sheriff, he constitutes the latter his own agent for that purpose; and an application by the sheriff of such surplus to the payment of other claims carspot prejudice the junior mortgagees, who may proceed against the property by the hypothecary action aforesaid. Code of Practice, 707, 708, 709; Pepper vs. Dunlap, 16 La. 163; Merchants Bank vs. Peters, 2 Rob. 214; Scott vs. Featherston, 5 La. Ann. 306; Quertier vs. Succession of Hille, 18 La. Ann. 65; Johnson vs. Duncan, 24 La. Ann. 381; Bacas vs. Hernandez, 31 La. Ann. 86; Robinson vs. Cosner, 136 La. 595, 67 South. 468.”

We are of the opinion that the same rule should be applicable where the sale is made under a special mortgage which is inferior in rank to a privilege bearing upon the property.

The judgment is affirmed.


author: ODOM, J.

text:
    No. 2384.
    Second Circuit.
    JOHNSTON, ET AL., v. WORLEY.
    (April 10, 1926. Opinion and Decree.)

      (Syllabus hy the Editor.)

    1. Louisiana Digest — Automobiles — Par. 4 (b).
    The party driving an automobile first reaching a street intersection has the right of way, provided that there is no ordinance or regulation making either one of the streets a right of way street.
    2. Louisiana Digest—Automobiles—Par. 4, 4 (b).
    The party driving an automobile who first reaches a street intersection, having the right of way, the other party must respect that right, and if he fails to do so he is guilty of negligence.
    3. Louisiana Digest—Automobiles—Par. 4.
    Where «an intersectional automobile collision occurred about dusk the fact that the plaintiff’s car had no lights does not make him contributorily negligent, if the surroundings were well lighted and this fact did not contribute towards the collision.
    4. Louisiana Digest—Appeal—Par. 625.
    Where the amount of damages given by the trial court in an automobile collision is clearly correct it will be affirmed.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    Action by J. E. Johnston, et al„ against P. C. Worley for damages resulting from an automobile collision.
    There was judgment for plaintiffs, and defendant appealed.
    Judgment affirmed.
    Cook and Cook, of Shreveport, attorneys for plaintiffs, appellees.
    Tinsley Gilmer, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

This suit grew out of an automobile collision which took place on or about February 26, 1924, between- plaintiffs’ automobile and that of defendant at a public street crossing in the city of Shreveport.

Plaintiffs allege that the collision was due solely to the gross fault and negligence of the defendant, Dr. Worley, who was driving his car at the time.

Defendant, in answer, denied that he was negligent in the operation of his car, and, in the alternative, in case the court should hold that he was guilty of negligence, he set up that plaintiffs’ car was being operated in a negligent manner in that it was being driven without lights in the dark at a rapid rate of speed, and that the driver of plaintiffs’ car was guilty of contributory negligence, which was the prime and main cause of the accident, and which contributory negligence precludes recovery.

Plaintiff sued for $571.05 damages to his car, and for $60.00 for medical and surgical attention to his wife, who was in the car at the time, and who is alleged to have been injured. His wife, Mrs. Virgie Marshall Johnson, joined him in the suit and asked for damages amounting to $500.00 for injuries to her ankle and suffering caused by the shock and injuries.

The lower court awarded plaintiff, J. E. Johnston, $571.05 and Mrs. Johnston $300.00. Prom this judgment defendant appealed.

OPINION.

The collision between the automobiles took place at the intersection of Criswell Street, which runs approximately north and south, and Wilkinson Street, which runs approximately east and west. Dr. Worley was driving his car going north on Criswell Street. Plaintiff’s car was being driven by Miss Stephenson, going east on Wilkinson Street. In plaintiff’s car with Miss Stephenson was plaintiff’s wife, and with Dr. Worley in his car were his wife and Miss Mildred Reed, all of whom, along with others, were called as witnesses.

There was considerable controversy as to the time the collision took place; but the testimony satisfies us that it was about 7:00 o’clock p. m., and that at that time it was about dark. None of the witnesses say it was altogether dark, but they all say the street lights were on and that the residences were lighted. Miss Stephenson, who was driving the Johnston car, says that she does not recall that she had turned on her lights, but says she did not need them, as it was not dark.

Mr. Trichel, who lives on the corner at the intersection of these streets, testified that he heard the crash and at once looked at his watch, and that it was five minutes to seven o’clock. Other witnesses, including Miss Stephenson and Mrs. Johnston, say it was earlier than that, but their testimony is mostly based upon estimates and is not accurate.

However, we think the question whether it was dark or whether there was sufficient daylight to enable one to operate an automobile with safety without lights is not material, for the reason that on the northeast corner of the intersection of these streets there was a bright electric street light, which brilliantly lighted not only the intersection, but lighted Wilkinson Street, the one on which the Johnston car was being driven, for quite a distance in the direction from which the car was coming.

There is some testimony to the_ effect that there are some pine trees along the north edge of Wilkinson Street west of Creswell, which might have shaded the street and obstructed the view, but that is not true. A view of the premises discloses that the trees are over on private property and that the branches do not extend .over the sidewalk, much less over the street, and that the light is about thirty feet high, attached to a pole, which stands at the northeast corner of the intersection, about on the west line of the sidewalk, which line is approximately eight feet west of the property line.

Not only does this electric light illuminate perfectly the intersection of these streets, but it illuminates the streets themselves for at least one hundred feet away.

There is no reason, therefore, why Dr. Worley should not have seen the Johnston car coming up Wilkinson Street, even if it was at night, and even though the Johnston car had no light; and likewise there was no reason why the driver of the Johnston car should not have seen Dr. Worley’s car coming north on Creswell Street before it reached the intersection. In fact, Miss Stephenson, the driver of the Johnston car, said she did see the Worley car before it reached the intersection, and we have no doubt that is true.

At the southwest corner of the intersection of these streets is an apartment house which stands back some sixty feet from Wilkinson and twenty-four feet from Creswell Street, and there is nothing in the yard to obstruct the view across that corner.

Neither of these streets at that point is a right of way street, and at that time there were no markings on either of them to warn the drivers of vehicles to go slow. Therefore, the rights, obligations and duties of these parties at that intersection were equal.

As the case hinges on the question of negligence, in order to determine that question it becomes necessary to ascertain from the facts which of the parties, if either, had the right of way at the intersection by virtue of custom or the law of the road.

The rule as we find it, in the absence of statutory regulations, is that the party first reaching an intersection, has the right of way, provided that there is no ordinance or regulation making either one of the streets a right of way street.

In Huddy on Automobiles, 6th edition, page 459, the rule is stated as follows:

“When two vehicles are approaching a street intersection on different streets, neither is justified, as a general rule, in assuming that the other will slacken his speed so as to give him priority at the crossing.” (Citing a Pennsylvania case.) “When one sees that there is apparent danger of a collision, it accordingly would seem to require that he decrease his speed, or, if both discover the danger at the same timé, each should take steps to avoid the impending collision. (Citing authorities.) But where a vehicle reaches the crossing distinctly ahead of one approaching on the intersecting street, the one first arriving is generally regarded as having the right of way.”

In the case of Mayer vs. Mellette, 114 N. E. 241, the court said:

“Since plaintiff was much nearer than defendant to the intersection, which the two, in their automobiles, were approaching just before the collision occurred, and as the record discloses no ordinance or regulation to the contrary, the plaintiff apparently had the right of way, and, in the absence of an indication that it was imprudent to do so, she was authorized to go forward.”

In the case of Yuill vs. Berryman, 94 Wash. 458 (162 Pac. 513), the court said:

“The driver of an automobile first entering the intersection of two streets of equal width, running in opposite directions, is entitled to the right of way over another automobile about to enter upon the street, and it is the duty of the other driver to slacken his speed or to stop his car, so as to prevent a collision.”
“It is the duty of the driver of an auto-mobile who is proceeding toward an intersection to see and avoid colliding with another driver who first enters upon the intersection of the two streets, and where he fails to do so, he is guilty' of negligence.”

In 21 A. L. R. 974 (note) the rule is thus stated:

“In the absence of statute or ordinance regulating the matter, it is a general rule that the vehicle entering the intersection of streets first is entitled to the right of way, and it is the duty of the driver of another vehicle approaching the crossing to proceed with sufficient care to permit the exercise of such right without danger of collision.”

This text is supported by decisions from Illinois, Indiana, Missouri, Nebraska, Pennsylvania and Washington.

We have not been cited to any decisions of our own courts on this particular point and we have not been able to find any. But the rule is well established in other jurisdictions and seems to us sound.

The party who first reaches the intersection. having the right of way, it follows necessarily that the other party must respect that right, and if he fails to do so he is guilty of negligence.

In the case at bar, the testimony of the witnesses and the physical facts convince us that the Johnston car was first at the intersection and had the right of way; and the testimony further convinces us that there was no reason why Dr. Worley, who was driving his car, should not have observed the approach of the Johnston car as it went into the intersection.

According to Dr. Worley’s testimony and that of his wife and Miss Reed, he was driving north on the south side of Creswell Street at a speed of about fifteen miles an hour and was about four to eight feet from the curb.

The testimony shows that the Johnston 'car was being driven east on Wilkinson Street at a speed of between' fifteen and twenty miles an hour, but the testimony is not very clear as to whether it was on the south side or in the middle of the street.

There is conflict in the testimony as to the exact spot where the collision took place. According to Dr. Worley and his witnesses, it took place at or near where a line drawn north and south along the east edge of Creswell Street would cross Wilkinson Street. According to the other testimony and the skid marks and the glass found after the collision, it occurred east of such line, on the intersection and well within Wilkinson Street.

The decided preponderance of the testimony is to the effect .that when the collision took place the Johnston car had entirely crossed Creswell street. Mr. Vatter, who viewed the scene, says that shattered glass was found on the north side of Wilkinson Street ten or fifteen feet east of Creswell Street. Mrs. Johnston says the Worley car struck hers a car’s length east of Creswell Street. Bennett Johnston found glass fifteen feet east of Creswell Street. Other witnesses noted glass further out Wilkinson Street. Mr. O. Dickson, who lived on Creswell Street, says that he had just arrived at his home when he heard the crash. He was half a block, plus seventy feet, away, and says he could see Wilkinson Street—

“* * * but the accident did not occur directly in the line of Creswell Street * * *” and, further, that the accident occurred between Creswell Street and Highland Avenue (Highland Avenue is east of Creswell), and that if it had taken place in the intersection he could have seen it.

It is therefore well established, we think, that the Johnston ear had gotten entirely across Creswell before it was struck by the Worley car. The undisputed testimony is that the left front fender of the Worley car struck the Johnston car on the rear and a little to the left of the right rear fender—that it rammed the Johnston car from the rear, and not from the side.

Dr. Worley’s account of the accident is that when the Johnston car came immediately in front of his car he saw that if he went straight ahead or if he turned to the left, he would strike the Johnston car broadside, and that in order to avoid that he turned his car to the right as quickly and as far as he could, and that at or about the same time the driver of the Johnston car, in order to avoid a collision, turned to the left, over toward' the north edge of Wilkinson Street, which threw the rear end of the car in front of him, which accounts for the way he struck it.

The Johnston car was turned over on its left side, and was shoved down east on the north side of Wilkinson Street, and stopped about forty feet east of Creswell Street.

Dr. Worley says that he hit the Johnston car when it was about the middle of Wilkinson Street, and the physical facts show that he hit it after he had swerved his car to the right, and after the Johnston car had swerved to the left. He says that he first saw the other car when it came immediately in front of him, and that he was then only four feet from it.

Assuming that Wilkinson Street is thirty feet wide from curb to curb, it therefore follows that when he first saw the other car he had gotten less than eleven feet into the intersection or into Wilkinson Street. Creswell Street is a little wider than Wilkinson Street. The Worley car was on the • east side of Creswell, and the collision took place east of that street. It therefore follows that the Johnston car was the first to reach the intersection, for it had gone entirely across Creswell, a distance of thirty feet, whereas the Worley car had gone only about one-fourth of that distance into the intersection at the time the collision took place.

There is some conflicting testimony as to the skid marks made by each of the cars, but our finding from the testimony as a whole is that the Johnston car reached the intersection distinctly ahead of the Worley car, and for that reason it had the right of way.

Dr. Worley was very negligent in approaching the intersection. He says he did not see the Johnston car until it came immediately in front of his car, and then he was only four feet from it. That shows that he did not look, for if he had looked he would have seen the approaching car. Not only the intersection, but Wilkinson Street for some distance in the direction from which the Johnston car was coming, were illuminated by the electric light on the corner. In addition to that light, according to Dr. Worley’s testimony, there were two cars coming down Creswell Street, meeting him, with lights on. They were on the west side of the street and their lights necessarily lighted the intersection. Dr. Worley testified that he was watching the approaching cars, and we think that accounts for the fact that he did not look to see if a car was approaching the intersection, going east, on Wilkinson Street. The apartment house on the southwest corner was far enough back from the street to afford a clear view of Wilkinson Street west for a considerable distance, so that if Dr. Worley had looked to the left before reaching the crossing he could have seen the approaching ear.

Defendant charges that the driver of plaintiff’s car was guilty of contributory negligence in that the car had no lights and that she was driving at a reckless rate of speed.

But the absence of lights on the Johnston car in no way contributed to the accident, for the reason that the whole surroundings were well lighted and cars could be seen at that time practically as well as if it had been daylight.

Plaintiff’s car was not being driven at an excessive rate of speed, about fifteen or twenty miles an hour, but little in excess of the speed at which defendant was going.

We think the accident was caused by defendant’s negligence, and that the driver of plaintiff’s car did not contribute thereto.

AS TO THE AMOUNT OF DAMAGES.

Counsel for defendant, in brief filed in this court, makes no complaint at the amount awarded by the District Judge. We think his findings and award are amply supported by the testimony.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, with costs.


text:
    No. 2572
    Second Circuit.
    WESSELL PLUMBING COMPANY, INC., v. NORTON.
    (April 10, 1926. Opinion and Decree.)

      (Syllabus by the Sclitor.)

    1. Louisiana Digest—Pleading—Par. 44.
    Under Section 2 of Act 300 of 1914, the pleading and practice act, all allegations of fact in plaintiff’s petition not denied by the defendant are deemed to be admitted.
    2. Louisiana Digest—Pleading—Par. 44.
    The allegation “for want of proper and sufficient information, defendant cannot admit or deny this allegation,” is not a denial and consequently must be considered admitted under Section 2 of Act 300 of 1914.
    3. Louisiana Digest—Pleading—Par. 43.
    Under the Pleading and Practice Act 300 of 1914 the defendant is not per- ' mitted to deny an allegation of fact merely for the purpose of putting it at issue.
    4. Louisiana Digest—Judgment—Par. 28.
    Under section 4 of Act 300 of 1914, the pleadings and practice act, the plaintiff may by rule submit to the court his right to a judgment on the face of the petition and answer.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    Action by Wessell Plumbing Company, Inc., against R. J. Norton on two promissory notes.
    There was judgment for plaintiff on a rule under the Pleading and Practice Act 300 of 1914.
    Defendant appealed.
    Judgment affirmed.
    Edward Barnett, of Shreveport, attorney for plaintiff, appellee.
    Crow and Coleman, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

On August 20, 1925, plaintiff brought this suit to recover the amount of two promissory notes, each for the sum of $47.50, bearing interest at 8% per annum, with 25% attorney’s fees in case of collection by attorney or suit, and it attached the notes to its petition.

On October 17, following, defendant filed answer.

On the same day plaintiff filed an application for a rule on defendant to show cause why a judgment should'not be rendered against him for the amount claimed on the pleadings; alleging in its application that defendant had not specifically denied in his answer any material allegation set out in the petition, as required by the pleading and practice act (Act No. 300 of 1914).

The rule was granted and made returnable October 26, and on that day trial of the rule was taken up, argued and submitted, and on October 28 the court rendered judgment making the rule absolute and granting judgment in favor of plaintiff for the amount of the notes, interest and attorney’s fees, as prayed for. Defendant appeals.

OPINION.

The only question presented for our consideration is, whether the 'court erred in granting judgment in favor of the plaintiff on the pleadings.

It is contended by counsel for plaintiff and was held by the lower court that defendant failed to specifically deny in his answer any material allegation of fact set out in the petition.

Section 1 of Act No. 300 of 1914, the pleading and practice act, requires that the plaintiff, in his petition,

“Shall state his cause of action articulately, that is to say, he shall so far as practical state each of the material facts upon which he bases his claim for relief in a separate paragraph, separately numbered.”

Section 2 requires that the defendant in his answer

“Shall either admit or deny specifically each material allegation of fact contained in plaintiff’s petition.”

And said section 2 further provides that

“The denial by defendant in such case may be based upon lack of sufficient information to justify a belief in regard to the allegation in question, but in such case the denial must be so expressly qualified.”

And

“All material allegations of fact contained in the petition which are not denied in the answer shall be deemed to be admitted.”

Plaintiff set out its cause of action in eight separate and distinct articles, separately numbered; and defendant answered each article, paragraph by paragraph.

In paragraph one, plaintiff alleged that defendant is indebted to it in the sum of $95.00 with interest and attorney’s fees.

In answer to this article, defendant says;

“Article 1 is denied.”

In Article Three of the petition, plaintiff alleges that:

“* * * the two notes are hereto attached and made a part of this petition.”

And in answer to that article defendant says:

“Defendant admits that the two (2) notes in question are attached to plaintiff’s petition, but denies that he owes them or any portion thereof.”

These are the only specific denials found in the answer.

But these are not denials of any specific allegation of fact, because the allegation in the petition that defendant is indebted to plaintiff is but a conclusion of the pleader from the facts alleged and not an allegation of fact.

Succession of McLain, 141 La. 375, 75 South. 85.

The specific allegations of fact set up by plaintiff to show a cause of action are contained in other articles of the petition; and to each and every other article of the petition the defendant made the same answer, verbatim, to-wit:

“For want of proper and sufficient information, defendant cannot admit or deny this allegation contained in plaintiff’s petition, and for the. purpose of placing said allegation at issue denies same.”

It is contended by counsel for defendant, in brief (the case was not argued orally) that this is a sufficient denial of plaintiff’s allegations of fact, and in support of that contention they cite Henderson vs. Price, Manning’s Unreported Cases, page 2, to the effect that

“The clause of an answer, wherein is pleaded the general issue, must be taken in connection with other clauses which are equally a part of the defense, and the whole construed together.”

And the case of Davies vs. Bierce, 114 La. 663, 38 South. 488, holding that:

“A party is entitled to have his pleadings considered and passed upon as an entirety.”

And the case of Bayhi vs. Bayhi, 35 La. Ann. 527, where it was held that an answer by defendant in which there was neither an admission or denial of the allegations of the petition, hut submitted the case for the determination of the court, joined issue as effectually as a judgment by default could have done.

The rule laid down in the 114 Louisiana case, supra, to the effect that the pleader is entitled to have his pleadings construed as a whole, is the law yet; but the case is not in point.

. The rule recognized in the other cases was correct, of course, under the law as it then existed. But these decisions were rendered long previous to the passage of the pleadings and practice act. That act did away with the old rule of “pleading the general issue,” and provided that the defendant, in answer, must admit or deny specifically each material allegation of fact contained in plaintiff’s petition.

It is true that in defendant’s answer relating to the allegations of fact set out in the petition there i§ denial; but it is denial only “for the purpose of placing said allegation at issue.”

The act provides that the denial by the defendant in such case may be based upon lack of sufficient information to justify a belief in regard to the allegation in question; but a reading of the entire article and defendant’s answer, as to the allegation of fact, will disclose that he does not base his denial upon lack of sufficient information, but only for the purpose of putting the allegations at issue. With reference to lack of sufficient information, he says:

“* * for want of proper and sufficient information, defendant cannot admit or deny this allegation.”

There is, therefore, no denial of the allegation on account of lack of sufficient information.

The act in plain terms provides that the defendant must deny specifically the allegations of fact contained in the petition, but allows him to deny them

“* * * for lack of sufficient information.”

If defendant had denied these allegations for lack of sufficient information, he would have complied with the letter of the law; but he did not do that. He alleged that on account of lack of information he could neither admit nor deny them. Clearly there is no denial in that.

These material allegations of fact not having .been denied, are, under the act, deemed to be admitted.

Under the act, the defendant may as well have filed an answer admitting separately all the allegations of fact in plaintiff’s petition.

Following the statement in the answer that he neither admits nor denies the allegations of the petition, he says:

“* * * and for the purpose of placing said allegations at issue denies same.”

But the defendant is not permitted by the act to deny an allegation of fact merely for the purpose of putting it at issue. That would be equivalent to pleading the general issue, and would thwart the very purpose of the pleading and practice act, which was to simplify trial by narrowing the issues.

When a defendant is called into court to answer a demand, he either does or does not know whether the allegations with which he is confronted are true. If he knows they are true, he is called upon to admit them; if he knows they are not true, he should 'deny them; and if he does not know whether they are true or not, the act permits him to deny them for lack of information. But he is not permitted to deny them merely and solely for the purpose of putting them at issue.

The defendant not having denied the allegations of fact in plaintiff’s petition, they are deemed to be admitted, and tbe court was warranted under section 4 of Act No. 300 of 1914 to render judgment on the pleadings in favor of the plaintiff.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.


text:
    No. 2544.
    Second Circuit.
    BECTON v. DEAS PAVING COMPANY, INCORPORATED.
    (March 11, 1926. Opinion and Decree.)
    (April 10, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant —Par. 154.
    Where an injured employee works in excessive heat which caused an enlargement and dilation of the heart which rendered the heart unable to properly function, it was an “accident” within meaning of the Workmen’s Compensation Act defined by Section 38 of Act 20 of 1914.
    2. Louisiana Digest—Master and Servant —Par. 154.
    Where an injured employee suffered from a diseased heart, if there was a causal connection between the labor performed and the collapse of the injured employee, it will be considered an accidental injury within the meaning of the Workmen’s Compensation Law, Section 38 of Act 20 of 1914, because the overexertion was the proximate cause of the disability.
    3. Louisiana Digest—Master and Servant —Par. 159.
    An injured employee is entitled under the Workmen’s Compensation Act, Section 8, Subsection 1(c), of Act 20 of 1914, to recover the difference between wages at the time of the injury and wages which he is able to earn thereafter; not what he is earning.
    4. Louisiana Digest—Master and Servant —Par. 160 (j).
    The fact that the injured employee was given work as night watchman, although his condition was such that he could not retain the position, will not be considered sufficient to prove what he is able to earn within the meaning of the Workmen’s Compensation Act, Section 8, Subsection 1(c) of Act 20 of 1914.
    5. Louisiana Digest—^Master and Servant —Par. 159.
    Where an injured employee, who is a day laborer, is totally incapacitated from doing manual labor, he will be granted 65 per cent of the amount that he earned during the period of disability not exceeding four hundred weeks under the Workmen’s Compensation Law, Section 8, Subsection 1(b) of Act 20 of 1914, as amended by Act 216 of 1924.
    Appeal from the Sixth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Percy Sandel, Judge.
    Action by W. E. Becton, an injured employee, against Deas Paving Co., Inc., to recover compensation under the Workmen’s Compensation Law, Section 8, Subsection 1(b) of Act 20 of 1914, as amended by Act 216 of 1924.
    There was judgment for defendant, and - plaintiff appealed.
    Judgment reversed.
    Theus, Grisham and Davis, of Monroe, attorneys for plaintiff, appellant.
    McHenry, Montgomery, Lamkin and Lam-kin, of Monroe, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff brought this suit to recover compensation at 65% of his wages during total disability not exceeding 400 weeks under the Workmen’s Compensation Act (Act No. 20 of 1914 and amendments).

His demands were rejected by the lower court and he appealed.

STATEMENT OP THE CASE AND OPINION.

Plaintiff was employed by defendant to work at its asphalt mixing machine in West Monroe, Louisiana, as foreman and engineer at a weekly wage of $22.15. His duties were to fire the boiler and look after the engine. The place where he was working was a very hot one, the heat of the boiler being reflected upon him.

On July 24, 1924, a very hot day, the engine, which seems to have been on top of the boiler, was giving trouble. It stopped a number of times during the day, and in order to start it it was necessary for some one to climb up on the boiler and turn a wheel. The turning of this wheel required a great deal of physical strength and exertion.

Plaintiff had started the engine in that manner a number of times during the day, and on one occasion called to some colored laborers to start it, and it seems they were not successful, whereupon plaintiff again climbed up on the boiler and, with great physical exertion, turned the wheel and started the engine.

When he did this, he says:

“I felt a little keen pain in the side and turned sick in a few seconds, and the assistant foreman passed again—we were awfully busy getting started—and I says, ‘You will have to send some one to take my place; I am sick.’ He looked and said,
‘I reckon you are; you go to the shed.’”

His testimony is that he went to the shed and the foreman called a physician, who carried him to his home. That was on Thursday. He remained in bed until the following Tuesday, when he got up and went back to work under the advice of the company’s physician, and worked until August 20, when, he says,

“I had another attack.”

In detailing the circumstances of. the last attack, he said:

“The glass blowed out of the lubricator and I had to patch it—I didn’t have no more glass—and was patching it, and ito took thirty or forty minutes, and I fell” out again the same way as I did the other time. It was a warm place where I was at.”

After this attack, plaintiff went to his home, and soon after arriving there he fell to the floor unconscious. He was treated by a physician, who was sent for at once. As a result of this second attack he remained in bed for several days.' He did not return to work, being advised by the physician that he was unable to work and that he was liable to fall dead at any moment. Prom that time to the date of the trial he was not able to perform any labor requiring physical exertion. He testified that he was not able to walk a block, and two physicians—the only ones who testified—stated unqualifiedly that he is unable to work and that any kind of physical exertion will probably produce death. And they further stated that this disability is permanent, there being no cure for it.

As to his condition and the cause, Dr. Milam, a physician who was employed by the insurance company to look after and treat those who were injured while in the employ of the defendant company, said:

“I would say his condition was caused by his occupation; by the heat, as I understand it from Mr. Riles, the foreman of the plant. Mr. Becton was there and had charge of the boiler, or cleaning out the boiler, I don’t remember, but he was right in the heat there, and it was a very hot day, and along with the heat from the boiler was overcome by heat; kinder heat stroke or sun-stroke—heat stroke from his occupation, I would judge.”

And he was asked:

“Q. In your opinion, what caused this second attack?”

And he said:

“A. I would imagine heat from exposure around that boiler was the cause of the second attack. I couldn’t say positively. I didn’t see him.”

And he said, further:

“That could have caused it.”

He also testified that he would advise plaintiff to get an easier job, where he would not be subjected to heat.

Dr. J. E. Waldsworth testified that he made a casual examination of plaintiff several months after he was stricken, but that within a week previous to the trial he had made a thorough examination.

He says plaintiff has 'an ’’aortic regurgitation,” which, he says, means that the blood which goes into the aorta or aortic valves is insufficient; permits the blood to flush back out of the heart.

On being asked the effect of this heart trouble, he said:

“Well, when you have compensation, and I mean by compensation a sufficient enlargement of the heart to compensate for that leakage, why, you ordinarily don’t suffer any inconvenience.”

He was asked to give his opinion as to plaintiff’s condition, and, after detailing the history of the case as it had been given to him, he stated that “aortic regurgitation” comes only slowly, and that, in his opinion, plaintiff had a diseased and impaired heart previous to the time he began to work for defendant, and was asked:

“Would anything cause it to come on all of a sudden or make it worse or aggravate it?”

And he said:

“Aortic regurgitation, the condition that he has there, is more susceptible to acute dilation of the heart than any other of the heart diseases, I think; and any overexertion would be calculated to produce acute dilation of the heart. The dilation depending on the effect that produces it and the history of the heart muscles, that is, the degree of dilation.”

And he was asked if he could say that these two cases of heat stroke or sunstroke were caused from over-exertion or aggravated or caused the heart trouble to become greater or more serious, and he answered:

“I would say yes. Any over-exercise, any stringent exercise, would be possible to produce a severe experience on his part. In fact, sudden death in aortic regurgitation is more common than any other type of heart disease.”

And he further testified that any violent exercise would likely bring on a calamity, and he gave it as his opinion that over-exercise of the plaintiff on the occasion referred to “broke the compensation” and that after compensation is one time broken the danger increases materially after that because the muscle is already impaired; and he said:

“You can never recover completely, and it is more liable to break again than before.”

He gave it as his opinion that the combined heat and exercise possibly brought on plaintiff’s condition, and that he was capable of considerable exercise previous to the break in compensation, but that since then it would be dangerous for him to undergo any physical exertion.

He further stated that whenever exercise caused a break in compensation, that aggravated the patient’s condition.

His attention was called to the great change which had taken place in plaintiff’s condition since the accident of July 24 and August 20, and was asked if this change was brought about by the manual labor and exertion on those occasions, and he said:

“In my opinion, the history coincides with the facts that it did.”

Plaintiff’s demands are resisted by the defendant on the ground that defendant’s condition was not brought about by any accident as contemplated under the workmen’s compensation act.

Section 38 of that act defines “accident” to mean 1 ’

“* * * an unexpected or unforeseen event happening, suddenly or violently, with or without human fault, and producing at the time objective symptoms of an injury.”

We are of the opinion that plaintiff suffered an accident as contemplated under the law.

He was working in a hot place on a very hot day. He over-exercised himself, which caused an enlargement or dilation of the heart, and compensation was thereby broken. A condition was brought about by the heat and exercise which rendered the heart unable to function properly. This was sudden and happened unexpectedly. The “break in compensation” resulted from an effort put forth by plaintiff while at work in the course of his employment. It resulted from heat and over-exertion. The employment was the proximate contributing cause of the break-down.

The testimony of Dr. Waldsworth shows that plaintiff had a diseased heart, but he says, that if he had taken only moderate exercise under ordinary conditions the breakdown would probably have been long delayed but could have occurred as the result of any exercise, such as climbing steps, etc.

But the testimony shows that his condition was not such that death or a breakdown was reasonably to be expected at any time under ordinary circumstances.

We find many decisions holding that a laborer is not entitled to compensation where he suffered and was disabled from heart failure in the course of his employment; but those are cases in which the testimony failed to show that the heart failure or final collapse in case of a diseased heart was brought on hy exertion or strain while the employee was at work. But in cases where there was found to be a causal connection between the labor and the collapse the courts have held that there was an accidental injury under the statute.

In all cases it must be determined whether the “real cause of the injury is disease or the hazard of the employment”. Conceding, as we must, under the testimony, that plaintiff had a diseased heart, yet it is clear that the injury resulted from the employment as the inducing, proximate cause thereof. The disease from which plaintiff was suffering was, no doubt, progressive, and may have ultimately resulted in disability or death; but the injury resulting in disability is directly traceable to the employment. It was the strain, the over-exertion, which brought on the breakdown.

In the case of Hicks vs. Meridian Lumber Co., 152 La. 975, the court said:

“It is quite immaterial for the purposes of this case whether the alleged strain brought on the aneurism, or merely hastened the inevitable rupture; for this court would allow compensation in either case.”

The court then cites the case of Craft vs. Lumber Co., 151 La. 281, 91 South. 736, and quotes from the case of Hooper vs. Standard Ins. Co., 166 Mo. App. 209 (148 S. W. 116) as, follows:

“Where a man is so afflicted that he will die from such affliction within a very short time, yet if, by some accidental means, his death is caused sooner, it will be a death from ‘accident’, within the meaning of an accident insurance policy.”

Behan vs. Honor Co., 143 La. 348, 78 South. 589.

Harden vs. Higgins O. & F. Co., 147 La. 457, 85 South. 202.

Johnson vs. Vernon Parish Lmbr. Co., 151 La. 667, 92 South. 219.

In an exhaustive note in 19 A. L. R. 110, where a great many cases are cited and reviewed, we find the rule thus stated:

“An award of compensation may be made although there was a pre-existing heart disease, if that disease was aggravated and accelerated by an accidental injury which arose out of and in the course of the employment and was the proximate cause of the disability of death.”

And again:

“Compensation is only recoverable where there was a direct causal connection between the effort put forward in the employment, and the injury, and the determining question is whether the employment was the proximate contributing cause.”

As to what may be termed an “accident” see 7 A. L. R. 1611, and note at page 1614.

Our conclusion is that plaintiff suffered an accident as contemplated under the statute.

As to the amount of recovery:

The testimony shows that plaintiff is not an educated man and is capable of earning -frages only through manual labor. He is now totally incapacitated from doing manual labor, the kind of work he was doing when injured. The defendant discharged him because it recognized that fact. The physicians otestify that labor of that kind will bring on sudden death. Plaintiff says he cannot walk a block without resting. He therefore cannot earn anything at the kind of work he is capable of doing.

At the time he was injured he was earning $22.50 per week. He is entitled to recover 65% of that amount during the period of disability not exceeding 400 weeks, under clause (b) of paragraph 1 of Section 8 of Act 20 of 1914, as amended by Act 216 of 1924.

At some time subsequent to the accident, defendant gave plaintiff some light work on a raft or barge and gave him wages for a few days. After this suit was filed defendant’s foreman sent for plaintiff and put him to work as nightwatchman at a weekly wage of little less than he originally earned, and he was so employed on the date of the trial.

The point is made that inasmuch as plaintiff was earning on the date of the trial practically as much as he formerly earned, he is not now entitled to compensation or at most is entitled to no more than 65% of the difference between what he was earning at the time of the injury and what he was earning at the time of the trial, under clause (c) of paragraph 1 of Section 8 of the act.

That clause provides that for partial disability the employee is entitled to recover 65% of the difference between wages at the time of injury “and wages which the injured employee is able to earn thereafter”; not what he is earning.

The testimony shows that plaintiff is not able to earn anything at the kind of labor he is capacitated to perform, that is, manual labor.

After the injury and after the suit was filed, defendant’s foreman put plaintiff, to work as nightwatchman, which required no physical exertion, a This may have been done on account of sympathy and interest which the foreman felt for him, seeing that he was out of work and could earn nothing;. or it may have been done to de•feat plaintiff’s action. This latter view seems plausible in view of the fact that plaintiff remained out of work for four or five months after the accident and was then given work as nightwatchman only after this suit was filed.

We cannot accept this as evidence of what plaintiff is able to earn.

Without ascribing to defendant any ulterior motive in giving plaintiff employment as nightwatchman under the circumstances, we conclude that at best it was no more than charity or a gratuity. In all probability if defendant’s present foreman should sever his connection with the business, or if defendant should cease ^operations, no one else would feel enough interest in or sympathy for the plaintiff to look up an easy place for him.

Hulo vs. City of New Iberia, 153 La. 284, 95 South. 719.

Norwood vs. Lake Bisteneau Oil Co., 145 La. 823, 83 South. 25.

Woodcock vs. Dodge Bros., 17 A. L. R. 203, and note thereto.

We think, however, that defendant is entitled to credit for whatever amount it has paid plaintiff in wages since the date of the accident.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff, W. E. Becton, have judgment against and recover from defendant, Deas Paving Company, Incorporated, in the sum of fourteen and 40-100 dollars per week (being 65% of his wages) during the period of his disability, not exceeding 400 weeks, as for total disability, beginning August 27, 1924; these payments to bear interest at 5% .per annum'from the date of their respective maturities. And it is further ordered that defendant have credit on this judgment for the total amount it paid plaintiff for his services rendered subsequent to the date of the accident and to be credited on the first amounts due hereunder.

All costs to be paid by defendent.


text:
    No. 2565
    Second Circuit
    CAHN v. HOFFMAN
    (April 10, 1926. Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Automobiles—Par. 4 (b).
    Drivers of automobiles at street intersections must observe the presence of others, and this requires that, before attempting to negotiate the intersection they should take the precaution to observe the situation with care. ■
    2. Louisiana Digest—Automobiles—Par. 4 (b).
    The driver of an automobile when approaching an intersection who observes that a street car obstructs his view is negligent if he proceeds to cross the street without further observation.

      (Civil Code Article 2315. Editor’s note.)
    Appeal from the City Court of the City of Shreveport, Caddo parish, Louisiana, Hon. David B. Samuel, Judge.
    Action by Carroll Cahn against Dave Hoffman for damages to an automobile arising out of an automobile collision.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    A. B. Freyer, of Shreveport, attorney for plaintiff, appellant.
    J. F. Phillips, of Shreveport, attorney for defendant, appellee.
   WEBB, J.

In this suit the plaintiff seeks to recover damages (necessary repairs of an automobile) resulting from a collision between his car, while being driven by his chauffeur, and an automobile being driven by defendant.

The collision occurred at the intersection of Creswell street (which runs north and south) and Herdon avenue (which runs east and west), the chauffeur going north and defendant west, each of the cars, driven by them, being on the right side of the street.

There is a double line of street car tracks on Herndon avenue east of the intersection, which turn at the intersection, north into Creswell, and just preceding the accident a street car was on Herndon avenue proceeding west and defendant in his automobile was following the street ear.

Plaintiff alleges the accident was due to the fault and negligence of the defendant in driving from behind the street car at an unlawful rate of speed, without any warning or other signal of his approach, and in attempting to cross the intersection in such manner and in failing to make any proper effort to avoid striking plaintiff’s car; while the defendant denies any negligence, and alleges the street car which he was following stopped just before reaching the intersection and where he also stopped his automobile, and as the street car started forward he started his automobile, continuing west, and was proceeding over the intersection when he discovered the plaintiff’s car, on the intersection, in front of him, at which time it was too late to avoid the collision.

The judgment of the City Court rejected plaintiff’s demands, and he appeals.

OPINION

The version given by the chauffeur of the incidents immediately preceding the collision, was, that when he approached ’the intersection and at some distance north (just below the “Slow” sign) he slowed down in such manner as to cause the automobile to skid for several feet, and when he reached the “slow” sign, a point north of the intersection, at about fifteen feet, he noticed the street car on Herndon avenue, where it had stopped; that after noting the street car he proceeded over the intersection, at a speed of twelve or fifteen miles per hour, until he reached a point beyond the middle of the street, when he noted the defendant’s automobile coming at a speed of fifteen or twenty miles an hour, and almost upon him, when he tried to avoid the collision by increasing the speed of his ear.

The version of the defendant is, that the street car was stopped at a point" with its rear end about thirty-five feet east of the intersection; that he stopped his automobile (Ford) behind the street car, and when the street car started up he started his automobile, and was proceeding west over the intersection at a speed of ten or twelve miles per hour, and when he noted plaintiff’s car it was on the intersection right in front of him.

Each of the parties called witnesses to support their statements.

Alice Thoman, for plaintiff, was of the opinion that the chauffeur was driving at a speed of about twelve miles per hour; while' G-. C. Oaks, for defendants, was of the opinion that the chauffeur was driving at a speed of eighteen or twenty miles per hour.

None of the supporting witnesses seemed, however, to have noticed the situation until about the moment of collision, and while the chauffeur and. the defendant were able to state what the situation was- on their side of the street, neither of them was aware of the position or of the presence of the other, until the moment of the collision.

Drivers of automobiles at street intersections must anticipate the presence of others, and this requires that, before attempting to negotiate the intersection they should take the precaution to observe with care the situation. (Fernandez vs. Montz, 151 La. 299, 91 South. 742.)

The weight of the evidence does not establish that the defendant was driving at a rate of speed in excess of that at which the chauffeur admits, he was driving, and assuming the width of Creswell street and Herndon avenue to be equal, it appears the automobiles had traversed about an equal distance on the intersection preceding the collision, which indicates that they came upon the intersection at the same time, yet neither of the drivers was aware of the presence of the other until the moment of collision.

The incidents leading up to collisions between automobiles, upon which the determination of negligence must be based, usually occur in a very short space of time, and the testimony of One party, tending to show negligence on the part of the other, when consisting of estimates of speed, can have little weight when the collision is shown to have occurred at a place where the party is bound, in the exercise of ordinary care, to anticipate the presence of others, and it appears that he was unaw’are of the presence of the other until the moment of collision.

The driver of a car approaching an intersection is obliged to observe what is approaching on the street he intersects, and even if we concede that the chauffeur arrived at the intersection at the same time as the defendant (the evidence indicating that he arrived at the point after the defendant) the situation would be that while he observed the street car obstructed his view, he proceeded to cross the street without further observation, with the resulting collision.

Both parties were at fault under the evidence, and neither is entitled to recover.

The judgment is affirmed.


author: BELL, J.

text:
    No. 9233
    Orleans
    WHITNEY IRON WORKS, Appellant, v. NATIONAL FIRE INSURANCE COMPANY
    (March 15, 1926. Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Insurance—Par. 160,
    Where the insured has been paid without suit, the amount ultimately claimed by it under a fire policy, there is no ground for claiming 1 penalties under Act 168 of 1908; especially, where the insured alleges in his suit for penalties that he has been paid the full amount for which he has ' made final proof of loss, in lieu of other proofs previously submitted.
    2. Louisiana Digest—Insurance—Par. 160, 166.
    Demand for the amount due under the policy is a prerequisite to recovery of penalties.
    Appeal from Civil District Court, Parish of Orleans, Division “A”, Hon. Hugh C. Cage, Judge.
    Action by Whitney Iron Works against National Eire Insurance Company for damages under Act 168 of 1908.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Jno. C. Foster, of New Orleans, attorney for plaintiff, appellant.
    Spencer, G-idiere and Phelps, of New Orleans, attorneys for defendant, appellee.
   BELL, J.

The appeal taken herein is from a judgment maintaining an exception of no cause of action.

Plaintiff, as the insured under a fire policy, issued by the defendant company, brings this suit in the amount of $374.11, seeking recovery for twelve per cent damages on $3,117.65, the amount ultimately agreed between the parties as the total loss sustained under the policy.

The damages sued for are claimed to be due under Act 168 of 1918, because of the alleged failure on the part of defendant to pay the loss under the policy within sixty days after it had received proofs of loss filed With it by plaintiff. The petition alleges that proofs were filed on June 7, 1922, in the amount of $3,167.50, and subsequently plaintiff agreed to a reduction of its claim by the amount of $50.00, and thereupon filed “for convenience” of the company a new proof of loss, for $3,117.50. The petition concludes with the following allegations:

“That although said insurance company has paid, to your petitioner the amount of $3,117.65, it failed to do so within sixty days from June 7, 1922, the day on which it received proof of loss offered by your petitioner, and is therefore liable to your petitioner for the sum of $374.11, which said amount is 12% of the total amount due your petitioner by reason of the above mentioned loss, and is,the penalty provided , by Section 3 of Act 168 of 1908, for failure to pay claim within 60 days from the day of receipt of proof of loss of insured.”

It is contended, in support of the exception filed herein, that there is no allegation in the petition that plaintiff was not paid within sixty days after its second proof of loss was submitted, nor is it alleged that demand was ever made upon the company for payment to plaintiff of the sum admitted to have been received, to-wit, $3,117.65.

It is argued that plaintiff, having agreed to a reduction of its original claim, and having consented to file a new proof of loss, based upon the reduced claim, the time did not begin to run within which payment had to be made by the insurance company until the final proof of loss had been submitted by plaintiff, and furthermore, that demand for payment had to be made in order for plaintiff to bring itself within the act. Our contention is called to the following clause of Section 3 of the Act, which reads as follows:

“Should the company fail to pay within said time the amount due the insured under the policy, after demand made therefor, such company shall be liable to pay the holder or holders of such policy in addition to the amount of the loss, twelve per cent damages on the total amount of the loss as may be determined by a court of competent jurisdiction, together with all reasonable attorney’s fees for the prosecution and collection of such loss.”

We are not cited to any authorities, nor have we been able to find any jurisprudence of this State applicable to the facts in the instant case, but it is reasonable to hold that the second proof of loss voluntarily filed by the plaintiff in this matter fixed the time from which the delays for payment by the company should be made under the terms of the Act. The proof ultimately filed is the only proof of loss which can be considered as the basis of the claim presented by plaintiff in this matter.

The above quoted provisions of Section 3 are similar to other like statutes which have been interpreted by the Supreme' Courts of Georgia and Texas. In the case of Northwestern Life Insurance Company vs. Sturdevant, 59 S. W. 61, the Texas Court said:

“Sayles’ Civ. St. Art. 3071, provides that in all cases where a loss occurs, and the life or health insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, the compay shall be liable in addition to pay the policy holder 12 per cent damages on the loss and reasonable attorney’s fees. Held, that a demand was necessary under such section to entitle plaintiff to the benefit thereof, notwithstanding its apparent futility.
“The suit itself was not such a demand as the statute intended.”

The Supreme Court of Georgia, in the case of Ancient Order United Workmen vs. Brown, 37 S. E. 890, said:

“To render an insurance company liable for attorney’s fees, under the provisions of Section 2140 of the Civil Code, a demand and • a refusal to pay, 60 days before suit is brought, must be plainly averred, and the truth of such averment must be established on the trial. No such demand and refusal being averred and proved in the present case, the recovery of attorney’s fees was not authorized.”

The exception of no cause of action herein filed appears to us to have been Well-founded and properly maintained.

It is ordered that the judgment appealed from be and the same is hereby affirmed, at plaintiff’s cost in both courts.