text:
    No. 760
    First Circuit
    CRAWFORD v. ROBBINS & KENNEDY
    (March 3, 1931. Opinion and Decree.)
    (May 5, 1931. Rehearing Refused.)
    Gus A. Fritehie, of Slidell, attorney for plaintiff, appellee.
    Miller & Heintz, of Covington, attorneys for defendants, appellants.
   ELLIOTT, J.

Clarence P. Crawford instituted suit, accompanied by an attachment, against Robbins & Kennedy, a partnership composed of E. L. Robbins and B. O. Kennedy. Eighteen mules and two horses were seized under the writ.

The plaintiff claims of defendants $431 as due him for hauling logs, and alleges that they are about to move their property, consisting of said mules and horses, out of the state.

Defendants, appeared and moved to dissolve the attachment on several grounds not necessary to recapitulate, for the reason that the minutes show that, after having moved to dissolve, their motion to dismiss was withdrawn.

The statement of defendants in the commencement of their answer, that they do so under reservation of the benefit of all .exceptions heretofore filed and not waiving their motion to dissolve' the attachment issued herein, but insisting thereon, was, on' plaintiff’s motion, ordered stricken out of their answer'.

Defendants in their answer denied being indebted to the plaintiff. Tiiey allege that the logs hauled by plaintiff was not done in working for them, but for De Hass-Eby Lumber Company; and deny' that anything is due the plaintiff on account of his hauling. They admit' that' their mules and horses 'were at Pearl River at the time of the attachment, and that- they were about to move them into the state of Mississippi, but deny that--it was'to be done for the purpose of defrauding the plaintiff, or for the -purpose of placing same beyond the jurisdiction of the court. They further allege upon information and belief that De Hass-Eby Lumber Company has paid the ..plaintiff for all logs hauled, snaked, or loaded by him .for them, except about 16,000. feet, at $3. per M, but for which plaintiff is not entitled to pay, because not loaded by him on cars. They claim of plaintiff $610 in reconvention on account of damages caused them by said seizure. They pray that plaintiff’s demand be rejected and that they have judgment in reconvention against him for $610.

After trial on the merits, the court sustained the attachment and rendered judgment in favor of the plaintiff, not against Robbins & Kennedy as prayed for, but against E. L. Robbins and B. O. Kennedy in solido for $431, with interest. Defendants do not complain of the fact that judgment was rendered against them in the way stated; consequently it is no; necessary to consider the form of the judgment. Defendants’ demand in reconvention was refused.

As for the defense that plaintiff was not engaged in hauling for Robbins, & Kennedy, but for De Hass-Eby Lumber Com-, pany, the evidence satisfies ns that Robbins & Kennedy are plaintiff’s debtors on account of said hauling; that plaintiff was employed by them and worked fcr them and not for De Hass-Eby Lumber Company, as defendants claim.

The amount claimed by plaintiff to be due on said account is contested/ The plaintiff testifies that the amount claimed by him, $431, is correct.

Defendants Robbins and Kennedy, as witnesses, each endeavored to show that plaintiff was no't due that amount, giving testimony from which it could be inferred, if given credit, that plaintiff had been paid by De Hass-Eby Lumber Company all that was justly due him on said account. The testimony of the defendants has left us convinced that the district judge made no mistake in accepting the testimony of the plaintiff as to the amount due him. We shall not interfere with the judgment in that respect.

As for the attachment, defendants in their answer and testimony show that their horses, and mules were at Pearl River at the time they were attached, and that they were about to move them out of the state. Pearl River, the place where the mules and horses were at the time, is not many miles, from the state line. Their mules and horses, if once started on the way, would have quickly been out of the state. The evidence on the subject satisfies us that the plaintiff had just grounds, to fear that the defendants would move their property out of the state without paying him, and that he was justified in resorting to the writ of attachment in order to protect his righs.

The judgment appealed from is correct.

For these reasons the judgment appealed from is affirmed; defendants to pay the cost in both courts.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    No. 13,124
    Orleans
    STUMPF v. BARONNE BUILDING, INC., ET AL.
    (February 16, 1931. Opinion and Decree.)
    (March 23, 1931. Rehearing Refused.)

      Wm. W. Ogden and Wm. W. Westerman, of New Orleans, attorneys for plaintiff, appellant.
    St. Clair Adams, of New Orleans, attorney for Baronne Bldg., Inc., defendant, appellee.
    Monroe & Lemann and Nicholas Callan, of New Orleans, attorneys for Leo Fell-man, defendant, appellee.
   HIGGINS, J.

Plaintiff brings this suit against the Baronne Building, Inc., as the owner and operator of the Baronne Building, and Leo Fellman, as its agent or manager in charge or operator in his own behalf, in solido, to recover damages for •personal injuries alleged to have been sustained by him, while a passenger in an elevator in the building. The petition alleges that the plaintiff is a dentist and a tenant in the Baronne Building, with office space on the fifth floor; that there are three elevators installed in the building, the cars of which are not equipped with any gate or door, which, upon being closed, would complete the enclosure of the elevator car and' prevent passengers from coming into contact with that portion of the wall of the' elevator shaft opposite the doorway of the car; that there are extensions or projections, on the wall' of th'e shaft and on the various floors of the building, opposite the doorway of the elevator car; that on November 20, 1927, at about 12:45 p. m., tbe petitioner was a passenger in one of the elevators, which was descending from the fifth floor and that another passenger in the elevator car, in attempting to light a cigarette, ignited a box of matches, which he threw from him into the lap of the female operator of the elevator car, who, in turn, negligently and carelessly threw the burning box of matches from her and into the face' of petitioner; that, in stepping away from the fire, petitioner slipped, precipitating him beyond the limits of the elevator car doorway, and that he was carried down by the descending car in such a manner that his right, hand struck the obstructions or projections on the wall of the shaft beside the unguarded side of the elevator car with great force, causing a fracture of three bones of his right hand; that defendant was guilty of negligence in not in any manner protecting petitioner, as a passenger in the elevator car, by a gate, railing, partition, or bar on the elevator car, from coming into contact with the obstructions or projections on the wall of the elevator shaft, consisting of the top of the gates and rails of the grillework which projected into the shaft a distance of several inches.

The petition further alleges:

“That the injuries sustained by petitioner were caused solely and ¡proximately by the negligence and carelessness of defendants herein, which said negligence and carelessness is set forth as follows: '
“(a) Failure on the part of defendants herein to provide a guard, gate, door, partition, or suitable protection at the entrance to said elevator car..
“(b) The negligence of defendants, their agent or employee, in throwing the lighted box of matches into petitioner’s face.
“(c) The violation of its duty of safe carriage owed to petitioner, and its duty to use the utmost care and diligence for the protection of passengers, and its failure to equip said elevator car with the protection and modern equipment with which present-day elevators should be equipped.”

Both defendants filed exceptions of no right or cause of action, which were sustained, and from a judgment dismissing the suit the plaintiff has appealed.

The exception of no cause of action is based upon several grounds:

First, that the failure to equip the elevator car with the protecting doors was not the proximate cause of the accident;

Second, that if defendant was negligent in failing to provide the elevator car with a door, the plaintiff had assumed the risk because of his tenancy in defendant’s building; and

Third, that the obligation of defendant as owner of the building and operator of the elevator was to exercise ordinary care, and his duty in this respect was fully discharged by the operation of an elevator car without a door.

We shall discuss these issues in the above order.

The first contention concedes, arguendo, that it was negligence on the part of defendant not to have had a guard rail or a collapsible door on the elevator car. It is argued that such negligence was not the proximate but the remote cause of the accident; that the proximate cause of the accident, without which it would not have happened, was the negligent act of the person lighting- the cigarette and igniting the box of matches and throwing it into the lap of the elevator operator.

The rule of law is that a party is responsible for the reasonably to be expected consequences of a negligent act, but, where an intervening, independent act of. negligence breaks the chain of causation, then the proximate cause is the act of intervening negligence, and not the original act of negligence. This rule, as stated in Weeks on Damnum Absque Injuria, sec. 115, p. 230, and quoted with approval in Moore v. Edison Illuminating Cd., 43 La. Ann. 792, 19 So. 433, and in Vemiss v. Railroad Co., 47 La. Ann. 1675, 18 So. 711, 713, is as follows:

“In actions for injuries through negligence, it is a general principle that a person is answerable for the consequences of his negligence only so far as they are the natural and proximate result of the injury, as might have been anticipated by ordinary forecast, and not for those consequences arising from a conjunction of his faults with circumstances of an extraordinary nature.”

In this case the alleged intervening act. of independent negligence was the throwing of the box of lighted matches, which caused the plaintiff to lurch forward and to engage his hand in the elevator shaft, causing the injury sued for. It is said that the absence of the gate is the remote and not the proximate cause. It would appear to us that it must have been contemplated that the failure to provide a door on the elevator car might reasonably result in some such accident as that experienced by the plaintiff in this case.

In the case of Munsey v. Webb, 231 U. S. 150, 34 S. Ct. 44, 45, 58 L. Ed. 162, the plaintiff sued the owner of a building for causing the death of deceased in an elevator. Negligent construction and management of the elevator were alleged. The. elevator car did not quite fill the shaft, and the bottom of the floor of it, which was at right angles, projected right into the shaft about three and one-half inches.' The car was equipped with a collapsible door, which was open at the time of the accident. Between the fourth and fifth floors the deceased fell and his head was caught between the projecting bottom of the fifth floor and che floor of the car and was crushed. The court held:

“The plaintiff in error argued at some length that there was no negligence, because the fall of deceased was something wholly out of the ordinary course, and not to be foreseen; or that, if there was negligence in any sense, it was not the proximate cause of the death, but merely a passive condition made harmful by the fall. Neither argument can be maintained. It is true that it was not to be anticipated specifically that a man should drop from internal causes' into the open door of the car. But the possibility and the danger that in some way one in the car should get some part of his person outside the car while it was in motion was obvious, and was shown to have been anticipated by the door being there. In some circumstances, at least, it was a danger that ought to be and was guarded against. It is said that the danger was manifest only when the car was crowded, and that the door was needed only for that. If the duty to have the car shut on. all sides had been created with reference only to conditions different in kind from those of the accident, it may be that the plaintiff could not avail himself of a requirement imposed alio intuitu. The Eugene F. Moran [v. New York Cent. & H. R. R. Co.] 212 U. S. 466, 476, 29 S. Ct. 339, 53 L. Ed. 600, 604. But the accident was similar in kind to those against which the door was provided, and we are not prepared to say, contrary to the finding of the jury, that the duty to keep it shut or to guard the space with the arm did not exist in favor of all travelers in an elevator having the structure that we have described. It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinary prudent eye. Washington & Georgetown R. R. Co. v. Hickey, 166 U. S. 521, 526, 627, 17 S. Ct. 661, 41 L. Ed. 1101, 1103.
“If there was negligence, it very properly could be found to have been the proximate cause of the death. See Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256. Even if it were ’> true that the neglect was merely a passive omission, the deceased was invited into the elevator, and the principle of the trap cases would apply. Corby v. Hill, 4 C. B. (N. S.) 556, 563. Sweeny v. Old Colony & Newport R. R. Co., 10 Allen [Mass.] 368, 374, 87 Am. Dec. 644. But that is not the case. The defendant is sued for having crushed the head of the deceased by forces that he put 'in motion. ' He replies that it would not have happened but for the unforeseen fall of the deceased without the defendant’s fault, and to' this the plaintiff rejoins and the jury has found that the defendant was bound to take the easy precaution which he had provided against any and all ways by which a passenger’s body could get outside the car while it was going up. Hayes v. Michigan Central R. Co., 111 U. S. 228, 241, 4 S. Ct. 369, 28 L. Ed. 410, 415; Choctaw, Oklahoma & Gulf R. R. Co. v. Holloway, 191 U. S. 334, 339, 24 S. Ct. 102, 48 L. Ed. 207, 210. The whole question comes down to whether we are prepared to say as matter of law, against the finding of the jury, that, in an elevator constructed as this was, with a special source of danger in the shaft outside the car, to require the defendant to guard the door space in transitu, at his peril, is too strict a rule. We cannot go so far. McDonald v. Toledo Consol. S. Ry. Co., 20 C. C. A. 322, 74 F. 104, 109.”

See, also, Munsey v. Webb, 37 App. D. C. 185.

In the case of Siegel, Cooper & Co. v. Trcka, 218 Ill. 559, 75 N. E. 1053, 1055, 2 L. R. A. (N. S.) 647, 109 Am. St. Rep. 302, a. passenger, riding in an . elevator not equipped with any gate or door, was thrown to the floor by another passenger, and his leg extended over the platform of the car and it was crushed against the upper casing of the doorway. The court said:

“It is first contended that appellant is not liable in this action because the proximate cause of the injury was the negligent act of the boy who threw appellee upon the floor of the elevator. If, however, appellant was guilty of the negligence charged in the declaration, and without which the injury in question would not have occurred, then it would make no difference, as to its liability, that some act or agency of gome other person or thing also contributed to bring about the result for which damages are claimed: Both or either of the contributing agencies were liable for the injury occasioned by their negligence, appellee being without fault and not held to' have assumed the risk involved in the improper construction. * * *
“Counsel for appellant,' however, insist that the appellant could not foresee such a combination of circumstances as led to the injury, in this case, and therefore .cannot be held to have been negligent, citing Armour v. Golkowska [202 Ill. 144, 66 N. E. 1037], supra. Whether this particular set of. circumstances might have been foreseen or not, the fact of the accident proves the conditions to have been dangerous, and if the jury were of the opinion, as we think, under the evidence, they might well have been, that reasonable prudence and care would have required a different construction, then appellant is chargeable with negligence for permitting the conditions to' exist as they were.”

In the case of Marmorstein v. Schuck (1928) 29 Ohio App. 145, 163 N. E. 218, 220, where a girl had her foot crushed by sticking her foot through the open space beneath the rear collapsible door of an elevator car, the court said:

“The, proximate cause of this injury * * * was the fact that this rear collapsible door had ‘an onening of 3% inches wide and 8 inches high coming down to the floor of the cage, which would permit a child to put its feet into that opening, resulting in an accident as heretofore outlined. We think that that was a question of negligence to be submitted to the jury.”

See, also, Smith v. Odd Fellows Bldg. Association (1922) 46 Nev. 48, 205 P. 796, 23 A. L. R. 38; Strobel v. Park, 292 Pa. 200, 140 A. 877, 57 A. L. R. 253.

The lighting and throwing of' the matches'and the falling of the plaintiff against the wall of the shaft and the obstructions thereon may be said to be the immediate cause of the accident, hut it formed only the connecting link between the injury and the negligence of the defendants. Had the front of the car not been open and the obstruction on the wall of the shaft not present, a condition which existed only because of the alleged negligence of the defendants, the injury would not have been inflicted. An- injury that is the natural and probable consequence of an act of negligence is actionable and such an act is the proximate cause of the injury.

In the light of the foregoing authorities we are of the opinion that the petition alleges that there was causal connection between the negligence of the defendants and the injury sustained by the plaintiff. The alleged negligence of defendants was, therefore, the proximate and not the remote cause of the accident.

Counsel for .defendants refer us to the cases of Palmetto Fire Ins. Co. v. Clarke Garage Co., 6 La. App. 420; Busbey v. Hamiter-Busbey Mill & Elevator Co., 125 La. 241, 51 So. 184; Globe & Rutgers Fire Ins. Co. v. Standard Oil Co., 158 La. 763, 104 So. 707; and Moore v. Jefferson Distilling & Denaturing Co., 169 La. 1156, 126 So. 691. We do not believe that these cases are in point and are to be distinguished from the present one because, in the instant case, the defendants, as ordi; narily prudent persons, could or should have foreseen that accidents of this kind would happen, and should have adopted an adequate guard or protection against the same. In the cited cases the court found that the defendants, as ordinarily prudent persons in the exercise of ordinary care and foresight, could not have anticipated the kind of accident which caused the injuries, and hence the negligence of defendants in those cases was not the proximate cause of the injuries.

The argument on the question of the assumption of risk is based upon the ground that the plaintiff was a tenant in defendants’ building and that a tenant may not recover from a landlord for injuries in consequence of the dangerous condition of the leased premises of which he had knowledge; that plaintiff used the elevator in defendants’ building many times a day; that he knew the elevator cars were not equipped with collapsible doors, rails, and guard; that he did not complain of their absence either verbally or in writing; that by his conduct, he “voluntarily subjected himself to a danger known to himself and for that reason he assumed the risk and is precluded from recovering.” There is nothing in the petition to show the frequent use of the elevators by plaintiff, though we take it to be a fair assumption from the fact of plaintiff’s tenancy. The proposition of law advanced here, to the effect that a tenant is estopped from claiming damages from his landlord due to a defective condition of the leased premises, simply because the defect has come to . his knowledge, is, we believe, not sustained by the jurisprudence, particularly the latest cases on the subject. Boutte v. N. O. Terminal Co., 139 La. 945, 72 So. 513; Klein v. Young, 163 La. 59, 111 So. 495; Ciaccio v. Carbajal, 142 La. 125, 76 So. 583; Thomson v. Cooke, 147 La. 922, 86 So. 332; Harris v. Tennis, 149 La. 295, 88 So. 912; Richard v. Tarantino, 15 La. App. 311, 131 So. 701.

What is it that plaintiff is charged with having known about the defective condition of the elevator cars? That they had no collapsible doors. Assuming that plaintiff can be charged with knowledge that doors on an elevator are an advantage in guarding against accidents, must he also be held to know that doors on elevator cars, however desirable, are in general use or available as standard safety equipment? For example, it was strenuously contended by defendant that it was only recently that elevator cars were, as a matter of fact, equipped' with doors at all. The landlord was the one who should have known of the state of the art of manufacturing elevators and what devices had been adopted as standard in that industry for the protection of passengers, and not his tenants and those using the elevators. But, in any event, it certainly cannot be successfully argued that the tenant in an office building is charged with notice of obstructions or projections in the elevator shaft or wall because he uses the elevator frequently. The petition charges the defendants with negligence in both respects, i. e., in not having a door on the elevator car and also in failing to protect plaintiff from being injured by the obstructions jutting into the elevator shaft.' Certainly iplaintiff cannot be charged with notice of these obstructions in the elevator shaft and cannot be said to have assumed the risk resulting therefrom.

The cases of McLaughlin v. Stallings, 143 La. 62, 78 So. 239, and Clay v. Parsons, 144 La. 985, 81 So. 597, cited by defendants, are not in point, for in each. of those cases the evidence showed that the plaintiff had expressly assumed the risk.

We conclude that the second ground of the exception is without merit.

The third ground of the exception presents the most serious question in the case, i. e.: Is it negligence, per se, to fail to equip an elevator with an inside gate or door which will move up and down with the elevator and which, when closed, will complete, the enclosure of ■ the car and will prevent any person in the elevator from coming into contact with the surrounding walls of the elevator shaft?

In approaching this question we find that the views of counsel, as to the measure of duty owed to a tenant by an owner and operator of a building equipped with elevators, are widely divergent. Counsel for plaintiff contend that the duty owed is similar to that imposed upon a common carrier, and in support of this view directs our attention to numerous authorities: Louis Pizitz Dry Goods Co. v. Yeldell (1925) 213 Ala. 222, 104 So. 526; Sweeden v. Atkinson Imp. Co. (1910) 93 Ark. 397, 125 S. W. 439, 27 L. R. A. (N. S.) 124; McKeon v. Lissner (1928) 87 Cal. App. 371, 262 P. 459; Shellaberger v. Fisher (C. C. A. 1906) 143 F. 937, 5 L. R. A. (N. S.) 250; Southern Ry. Co. v. Taylor (1926) 57 App. D. C. 21, 16 F. (2d) 517; Munsey v. Webb, 37 App. D. C. 185, affirmed 231 U. S. 150, 34 S. Ct. 44, 58 L. Ed. 162; Mitchell v. Marker (C. C. A.) 62 F. 139, 25 L. R. A. 33; Byrd v. Atlanta National Bank, 16 Ga. App. 7, 84 S. E. 219; Steiskal v. Marshall Field & Co. (1909) 238 Ill. 92, 87 N. E. 117; Fraser v. Harper House Co., 141 Ill. App. 390; Beidler v. Branshaw, 200 Ill. App. 425, 65 N. E. 1086; Siegel, Cooper & Co. v. Trcka, 218 Ill. 559, 75 N. E. 1053, 2 L. R. A. (N. S.) 647, 109 Am. St. Rep. 302; Tippecanoe L. & T. Co. v. Jester (1913) 180 Ind. 357, 101 N. E. 915, L. R. A. 1915E, 721; Monahan v. Equitable Life Ins. Co. (Iowa 1916) 156 N. W. 994; Kentucky Hotel Co. v. Camp, 97 Ky. 424, 30 S. W. 1010; Ross v. Sisters of Charity (1917) 141 La. 601, 75 So. 425, L. R. A. 1917F, 260; Belvedere Bldg. Co. v. Bryan (1906) 103 Md. 514, 64 A. 44; Goodsell v. Taylor, 41 Minn. 207, 42 N. W. 873, 4 L. R. a. 673, 16 Am. St. Rep. 700; Roberts v. Schaper Stores Co. (1928) 318 Mo. 1190, 3 S. W. (2d) 241; Goldsmith v. Holland Bldg. Co., 182 Mo. 597, 81 S. W. 1112; Lee v. Publishers: Knapp & Co., 155 Mo. 610, 56 S. W. 458; Dailey v. Sovereign Camp (1921) 106 Neb. 767, 184 N. W. 920; Quimby v. Bee Bldg. Co., 87 Neb. 193, 127 N. W. 118, 138 Am. St. Rep. 477; Smith v. Odd Fellows Bldg. Ass’n (1922) 46 Nev. 48, 205 P. 796, 23 A. L. R. 38; Lander v. Hornbeck (1919) 74 Okla. 239, 179 P. 21; Putnam v. Pacific Monthly Co. (1913) 68 Or. 36, 130 P. 986, 136 P. 835, 45 L. R. A. (N. S.) 338, L. R. A. 1915F, 782, Ann. Cas. 1915C, 256; Strobel v. Park (1928) 292 Pa. 200, 140 A. 877, 57 A. L. R. 253; Sou. Bldg. & Loan Ass’n v. Lawson (1896) 97 Tenn. 367, 37 S. W. 86, 87, 56 Am. St. Rep. 804; City National Bank v. Pigott (Tex. Civ. App. 1925) 270 S. W. 234; Murphy’s Hotel v. Cuddy’s Adm’r (1919) 124 Va. 207, 97 S. E. 794; Getty v. Hutton (1920) 110 Wash. 124, 188 P. 10; Kranzusch v. Trustee Co. (1916) 93 Wash. 629, 161 P. 492; Dibbert v. Metropolitan Inv. Co. (1914) 158 Wis. 69, 147 N. W. 3, 148 N. W. 1095, L. R. A. 1915D, 305, Ann. Cas. 1916E, 924.

We are also told that, by its decision in Ross v. Sisters of Charity, 141 La. 601, 75 So. 425, L. R. A. 1917F, 260, our Supreme Court has placed Louisiana among those states in which the liability of a building owner, whose building contains elevators, is, with reference to the operation, maintenance, and equipment of the elevators, bound to exercise the highest degree of care commensurate with the character and mode of conveyance.

Counsel for exceptors, on the other hand, seek to "persuade us that no such extreme care should be required of an owner of property merely because his property contains an elevator; that although his building does contain such a mechanical contrivance, nevertheless he remains merely an owner of property and his duty is fully Complied with if he uses reasonable care in the maintenance, equipment, and operation of his elevator, and we are told that the following authorities, equally prominent, support this view: Griffen v. Manice, 166 N. Y. 188, 59 N. E. 925, 928, 52 L. R. A. 922, 82 Am. St. Rep. 630; Hubener v. Heide, 62 App. Div. 368, 70 N. Y. S. 1115; Seaver v. Bradley, 179 Mass. 329, 60 N. E. 795, 88 Am. St. Rep. 384; Draper v. Cotting et al., 231 Mass. 51, 120 N. E. 365; Hill v. Winsor, 118 Mass. 251; Getty v. Hutton, 110 Wash. 124, 188 P. 10; Burgess v. Stowe, 134 Mich. 204, 96 N. W. 29.

A perusal of the many cases to which we have been referred shows that there are undoubtedly two well-defined views of the measure of duty owed to tenants and to the public by owners of buildings containing elevators. According to one view, as we have said, the duty is of the same high degree as that owed by a common carrier, which duty, as stated in Julien v. Captain & Owners of Steamer Wade Hampton, 27 La. Ann. 377, is as follows:

“ ‘Common carriers are bound to carry their passengers safely and securely, and to use the utmost care and .skill in the performance of their duties.’ Angelí on Carriers, p. 568. ‘And, of course, they are responsible for any, eve*i the slightest, neglect.’ 2 Greenleaf Ev. 221. ‘The burden of proof is on the defendants to establish that there has been no disregard whatever of their duties, and that the damage has resulted from a cause which human care and foresight could not prevent.’ ”

The other view—and this one counsel for exceptors contend is the sound one— is that the duty is as expressed in the opinion in Griffen v. Manice, supra:

“I think sufficient security is afforded the public when owners or occupants of a building are required to use reasonable care in the character of the appliance they provide, and in its maintenance and operation.”

Whatever may be the measure of duty properly to be required of an owner and operator of building elevators, whether it be to use the highest care or to use only reasonable care we find ourselves unable to determine whether gates such as are demanded by plaintiff have come into such general use, or have proven themselves of sufficient benefit to warrant us in saying that either standard of care would demand their installation.

Our inability in this regard results from the fact that the matter is now before us on exceptions of no cause of action and that, hence, we have before us no evidence to assist in arriving at a conclusion with regard to how universal is the use of such gates, nor as to whether, among the well-informed in such matters, it is agreed that such gates afford sufficient additional protection to justify their presence, even .if the elevator owner be held only bound to furnish reasonably safe and adequate equipment.

Our own observation, to some extent, keeps us informed as to what changes and improvements are being constantly brought about in every day life and in commonplace machinery with which we are constantly coming ill to contact; but it would be going too far to ask us to take judicial notice of the fact that such equipment as it is suggested should have been installed either is or is not in general use, or is or is not considered necessary, and we find ourselves unable to determine without the assistance of evidence, whether even reasonable prudence requires the adoption of such doors as are here demanded.

The fact that plaintiff has alleged that the elevator owner must exercise the highest degree of care, being a conclusion of law, does not, even on consideration of an exception of no cause of action, make it incumbent upon us to acept as correct that legal proposition, but the allegation that defendant has failed “to equip said elevator car with the protection and modern equipment with which present day elevators should be equipped” makes it necessary that we be informed on the subject of the usual equipment of modern elevators and with regard to the equipment of the elevator in question. We therefore feel that in view of the allegations of the petition which, so far as they charge facts, must be accepted as true, the exception is not well founded and should have been overruled.

Counsel for exceptors urge us to pass on all contentions raised by the exceptions, and they suggest that, even if we come to the conclusion that a cause of action is present under the allegations of the petition with regard to the absence of the inside door—to which conclusion we have come—still, if we believe that the allegations with reference to the charge that the operator was negligent in throwing the lighted box of matches, even if true, do not set forth a state of facts under which liability on that ground could be fixed upon the defendants, then we should maintain the exception in so far as that charge of negligence is concerned.

There has been called to our attention no authority which- would justify us in-taking such action. Since, on one charge of negligence a cause of action seems to be stated in. the petition, we feel that the entire case should be sent to the district court for trial. Legier v. Braughn, 123 La. 463, 49 So. 22; Bank v. Bank, 50 La. Ann. 528, 24 So. 14. The district court may then exclude such evidence as mqy seem to it to support charges which would not justify recovery, even if true.

The judgment appealed from is annulled, avoided, and reversed, the exceptions of no cause of action are overruled, and the matter is remanded to the civil district court for the parish of Orleans for further proceedings according to law and not inconsistent with the views herein expressed, costs of this appeal to be borne by appellee; all other costs to await final judgment.

JANVIER, J., concurs in the decree.


author: JANVIER, J. JANVIER, J.

text:
    No. 13,564
    Orleans
    WEATHERSBY v. HOGSETT
    (December 15, 1930. Opinion and Decree.)
    (March -2, 1931. Opinion and Decree on Rehearing.)
    (March 22, 1931. Rehearing Refused.)
    (April 28, „1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Legier, McEnerny & Waguespack, of New Orleans, attorneys for plaintiff, appellant.
    John R. Upton,, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

By this petitory action Weathersby seeks to. compel Hogsett to vacate a small irregular strip of land adjacent to the boundary between the ¡property of plaintiff and that of defendant. Weathersby claiming that a proper placing of the boundary line would put the strip of land which is in dispute on his side, and Hogsett contending that the boundary should be fixed where the fences now are, so as to allow the disputed strip to remain on his side. Hogsett also pleads the ten-year prescription under color of title.

We find that the various surveyors differ from one another in their respective locations of the boundary line, but, regardless of the slight difference among them, it is quite evident here, as it was in Provosty v. Clark, 11 La. App. 147, 119 So. 763, that a proper fixing of that dividing line depends almost entirely on a proper location of the corner of Eleonore and Pitt streets, on which corner Weathersby’s property is situated.

Weathersby owns the lower, river side corner of Pitt and Eleonore streets and, according to his title, he should have a portion of land sixty feet front on Pitt street by sixty feet in depth and front on Eleonore street, all between parallel lines.

• Hogsett owns the property adjoining, on Eleonore street, that of Weathersby and measuring, according to the titles, sixty feet front on Eleonore street by a depth between parallel lines of sixty feet.

There is no dispute over the fact that Hogsett is now occupying more than sixty feet front on Eleonore street and that the property which is now inclosed between his fences is a little more, than sixty feet in width.

It is equally true that Weathersby is also at present using a frontage just a little greater than sixty feet and that at all points the property actually in use by him is wider than his title recites it should be. The surveyors produced as experts by Weathersby, however, state that, were he to recede from his present line along Pitt street to the correct property line, he would then have a front and width on Eleonore street of less than his allotted sixty feet. In other words, they state that the only reason both he and Hogsett are now using more than their allotted frontages on Eleonore street is that he (Weathersby) has extended his flower bed beyond the correct property line of Eleonore street.

In situations of this kind, it is, as we have said, imperative that the correct property line corner of the square be first located, as, from that point, we must start in fixing boundary lines between those owning properties in the square under consideration, and, as we said in Provosty v. Clark, supra, it is proper to fix such corners with respect to actual existing conditions, rather than with respect to what may have been intended as ideal on plans which were never actually carried out.

Therefore we are of the opinion that if the Pitt street property line, as actually occupied by Weathersby, could be said to be a true line in actual use all along that street, or along a substantial portion of it, we would have no hesitancy in adopting it as correct on that side of the square, though it would result in permitting the square to remain a little larger than the original surveyors intended when they laid out that portion of the city.

But reference to the sketches and surveys shows that that line has not been adopted by other property owners as the property line boundaries of their respective holdings. For instance, just in the rear of Weathersby’s property is a large wall of an adjoining owner. This wall does not follow the continuation of the property line as now occupied by Weathersby, but extends considerably more into the sidewalk. This is shown hy the surveyors who testifield for Hogsett, as well as those who testified for Weathersby, and if w6 use the large sketch of Ricketts, a surveyor largely relied on by Hogsett and a man of proven ability and experience, we find that that same line, if extended across into the square between Nashville and Arabella streets, and further still into the square of Arabella and Joseph streets, will be located far inside the property actually occupied by owners in those squares. This convinces us that the corner in dispute should be located in accordance with the method approved by us in Provosty v. Clark; that is to say, with reference to the width which was originally intended to be occupied on Pitt street between property lines on the two sides thereof. This will place the corner as contended for by Weathersby and will require the removal of the encroachments of Hogsett, but will, nevertheless, leave each the full width to which he is entitled.

The plea of prescription of ten years is not well founded. Since we have reached the conclusion that defendant’s title does not include the narrow, irregular strip of land in question, it cannot be said that that strip has been occupied for ten years under color of title. Nor has the failure for ten years of Weathersby and his ancestors in title to object to the line as located estopped Weathersby to now complain, since it is evident that he did not know that there was an encroachment, and therefore his acquiescence in the line as it existed was not active, but merely passive. In Blanchard v. Monrose, 12 La. App. 503, 125 So. 891, 893, we said:

“It seems then that, although the Supreme Court has definitely decided that boundaries may be fixed by mere consent of the parties, and that such consent will form the basis of the prescription of 10 years, such consent must be more than mere passive acquiescence in the construction of a fence and must, in fact, be affirmative recognition of the fence as the boundary line.
“In Barker v. Houssiere-Latreille Oil Co., 160 La. 52, 106 So. 672, we find a case quite similar to that presented here. Plaintiff brought suit to compel the removal of a portion of a brick building which encroached upon his property. The building in question and the encroachment had existed for nearly 20 years. Plaintiff was not aware of the fact that there was an encroachment and, therefore, had passively acquiesced in the maintenance of the building on the line in question. It was contended that this acquiescence formed the basis of a plea of prescription. The court held that the boundary had not been fixed according to law, and that the defendant had not acquired the property by adverse possession of 10 years under survey. Since the Supreme Court in other cases has held that actual survey is not necessary, but that actual consent or active acquiescence may be substituted therefor, we think the result in the Barker case is decisive of the ■ question presented here.
“As the Supreme Court said in Frederick v. Brulard, 6 La. Ann. 382:
“ ‘Under that state of facts, the consent alleged, if it was given, was clearly in error of the rights of the owner of the tract now held by the plaintiff, and would consequently fall within the principle on which it has been held more than once, that a mistake of this kind neither destroyed title nor conferred it.’ ”

Our decision in Blanchard v. Monrose, supra, has received the sanction of the Sdpreme Court, since that 'court refused to grant a writ of review.

It is . therefore ordered,' adjudged, and decreed that the judgment of nonsuit be annulled, avoided, and reversed, and that there now be judgment in favor of plaintiff and against defendant, and plaintiff is now recognized as the owner of the irregular strip of land in question; and defendant, Hogsett, is ordered to cease and desist from occupying same; and defendant, Hogsett, is further ordered to remove, at his expense, the iron fence set in concrete which encroaches on the property of plaintiff eleven inches four lines; and defendant, Hogsett, is commanded to remove, at his expense, the wooden fence which encroaches five inches and four lines; and defendant, Hogsett, is commanded to remove, at his expense, the concrete 'garage which encroaches nine inches two lines. Defendant to pay all costs.

ON REHEARING

JANVIER, J.

It is unnecessary to restate the facts which give rise to this controversy, as they are fully set forth in our original opinion (131 So. 511) in which we reiterated our conclusion reached in Provosty v. Clark, 11 La. App. 147, 119 So. 763, that, in disputes as to boundaries within city squares, it is first necessary to fix the ¡proper boundaries of the square containing the properties involved, and that, in fixing the boundaries of such square, there should be first taken into consideration actual conditions with reference to improvements, paving, et cetera, rather than those theoretical ideas of the original surveyors, which, though' they may have been ideal, were never in fact carried out.

We stated that we could not in this case adopt the views of defendant as to. what are the actual conditions with reference to the boundaries of the square in question, because there seemed to be no clearly defined and universally adhered to property line along the Pitt street side of the square, with which we are now concerned.

A further study of the various plans and sketches submitted and of the testimony of the various surveyors has, however, convinced us that in our original opinion we were in error, and that, if we follow the doctrine announced in Provosty v. Clark, as we believe we should, and fix the Pitt street property boundary of that square in accordance with actual conditions, we must hold that that strip of property in dispute between plaintiff and defendant, and which is now on defendant’s side of the presently existing garage, board fence, iron fence, et cetera, which various improvements constitute the said presently existing boundary, actually belongs to defendant.

That the ideal conditions in that neighborhood were never actually carried out is conclusively shown by the testimony of Eustis, one of the surveyors employed by plaintiff. Mr. Eustis says:

“I have been practicing twenty years now, and not in any case in these twenty years have I ever found the title measurements of these squares to meet the actual physical conditions on the ground as the , City Engineer has laid out these respective streets.”

Mr.'Eustis further testifies:

“I treat each square as a separate and independent unit, and if I can satisfy the titles in that ¡particular square, there is no reason for me to take any of the property out of an adjoining square to satisfy any other square’s title measurements.”

The square in question is surrounded by curbing placed there by the city, and there can be no dispute as to the distance along the Eleonore street side of the square, between the Pitt street curb and the Prytania .street curb, as those curbs actually exist. Assuming that the various surveyors are correct, and that there should be an eight-foot sidewalk both on Pitt street and on Prytania street, we are of the opinion that there would still remain a little more than the three hundred feet necessary to accommodate all the .titles of properties fronting on Eleonore street. In such a situation such small surplus as may exist should be permitted to remain divided among the property owners as it is already divided, unless some part of it is necessary to complete the title measurements of some property owner who may not have all that his title calls for. In the present case, if Weathersby’s property be fixed as commencing eight feet from the curb of Pitt street, he will have a little more frontage on Eleonore street than his title calls for. The same will exist with reference to the Hog-sett property, and no one in the square will be disturbed; whereas, if we hold that the Pitt street side of Weathersby’s property should be moved further away from Pitt street, then presently existing conditions within the square will be disturbed and presently existing conditions along Pitt street, not only in that square, but in other squares, will be theoretically, at least, substantially disturbed.

For these reasons we believe that present conditions should not be interfered with, and that the boundary in dispute should remain as now located, but we are unable to render an absolute judgment for defendant, because the judgment appealed from dismissed the suit only as in case of nonsuit and defendant has not answered the appeal to ask for an absolute dismissal. We can do no more than affirm that judgment.

The decree heretofore rendered by us is recalled and vacated, and the judgment appealed from is affirmed at the cost of appellant.

Original decree recalled and vacated.

Judgment of district court affirmed.


author: WESTERPIELD, J.

text:
    No. 13,503
    Orleans
    LEMIEUX BROS. CO., INC., v. TROPICAL CLOTHING MFG. CO.
    (May 11, 1931. Opinion and Decree.)
    (May 25, 1931. Rehearing Refused.)
    Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff, appellee.
    Isaac S. Heller, Leslie Moses and Leopold Stahl, of New Orleans, attorneys for defendant, appellant.
   WESTERPIELD, J.

This is a suit based upon certain interest coupons aggregating $156.25. The petition alleges that under date of February 15, 1927, defendant mortgaged to the Mortgage & Securities Co. of New Orleans, certain property located in the city of New Orleans, as security for a loan of $65,000, represented by sixty-five promissory notes of $1,000 each, payable to bearer at the office of the Mortgage & Securities Company; that interest on said notes, at the rate of 6% per cent per annum, was represented by 951 interest coupons payable semi-annually on the first day of February and the first day of August of each year; that plaintiff is the owner in due course of five coupons identified with five notes numbered 52, 53, 54, 55 and 56, which coupons were payable August 1, 1929, and áre in the sum of $31.25 each, and, according to their tenor, payable at the office of the Mortgage & Securities Company; that plaintiff presented the coupons at the office of the mortgage company for payment but was unable to collect same.

Defendant answered admitting the execution of the mortgage, the promissory, notes and the coupons but denied liability to plaintiff because it had paid to the mortgage company an amount sufficient to redeem all interest coupons maturing August 1, 1929, including those held by plaintiff, and avers that plaintiff’s failure to collect same was due to his laches in delaying, for more than one week, the presentation of the coupons, the mortgage^ company having gone into the hands of a receiver on August 8, 1929; that the mortgage company was the agent of plaintiff and other holders of said coupons and that payment to the mortgage company under the circumstances amounted to payment to plaintiff.

There w.as judgment below in plaintiff’s favor as prayed for and defendant has appealed.

We are not impressed with the defense of laches. The delay in presenting the coupons dpes not appear extraordinary. Moreover, it has not been established that the coupons would have been paid if presented immediately after their maturity.

The sole question for our consideration is whether the Mortgage and Securities Company, to which corporation defendant paid the sum called for by these interest coupons, was the agent of plaintiff or defendant.

It appears from the record that defendant, the Tropical Clothing Manufacturing Company, applied to the Mortgage & Securities Company for a loan of $65,000. After some discussion concerning the terms of the loan, it was agreed that the mortgage company should receive a commission of $3,250, and on that basis the loan was obtained. The loan was secured by a mortgage upon the property of defendant and divided into sixty-five notes of $1,000 each, to which interest coupons covering the term of the loan were attached. The notes were sold by the mortgage company, and plaintiff became the owner of five of them. As the interest coupons matured, (plaintiff deposited them for collection in its account with the Interstate Trust & Banking Company. The bank, in turn, presented them to the mortgage company for payment which, when made, would be credited to plaintiff’s account. The commission paid the mortgage company was intended to compensate it for “servicing the loan” which the vice-president of that corporation explained meant acting as “paying agent” and supervising the payment of taxes and insurance on the mortgaged property. Much stress is laid upon this, service in an effort to establish agency on behalf of the plaintiff, the idea being that in looking after the payment of the taxes and insurance on the property, important and valuable services were rendered the holders of the mortgage notes. It must be conceded that the mortgagee would be benefited by such service, but it must also be admitted that this service inured to the benefit of the mortgagor, and that, in acting as paying agent of the coupons and mortgage notes, the mortgagor would be the sole beneficiary, since the object of paying the coupons in that manner is plainly one of convenience to the mortgagor.

Able counsel directs our attention to the following authorities: General Convention v. Torkelson, 73 Minn. 401, 76 N. W. 215; Kraus v. Dowell, 119 Wash. 90, 204 P. 795; Wells v. Combs, 205 Ky. 622, 266 S. W. 249; Quinones v. Borras, Munoz & Co. (C. C. A.) 293 F. 390; Hamlin v. Nace, 99 Kan. 286, 161 P. 655, and Sherrill v. Cole, 144 Okla. 301, 291 P. 54. In each of the cases cited, under facts somewhat similar to those obtaining in the instant case, payment to a loan company or a loan broker was held to be payment to the holder of negotiable securities, but we believe that the cases cited may be distinguished upon the facts found. For example, in the case at bar, the mortgagor anticipated the maturity of the notes and coupons and deposited with the mortgage company an amount to take care of the anticipated maturities. The coupons of plaintiff were collected by plaintiff’s bank upon presentation to the Mortgage and Securities Company. The mere fact that they were (payable at the mortgage company is, in our view, insufficient to constitute that company the agent of plaintiff.

In Rowland v. Levy, 14 La. Ann. 223, it was held that:

“Where a negotiable note was made payable at the office of a mercantile firm in New Orleans, and a remittance made by the maker to such firm on account of the note * * * the remittance was not a valid payment qf the note, the firm at whose office the note was payable, not being the agents of the holder.”

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 13,595
    Orleans
    DWYER PIANO CO. v. WHITE
    (May 11, 1931. Opinion and Decree.)
    (May 25, 1931. Rehearing Refused.)

      Haban & Coleman, of New Orleans, attorneys for plaintiff, appellee.
    Woodville & Woodville, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a suit to recover the balance of; the purchase price of a radio. Defendant admits the execution of the agreement and delivery of the machine, but denies liability on the ground that he offered to surrender the radio to plaintiff and forfeit the payments made on account of it as liquidated damages as provided by the contract.

There was judgment in favor of plaintiff as prayed for, and defendant has appealed.

The record shows that defendant purchased a radio and paid $65 on account of it, and then failed to pay any further installments. In response to plaintiff’s written demaná for payment of the installments as they matured, the defendant wrote a letter to plaintiff tendering delivery .of the instrument and consenting to the forfeiture of the amount paid as liquidated damages, claiming to have the right to do so under the expressed provisions of the contract.

The relevant portion of the contract sued upon reads as follows:

“I hereby agree • to purchase from the Dwyer Piano Company a R. C. A. Radiola Style 66 Number 106098 with aerial for which I agree to pay to the said Dwyer Piano Company, its order or assigns, in money of the highest standard, the sum of $269, as follows:
“$-allowance for
“$40.00 cash and $20.00 on the 15th day of each month .following until the entire purchase price is paid, it being understood and agreed that the installments of the purchase price shall bear interest at the rate of six (6%) per cent per annum from date hereof until paid.
“It. is further understood and agreed that in the event of any violation of this agreement or default in the payment of any of the installments as they mature, all the remaining installments shall at once become due and exigible. If claim for any amount due under this contract is placed in the hands of attorney for collection, 15% of the amount thereof shall be added as attorney’s fees whether suit is filed or not.
“I further agree that in the event of any violation of this agreement, or default in the installment payments as they mature, the Dwyer Piano Company, its order or assigns, shall have the right to take possession of the instrument and retain all payments thereon as liquidated damages for breach of this agreement, and as payment for the use of the instrument.’’

Plaintiff contends that the last two paragraphs of the contract are to be construed together, and that the seller has the option to sue for the balance of the purchase price or to repossess the instrument and cause the purchaser to forfeit all payments 'as liquidated damages in the event the purchaser fails to pay as he agreed to do.

Defendant contends that, since the contract does not expressly state that the plaintiff shall have such an option, the second paragraph, of the contract fixes the defendant’s sole liability in case be should fail to pay the installments as they fall due.

Article 1951, Rev. Civ. Code, reads as follows:

“Effective Sense.- — When a clause is suseeptiblé of two interpretations, it may be understood in that in which it may have some effect, rather than in a sense which would render it nugatory.’’

Article 1955, Rev. Civ. Code, provides:

“Comparison of All Clauses. — All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act.”

To accept the interpretation placed by the defendant upon the language contained in the last above quoted paragraph of the contract would be to eliminate the clauses contained in the preceding paragraph of the contract. We are asked to place this interpretation upon the contract by the defendant because it does not contain the words “at the option of the seller” in reference to the clauses in question.

As we view the contract, the two provisions are not inconsistent with each other, and should be construed together so as to give both of them effect. We do not believe that the words “at the option of the seller,” or words of similar import, were indispensable or sacramental, because, taking both clauses of the contract, it would appear to ús that the parties intended that the seller should have the right either to claim the balance of the purchase price or repossess the radio and forfeit the payments as liquidated damages upon the failure of defendant to meet the installments as they matured.

The record shows that the instrument purchased was subject to rapid depreciation and serious ■ damage if a purchaser did not take proper care of it or tinkered with it while it was in his possession. A purchaser who was guilty of carelessness in- operating and preserving a radio,- or who attempted experiments- with its delicate and complicated mechanism, would cause very serious damage to it. To permit him to surrender the radio and forfeit the payments under such circumstances. would be placing the seller at a serious disadvantage. We are assured that the very purpose of placing these provisions in the contract was to protect the seller from damages and loss that may result in such cases. We conclude that the language of the two clauses in- question should be construed together, and that one clause is not exclusive of the other, but that the rights provided in them are to be exercised at .the option of the seller.

Counsel for defendant has directed our attention to the case of Eilers Music House v. Oriental Co., 69 Wash. 618, 125 P. 1023, contending it is in point. While it deals with the same subject-matter as the case before us, it is not applicable. There the court enforced the clause of the con•tract giving the seller the right to repossess the machine and forfeit the payments as. liquidated damages. The language of the contract in that case is not reported, and it is barren of any question concerning whether the seller shall have an option, as in the instant case.

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


text:
    No. 13,632
    Orleans
    LANDRY v. INDEPENDENT NATL. LIFE INS. CO.
    (June 8, 1931. Opinion and Decree.)
    S. S. Goldman, of New Orleans, attorney for plaintiff, appellee.
    Normann, McMahon & Breckwoldt, of New Orleans, attorneys .for defendant, appellant.
   HIGGINS, J.

This is a suit by the beneficiary of a life insurance policy to recover the face value thereof of $105. The company admitted the issuance of the policy, but refused payment on the ground that the policy contained a provision that “benefits will not be paid * * * for death resulting from violation of law * * *” and 'that the assured’s death resulted from such violation of the law.

There was judgment in favor of the plaintiff, and defendant has appealed.

The evidence shows that the assured was employed by a colored chartered social club at night as. a card dealer in poker games. His duties consisted of dealing the cards and handling the poker chips used in playing. It appears that one of thq players was marking the cards and the deceased ordered him to “cash in” his chips, and leave the game, whereupon the player replied, “It looks like you have something against me, as you have been picking on me all night,” and departed from the game. About twenty minutes later he returned and immediately, upon opening the door leading to the card room, fired two shots from a revolver, one of which struck the assured in the body, the latter being still seated at the card table, and the other shot striking another employee. The assured died from the wound. The evidence also shows that the club charged a small fee known as a “cut” for each deal, which was collected by the deceased.

In the argument in this court little attention was paid by counsel for appellee to the question of whether or not the deceased, at the time of his death, was engaged in an illegal occupation; indeed, the point was feebly contested by him, if disputed at all. As a matter of fact we find that the deceased was engaged in a violation of the gambling laws of this state at the time he was shot. Section 8 of article 19 of the Constitution of 1921; section 2 of Act No. 12 of 1870; section 1 of Act No. 192 of 1920; Byrnes v. Richardson, 165 La. 1025, 116 So. 496.

That leaves for consideration .the question of whether the death of the assured resulted from the violation of law in which he was engaged at the time he was shot.

The reason for the insertion in the policy of the provision in question is to except risks sustained by the assured while engaged in a violation of the law, for he is in danger both from those whose duty it is to enforce the law and the class of associates whom he must necessarily encounter in such line of occupation. It is well known that those who earn their living through violations of the law are usually of vicious propensities and quickly resort to violence and are not actuated by the same humanitarian or moral principles possessed by the average law-abiding person. In such cases the risk is considerably more precarious and, hence, the reason for the exclusion.

In dealing with this subject-matter where the assured was killed in a horse race conducted contrary to the law of the state, the Supreme Court of the United States in the case of Travelers’ Insurance Co. v. Seaver, 19 Wall. 531, 541, 22 L. Ed. 155, said:

“* * * The company in protecting themselves against accident or death caused by a violation of law, acted upon a wise and prudent estimate of the dangers to the person generally connected with such violations. And in the class of cases under consideration we have no question that the sum of money often at stake stimulates, to further acts of carelessness in the way of violence, fraud, and a disregard of the rules of fair racing, which increase largely the dangers always attendant on that sport. The class, of men who collect on such occasions, and who often, become the leading parties in the conduct of the affair when large sums of money are wagered, have led to its denunciation by many wise and thoughtful people, and, very surely adds to. the risk of personal injury to the rider or driver. It was against this, general species of danger, attending nearly all infractions of the law, that the company sought to protect itself by the clause of the policy in question, and of this class was the reckless driving of Gilmore.”

In volume 1, Corpus Juris, pp. 457-59, verbo “Accident Insurance,” sec. 145, we find the law on the subject expressed as follows:

“Accident insurance policies usually contain a provision whereby the insurance is not to extend to injuries caused by, or while, or in consequence of, violating the law. In order to bring the injury or death within the terms of this exception there must be a clear violation of some criminal law; and no protection is afforded to the insurer by the fact that when injured or killed he was violating a civil right, a law or ordinance not criminal in its nature, or a rule of morality. In order to relieve the insurer of liability the insured must have been actually engaged in a violation of law at the time of the injury, and the injury or death must be shown to have resulted from the act which is claimed to be unlawful, or at least to have had a causative connection therewith: but it is sufficient that the violation of law is a conditional or remote cause of the injury, and it is not necessary that the offense which the insured was. attempting to commit should he consummated.”

See to the same effect Ruling Case Law, vol. 14, p. 1254, verbo “Insurance,” sec. 432.

The Kansas Supreme Court, in Witt v. Spot Cash Ins. Co., 128 Kan. 155, 276 P. 804, 805, approved the following language as a statement of the doctrine:

“In Bloom v. Franklin Life Ins. Co., 97 Ind. 478, 49 Am. Rep. 469, a similar provision was contained in a life insurance policy. The court said:
“ ‘While the unlawful act of the assured must tend in the natural line of causation to his death, in order to work a forfeiture, it is not necessary that the act shuuld be the direct cause, nor that the precise consequences which actually followed could have been foreseen. It is enough if the act is unlawful in itself, and the consequences flowing from it are such as might have been reasonably expected to happen, for, in such a case the ultimate result is traced back to the original proximate cause.’ ”

In the instant ease the assured was engaged in violating the law at the very moment of his death; there had been a dispute over the game; there had been trouble between the parties prior to the shooting; the ill feeling between the slayer and the deceased was engendered by the game which was being conducted in violation of the law of this state; and the cause of the shooting was the fact that the assured had put his- assailant out of the game for marking cards. It therefore appears to us that the direct, proximate cause of the trouble and the killing arose out of and resulted from the 'assured’s violation of law. Standard Life & Accident Ins. Co. v. Fraser, 22 C. C. A. 499, 76 F. 705; Kneedler v. Bankers’ Accident Association, 188 Ill. App. 293.

Counsel for the appellee has cited the case of Grose v. Liberty Industrial Life Ins. Co., 6 La. App. 390, as controlling in this matter. In that case the assured provoked a quarrel with his slayer, causing a breach of the peace and assault. After the parties were separated and the assured attempted to peacefully leave the room where the? fight occurred and was in the act of doing so, the slayer fatally stabbed him. The insurance company refused to pay the loss because the assured had lost his life as a result of “injuries received by him while violating the law.” The court said:

* * When Grose was walking towards the door, peacefully, with the idea evidently of getting out of the building, he was acting in obedience and not in contravention or violation of law. It was then he received the injuries of which he soon after died, and he was certainly not ‘violating the law’ at that time so as to operate a forfeiture of his rights as an insured under the stipulation in one of the policies. It is equally certain that when Grose was thus leaving the scene of trouble, that it cannot be said he was showing the slightest disposition to commit a criminal act. It must be noted that the stipulation in the other policy which exempts the defendant from liability, is when death occurs to the insured ‘in consequence of a criminal act.’ As there was no criminal act committed by Grose, the insured, and none intended, it cannot be held that his death was a ‘consequence of any such act.’ ”

The court further said;

“When the combat has been abandoned by the insured, without any further provocation to his adversary than the original assault, and he is killed, this must be considered an independent event produced by the revengeful spirit of the slayer, and' is the proximate cause of death.”

That ease is not in point because the court found as a matter of fact that the assured was not engaged in the violation of a law at the time the injury was received, but here the assured was engaged continuously in the violation of law up to the moment of the killing, because he was acting as dealer and collector for the “house” percentage, or “take out” at the time he was shot.

Finally, diligent and learned counsel for the plaintiff contends that, in order for the defendant to escape liability under the clause in question, the violation of the law must be of such a character as to bring the assured in the danger of losing his life, citing Accident Insurance Co. v. Bennett, 90 Tenn. 256, 16 S. W. 723, 25 Am. St. Rep. 685; Murray v. New York Life Ins. Co., 96 N. Y. 614, 48 Am. Rep. 658; Supreme Lodge Knights of Pythias v. Cren shaw, 129 Ga. 195, 58 S. E. 628, 13 L. R. A. (N. S.) 265, 121 Am. St. Rep. 216, 12 Ann. Gas. 307; Supreme Lodge Knights of Pythias v. Bradley, 73 Ark. 274, 83 S. W. 1055, 67 L. R. A. 770, 108 Am. St. Rep. 38, 3 Ann. Cas. 872.

But we do find as a matter of fact that the assured’s occupation, which; was a violation of the law, brought him into a position of added danger of losing his life and that there was. causal connection between the act which' constituted the violation of law and the death of deceased.

In Murray v. New York Life Ins. Co., supra, the assured and his brother conspired to commit assault upon the person of another. The brother held the party while the assured attempted to assault him. During the scuffle a third person drew a pistol and, when the brother attempted to take it away from him, it was accidentally discharged, resulting in -the death of the assured. The insurance company declined to pay the • claim, contending that the assured had met his death while engaged in a violation of the law. The plaintiff contended that the language only excepted an intentional death resulting from law violation, but not accidental death. The court, in passing upon this issue, said:

“A burglar, who in consequence of a misstep, or to escape detection, falls or jumps from the roof of a house which he is attempting to enter, and is killed, dies in violation of law as plainly as if he had been shot by the owner in defense of his dwelling. In the former as in the latter case, the death results from the criminal act, within the policy, as a natural and reasonable consequence, because, although the immediate cause of the death was the fall, yet the exposure to the danger was encountered in the prosecution of the criminal purpose. * * *
“To exempt the company, must the death result from some peculiar and special risk connected with the commission of crime? It seems to us not, and that it is sufficient to bring a case within the condition, if there is such a relation between the act and the death .that the latter would not' have occurred at the time if the deceased had not been engaged in the violation of law.”

This case would seem to support the defendant’s position.

The case of Supreme Lodge - Knights of Pythias v. Crenshaw, 129 Ga. 195, 58 S. E. 628, 13 L. R. A. (N. S.) 258, 121 Am. St. Rep. 216, 12 Ann. Cas. 307, the assured was killed by an irate husband after an act of adultery with the slayer’s wife. The defense relied upon was the violation of the law clause of the policy sued upon. The court held that, in order for the law clause to apply, the assured must have known that he was in danger of losing his life, because of the violation of the law, and that, where a man commits adultery, he does not necessarily incur the risk of losing his life, for often, even when detected, no violence results. But this case is contrary to .the weight of authority and we decline to follow it. See Bloom v. Franklin Life Ins. Co., 97 Ind. 478, 49 Am. Rep. 469; Flath v. Bankers’ Casualty Co., 49 N. D. 1053, 194 N. W. 739; Travelers’ Insurance Co. v. Seaver, supra; Duran v. Standard Life & Accident Ins. Co., 63 Vt. 437, 22 A. 530, 13 L. R. A. 637, 25 Am. St. Rep. 773; Witt v. Spot Cash Ins. Co., supra; Accident Ins. Co. of N. A. v. Bennett, supra; Murray v. New York Life Ins. Co., supra; 1 C. J. 458; 14 Ruling Case Law, 1254.

For the reasons assigned the judgment appealed from is annulled, avoided, and reversed, and it is now ordered that there be judgment in favor of the defendant, dismissing plaintiff’s suit at her cost.,

JANVIER, J., takes no part.


text:
    No. 13,648
    Orleans
    ANDERSON ET AL. v. BLACHE ET AL.
    (May 11, 1931. Opinion and Decree.)
    (May 25, 1931. Rehearing Refused.)
    Puneky & Barrios, Jas. J. Landry and Ernest J. Robin, of New Orleans, attorneys for plaintiffs, appellees.
    Woodville & Woodville, of New Orleans, attorneys for defendants, appellants.
   HIGGINS, J.

Plaintiffs, Martha Anderson, a prospective purchaser, and George J. Carrere, a real estate broker, bring this action against J. Henry Blache, also a real estate broker, the Union Indemnity Company, as surety on his bond, and Anthony Tusa, the owner of a certain piece of real estate, to recover the sum of $270 deposited by the first named petitioner through the second named petitioner as her agent with the defendant Blache, as real estate broker, and also the additional sum of 10 per cent of the amount sued upon from the Union Indemnity Company as attorney’s fees, under section 1 of Act No. 225 of 1918.

The petition alleges that the contract to purchase the property was subject to a condition that Martha Anderson would be able to obtain, a homestead loan of $2,100 within 90 days, that, notwithstanding repeated applications to obtain such a loan, she was unable to do so, and that the defendant owner, Tusa, was unwilling to transfer the-property thereafter on account of having made extensive repairs to it.

The defendant Tusa denies that he received any portion of the deposit, and that he had any further interest in the subject-matter and asserts that the contract contained a potestative condition and lapsed because of the 90-day elause.

Defendant Union Indemnity Company admittted that it signed the bond of Blache as a real estate broker, but denied liability, and, in effect, amended its answer; it being agreed by all parties that any judgment rendered against the defendant Blache and the .Union Indemnity Company would likewise be rendered in favor of the Union Indemnity Company against Blache.

Defendant Blache filed an exception of vagueness, misjoinder, and nonjoinder of parties, and of no cause of action. The exception was overruled, and he then answered denying liability.

There was judgment in favor of Martha Anderson, plaintiff, as prayed for, and against the defendant Blache and the Union Indemnity Company, in solido, in the sum of $270, together with the additional sum of 10 per cent of the above amount as attorney’s fees against the Union Indemnity Company; reserving to defendant, Blache, his right to file suit for any commission that might be due him; dismissing plaintiff’s suit as against defendant Tusa; and, finally, rendering a decree in favor of the Union Indemnity Company against defendant Blache for the sum of $270 and 10 per cent additional as attorney’s fees, and all costs.

Defendant Blache alone has appealed.

Plaintiff Martha Anderson has answered the appeal and asked that the court grant an additional amount of 10 per cent as damages for frivolous appeal.

The record shows that Tusa was. the owner of certain real estate in the city of New Orleans which the plaintiff Martha Anderson desired to purchase. On July 31, 1929, through George J. Carrere, real estate broker, she made a written offer to buy the property for the sum of $2,700; “this agreement being conditioned on a homestead loan of $2,100.00; it is agreed that loan is to be obtained within 90 days; if not this agreement terminates.” Carrere, on .the same day, called upon the defendant, Blache, also a real estate broker, and submitted a similar offer in writing, signing his name to this offer, as authorized by the purchaser.

On the following day Blache secured the signature of Tusa to the document accepting the offer signed by Carrere. Carrere then deposited with Blache, as real estate broker, .the $270 cash which Martha Anderson had given him for that purpose. The agreement between Carrere, acting for the purchaser, and Tusa, was executed in triplicate; the carbons being given to Carrere and the original remaining in the records of Blache.

Martha Anderson and Carrere then attempted to obtain the necessary loan of $2,100 from several homesteads. Some of the homesteads declined to make the loan and one homestead offered to lend $1,800. Martha Anderson, Carrere, and Blache then tried to effect a second mortgage loan of $300 in order that she might comply with the contract, but they were unsuccessful. The 90-day period terminated without Martha Anderson being able to obtain the necessary loan to carry out the contract. Martha Anderson, Carrere and Tusa then considered the contract terminated, and the two first-named parties requested Blache to return .the deposit. He, however, refused to do so.

Taking up' the exceptions of misjoinder and nonjoinder of parties; we believe that this identical issue was decided adversely to • defendant’s contention in the • case of Maloney v. Aschaffenburg; 143 La. 509, 78 So. 761. The exceptions were therefore properly overruled.

We. believe the exceptions of vagueness and no right or cause of action are without merit, because the petition clearly states a cause of action, based upon Blache’s receipt,, whereby he acknowledged receipt of the deposit, and the • suit is ■ simply for th'e return of the money. .

Counsel for the defendant - argued strenuously that the plaintiff should have founded her suit upon the, contract signed by Carrere and Tusa and. not upon the .receipt and the original written offer by Martha Anderson to Carrere.

The offer signed by Carrere is in the identical language as the offer signed by Martha Anderson. Carrere signed his name as follows:’ “George J. Carrere, authorized by purchaser.” The document also bears the statement that the commission of 4 per cent is to be divided with Carrere, allowing him 2 per pent. This certainly indicated on its very face that Carrere was not acting for himself, but acting, as agent. The testimony further shows clearly that Blache at all times knew that Martha. Anderson was. the party that Carrere represented in the purchase of the property. This is .not even a case of an undisclosed principal. Since Tusa, after the expiration of the 90 days, declared he had no further interest in the contract and as far as he was concerned that it was at an end, the only remaining matter with reference ta the contract that had to be adjusted was. the deposit. Blache admitted that he at all' times had possession of this money, and therefore a suit based upon his receipt for the return of the deposit would not necessarily have to refer to the agreement between Tusa and Carrere, or be founded upon it. If Blache had any defense or reeonventional demand which he thought he. was entitled to, he could have very well presented any such defense or demand in this proceeding, for he knew that Carrere was acting as the agent for his principal, Martha Anderson. The mere fact that Carrere joined Martha Anderson as a co-plaintiff is immaterial, because the prayer of the petition requests that the money be returned to Martha Anderson; Carrere having admitted in the petition that the money belonged to her. Furthermore, the court below reserved to Blache the right to claim any commission that he may have earned as a result of the negotiations and agreement.

It is obvious that the contract terminated on account of the. 90-day time limit. The contract was also clearly unenforceable because it contained a potestative condition. Under the circumstances, plaintiff is entitled to the return of her deposit. Monteleone. v. Blache, 11 La. App. 99, 120 So. 900; Titus v. Cunningham, 7 La. App. 37; Decker v. Renaudin, 10 La. App. 725, 122 So. 600.

The request for damages for frivolous appeal is denied.

For the reasons assigned, the judgment appealed from is affirmed, at appellants’ cost.


author: ELLIOTT, J.

text:
    No. 788
    First Circuit
    GARLAND ET AL. v. COREIL ET AL.
    (May 5, 1931. Opinion and Decree.)
    (June 16, 1931. Rehearing Refused.)
    O. E. Guillory and E. H. Guillory, of Ville Platte, attorneys for plaintiffs, appellants.
    J. H. Dore, of Ville Platte, attorney for defendants, appellees.
   ELLIOTT, J.

R. G. Garland, Ben Brignac, Cynias Veillion, Fred L. Fontenot, Lucius Landreneaux, Mrs. Vandol Ortego, and Clebert Duos, alleging a cause of action against A. Coreil and J. E. Ortego, in solido, under Act No. 250 of 1928, sec. 20, clauses 1, 2 and 3, joined as plaintiffs, in a suit against them, claiming of them, in solido, certain amounts as due them on account of stock subscribed for and issued to them contrary to the law, praying for judgment in favor of each, for the amount of stock wrongfully issued to them under the law. They subsequently set out their cause of action with greater detail by means of an amended and supplemental petition.

Mrs. Vandol Ortego departed this life before the action proceeded further, upon which Vandol Ortego, her husband, was substituted as a party plaintiff in her' place. Defendants A. Coreil and J. E. Ortego excepted to plaintiffs’ demand on the ground that their petition contained a misjoinder of parties plaintiff and showed a nonjoinder of necessary parties defendant. The exception of misjoinder was overruled, that of nonjoinder was sustained, with leave to amend. The plaintiffs have appealed. ■

Defendants answering the appeal pray that the judgment appealed from, to the extent that it overrules their exception of misjoinder, be set aside, ■ and that the exception be now sustained, but that the said judgment, to the extent that the exception of nonjoinder was sustained, be affirmed, and that the appeal be dismissed on the ground that the judgment appealed from is interlocutory. Appellants have not furnished us with a brief in support of their motion and exceptions. The motion to dismiss • is overruled. Reasons for so doing will be ' stated later. The exception of misjoinder was properly overruled. Reardon v. Dickinson, 156 La. 556, 100 So. 715. The exception of nonjoinder should have been overruled. Under the provisions of Act No. 250 of 1928, sec. 20, clauses. 1, 2 and 3, if defendants, after trial, are found to be liable under the act, their liability is joint and several. When debtors are liable jointly and severally, on account of a debt, then, their creditors, to that debt, may apply for payment, through suit, to any they deem proper. It is our understanding that a liability in solido and a joint and several liability is one and the same thing under the Civil Code, arts. 2091, 2094, 2095 et seq. Maxwell v. Gunn, 2 Mart. (N. S.) 140. It may not be worth while for the plaintiffs .to sue anybody, except the two that have been sued. The stock certificates annexed to plaintiffs’ petition do not show that anybody else is liable, but the .trial may show a different state of affairs. In speaking of liability, we have in mind nothing but the exception on which we are acting, at this, time.

As for the motion to dismiss, the judgment sustaining the exception of nonjoinder, with leave to amend, has all the attributes of finality, unless plaintiffs comply with the leave given. A motion for new trial was? overruled. The judgment does plaintiffs an irreparable injury in taking from them their right to proceed as they have elected to do.

For these reasons the judgment appealed from is correct, to the extent that it overrules defendants’ exception of misjoinder, and it is to that extent affirmed. But to the extent ’that the exception of nonjoinder was sustained, with leave to amend, it is annulled, avoided, and set aside. The exception of nonjoinder is overruled, and the case is now remanded to the lower court to be further proceeded with as the law directs.

Appellants to pay the cost of their exceptions in the lower court and the cost of appeal. The other cost to abide the final result of the case.


text:
    No. 803
    First Circuit
    POWELL v. INDUSTRIAL LBR. CO., INC.
    (June 16, 1931. Opinion and Decree.)

      Williams '& Blackshear, of Oakdale, attorneys for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   ELLIOTT, J.

Walter Powell alleges that, while working in the employment of Industrial Lumber Company, Inc., driving a wagon loaded with pulp wood, one of his wagon wheels hit a stump, with the result that he was thrown to the ground, and, while lying thereon, the wheels of the wagon ran over him, injuring his left knee and-breaking three ribs.

The accident occurred on July 23, 1928. He alleges that his right leg has been permanently and totally disabled as a result of his injury; that he is not qualified to perform any labor except manual labor, and, since his injury, he cannot perform labor of any reasonable kind.

He admits payment of compensation on account of his injury from July 3d; but he evidently means from July 23, 1928, the date of his injury, and that weekly payments continued at the rate of $9.75 per week until June 7, 1930, at which time defendant stopped paying.

He claims that defendant should continue paying him compensation, and that there is due him as such on said account a total of $3,090.75. He does not claim this amount weekly, but, taking into account the payments received and the total amount claimed, it indicates that he is claiming compensation at the rate of $9.75 per week for approximately 300 weeks.

In article 4 of his petition he alleges that, when he fell out of the wagon, the injury was to his left knee, but in the next article it is alleged that said injury was to his right leg. The difference in averment is not noticed by defendant. The evidence fails to show that he received injury, resulting from the fall, to his left knee or his right leg.

The defendant admits that plaintiff fell from the wagon and injured his side, and alleges and shows that compensation has been paid during the entire time that plaintiff suffered on account of injury to his side and ribs, but contends that plaintiff suffered no injury, as a result of the fall, to his knee or leg, and that it does not owe him anything on that account.

The lower court held that plaintiff had been fully compensated for the injury to his side, and that the evidence did not show injury to his knee or leg as a result of the fall, and rejected plaintiff’s demand.

Plaintiff has appealed.

Neither the plaintiff nor the defendant has filed a brief in the case.

We do not enter into any discussion of the injury to plaintiff’s side, because his injury in- that respect has been compensated for. The only question is whether plaintiff is entitled to compensation on account of injury to his knee or leg sustained in the way stated in the petition.

After plaintiff had recovered from the injury to his side, he continued to complain of injury to his leg or knee, and defendant kept on • paying compensation for 9 months or more thereafter, but finally, acting on the advice of its physician, it stopped payment.

Plaintiff testifies that the wagon wheel ran over and injured his right knee, and that wood at the same time fell from the wagon and injured his side, breaking three ribs.

A witness, Mr. Smith, evidently without interest in the matter, was. standing close by when the accident happened. He did not see it, but he saw what had taken place, and went immediately, while plaintiff was on the ground, and helped him up. Plaintiff, claiming that he was injured in his shoulder and back, requested to be taken to a doctor, but said nothing about injury to his knee or leg, neither at that time nor. on the trip to see the doctor. Reaching the office of Dr. Mangum he complained of injury to his back and side, but said nothing about injury to his leg or knee, and did not make any complaint to the doctor on this account until a week or ten days later, when he complained that he was suffering from his knee. The doctor then examined his knee and leg, but found no signs of contusion.

Mr. Welsh was standing nearby at the time and saw the accident. ¡Mr. Welsh is in the employ of the defendant, but his testimony seems to have been given freely and without any evidence of bias or influence resulting from his employment. He says, when the wagon struck the stump, plaintiff fell between the double trees, and then out, evidently meaning from the double trees to the ground; that he went immediately to the plaintiff; that plaintiff immediately complained of injury to his side, but not to his knee. Mr. Welsh further testifies that the wagon did not run over plaintiff; that the front wheen ran into, and was stopped ' by, the stump.

Other testimony shows, and the plaintiff admits, that some 10 or 12 years previous to the time in question he received an injury to his right knee while working for another industrial concern which disabled him for a couple of months. He testifies that his. right foot was injured during his boyhood; that the injury caused it to turn a little to one side, with the result ■ that he always afterwards walked with a limp.

The evidence shows that plaintiff suffers some incapacity in'both knees. The physicians who gave their testimony on the subject state that the incapacity could have been caused by a wagon running over his knee; but they incline to the view that the injury was of much longer duration. The preponderance of the opinion evidence on ■the subject would attribute the incapacity to the first injury, received some 10 or 12 years ago. And while a possibility of injury as a result ,of a blow is considered, yet, according to the preponderance of opinion, the incapacity is due to other causes.

In addition to • the testimony of physicians, the record contains direct evidence which tends to show that the incapacity which the plaintiff suffers from his knee has existed for 10 or 12 years, and could not have been caused by a fall from defendant’s wagon on July 23, 1928, as he claims. Then again there is evidence which we see no reason to doubt, which indicates that plaintiff’s injury to his knee is of rheumatic origin, and only incapacitates plaintiff at certain times; because the evidence shows that plaintiff has used his knee, both knees, on occasions since July 23, 1928, in a way not consistent with the incapacity which he claims.

The judgment appealed from is correct.


author: MOUTON, J. LeBLANC, J. MOUTON, J.

text:
    No. 801
    First Circuit
    WEBB v. LARCADE ET AL.
    (May 5, 1931. Opinion and Decree.)
    (June 16, 1931. Rehearing Refused.)
    (July 17, 1931. Writs of Certiorari and Review Refused by’Supreme Court.)
    Medlenka, Bruner & Chambers, of Crowley, attorneys for plaintiff, appellee.
    Chappuis & Chappuis, of Crowley, and A. C. Chappuis, of Rayne, attorneys for defendants, appellants.
   MOUTON, J.

An automobile belonging to plaintiff, Dr. Webb, was seized under a fi. fa., the sale was enjoined by plaintiff, claiming it was exempt from seizure under article 644, C. P.

The exemption was maintained and the injunction perpetuated. Defendants appeal.

Plaintiff is a physician practicing his profession in the town of Rayne and surrounding country.

He testifies that this auto is his only means of transportation, and it is shown by several physicians who testified in the case that, without its use, plaintiff would “starve to death,” as they express it. It is therefore plain that the automobile is necessary for the -exercise of plaintiff’s profession by which he gains his living.

In the case of Hanna v. Bry, 5 La. Ann. 651, 52 Am. Dec. 606, Dr. Hanna’s horse was seized ■ for debt. It was the only horse he had, and which, it was shown, was indispensable in his country practice. It was contended in that case that a doctor’s horse is fairly to be comprehended under the denomination of tools and instruments necessary for the exercise of his profession. The court found that a horse might contribute to the convenient exercise of a physician’s profession, but could not be classified with tools and instruments of his calling which are protected from seizure under article 644 C. P.

It is mainly on the doctrine announced in that decision that defendants rely for a reversal.

In the ease of Prather v. Bobo, Sheriff, 15 La. Ann. 524, to which counsel for defendants refer, the press and materials of Prather, a printer by trade, were seized and the exemption was maintained. In commenting on the issues in that case, the court referred to that part of the decision in Hanna v. Bry, 5 La. Ann. 651, 52 Am. Dec. 606, above cited, where the court said it could not treat as tools and instruments of a physician’s profession things that contribute to its convenient exercise. The court, however, proceeding further in the discussion of that issue, held that the exemption from seizure found its application because the press and materials seized were not merely convenient but necessary to carry on the printer’s trade.

In Schwartz v. Dennis, 138 La. 848, 70 So. 857, Ann. Cas. 1917D, 94, a teamster’s wagon was seized for rent under Civ. Code, art. 2705, which shields from seizure the tools and instruments necessary for the exercise of the trade or profession by which the debtor gains his living. The same exemption is embodied in C. P. art. 644, under discussion.

The court in that case said that, as the two articles related to exemptions, the same words or phrases used in both should receive the same construction. In that case it was shown that the teamster used the wagon seized to haul sand, cement, and bricks for hire, and was the means by which he gained his livelihood. In that case the court held that a wagon used by a teamster in making his living is a “tool or instrument” exempt from seizure.

If a wagon is classified as a tool or instrument, we do not see why an auto should not be placed in the same classification, when the latter is not a mere convenience, but is. necessary to carry on the debtor’s profession or trade.

In the case of Wilbert’s Sons Lumber & Shingle Co. v. Ricard, 167 La. 416, 119 So. 411, ozne of our comparatively recent decisions on the subject under review, a truck in which a farmer transported his slaughtered beeves to market was seized for rent. The court said that the truck was an implement necessary to carry on the particular calling in which he was engaged. In discussing the issue presented, the court recognized the doctrine that exemption laws are in. derogation of the general rule that all of a debtor’s property is the common pledge of his creditors, and must be strictly construed.

These exemption laws, however, says the court, should not be so construed as to destroy their purpose. The court then uses the following language:

“Where the claim to exemption can by a fair and reasonable interpretation be brought within the spirit and purpose of the statute, the exemption sho.uld be allowed.”

In the instant case, we think that the claim for the exemption, by a fair and reasonable interpretation of the statute, brings it within its. spirit and purpose.

In so finding, we do not believe that we have permitted ourselves to slip into such a loose construction of the provisions of the statute which would be objectionable as leading to the emasculation of the rule that all the debtor’s property is the common pledge of his creditors.

LeBLANC, J.

I respect,fully dissent, basing my opinion on the authority as I find it in the case of Hanna v. Bry, 5 La. Ann. 651, 52 Am. Dee. 606, which is cited in the majority opinion. At the time of the decision in that ease, the doctor’s horse oceupied the sdíne relation to his practice that the automobile does to the doctor in this modern day, and I am of the opinion ■that the ruling to the effect that the horse was a mere convenience to the exercise of his profession then, and not a tool or instrument of his calling, applies with equal force to the automobile as used by him today.

ON APPLICATION FOR A REHEARING

MOUTON, J.

Counsel in their application say, that the teamster’s wagon and cattle slaughterer’s truck, referred to in our opinion, were absolutely necessary for the exercise of the trade in which the parties were engaged in, while the auto of Dr. Webb is not engaged in transportation, and if so, only incidentally.

In construing article C. P. 644, we must not overlook the reference therein to the use of the tools or instruments by which, says the article, the party “gains his living.”

Dr. Webb is practicing medicine in Rayne, a small country town. If a horse, buggy or automobile used by him in the exercise of his profession is not protected from seizure, he would necessarily be reduced exclusively to office practice, and to such as he could attend on foot in the town and in the surrounding country.

It is obvious that he could not “gain his living” by such a limited exercise of his profession, and that if we are to give a proper interpretation of that part of the statute, hereinabove referred to, and probably the main purpose for its enactment, we must hold, that the automobile seized in the instant case was not only incidentally necessary, but was absolutely essential for a rational or reasonable exercise of his profession by which he could “gain a living.” It was therefore exempt from seizure.