text:
    No. 609
    First Circuit
    WATKINS COMPANY v. BROWN ET AL.
    (March 5, 1930. Opinion, and Decree.)
    (April 14, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Lindsay McDougall, of Covington, attorney for plaintiff, appellant.
    S. S. Reid, of Amite, attorney for defendant, appellee.
   MOUTON, J.

July 5, 1921, plaintiff company entered into a written contract with Robert Lee Brown, one of the defendants herein, to sell to Brown certain goods or articles during a stipulated period which was to terminate in March, 1922. This contract was signed by Brown as principal and by D. E. Vernon and T. E. Tycer, as sureties.

Under the terms of the contract Brown was restricted in the sale of the articles to be so furnished to the territorial limits of the parish of St. Helena, including its incorporated municipalities. In consideration of the obligations of the plaintiff company to furnish these goods, Brown was required by the conditions of the agreement to make, at least four times a year, a thorough and “personal canvass” of the territory thus assigned, with a proper outfit, at his own expense to sell these goods.

In the latter part of November, 1921, about- four months after the original contract was. executed, Brown was in arrears with plaintiff company for $535.40. On the 1st of December, 1921, another contract was signed by Brown by which the term for the payment of this accrued obligation was extended to March, 1923, with the promise of plaintiff company to furnish the articles he might need to that date. This agreement was also signed by the two same sureties.

It seems that Mr. Brown was doomed to fail in his settlements with plaintiff company, as it appears that again, on November 24, 1923, he signed another contract for $1,321.45, with sureties to obtain a further extension on this indebtedness to the first day of March, 1925, with a continuation of the obligation of plaintiff company to sell the goods to Brown, in accordance with the stipulations of the agreement. This contract'was also signed by two sureties, H. W. Bond and D. E. Vernon.

In the second contract signed December 1, 1921, and the third contract hereinabove mentioned, on which this suit is brought against Brown and his sureties, it was not made a consideration in the agreement that Brown should personally canvass the territory described in an outfit, at ' his own expense, for the sale of the goods in which were included drugs, ointments, nostrums, applications, and such like which formed a' part of the subject-matter of the contract.

In the case of J. R. Watkins, same company, vs. Russell et al., decided by this court in June, 1924, we said, in reference to articles sold, practically of the character as those furnished Brown in this case, as follows:

“They include such articles as cough medicine, herb tablets, liniments, menthalcamphor ointment, blood and skin tonic, laxative wafers, and other preparations intended for the treatment of disease or injury. They were sold to Russell in consideration of his agreement to make a thorough and personal canvass of said territory, at least four times a year, at his own expense, and to provide proper outfit therefor, and to sell such goods or so much thereof as possible. This was an agreement, we said, to become an ‘itinerant vendor’ and it was this agreement which induced the Watkins Company to contract with Russell.”

Leaving out what immediately follows the foregoing, we said:

“If the Watkins Company had sold its medicines directly to the consumers, through Russell as agent, it should have become a party to contracts forbidden by law and therefore unenforceable under the fundamental provisions of the Civil Code. Russell was not agent, however, he was vendee; but he was vendee of medicines under an agreement which bound him to resell them as an itinerant vendor contrary to a statute enacted for the protection of the public health. The general rule applying in such cases is stated in 13 C. J. 424:
“ ‘If an agreement binds the parties or either of them to do, or if the consideration is to do, something opposed to the public policy of the State or nation, it is illegal and absolutely void however solemnly made.’
“The rule is stated in. 6 R. C. L. 704, as follows:
" ‘It appears that all the Courts are agreed that where a statute is enacted to protect the public against fraud or imposition, or to safeguard the public health or morals, a contract in violation thereof is ordinarily void.’
“The Louisiana jurisprudence is uniformly in accord with this rule. A long line of cases cite the Court’s per curiam in Davis vs. Holbrook, 1 Ann. 176, where it is tersely said: ‘A party will not be heard who asks the Court to release him from the consequences of having violated the law.’ ”

Counsel for plaintiff contends that as the obnoxious clause by which Brown, defendant herein, had bound himself to canvass the territory described, in the first contract, is not incorporated in the third contract on which this suit is brought, the case of the Company vs. Russell, above referred to, does not apply.

The first, second, and third contracts were all made for precisely the same purpose, although the clause in question which was inserted in the original agreement was intended to promote the introduction of these medicines in the parish of St. Helena, and with the object in view of increasing the volume of sales. Two officers of plaintiff company, it is true, testified, under commission, that when these contracts were signed that the officers of the company did not know that defendant Brown was not a pharmacist and had no fixed place of business.

In the original agreement to which we have heretofore referred, Brown bound himself to make a thorough and personal canvass of the territory, at least four times a year, at his own expense, with a proper outfit to sell the goods. No one, for a moment, could believe that a pharmacist who might have been located in any of the municipalities of that parish would have bound himself to any such engagement.

Brown says he was recommended as a “country farmer.” No doubt he was, and that the company knew it.

The second and third contracts were a mere continuation of the first, and were permeated with the vice, taint, or virus of the original agreement.

Counsel for plaintiff contends that section 12 of Act 56 of 1914, p. 129 — upon which the judgment in the .Russell - case was grounded — is broader than the title of the act, and therefore unconstitutional. The act is not attacked in the pleadings as being subject to that objection, but we shall however consider its provisions in reference to the point on this issue raised in counsel’s brief.

The act begins by saying: “To regulate the practice of medicine,” etc. Then it proceeds further, and says in its title: “To prevent the practice of medicine, surgery * * * by unauthorized persons.”

Section 12 of the Act says:

“That any itinerant vendor of any drug, nostrum, ointment or application of any kind, intended for the treatment of disease or injury, or who may hy writing, print or other methods, profess to cure or treat disease or deformity hy any drug, nostrum, manipulation, or other expedient in this State, shall if found guilty, be fined * * * or shall be imprisoned,” etc.

Evidently, the object of the act was to regulate the practice of medicine by competent physicians or surgeons, and to prevent its practice by unauthorized or incompetent persons. The attempt made in section 12 to suppress itinerant vendors of drugs, etc., was obviously incorporated in the statute, for the prevention of the practice of medicine by quacks, mountebanks, and such like, unquestionably “unauthorized persons” mentioned in the title of the act. The title of the act is certainly indicative of its object which legitimately takes in the “itinerant vendor” mentioned in section 12; and complies with the requirement of section 16, art. 3, Constitution, 1921.

Counsel contends also that there is no penalty for the mere vending of drugs, ointments, nostrums, etc., imposed by the act. The contention is that the only offense therein denounced is professing to prescribe for or .treat.

The section in question reads:

“That any itinerant vendor of any drug, nostrum, ointment or application of any kind, intended for the treatment of disease or injury, or who may by writing, print or other methods, profess to cure, or treat disease or deformity by any drug, nostrum, manipulation, or other expedient in this State, shall if found guilty, be fined,” etc.

In the above quotation, by stopping at the word “injury” and by lopping off “or who may by writing” down to the word “State,” the following occurs: “Shall if found guilty, be fined,” etc. By so analyzing the section, the vending of drugs by the itinerant vendor is clearly penalized. The words “profess to cure” have reference to those who by writing or print profess to cure not only by the sale of drugs, because that clause of the act says by “manipulation or other expedient,” and also refers. to deformities, all of which cannot apply to the mere vending of drugs and nostrums by the itinerant vendor.

The statute therefore denounces the vending of the drugs or nostrum by itinerant vendors as a crime; also, when by print or writing he professes to cure diseases or deformities by manipulation or other expedient. The penalty is prescribed against the offender who violates the provisions of the act in either of the ways above stated.

The words “profess to cure,” we think, apply also to the mere vending of the drugs. We say this because no sales of the nostrums would be possible, unless the purchaser were promised a cure. Of necessity, such an affirmance by the itinerant vendor must be implied in every sale. The word “profess,” taken in its general sense, means “to acknowledge,” “to avow,” “to affirm.” Every sale must necessarily carry an “avowal” or “affirmance” of the curative virtues of the nostrum. The other part of section 12, which takes in as violators of its provisions “to profess to cure” by print or writing, refers to those who represent themselves as selling the drugs in some professional capacity, and not only as ordinary itinerant vendors.

Article 14, Civ. Code, says that in the application and construction of laws too much attention must not be given to the niceties of grammar rules. Section 12 of the act is not perfect in point of diction or grammatical construction, but, we think, that our interpretation of its provisions carries out the legislative purpose which was to prevent the practice of medicine by the unqualified and the unauthorized. Courts we do not think should be too supercilious in their construction of legislative enactments.

The last contention of counsel is that the statute interferes with interstate commerce, and is therefore void, citing State vs. West, 136 La. 867, 67 So. 934, in support of that contention. In that case the accused bad been prosecuted for having violated the provisions of an ordinance of the board of agriculture and immigration of this state. The court found that the information was in strict conformity to the ■ordinance, but did not charge that the ■citrus imported by the accused were diseased, the only charge being that they were imported. Obviously, the ordinance ■did not come within the proper or legitimate exercise of the police power of the state, and, for that reason was, by the ■court, declared null. In support of its ruling, the court refers to the case of Railroad Company vs. Husen, 95 U. S. 465, 472, 24 L. Ed. 527.

In passing on the issues involved in that case, the Supreme Court of the United States said:

“We unhesitatingly admit that a State may pass sanitary laws, and laws for the protection of life, liberty, health, or property within its borders.”

In the instant case, the statute was enacted for the protection of the public "health” of the state as a police regulation, and is not subject to the objection urged by counsel for plaintiff.

In this suit, as it appeared in the Russel case, there were articles sold to Brown that he could have validly transferred. This is true, but the consideration which he promised was the price and his obligation to sell all the articles, including the medicines or nostrums. The consideration being indivisible, so is the contract as a whole. Civ. Code, arts. 2108, 2109.

We Quote here what is said in Fabacher vs. Bryant, 46 La. Ann. 820, 15 So. 181, 183, as follows:

“It is trite in our jurisprudence that contentions originating in unlawful purposes are not to be brought into courts of justice.”

As we said in the Russell case, all the parties to the illegal transaction are es-topped, and the law leaves them, with their loss or gain, where it finds them.

The sureties have the right to oppose the principal obligation which is the foundation of their liability. Civ. Code, art. 3060. The principal obligation being null, and not enforceable for the reasons stated, Brown and his sureties are not bound for the amount claimed, which was properly rejected by the judgment below, which is affirmed, with costs.

LECHE, J., not participating.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3781
    Second Circuit
    BELL v. MALOUF
    (June 2, 1930. Opinion and Decree.)

      J. B. Dawkins, of Monroe, attorney for plaintiff, appellant.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendant, appellee.
   WEBB, J.

In this cause a motion is made to dismiss the appeal on the ground that the transcript was not filed on or before the return day or within three days thereafter.

The record shows that judgment was rendered on December 14, 1929, and an appeal granted on the same date returnable on January 27, 1930, and that the appeal was perfected by filing a bond on January 7, 1930, but that the transcript was not filed until February 5, 1930. Appellant has not made any opposition to the motion to dismiss, and, in the absence of any showing that the failure to file the transcript in time was not due to the fault of appellant, the appeal must be dismissed. Jacobs vs. Weaver & Rivers, 167 La. 59, 118 So. 692. Also, Girod vs. Monroe Brick Co., 127 La. 328, 53 So. 582; Collins Piano Co. vs. Cospelich, 7 La. App. 277; Cain vs. Stewart, 11 La. App. 283, 123 So. 519.

It is therefore ordered that the appeal be dismissed at appellant’s cost.


author: LeBLANC, J.

text:
    No. 596
    First Circuit
    STATE OF LOUISIANA EX REL. GALASTAS, SHERIFF, AND EX-OFFICIO TAX COLLECTOR v. SHAFFER
    (April 14, 1930. Opinion and Decree.)
    A. J. Finney, of Covington, attorney for plaintiff, appellant.
    Hugh M. Wilkinson, of New Orleans, attorney for defendant, appellee.
   LeBLANC, J.

The sheriff and ex-officio tax collector of the parish of St. Tammany instituted this proceeding by rule to enforce the collection of a license tax from the defendant; Thomas A. Shaffer, based on wliat is alleged to be the gross receipts from the business of operating two ferries, one over that body of water known as the Rigolets, and the other over Chef Menteur.

The defendant, in resisting the rule, denied that he was doing business in the parish of St. Tammany and that he was in any way indebted unto the state of Louisiana. He admitted that during a portion of the year 1928 and a portion of the year 1929 he operated, for the Louisiana highway commission, under a contract with it, the two ferries referred to, and averred that the only compensation he received was from the highway commission, which is a governmental department of the state of Louisiana.

On this issue the rule was tried, and judgment was rendered rejecting the sheriff’s demand and dismissing the defendant in rule.

The defendant’s contract with the highway commission is dated April 11, 1928. It was renewed from time to time as appears by the various contracts themselves which were produced by the plaintiff in rule and annexed to his petition.

We are of the opinion that these contracts and the evidence bear out the defendant’s contention.

It was in pursuance of its policy of establishing free ferries at these points and in accordance with a resolution to that effect, dated April 9, 1928, that the highway commission entered into the contract of April 11, 1928, with the defendant. By the terms of that agreement, defendant bound himself to furnish, maintain, and operate these two ferries, complying with all the requirements of the commission relating to the kind of boats to be used, inspection of same, schedule, etc., for which he was to receive the sum of $8,000 per month. The renewal contracts are the same as the original, except that the consideration was reduced from $8,000 to $7,250 per month. From the defendant’s testimony it seems that the purpose of the agreement was to allow him a sum sufficient to meet all operating costs and expenses, with enough margin for his own salary. Under the amount agreed upon, his salary figured between $350 and $400 monthly.

The amount paid him by the highway commission under his contract, all of which, with the exception of $350 or $400 per month went into the costs of operation, was the only revenue he derived from this business. He did not collect anything whatever from the public. Under the facts as we find them, the only conclusion to be drawn is that the defendant was operating these ferries for the Louisiana highway commission, which it is undisputed is a governmental agency of the state of Louisiana. Its plan to establish free ferries at these crossings was what prompted the commission to make this arrangement to operate them, and in no way, as we see it, can it be said that the defendant was the “owner or lessee of a toll ferry” within the terms of section 25 of Act No. 205 of 1924, as amended by Act No. 241 of 1928, the law under which the tax collector is here endeavoring to make him pay a license tax.

The judgment of the lower court rejecting the demand of the plaintiff in rule is correct, and it is accordingly affirmed.


author: ODOM, J.

text:
    No. 2900
    Second Circuit
    WOODARD v. BROWN, JR.
    (March 24, 1930. Opinion and Decree.)
    (April 10, 1930. Rehearing Refused.)
    W. U. Richardson, of Arcadia, attorney for plaintiff, appellant.
    R. L. Williams, of Arcadia, attorney for defendant, appellee.
   ODOM, J.

In the year 1920, plaintiff delivered to defendant four bales of cotton alleged to be worth $312.75, which cotton plaintiff claims to have been deposited with defendant to be held by him subject' to further orders, and it is claimed that defendant has never accounted for said cotton. The present suit is to recover the value thereof. Defendant admits that he received the cotton, but contends that the same was to be sold by him in due course and the proceeds applied to the payment of an account which plaintiff owed him. The district court rejected plaintiff’s demands, and he has appealed.

The plaintiff, his wife and- son, each testified that the four bales of cotton were delivered to defendant as alleged.. Defendant admits that. The only question, therefore, is whether defendant has properly accounted for the cotton. Plaintiff filed in evidence a document marked “Plaintiff 2” which showed his indebtedness to defendant, who was at that time a credit merchant, in the sum of $402.79, for goods and merchandise. This account shows four credits; one for $60, for hauling oil; one for $95; one for $94.15; and one for $86.50 — these being for the proceeds of cotton. Defendant alleged and testified that, in the fall of 1920, he purchased from plaintiff seven hales of cotton, and that he paid cash for two of them. The $95 credit on the account, he testified, was for one bale of cotton which he received at the same time that he received the two bales for which he paid in cash. The other two credits of $94.15 and $86.50, he testified, were the proceeds of the four hales of cotton which plaintiff is now claiming. According to defendant’s testimony, therefore, he has accounted for the four bales of cotton, or the proceeds thereof, which plaintiff claims. While plaintiff, his wife, and his son each testified that defendant had rendered no accounting for the four bales of cotton in controversy, yet the testimony of defendant and the account filed in evidence by plaintiff show conclusively that plaintiff has received full credit for the proceeds of the cotton. Plaintiff testified that he had sold three bales of cotton to defendant, but did not say whether he received cash or credit on his account for the proceeds of them, although his son testified that they were turned over on his father’s account. But defendant testified positively that he had paid cash for two of the bales, and plaintiff, after hearing this testimony, was not called in rebuttal, and did not deny defendant’s testimony to this effect.

Our conclusion is that the district judge made no error in his finding that defendant had accounted for the cotton in controversy, and the judgment appealed from is accordingly affirmed, with costs in both courts.


author: ELLIOTT, J.

text:
    No. 527
    First Circuit
    HANNAGRIFF & EDMONDSON v. BOYET
    (April 14, 1930. Opinion and Decree.)
    B. D. Talley, of Bogalusa, attorney for plaintiff, appellee.
    Ott & Rich, of Bogalusa, attorneys for defendant, appellant.
   ELLIOTT, J.

Hannagriff & Edmondson claim of J. A. Boyet $153.95, alleging that it is due them by the defendant for having rebuilt for him an automobile engine at his request; that plaintiff furnished the parts and did the work agreed upon, but defendant refuses to pay the bill.

Defendant admits that plaintiffs were employed as alleged, but that the amount for the work was not to exceed $125, and that plaintiffs were to put in the engine all the new parts. That plaintiff instead put in secondhand parts. That, having been rebuilt with secondhand parts, the engine cannot be safely used for the purpose for which it was intended to be used; that he therefore refused to accept it, and was justified in refusing to pay the bill.

The evidence as to what the agreement was on the subject of parts is conflicting. Plaintiff testifies that he used secondhand connecting' rods; that, defendant agreed that this be done; that the rods used were as good as new.

Defendant testifies, and is supported in his testimony by his son and another witness, that only new parts were to be put in, and denies that he agreed with plaintiff that secondhand connecting rods might he .used. Defendant urges that the preponderance of the testimony supports the contention of the defendant; that putting in secondhand connecting rods was in violation of the agreement.

The evidence shows that connecting rods were the only secondhand parts used, and that they were as good as new ones. All of the other parts used in rebuilding the engine were new parts. It further appears that defendant knew before the work was completed that secondhand connecting rods had been, or would be, put in, but he made no complaint to the plaintiff. He says he went to the shop for the purpose of complaining, but never could find the plaintiffs there. We think if defendant had really desired to find the plaintiffs so as to complain to them that they were violating the agreement by using secondhand connecting rods, that he could and would have done it. No complaint reached plaintiffs until they had finished the work and presented their bill. This tends to indicate that there had been an arrangement between the plaintiffs and defendant that secondhand connecting rods might be used, as claimed by the plaintiff.

The trial court rendered judgment in favor of the- plaintiffs for $125, giving reasons for so doing. The evidence does not satisfy us that he erred.

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

LECHE, J., not participating.


text:
    No. 608
    First Circuit
    CALLAGHAN v. NATALBANY LBR. CO.
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930. Rehearing Refused.)

      Benton & Benton, of Baton Rouge, attorneys for plaintiff, appellant.
    Kemp & Buck, of Amite, attorneys for defendant, appellee.
   ELLIOTT, J.

Defendant and appellee moves to dismiss the appeal herein on the ground that more .than a year elapsed after the judgment was rendered and signed before it was taken.

The record shows that the judgment was read and signed in open court on September 20, 1927. But it also shows that the court, acting on a motion for new trial, overruled the motion by judgment read and signed in open court on October 21, 1929. The judgment did not become final until then.

The appellee urges in his brief that there was no motion’ for a new trial filed in the case which could have been acted on by the lower court. There is no motion for a new trial in the record, and the minutes of the lower court do not show that any was filed, but the declaration contained in the judgment of October 21, 1929, is conclusive that one had been filed. The appeal was timely taken. The motion to dismiss is overruled.

John M. Callaghan alleges that he is the owner of a certain tract of timbered land situated in the parish of Livingston; that Natalbany Lumber Company is engaged in the purchase of timber and the manufacture of same into lumber. That S. H. Sharp and L. T. Smythe were agents of defendant, and authorized to make contracts for the purchase of timber in behalf of defendant; that said Sharp, and, after him, said Smythe, entered into a contract with plaintiff to buy his timber for $1,000 cash; and then, after he had undergone, at defendant’s request, the expense of making an abstract of his title and having his land located and surveyed, the said defendant declined to consummate the sale. He sues to compel defendant to comply with the contract, take title to his timber, and pay him for it. In the alternative, he prays that defendant be required to refund him the sum expended in the way mentioned, at defendant’s request. An item of $215 claimed in his petition on account of loss by fire was abandoned.

The defendant, after excepting to plaintiff’s petition on the ground that it was vague and set forth no right or cause of action, filed an answer, in which it denies that it bought plaintiff’s timber, alleges that it is under no obligation to plaintiff to take his timber, and denies plaintiff’s alleged ownership of the timber.

The plaintiff offered parol evidence in support of his averments that Sharp and Smythe were agents of the defendant, and as such had bought his timber; and that defendant had adopted their action and approved the purchase. Defendant objected to this evidence on the ground that it was not admissible to prove agency to buy standing timber. The lower court overruled the objection and heard the evidence. Defendant urges that it should have been sustained.

No written power of attorney was given by the defendant to Sharp and Smythe authorizing them or either of them to buy standing timber for the defendant. All that they were authorized or empowered to do was to find timber and negotiate with the owners for its purchase, ascertain the price, etc., and refer the matter to defendant’s general manager, Mr. F. W. Reimers, for final action. Mr. Reimers alone had power to conclude the deal, “if it be necessary” for an agent to “do any other act of ownership, the power must be express.” Civil Code, art. 2996. The power must be express and special “to sell or to buy.” Civil Code, art. 2997. Sharp and Smythe had no such power.

The evidence consists in part of letters written plaintiff and defendant, and to H. K. Strickland, defendant’s attorney, by Sharp and Thames and Smythe. In a letter of August 23, 1923, Sharp wrote to plaintiff that he would take his timber for $1,000, but he requests plaintiff to send him an abstract, and further says: “Just as soon as my client examines the abstract of this and is satisfied with your title, we will be ready to take deed. Let me hear from you at once.”

Parol evidence was admissible to show that Sharp, in speaking of his “client,” had reference to defendant, and the evidence shows that it was the defendant to whom he referred. We think the court properly heard the evidence on the subject, and it seems to have been properly-applied. The evidence shows, however, that Reimers alone had authority to close a contract, and that, until he had examined a proposition and approved of it, the defendant was not bound. The reservation made in the letter mentioned, that plaintiff’s title must be satisfactory to defendant, defeated the sale, because, when the abstract was submitted to Reimers, he and Mr. Thames, who assisted in the examination of titles, became suspicious that the timber which was supposed to be on plaintiff’s land, and which was the basis and foundation of Sharp’s offer in his letter of August 23, 1923, was as a matter of fact, not on plaintiff’s land, but on adjoining lands and belonged to other owners.

Defendant, in order to find out definitely, requested plaintiff to have his land surveyed. The survey was made, and confirmed the fact that the greater part of the timber which Mr. Sharp, in making his offer of $1,000, had supposed was on plaintiff’s *and, was not in fact on his land, but on adjoining lands belonging to other owners. Upon learning this fact, Mr. Rei mers refused to carry out the deal, on the ground that defendant was not getting the timber which the $1,000 was to pay for. Plaintiff contends that defendant had gone so far with the matter that it could not refuse to consummate the sale. But we do not think so. Code Prac. art. 20; Civ. Code, art. 1882.

Mr. R'eimers, upon discovering that defendant would not get the timber which was the basis of its offer of $1,000 cash, had the right to refuse to consummate the sale. In the letter making the offer, it was stipulated that plaintiff’s title, and by title was meant the timber, must be satisfactory to defendant, and it was not satisfactory.

Plaintiff contends that error and mistake in that matter is not urged in defendant’s answer, and that it therefore is not entitled to be released from its offer on that account. The plaintiff alleges that he is the owner of the land on which the timber was situated, and ownership of the land meaas ownership of the timber, and the timber was the basis of the offer in question.

Defendant denied that plaintiff owned the land, which in effect was a denial that he owned the timber which was the object of the contract. This denial put at issue plaintiff’s ownership of the timber on account of which he sues to compel a sale, and, as heretofore stated, the evidence is to the effect that plaintiff does not own the greater part of the timber which is the basis of his demand for a specific performance. Plaintiff’s demand for a specific performance was properly refused. The plaintiff urges in his petition as alternative, demand for expenses. The lower court rejected this demand.

We think plaintiff is entitled to reimbursement for his expenses. The evidence shows that defendant made the mistake about plaintiff’s timber, and that plaintiff did not contribute to it in any way. The plaintiff knew he owned 100 acres of land, but it' had never been surveyed, and he did not know that the timber defendant had in mind was not on his land until it was disclosed by a survey.

Defendant, working through agents, found desirable timber, and, supposing it to be on plaintiff’s land offered him $1,000 for it. Defendant requested him to have an abstract of his title made, which he did, at an expense of $25. The abstract did not make clear to whom the timber that defendant had in mind belonged, so defendant then requested plaintiff to have his land surveyed, which plaintiff did at an expense of $50.

Plaintiff’s land was described by boundaries. It became necessary to point the boundary lines out to the surveyor in order to enable the survey to be made. This cost plaintiff $20; making in all $95 expended by him, which he would not have done had he not been requested by defendant to do the things which required the outlay.

For these reasons, the judgment appealed from, to the extent that it refused to compel defendant to take title to plaintiff’s timber on the tract of land in question and pay him $1,000 cash therefor, is correct, and it is affirmed. But to the extent that it denies plaintiff relief under his demand in reconvention it is in error. The judgment appealed from is, in that respect, annulled and set aside, and it is ordered and decreed that plaintiff, John M. Callaghan, have and recover of the defendant Natalbany Lumber Company, Limited, $95, with 5 per cent per annum interest thereon from November 6, 1924, until paid. And, defendant’s mistake having caused this suit, it is ordered that the defendant and appellee pay the cost in both, courts.

LECHE, J., not participating.


author: HIGGINS, J.

text:
    No. 12,080
    Orleans
    HANDY v. N. O. PUBLIC SERVICE, INC.
    (April 21, 1930. Opinion and Decree.)
    John J. Wingrave, of New Orleans, attorney for plaintiff, appellant.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

Plaintiff sues defendant as a carrier of passengers for damages for personal injuries alleged to have been sustained while alighting from a street car of defendant company at the corner of Washington and Preret streets in the city of New Orleans on July 18, 1928, at 11 o’clock a. m. The charge of negligence against the defendant company is that, as the plaintiff was attempting to alight from the car, it prematurely started, causing her to fall to the ground.

Defendant denied that it was in any way guilty of negligence and avers that the plaintiff fell, after the car had properly stopped, as a result of stumbling or tripping over the foot of her companion while descending from the step of the car.

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

The defendant clearly proved by a preponderance of the evidence that the plaintiff fell as the result of stumbling or tripping over the foot of her companion while descending from the step of the car, and not because of the premature starting of the car. Defendant having shown that it was free from fault or negligence, there can be no liability.

Plaintiff contends that the lower court erred in refusing to grant her a new trial upon the grounds of newly discovered evidence. In support of this motion for a new trial, affidavits of two witnesses were attached to the effect that the conductor rang the car bell, as a signal for it to start, before the plaintiff could safely alight, and, as a result of the premature starting, she was thrown to the ground. There is no reason assigned why these witnesses were not discovered until after the judgment was rendered. The accident happened July 18, 1928, suit was filed on September 13, 1928, and judgment was rendered on March 12, 1929, and motion for a new trial was filed March 15, 1929, and rule to show cause why a new trial should not be granted was tried on March 22, 1929, and a new trial refused on May 13, 1929. It appears that the witnesses lived in the immediate neighborhood of the accident, and we have no doubt that, had due diligence been exercised, these witnesses could have been produced at the original trial. It further appears that the evidence is merely cumulative. In the case of Teutonia Bank & Trust Co. vs. Heaslip, 138 La. 860, 867, 70 So. 861, 863, the Supreme Court said:

“The ruling on the motion for a new trial, based on newly discovered evidence, will not be disturbed. The evidence was merely cumulative; and it was discretionary with the trial judge to grant or refuse the motion. No error or arbitrariness in the rulings of the judge is disclosed in the record.”

See, also, Muller vs. Hoth, 105 La. 246, 29 So. 709; Sorrel vs. St. Julien, 4 Mart. (O. S.) 508; Roberts vs. Rodes, 3 Mart. (N. S.) 100; Toulman vs. Elliott, 15 La. 266; Miles vs. Craig, 6 La. Ann. 753; Andre vs. Bienvenu, 1 Mart. (O. S.) 148; Linton vs. Stanton, 4 La. Ann. 401.

The record shows that the judge a quo was correct in refusing the new trial.

For the reasons assigned, the judgment is affirmed.


author: JANVIER, J.

text:
    No. 12,015
    Orleans
    GRAND LODGE K. P. OF LOUISIANA, JURISDICTION OF THE SUPREME LODGE, KNIGHTS OF PYTHIAS OF NORTH AMERICA, SOUTH AMERICA, EUROPE, ASIA, AFRICA AND AUSTRALIA v. THOMSON AND BROS., LTD.
    (March 24, 1930. Opinion and Decree.)
    (April 7, 1930. Rehearing Refused.)

      Frank B. Smith, of New Orleans, attorney for plaintiff, appellant.
    McCloskey & Benedict, W. Sommer Benedict, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Plaintiff is the owner of certain real estate situated at the corner of Gravier and Saratoga streets, on which, during the year 1909, it erected an office building of some nine or ten stories.

Defendant owns the adjoining property fronting on Gravier street, and has constructed a five-story concrete garage building thereon.

Plaintiff, which, on account of its lengthy' and geographically comprehensive name, we shall hereafter call the Pythians, contends that, when defendant, which corporation we shall hereafter call Thomson Bros., erected the garage building, they, Thomson Bros., made use of a certain portion of the wall of the building of the Pythians, and thus made the portion so used a common wall, with the result that Thomson Bros, is liable to the Pythians for one-half the value of the portion of the wall so used. It is agreed that the portion of the wall used is worth the sum of $1,115.26, and that, if there is any liability in Thomson Bros., the amount thereof is $557.63, or one-half the total value of the wall, but Thomson Bros, maintain that nothing is due, because the wall is not being used within the contemplation of article 675 et seq. of the Civil Code, and because they were not benefited by the fact that the wall was already in existence, but were, on the contrary, as a result of the wall, put to considerable additional expense in the construction of their building.

It is admitted that the wall of the Pythian Temple “straddles’’ the property line, and, in fact, extends over on the property of Thomson Bros, approximately nine inches, as is permitted under article 675 of the Civil Code. It therefore follows that, when Thomson Bros, erected their building, they had the legal right to the use of the wall and, upon paying one-half the value thereof to the Pythians, had the wall been sufficiently strong, could have used it as the support for one side of their garage building.

But the evidence, which is not in dispute, shows that the wall of the Pythian Temple, though that building; was some nine or ten stories in height, was not of sufficient strength to also support the side of the building which Thomson Bros, contemplated, though their plans called for a structure of only five stories. It thus appears that, had Thomson Bros, desired to exercise their legal right to the common wall in question, they could not have done so due to its inherent inability to withstand the additional weight. In this situation their architect and their structural steel expert evolved a plan by which they might employ cantilever construction, which would render it unnecessary to support any part of their structure on or in the wall of the Pythian Temple.

This scheme was adopted and the building was erected, but the evidence, without contradiction, shows that, by reason of the fact that the above-referred to plan of cantilever construction had to be adopted, the building cost Thomson Bros, some $1,500 more than it would have cost to erect the entire structure had the wall of the Pythian Temple not been in the way.

The wall of the Pythian Temple, which is the one it is now contended is a common wall, was not made use of in any way whatever as a support for any part of the building, but it did form, and now forms, the side inclosure of the structure of Thomson Bros. It does not support any part thereof, nor is any part of the Thomson Bros, building connected therewith.

Under these circumstances, Thomson Bros, refused to pay for one-half the wall, as they contend that, not only have they lost some nine inches of their land, but they have been forced to spend in the erection of their building $1,500 more than would have been necessary had there been no wall already in existence. They also contend strenuously that they are not using the wall within the contemplation of the articles of the Code, and therefore should not be required to pay for any part of it.

The contention that the wall is not being used because no part of their building rests upon it seems, however, to have been answered by this court in Canal-Villere Realty Co. vs. Gumble Realty & Securities Co., 1 La. App. 123. The facts of that case appear to be so nearly like those presented here that it is indeed difficult to find a . distinction. A careful examination, however, discloses two points, one of which, in our judgment, distinguishes the cases, and the other of which may form a basis of differentiation.

The distinction which we think is plain is that, in the Canal-Villere case, the defendants, who used the wall which had been erected by the other parties, did so voluntarily, and were benefited thereby, while here, not only was no benefit received, but an actual additional expense, or loss, was necessarily incurred, and defendants would have preferred not using the wall at all. The point which we think may possibly form the basis for a differentiation of the Canal-Villere case from the case now before us is that, in the Canal-Villere case, the roof of the building erected by the defendants was “flashed” into the wall of plaintiff’s and was “tied” into the front and rear ends of plaintiff’s building. It is true that, in that case, we held squarely that it was not necessary that the wall in question should support in any way the building of defendants and that the mere use of it as an inclosure was sufficient to render the user liable for his half of what, by such use, was made the common wall, but, as we have stated, the facts of that case did not necessarily require so broad a statement. As we read that decision, it was based largely on seven earlier decisions of the courts of this state, and an analysis of those seven decisions indicates that they do not necessarily require so broad a doctrine as was announced in the Canal-Villere case. For instance, in Graihle vs. Hown, 1 La. Ann. 140, it appeared that the defendant “used the wall * * * for the support of his roof, floors and walls.” Of course, under that situation the defendant was liable for his half of the common wall. There was no question as to the obligation to pay for half of the wall. That this obligation existed was conceded. The dispute arose over whether the value should be determined as of the time of the construction of the second building, át which time the joint use of the wall commenced, or as of the time of the original construction.

In Murrell vs. Fowler et al., 3 La. Ann. 165, the question of how much use is necessary to render a wall a common one was not involved. The two properties in question had been owned by one owner, and it was contended that there had been thus established by the original proprietor by destination, which destination is known as the “Destination du pere de famille,” a common wall in favor of both estates, and that under such circumstances one owner could not thereafter charge the other for the use thereof.

In Davis vs. Grailhe, 14 La. Ann. 338, the opinion does not show just what use was made of the wall, but raises a very strong presumption that it was used to actually support the house. It states that the defendant built his house and used the wall in common.

In Auch vs. Lahouisse et al., 20 La. Ann. 553, the building rested on the partition wall, so that the question of how much or how little use was necessary to render a wall a common one was not presented, and the only issue involved was whether the owner, who leases his land, is liable for half of the wall erected by his neighbor, and used as a common wall by his tenant. There was also involved in that case the question of whether the value of the wall should be determined as of the date of the commencement of the joint use, or of the date of original construction.

In Florance vs. Maillot et al., 22 La. Ann. 114, the extent of the use was not in dispute, and the only question at issue was that of determining the method of fixing the value of the common wall.

In Winter vs. Reynolds, 24 La. Ann. 113, a. .purchaser of property was held liable for half the cost of a party wall, although the joint use of the wall was commenced, not by him, hut by his ancestor in title. The use consisted in resting a shed on the wall, so that here, again, we find the question of how much use is necessary was not involved; it being conceded that resting a shed on the wall made the wall a common one.

In Chism & Boyd vs. Lefebre, 27 La. Ann. 199, the extent of use necessary to make a wall a common one was not involved. The question there was whether a purchaser of land could be held liable for haH of a common wall, where the joint use had commenced prior to his purchasing the land.

It thus appears that the cases cited in Canal-Villere Realty Co. vs. Gumble Realty Co., supra, do not require a holding that the mere use of a wall as an inclosure makes the wall a common one and renders the user liable for half the value. Nevertheless, we think that the doctrine announced in that case, as applied to the facts of that case, is entirely sound, and we believe that, where one voluntarily uses and receives benefit from the use of a wall already in existence, he should he required to pay half the value thereof. But it seems that it would be most unreasonable to extend such a doctrine to a case like the present one, in which not only is no benefit derived, hut an actual additional expense is forced upon the user. We would find in this case, if we required Thomson Bros, to pay for one-half the wall,, that they have lost nine inches of their property, that they were put to the additional expense of some $1,500 in erecting their building, and that, in .addition thereto, they must now pay to the Pythians something over $500 for a wall which they would much rather not have had.

Our conclusion is that the use of the wall for any purpose makes the user liable, provided the word “use” he interpreted to mean voluntary and beneficial use. Here there was no voluntary use, because Thomson Bros, would have much preferred not to use it at all, and there was no beneficial use, because, by using it, they incurred additional expense.

We are not prepared to pass on the question as to whether or not any part of the additional expense can be recovered from the Pythians, because that question was not presented in this case; Thomson Bros, merely contenting themselves with the request that their rights to such recovery, if they have any such rights, be reserved to them. If any such rights exist, claim thereunder should be presented in another suit, and we therefore feel that the district court was correct in reserving to them such rights, if any exist. The trial court felt as we . do, that defendant was not liable for half of the wall in question.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed.


author: MOUTON, J.

text:
    No. 616
    First Circuit
    DARDENNE ET AL. v. TEXAS & PACIFIC RAILWAY CO.
    (April 14, 1930. Opinion and Decree.)
    Schwing, Morrison, Schwing & O'bier, of Plaquemine, attorneys for plaintiff, appellant.
    Gilbert & Gianelloni, of Napoleonville, attorneys for defendant, appellee. '
   MOUTON, J.

While Mr. Edward Douglas Leche w'as driving a Ford car over the tracks of defendant company in June, 1929, about 10:30 in the morning, he was run over and killed by a train of defendant company. His heirs are suing defendant for $10,000 in damages, comprised of various items specified in the petition. The demand was rejected. Plaintiffs appeal.

The district judge based his conclusions on his appreciation of the substantial facts of the case, and says:

“I am strongly inclined to the opinion that at the time of the collision, defendant’s train was moving at a speed in excess of the limit fixed by the town ordinance and it was certainly negligent on the part of defendant’s locomotive engineer to look back and speak to the fireman (as he admits that he did) when the train was approaching the Labauve street crossing. I think there is some doubt as to whether the wig-wag signal was working at the time when the excursion train approached the crossing. It seems that this mechanical device was occasionally out of order, and I am satisfied from the evidence that it was not working at 6:25 A. M. on the day when the collision occurred, and that it did not work when a train passed at some time in the afternoon of the same day.”

From the foregoing estimate of the evidence, it is apparent that the trial judge found that the defendant company was at fault, and so do we find.

The defendant company pleads contributory negligence on the part of the deceased, and this presents the vital issue in the case.

It is necessary, in order that we may arrive at a proper solution of that question, to refer to the physical conditions which existed near the railroad crossing where the accident happened, and to Labauve street, over which Mr. Leche was traveling before reaching that crossing.

The record shows that Labauve street runs east and west through the town of Plaquemine; the railroad tracks, four in number and adjoining each other, north and south; that the track on which Mr. Leche was struck was the one east of the others, and towards which he was driving. It also appears that a street 23 feet wide, known as Railroad avenue, runs north and south, east of, adjacent to, and parallel with these tracks of defendant company. This Railroad avenue intersects Labauve street east of the crossing, and runs north and south, both ways, beyond the crossing. It also appears from the photographer’s pictures in the record that there are some trees and a board fence near and at the corner where Labauve street intersects Railroad avenue.

Mr. Mollaison, a disinterested witness so far as the record discloses, saw the accident from his front porch, where he was sitting on that morning. He says Mr. Leche was traveling westward on Labauve street in the direction of the crossing, and was going at about 12' or 15 miles an hour; that as he got to the stop signal, he slowed up, then speeded up the incline up the tracks,' and, as the four wheels of his car had gotten on the track, he was struck. He says he slowed up but never stopped. Mr. Mollaison says, however, that, before Mr. Leche speeded up the incline, he looked to his left and continued to look in that direction until the collision occurred.

Mr. Boudreaux, another witness apparently equally disinterested, also saw the collision. Mr. Boudreaux also says that Mr. Leche did not stop his car, and drove up on the crossing where the train “picked him up,” as he described it. This witness however, says that it seemed to him that Mr. Leche “didn’t look either way, left or right,” and proceeded up on the crossing. In that respect this witness differs with Mr. Mollaison, who testified that Mr. Leche had looked to his left in the direction the train was coming, but they both say that he did not stop.

Mr. Boudreaux was sitting on a gallery nearby, and so was Mr. Mollaison, who was on his porch. Both say they had a clear view, and the proof is that the day was clear and bright. The testimony of these witnesses is not contradicted, and it must therefore be accepted as a fact that Mr. Leche never stopped his car when he got to the stop signal, and, according to Mr. Mollaison, speeded up to the incline of the crossing, and, according to both, drove up on the track without stopping.

The proof is clear that at that time the train was coming from New Orleans, the south, was moving towards the crossing, and it is not possible that the deceased looked to his left, continued to look in that direction, as is stated by Mr. Mollaison, and that, while actually looking that way, drove up in the pathway of the advancing train. We say that because, as he emerged from the stop signal, he had a clear view on his left along Railroad avenue southward, the direction from which the train was coming. We say he had a clear view as he entered the avenue, because there were certainly no obstructions across or along that avenue to obscure his vision southward, or, for that matter, northward. In order to accept the proof that he had looked, and continued to look, to his left, we would have to hold that Mr. Leche went deliberately to his death, of which there is nothing whatsoever to suggest, or that his eyesight was bad or defective, of which there is absolutely no evidence.

Mr. Mollaison simply made an error in that respect, and the real fact is that, as was said by Mr. Boudreaux, he did not look either to his left or to his right as he proceeded across Railroad avenue to the railroad tracks.

In controverting the proposition that a person driving a car must actually stop upon approaching a railroad track, counsel for defendant refers to Aymond vs. Western Union Telegraph Co., 151 La. 184, 91 So. 671, where the court held he was not required in such a case, to come at once to a position of absolute immobility. This decision was rendered prior to the enactment of Act No. 12 of 1924, which says, that the driver of such a vehicle shall not go upon a railroad track before stopping at a distance of not less than 10 feet nor more than 50 feet from the nearest track, and “looking for trains,” etc.

There are later cases quoted by counsel, and one in Draiss vs. Payne, 158 La. 652, 104 So. 487, which apparently have held to that doctrine, the latter case not specifically referring to it. Counsel for plaintiff refers also to that part of Act No. 12 of 1924, above cited, which says, that its provisions shall not apply where crossings are provided with flagman, and signal to proceed has been given by the flagman, or where gates are provided and the gates are open.

His reasoning is, if we correctly appreciate it, that, as in this case, the wig-wag signal was not working or operating, that this condition thus existing was equivalent to an invitation to Mr. Leche to proceed across the railroad tracks. He cites several authorities from other jurisdictions where the courts have held, under circumstances somewhat similar, that open gates at crossings or such like are tantamount to an invitation of that character to autoists or travelers in motor vehicles. We do not believe that because of the failure of a wig-wag to operate it could be held as an invitation to a traveler in car or auto to venture across a railroad crossing, particularly under the provisions of our statute, which do not mention such a mechanical device in the proviso where it refers to the flagman and the “gates that are open.”

It will be noted, however, that, in Canadian Pac. Ry. Co. vs. Slayton (C. C. A.) 29 F. (2d) 687, 689, cited by counsel for plaintiff in support of that contention, after the statement by the court implying an invitation to the driver where the crossing has open gates, it proceeds to say: “He still has a duty of doing what a prudent man would do under like circumstances.” In connection with the foregoing quotation, it may not be amiss to refer to Act No. 12 of 1924, which, after stating that the driver of motor vehicle shall stop not nearer than 10 feet and not more than 50 feet from the nearest track, says, “And looking for trains.” Let us say, for the sake of argument, that the driver is not required to come to a position of absolute immobility on approaching a crossing, he is certainly required to look and listen, when such looking and listening shall be effective, before he proceeds to negotiate a crossing.

The words “and looking for trains” in the Act of 1924, and the very decision in 29 Federal, above cited, where it is said that the automobilist has still the duty of proceeding with prudence, support our above statement that he must not fail to observe the indispensable requirement of “looking and listening.” There is no law, statute, or decision of which we are aware that excuses or relieves an autoist from the observance of these requirements before attempting to go over a railroad crossing. In this case, it is manifest that Mr. Leche failed to look to his left as he entered Railroad avenue or thereafter when he was going across the avenue. If he had, it is incontrovertible that he would have seen the train coming from the south, and would have had ample time to stop his car before reaching the crossing, or to have turned to his right or left in the avenue. Obviously, his mind was absorbed or fascinated by some subject or other, or for some unaccountable reason he was oblivious to his surroundings, drove in front of the train, and, by his inattention, carelessness, or negligence, contributed to the accident.

Counsel for plaintiff made an effort to show that the railroad whistle had not been blown nor the bell rung, as the train approached the crossing. The engineer on the train, the fireman, and the conductor testified otherwise, and Mr. Boudreaux, who was sitting on his gallery not far from the crossing, confirms their testimony in this respect. The fact is that Mr. Leche was partially deaf, and very probably did not hear the blasts from the railroad whistle or the sound of the bell. If he had had good hearing, it is possible his attention would have been called to the impending danger, and that his life would have been spared, but it seems it had to be otherwise. The fact that he suffered with this infirmity also demanded that he should have exercised more care in making the crossing than would have been required of persons with normal hearing.

Counsel also endeavored to prove that the train was going at 30 or 35 miles an hour at the time of the collision.

It is true that the cowcatcher carried the body of the unfortunate victim a block and a half from the point of contact before the train was stopped, and, that under ordinary circumstances it could have been brought to a standstill in a shorter distance. It is true also that the engineer says, upon striking the auto Mr. Leche was driving, he immediately applied the emergency brakes. He does not seem able to account why he glided along to the distance stated before stopping. It should be observed that, in such desperate and sudden, emergencies, certain results will follow' that are not easily accounted for. True it is also that some witnesses estimated that the train was then moving at 30 or 35 miles an hour; such estimates are deceiving, and cannot, as a general proposition, he taken as accurate.

The crew in charge of the train testified it was going at 10 or 12 miles an hour. It is shown that the tracks were undergoing repair on the way to the crossing in the direction the train was coming, and near the crossing.

John Ritter, the fireman, testified that the track was being skeletonized at the time. His explanation of this skeletonization is that all the ballast had been taken from around the ties, and that the rails were sitting on these naked ties. That statement stands uncontradicted. He explains, as it must no doubt have been the case, that the greatest caution must be exercised in running a train over rails in that condition.

Wilson, the engineer, says he was going between 10 and 12 miles an hour, because there was speed restriction over this skeletonized piece of the road. There is, in our opinion, every likelihood that he observed that restriction, if not in obedience to the requirements of the company, at least for his own safety, that of his crew, and the passengers on the train. We find that, though the train was moving at a speed exceeding 12 miles an hour fixed by the town ordinance, and as found below, we do not think that it was going at 30 or 35 miles, or at a reckless speed, when the collision occurred. The defendant company was at fault, as we have before stated, but the deceased clearly contributed to the accident by his carelessness or culpable negligence, and his heirs, the plaintiffs, were correctly denied recovery. Woods vs. Jones, Cowan & Knowlton, 34 La. Ann. 1086; Sibley vs. New Orleans City & L. R. Co., 49 La. Ann. 589, 21 So. 850; Gibbens vs. New Orleans Terminal Co., 159 La. 353, 105 So. 367; Perrin vs. New Orleans Terminal Co., 140 La. 818, 74 So. 160; Nolan vs. Illinois Cent. R. Co., 145 La. 483, 82 So. 590; Ladner vs. New Orleans Terminal Co., 139 La. 262, 71 So. 503.


text:
    No. 621
    First Circuit
    MASSETT v. C. G. CONN CO., LTD.
    (April 14, 1930. Opinion and Decree.)

      Breazeale & Sachse, of Baton Rouge, attorneys for plaintiff, appellee.
    Benton & Benton and C. W. Kernan, of Baton Rouge, attorneys for defendant, appellant.
   MOUTON, J.

The part of the contract of rent by plaintiff to the defendant, pertinent to the issue presented, reads as follows:

“For and in consideration of the amount of forty-five dollars ($45.00) per month, ■the party of the second part (plaintiff) agrees to rent to the party of the first part (defendant) from July 15, 1929, to Jan. 15, 1930, the southeast quarter section etc.; after Jan. 15, 1930, the rent for said space to be increased to fifty-five dollars ($55.00) per month from Jan. 15, 1930, up to December 15, 1930.”

Defendant paid its rent up to January 15, 1930, and proceeded to remove the equipments from the building which were seized by plaintiff under a writ of provisional seizure.

Defendant says that it has paid the rent up to January 15, 1930, the date upon which the lease terminated under the first clause of the contract above reproduced, and as defendant contends according to its express provisions. That clause, if it stood alone, would be so construed. It is not so, however, as it is immediately followed, leaving out the mere description of the leased premises, with a subsequent clause which says that after January 15, 1930, the rent is to be increased to $55 per month from January 15, 1930, up to December- 15, 1930.

To ascertain the intent of the parties, these two clauses must be construed together. The words used in these two clauses, which together constitute the essence of the contract, are clear and explicit, and show with sufficient clarity that the agreement would continue from January 15, 1930, to December 15, 1930, at the increased price for the rent stated in the second clause. This construction leads to no absurd consequence, and must be held as properly determining the intent of the parties. C. C. art. 1945. There is therefore no merit in the position taken by defendant that the provisions of the second clause entitled it to the optional right of renewal of the contract upon paying the increased rental as therein fixed.

As we have before remarked, the words of the contract are clear and explicit, which repels the idea that the intent of the parties as therein expressed is obscured or shrouded by any ambiguity. In connection therewith, it may also be stated that there are no circumstances connected with the execution of the agreement that would render the intent of the parties doubtful. Such being the situation, parol testimony was inadmissible to establish the supposed true intention of the contractees.

As the defendant paid the rent to January 15, 1930, the court rendered judgment for $650 for the rent which accrued under the second clause of the contract, that is, to December 15, 1930. This decree was grounded on the right of the lessor to enforce the contract for the whole term when the tenant leaves the premises before the expiration of the lease. This right existing in favor of landlords, the court in Chisty vs. Casanave, 2 Mart. (N. S.) 451, refers to as an extraordinary privilege conferred upon them, which was affirmed in American Machinery & Construction Co. vs. Stewart & Haas, 115 La. 188, 38 So. 960. That right, the court, through Judge Martin in Reynolds vs. Swain, 13 La. 193, says is not derived from any express or positive law. Its source, he finds, has its origin in the cogent reason of the Roman Law. Article 21, C. C., says that in absence of express or positive law, a case must be decided according to equity. The rule granting the privilege to the lessor to recover for the entire term of the contract, when the lessee abandons the property before the expiration of the lease, is therefore founded on equity. As a corollary, it must be held in equity and justice that the lessee, in such a case, has the right to use the property for the unexpired term of the lease, or to sublease it to reap this benefit to help in paying the rent to his lessor.

We have referred to this equitable right of the lessee in reference to the leased premises because the defendant, appellant, has filed a motion to remand the case, alleging that since the rendition of the judgment in the lower court the plaintiff, who had leased the premises from B. E. Perkins and had subleased to defendant, has assigned and surrendered all of his title, rights, and interest in his lease from B. E. Perkins, thus divesting himself of any interest whatsoever of his sublease to defendant, to be effective March 1, 1930. This motion is accompanied by an affidavit by B. E. Perkins in support of the motion, and in which Perkins says a new tenant will occupy the premises subleased to defendant after March 31, 1930. It is evident, if that be true, that after that date defendant could not, as the sublessee of the plaintiff, re-occupy the premises, or could not sublease to another, or obtain rent from which he could diminish or extinguish his obligation to plaintiff.

In the case of Roumage vs. Blatrier, 11 Rob. 101, where it had been asserted in argument, and not denied, that the property leased had been sold since the pendency of the suit, and accompanying the record was a newspaper advertisement of sale, and in which it did not appear that it was to' be sold subject to the lease, the court remanded the case for the investigation of those questions, and for- settlement of the sum which might be due the lessor, and to make the purchaser of the property a party to the proceedings.

In this case similar principles are involved, and this case should be likewise remanded for the reception of evidence in reference to the sale, assignment, or sur-, render of the leased premises by plaintiff herein, as it is alleged in the motion filed by plaintiff to have the case remanded, and sworn to in the accompanying affidavit.

It is therefore ordered, adjudged, and decreed that this case be remanded for the reception of evidence to establish the sale or assignment of the leased premises by plaintiff, as alleged in said motion, and sworn to in the affidavit and that if the facts averred therein are established by the evidence, the original judgment rendered herein on January 28, 1930, be modified so as to relieve and discharge defendant and appellant from that part of the judgment which represents rent accruing subsequent to March 1, 1930; that defendant pay all costs of court.


text:
    No. 614
    First Circuit
    STATE AGRICULTURAL CREDIT CORP., INC., v. LOTZ
    (April 14, 1930. Opinion and Decree.)
    Borron, Heber.t & Owens, of Plaquemine, attorneys for plaintiff, appellant.
    Benton & Benton, of Baton Rouge, and A. D. Danziger, of New Orleans, attorneys for defendant, appellee.
   ELLIOTT, J.

State Agricultural Credit Corporation, Inc., judgment creditor of Mrs. Marie Lotz, caused a writ of fieri facias to issue on its judgment, under which the sheriff seized “all the rights, title, claim and interest of Mrs. Marie Hebert Lotz in and to the succession of Lewis B. Hart, which succession has been opened as No. 69 Probate Docket of the Honorable Eighteenth Judicial District Court in and for the Parish of Iberville, Louisiana; said right, title, claim and . interest of Mrs. Marie Hebert Lotz being that of universal legatee of the deceased Lewis B. Hart.”

Notice of seizure was served on Mrs. Lotz, notifying her to appoint an appraiser, and that within three days the property seized would be advertised for sale.

Mrs. Lotz, in her petition for injunction against the sale, alleges that the -seizure is null and void. That she is the qualified testamentary executrix of the estate of said Hart; that letters as such have been issued to her. That she has full seizin of said estate, and is engaged in administering the same. That after paying all debts, as the law provides, she will be entitled to be placed in possession of the residuum. She further substantially and in effect alleges that the nature of the interest seized, as offered for sale and which constitutes the assets of the said estate, is not stated or enumerated, either by descriptive terms or otherwise. That said levy and advertisement, under which the sale is to be held, is thereby made so vague and incomplete as to deprive prospective bidders of any clue as to the value of the property offered for sale.

She further alternatively alleges that her individual right as universal legatee cannot be seized and sold in the manner aforesaid to satisfy said claim against her individually while she is engaged as an officer of the court in administering same for the benefit of creditors. That such a sale is in violation of prohibitory laws, of the rights of creditors, and is against public policy. That the rights of creditors and her rights individually will suffer irreparable injury, unless the sale is enjoined, etc.

The court, after the usual proceedings to show cause, giving written reasons therefor, temporarily enjoined the sale, and the temporary writ was subsequently maintained and made perpetual by the judgment of the court. State Agricultural Credit Corporation, Inc., has appealed.

There is no motion to dismiss, but we find that we cannot entertain the appeal. The record does not contain the answer to the rule to show cause, if any was filed, none to the petition for injunction, and there must have ■ been one, because the judgment appealed from does not purport to be based on a default. There is no evidence in the record, but the minutes of the lower court state that the law and the evidence is in favor of the judgment rendered. The judgment states that it is based on the same evidence that was offered on the trial of the rule. There is no statement of facts, no assignment of errors, and the clerk of court has not certified to the record as required by the Code of Practice, arts. 585 and 896.

The situation appears to be imputable to the fault and neglect of the appellant. As was done in the case of Louisiana Power & Light Co. vs. Becker, 11 La. App. 195, 123 So. 193, 910, the appeal will be dismissed..


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    No. 624
    First Circuit
    CROWLEY DRILLING CO. v. WERNER
    (April 14, 1930. Opinion and Decree.)

      Taylor & Parker, of Baton Rouge, attorneys for plaintiff, appellant.
    Benton & Benton and D. J. Sanchez, of Baton Rouge, attorneys for defendant, appellee.
   MOUTON, J.

This suit is for the recovery of $1,000 for the lease of a drilling rig; $107 for the price of a self-contained pump, and for $594, the value of 2,200 feet of tubings. The demand was dismissed on an exception of no cause of action.

The lease of the drilling rig was made by notarial act between Ben R. White, agent of plaintiff company, and Burt Baker, as lessee, as appears by the act which was produced on a motion for oyer.

The demand is made against J. C. Werner, defendant, on the averment that the lease of the rig was entered into by Burt Baker for Werner, as his agent. The allegations of the petition lead to the conclusion that Werner was known to plaintiff company when the contract of lease was executed, and there is nothing to indicate that he was an undisclosed principal at that time. It must also be observed that the contract says the lease is made with Burt Baker, or assigns. It is evident that he could not make an assignment of the lease unless he was the real lessee, or owner of the lease. There are no allegations of either fraud or error by plaintiff to authorize the reception of parole evidence to affect the written contract of lease. Such evidence would be inadmissible and, as to the claim for the lease of the drilling rig, we think, the demand in that respect was properly dismissed under the exception.

Plaintiff is also claiming $107 for the price of a self-contained pump, and $594 for the value of tubings. In respect to the pump, plaintiff avers it was bought from it by Werner, defendant, through his agent, James White. There is nothing in the contract of lease, or the other documents produced on oyer, to affect that averment. Plaintiff has a cause of action on its allegations for that item, which must be taken as true under the exception.

In reference to the tubings, plaintiff avers they were borrowed from it by defendant, Werner, personally, which plaintiff alleges he agreed to pay for if lost while used in a well; that they were lost, and that defendant is responsible for their value alleged to be $594. Here is an allegation of direct liability on the part of defendant in which no question of .agency arises, or any other, either from the petition or documents, that could militate against plaintiff’s rights for that item. For that amount, plaintiff has also a cause of action.

It is therefore ordered, adjudged, and decreed that the judgment is affirmed in so far as it dismisses the claim of $1,000 for the lease of the drilling outfit; that it be, and is hereby, reversed insofar as it rejects the items claimed for the price of the pump, and the value of the tubings; that the case be remanded for trial in reference to said two items, and be proceeded with according to law; appellee to pay the cost of this appeal; the other costs to abide the decision of the case.


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    No. 13,138
    Orleans
    LANGENSTEIN ET AL. v. REYNAUD
    (April 7, 1930. Opinion and Decree.)
    J. Kenton Bailey, of New Orleans, attorney for plaintiffs, appellees.
    John C. Hollingsworth, Dart & Dart and John Dart, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a suit for damages brought by two "sisters of the deceased as the result of his death from injuries sustained when the defendant’s Lincoln sedan struck the deceased at the intersection of South Claiborne avenue and Upperline streets in this city on December 6, 1928, about 6:30 p. m. Defendant denied liability and the case was tried before the district court without the intervention of a jury, and, from a judgment in favor of the plaintiffs in the sum of $4,596.35, defendant has appealed.

The petition alleges that the defendant was at fault in the following respects:

(1) That the defendant was negligent and careless in failing to keep a proper lookout in driving his car.

(2) In operating his automobile at a rate of speed in excess of the speed limit, as fixed and provided by the traffic ordinance of the city of New Orleans.

(3) That he was operating his automobile in a reckless and careless manner as a result of drinking intoxicating liquor.

(4) In failing to stop his automobile after having run down the deceased, and fleeing from the scene of the accident in violation of the ordinance of the city of New Orleans and the laws of the state of Louisiana.

The petition alleges in the alternative that the defendant had the last clear chance of avoiding the accident.

The defendant admitted that the accident occurred but denied the charges that he was at fault, and averred that it was caused solely and entirely by the fault and carelessness of the deceased, and, in the alternative, pleaded contributory negligence. Defendant denied that he had the last clear chance of avoiding the accident, but admitted that he did not stop at the scene of the accident after having knocked down the deceased.

The record shows that South Claiborne avenue is a wide street, measuring 191 feet, 10 inches, and two lines in widtu with a neutral ground in the center measuring 107 feet in width with two 30-foot roadways on each side and with two 12-foot sidewalks. This avenue runs from uptown to downtown, the lake side of the roadway being a one way street in the uptown direction, and the river side roadway, a one way street in the downtown direction. Upperline street intersects South Claiborne avenue and runs from the river to the lake. At the point where Upperline intersects South Claiborne avenue, the avenue turns sharply towards the lake, thus causing a very sharp bend in the roadway on the lake side.

On the day of the accident, at dusk, the defendant was driving a five passenger Lincoln sedan, going uptown at about 25 or 30 miles per hour. It appears that the deceased attempted to cross from the' river side of South Claiborne avenue to the lake side at the intersection of Upper-line street. The record shows that there is a boardwalk that crosses the neutral ground of South Claiborne avenue at Upperline street, located on the downtown side of the neutral ground. The deceased was walking on the uptown side of the neutral ground and had walked approximately 16 feet into the roadway on the lake side of South Claiborne avenue when defendant’s car struck him with the right front headlight and fender, knocking him up in the air and hurling him violently to the pavement. The defendant did not stop his car but continued on up South Claiborne avenue six or seven blocks where he was stopped by a traffic officer who witnessed the accident and who gave chase and overtook the defendant at State street. After the officer left the scene of the accident to give chase to the defendant’s automobile which was going up South Claiborne street, another automobile, going in the same direction, ran over the lower part of the body of the -deceased who was lying in about the middle of the street with his head towards the neutral ground and his feet towards the lake sidewalk. An ambulance was summoned and the deceased was brought to the Charity Hospital and later removed to the Baptist Hospital where he died December 10, 1928.

The defendant was returned to the scene of the accident but could give no good reason why he ran away. The traffic officer testified that he saw the accident while standing on the lake downtown corner of Upperline and South Claiborne streets; that as soon as he saw the automobile strike the old man that he rushed out into the street to the deceased’s rescue and kept waving his hand at the driver to stop; that the driver seemed to pull over towards the curb when he reached down to pick up the old man, but, after pulling into the curb, the driver pulled away from the curb and continued on his way uptown; that he arrested the defendant and charged him with violating the provisions of Act No. 296 of 1928, relative to reckless driving, causing injuries and fleeing from the scene of the accident; that when he said to the defendant, “It looks like you have been drinking” the defendant said, “No I did not have anything but a bottle of homebrew.” The officer further said, “If he would have been drinking I would have charged him with being drunk but he admitted having a bottle of homebrew.”

The defendant was placed on the stand for the purpose of cross-examination under the act of 1928 and testified that he was a • dentist, age 30 years, living at Lutcher, St. James parish, La., and had come to the city of New Orleans and was on his way uptown to see his sister after which it was his intention to call upon his fiancee; that it was about dusk and that he was driving about 25 or 27 miles per hour and that he had driven on South Claiborne street several times, but would not say that he was familiar with the particular locality; that, due to the severe curve in the roadway, his lights were focused on the neutral ground and, therefore, he was unable to see anything to the right side of his car; that he did see' and realize that he struck something, but could not tell what it was and that he’ did not stop at the scene of the accident and was arrested at State street by the officer; that he did say to the officer that he had drunk a bottle of home-brew, and that he could not assign any reason why he had run away from the scene of the accident.

There are two blue prints of the locus in quo showing that there is a sharp curve in the roadway at the corner in question. There is expert testimony as to how far to the right a motorist would be able to see when turning sharply to the right, due to the fact that the rays of the lights of the automobile would extend forward and not around the curve. This evidence is conflicting' in some respects but we are satisfied that a motorist, keeping a proper lookout in negotiating the curve in question, with bright electric headlights on an automobile, would be able to see a sufficient distance in front of him in order to bring his car to a stop, while running at 25 or 30 miles per hour.

The record convinces us that the defendant was either not keeping a proper lookout where he was driving, or was operating his car in a reckless and careless manner in utter disregard of the rights of the deceased pedestrian at the crossing. In short the record convinces us that" the defendant was clearly at fault. Frierson vs. Shreveport Grocery Co., 3 La. App. 44.

The next matter to be decided is whether the deceased was guilty of contributory negligence. Traffic Officer Credo, who witnessed the accident, testified that the defendant’s automobile was about 150 feet from the deceased at the time he started to cross the roadway and that he had negotiated more than one-half of the roadway at the time defendant struck him; that there is only one street light which is situated on the river downtown corner of the intersection of these two streets; that the defendant was driving his automobile at a rate of speed about 25 or 30 miles per hour, giving defendant the benefit of the doubt.

We haven’t the benefit of the testimony of the deceased, as he died four days after the accident, so we do not know whether he saw the automobile, or kept it under observation as it approached him, or whether he gave the pedestrian signal by raising his hand which would have given him the right of way at the intersection over the defendant’s automobile, as provided by paragraph 2, article 7, p. 32, Ordinance 7490, C. C. S. But conceding that the deceased was guilty of contributory negligence, which we seriously doubt because a pedestrian passing at a street intersection has a right of assuming that the operator of a motor vehicle approaching 150 feet away, at a speed of 25 or 30 miles per hour with bright electric headlights on his car, will keep a proper lookout and use due precaution and care in regard to pedestrians using the street intersection, nevertheless we find that the defendant had the last clear chance of avoiding the accident, but failed to do so.

The record shows that the deceased had negotiated more than one-half of the intersection and, therefore, the defendant, if he had continued to his left, would have had a clear space of 16 or 17 feet to pass to the rear of the deceased. It would have been much easier for him to pass to the rear of the deceased, for it would tend to lessen the severity of the curve by going to the left-hand or outer portion of the curve. This is particularly true in view of the fact that the right front headlight and fender were the parts of the car that struck the deceased, and, therefore, the defendant by simply slightly pulling his car to the left would have entirely avoided striking the deceased.

The defendant’s conduct in fleeing from the scene of the accident after he struck the deceased and knocked him to the pavement, after being signaled by the police officer to stop and at first obeying the officer by pulling towards the curb and then continuing on his way, shows that the defendant felt that he was entirely to blame for the accident. As we said in the case of Vuillemot vs. Claverie & Co., Inc., 12 La. App. 236, 125 So. 168, 169.

“If he had been keeping a proper lookout, surely he would have noticed that the truck struck the young lady with its front fender. If he was not' keeping a proper lookout, he was negligent. If he did know that he struck the young lady and did not stop, then his action in attempting to escape was tantamount to an admission of guilt. We have therefore come to the conclusion that, although the evidence as to the facts of the accident is very meager, there is sufficient in the record to warrant the finding that the young day was killed by a truck and that the driver of the truck was at fault.”

The defendant moreover violated both the provisions of the Traffic Ordinance 7490 of the city of New Orleans, and paragraph (a), of section 31, of Act 296 of 1928, in fleeing from the scene of the accident. There is a uniform principle of the law of evidence in criminal cases that fleeing from the scene of a crime is strong evidence of the guilt of the accused in spite of the fact that the Constitution of this state provides that the accused is presumed to be innocent until his guilt is proved beyond a reasonable doubt.

In the present case the defendant is an educated man and a doctor of dentistry. He certainly knew in his conscience that he was doing wrong in fleeing from the scene of the accident; leaving his victim prostrate in the street to the danger of being further injured or probably killed by other automobiles. Whatever injury the deceased may have suffered as a result of the second automobile running over the lower part of his body is certainly attributable to the defendant, because if he had stopped, as the law directed him to do, the deceased would have been removed to a place of safety where he would not have been further injured, and probably his life saved.

Counsel for the defendant has referred us to the case of Neville vs. Postal Telegraph Co., 13 La. App. 76, 126 So. 720. We do not believe that case is controlling here for two reasons. First, the plaintiff in that case testified that she saw an automobile approaching about one-half block away but did not again look in the direction from which it was coming. We held that she was guilty of contributory negligence in not keeping the automobile under observation as it approached her, and in walking across in front of it without paying any further attention to it. We also found that the operator of the motorcycle which came from the. rear of the automobile when he discovered the presence of plaintiff, did not have the last clear chance of avoiding the accident.

As to the quantum of damages it appears that the deceased was 63 years of age, was in good health and lived with his two sisters, who are the plaintiffs in this case, for a number of years; that they received support from him and that he assisted in operating a small dairy until about six months before the time of his death, at which time the cows were not giving any milk and for that reason the dairy was temporarily closed. They testified that he was contributing $50 per month to their support. They further testified that he was a kind and loving brother who looked after and protected them. The plaintiffs have real estate but it is very heavily incumbered and the revenues are just about equal to the interest that is paid on the outstanding mortgage and paving liens.

The deceased suffered a fracture of the skull, crushed liver and intestines, and an enormous hemorrhage of the abdominal wall. He was in a state of coma from the time of the accident until he died, but one of his sisters testified that he seemed to recognize her. Defendant contends that the deceased did not suffer any pains, as he was in a state of coma from the time he was injured until he died and therefore that item should not be considered. In the case of Crisman vs. Shreveport Belt Railway Co., 110 La. 640, 34 So. 718, 62 L. R. A. 747, it was held in substance 'that a man with his head crushed and one leg run over but was heard to utter an exclamation, and who, during- the four hours in which he lived, was heard to sigh and grunt though unconscious the entire time, is held to have had a sense of feeling and to have endured pain for which damages to his heir may be accorded.

The deceased had a life expectancy of 10 years according to the American table of mortality.

The funeral bill, doctors’ bill, etc., amounted to the sum of $596.50, which is admitted by defendant to be correct and was, therefore, allowed.

One of the plaintiffs is a widow, age 83 years and the other is a femme sole, age 63 years. The judge a quo who tried the case allowed $2,000 each to the plaintiffs. Plaintiffs have answered the appeal, and asked that this amount be increased. We are of the opinion that the award is rear sonable.

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