text:
    No. 784
    First Circuit
    W. F. CLOPTON & CO. v. ALFRED ET AL.
    (June 16, 1931. Opinion and Decree.)
    (October 7, 1931. Rehearing Refused.)
    (November 3, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Wm. Alex Robertson, of Opelousas, attorney for plaintiff, appellee.
    O. E. Guillory and E. H. Guillory, of Ville Platte, attorneys for defendants, appellants.
   MOUTON, J.

Rene Alfred executed a promissory note January 2, 1917, for $750, payable January 1, 1920; another for $1,-394.33 March 25, 1921, due December 1, 1921. He gave a special mortgage with vendor's privilege by authentic act, with the pact of non-alienation on a fifty-acre tract of land to secure the payment of the first note, and a special mortgage with the non alienando pact on the same property to secure the second note.

At his death, Rene Alfred left Joacinne Tisoneau Alfred, a surviving widow, Eddie and David, two major heirs, the mortgaged property and a few movable effects.

As holder of the two notes, Clopton So Co., plaintiff, instituted this- suit by ordinary proceedings to have the mortgaged property sold, and for payment by prefer'ence from the proceeds of sale. The suit was filed September 18, 1930. Later, September 25, 1930, on the application of Mrs. Rene Alfred, surviving widow, under the allegation that the estate of the deceased was heavily in debt, the succession was opened, and the widow was subsequently appointed administratrix. October 15, 1930, the property of the estate, including the mortgaged tract of land, was ordered to be sold for cash to pay debts.

Plaintiff, Clopton & Co., intervened in the succession proceedings, claiming that the sale therein ordered was a collateral and invidious attack on its right as mortgagee to have the fifty-acre tract sold under its mortgages. The court granted an injunction to intervener prohibiting the succession sale.

In its original petition demanding a sale of the mortgaged property, plaintiff company alleged that it was subject to the two special mortgages and that the deceased,-Rene Alfred, mortgagor, had waived prescription on the notes, and had renewed his. obligation in writing on the notes, and which appears on the notes annexed to the petition with copies of the notarial acts of mortgage. In the petition plaintiff alleges its right to a vendor’s lien and first mortgage on the land for its first note, and that it is also entitled .to a second mortgage thereon on the property to secure the payment of the other, note.

Mrs.- Tisoneau Alfred, surviving spouse, David and Eddie Alfred, heirs of the deceased, filed a joint answer to plaintiff company’s demand, first excepting that it had no right of action in the manner set forth in its petition. With proper reservation of their rights under the exception, defendants answered and therein admitted the allegations of articles I, II, III, IV, V and VI of plaintiff’s petition.

In these articles, plaintiff company made the allegations of waiver of- prescription, renewal of the notes, and the right to a vendor’s Ijen and second mortgage on the property in -question to secure- the payment of the notes to which we have hereinabove referred.

In their answer, defendants pray for the maintenance of their exception, and, in the alternative, for the dismissal of the suit.

In the petition for its intervention in the succession proceedings, to which we have heretofore referred, plaintiff averred that defendants had admitted all its averments of facts made in the original petition for the sale of the property “but denying petitioner’s right to enforce its claim in said foreclosure proceedings in the manner therein attempted.” These allegations were admitted by Mrs. Tisoneau Alfred, administratrix, in answer to plaintiff’s intervention.

The promissory notes upon which plaintiff is proceeding and the mortgages given to secure their, payment were executed during the existence of the community by the deceased husband of the administratrix and the father of her co-defendants. The mortgages were given on community property and were binding on Mrs. Alfred, conjugal partner, and on the other defendants, heirs of the deceased. Under such notes and mortgages, which represent a community obligation, executory process can be obtained against the surviving spouse, either husband or wife. Act 57 of 1926, p. 70; Landry v. Grace, 167 La. 1042, 120 So. 770.

The surviving spouse was bound with deceased under the mortgages he had executed and the notes he had issued. So were Eddie and David Alfred, his heirs. They must ,all be considered as parties to the acts of- mortgage and notes, and are barred from taking advantage. of the defense of - non-inscription. C. C. art. 3344.

Counsel for the widow and heirs say that his plea of prescription of five years, filed for the first time in this court is not directed to the non-inscription of the mortgages, but is grounded on the issue that the notes were prescribed when the waiver was made by the deceased; that they were extinguished or had ceased to exist, and that the mortgages, accessory obligations, had disappeared and were not revived by the renewal of the notes by deceased. Counsel refer to the Succession of Kugler, 23 La. Ann. 455.

In that case the court said the promise to pay after prescription had accrued created a new debt binding on the deceased and his. succession, which, we hold, was the result of the renewal of the debt by deceased in the instant case. Rhe court said, however, in that case, that this new debt thus created did not renew or create a mortgage, “at least as to third perspns.” In that decision the court refers to Larthet v. Hogan, 1 La. Ann. 330, and Grayson v. Mayo, 2 La. Ann. 927, in which also the right of third parties, was involved.

Here the surviving widow and heirs are not third persons. They were legally parties to the acts, and, in answer to plaintiff’s petition for the foreclosure of 'the mortgages, admitted that the mortgages were valid, and that plaintiff had a vendor’s lien and second mortgage on the land to secure the payment of the notes. Such admissions constituted a waiver of prescription to the- mortgages if it had accrued which was binding on defendants, as was the renunciation of prescription on the notes by deceased.

Plaintiff company, as we stated in the beginning of this opinion, asked for’ the enforcement of the mortgages by the ordinary action instead of resorting to executory proceedings.

The real issue presented was as to whether it could pursue that course for the seizure and sale of the property. When, as in this case, the mortgage acts are authentic and contain the pact de non alienando, the mortgage creditor may resort to executory proceedings against the deceased mortgagor for the sale of the property to satisfy the debt without having-to await the expenses of an administration and the final settlement of the succession. Twomey v. Papalia, 142 La. 621, 77 So. 479. He is entitled to these proceedings against the surviving wife, as well as against the husband, and unquestionably, against the heirs. Landry v. Grace, 167 La. 1042, 120 So. 770.

This rule applies whether the widow or heirs accept the succession unconditionally or under the benefit of inventory. Twomey v. Papalia, 142 La. 621, 77 So. 479.

The contention of counsel for defendants is that the proceedings by plaintiff should have been via executiva and not via ordinaria.

The sole purpose of plaintiff, as appears by its pleadings, was for the foreclosure of its mortgages. When such is the object of the mortgage creditor, the court in Beck v. Natalia Oil Company, 143 La. 153, 78 So. 430, says: That the proceeding via ordinaria in reality is in rem, “to the same degree precisely as is a suit via executiva having the same object.”

The foregoing is in line with the trend of our jurisprudence in recent years and must govern on this issue regardless of what may have been said in previous.- decisions on the subject.

The lower court therefore correctly perpetuated the injunction obtained by plaintiff prohibiting the administratrix and the auctioneer from selling the property seized in the foreclosure proceedings.


source: Caselaw Access Project

author: LeBLANC, J.

license: Public Domain

text:
    No. 818
    First Circuit
    KIRTMAN v. UPKINS ET AL.
    (June 30, 1931. Opinion and Decree.)
    C. J. Boatner, of Franklin, attorney for plaintiff, appellant.
    Brumby & Bauer, of Franklin, attorneys for defendants, appellees.
   LeBLANC, J.

Plaintiff appeals from a judgment in the district court which dismissed her demand on an exception of no cause or right of action.

Her suit is to have the court decree her to be the owner of a. parcel of land situated in the town of Patterson in the parish of • St. Mary, which she avers the defendant Susie Sims, and her husband, Sam Upkins, are illegally and unlawfully occupying without any right, title, or interest therein.

Plaintiff’s alleged ownership of the property is derived through an act of donation duly accepted by her from her sister, Henrietta Williams, executed in authentic form on November 3, 1927, before W. K. Wilson, notary public, and duly recorded in the records of St. Mary parish, which act, through a certified copy attached, is made part of1 the petition.

The act of donation on its face shows that it was gratuitous, having been made as therein stipulated, “in consideration, of the natural love which” the donor had for her sister, the donee. In her petition, however, plaintiff refers .to it as being an onerous donation, and makes additional averments under which it might be construed as being remunerative, as she alleges that an additional consideration to that expressed was. the fact that ¿he had been caring for her sister and providing her with money and other necessities.

It was because of tbe variance between tbe allegations thus made and tbe recital in the act of donation that the district judge sustained the exception of no cause of action.

Had plaintiff not called the donation onerous in her petition, and had she not alleged facts indicating that it may be remunerative, it would seem that she could have supported her claim to the ownership of the property on the act as it is written. She alleges that the donation was duly accepted, which allegation must be taken for true in considering the exception of no cause of action, and she also includes in her petition as. a consideration, among others, the one that is expressed in the act, namely, the natural love which the donor had for her, the donee. Although love and affection are not sufficient consideration to support a sale, they do express a valid consideration in an act of donation inter vivos. Loranger v. Citizens’ Nat. Bank of Hammond, 162 La. 1054, 111 So. 418.

The real question presented then may be stated as follows: Is the plaintiff to be penalized to the extent of having her suit dismissed on an exception because in referring to an act of gratuitous donation which she annexes to, and makes part of, her petition, which act is apparently valid, she erroneously designated it as being an onerous donation? Counsel for the defendants. contend that her averments are at variance with the recitals of the act, and we are referred to several decisions- which hold that, where allegations of a petition contradict apd destroy the effect of other recitals, the petition discloses no cause of action. That no doubt is a sound legal proposition, and has often been applied in construing matters, of pleading. But there is also another familiar rule which must not be lost sight of in considering the pleadings in this case, which is to the effect that, in case of conflict or variance between the allegations of a petition and the recitals in a deed or document attached thereto as forming part thereof, the statements in the document control and correct the allegations in the petition. John Bonura & Co. v. United Fruit Co., 162 La. 53, 110 So. 86; Ducre v. Milner, 165 La. 433, 115 So. 646. The rule invoked by counsel applies in cases where the conflict is between the allegations of the petition proper, either of which may control in determining the cause of action. In this case, there can be no question but that the recitals in the annexed deed must prevail, and any contradictory allegations in reference thereto in the petition must yield and stand corrected.

The legal effects of the gratuitous act of donation annexed to plaintiff’s petition could not be changed by the erroneous declaration in the petition that it was onerous or remunerative. If, as an act of donation, apparently valid, it was sufficient, by the alleged acceptance of the donee, to transmit the ownership of the properly, all of the mistaken averments in the petition could not destroy its legal effects. Those averments might be treated as surplusage, and, the validity of the act of donation being conceded, the plaintiff could still recover under the other allegations and the prayer of her petition.

In the ease of Loranger v. Citizens’ Nat. Bank of Hammond, 162 La. 1054, 111 So. 418, 420, on which the district judge seems to have relied in sustaining the exception of no cause of action, it appears that, a creditor had obtained a judgment against a married man who had a few months prior to the recordation of the judgment placed upon the public records an act purporting to be a conveyance of certain property to his wife. Upon the property being seized' under the creditor’s judgment, the wife enjoined the sale on the ground that she was the owner thereof. Testimony was offered tending to show, that, at the time the sale was executed, the parties really intended that it should be a donation inter vivos, but, as the notary did not have the proper form to execute a donation, he used in lieu thereof an ordinary form for a cash act of sale. It was observed at once that the court was dealing with a sale of property between husband and wife which was in contravention of a prohibitory law, and that the effect of parole evidence sought to be introduced would change the very nature of the contract itself, indirectly converting an absolutely null and void contract into a valid one which would transfer the title of the property from the husband to the wife. Of course, it was held that, that could not be done. “To resort to such evidence for the purpose of contradicting or varying the contract entered into,” said the court, “in order to substitute in its place a contract of a dissimilar nature, is plainly reprobated by the textual provisions of our Code.” We fail to find what application of .the holding of the court in that case can be made here, where we have before us an act of donation which is not null and void on its face, but on the contrary, is apparently valid in every respect, and under which the ownership of the property demanded might properly have been transmitted. It is the controlling factor in this case so far, notwithstanding plaintiff’s misconception of its real character, and, taken in connection with the prayer of the petition demanding. ownership of the property under it, is sufficient to support a cause of action.

We conclude that the judgment of the district court sustaining the exception of no cause or right of action and rejecting plaintiff’s demand was erroneous,, and it is now ordered that the same be annulled, reversed, and set aside, and it is further ordered that the case be remanded to the district court to be proceeded with according to law, costs of this appeal to be paid by the appellee, and all other costs to abide the final judgment in the case.


author: MOUTON, J.

text:
    No. 794
    First Circuit
    CAVANAUGH ET AL. v. YOUNGBLOOD ET AL.
    (June 16, 1931. Opinion and Decree.)

      See, also, Cavanaugh et al., v. Youngblood et al., 10 La. App. 117, 119 So. 776.
    A. B. Cavanaugh, of Leesville and R. J. O’Neal, of Shreveport, attorneys for plaintiffs, appellees.
    S. I. Foster, of Leesville, attorney for defendants, appellants.
   MOUTON, J.

This case was before the Supreme Court on appeal and was disposed of in 162 La. 22, 110 So. 75.

The decision seems to have been based on the cases of Bouny et al. v. AnheuserBusch Brewing Association et al., 155 La. 437, 99 So. 395, and Snowden v. Cruse, 152 La. 144, 92 So. 764.

The exception of no cause or right of action was overruled by the Supreme Court in this case as to the forced heirs, and was remanded for the reduction of the donation, which the court said could not exceed one-third of the property of the disposer. R. C. C. art. 1493.

After the case was remanded the question presented for determination was in reference to the value of the property donated at the time of the death of the donor in the condition it was when the act of donation was executed. The lower court, as appears from its written opinion, decided the case on those lines.

The estimates made were on two blocks, 24 and 25, Cavanaugh addition, town of Leesville. There is considerable conflict in the ' evaluation of the property, and it is extremely difficult, as is remarked by the district judge to arrive at an exact estimate of its value in 1918. He refers to appraisals of $2,500, $4,000, $2,750, by one of defendants’ witnesses, and of $3,000. He finally reaches the conclusion that a fair estimate of its value in 1918 would be $2,700, which added to the value of the community property, that is $300, at the death of Mr. Cavanaugh, the donor, would bring it up to a total at his demise to the sum of $3,000.

After a careful reading of this record, we do not find that the court below has fallen into an error in reaching that conclusion.

The court divided this total in two, thus ascribing $1,500 to the widow in community, and leaving a like amount to the forced heirs. A deduction of $500 was made by the judge for one-third thereof as an extra portion to Mrs. Youngblood, daughter of Mr. Cavanaugh, to whom the donation had been made, and which had accrued to the benefit of her vendees, through mesne conveyances, and defendants in this case.

After making this deduction of $500 for the extra portion to Mrs. Youngblood, do-nee, he held that the other heirs were entitled to a balance of $1,000. .As there were eight forced heirs and Mrs. Young-blood had disposed of her share to her vendees, the defendants, by mesne conveyances, the court decreed that plaintiffs were entitled to an undivided 7/16 interest in said blocks 24 and 25 of the Cavanaugh addition.

It is ordered in the decree that upon defendants paying $1,000 to plaintiffs within ten days after judgment, they are given the right to retain an undivided 7/16 interest in the property-

counsel for plaintiffs find fault with this portion of the decree, contending that- it should order plaintiffs the absolute owners of that interest in the property upon failure of defendants to pay in the time specified.

In support of that contention, counsel for plaintiffs refer to the case of Stockwell v. Perrin, 112 La. 643, 36 So. 635.

In that case the forced heirs contended that they remained the owners of the specific property that had been transferred to the vendees. The court said it pretermitted any discussion as to what would have been the situation had the property involved in the litigation been held by the original donee under the act of donation. The court said that defendant therein was not the donee, but was a third possessor, and that it would deal with the situation as thus presented.

Proceeding further, the court said the right of the plaintiffs, forced heirs, was to call for payment to the amount needed to secure their legitime, or to enforce their demand through a forced sale, should the defendant refuse to pay. In that decision French commentators are quoted at length in support of the conclusion reached by the court. These authors say that after the immovable has been alienated by the donee thé heirs have rights to the money since the law will permit them to proceed against third possessors only after discussion of the goods of the donee.

Hence, we find no error in the decree wherein the property is ordered to be sold in default of payment by the defendants within the time specified, nor in other respects; and, as to the taxes, etc., they were not required to be deducted from the value of the property collated. Succession of Weber, 110 La. 674, 34 So. 731. The judgment has correctly disposed of the issues, and is affirmed with costs.


text:
    Nos. 810-811
    First Circuit
    WELCH v. LOUISIANA OIL REFG. CORP. (Two Cases)
    (June 16, 1931. Opinion and Decree.)

      Hawkins & Pickrell, of Lake Charles, attorneys for plaintiff, appellee.
    C. Y. Pattison, of Lake Charles, and J. C. Henriques and Frank T. Doyle, of New Orleans, attorneys for defendant, appellant.
   MOUTON, J.

In these two cases, Mr. Elsworth Welch is suing for damages to a’ Hupmobile sedan, his property, which resulted from a collision with a truck belonging to defendant corporation; and Mrs. Welch, his wife, is demanding damages for personal injuries received in the accident.

The lower court rendered judgment in favor of Mrs. Welch against defendant for $1,184.34, but rejected the demand of Mr. Welch, who appeals.

The defendant corporation also appeals and Mrs. Welch is asking for an increase in the amount of damages allowed to her.

All the litigants are therefore dissatis-' fied with the decree below which quite often happens. Indeed, to render justice is a difficult and hard task.

Mr. and Mrs. Welch are residents of Tulsa, Okla. In July, 1930, they left their home with their daughter, Miss Opal, for a visit to their son, who was living in the town of Sulphur situated west of Lake Charles.

They were coming southward in a sedan on the Beauregard highway; their daughter, Miss Opal, at the wheel driving, with her father, Mr. Welch, on the front seat on her right side. The Beauregard highway, which runs south, is intersected at right angles by the Old Spanish Trail, a paved highway. Beyond the intersection the Beauregard highway continues southward under the name of the Lafitte cutoff.

There was a stop sign at about 400 feet on the north side of the Old Spanish Trail towards which Miss Opal was driving. She did not see this stop sign, nor did her father or mother. The sedan was traveling at about twenty miles an hour, but slackened its speed to about 12 or 14 before reaching the Old Spanish Trail.

The truck of defendant corporation, which collided with the sedan in the intersection of the two highways, was coming from the east on the Spanish Trail, and was going westward towards Lake Charles. Mr. Moore, who was also driving towards Lake Charles, the same direction the truck was traveling, says that, when it passed ahead of him, which was at a short distance east of the intersection, it was moving at about twenty or twenty-five miles an hour.

Tritieo, a witness for defendant, was going north on the Lafitte cut-off towards the intersection, and saw the collision. He says that when Miller, the driver of the truck, “put his emergency on to side track the car,” it seemed to him that it was then going about twenty-five or thirty miles an hour.

It is shown that there was a filling station on the northeast corner of the intersection, but that it did not obstruct the views of travelers on either of the two highways where they intersected each other. The record shows that Miss Opal saw the truck when it was coming towards the intersection, and that likewise Miller, the | driver of the truck, saw the sedan before it reached the Spanish Trail at the intersection. It is well established, and practically undisputed, that the sedan entered the intersection first, and that the driver of the truck saw when it entered.

The truck, which was traveling on the paved highway, had the right of way, but, as the sedan had entered the intersection first, it had the right to proceed across the Spanish Trail, which it was the duty of the truck to respect. Middleton v. Jordan, 10 La. App. 189, 120 So. 668; Marshall v. Freeman, 10 La. App. 12, 120 So. 414; Pope v. Locascio, 13 La. App. 304, 126 So. 727, 729.

The driver of the truck does not deny that he saw the sedan going through' the intersection, but says, that, when about twelve feet from it, the car came suddenly to a stop; that he did all he could to swerve to his right, and thus pass in its rear, but without avail, and ran into the rear left wheel of the sedan.

The occupants of the sedan, Mr. Welch, his wife, and their daughter, while admitting they were going slowly, deny that their car had come to a stop in the intersection when it was struck.

Tritieo, witness to whom we have heretofore referred, says, that the occupants of the sedan were looking and pointing out for signs, and saw two hands, “one on one side, and one on the other.” The fact is that Mrs. Welch was asked if she was not confused, and was not looking for signs, and answered, “We looked.” This answer, it is true, was not given in reference to the time when the collision occurred, but shows that they were rather confused about the route they should take, and in which there is nothing strange or singular, as they were strangers from another state, and - were not familiar with the locality.

The sedan was coming towards the auto Tritieo was driving, and naturally he could not say with positiveness that it had actually come to a complete stop when he saw the truck run into it. If it had not come to a state of absolute immobility, no doubt it was barely moving when the collision occurred. That fact appears from the testimony of Tritico who was rigidly cross-examined by counsel for (plaintiffs in reference to statements he had made, to the effect that he had not seen the collision. His testimony shows that he testified in the case reluctantly, and, so far as the record shows, there is nothing whatsoever to indicate that he so conducted himself through corrupt or biased motives.

The lower court found that the weight of his testimony was affected, but was strengthened by the apparent sincerity and plausibility of the account he gave of the occurrence.

We can see nothing which could lead us to believe that he perjured himself in the testimony he gave in the case.

The lower court believed him, and we do not see why we should discredit his testimony. We therefore conclude that Miss Opal had virtually stopped in front of the advancing truck when it ran into the sedan. She had the right to proceed, but it was her duty to continue across the intersection, and, when she stopped or came to a state of practical immobility, she was negligent and at fault.

When Miller passed ahead of Moore’s car he was going at about twenty-five miles an hour, as is shown by Moore’s and Miller’s testimony. According to Tritico, about the time the collision happened, Miller was moving at the speed of about twenty-five or thirty miles an hour.

Miller says the fastest he could make in the truck was thirty-five miles an hour, but that he hardly ever traveled that fast. He says, he slowed down when he got to the intersection. If he did, he must have been going at a lively clip before he reached that point. It is impossible to reach any other conclusion from that character of evidence but that he was moving at twenty or twenty-five miles an hour when he entered the intersection, and had moderated his speed only to a slight degree when he ran into the sedan. He was familiar with the locality where, as he testifies he passed in his truck several times every day and knew that the traffic was quite heavy at the intersection. Knowing that, the speed at which he was traveling at the time must be characterized as being negligent and reckless.

It is shown that the intersection,' at that point, is over 100 feet in width, and if he had had his truck under the least control, there can be no doubt that, having seen the sedan when it entered the intersection, he would have had ample time to swing his truck to the right, and would have -easily and safely passed around the sedan in the rear.

Much has been said because Miss Welch had not, in obedience to the law, stopped the sedan before entering the intersection.

If both vehicles had reached the intersection at the same time, she would have been culpable of negligence if she had attempted to cross ahead of the truck which had the right of way. Norwich Union Indemnity Co. v. Cohen, 1 La. App. 512; Miss Lyda Belden v. N. G. Roberts, 3 La. App. 338.

She should have stopped on seeing the stop sign. She, however, did not see it, nor was it seen by her father or mother before entering the intersection. After she had entered, and was seen by Miller, the situation was reversed, and she had then acquired the legal right to proceed across. It then became the duty of Miller to respect her right to negotiate the intersection; otherwise we would- be driven to the untenable conclusion that Miller, because he had the right of way, could have plunged headlong over the route he was traveling, regardless of consequences. Such a doctrine' could not be maintained. This is not intended to mean that learned counsel. for defendant are contending for such a rule, but Is stated here merely to indicate the result which would follow if the vehicle that enters an intersection the second in point of time was not held to proper care and caution in allowing the first to proceed across the intersection.

Hence the fact that Miss Welch did not stop before entering the intersection is not the essential factor in this case, which, for a proper solution, revolves around the question as to what occurred when the cars collided. At that time, Miss Welch having practically stopped, she was at fault, as is hereinabove stated; and Miller, driver qf the truck, 'was equally negligent and at fault in running into the sedan.

Miss Welch and Miller were joint tortfeasors; suit could therefore be brought against defendant corporation which had to respond for its employee, Miller. Shield v. Johnson & Son Co., 132 La. 773, 61 So. 187, 47 L. R. A. (N. S.) 1080; Whipple v. Lirette, 11 La. App. 485, 124 So. 160; Denham v. Taylor et al., 15 La. App. 545, 131 So. 614.

The court rejected the claim of Mr. Elsworth Welch for damages to the sedan. The car belonged to him and was being driven by his daughter, a young lady 21 years of age. It was with his permission she was driving, he was sitting next to her on the front seat, and obviously the car was under his control. He was not a guest, her negligence was his negligence, and he is not entitled to any damages. His claim was correctly denied.

A different situation arises, however, as to the claim of Mrs. Welch, which is based on the proposition that she was a guest.

The contention of counsel for defendant is that she was engaged in a joint adventure or common enterprise with her .husband and daughter, was not a guest, and cannot recover.

This question was not passed upon in the able opinion of our learned brother of the district court. Whether it was presented to him as an issue we are not aware, and the duty rests upon us to dispose of it.

The proof is that Mr. Welch owned the sedan, and on the way his wife drove it, probably occasionally, although the record does not disclose that fact. His daughter was driving when the accident happened. Evidently she was driving for him, the head of the family and the owner of the car. His purpose was to take his family for a visit to his son at Sulphur. In most every case where a husband takes his wife around or on a trip in his car, a, stop or visit somewhere is intended. If in such cases the outing or visit is to be considered as a joint venture or enterprise, the rule which recognizes a wife as a guest in reference to her husband when she- is wrongfully injured in a collision or otherwise would be practically abolished or could rarely be applied.

As we understand the law on this subject, we find, that Mrs. Welch, who occupied the back seat in the car, and had nothing to do with its direction, control, or management, was a guest, and that her right must be considered in that light.

Counsel for defendant, if we appreciate their contention correctly, do not question the well-established rule to the effect that the negligence of the driver cannot be imputed to the guest. In emphasizing their position on this branch of the case, they refer to that part of the syllabus in Churchill v. Texas & Pacific Ry. Co., 151 La. 726, 92 So. 314, where the court used the following language:

“The negligence of the driver of an automobile in approaching a railroad crossing without slackening his speed, and in attempting to beat the train across, does not defeat recovery for the death of one riding in the automobile as his guest, unless the circumstances were such that deceased could be charged with negligence of his own.”

With the viéw of being more specific, we must say, that counsel are grounding their contention on the clause of the foregoing quotation where the court says, “unless the circumstances were such that the deceased could be charged with negligence of his own.”-

In other words, counsel contend that Mrs. Welch was guilty of independent negligence. In support thereof they say that Mrs. Welch failed to warn her daughter not to get in the way of the truck while she saw it approach at a dangerous speed, and was therefore culpable of contributory negligence.

In the Churchill case, to which counsel refer, .the court said that Churchill, the guest, who was killed, did not see the train until almost at the instant of the collision, but had shouted a warning as soon as it was seen, and . was not therefore guilty of negligence.

Testifying in reference to the time of the impact, Mrs. Welch says she did not see the truck until it hit the sedan in the back. In speaking of the driver of the truck, she. says: “I just saw him. going to hit us.” She was then asked: “Did you tell your daughter he was going to hit you?” She replied: “No, sir. I didn’t have time to tell her he was going to hit us.”

Churchill, according to the Supreme Court)' had the time to shout a warning, but Mrs. Welch did not. Even under the ruling in that case, Mrs. Welch "could not possibly be held to have failed to give a warning.

Counsel say Mrs. Welch saw the truck approaching, and failed to warn her daughter to keep out of its way. It is true Mrs. Welch said she saw the truck coming, but in' connection therewith, remarked that they were going straight across, and that she paid no attention to it until she was struck. She thought she said we had “lots of time to get across.” In connection with that statement, it is appropriate, to refer to what the court said in reference to Churchill, in the Churchill case above cited.

The court said that Churchill, the guest,, was not required to keep a lookout for danger, but could rely upon the discharge of that duty by the driver, who was responsible for the operation, of the car.

In a recent case, in passing on a similar question, we recognized the rule that the guest could not rely implicitly on the driver, but to a reasonable extent, would place his reliance on the one operating the auto.

In this case, it is evident that Mrs. Welch thought, and had the right to assume, that her daughter would keep, on straight across the intersection, that she would have ample time to pass ahead of the oncoming truck and could not anticipate that her daughter would suddenly stop in the intersection. Mrs. Welch was therefore not negligent for relying on that assumption. It was for that reason, evidently, that she gave no further attention to the truck after seeing it, and''noticed it only when it was running into the. sedan, at a time too late for her to even shout a warning, as Churchill had done before he was killed by the train. Mrs. Welch was sitting on the back seat, had nothing to do with the driving which was altogether in the hands of her daughter and husband, had no control or management of the sedan, and cannot, under the circumstances above detailed, be held guilty of contributory negligence.

She is therefore entitled, as a guest, to recover damages against defendant; the only question remaining being as to the quantum which should be allowed her. It is shown that after the accident she was carried to the sanitarium at Lake Charles, where she remained three days; she had three ribs broken, hurt badly across the abdomen and shoulder, also in one of her arms; suffered intensely; was two months at her son’s home, and almost entirely incapacitated; that two of her ribs are healed, but the other overlaps, which is usually accompanied by pain. The physicians did not think that her injuries would be permanent. -Such seems to have been their opinion, but, however that may be, considering the nature of her injuries and bruises to her body unnecessary to describe, and the intense pain she experienced, which continued in a lesser degree to the time of the trial, we think that the allowance of $1,184.34 in damages is fair, and demands neither increase nor reduction.

Judgment affirmed in both of these two consolidated cases.


text:
    No. 831
    First Circuit
    D'AGOSTINA v. CARBO
    (June 30, 1931. Opinion and Decree.)
    Jos. Nicolosi, of Plaquemine," attorney for plaintiff, appellant.
    Schwing & Obier, of Plaquemine, attorneys for defendant, appellee.
   LeBLANC, J.

This suit was brought to recover $150 alleged to be the balance due for rent of certain premises situated on a street adjacent to the parish jail in the town of Plaquemine. The petition alleges that the premises were vacated in the month of August, 1928, and we note that suit for' rent was filed, on October 8, 1930.

The defense set up is that the person for whom the house involved was rented, was at the time working as a cook in the parish jail, the jailer being her son-in-law, and this house was to be furnished by the then sheriff of the parish, Captain William Erwin, now deceased. Defendant avers that he was directed by the said sheriff to make arrangements with plaintiff’s husband regarding the rent, and that it was understood by the latter that the premises were being rented for account of .the said William Erwin.

The defense as thus presented placed a sharp issue of fact before the lower court, and from an amount of conflicting testimony, the district judge held that the plaintiff had failed to carry the burden of proof and rendered judgment dismissing her suit. From that judgment the ease comes before us on appeal.

Plaintiff’s husband testifies that the house was rented by the defendant and so does Miss Rosa Dana, her sister, who was working for Jos. D’Agostino, .the husband, as his bookkeeper. She says that Carbo, the defendant, made two payments to her, one of $50 and another of $40, for which she issued a receipt to the defendant himself. There is introduced in evidence a charge slip used by D’Agostino in his business as general commission merchant, dated September 3, 1928. It simply bears .the name “Carbo” and seems to be a credit slip in the sum of $40. It reads, “By cash on account — $40.00,’’ and then the notation, “Paid,” with the signature of Jos. D’Agostino, by R. D. This witness does not remember if the check given her by the defendant was his own- or Captain Erwin’s. The defendant states positively that the check he gave was Erwin’s, indicating further by his testimony that he did not have a bank account and •therefore issued no checks of his own.

Defendant and his wife both testify that the house was rented by Captain Erwin for the jail cook, defendant intimating that the salary he was receiving would not have permitted him to rent a house for her. They both state that defendant was. the one who made the arrangements with D’Agostino concerning the house, but that he did so for Captain Erwin, and that D’Agostino was well aware of what the agreement was, as under it Erwin, who was sheriff and tax collector, was to -take care of the taxes on the property of his wife.

There is considerable testimony in the record about some alleged statements made by Captain Erwin and also concerning the motive he had in mind in wanting to rent this particular house. As he is a person deceased, the statements he is reported as having made are not of much probative value and the court is. not much concerned with the motive which may have prompted him in considering this which is a claim for unpaid rent. All these are matters which only serve to make already conflict: ing testimony the more confusing and does not aid much in reaching a proper solution.

The case is really one in which much reliability is to be placed on the integrity and credibility of the parties to the suit and those who testified, as the surrounding circumstances tend to strengthen or weaken the contentions of either side according to the way in which they are viewed. The district judge was able, from his probable knowledge of all the parties and his observations of the witnesses, as. well as from his appreciation of the circumstances attending their testimony, to form a more accurate opinion of its real worth than are we sitting as an appellate court. The rule, familiar to all, in such cases, is to give great weight to his findings and leave them undisturbed unless they appear to be manifestly erroneous. We are unable to say that they were in this case, and his judgment dismissing the plaintiff’s suit is therefore affirmed.


author: ELLIOTT, J.

text:
    No. 835
    First Circuit
    STATE EX REL. MITCHELL v. COHN FLOUR & FEED CO. ET AL.
    (June 16, 1931. Opinion and Decree.)
    Rownd & Warner, of Hammond, attorneys for relator.
    Taylor, Porter & Brooks, of Baton Rouge, and Carroll Buck, of Amite, attorneys for respondent.
   ELLIOTT, J.

William L. Mitchell, defendant-appellant in suit of Cohn Flour & Feed Co. v. William L. Mitchell, No. 4002 on the docket of the. district court for the parish of Tangipahoa, alleges that he suspensively appealed to this court from the judgment against him in said suit, but that Cohn Flour & Feed Company nevertheless procured the issuance of a writ of fieri facias on said judgment against him, caused his property to be seized, and is attempting to execute the same, regardless of his appeal, and that Cohn Flour & Feed Co. is supported by the respondent judge in its effort to defeat the effect of his said appeal.

The petition herein relates that the service of citation and. copy of Cohn Flour & Feed Company’s petition on him in said suit was domiciliary; the papers having been delivered to his wife during his absence from home.

That thereafter he filed exceptions to the suit, which were argued by counsel for Cohn Flour & Feed Company in the absence of, and without the knowledge of, his counsel, and were by the court overruled.

That not knowing said exceptions had been 'overruled, he made no further appearance, and thereafter a judgment by default was entered up against him, which was subsequently confirmed at a special session of the court, held December 23, 1930, after court had been adjourned for the Christmas holidays, and in the absence of, and without the knowledge or consent of, relator or his counsel.

That said judgment was signed on December 23, 1930.

That on December 30, 1930, notice of said judgment was issued to, but was not served on, him until February 23, 1931.

That although not notified of the judgment as the law requires, he learned of the fact and secured an order for a suspensive appeal therefrom, and on January 6, 1931, perfected said suspensive appeal by filing an appeal bond in the case, in the sum and amount required by law.

That on or about January 30, 1931, although notice of judgment had not been served on him, and notwithstanding he had perfected his suspensive appeal, Cohn Flour & Feed Company caused a writ of fieri facias to be issued against him, under which a large amount of * property, real and personal, belonging to him was seized and about to be advertised tor sale-when he applied for an injunction.

That a rule issued to Cohn' Flour & Feed Company in connection with his application, and after hearing before A. L. Ponder, Jr., one of the judges of said court, the rule was dismissed; the reason given by said judge for so doing, being that said appeal bond had not been filed within the time required by law for a suspensive appeal, after the signing of the judgment, and that said appeal had not been properly perfected and lodged in this court.

He avers that said judgment, if valid, is not executory and was not at the time said fieri facias was issued, because of his suspensive appeal to the Court of Appeals, pending at the time.

That Cohn Flour & Feed Company had apparently abandoned the original writ of fieri facias, but had recently caused another one to issue, which would be executed to his irreparable injury without hindrance from the district court, regardless of his suspensive appeal pending in this court.

That the jurisdiction of this court had vested at the time said writ issued by reason of said suspensive appeal, and that of the district court had been thereby at -the same time divested.

He prays that writs of prohibition and mandamus issue to said Judge A. L. Ponder, Jr., and to Cohn Flour & Feed Company -forbidding them from attempting to execute, or .to allow the execution of, the judgment mentioned pending said appeal.

Alternative writs were issued as prayed for. The exhibits annexed to and made part of the petition to this- court show that the service of the petition and citation on relator in the suit mentioned was domiciliary; that after having been cited he filed an. exception urging that the petition against him in said suit was not drawn in the form required by the Pleading and Practice Act of this state, in that each material allegation in said petition had not been separately numbered in a separate paragraph; which being overruled, a default was entered up against him and subsequently confirmed, by judgment signed in open court on December 23, 1930.

The minutes of January 3, 1931, show that a rule was taken up, heard, submitted, and dismissed on the ground that the court could not under rule set aside a judgment, and that relator, on the same day, upon motion in open court was granted a suspensive and devolutive appeal to' the Court of Appeal, First Circuit,, from said judgment of December 23, 1930, returnable on or before February 9, 1931, suspensive upon giving bond as required by law, devolutive upon giving bond in the sum of $50.

It is further shown that the judgment in question is for $1,416.40 with 8 per cent per annum interest thereon from September 15, 1930, until paid, and for 10 per cent in addition on the principal and interest due as attorney’s fees. That relator gave an appeal bond in the case for $2,400 dated January 5, 1931, filed in the case on January 6, 1931. That a notice of judgment dated December 30, 1930, had issued, but was not served on him until February 23, 1931. That on January 30, 1931, a writ of fieri facias issued on the judgment, and the seizure of relator’s property thereunder is admitted.

The respondent judge in hia[ return does not deny any of the above-stated facts, but explains and defends, his course in holding a term of court on December 23, 1930,

. As. for the writ of fieri facias, he returns that he had the power and right to decide whether or not the appeal from -"aid judgment was suspensive, and found and held that it was not suspensive, for the reason that the bond had not been filed within ten days, counting from the rime the judgment had been signed. That he had refused to quash and set aside the writ on said account. He denies that' a suspensive appeal from said judgment of December 23, 1930, is pending in this court. He further returns having learned.. after ruling that the writ had been recalled before he had ruled, but that another one had since been issued in its place. That he had not been called on to pass on the writ last issued.

Cohn Flour & Feed Company, responding, admits that there was domiciliary service in said suit; that relator filed an exception which was overruled, then, not knowing it had been done, no answer was. filed; that thereafter a judgment by default was entered up against him, which was subsequently confirmed at a special session of the court held on December 23, 1930, without the knowledge or consent of relator, after it' had been adjourned for the Christmas holidays.

Averment 6 in the relation of said Mitchell about the adjournment of the court, and the statements of the judges and several others, not deemed important in the present proceeding, are denied.

' Respondent, upon information and belief, admits that relator obtained an order for, but denies that he suspensively appealed from, the judgment in question, and denies that the case is pending in this court on a suspensive appeal; admits having caused a writ of fieri facias to issue against relator, on January 30, 1931, under which his property was seized. It alleges that the writ was properly issued and that the seizure was valid.

It avers in conclusion;

“That the above described judgment on which execution has issued as aforesaid was rendered and signed on December 23rd, 1930 and that the appeal bond filed by the plaintiff herein was not filed in said court in which said judgment was rendered until January 6th, 1933, which filing was therefore not within ten days, not including Sundays, after said judgment was signed and therefore said appeal bond cannot and does not operate as a suspeirsive appeal bond and cannot and does not have the effect of effecting a suspensive appeal and does not stay execution of said judgment or any other proceedings thereon.”

It thus appears that the only question is whether the filing of relator’s appeal bond on January 6, 1931, served to render his said appeal suspensive.

The relator has not furnished us with any brief in support of his contention, but Cohn Flour & Feed Company, by brief, supports its contention and that of the respondent judge that the delay in which to give a suspensive appeal bond must be counted from the time of the signing of the judgment, which in this case took place on December 23, 1930, and counting therefrom the appeal bond filed on January 6, 1931, was one day too late to serve as suspensive appeal therefrom.

It is evidently the understanding of Cohn Flour & Feed Company, and it is also evidently the position of the respondent judge, that the effect of Act 163 of 1898, sec. 5 (amended Act 40 of 1904) passed in the enforcement of art. 3.17 of the Constitution of 1898 was to amend the Code of Practice, arts. 575 and 624, according to which .the delay in which to suspensively appeal from a judgment' confirming a default based on domiciliary service is to be counted from the time notice of judgment is served on the party cast. Art. 624 contains the same provision as to judgments subject to appeal before execution can be issued thereon.

The Act mentioned, section 6, provides:

“That all judgments of the District Courts shall become executory ten (10) days, exclusive of Sundays, after being signed by the Judge. Any person aggrieved by the judgment may suspend the execution thereof by obtaining an order of appeal and furnishing bond for a suspensive appeal within the delay above mentioned in such sum as the law requires ox-may be fixed by the Judge, said appeal to be returnable to the proper appellate Court according to law.”

Section ■ 7:

“That all laws or parts of laws conflicting with the provisions of this Act oe and the same are hereby repealed.”

The Act 163 of 1898 was passed in the enforcement of the Constitution of 1898, art. 117, which, so far as pertinent, reads:

“Until otherwise provided by law, judgments shall be signed after three days from the rendition thereof, and becomes executory ten days from such signing.”

This provision of the Constitution, and of Act 163 of 1898 in furtherance thereof, made all final judgments, whether based on defaults, and domiciliary service or otherwise, executory ten days after signing, and to that extent superseded the provisions of the Code Practice, ax-t. 575, as amended at that time by Act 45 of 1890 and article 624, both of which contain provisions requiring, where the judgment is upon the confirmation of a default and based on domiciliary service, in cases subject to appeal, that the time in which to suspensively appeal, or in which the judgment can be executed, is to be counted from the time of the service of notice of judgment. Such procedure had been the law since the adoption of Act 40 of 1843. It may be well to state that since 1843 up to 1898 numbers of decisions were rendered holding that the time in which bond for a suspensive appeal might be filed, or in which such judgments could be executed that had been rendered in confirmation of a default was to be counted from the time notice of judgment was served on the party cast. See Greene v. Mayfield Johnson, 21 La. Ann. 464; State ex rel. Lobdell v. Judge, 22 La. Ann. 90; Taylor v. Pipes, 24 La. Ann. 551, page 555; Taylor v. Woodward, 25 La. Ann. 212; Hoffman v. Howell, 27 La. Ann. 304; Riley v. Howell, 28 La. Ann. 329; Francis v. Louise Martin, 28 La. Ann. 403; Verges v. Gonzales, 33 La. Ann. 410; De Sentmanat v. Soule, 33 La. Ann. 609.

But after the adoption of the Constitution of 1898, and the passage of Act 163 of 1898, judgments became executory, as claimed by respondents, ten days after the judgment was signed, subject to certain prerequisites, not important in the present matter.

But the Oonstitution of 1921 does not contain any provision, such as we have quoted, from the Constitution of 1898, and the Legislature, by the adoption of Act 289 of 1926, amending art. 575 of the Code Practice, has restored the former provision of the law, requiring notice of judgment to be served in cases like the 'present, and making the time, in which a suspensive appeal may be taken, count from the time of such notice.

It says, Code Practice, art. 575 (amended Act'289 of 1926):

“If the appeal has been taken within ten days, not including Sundays, after the judgment has been notified to the party cast in the suit, when such notice is required by law to be given, it shall stay execution and all further proceedings, until definitive judgment be rendered on the appeal, provided,” etc.

This provision for notice in article 575 on the subject of appeal restores the effect of the same provision in article 624, when it comes to the execution of a judgment subject to appeal.

This article provides:

“Respecting judgments subject to appeal, the party in whose favor one is rendered can only proceed to the execution after ten days, counting from the notification which he is obliged to make to the opposite party, if the latter has not appealed from the judgment within this interval, or if, having appealed, he has. failed to furnish the security necessary to stop execution; provided,” etc.

Applying Code Practice, art. 575 (amended Act 289 of 1926) to the present case, service on Mitchell to appear and file his answer was domiciliary, and, the judgment against him being the confirmation of a judgment by default, the ten days delay in which to suspensively appeal is to be counted from the service of notice of judgment. Mitchell having appeared in open court and moved for and was granted a suspensive appeal, he must be considered as accepting notice and waiving service, dating from the order granting the appeal, which was January 3, 1931. And the oond having been filed -on January 6, 1931, the appeal was suspensive and must have effect accordingly.

In Verges v. Gonzales, cited supra, we notice the language, “The defendant thus constructively before the court as surety, not having answered, having, made no actual appearance in the case, was entitled to notification of the judgment rendered against him.”

In Lobdell v. Judge, cited supra, it was urged that the party was. precluded from urging want of notice of the-proceedings, he having received notice through the fact that his counsel was present when the proceedings were carried on, decided, etc. But the court held that the party cast was entitled to notice of the judgment, such as the law provides for. And in Taylor v. Woodward, heretofore cited, an exception had been filed by the party cast which had been overruled, but the appearance made, did not, in the opinion of the court, dispense with the necessity for the service of a formal notice of judgment on the party cast, such as the law provided for.

In the present case, the appearance which relator made in the case mentioned, merely setting forth that the petition against him did not comply with the requirements of the pleadings act, was of course taking notice of the suit, but it was-not an answer such as the law provides for in providing that after personal service, or after an answer has been filed by the party cast, he will be deemed to have notice of the judgment rendered against him as a result of its having been signed by the judge.

The Constitution of 1898 having been superseded by that of 1921, the provision which it contained, relative to the time ivithin which judgments rendered by district judges became executory, is no longer a constitutional provision. The Act 163 of 1898, sec. 6, making “all judgments of the District Courts shall become executory ten (10) days, exclusive of Sundays, after being signed by the Judge” stands, to the extent that it is in harmony with the Code Practice, art. 575 (amended Act 289 of 1926), and thereunder in all cases when the defendant has had personal service made on him' to appear and file his answer, or when a judgment has been rendered in a case after answer filed by the defendant, then the ten days- in which to suspensively appeal or to execute is to be counted from the day it was signed by the judge. But when the judgment is the confirmation of a default, based on domiciliary service, as in the present case, then the later law, Act 289 of 1926, governs and the service of notice of judgment on the party cast is necessary in an appealable case before it can be executed. And in such a case the ten days in which the party cast may suspensively appeal is to. be counted from' the time of the service of such notice.

Therefore Cohn Flour & Feed Company, in endeavoring to execute the judgment in question from which relator has. suspensively appealed to the Court of Appeal, is proceeding in violation of the law, and the • respondent judge, in not quashing the writ of fieri facias issued, when called on to do so and to stop the execution, also proceeded contrary to the law, and in violation of the vested jurisdiction of this court. It is necessary for us to give proper effect and protection to relator’s suspensive appeal, until it has been disposed of as the law provides.

For these reasons the alternative writs of mandamus and prohibition heretofore issued herein to Cohn Flour & Feed Company and to .the respondent judge are now made peremptory. The writ of fieri facias which the respondents both state to nave been issued on said judgment against W. L. Mitchell is annulled, and the said Cohn Flour & Feed Company and the respondent judge are each forbidden to proceed any further in the matter of the execution of said judgment, until the pending appeal has been acted on in this court, and our action has become final.

It is- further ordered that Cohn Flour & Feed Company pay the cost of this proceeding.


text:
    No. 861
    First Circuit
    TIMES-PICAYUNE PUBLISHING CO. v. BADON ET AL.
    (June 30, 1931. Opinion and Decree.)
    L. Y. Cooley, Jr., of Slidell, attorney for plaintiff, appellant.
    S.W. Provensal, of Slidell, attorney for defendants,' appellees.
   MOUTON, J.

February 1, 1929, plaintiff entered into a contract with W. R. Watkins to furnish the latter with its newspapers for sale and distribution, under which Watkins obligated himself to render monthly accounts for all copies received, etc.

On the date of the execution of the contract, L. Badon and J. E. Chastang subscribed their names, on the reverse side of the agreement, to the following bond:

“We hereby bind ourselves in solido up to the sum of $700.00 to Times-Picayune Publishing Company for the faithful performance by the said W. R. Watkins, of the contract on reverse side, and for the prompt payment by him of the sum due or' to become due thereunder and agree that in the event of default of payment by said W. R. Watkins the .Times-Picayune Publishing Company may proceed directly against us or any one of us for the full amount due without being required to first institute suit against the said W. R. Watkins.”

Exceptions of no cause or right oE action were filed by defendants, were maintained, and the suit was dismissed.

The first contention of defendants is that there was no valid contract.

The second and third contentions, are that there was no acceptance of the guarantee by plaintiff company, and no notice of its acceptance to defendants, that there was no existing debt, and that plaintiff should have proceeded first against Watkins, the principal debtor.

The foregoing embodies the substance of the defenses urged.

As the averments of the petition and the provisions of the contract thereto annexed must be taken as true under the exceptions, there is clearly no ground to sustain the first defense questioning the valid- ' ity of the contract.

Under the bond, hereinabove copied, the defendants bind themselves in solido to pay up to the sum of $700 any amount due or to become due under the contract. It is impossible to construe the language thus used as a mere offer by defendants to become guarantors for Watkins. If the words used could be construed as meaning that defendants were obligating themselves only to a promissory guarantee, there would be merit in the contention urged by defendants that an acceptance on the part of plaintiff company and a cotice thereof to defendants would have been essential to constitute a binding contract. Instead of being a mere offer of guarantee, the bond created a perfect guarantee, which dispensed with' the necessity of a formal acceptance by plaintiff company, and of any notice of acceptance to defendants. It was. so held by our courts in agreements of that character. People’s Bank, of New Orleans v. J. L. Lemarie et al., 106 La. 429, 31 So. 138; Edward B. Bruce Co. v. Lambour et al., 123 La. 969, 49 So. 659; Hibernia Bank & Trust Company v. Succession of Cancienne, 140 La. 969, 74 So. 267, L. R. A. 1917D, 402.

In the last-cited case it was also held that it made no difference on the question of notification of acceptance in a case of this nature, whether the debt, for which the sureties bound themselves in solido, was in existence at the time of the agreement or was thereafter incurred. This ruling of the court does away with the contention of defendants that the guarantee in this case was not for an existing debt.

In the bond, to which we have referred, it is specifically provided that plaintiff company could proceed against both or either of the defendants without first instituting suit against Watkins in case of his failure to meet his payments under the stipulations of his contract. Under the general law governing suretyship, the property of the principal debtor is to be first .discussed or seized, unless the surety has renounced the plea of discussion. Civ. Code, art. 3045.

It is clear that he has the right to make such a renunciation, and we are not aware of any prohibitory rule which would preclude him from exercising the privilege of permitting his creditor to sue him before proceeding against the party in whose favor he has executed his obligation.

This disposes of the contentions submitted in the case. The judgment is erroneous, and must be reversed.

It is therefore ordered and decreed that the judgment be annulled and reversed; that the exceptions, be overruled, and that the case be remanded, to be proceeded with according to law. .Appellee to pay the cost of appeal, those below to await the decision of the ease.


text:
    No. 849
    First Circuit
    BAILEY ET AL. v. DEMOURELLE
    (June 30, 1931. Opinion and Decree.)
    J. M. Blache, Jr., of Hammond, attorney for plaintiff, appellee.
    Rownd & Warner, of Hammond, and Fred A. Blanche, of Baton Rouge, attorneys for defendant, appellant.
   MOUTON, J.

The above-entitled suits were consolidated for trial instituted for the recovery of damages which resulted from the collision of a Ford coupe and a Buick car which occurred in July, 1929, in Tangipahoa parish, at a point on the Hammond-Covington highway, known as Roberts. At or about that point a public road running north and south intersects that highway.

Demourelle was driving the Buick westward from Covington towards Hammond, and Corrie Bailey was driving the Ford in the direction of Roberts, northward towards the intersection. Mrs. Agnes Bailey was injured in the collision, so was Claude Eastman, minor son of plaintiff Loran O. Eastman. Both of these plaintiffs recovered judgment against defendant.

Corrie Bailey, the other plaintiff, has been eliminated from the case.

Before proceeding to a discussion of the merits, we must dispose of a motion to remand the case made by defendant.

The note of evidence shows that, by agreement between counsel, the testimony of Bill Godcheaux and J. B. Breeland, witnesses for defendant, and I. J. Camp, a witness for plaintiff, was to be taken by deposition at a later date to be agreed upon by counsel. A footnote of the stenographer says: “Testimony closes other than the witnesses agreed upon by counsel at the beginning.”

Counsel for defendant say that the evidence was not completed by taking the deposition of these witnesses as agreed, and for that reason the case should be remanded. Counsel for plaintiff contend that ^ attorneys for defendant abandoned. this right to have the .testimony of these witnesses taken before the submission of the cause for decision. This is denied by counsel for defendant.

The minutes of the court say that the two cases referred to were previously tried and submitted, were again taken up, and that judgment had been rendered therein in favor of plaintiffs and against defendant.

The judgment of the court says: “This cause having ■ been previously tried, argued and submitted and by the Court taken under advisement was again taken up by the Court,” etc., and therefore not only conforms with the minute entry, but goes a bit further by using the additional words “and argued.”

In such a situation as this, we should be guided by the minute entry and the judgment of the court, and must presume that the reservation noted to have the deposition of these witnesses taken at a later date was abandoned.

When testifying in the case, Corrie Bailey was asked if some witnesses had not said immediately after the accident that defendant, Demourelle, was at fault in the collision. Bailey answered that Breeland, Bill Godcheaux, and I. J. Camp had made that statement. Godcheaux and Breeland were the two witnesses in reference to whom defendant had made the reservation on the note of evidence.

The statement of these two witnesses charging defendant with negligence, as testified to by Corrie Bailey, probably accounts for the abandonment of the right reserved for their subsequent deposition, which, however, independent of that fact, we must presume from the minute entry and the judgment of the court to have occurred as hereinabove stated.

MERITS

Corrie Bailey, the record shows, was driving a Ford coupe, and with him, his mother, Mrs. Agnes Bailey, was sitting to his right on the front seat, and on her right was Claude Eastman, minor son of Loran O. Eastman, the other plaintiff, the nephew of the driver and grandson of Mrs. Agnes Bailey.

He was driving northward on the gravel road that crosses the Hammond-Covington highway near Roberts. It appears that near the intersection, on the east side of this gravelled road, there is a store and other obstructions which makes it almost impossible to see a car coming from Covington on the Hammond-Covington highway.

Corrie Bailey says it would be hardly possible for a driver going northward towards that intersection, upon approaching it, to see an auto coming from Covington, the direction from which defendant, Demourelle, was driving at the time. Several other witnesses testified to the same effect on that subject.

Corrie Bailey says he slackened his speed or slowed down when he got to the intersection. He did not, however, stop, and entered the intersection at a speed of about 15 miles an hour. He says after entering the intersection, he did not look east-, ward, that when he was about 3 feet from the northern line of the Hammond-Covington highway, and had about negotiated that highway, the Buick defendant was ' driving struck the rear end of his car, throwing out its three occupants.

Defendant, who was traveling on the Hammond highway, had the right of way, and it was incumbent .upon Corrie Bailey, •in entering the intersection, to look eastward before attempting to go across. In failing so to do he was at fault, and which, we presume, accounts for his failure to appeal. .

Reference is made to Corrie Bailey, although his case is not under review in ■this court, because, if defendant was also at fault,’they were joint tort-feasors; defendant for that reason being liable in damages to plaintiffs if they were the guests of Bailey, and were not chargeable with negligence of their own.

Several witnesses said that, before reaching the intersection, defendant was traveling at 45 miles an hour, one said at 50, It is shown that defendant’s car went 150 feet from where it had struck plaintiff’s car before coming to a stop. Defendant said he had, on approaching the intersection, slowed his speed to 15 miles an hour. He had stated that he had seen Bailey’s Ford as it was entering the intersection, or a little before, and was asked the pertinent question, Why, if that was the case, he had not stopped his ear before he ran into the other car? His answer was, that he could not, which, we must say, is not at all satisfactory. If he had been going at 15 miles an hour when he entered the crossing, after he collided with the other auto,' his car would not have gone 150 feet from the point of collision before stopping.

The inescapable conclusion is that defendant was going at an excessive speed, and was therefore also at fault when he collided with plaintiff’s car.

Mrs. Agnes Bailey is a lady 66 years of age, the mother of Corrie Bailey, the driver of the car of which she was an occupant with her grandson, Claude Eastman, minor son of Loran Eastman. Mrs. Bailey says she did not know anything about a car, and had. nothing to do with its control and operation. The minor, Claude Eastman, was sitting on the - front seat qn the right side, of his grandmother, and also had. neither .supervision, direction or control of the car which was being driven by his uncle, Corrie Bailey. Mrs. Bailey and the minor, Claude Eastman, were the guests of Corrie Bailey, and were not engaged in any common adventure or enterprise.

The contributory negligence of Corrie Bailey cannot be attributed to his guests, who had no part in the management of the auto he was driving. Daull v. New Orleans Ry. & Light Co., 147 La. 1012, 86 So. 477.

In the case of Churchill v. Texas & Pacific Ry. Co., 151 La. 726, 92 So. 314, the court said that the guest, not having charge of the operation of the machine, is not required to keep a lookout for danger, and can rely on the discharge of that duty- by the driver. In other cases decided by this court, we have had occasion to apply the rule announced in the Churchill case, but took occasion to say that the guest was not entitled to rely implicitly or absolutely on the driver, but to a reasonable extent could rely on the careful management or operation of the car by the driver. In applying this rule, due regard should be given to the facts and particular circumstances of each case.

In this case the evidence- shows that Mrs. Bailey is a grandmother, an elderly lady of 66 years. She wore spectacles, which the record shows were broken in the collision. Looking one way or the other for cars traveling on the HammondCovington highway would have been of little or no service to her or the driver.

This driver was her son, 21 years of age, had been running cars since 1925, and was an experienced driver. He had slowed his auto on approaching the intersection, and it is reasonable to say that she could assume he would look to his right and left before venturing across that highway. Such an assumption or reliance to that extent in the proper management of the car did not create negligence of her own or independent negligence so as to preclude her from recovering damages as a guest.

The other plaintiff, Claude Eastman, was a minor, riding with his grandmother and his uncle, the driver. It can hardly be contended that he should not recover as a guest because he did not interfere with the management of the car or most probably relied on its proper operation by his uncle.

Mrs. Bailey and the minor both say they did not see defendant’s car before they were struck, and therefore cannot be charged with failure to have given warning of danger to the driver of their car. They had the right to rely on the driver to the extent above explained, and the negligence of the driver of their car cannot be imputed to them, which entitled them to' recover, as was' held below.


text:
    No. 850
    First Circuit
    EASTMAN ET UX. v. DEMOURELLE
    (June 30, 1931. Opinion and Decree.)

      (No Syllabus)

    J. M. Blache, Jr., of Hammond, attorney for plaintiffs, appellees.
    Rownd & Warner, of Hammond, and Fred A. Blanche, of Baton Rouge, attorneys for defendant, appellant.
   MOUTON, J.

In this case, for the reasons given in the two consolidated cases, 135 So. 623, the judgment appealed from is affirmed.


author: TALIAFERRO, J.

text:
    No. 3457
    Second Circuit (Second Division)
    RAINS v. THOMASON & CHAMPION
    (June 11, 1931. Opinion and Decree.)
    (July 16, 1931. Rehearing Refused.)
    Ponder & Ponder, of Many, attorneys for plaintiff, appellee.
    Boone & Boone, of Many, attorneys for defendant, appellant.
   TALIAFERRO, J.

Plaintiff instituted this suit against the commercial partnership of Thomason & Champion, composed of M. C. Thomason and Y. E. Champion, alleged to be nonresidents of the state of Louisiana, to recover $606, with interest, the price of 33 head of cattle, and to enforce the vendor’s lien and privilege thereon. Writs of sequestration and attachment were prayed for and issued under which the sheriff of Sabine parish seized 33 cattle claimed to be those for which the $606 was due. There was personal. service on both members of the defendant firm while in Sabine parish.

M. C. Thomason, through counsel, appeared and filed application to bond the sequestration and attachment, alleging that the cattle seized thereunder belonged to him. He furnished bond for the amount fixed by the court, and the cattle were released to him. Under reservations, he filed exception of nonjoinder of parties, alleging that the minor son of George Rains, deceased, should be a party plaintiff, and also filed motions to dissolve the writs of sequestration and attachment on the grounds that there was no proper bond for either writ in that the bonds given were not verified as required by law, and further that the allegations made to secure issuance of said writs were untrue.

The exception of nonjoinder was overruled, while the motions to dissolve were referred to the merits of the case.

Defendant Thomason, reserving his rights under exceptions and motions by him filed," answered. He denies that he is due plaintiff any amount, and avers his business relationship with his codefendant, Y. E. Champion, to be: “That said Champion was to buy and deliver cattle to your defendant, who agreed to pay for same and sell same and divide the ' profits equally.”

He denies that the 33 head of cattle in question were purchased by Champion from Rains, and therefore the check on his bank at Center, Texas, for $606, asserted price thereof, was not paid. He avers that said Champion and George Rains were pasturing cattle and working together, and lacked 73 head of cattle delivering the number he paid for. He admits that he is a nonresident of Louisiana. By a supplemental answer this defendant sets forth that he paid for all cattle he purchased from plaintiff and her deceased husband, in fact, by error, overpaid them $100, for which amount, in reconvention, he prays for judgment.

Defendant Champion did not appear or file answer. Default was entered against him.

After the issues were thus joined, plaintiff filed an amended petition praying for issuance of an alias writ of attachment on grounds of nonresidence of Thomason, and for garnishment process, alleging that J. B. Vandegaer, resident of Sabine parish, had property in his possession belonging to, or was indebted unto, the defendants, or some of them. Usual order by the court issued on this petition and interrogatories propounded to and served on the garnishee. The garnishee answered the interrogatories, under oath, and thereafter plaintiff moved to traverse these answers and sued out a rule against him to show cause why the answers should not be set aside as evasive and, in effect, untrue. This rule does not appear to have been tried. Defendant Thomason moved to dissolve the alias writ of attachment on ground that allegations therefor are untrue and insufficiency of bond.

The principal issue in this case is one of fact. It is: Were the cattle sequestered part of the herd of 173 which Champion, acting for the partnership, agreed to purchase from George Rains on or about August 11, 1927? If this question be answered in the affirmative, then plaintiff had the undoubted right to have them seized under vendor’s lien and privilege to secure the purchase price unpaid, evidenced by a dishonored check. The lower court gave judgment for plaintiff. Defendant Thomason appealed.

We have carefully read the record in the case, and are convinced the judge of the lower court correctly resolved the facts. The summary of the facts of the case contained in the lower court’s judgment is adopted by us. It is as follows:

“Thomason and Champion were engaged in the cattle business, or buying and selling cattle. Thomason resided in Texas and, it seems that Champion had also been with him, but sometime before - this suit and at the time, was residing in Sabine Parish, Louisiana. Champion was doing the buying in this State and his partner Thomason was furnishing the money. In fact it seems from the evidence that Champion had all authority to buy cattle and sell them and to pay by checks and drafts on Thomason. Thomason usually got the cattle purchased by Champion and sold them and some time he would send men in Sabine Parish to buy cattle from him and Champion that had been bought by his partner Champion. Champion had been buying cattle for some time from the deceased husband of the plaintiff. It seems that the husband of plaintiff had sold them cattle on several occasions during the year of 1927. The husband of plaintiff just before his death had sold Champion 173 head of cattle. There was paid the sum of $500.00 down on same and at a later date there was another payment made to George Rains of $1300.00 which made a total of $1800.00 and from the evidence this amount was for the payment of 100 head of the 173 sold to the defendants. After the death of the husband of the plaintiff there was another payment - of $720.00 which from the evidence was for another 40 head of the 173. The balance unpaid for was 33 head of cattle for which the said Champion gave a draft on Thomason for the sum of $606.00, which draft was turned down by Thomason. Champion testified that this draft was for the balance due and for the payment of the cattle or 33 head branded with a letter R. This is the contention of the plaintiff that the last 33 head of cattle sold to the defendant was never paid for except by the draft which was turned down and she has brought this suit for said amount. Champion was in a position to know more about the facts in the case than did his partner Thomason. Neither Champion nor Thomason were known to the Court before the trial but there was nothing to impeach the testimony of either of them and that being the case the Court accepts the testimony of Champion for the reason that he knew more about the details of the trade made. Mr. Thomason contends that he had paid another check for $445.00 which was the purchase price of 22 head of the cattle in question. He does not account for the payment of the other 11 head which would compose the 33 head, in fact he does not know just how and when they were paid for. Champion testified that the 22 head, which Thomason said was paid for by check for $445.00, were bought to make up another shipment and was a different trade with George Rains from the purchase of the 173 head. In view of the fact that these 22 head were shipped by Thomason to Houston a few days before the first payment on the 173, or about two days of the time, the facts lend weight to the evidence of Champion on this point. It is possible that Thomason did not and does not yet know the number and kind of cattle that was bought by Champion, but that should not be a matter between the plaintiff and them in this case; it is' matter of adjustment between the partners. After consideration of all the evidence in the case it is the opinion of the Court that the 33 head of cattle sequestered in this suit had not been paid for and that the ¡partnership of Thomason and Champion owed the plaintiff for them or the sum of $606.00 as shown by the draft filed in evidence. The plaintiff had a right to sequester the cattle and had a lien and privilege upon them for the balance of the purchase price of $606.00 and said writ should be and is hereby sustained and the motion to dissolve the writ is overruled. The cattle were being removed or would be removed and one of the parties was a non-resident and it was necessary for a writ of attachment to issue or the plaintiff was entitled to same under the facts and the original writ of attachment with the alias writ of attachment and garnishment thereunder should be sustained and the motions to dissolve same are overruled.”

Counsel for Thomason, in brief, seriously argue the exception of nonjoinder and the reconventional demand.

It appears that George Rains, husband of plaintiff, died on August 24, 1927, before the sale of the 173 cattle was finally consummated by payment of the entire price thereof. His widow, plaintiff, carried out the contract by receiving checks to discharge that part of the price not paid to her husband. The check of $606 sued on is in her favor. The exception of nonjoinder alleges that George Rains left one child, a minor son, who should be made a party to this suit. This exception was overruled by the lower court. There is no note of evidence taken on trial of the exception in the record before us, and, under these circumstances, we cannot say that the ruling of the trial judge on the exception is not correct.

As regards the reconventional demand, the lower court said nothing in its judgment which is equivalent to rejection.

The evidence on the question of the $100 involved in the reconvention is this: That Champion advanced to a man by the name of Smith this amount by partnership check on the bank at Center, Texas-, who paid the amount to George Rains as good-faith money to bind an agreement between Smith and Rains for the purchase of some cattle. Smith defaulted in his agreement to take over the cattle and pay the price, and Rains retained the money as a forfeit. Certainly plaintiff is not responsible in any way for the amount.

"We are also urged by defendant to dissolve the writs of sequestration and attachment sued out by plaintiff. For the reasons given in the judgment of the lower court, which we adopt, the writ of sequestration was properly sustained. It is different as respects the writs of attachment. However, as the same property was levied on by the sheriff under both writs (sequestration and attachment), small rekef will follow a dissolution of the attachments.

It is admitted by both sides that the relationship of Thomason and Champion was one of commercial copartnership. Thomason lived in Texas, while Champion had lived in Sabine parish, La., for .over one year, and the partnership business and activities were carried on in that parish by Champion. Under these circumstances the partnership could not legally be proceeded against as a nonresident of the state. Weil Bros. & Bauer v. C. N. Adams & Son, 126 La. 532, 52 So. 757.

Defendant claimed damages for the wrongful issuance of the original writ of attachment for $50 as attorney’s fees. No proof was introduced in support of this claim.

The lower court sustained the garnishment process, but gave no judgment against the garnishee in its decree.

For the reasons herein assigned, the writs of attachment sued out by plaintiff are dissolved and set aside, and the garnishment process issued under the alias writ of attachment is also annulled and set aside. In all other respects, and as amended hereby, the judgment appealed from is affirmed.

It is further ordered and decreed that costs' of appeal and costs of issuance of said writs of attachment and garnishment process be paid by plaintiff; all other costs to be paid by defendants.