text:
    No. 11,664
    Orleans
    PETERSON v. L. R. & N. CO.
    (January 21, 1929. Opinion and Decree.)
    Paul W. Sompayrac and A. T. Higgins, of New Orleans, attorneys for plaintiff, appellant.
    Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

This suit was brought by Henry Peterson, tutor of his minor brother, Vat Peterson, to recover either amount due under the Compensation Law of Louisiana, or, in the alternative, $6,000.00 under the Federal Employer’s Liability Act (45 U. S. C. A.. 51-59).

Petitioner, the duly appointed tutor of his brother, alleges as follows:

About 10:00 o’clock a. m., on October 30, 1926, Vat, who was working for the défendant in the railroad yard near Shrews-bury, in Jefferson Parish, went under a box car in a string of eighteen cars on the fourth' track from the main line to. answer a call of nature, as no adequate place had been furnished; without warning, without signals, and without observing any precautions, defendant backed an engine and moved the box cars, causing the wheels of one to run over the leg of petitioner, thereby necessitating the amputation of his foot; at the time the minor was earning $13.80 a week and was entitled, under the Compensation Law of the state, to 65 per cent of his weekly wages for one hundred and twenty-five weeks.

In the alternative, plaintiff alleged that the defendant was then operating in Louisiana and Texas a railway, and that, should the facts of this case make the laws of Congress controlling, the said facts were solely within the knowledge of defendant, but all allegations as to negligence stated above were affirmed as to this liability and a lump sum of $6,000.00 for loss of foot was claimed. Contributory negligence was denied and defendant was charged with .entire responsibility for the accident in negligently failing to keep a lookout and to give any warning before striking the cut of box cars.

In its answer, defendant admitted the accident, but denied all negligence, and averred that the rights of plaintiff were governed by the federal law.

The trial court, after deciding that the Compensation Law of Louisiana had no application, dismissed the suit on the ground that plaintiff had failed to prove negligence, an essential under the Federal Employer’s Liability Act.

The evidence shows that the yard of the defendant company, which was over 4,000 feet long, consisted of the main lines and five switch tracks, which ran the entire length of the yard, but were connected at each end. Plaintiff, an ignorant colored boy, was one of a gang of five laborers who were putting new cross-ties under switch track No. 3 at a point near the south end of the yard. About 10:00 a. m., October 30, 1926, while the rest of the gang of laborers were working near the north end on track No. 3, and switching engines were still shifting cars in the north end of the yard, and a string of eighteen box cars were standing on track No. 4, which was just east of track No. 3, Peterson, without asking permission of his boss, or advising his purpose, left his gang, walked for a block toward the north end of the yard and hid himself under the fourth car from the south end of the string of eighteen box cars to answer a call of nature.

He says that he was in no hurry and that it had been his custom to go into the woods for this purpose and that he had never gone under a box car before; he knew the switching was going on in the yard and that he was running a risk by going under the car, but failed to advise anyone.

Thomas and Doherty, both employees of the railroad company, testified that* he had ample opportunity to go into the woods or weeds on either side of the yard, where it was the general custom to go, and the condition of the yard, as shown in a photograph which was taken within one week after the accident, seems to confirm this testimony. Furthermore, the fact that the boy admits walking north half a block tends to show that he could have gone around the end of the cars and reached the woods east of the yard more promptly. Track No. 4, on which the box car was standing at the time that the boy’s foot was cut off, was used indiscriminately with the other switch tracks in the yard for making up trains, one-half of which moved in interstate commerce and one-half in intrastate commerce. It had been used for that purpose just_ prior to the accident and was to be used for such purpose immediately after the accident.

It ' has been repeatedly held that the State Compensation statute has no application if the federal statute applies to an injured railroad employee.

N. Y. C. Ry. Co. vs. Winnfield, 244 U. S. 147, 37 S. Ct. 546, 61 L. Ed. 1046; L. R. A. 1918C, 439 Ann. Cas. 1917D, 1139; St. Louis (etc.) R. R. Co. vs. Seale, 229 U. S. 156, 33 S. Ct. 651, 57 L. Ed. 1129; Sec. 30, Act 20 of 1914, as amended; Hamilton vs. L. R. & N. Co., 162 La. 842, 111 So. 184.

The Supreme Court of the United States, in its decisions governing injuries to employees of railroad companies, has developed two general conclusions: If the injury occurs to one engaged in the operation or movement of rolling stock, the liability under the Federal Employer’s Act depends upon whether the movement at' the moment of the accident in which the injured person was engaged was wholly intrastate or interstate. This conclusion is illustrated by the following cases: C. B. & Q. R. R. Co. vs. Harrington, 241 U. S. 177, 36 S. Ct. 517, 60 L. Ed. 941; Dupuis vs. La. Ry. & Nav. Co., 155 La. 953, 99 So. 709.

If, on the other hand, the injured employee was engaged at the time of the accident in the repair or construction of some facility of commerce, such as tracks, switches, bridges, etc., which facility is used both for interstate and intrastate commerce, then the employment is so closely related to interstate commerce as to bring it within the exclusive dominion of the federal act. This latter principle is illustrated by the leading case of Pederson vs. D. L. & W. R. R. Co., 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1126, in which case the defendant was engaged in operating a railroad in interstate commerce and intrastate commerce. The deceased was a workman employed by defendant as a member of a repair gang. At the time of the injury the deceased was carrying from a tool house to a bridge, which was to be repaired, some bolts and rivets to be used the following day in repairing a girder of the bridge. The repairs had not yet been commenced. Over this bridge there regularly moved cars in both interstate and intrastate commerce. While the deceased was carrying the bolts he was run into and injured by an intrastate passenger train of the defendant. The Court held that the deceased’s work was so closely related to interstate commerce as to be in legal contemplation a part of it, and that the only right of recovery existed under the Federal Act. The Court said:

“Was that work being done independently of the intei’State commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty' resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars; and sound economic reasons unite with settled rules of law' in demanding that all of these instrumentalities be kept in repair. The security, expedition, and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct ‘any defect or insufficiency * * * in its, cars, engines, appliances, machinery, tracks, roadbed, works, boats, wharves, or other equipment’ used in interstate commerce. But independently of the statute, we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to he in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce hy railroad can be separated into its several elements, and' the nature of each determined regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?”

In the case of Chicago K. & S. R. R. Co. vs. Kindlesparker, (C. C. A.) 234 Fed. 1, at page 6, the court said:

“When the decisions are considered, which, on the one' hand, allow recovery, and on the other disallow recovery, under the Federal act, a marked distinction is found concerning the responsibility of a carrier for injuries suffered by an employe engaged in repairing an instrument interstate in character, and injuries received hy an employe using or operating the same kind of an instrument while handling only intrastate traffic. As to the repairer, his service partakes of the character of the instrumentality; as to the operative, his service partakes of the character of the traffic. The reason for this distinction is that the repair is so directly and vitally related tó commerce between the States as to characterize the work of the employe engaged in the repair as an act of interstate" commerce. This distinction, for example, is well stated by-Judge Woolley in Boyle vs. Pennsylvania R. Co., 228 Fed. 266, 142 C. C. A. 558, where, in view of the facts of that case, the reason for denying application of decisions which concern the repair and not the use of the instrumentality in question received expression (228 Fed. 269, 142 C. C. A. 561):
“ ‘There is a distinction between employment in preparing an instrument of commerce for use, and employment in using such an instrument in commerce. Preparation of an instrument for use in commerce of both kinds necessarily means preparation for use in commerce of either kind, and as one kind is interstate commerce, it follows logically that such preparation is for use in interstate commerce, hut employment connected with the actual use of such an instrument is a part of intrastate or interstate commerce according as the instrument is in use in commerce of one kind or the other.’ ”

These principles were recently applied by the Supreme Court of Louisiana in the case of Hamilton vs. L. R. & N. Co. (this same defendant), 162 La. 842, 111 So. 184, which involved the issue of law (exactly the same as the issue here) ■ whether a track laborer, injured while engaged in repairing a switch of the L. R. & N., was engaged in interstate commerce, so that his action came under the Federal Act, or whether he was engaged in intrastate commerce so that the State Act would apply. The Court held the Federal Act applicable, saying:

“The defendant is a common carrier by railroad, and, although its own line does not extend beyond the limits of the state, yet it connects at both termini with other lines which do extend beyond the state, and a large volume of both interstate and intrastate commerce flows over its rails. Defendant is therefore actually engaged in interstate commerce; and the relative volume of the one business to the other has no hearing on the fact that it is so engaged. Philadelphia & R. R. Co. vs. Polk, 256 U. S. 332, 41 S. Ct. 518, 65 L. Ed. 958; Chicago K. & S. R. Co. vs. Kindlesparker, (C. C. A.) 234 F. 1.
“It follows, therefore, that defendant’s main track and bridges are instrumentalities of interstate commerce, as are also all sidings needed or useful in operating trains carrying interstate commerce; and the presumption is that all sidings appurtenant to a trunk line railroad track are needed or useful in the operation of all trains, including those engaged in carrying interstate commerce, unless it be shown that such sidings are in fact used exclusively for the accommodation of intrastate traffic . only.”

See also N. Y. C. R. R. Co. vs. Porter, 249 U. S. 169, 39 S. Ct. 188, 63 L. Ed. 536; and Pa. & Reading Ry. Co. vs. De Donato, 256 U. S. 327, 41 S. Ct. 516, 65 L. Ed. 955.

Under the Federal Employer’s Liability Act, plaintiffs must ¡prove negligence in order to recover. In this case he has failed to meet this responsibility.

Although the defendant had a proper crew, and was performing its switching operations in the usual manner, to the knowledge of plaintiff, he unnecessarily put himself in a dangerous place without giv-. ing any warning to any employee of the defendant company.

On this point see Hammers vs. Colorado Southern, N. O. & Pacific R. R. Co., 128 La. 648, 55 So. 4, 34 L. R. A. (N. S.) (685), where the Court uses the following language:

“We do not think that exercise of due care on the part of a railroad company requires it to look under its stationary cars, before moving them, to ascertain whether somebody is not sitting on one of the rails.
“The learned counsel argue the case as if some one at the crossing, or some one using the crossing, or the space round about it, in the legitimate, ordinary way, had been injured. But plaintiff was not at the crossing. He was close to the front truck of the car, and the car was 36 feet long; and he wa's neither using the crossing nor the space about it in the legitimate, ordinary way. He was in a position where a lookout on the cars could not possibly have discovered him. And, we repeat, it is not the duty of a railroad company, before attempting to move a stationary car on a side track, to look under the car, to ascertain whether somebody may not be under it.”

See also, the following: Aerkfetz vs. Solon Humphreys et al., Receivers, 145 U. S. 418, 12 S. Ct. 835, 36 L. Ed. 758; and DeBaur vs. LeHigh Valley R. R. Co., (C. C. A.) 269 Fed. 964.

In the case of Atchison, Topeka & Santa Fe vs. Wyer, 8 F. (2d) 30, 8 Circuit Court of Appeals, the Court, in discussing the question of liability, said:

“Labatt, in his work on Master and Servant, states several limitations:
“Section 209-a: ‘Both upon principle and authority it is clear that a master cannot be deemed culpable on the ground of an omission to give warning, where the servant already possesses sufficient knowledge of the conditions to enable him to take appropriate precautions for safeguarding himself.’
“Section 236: ‘No right of action is established where, taking into consideration the nature of the work assigned to the servant, the master had no reason to expect the contingency of the servant placing himself in such a- position as to incur the danger with regard to which it is alleged that he should have been instructed.’
“Section 241: ‘Before an employer can be held liable for a failure to warn, there must be something to suggest to him that a warning is necessary. Unless this necessity was or ought to have been known to him, he is considered to be justified in acting upon the assumption that the servant understood the dangers to which he was exposed, and would take appropriate precaution to safeguard himself.’ ”

Plaintiff relies upon the case of the Union Pacific Railway Co. vs. Hadley, 246 U. S., p. 330, 38 S. Ct. 318, 62 L. Ed. 751, where the United States Supreme Court held that the railway company was liable for injuries to a brakeman who was killed in a snowstorm not in his place of duty, but in the caboose at the rear end of the freight cars of a standing train, when a rear end collision occurred. This decision is not applicable here because the Supreme Court found that the railway company was guilty of negligence in the operation of its train coming from behind.

For above reasons the judgment is affirmed.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. 398
    First Circuit
    WATTS v. GREAT SOUTHERN LBR. CO.
    (February 13, 1929. Opinion and Decree.)
    Hall & Hall, and Brock and Carter, of Franklinton, attorneys for plaintiff, appellant.
    Ott & Johnson, of Franklinton, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff appeals from a judgment rejecting his demand for compensation, alleged to be due to him as a result of the death of his father Tom Watts, Sr., who died from an accident while in the discharge of his duties as an employee of defendant.

The two contested issues in the case, are the legitimacy of plaintiff who claims to be a son of Tom Watts, Sr., and the actual dependency of plaintiff upon the support of his alleged father.

The first of these questions may not appear to have been proved by evidence clear and certain, but even if conceded to be a fact, plaintiff has certainly failed to prove the second, that he was dependent upon the support of .his alleged father.

Tom Watts, Sr., was killed while at work for the defendant, about the month of March, 1928. He had formerly lived in Mississippi where he separated from plaintiff’s mother and her three children Some twenty years before his death. The mother of plaintiff is said to have moved to Alabama many years ago, and the children, including plaintiff, remained in Mississippi where they lived with Van Watts, reputed to be their uncle. Tom -Watts, Sr., lived in Bogalusa with another woman, Patsy Watts, with whom he took up, according to negro parlance, about the year 1908 and with whom he was living when he was killed in 1928.

The plaintiff appears to: be partially paralyzed; to what extent he is paralyzed and how long he has been in that condition, it is nearly impossible to say, for the testimony is vague and evasive and we may even say delusive. The plaintiff and his uncle Ross Watts who seems to have worked up the case with the assistance of two other negroes named King and Bamber, two shady characters, habitual gamblers and loafers, attempted to show that plaintiff had received money, clothes and other assistance from his deceased father, but all of that testimony upon its face, is hardly worthy of credit. Evidently the trial judge did not believe it, for he held that the deceased Tom Watts, Sr., had never contributed to the support of plaintiff and that plaintiff had failed to prove dependency to any extent whatsoever.'

On the other hand the testimony of witnesses of high character who investigated the whole matter on behalf of defendant, indicates that Ross Watts, who also lives in Mississippi, had lately obtained control over plaintiff, and had concocted this scheme to obtain compensation from defendant.

Plaintiff’s physical condition may be deserving of sympathy, but the law is emphatic when it creates a right of action for compensation, in limiting such right to the persons mentioned in Section 8 of Act No. 20 of 1914, as amended by Sec. 1 of Act 85 of 1926, at page 117. The plaintiff not being included within the class of persons there mentioned, is not entitled to compensation, and his demand was properly rejected by the District Judge.


text:
    First Circuit
    No. 353
    OPELOUSAS FINANCE CO. v. REDDELL ET AL.
    (January 9, 1929. Opinion and Decree.)
    (February 13, 1929. Rehearing Refused.)
    Sandoz and Sandoz, of Opelousas, attorneys for plaintiff, appellant.
    J. Hugo Dore and O. E. Guillory, of Ville Platte, and R. L. Garland, of Opelousas, attorneys for defendant, appellee.
   LECHE, J.

On September 16, 1926, Jeff Reddell signed a notarial' act containing a conventional and special mortgage on his immovable property, and containing also a chattel mortgage on certain of his movables, in favor of Lee Reddell, passed before Ortego, Notary Public, and on the 24th day of September, 1926, the one act containing the two mortgages was brought to the Clerk of Court and Recorder of the Parish of Evangeline, and the following endorsement was written thereon:

“Piled September 24, 1926, at 3:10 P. M. and same day recorded in chattel mortgage book No. 11 at page 320 et seq. Signed L. Demoruelle, Dy. Clerk.”

The law concerning the registry of chattel mortgages was complied with to the letter. Entry was made at the time in the index, and the act was recorded in the chattel mortgage book as indicated by the written certificate. But the Clerk failed to record the act in the book of mortgages, failed to index it in the index to the book of mortgages, and the act was then placed in the archives of the Recorder’s Office.

On March 14, 1928, or thereabout, the act was endorsed as having been received and filed and as having been recorded in the book of mortgages, which endorsement and certificate of registry although only written and signed about March 14, 1928, were antedated as of September 24, 1926.

On December 31, 1926, the same Jeff Red-dell signed another notarial act, this time passed before Lahaye, Notary Public, wherein he specially mortgaged the same property in favor of H. J. Richard, which act was duly recorded in the book of mortgages of Evangeline Parish on January 5, 1927.

The question in the case is whether the endorsement hereinabove recited truly dated September 24, 1926, is sufficient compliance with the provisions of Act 215, ,p. 351 of 1910, as to give effect to the act of mortgage of September 16, 1926, as against third persons from the date of said endorsement. The answer to that question decides the • right of priority in rank between the two mortgages, that given oh September 16, 1926, and that given on December 31, 1926.

The present proceeding is by rule on the part of plaintiff, holder of the mortgage of December 31, 1926, against the holder of the mortgage of September 16, 1926.

The trial judge was of the opinion that the mortgage of September 16, had precedence in rank over the mortgage of December 31, 1926, and plaintiff has appealed from this ruling.

Registry of mortgages is a matter of sub-substance and not merely of form and the action of the Clerk and Recorder of Evangeline when he attempted to obviate the result of his omission, by antedating a certificate of deposit of the act and its registry in the month of March, 1928, can have no effect against plaintiff. The Clerk’s action need not be discussed, except to the extent of expressing the opinion that when on March 14, 1928, he antedated the certificate of deposit for registry in the mortgage records, and also the certificate of registry on the act of September 16, 1926, as of date September 24, 1926, he did so in good faith.

The law in this State, has for many years been that an act of conveyance is effective against third persons as soon as deposited for record in the Recorder’s Office. C. C. 2266. Schneidau vs. New Orleans Land Co., 132 La. 264, 61 So. 225. In regard to mortgages however, merely depositing the act of mortgage in the Recorder’s Office, was not deemed sufficient and third persons were not affected with notice until such act of mortgage was actually recorded.

It was presumably to place acts of mortgage on the same footing as acts of conveyance, that the Legislature adopted Act 215 of 1910, which provides:

“That all acts or instruments of writing which import mortgage or privilege shall, when deposited with the Recorder of Mortgages for record, be immediately endorsed, by him with the date, hour and minute of filing; which'endorsement shall be recorded with the registry of such instrument. That all such instruments shall be effected (effective) against all persons from the date of their filing.”

The endorsement in this case, which the Recorder placed upon the act of September 16, 1926, evidences the fact that it was deposited, and mention of the date, hour and minute is also therein made, but the endorsement goes further, and states that the act was on the same day, recorded in Chattel Mortgage Book No. 11 at page 320 et seq. In point of fact it was not recorded in the book of mortgages where it should have been recorded, until March 14, 1928.

It must be conceded that such endorsement is misleading, for any one reading it could only conclude that the act was deposited for registry in the Chattel Mortgage Book and that it was deposited solely for that purpose. The conduct of the recorder in not recording it anywhere else than in the Chattel Mortgage Book, confirms that construction of his endorsement, and a fortiori would such construction be adopted by innocent third persons.

There can only be one purpose by the lawmaker in requiring such endorsement to be written by the Recorder and that purpose is to give notice to third persons, and when the endorsement states that the registry is made or more specifically speaking, is about to be made in the book of chattel mortgages, third persons are thereby induced into error.

Another question logically suggests itself and that is, suppose, although properly endorsed, would an act of mortgage which never was recorded, be effective against third persons? Obviously, it would not, for registry is sacramental under the provisions of the Civil Code to render an act of mortgage effective against third persons.

From this discussion we conclude that the endorsement which the Recorder is required to make under the provision of the Act of 1910 is merely preliminary in the process of registry; that it is not equivalent to registry, but that when registry is promptly and actually made in its proper order, where other acts are already deposited and awaiting to be recorded, then registry retroacts to the date, hour and minute when the act was deposited. This construction of the Act of 1910 appears to be sound, reasonable and logical. In the present case the act of mortgage of September 16, 1926, was only recorded on March 14, 1928, long after the act of mortgage of December 31, 1926, had been recorded, and we are therefore of the opinion that the latter act primes in rank that of September 16, 1926.

We did not mention the fact advanced by the defendants that the mortgagee may have been aware on December 31, 1926, that Jeff Reddell had previously mortgaged the same property on September 16, 1926, as it is elementary that notice is not equivalent to registry. Soniat vs. Whitmer, 141 La. 235, 74 So. 916; Nilson vs. Brinkerhoff et al., 146 La. 698, 83 So. 902; Gonsoulin vs. Sparrow, 150 La. 104, 90 So. 528.

For these reasons the judgment appealed from is avoided and reversed, and it is now ordered that the rule herein taken be made absolute; that the Clerk and Recorder o,f Evangeline Parish be ordered and directed to erase and annul the dates inserted by him in his endorsement of receipt of registry and of actual registry of the act of mortgage of Jeff Reddell to Lee Reddell and others, and to insert therein the true dates of said endorsement and registry, and that plaintiff’s mortgage of date December 31, 1926, be recognized as being prior in rank to that given to Lee Reddell of date September 16, 1926.

It is further ordered that defendant pay all costs.


text:
    No. 392
    First Circuit
    MERIDIAN LBR. CO. v. HOLT ET AL.
    (February 13, 1929. Opinion and Decree.)
    Hardin, Hardin and Cavanaugh, of Lees-ville, attorneys for plaintiff, appellant.
    L. D. Woosley, of Leesville, and P. L. Ferguson, of Leesville, attorneys for defendants, appellees.
   LECHE, J.

Plaintiff filed this suit on May 4, 1925. It alleges that it is the owner of the standing timber on the SE14 of the SW% of Sec. 6 in Tp. 2 N. R. 5 W., situated in the Parish of Vernon; that the two defendants have trespassed upon its property and wrongfully removed therefrom 35,741 feet of yellow pine timber and it prays for judgment against the defendants in the sum of $1072.23, the value of its said timber. Plaintiff at the time obtained several writs of attachment in order to seize property of the defendants.

On May 18, 1925, Walding, one of the defendants, filed a motion to dissolve the attachment on the ground of falsity of the allegations under which plaintiff had obtained the order for attachment. That motion was referred to the merits. On June 15, 1925, Walding excepted to plaintiff’s demand on the ground that plaintiff did not own the property described as the timber on'the SE% of the SW% of Section 6, and therefore had no right of action. This plea, although called and styled an exception, was in reality an answer to the merits of plaintiff’s demand.

On October 30, 1926,- Walding filed an answer in which he reiterated that plaintiff did not own the property for whose value it sued, and in which he further prayed for damages and demanded that Frank C. Powell, his author in title, he called in warranty.

On- May 20, 1927, plaintiff filed a supplemental petition, in which it alleges that it made a clerical error in its original petition, wherein it stated that it owned the timber on the SE% of the SW% - of Section 6, and prayed that said original petition be amended by inserting in lieu of the SE%, the SW% of the SW% of Sec. 6, Tp. 2 N. R. 5 W.

Defendant objected to plaintiff’s right to make such amendment and upon due hearing, the trial judge sustained defendant’s objection, and entered judgment rejecting plaintiff’s demand. The present appeal from that judgment was taken by plaintiff.

It appears from this statement of the case, that the question at issue is one of practice, whether under these conditions, plaintiff had the right to amend its original petition.

At the time plaintiff asked to amend its petition, issue had already been joined, but according to Art. 419 C. P., plaintiff may even then with the leave of the Court, amend his original petition, provided the amendment does not alter the substance of his demand by making it different from the one originally brought. In construing this article of the Code of Practice, the jurisprudence is to the effect that the trial judge is vested with much discretion in permitting amendments or in refusing to allow them to be made. This discretion as we understand the jurisprudence is judicial, but it is not arbitrary. Young vs. Guess, 115 La. 234, 38 So. 975; Schlotre vs. LeBlanc, 121 La. 923, 46 So. 921. It is also well established that amendments having for their purpose the avoidance of useless delays, are always favored in law and that technicalities should not stand in their way. Davis vs. Arkansas Southern R. R., 117 La. 320, 41 So. 587; LeBlanc vs. United Irrigation, 129 La. 196, 55 So. 761.

Here the matter to be decided is whether by changing the description in plaintiff’s original petition, by substituting the words “SW%” for the words “SE1^”, amounts to an alteration of the substance of the demand. The trial judge believed that it was, and therefore refused the leave of his Court, and then, assuming that pláintiff’s request to amend was an admission that it had no claim to the timber on the SE% of the SW% of Sec. 6, rejected its demand.

The question is not free from difficulty. It may be, and no doubt it was a clerical error on the part of plaintiff to have described property different from that upon which it based its demand, but on the other hand, plaintiff was seemingly guilty of laches in not sooner discovering the error and calling the Court’s attention thereto. It filed its petition on May 4, 1925, and on June 15, 1925, defendant filed an exception in which he alleged that plaintiff did not own the property described in its petition. Again on October '30, 1926, defendant filed an answer in which it expressly charged that plaintiff did not own the property described in its petition. It was only on May 20, 1927, that plaintiff applied for leave to amend its petition. At that time defendant had filed his answer, and was prepared to make his defense against plaintiff’s claim as alleged in its petition, but it may be that if the amendment were allowed, defendant would have to resort to another and a very different defense and that would constitute, so far as defendant is concerned, an alteration of the substance of the demand.

We are inclined to believe that the trial judge has properly exercised the discretion vested in him, and we are therefore of the opinion that the judgment appealed from should be affirmed, and it is accordingly so ordered.


author: JONES, J.

text:
    No. 10,600
    Orleans
    CASEY v. ALLAIN ET AL.
    (February 11, 1929. Opinion and Decree.)
    Geo. Montgomery, of New Orleans, attorney for plaintiff, appellant.
    Guión, Upton & Ogdon and J. J. Reilley, Jno. J. Foster, Wm. McL. Fayssaux, Ed. J. DeVerges, E. M. Stafford & Daniel Wendling, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

Originally, the claims of several materialmen were involved in this concursus proceeding, but they have all been settled except that of the Brandin Slate Company, Inc., for $299.50, interest and costs.

Casey, the owner, who admits that he failed to have the contract and bond recorded in the mortgage office, as required by Act 139 of 1922, the controlling statute, appeals from a judgment in favor of the slate company on the ground that there is no evidence to show that the slate was ever actually delivered to or used by plaintiff and that no demand was ever made on the owner, or attested itemized account served on Mm.

This contention is sustained by the record. Villars, secretary of the Brandin Slate Company, the only witness in support of the claim, after testifying that the amount of the bill was correct, and that repeated demand had been made for payment, stated that notice had been served on “the materialman.”

Evidently this was an error. The witness plainly meant the “owner” and inadvertently followed counsel’s q/uestion in saying “materialman.”

Even if we overlook this error there is a still greater difficulty, for there is absolutely no proof that the attested account was ever mailed or otherwise sent to the owner, as is specifically required by Section 2 of the Act.

In Edwards Lumber Co. vs. Henry Mason et al., 9 Orl. App. 203, this court, in construing Act 134 of 1906, which contained a requirement similar to that in Section 2 of Act 139 of 1922, held that the service of an attested account upon the owner was a condition precedent to recovery from him.

In Merriwether Supply Co. vs. Baugh, 6 La. App. 730, the Appellate Court of the Second Circuit held that the material furnisher must serve notice on the owner within the time required by the act.

As the statute is in derogation of common right, it must be construed strictly, and whoever seeks to take advantage of it must himself show that he has complied with all its provisions. Fortunately, there is still enough left in the registry of the court to pay approximately one-half of the claim.

For above reasons the judgment is reversed, and it is now ordered, adjudged and decreed that the amount still on deposit in the registry of the Civil District Court in this case be paid over to intervenor, the Brandin Slate Company, Inc., and that in all other respects this intervention be dismissed.


author: MOUTON, J.

text:
    No. 421
    First Circuit
    FIRST STATE BANK AND TRUST CO. v. GRAZIANO ET AL.
    (February 13, 1929. Opinion and Decree.)
    Miller and Heintz, of Covington, attorneys for plaintiff, appellee.
    Amos L. Ponder, of Amite, attorney for defendant, appellant.
   MOUTON, J.

Joseph Graziano and Sam Locascio, defendants, signed a promissory note on June 21, 1923, in favor of plaintiff bank, for seven hundred and fifty dollars ($750.00). Suit was brought by the bank against both defendants on the note.

Graziano, though first on the note, made no appearance. Locascio obtained a judgment against plaintiff bank in May, 1926, for six thousand three hundred and seventy-five dollars ($6375.00) with six per cent (6%) per annum interest.

Locascio pleads compensation or set off against the claim of the plaintiff in the manner following:

That plaintiff bank have judgment for seven hundred and fifty dollars ($750.00) as prayed for with interest asked in its petition less costs and attorney’s iees; but that this judgment be decreed to be a credit on the judgment previously obtained by defendant against plaintiff company.

The District Judge overruled the plea of compensation and gave judgment to plaintiff for the amount claimed.

Locascio appeals.

Counsel for the bank cite Kernion vs. Hill, 12 R. 376, and other authorities where is recognized the well established rule that a judgment which has been appealed from suspensively cannot be pleaded in compensation in another action. Under this doctrine, plaintiff contends that defendant could not set up his plea of compensation.

A certified copy of the judgment in favor of Locascio against the bank is in the record, but there is no proof whatsoever showing that it has been suspensively appealed from. In this respect the record is silent.

In his answer defendant refers to his judgment against the bank and admits in his brief that it is now on appeal to the Supreme Court, but nowhere admits or even intimates that it was taken to the higher court on a suspensive appeal.

It is impossible for us to travel out of the record to infer that the appeal from that judgment is suspensive. For aught we know the appeal may be devolutive in which case the plea of compensation would be permissible. Sandel vs. George, 18 La. Ann. 526; Duncan vs. Wise, 89 La. Ann. 74, 6 So. 13.

Under this state of facts we are constrained to avoid the judgment and remand the case.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed; and it is further adjudged and decreed, that this case be remanded for the introduction of evidence to show whether the judgment obtained by Sam Locascio, Jr., against plaintiff bank, was appealed from suspensively or devolutively; that plaintiff pay the costs of this appeal and the cost of the lower court await the final decision of this case.


text:
    No. 412
    First Circuit
    STATE OF LOUISIANA EX REL. LANIER v. TANGIPAHOA POLICE JURY
    (February 13, 1929. Opinion and Decree.)
    S. S. Reid, of Amite, attorney for plaintiff, appellant.
    A. L. Ponder, Jr., District Attorney of Amite, attorney for defendant, appellee.
   MOUTON, J.

In pursuance of a written notice published in a newspaper of Tangipahoa Parish, relator filed his application with the Police Jury of that Parish to be appointed parish printer for the ensuing year, for the price of ten dollars ($10.00) per month for printing all of its official proceedings.

Plaintiff is the editor of the Tangipahoa Parish News, and stated in his application, if selected, he would designate that paper as the official journal of the parish.

Geo. B. Campbell filed a similar application but for a consideration of twenty dollars ($20.00) per month instead of ten dollars ($10.00) as was offered by relator.

Campbell also stated that if chosen the official printer for the parish, he would designate the Hammond Vindicator as the official journal.

Relator alleges that his offer being lower than that of Campbell, it was the ministerial duty of the Police Jury to accept his bid, and to select him as parish printer for the ensuing year.

He obtained the issuance of an alternative writ of mandamus to compel the Police Jury to accept his bid, or to show cause to the contrary; and, asked that Campbell be made a party to the proceedings. He was met with an exception of no cause or right of action which was maintained, dismissing his suit.

Under the exception, it is needless to say that all the allegations of relator’s petition must be taken as true.

The selection of parish printers must be made by the Police Juries of the respective country parishes at their first meeting in July, annually, for a term not exceeding one year. The printer so chosen must be the editor or owner of some established newspaper of the parish. The person selected designates a newspaper to be the official journal of the parish. The foregoing power is conferred on the Police Juries of the various parishes, the Parish of Orleans excepted, by the provisions of section 22 of Act 141, 1912, p. 192. This act was amended by Act 11, 1914, p. 12, also by Act 134, 1920, p. 194. No changes were made in these two amendatory acts, except so as to permit the designation of a newspaper in another parish where none is published in the parish making the selection.

Obviously, relator and Campbell filed their applications under the provisions of section 22 of Act 141, 1912, in which they offered to publish in their newspaper all the official proceedings of the Police Jury, and all such notices as might be required of the official journals under the provisions of that statute. The statute under which they submitted their applications nowhere requires advertisement by the Police Jury for bids, and that it shall accept the proposition of the lowest bidder before it awards the contract.

Counsel for relator admits in his brief that advertising for bids was not necessary, and that the law does not require competitive bidding. His contention is that the Police Jury having invited such bidding, and Campbell having participated therein, that they are now estopped from denying that the Police Jury is compelled to recognize the validity of its own action, and to award the office of parish printer to relator, as he is the lowest bidder. This plea of estoppel is levelled against the Police Jury.

A municipal corporation cannot be estopped to assert its governmental power as to its acts within its governmental capacity. 10 R. C. L., p. 706, section 34; Tholkes vs. Decock, 125 Minn. 507, 147 N. W. 648, 52 L. R. A. (N. S.) p. 150.

Powers of government are delegated to Police Juries, they are political bodies. C. C. 429.

In the case of Police Jury vs. Numa Shayot, 47 La. Ann. 589, 17 So. 203, where the Town of Lafayette had, without authority, annexed adjoining territory over which the Parish of Lafayette had for several years suspended its governmental authority, the Court held that its powers had simply been suspended, and that the Police Jury, a political corporation, could not be estopped by its acquiescence to the conditions it had permitted to exist.

A municipal corporation or a Police Jury cannot be estopped from asserting its governmental authority says R. C. L. above quoted, as to acts within its governmental capacity. Unless of course, it were bound/ by contractual obligations.

The Police Jury in the instant case, after publishing for bids, or even after the bids had been submitted, could have under the statute, in the legitimate exercise of its governmental capacity, annulled or set aside the order under which the publication for bids had been made. It had perhaps fallen into an error in adopting that mode of procedure, but if it committed an error, its power to select a parish printer under the statute remained, had simply been temporarily suspended, and which it could legally re-assert by resolution or by merely disregarding the offer made by relator.

The statute giving plenary power to the Police Jury on this subject is clear, unambiguous and its letter should not be disregarded under the pretext of pursuing its spirit. C. C., Art. 13.

It seems that relator is pursuing what he seems to consider the purpose of laws of this nature which usually require competitive bidding. We cannot go in quest of the spirit of such laws, and incorporate it in the act which governs this case. We would be usurping the functions of the law-making power, if we adopted that course.

In submitting their bids the relator and Campbell did not have any vested rights, and the selection could be made without regard to the fact that relator’s bid was lower than the other. If the Police Jury in passing on the bids, had selected relator, it would have been obligated under its contract to appoint him the parish printer. As the contract was not awarded to him, he has no vested rights, and the action of the Police Jury in appointing the other applicant, was authorized under the statute

Relator has no right of action as was decreed below.


text:
    No. 417
    First Circuit
    BURGESS v. BLACKWELL
    (February 13, 1929. Opinion and Decree.)

      B. M. Harvard, of Hammond, attorney for plaintiff, appellee.
    Mat. J. Allen, of Amite, attorney for defendant, appellant.
   MOUTON, J.

Dr. J. F. Burgess, plaintiff was driving his auto westward from Hammond to his home situated about two miles from that town. He was alone in his car, and was traveling on the north side of the highway, which was his right side of the road that passes north of his property. When he got near a bridge opposite his property on the south side of the highway, he turned to his left to enter his premises.

Defendant was also driving a truck in the same direction, and as the auto of the plaintiff was turning or had turned to the left, the truck ran into plaintiff’s car, causing the damages for the recovery of which this suit was instituted. The accident occurred at night at about 10 o’clock.

Plaintiff testifies that as it was usual with him, when he started to his left to cross the road, he looked back, that he saw a ear coming behind him which was at that time about three hundred yards away; that its headlights were burning brightly and considering the distance the car was from his auto, he did not think that it would pass ahead of him; that before turning he held his hand out of the window of the car as a signal to the approaching car. He says that as he started to cross the highway, defendant’s truck hit his auto. He says he has been driving autos for sometime, and knows the traffic or road laws.

Defendant admits that his lights were shining brightly on the left hand side of the highway, but is positive that plaintiff never held his hand out as testified to by him. Mr. Dickerson, who was in the car defendant was driving, also says that plaintiff did not hold his hand out of the window of his auto, and that he did not give any warning that he was about turning to his left to make the crossing.

The vital question presented for solution is therefore as to whether plaintiff extended his hand out of the window of his car or not, as it is evident defendant or his companion could not have failed, with the bright lights at the head of the truck, to have seen the signal plaintiff claims to have given.

Hence, the decision of the case depends on the belief that should be given to the testimony of these witnesses on this vital issue above stated.

The record shows that plaintiff was familiar with the custom or laws which govern the traffic on public roads and had long experience in driving autos. He was, on the occasion in question, going home from Hammond where he practices his profession as a dentist. There is nothing whatsoever to indicate that he was in any hurry. Under such circumstances, though possible, it is not however to be reasonably believed that he would have ventured to cross the road without giving the customary hand signal to a car which he knew was coming behind his auto. It would indeed have been a rash undertaking if he had taken such risks, situated as he was. It also appears from the testimony of two or three witnesses, that the distance between the point where the impact occurred and the place where the truck stopped to the west of that spot was found by actual measurement to be about ninety-eight (98) feet. That fact indicates that defendant, at the time of the wreck, was going at a rather lively speed. It is true, that Mr. Russell, witness for defendant, says that the latter’s truck was found, not at ninety-eight (98) feet, but at seventy-five (75) feet from the point of the collision, but his testimony carries the statement that it glided some forty (40) feet alpng the roadway, and thirty-five (35) feet more in the ditch.

To have gone that distance in the ditch after speeding forty (40) feet along the highway, makes it still more evident that the truck was being driven at die time it hit plaintiff’s car at a speed not reasonably safe when the driver of an auto is attempting to pass ahead of another car.

Mrs. Nolan tetsified in the base and said she had gone to the scene of the accident soon after its occurrence; that defendant told her he was on his way to a fish fry where three men were waiting for him, and that he did not take the Baton Rouge road to go to his destination at Rome’s Ferry because he could make better speed by the route he was traveling.

Under such a state of facts and circumstances hereinabove given, evidently the district judge believed plaintiff’s statement that he had held his hand out as a warning to the driver of the truck behind him before he started to cross the highway, and that defendant, due to fast driving or some other cause, failed to see the signal so given him. The judge believed plaintiff, and not defendant and his companion.

There is no proof in the record showing that the Court has fallen into an error in giving its approval to plaintiff’s testimony. The issue affects the credibility of witnesses, a question resting within the province of the trial judge, reversible only for manifest error which does not appear here.


text:
    No. 391
    First Circuit
    SELF v. GOINS
    (February 13, 1929. Opinion and Decree.)
    Pujo, Bell & Hardin, of Lake Charles, attorneys for plaintiff, appellee.
    Ferguson & Newman, of Leesville, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff brings this suit to be decreed tbe owner of a tract of land described in his chain of title declared upon in his petition, and to be quieted in his possession of the property, fifteen acr.es of which he avers, defendant is holding wrongfully and without title.

His suit is petitory and complies with all the legal requirements for the prosecution of such action.

Defendant in her answer admits she has been in possession of fifteen acres of the land as averred in plaintiff’s petition, and alleges that she has been in undisputed possession thereof for a period of more than thirty (30) years.

She does not allege that her possession was continuous and public, during that time, and under the title of owner.

The fact is that she does not plead the prescription of thirty (30) years, and contents herself by merely averring her undisputed possession of thirty (30) years.

On cross-examination by plaintiff, who was sworn as a witness, she propounded to him a question in reference to her possession as alleged in her answer. The introduction of the evidence sought to be thus elicited from plaintiff was promptly objected to by plaintiff, but was admitted subject to the objection.

The allegations of defendant’s answer as above outlined do not set up the defense that her possession was uninterrupted or public, and that she possessed as owner, nor was the plea of prescription presented thereunder. The testimony objected to by plaintiff should have been sustained under the provisions of Article 3500 C. C.; City of New Orleans vs. Shakespeare, 39 La. Ann. 1033, 3 So. 346.

The elimination of this evidence disposes of defendant’s defense, if it can be legally so called, and sustains the judgment rendered in favor of the plaintiff.


text:
    First Circuit
    No. 400
    SPRING v. BARR
    (February 13, 1929. Opinion and Decree.)

      Morgan and Simmons, of Covington, attorneys for plaintiff, appellee.
    Miller and Heintz, of Covington, attorneys for defendant, appellant.
   MOUTON, J.

In July, 1923, plaintiff obtained the issuance of a writ of attachment with garnishment process against defendant, an absentee, a resident of Meadsville, Pennsylvania.

Her demand was predicated on a claim for board and lodging given to Mrs. Walter L. Barr, wife of defendant, and daughter of the plaintiff.

Judgment was rendered in her favor by the District Judge, but on appeal was reversed by this Court and her demand non-suited, March 2, 1926. The demand was renewed in the instant case on June 10, 1926.

The proof shows that Mrs. S. Barr, daughter of the plaintiff, was married to defendant on May 29, 1918; that he left her on the day following going. to Meadsville, Pennsylvania, where apparently he has lived ever since apart from his wife. Her mother, plaintiff, claims she has lodged and boarded Mrs. Barr from the time her husband left her to July 10, 1925, for which she demands the sum of eighteen hundred ($1800.00) dollars against defendant.

The record shows that the husband sent a pass to his wife and asked her to come up north to meet him, but immediately wrote back telling her not to come. The wife did not go, and is certainly not to blame for not going. During his long absence, the evidence shows, he has sent her only one.hundred dollars ($100.00), all of which, and other facts, establish a clear case of abandonment of Mrs. Barr by defendant.

Plaintiff claims twenty dollars ($20.00) per month for lodging and boarding her daughter from May 29, 1918, to July 10, 1925.

Defendant introduced the certificate of the Court of Common Pleas of Meadsville County, Pennsylvania, to show that he had been divorced from his wife in July, 1923. The offering was objected to by counsel for plaintiff on the ground that there was nothing in the judgment to indicate that the Court rendering it had jurisdiction. It is unnecessary to consider the objection as a part of the claim of the plaintiff up to the time the aforesaid judgment of divorce was rendered, as it amounted to a sum exceeding twelve hundred dollars ($1200.00) whilst the sum which has been garnisheed in the hands of the Commercial Bank and. Trust Company, garnishee in these proceedings, amounts to seven hundred and twenty-five dollars ($725.00), for which judgment was decreed in favor of plaintiff.

Defendant filed an exception of no cause or right of action to the demand of plaintiff.

This suit is for necessaries of life claimed to have been furnished the wife of defendant by plaintiff. Counsel for defendant contends that a suit for the recovery of such a claim could be brought only by the husband of the plaintiff, and that she has no legal authority to institute it or to stand in judgment herein.

In Article XI of her petition plaintiff alleges that she is separated in property from her husband. This averment of plaintiff was a material allegation of fact and is not denied specifically in the answer of defendant herein, or for want of sufficient information and belief, as is permitted by the pleadings and practice Act 228, 1924, the last one on this subject.

In answering Article XI of plaintiff’s petition, defendant merely refers to the former suit, and says that it makes part of his answer.

In that former suit it was alleged and shown that plaintiff and her husband are separate in property. ' That fact is therefore proved and admitted.

A judgment of separation of property between husband and wife dissolves the community. Holmes vs. Barbin, 15 La. Ann. 553.

Married persons may stipulate that there shall exist no community between them. C. C. 2392.

Hence, when it is admitted, as in this case, that plaintiff was separated in property from her husband, it must be taken that there was no community existing between them at the time the obligation sued upon was incurred. Her claim could not therefore be a community asset but was for a debt relating to her separate property for which she could sue as a femme sole under Acts 94 of 1916, 244 of 1918, 219 of 1920; and without the authorization of her husband as was required by Art. C. C. 121.

The sum of seven hundred and twenty-five dollars ($725.00) was, as aforesaid, seized in the hands of the bank. The cashier testified that the money had been received from Arthur L. Bates, an attorney, instructing the bank to deliver it to Mr. Lewis L. Morgan, attorney for Mrs. Zula Spring Barr, wife of defendant. Counsel for defendant contends that as the bank had not answered the garnishment process, the statement of the cashier was inadmissible.

If the garnishee neglects to answer within the legal delay, which is the case here, it must be considered as a confession on its part that it has property in its hands belonging to the debtor sufficient to satisfy the demand. C. P. 262, 263; and, no judgment by default, or rule to show cause, is required to precede the final judgment of which such neglect imports the confession. Elders vs. Rogers, 11 La. Ann. 606.

In such a case, where the party is proceeding against an absentee, the silence of the garnishee to answer within the specified time, is sufficient to raise the presumption that he has sufficient funds in his hands, and thus maintain the jurisdiction of the Court. Rose & McCarthy vs. Whaley. 14 La. Ann. 374.

The record shows that the bank, garnishee, was properly cited, and failed to answer the interrogatories. For the reasons above stated the Court had jurisdiction, and the testimony of the cashier was properly received to show the amount of money the bank had on deposit for defendant. Counsel contends further that the testimony of the cashier did not show that the funds belonged to defendant. The letter of the attorney for the delivery of the money to Mrs. Barr, and her testimony show that the money deposited was the property of defendant, and was legally levied upon under the attachment proceedings.

Defendant pleads the prescription of one year under Article 3534, Civil Code, which provides that actions by “innkeepers and such others on account of lodging and board which they furnish” are prescribed in one year.

The original suit of plaintiff against defendant was filed in July, 1923, and after trial, was non-suited March 2, 1926.

Prescription will be interrupted by a judicial demand though the plaintiff be non-suited on the merits, or the Court be without jurisdiction. Geisenberger vs. Catton Lichtenstein & Co., 116 La. 651, 40 So. 929; Pecquet vs. Pecquet’s Executor, 17 La. Ann. 219; Blanc vs. Dupre, 36 La. Ann. 847.

Such an interruption works a suspension of prescription during the pendency of the suit. Turner Wilson & Co. vs. McMain, 29 La. Ann. 298; Woodcock vs. Baldwin, 110 La. 270, 34 So. 440. When thus interrupted the full time for the prescription must be reckoned from the cessation of the interruption. Riviere vs. Spencer, 2 M. (O. S.) 79.

In this case the suspension of prescription was therefore continued until March 2, 1926, when the first suit was dismissed. In the present suit citation was served on the curator ad hoc appointed to represent defendant, and on the bank, in July, 1926, several months fully within the year after the suspension of prescription had expired by the effect of the prior suit.

Admitting that the action of the plaintiff is subject to prescription of one year under the article of the Civil Code relied upon by defendant, we find, that this suit was however brought in time for the reason hereinabove stated.

Finally, defendant contends that plaintiff cannot recover because there was no agreement, express or implied, between her and defendant, by which the latter obligated himself to plaintiff. The proof shows clearly, that defendant left his wife, failed and refused to support her.

Civil Code, Article 1786 says that the authorization of the husband is presumed by law to the contracts of his wife for necessaries for herself and family, where he does not himself provide them.

In Johnston vs. Pike, 14 La. Ann. 731, the Court carried this doctrine to the extent of recognizing the right of the wife to sell movables of the community to provide herself and family with such necessaries when her husband fails to supply them as the law requires him to do. Obviously, lodging and board were indispensable necessaries to Mrs. Barr which were legally furnished by her mother and for which defendant is bound by an implied or quasi-contract.


author: WESTERFIELD, J.

text:
    No. 11,082
    Orleans
    COLLINS v. LYONS ET AL.
    (February 11, 1929. Opinion and Decree.)
    W. J. and H. W. Waguespack, of New Orleans, attorneys for plaintiff, appellant.
    Henry B. Curtis, of New Orleans, attorney for City of New Orleans, defendant, appellee.
   WESTERFIELD, J.

Plaintiff was injured March 10, 1925, by a fall, alleged to be due to a hole in the sidewalk, in front of the property owned by Mrs. Marie Celeste Lyons.

On March 5, 1926, or within five days of the prescriptive ¡period she brought this suit against Mrs. Lyons, The Sewerage & Water Board and the City of New Orleans.

Mrs. Lyons filed an exception of no cause of action, which was maintained and no appeal taken therefrom. The case proceeded to trial on its merits and resulted in a judgment in favor of the Sewerage and Water Board and the City of New Orleans, dismissing plaintiff’s suit.

Plaintiff appealed only from the judgment in favor of the City of New Orleans.

The responsibility of the City of New Orleans is alleged to be due to the fact that it had full knowledge of the condition of the sidewalk, through its administrative agent, the Sewerage and Water Board, and failed to make proper repairs, allowing the hole to remain uncovered at night (the accident happened at 9:15 P. M.) without lights in violation of an ordinance of the City.

The hole in the sidewalk, according to the evidence was about four feet wide, four feet long and four inches deep. Plaintiff alleges' that as she approached the hole in the banquette she stepped on a loose brick and slipped, throwing herself into the hole. She sustained serious injuries for which she asks the sum of $15,000.00. The City of New Orleans denies the dangerous character of the sidewalk and avers that it had no knowledge of its defective condition.

This Court has repeatedly held that the City is responsible in damages for injuries due to a faulty sidewalk when it had actual or constructive knowledge of the defective condition and not otherwise. Wiltz vs. City, 2 La. App. 444, and authorities therein cited. In the Wiltz case, the facts were very similar to those in the case at bar. There the plaintiff alleged that she stepped into a hole on the sidewalk about nine inches wide ,one foot in length and from four to six inches deep, and that it was gross negligence on the part of the City to leave holes in the sidewalk. It was held that the City had no actual knowledge of the defect and could not be said to have constructive knowledge, consequently there could be no recovery.

In the case of James vs. City of New Orleans, No. 8950 of our docket, we held the fact that other persons besides the plaintiff were injured at the same locality, would not amount to constructive knowledge because “prior accidents at the ■precise place where plaintiff was injured, and caused by the same defect or obstruction would not necessarily show negligence on the part of the municipality.”

The hole in the sidewalk, complained of in this case, while it may be said to have been unsafe in a sense, was nevertheless reasonably safe.and that is all that the law requires. '

Wiltz vs. City of New Orleans, 2 La. App. 444; Goodwin vs. City of Shreveport, 134 La. 820, 64 So. 762; Wagner vs. Point Pleasant, 42 W. Va. 798, 26 S. E. 352.

“Evidence that a brick in a sidewalk over which the plaintiff stumbled projected three-quarters of an inch above the surrounding surface, was not sufficient to present the question of negligence for the jury.”

Covington vs. Belser, 137 Ky. 125, 123 S. W. 249.

There is testimony in the record to the effect that a patrolman, whose beat adjoins the one in which the defective sidewalk was located, knew of the existence of the hole and it is argued that the knowledge of this patrolman was notice to the City. In the first place, the officer referred to testified that the hole was not on his beat, and in the next place, even if it be considered his duty to report it to the proper authorities, it was no part of the officer’s duty to repair the defective sidewalk. It is not shown that notice of the defective condition of the banquette ever reached any City official ^ charged with the duty of making repairs to sidewalks. The mere fact that the patrolman testified that he knew of the condition of the pavement without proof, in fact in the face of a denial, that any communication to that effect had been made to the City authorities, will not be sufficient to establish notice of the condition of the pavement in the City so as to make them responsible for their failure to repair it. Barnes vs. City of New Orleans, 4 La. App. 503.

Our conclusion is that the judgment appealed from is correct and it is therefore affirmed.


text:
    No. 11,083
    Orleans
    COMEAUX v. CANULETTE SHIPBUILDING CO.
    (January 21, 1929. Opinion and Decree.)
    . W. J. & H. W. Waguespack, of New Orleans, attorneys for plaintiff, appellant.
    Monroe and Lemann, and Nicholas Callan, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, widow of James Hill, sues for damages for the alleged negligent killing of her husband. The case was tried by a jury and a verdict and judgment rendered in favor of defendant. Plaintiff has appealed.

James Hill was killed August 27, 1925. He was standing on some wooden pilings adjacent to ,the bridge over the Industrial Canal, at a point where the canal empties into Lake Pontehartrain, in the Parish of Orleans. A tugboat, at that time owned by defendant, with a tow of five empty barges entered the Canal from the lake, and for some reason, the last barge ,struck the piling where defendant was standing, the jar throwing him off his feet, causing him to fall between the, barge and the piling,. where he was crushed and . otherwise injured about the body, and ultimately precipitated into the lake, with the result that he died shortly after being rescued.

The charges of negligence are that the barges were improperly bridled or fastened, and that the tug was unskillfully navigated.

The tug and barges were en route from Slidell, Louisiana, to their destination, somewhere on the Mississippi River. Their course lay across Lake Pontehartrain and through the Industrial Canal. When the tow was' first made up, allowance was made for slack, or play, between the barges of about six feet, this allowance being necessary to accommodate the tow to the tortuous meandering of certain bayous through which it proceeded before entering Lake Pontehartrain. When in the lake, the ropes, or bridles, were shortened to two feet, and as thus attached the tug and tow approached the entrance to the canal.

The record fails to establish any fault in this arrangement which seems to us under the evidence to have been a proper one. " 1

Leo Innerarity, the captain of the tug in 'charge of the navigation of the tug and tow, at the time of the accident was a young man who had progressed from the humble station of deckhand. He is given a good reputation for seamanship by other captains and masters of similar craft. He testifies that the accident was unavoidable because of the tendency of barges in tow to whip against the bank in entering a canal of the width of the Industrial Canal and that the piling on which the plaintiff was standing was placed there ’ because of the recognition of that fact, the purpose being to have it serve as a bumper or buffer to protect the supports and approaches to the bridge. Captain Innerarity also testified that, at the time, he undertook to enter the canal there was a stiff west wind blowing that he directed his course “up the wind” with the intention. of minimizing the whipping tendency of the barges. This maneuver, when submitted to other expert navigators, whose testimony appears in the record, was approved as proper under the circumstances. There is no testimony in the record to the effect that the tug was unskillfully or improperly navigated.

But it is said that as the tug entered the canal the Captain left his post of duty in the pilot house and with one of the members of the crew stood on deck, being attracte"d thereto by the presence of two women on the piling, who were fishing, with stockingless legs hanging over the water. The Captain is charged with flirting with the women and abandoning the navigation of the tug. In support of this claim the two women referred to testify that they were seated on the piling fishing with bare legs dangling, that as the tug and tow entered the canal two men, one of whom had just emerged from the pilot house, commenced waving to them and one of the women testified, that believing that the men were endeavoring to flirt with them she waved back, but neither one of the two ladies testified that the Captain was one of the two men. The nearest that either came to this statement is to say that he looked like one of them. No other witness involved the Captain in the alleged flirtation. The bridge tender, employed by the Dock Board, who have charge of the administration of the Industrial Canal denied that the Captain left the pilot house at all, because, he says that he had been talking to him through the open window of the pilot house as he was going through the entrance of the Canal and nearing the bridge, which had been opened to admit of his passage.

The Captain denied the statement, and every other member of the crew denies it, one witness says that the Captain’s brother was one of the two men referred to.

The charges of negligence imputed to defendants’ servants have not been established. This being true there is no necessity of discussing the negligence of the deceased in voluntarily assuming a position of peril.

For the reasons assigned the judgment appealed from is affirmed.


author: JANVIER, J.

text:
    No. 11,518
    Orleans
    DIETRICH & WILTZ v. H. T. COTTAM & CO.
    (February 11, 1929. Opinion and Decree.)
    Theodore Roehl, of New Orleans, attorney for plaintiff, appellee.
    Milo B. Williams, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

The automobile collision which gave rise to this suit took place at the uptown, lake side of the corner of Decatur and Dumaine Streets, on December 23, 1927, at about 10:30 o’clock in the morning. These two streets intersect at right angles. Plaintiff’s truck was on its wa yup Decatur Street and defendant’s truck, just before the accident, had been going down Decatur Street, or, as defendant contends, North Peters Street — Decatur and North Peters Streets at that ¡point are one and the same — and was attempting to turn to its left into Dumaine Street. There is a double line of car tracks on •North Peters Street and in the river side track there was a switch which connected that track with another which continued into Dumaine Street.

At Dumaine Street, North Peters and Decatur Street converge and form one street for a few blocks, S'o that it is difficult to tell whether the street at that particular corner should be called Decatur or North Peters. This, however, is of little moment in this case. Plaintiff claims that its truck had stopped just before crossing Dumaine Street and that it started again at a slow speed, and that, just as its front wheels reached a point a foot or so beyond the upper line of Dumaine Street, defendant’s truck emerged suddenly around the rear of a street car bound uptown and ran into the left front wheel of plaintiff’s truck.

Defendant contends that its truck had the right of way and had made the turn into Dumaine Street, when it was run into from the side by plaintiff’s truck, which, according to defendant, had not stopped before attempting to cross Dumaine Street, and which could not be effectively stopped because of alleged defective brakes.

The evidence on many points is conflicting, but we think that it is conclusively shown that defendant’s truck turned to its left immediately around the rear end of the street car which had been stopped on the uptown side of Dumaine Street, and thus emerged suddenly into a place dangerous both to itself and to the other truck. In Cahn vs. Hoffman, 3 La. App. 688, the Court of Appeal for the Second Circuit was dealing with facts very similar to those presented here, and in that case said:

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

In that case the driver of the automobile which emerged from behind the street car was seeking to collect damages from the other car, which is the reverse of the situation here, but the Court held that damages could not be recovered, as the driver of that car was at fault.

It is also conclusively shown that in attempting to turn into Dumaine Street, defendant’s truck did not make a long turn, keeping to its right, as it was required to do under the general traffic ordinance (No. 7490 C. C. S., Art. 1, par. 4), but, on the contrary, made a short turn, keeping to its left, and would have entered Dumaine Street alongside the left or uptown curb of that street and in violation of the ordinance referred to but for the fact that as soon as its driver, whose view had been obstructed by the street car, saw plaintiff’s truck, he swerved still more to the left in an effort to avoid a collision. Had defendant’s truck made a long turn, there would have been ample time, after it emerged from its position of obscurity, for each driver to have seen the' others’ truck, and to have avoided a crash. As this Court said in Hudson vs. Jackson Brewing Co., 4 La. App. 549:

“The municipal ordinance, which is in evidence, requires all vehicles, i,n turning to left, into an intersecting street, to pass the center of the intersection on the extreme right, before turning. The ordinance also expressly prohibits all vehicles taking a diagonal course into the intersecting street, giving illustrations of both methods of turning to the left, as the right and wrong way to turn.”

In the syllabus of the Hudson case the Court also said:

“When the driver of a motor truck violates a city ordinance, ¡prescribing the proper method of making a left turn, and such violation is the cause of an accident, the owner of the truck will be held responsible.”

Defendant claims that its truck had the right of way because plaintiff’s truck was on Decatur Street, on which there were no car tracks, whereas defendant’s truck was turning from North Peters Street into Dumaine Street, on both of which streets there were car tracks. Sub-paragraph (a) of paragraph 7 of Article 1 of the General Traffic Ordinance referred to above provides that “vehicles on streets with street car tracks shall have the right of way.”

The answer to this contention, however, is that for the purposes of the operation of the ordinance, Decatur Street and North Peters Street at that point, as we have already stated, really form only one street and, the car tracks are just as much on Decatur Street as they are on North Peters. We therefore do not feel that the section of the ordinance referred to gave to the defendant’s truck in the situation described the right of way over the plaintiff’s truck. Furthermore, even though a vehicle on a right of way street may have the right of way over one on an intersecting street, this right does not come into existence until the vehicle has turned into the right of way street. Where two vehicles are approaching each other, coming in opposite directions, and one intends to turn into a right of way street and across the route traversed or about to be traversed by the other, the driver of the one intending to turn must give to the other time to get out of the way, and cannot, on the theory that it is about to enter a right of way street, claim that the other should stop and let it go by.

This Court, in Taylor vs. Crescent City Mfg. Co., 5 La. App. 655, in a syllabus of the case, said:

“On turning corners chauffeurs should not only hold out their hand as required by the ordinance, but make sure that by suddenly turning,- they do not .drive across the path of another oncoming automobile.”

It is true that in the Taylor case the two automobiles were proceeding alongside each other in the same direction, but the principle of law involved is the same, whether they be proceeding in the same direction or in opposite directions, and that principle is that, no matter which may have the right of way, neither can turn across the path of the other, unless it has plenty of time to cross in front of the other, or unless it gives the other plenty of time to get out of the way.

Furthermore, the right of way gives to one party the right to proceed only when both reach an intersection at approximately the same time and here it is manifest that plaintiff’s truck not only reached the intersection first, but, in fact, was practically across it when struck by defendant’s. As was said by this Court in Vance vs. Poree, 5 La. App. 109:

“* * * the Ford being near the neutral ground when struck, must have entered the intersection some little time before the Studebaker and therefore may be said to have preempted the crossing, and the Studebaker, notwithstanding its right of way, should not have proceeded under the circumstances, but should have given way to the Ford, for, as we have frequently held, the right of way confers no exclusive right to the possessor to monopolize the streets and intersections.”

Defendant claims that plaintiff’s driver was at least contributorily negligent because he states that he saw the other truck when it was still forty-seven feet away, and that if he did see it at this distance, he himself had time to stop. We do not believe that plaintiff’s driver is correctly reported on this point, because at another point in his testimony he states that the other truck was only two feet from him when he first saw it, as it turned suddenly upon him around the rear of the car. This latter statement seems to be so well corroborated by the physical facts, and is so utterly inconsistent with the other statement that we feel certain that plaintiff’s driver either did not understand the question, or was incorrectly reported in the first instance.

Mrs. Katiski’s evidence is not in line with the physical facts and as she in her testimony became very much confused, it seems that her recollection of what she saw is quite imperfect.

There is no dispute as to the extent of the physical damage to plaintiff’s truck. As to the loss of use of thé truck, there is, however, room for cbntroversy, and were it not for the finding of the trial court, we would not be prepared to say that this item was conclusively proved. However, the - trial judge saw and heard all the' witnesses and was better able to judge of their credibility and of the weight to be given to their testimony. Whether the brakes on plaintiff’s car were in good condition was a controverted question, but we believe that the evidence shows that the truck was stopped promptly and efficiently, and we fail to see that the brakes on that truck, even if they were defective, could have been a contributing cause of the accident, as that truck did not run into the other, but was, in fact, run into from its side by defendant’s truck.

The amount allowed plaintiff by the trial judge was $205.50, with legal interest from judicial demand and all costs, and we think this judgment is correct.

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


author: ELLIOTT, J. ELLIOTT, J.

text:
    No. 16,729
    First Circuit
    ST. MARY IRON WORKS v. COMMUNITY MFG. ENTERPRISE, INC.
    (January 9, 1929. Opinion and Decree.)
    (February 13, 1929. Rehearing Refused.)

      Brumby & Bauer, of Franklin, attorneys for plaintiff, appellant.
    Borah, Himel, Block & Borah, of Franklin, attorneys for defendant, appellee.-
   ELLIOTT, J.

C. J. LeBlanc, doing business in the name and style of St. Mary Iron Works, claims $500.0.0, of the Community Manufacturing Enterprise, Inc., with interest and attorney’s fees thereon.

He alleges that the defendant operates a sugar factory and that he built for, sold and delivered to it a smokestack, furnishing certain material, and that the defendant agreed to pay him $1046.00 and to also furnish certain material in addition. That plaintiff constructed the smokestack and defendant paid $546.00 on the purchase price, leaving -$500.00 evidenced by the note sued on as the balance due. That he has on said account a vendor’s lien and privilege on the smokestack.

The defendant admits the alleged indebtedness, but denies that a vendor’s privilege exists on the smokestack on account of same.

The question, whether a vendor’s privilege exists on the smokestack in favor of the plaintiff under his contract, and as a result of the construction of the stack, is the only matter in dispute.

The contract on which the indebtedness is founded is in the form of a written proposal from the plaintiff to the defendant which reads, so far as pertinent:

“We will increase the diameter of your 48" stack, which is 46' long, to 5' and add 79 feet of 5' stack to it. The pieces increasing the diameter of your present stack to be 3/16 steel; 40' of the addition to be No. 8 steel and the balance to be of No. 10 steel; stack to have band top and bottom and band for eye bolts. Stack to be shipped in two sections and put together at your plant, where increasing of your present stack will also be done, etc.”

The defendant accepted plaintiff’s proposition in the same terms in which it was made. It says:

“We accept your proposition of increasing our 48" stack, which is 46' long, to 5' and add 79 feet of 5' stack to it,” etc.

The proposal, acceptance and evidence of the plaintiff on the sbject shows that plaintiff did not sell defendant the smokestack, nor any material for the purpose of constructing one; neither did he buy defendant’s material. He enlarged and lengthened an old stack, belonging to defendant. In performing the work, he took 46 feet of defendant’s old stack apart and inserted in it a strip 36 inches wide, its length of 46 feet. The plaintiff furnished the material for this extra 36 inches in width. This additional width gave the 46 feet a diameter of 5 feet. He then added to this 46 feet, a length of 79 feet of stack, 5 feet in diameter, made of new material, which he furnished for the purpose, thus making the stack 5 feet in diameter and 125 feet long. The work was done at defendant’s sugar house and on its premises. The smokestack was then erected by the defendant and attached to its sugar house for its service.

The construction was an undertaking by the job. C. C. Art. 2757;

“A person who undertakes to make a work, may agree either to furnish his work and industry alone, or to furnish also the materials necessary for such work.”

In this instance the thing constructed Was, from the beginning, the property of the party for whom it was being made. The thing was in defendant’s possession during the work of construction and when it was completed. There was no sale to the defendant. It therefore results that no vendor’s privilege exists on the smokestack in favor of the plaintiff. Plaintiff however contends, that under the ¡contract, although he did not furnish all of the materials, yet having furnished the greater part, he became the owner of the completed stack, as a result of the law on the subject of the right of accession in relation to movables; citing C. C. Arts. 498, 594, 520, 527, etc.

The law cited is not controlling in this case, because this smokestack was constructed as the result of an undertaking by the job and by virtue of an agreement, under which it was constructed for and belonged to the defendant. Defendant erected and attached it permanently to his sugar house, making it part thereof and immovable by destination. The law provides that “all such movables as the owner has attached permanently to the tenement or to the building, are likewise immovable by destination.” C. C. Art. 468.

The law on the subject of accession has reference to. cases where the materials used, belonged to different owners. Here the materials furnished by the plaintiff were for the defendant and became defendant’s upon being incorporated in the stack, equally as much as did the materials which were part of the old stack.

We are not aware of any case in which, simply because the obligor has failed in ■the matter of payment, a contractor by the job has claimed the ownership of the thing constructed, in which a part of the material used in the structure was furnished by the party for whom it was made and the balance by the party doing the work of construction, when the agreement contemplated only the ownership of the thing by the party for whom it was made. But there is considerable jurisprudence, the result of cases where a party has furnished materials and furnished machinery and has claimed for his work and material furnished, a vendor’s privilege on the materials that he furnished and endeavored to enforce the privilege by having the material taken from machinery in which it was placed. Such a case is Carlin, Administrator, vs. Gordy, Sheriff, 32 La. Ann. 1285. In that case a Mrs. Berg sold and delivered a sugar mill to Carlin, who erected it on his plantation, thereby making it part of the immovable by. destination. The sugar mill was not paid for and Mrs. Berg seized it and offered it for sale and claimed a vendor’s privilege on tlie machinery in question. The court held that the vendor’s privilege existed, but at the same time went on to say:

“The privilege resting upon movables is, in some cases affected by the changes which may take place in the nature or destination of the thing. But such changes must be so radical as to create a new species of thing and destroy that species which originally existed. As, to use the illustration of Cujas, when a pine or cypress log is converted into a ship, or when wool is converted into a garment, or when marble is made into a statue.”

. The case was decided in favor of the vendor of the machinery on the ground that the machinery was still in the same condition in which it was at the time it was placed on the immovable, and could, in its complete form, be removed from the immovable without changing its species or form.

The reasoning in this case has never been departed from and has been followed in many subsequent eases. In every casé the question has been, whether, as a matter of fact, the species of the thing has been changed or altered by manufacture or construction into something else. The case was followed in Swoop vs. St. Martin, 110 La. 237, 34 So. 426. In that case the plaintiff had placed new shells on defendant’s sugar mill rollers, furnished two housings for same, four cast iron quarter boxes, two top journal boxes, four king bolts, etc. The incorporation of materials was not in effect dissimilar from the facts in the case now before the court. The court said in that case:

“As we understand the instant case, the plaintiff repaired the sugar mill of defendant, furnishing what pieces were needed; these pieces being made specially to fit with the old pieces of the mill; and the articles furnished to defendant, if separated from defendant’s mill, would be nothing but scrap iron. Under these circumstances we think they have lost their identity of separate movables and become incorporated into defendant’s sugar mill.”

The court further held:

“Exactly under what circumstances movables are to be considered as having lost their identity is, as a matter of course, a question largely of fact.”

In that case the court held that the vendor’s privilege had been lost, and that the materials put into the mill could not be removed from the construction with which same had been incorporated.

The second clause of the syllabus reads:

“The privilege of the vendor of a movable ceases to exist, when the movable ceases to be a movable, by being incorporated into the immovable property.”

Third:

“Where in pursuance of a contract to repair a sugar house, a foundry takes out old pieces and puts in new pieces of machinery, casting or making the pieces specially for the purpose, the new pieces so .added, become merged into the sugar house- and. lose their character of movables. The rule is different when the machinery sold is complete in itself.”

The fact that the machinery was complete in itself is the reason why the privilege was maintained in the case of Carlin, Administrator, vs. Gordy, Sheriff.

In Hibernia Bank & Trust Co. vs. C. F. Knoll Planting & Manufacturing Co., 133 La. 697, 63 So. 288, John H. Murphy had sold to defendant 15 feet of smokestack and some other things susceptible of identification. The 15 foot piece was incorporated with an old one on the premises ind the party who furnished the 15 foot piece, claimed a vendor’s privilege on it. The court says with reference to the privilege:

“The bagasse and syrup conveyor and the 15 foot piece or section of smokestack are shown to have been added to and merged into the sugar house and thereby to have become parts of an immovable, to which the lien for their price does not extend.” Citing Swoop vs. St. Martin, 110 La. 237, 34 So. 426.

The case In Receivership Augusta Sugar Co., 134 La. 971, 64 So. 870, is similar in principle to Swoop vs. St. Martin. In that case the court reviewed the cases at considerable length and showed the different facts which made necessary the different decisions in the several cases cited.

The above cases are cited • in the opinion of the lower court and the same and others in the briefs of the parties. The plaintiff urges that he did not repair an old smokestack, but constructed a new one, using partly, material out of an old stack, of which he became the owner. He urges his position strongly but we differ with him on the question of ownership. He also urges that a vendor’s lien and privilege arises out of every sale on credit and is implied by the law without any specific provision therefor. A vendor’s lien on a movable is not lost so long as the movable can be detached and identified in the hands of the vendee. This contention should be qualified as held in Swoop vs. St. Martin, 110 La. 237, 34 So. 426, and Hibernia Bank & Trust Co. vs. C. F. Knoll Planting & Mfg. Co., 133 La. 697, 63 So. 288.

In the present case there is no vendor’s privilege, because there has been no sale; there is also none, because the pieces of steel furnished by plaintiff, after having been incorporated with other pieces of steel furnished by defendant, have entered into \nd formed a new species of thing and the pieces of steel have lost their identity. And after the loss of their identity by manufacture into a smokestack, that they were attached by its owner to its sugar house and make a part of the -immovable by destination. If the pieces of steel which plaintiff furnished and placed in the stack were to be removed there would be no smokestack; there would be instead two piles of scrap iron, the larger of which would be composed of the pieces of steel which the plaintiff furnished, and the smaller one, of the pieces furnished by defendant.

Our law does not provide for the destruction of a thing constructed under a job contract, in which the materials furnished by the contractor have not been paid for, in order that he may have back the materials that he put into it. The law has provided for his protection in another way.

The judgment appealed from is correct and affirmed; but without prejudice to plaintiff’s right to assert a privilege if any he has for his labor and as furnisher of material on any property subject thereto.

The plaintiff ahd appellant to pay the cost in both courts.

ELLIOTT, J.

The decree in this case on the subject of costs is amended so as to read as follows:

“It is ordered that the defendant, Community Manufacturing Enterprise, Inc., pay all costs to the filing of the answer, and that all subsequent costs in the lower court be paid by the plaintiff. That all costs of appeal be paid by the plaintiff, St. Mary Iron Works.”

As thus amended our former decree is reinstated and made final and a rehearing is refused.


author: JANVIER, J. WESTERFIELD, J.,

text:
    No. 11,020
    Orleans
    DELTA SERVICE STATION v. I. C. R. R.
    (February 11, 1929. Opinion and Decree.)
    See Smith vs. Illinois Central Railroad Co., No. 11,321, on page -.
    William A. Porteous and Norman Tilden, of New Orleans, attorneys for plaintiff, appellee.
    Lemle, Moreno and Lemle, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This is a suit by the owner of an automobile tire service truck for damages sustained by the truck when it was struck and practically demolished by a train of defendant company at the “Protection Levee,” just beyond the city limits of New Orleans.

The driver of the truck, Milton Smith, was killed, and in the matter entitled Smith vs. Illinois Central R. R., No. 11,321 of our docket, 120 So. 405, we held that the proximate cause of the accident was the negligence or contributory negligence of Smith himself.

For the reasons given in that case it is now ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and reversed and that there be now judgment in favor of defendant, Illinois Central R. R. dismissing plaintiff’s suit at the cost of appellant. .

WESTERFIELD, J.,

dissenting. For the reasons given in Smith vs. Illinois Central Railroad (No. 11,321), 120 So. 405, I respectfully dissent.


text:
    No. 10,578
    Orleans
    SHERBURNE ET AL. v. HOTEL GRUNEWALD CATERERS CO., INC.
    (February 11, 1929. Opinion and Decree.)

      Walter Suthon, of New Orleans, attorney for plaintiffs, appellees.
    Robert C. Davey and John C. Davey, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiffs sue for the value of a trunk and its contents which they sent by express to defendant company engaged in the operation of a hotel in New Orleans.

Plaintiffs, prior to their departure from White Castle, Louisiana, where they were married, had expressed the trunk to defendant company, to be held pending their arrival.

Upon arrival they requested that the trunk be delivered to them but were advised that this was impossible as it had been either lost or stolen.

Mrs. Sherburne claims $727.50 as the value of the articles belonging to her and the husband $123.50 as the value of his.

The only defense seriously presented is under R. C. C. Art. 2971 as amended by Act 231 of 1912, which act reads as follows:

“No landlord or innkeeper shall be liable under the provisions of the foregoing six articles to any guests or party of guests occupying the same apartments for any loss sustained by such guests or party of guests by theft or otherwise, in any sum exceeding one hundred dollars, unless by special agreement in writing with the proprietor, manager or lessee of the hotel or inn a greater liability has been contracted for.
“Provided that no guest shall be held bound by the limitation of value established in this article unless this article is conspicuously posted in the guest room.”

Defendant thus contends that its liability, if any, is limited to $100.00.

The value of the trunk and its contents and the fact of delivery to defendant and the failure of defendant to deliver it to plaintiffs are conclusively proven and, and, in fact, are not seriously disputed. We are, therefore, called upon to determine one and only one question, i. e., whether Act 231 of 1912 is applicable to- the facts of this case.

The last paragraph of the statute indicates that it was the intention of the legislature that the act should apply only to such persons as had actual or constructive knowledge of the fact that the hotel desired to limit its liability.

Here plaintiff had no knowledge of the limitation and, in fact, the relationship of innkeeper and guest had not even come into existence. The hotel was a gratuitous bailee or voluntary depositary and, as such, was liable for losses resulting from its negligence. This liability was not, and could not be limited by any statute governing the responsibility of innkeepers because qiuo ad the plaintiffs it had not yet assumed the character of innkeeper. Its liability was therefore governed by the general law relative to gratuitous bailees or voluntary depositaries.

Plaintiffs cites several cases as controlling here: Rothschild & Co., Inc., vs. Lynch et al., 157 La. 849, 103 So. 188; Carol vs. Monteleone, 139 La. 541, 71 So. 798, L. R. A. 1916F, 234; Nicholls vs. Roland, 11 Mart. (O. S.) 190; and Short vs. Lapeyreuse, 24 La. Ann. 45. Also R. C. C. Art. 2933.

The principles involved in those cases and the rules of law announced seem to determine the issue here.

Our attention is called to the fact that the name of defendant has, by charter amendment, been changed to Guaranty Development Company, Inc.

It is therefore ordered, adjudged and decreed that the judgment appealed from he amended hy changing the name of the defendant to Guaranty Development Company, Inc., and, as thus amended, affirmed.

Judgment -amended and affirmed.


text:
    No. 11,731
    Orleans
    A. STEF LUMBER CO., INC. v. O’ROURKE
    (January 21, 1929. Opinion and Decree.)
    Jno. J. Reilley, of New Orleans, attorney for plaintiff, appellee.
    R. A. Dowling, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff, a lumber company, on various dates sold and delivered to defendant lumber, factory work and building material at a total price of $2,194.33. ■ Some of the factory work was purchased from another concern by the plaintiff and delivered- to defendant.

The other concern, for some reason, delayed billing plaintiff for part of this factory work with the result that when plaintiff billed defendant', the bill was $162.45 less than it should have been. Defendant paid this bill and was under the impression that he had settled the account in full. Several months later, however, the other concern, from which some of the mill work had been purchased, billed the plaintiff for $162.45, and plaintiff, on checking its records and books, found that it had never billed defendant for this particular mill work. . It thereupon sent him a -bill, which he refused to pay. This suit resulted.

Several of plaintiff’s employees testified as to the correctness of the account, and as to the fact that this mill work they delivered to defendant had never been paid for. Defendant’s failure to testify was not explained. As to the effect of his failure to testify, see Aubudon Homestead Association vs. A. Stef Lumber Co., 158 La. 1054, 105 So. 62. There is no evidence which would justify us in reversing the judgment of the trial court.

For these reasons the judgment appealed from is affirmed.