text:
    No. 3061
    Second Circuit
    SMITH v. BUTLER
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)
    (January 18, 1928. Writ of Certiorari and Review Refused by Supreme Court.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant Par. 160 d.
    Under Section 8, Subsection 5, of the Workmen’s Compensation Act No. 20 of 1914, as amended, it is the duty of the injured employee to continue medical treatment, and therefore he is responsible for failure to do so.
    2. Louisiana Digest — Master and Servant Par. 159, 160 d.
    Where employee fails to continue medical treatment the compensation will he paid for the period of time that he probably would have recovered had he continued this treatment.
    3. Louisiana Digest — Master and Servant Par. 154, 159.
    Under Section 8, Subsection 3, of the Workmen’s Compensation Act No. 20 of 1914, as amended, the term “wages” on which compensation is based is the rate of pay and not the actual pay earned.
    4. Louisiana Digest — Master and Servant Par. 160 i.
    Under Section 18, Subsection 1 (b) of Act 85 of 1926, amending the Workmen’s Compensation Act No. 20 of 1914, allegation of petition that “compensation was not paid in accordance with the provisions of the Workmen’s Compensation Act” and “not paid promptly when due” a,re sufficient allegations under the act to overrule plea of prematurity.

      5. Louisiana Digest — Master and Servant Par. 160 i.
    Under Section 18, Subsection 1 (b), of Act 85 of 1926, amending tbe Workmen’s Compensation Act No. 20 of 1914, allegation that “suit would be filed unless compensation was paid” and “that plaintiff was offered as full settlement compensation for only three months” is equivalent to an allegation that the defendant refused to pay the sum demanded.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Henry L. Smith against W. G. Butler.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Harry V. Booth, of Shreveport, attorney for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

We find in the record the opinion of the district judge, which is, in • full, as follows:

“Plaintiff sustained a comminuted fracture of both bones of the left leg between the ankle and the knee on the 30th day of March, 1926. He was employed by defendant in raising a steel beam which was swung against his leg and fracturing it as described. He was confined in a sanitarium for twenty-five days, and was under the treatment of defendant’s physicians up until the first of September, when he discontinued his visits to them. Considerable difficulty was experienced by the physicians in getting the tibia to unite; they resorting to what is known as a layne plate, which is an internal splint.
“It seems that this metal plate is laid along the bone and is fastened to the bone by four metal screws about half an inch long.' This plate holds the bones securely in place and serves the same purpose as an external splint. It is not intended that the plate shall remain permanently attached to the bone, the regular course of treatment being to remove this plate as soon as the bone has securely knit.
“According to the testimony of Dr. Sanderson, who was assisting Dr. Slicer in the treatment of this plaintiff, the plate would have been removed in about two weeks if the plaintiff had not discontinued his visits. According to Dr. Sanderson, Dr. Slicer, who was the chief physician in charge, had taken unusual interest in the case and was much disappointed because plaintiff failed to allow them an opportunity to complete the treatment.
“Without reviewing the testimony at length, it is perfectly clear that the only trouble with the plaintiff at this time is due to the failure to remove this plate. The x-ray pictures show a good union and good position of both bones. Directly under this plate there is a small gap, due to the presence of the plate. The x-rays further show that the screws have worked loose, and that nature is in its own way endeavoring to get rid of this foreign substance.
“All of the doctors agree that this plate should be immediately removed. It will be borne in mind that the removal of this plate would not entail the original operation. It is merely the completion of an operation already performed when the plate was attached to the bones. Therefore, decisions to the effect that an injured employee cannot be compelled to submit to an operation would not apply to this situation of treatment already begun.
“The plaintiff also complains of an injury and impairment to his left ankle, but we are convinced, from the testimony of Dr. Thomas and Dr. Potts, plaintiff’s own witnesses, that the impairment of his ankle is not due to the injury complained of. The same is true in regard to some trouble with the lymphatic glands.
“At the conclusion of the trial of this case we announced in the presence of counsel for both sides that the case would be held under advisement for thirty days, and that we hoped that in the meantime the plaintiff would submit to the completion of the treatment by the removal of the plate so that we could determine whether or not his recovery was complete. However, after waiting much longer than the thirty days, it seems that counsel have not been able to agree upon the matter, or to have the plate removed, and that we are now forced to decide the case upon the testimony already submitted.
“Unquestionably plaintiffs in these cases are under the same obligations to cooperate and to minimize damages as other individuals. We cannot conceive it to be the law that plaintiff can refuse to complete treatment already begun and thereby perpetuate the disability that would be cured by the completion of the treatment, and recover compensation for a longer period than that reasonably covered by the necessary time to recover from the treatment if it had been taken.
“Section 8, paragraph 5, of the Employers’ Liability Act provides:
“ ‘The employer shall in every case coming under this Act furnish the employee reasonable medical, surgical and hospital services and medicines not to exceed two hundred and fifty dollars in value, unless the employee refuses to allow them to be furnished by the employer.’
“In this case the evidence shows that the defendant has expended three hundred and sixty-six dollars ($366.00) upon the medical treatment for the plaintiff, and that the plaintiff has refused to continue the treatment. Therefore, the obligation and duty to remove the plate rests upon plaintiff, and he is responsible for the failure to have it removed.
“According to the testimony of Dr. Sanderson, plaintiff discontinued his visits on September 1st. The ¡plate would have been removed had he continued his visits two weeks longer. Testimony varies as to how long it would be before the plaintiff could do hard manual labor of the character that he was doing at the time of his injury after the removal of the plate. It is estimated variously from twelve days, three to six months, six months to a year. We conclude, giving the plaintiff all of the doubt, that a period of six months would suffice, and that therefore plaintiff is entitled to sixty-five per cent of his wages from the time of his injury, March 30th, 1926, to six months from September 14th, 1926, or to March 14th, 1927. i
“It is contended that the amount allowed should be based on the average sums earned by the plaintiff as shown by checks paid him for the four weeks he was employed by the defendant. But Article 3 of Section

of the Employers’ Liability Act provides:

“ ‘The term “wages” as used in this act is defined to mean the daily rate of pay at which the services rendered by the injured employee is recompensed under the contract of hiring in force at the time of the injury.’
“It will be noted that it is the rate of pay and not the actual pay earned that determines the wage. In the present case plaintiff was employed at the rate of thirty cents (30c) per hour for a working day of eight (8) hours, working five 'and a half (5%) days a week. This would make his weekly wage thirteen dollars and twenty cents ($13.20), sixty-five per cent of which amounts to eight dollars and fifty-eight cents ($8.58).
“At the time of the trial plaintiff was employed as an elevator boy at fourteen dollars ($14.00) per week, and while the testimony shows that he may be able to do light work before the complete ending of his disability, there is nothing to show what he could count upon earning at such work. Manifestly, employment as an elevator boy is a precarious employment.
“For the reasons before assigned, there is judgment for plaintiff for fifty (50) weeks compensation at the rate of eight dollars and fifty-eight cents ($8.58) per week, beginning March 30, 1926, which weekly payment to bear legal interest from the date it is due until paid, subject to a credit of $356.32 compensation already paid plaintiff. Defendant to pay all costs in this suit. Defendant’s motion to reopen the case is overruled. Plaintiff’s attorney’s fees are fixed at one-third of the amount recovered.”

Plaintiff prosecutes this appeal and defendant answered the appeal and asks that his exception of no cause of action filed in limine be sustained and that plaintiff’s suit be dismissed; or, in the alternative, that the judgment on the merits be reversed.

Plaintiff, in oral argument and in brief, contends that it was error to limit the period over which defendant should pay compensation, for the reason, as he states, that he was disabled at the time of the trial and that he should have been granted compensation as for total disability during the period of disability, not exceeding four hundred weeks; and he cites decisions of this court holding that in cases where the injured employee is disabled at the time of trial and the testimony is not such as to warrant the court to fix within reason-' able certainty the period of disability he should be awarded compensation during disability, not exceeding the maximum period fixed by the statute. But, as the district judge correctly says, these decisions are not applicable because the testimony establishes beyond question that plaintiff himself is prolonging the period of disability by his refusal to accept simple and harmless treatment which defendant has offered him, the expense of which treatment defendant proposes to pay. Plaintiff’s own physicians testified that they could have by simple and perfectly harmless treatment, not by an operation, relieved his disability if he had only submitted to the treatment, but that he neglected or refused to present himself for treatment and they condemned his conduct.

Defendant assigns as error the refusal of the district judge to sustain his exception of no cause of action and prematurity, which is based upon the ground that the petition does not allege that petitioner is not being or has not been paid and that the employer has refused to pay the maximum per centum of wages to which petitioner alleges that he is entitled.

Section 18 (1) (B) of Act No. 85 of 1926 (which Act was adopted after the date of plaintiff’s injury and before the suit was filed) reads, in part:

“Unless in the verified complaint above referred to it is alleged (where the complaint is filed by the employee or his dependents) that the employee or the dependent is not being or has not been paid, and that the employer has refused to pay, the maximum per centum of wages to which petitioner is entitled under the provisions of this Act, the presentation of (or) filing of such complaint shall be premature and shall be dismissed * *

Assuming, without holding, that the provisions of Act No. 85 of 1926 are applicable, we think the petition does set out a cause of action and that the suit is not amenable to the objection of prematurity.

After defendant’s exception was filed, plaintiff filed an amended petition in which it is specifically alleged, in paragraph 2:

“That the defendant above has not paid his compensation in accordance with the provisions of the Workmen’s Compensation Act.”

And in paragraph 6:

“Petitioner further shows that since the above occurrence weekly compensation by the defendant has not been paid promptly when due.”

These allegations, we think, meet the requirements of the statute, to-wit: that it must be alleged that the employee or dependent is not being paid or has not been paid the compensation to which he is entitled under the provisions of the Act.

But counsel go further and say that there is no allegation that defendant has refused to pay.

There is no allegation which sets out in precise terms that defendant refused to pay compensation, but we think paragraph 5 of the supplemental petition should be construed as equivalent to an allegation that demand was made by plaintiff and that defendant refused to pay compensation. That paragraph reads as follows:

“Petitioner further shows that one A. Simone called upon petitioner through his attorney with reference to a settlement of his injuries on or about July 15, 1926, and offered petitioner three months’ compensation in full settlement of his claim, which was refused. That the said A. Simone, representative of the defendant, was advised that suit would be filed unless weekly compensation was paid promptly.”

The allegation that defendant was informed that suit would be filed unless compensation was paid is equivalent to an •allegation that demand for such payment was made, and the allegation that plaintiff was offered, as full settlement, compensation for only three months, is equivalent to an allegation that defendant refused to pay the sum demanded. An offer to pay a claim in part only is equivalent to a refusal to pay it in whole. The allegations of the petition are somewhat loose, but they comply substantially with the requirements of the Act.

Under the plain letter of the Act courts are not bound down by the same technical rules of practice and procedure in suits of this character as they are in other suits.

, Defendant’s counsel urge that the judgment on the merits should be reversed. We do not think so. The judgment does substantial justice to both parties.

The judgment appealed from is affirmed.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2308
    Second Circuit
    GOLD v. CADDO TRANSFER & WAREHOUSE CO., INC.
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    1.Louisiana Digest — Warehousemen and Warehouse Receipts — Par. 6.
    The statutory as well as the common law rule is that in'the absence of special contract a .warehouseman is not an insurer of the safety of goods stored with him but is required to exercise only a reasonable degree of prudence; reasonable prudence being such degree of care as an ordinarily careful person would e.xercise in respect to similar ¡property stored by him, or that care and diligence which ordinarily prudent warehousemen are accustomed to exercise under similar circumstances.
    2. Louisiana Digest — Warehousemen and Warehouse Receipts — Par. 6.
    Where a warehouseman kept goods stored in a brick building with a concrete floor, put out poison, kept traps set and raised and kept cats in his building for the destruction of rats and mice, he is not liable for damage to goods by them while in his possession.
    3. Louisiana Digest — Warehousemen and Warehouse Receipts — Par. 6.
    Where a warehouseman on receiving rugs on storage cleaned and sprayed the premises with a disinfectant, which was repeated at regular intervals, spread the rugs, placed upon them moth or camphor balls, rolled them together, wrapped them in heavy paper and tied the ends with twine, he is not responsible for damage to the goods by moths, where it is shown that these are used and approved by ware-housemen generally as the best methods of preventing damage to such goods by moths.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Mrs. C. Gold against Caddo Transfer & Warehouse Co., Inc.
    There was judgment for plaintiff and efendant appealed.
    Judgment reversed.
    T. Overton Brooks, of Shreveport, attorney for plaintiff, appellee.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant, appellant.

      STATEMENT OF THE CASE
    On June 6, 1921, plaintiff stored with defendant, a Warehouseman, some rugs and mattresses, which remained in storage for slightly over two years. When they were removed from the warehouse, the rugs were found to be damaged by moths and the mattresses by rats or mice.
    She brought suit to recover the amount of damage, alleging that the damage was caused
    ‘‘solely and only by the negligent and faulty manner in which defendant packed and stored the said articles * * * that defendant failed to protect said property as an ordinarily prudent man would have' protected it”.
    Defendant, in answer, admitted that the goods, when released by it, were damaged to some extent, but alleged that
    “if any (damage) was done while in its possession, was due to no fault or negligence on its part; that it carefully and prudently wrapped, packed and disinfected said goods at the time of receiving them and thus exercised the care with regard to them that a reasonably careful owner of similar goods would have exercised for their preservation and safe-keeping; that its warehouse is properly constructed and carefully maintained for the preservation and safe-keeping of goods stored with it, and that it exercised due care and caution at all times to prevent petitioner’s goods from deteriorating or being injured in any manner while in its possession.”
    The lower court found for plaintiff and gave judgment for $90.00.
    Defendant appealed, and plaintiff answered the appeal, asking that the amount be increased.
   ODOM, J.

OPINION

A warehouseman’s liability for the care of goods stored with him is fixed in this state by statute.

Section 21 of Act No. 221 of 1908, which is an act to make uniform the laws of Louisiana with the laws of other states governing warehouse receipts, defining the duties of warehousemen, etc., reads as follows:

“A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods Would exercise, but he shall not be liable, in the absence of an agreement to the contrary, for any loss or injury to the goods which could not have been avoided by the exercise of such care.”

The common-law rule is expressed by text writers in practically the same language.

In 40 Cyc. 429, after stating that a warehouseman is not an insurer of the goods, unless by special contract, nor liable for loss or injury caused by an act of God, or the public enemy, nor for losses due to inherent defects in the goods “or other causes not due to negligence on his part’C the text writer continues:

“He is required to exercise ordinary care in the custody of the goods, by which is meant that degree of care which ordinarily prudent warehousemen are accustomed to exercise in regard to similar goods under like circumstances.”

So that we must determine whether, as a matter of fact, the defendant did, in this case, exercise, in the custody of the goods stored, that degree of care that a reasonably careful warehouseman or owner of similar goods Would exercise.

There was no special contract entered into by the parties in this case. The defendant, when the goods were received, issued the ordinary uniform warehousemen’s receipt.

The undisputed facts are that defendant’s building is constructed of brick with the first or ground floor made of concrete, and that rats and mice cannot enter from the outside, except on occasions when doors are open for passage in and out of the building, and that their entry at such times is highly improbable, due to the disposition of rodents to flee on such occasions, but that they are at times carried into the building in household goods packed before delivery, and that it is impossible to discover them without completely unpacking the goods, which is not customary or advisable.

In order to rid the warehouse of rodents the manager keeps traps set, puts out poison, and raises and keeps cats therein.

• These, it is shown, are the approved and best methods of destroying rats and mice.

■ It is further shown that at one time prior to or during the time these goods were stored, defendant employed a Government expert to inspect the building, to advise as to its safety, and as to the best methods of keeping-it free from vermin and x’odents, and that the- expert remained for ten days, made a careful inspection, approved the construction of the building and approved the above methods.

. With reference to the damage to the rugs by moths, the testimony shows that when they. were received, the floors and walls of the building where they were stored were cleaned and sprayed with a disinfectant, which spraying was repeated at regular intervals of Some two or three months; that the rugs were spread upon the floor and camphor or moth balls in sxiffieient quantities put upon them, rolled on a pole together, then wrapped securely in heavy paper and the ends securely fastened with twine.

Defendant’s witnesses testify, and it is not disputed, that these are the customary and approved methods of preventing injury to such goods by moths.

Counsel for plaintiff suggested that the premises could have,.been fumigated with. formaldehyde; but it is shown that such method is not practical and is never used by warehousemen because of the resultant damage to furniture and especially to articles of brass.

Counsel for plaintiff says, in brief:

“The doctrine of res ipsa loquitur' applies clearly in this case. The goods in question were received in good condition by defendant for storage. They were returned to plaintiff in a damaged condition.”

If defendant’s liability hinged upon the question whether, as a matter of fact, the goods were damaged while in defendant’s possession, counsel’s point would be well taken. But that is not the point, because that much is admitted. The point is; whether the defendant used that degree of caution and prudence in the care and custody of the • goods for their protection which ordinarily prudent warehousemen are accustomed to use under similar circumstances. ' The testimony shows that it did.

Counsel quotes, and apparently relies upon, the following rule found in 27 R. C. L., page 987, section 45.

“While, as has been seen, a warehouseman is not a.n insurer of the safety of goods stored with him, but is required to exercise a reasonable degree of prudence for their protection. Reasonable care has been defined as that degree of prudence which an ordinarily careful person would exercise in respect to similar property stored by himself, or the care and diligence which ordinarily prudent warehousemen are accustomed to exercise under similar circumstances.”

This rule, under the testimony adduced, is fatal to plaintiff’s case.

We quote the following from 27 R. C. L., page 995, section 54:

“A warehouseman, by virtue of his duty to exercise reasonable care, is bound to take such steps as are usually taken by reasonably -prudent warehousemen to guard the stored goods against rats and mice, but not being an insurer, he is not liable for damage from such cause if he has taken ordinary precautions to prevent the loss.”

In a note to the case of Schmidt vs. Blood, 24 Am. Dec. 155, it is stated:

“A warehouseman is not liable for loss of goods in his warehouse which have been destroyed by rats if he has taken ordinary precautions to prevent such loss.”

Citing Edwards on Bailment, 295, and Story on Bailment, section 444.

In an elaborate note appended to the case of Carley vs. Offutt & Blackburn, 136 Am. Dt. Rep. 207, We find the following at page 231:

“A warehouseman is bound to guard against damage to goods stored with him, which may be caused by rodents, but he is not liable for the loss of such goods so destroyed if he has taken ordinary precautions to prevent such loss; Story on Bailments, Sec. 444. The best methods known of destroying them include the laying of poison or the more common ones of trapping them or keeping cats or dogs. In Califf vs. Danvers, 1 Peake, 114, 3 R. R. 666, the keeping of cats was accepted as common diligence; and in Taylor vs. Secrist, 2 Disn. (Ohio) 299, ke.eping a terrier dog was regarded in the same light. It is hardly necessary to seek analogous decisions, as we think there has been no occasion, since these cases, prompting the destruction of rats and mice by other means.”

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed and avoided, and plaintiff’s suit dismissed at her cost in both courts.


text:
    No. 2933
    Second Circuit
    ALLISON v. POLICE JURY OF BIENVILLE PARISH, ET AL.
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Roads, Bridges and Ferries — Par. 4.
    Where land owner sells right of way for state highway without making reference in contract to the placing of fence on sides of new right of way he cannot recover the cost of such fence because the contract does not contemplate it and Section 27 of Act No. 95 of extra session of 1921 does not require the Highway Commission or Police Jury to place fences on side of right of way.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Bienville. Hon. John S. Richardson, Judge.
    There was judgment for plaintiff against the Highway Commission but dismissing plaintiff’s demands against the Police Jury.
    Both plaintiff and Highway Commission appealed.
    Judgment reversed dismissing plaintiff’s demand in toto.
    Kidd & Wallace, of Arcadia, attorneys for plaintiff, appellant.
    W. D. Goff, of Arcadia, district attorney.
    W. M. Barrow, of Baton Rouge, attorney for defendants, appellees.
   ODOM, J.

Plaintiff brought this suit to recover from the Police Jury of Bienville Parish and the Louisiana Highway Commission the sum of $157.40, and, as a cause of action, alleges that the Police Jury and the Highway Commission huilt a public highway through his property and that the contractor employed to build said road went upon his land and caused him damage in the aforesaid amount, in this, that the fences around his land were torn down and destroyed and that he was forced, on that account, to build new fences and, in doing so, he used 545 posts which cost ten cents each, and to construct 343 rod of wire fence, at a cost of 30 cents per rod; his total outlay being $157.40.

On trial in the District Court plaintiff’s demands against the Police Jury were rejected but he was given judgment against the Highway Commission for the full amount sued for, and the Highway Commissipn has appealed. Plaintiff also appealed from the judgment rejecting his demands against the Police Jury.

OPINION

Section 27 of Act No. 95 of the extra session of 1921 provides that in all cases where it is necessary to acquire a right of way in the construction of a new highway or in changing the location of an old one, the right of way may be acquired either by purchase, donation or expropriation, and in cases where such rights of way are purchased or acquired by expropriation, the compensation therefor shall be paid from the general highway fund.

In • this case the plaintiff land owner sold or donated a right of way seventy feet wide across his land for the building of the highway. The deed found in the record reads, in part, as follows:

“I, J. H. Allison, a resident of Bienville parish, Louisiana, have granted and conveyed to Bienville parish, Louisiana, a certain strip of land seventy feet wide as per survey for its use as a public highway * * * over and across the following described tract of land * * *. The consideration for which this sale and transfer is made is the building and maintaining by said parish of Bienville of a model gravel highway over said land.”

There is no mention in the deed of any compensation to be paid the land owner for the destruction of any crops, fences or other improvements.

But the said act, Section 27, further provides that:

“In expropriating lands for right of way the measure of damage shall be the actual value of the land talien, taking into consideration all the facts and circumstances, location, present use, destination, improvements, etc.”

This part of the act, of course, does not apply to the case at bar, because the right of way was not expropriated but was sold or donated.

Said act, same section, further provides that:

“If any improvements of the land owner or any crops upon the land are damaged or destroyed by the location of such highway, then such owner may recover additional compensation for the actual injury or destruction of such improvements or crops.”

And it is under this provision of the act which plaintiff bases his claim for damages.

Giving plaintiff full benefit of this provision of the act, he is entitled to nothing, for the reason that he does not claim that any crops or improvements on the land were damaged or destroyed by the location of the road.

What happened was, that the Police Jury and the Highway Commission, after acquiring by purchase the right of way, built a new road through plaintiff’s field and, in order to enter the field, they cut through the fence; but he is not suing to recover the damage to the old fence but for the cost of erecting a new fence on either side of the highway after it was built. Here is what plaintiff says, as a witness:

“They cut the fence loose and went through the field.”

And he was asked:

“Mr. Allison, for how long a distance did this road go across your land?”

And he said:

“Well, one field, I had two places at the time; it went across a forty. I had to build a fence on each side of the road; and another place, it went sixty or seventy yards across, and I had to build it on one side, the other field, it was over a quarter there, don’t know just how much, but I had to build something over a mile of the fence.”

In doing this, he was not building a new fence in the place of one taken or destroyed by defendants. He does not claim that defendants destroyed fences worth $157.40.

The act provides that if any of the improvements or crops of the land owner are “damaged or destroyed by the location of such highway, then such owner may recover additional compensation for the actual injury or destruction of such improvements or crops”.

None of the plaintiff’s improvements or crops were destroyed or damaged by the location of the road, unless we take into consideration the cutting of the old fence in order to enter the field, and he makes no claim for that.

If the right of way across plaintiff’s property had been obtained through expropriation proceedings, the jury could have considered the cost of new fences to fence the right of way as an element of damage to be assessed along with other items of damage.

The act provides that in expropriating lands for rights of way—

“the measure of damages shall be the actual value of the land taken, taking into consideration all of the facts and circumstances, location, present use, destination, improvements, etc.”

In such proceedings, where the highway goes through a field, and in order to use the field it becomes necessary for the land owner to build new fences, the jury might consider that the property was damaged, in addition to the actual value thereof, the additional amount of the cost of building new fences. If the future use of the land required new fences, the land itself would be less valuable without the fences and the jury could take that into consideration in assessing the damage to the land. We think the act contemplates that such an item should be considered in arriving at the measure of damage in expropriation proceedings.

But this is not an expropriation proceeding. Plaintiff sold or donated the right of way through his property as per a survey which had already been made, the consideration being that the defendants would build and maintain a gravel highway thereon. The building and maintaining of the highway being the consideration for the right of way, it must be assumed that plaintiff considered that the advantages resulting to him and his property from the building of the road would offset and compensate him for all damages resulting from the building of the road on his land. He knew when he granted the right of way that it ran through his field. He knew that, he would have to build new fences. But he exacted no obligation from the Police .Jury to which the right of way was sold that it or anyone else build any fences, so that he looks' to the statute for relief. But that gives him none, for it specifically provides that if any of the improvements dr crops of the landowner are damaged or destroyed by the location of the highway, he may recover additional compensation “for the actual injury or destruction of such improvements or crops”.

The Police Jury and the Highway Commission employed the Lafayette Construction Company to build the road. Plaintiff was not a party to that contract, but counsel for plaintiff say there is in the contract a stipulation “pour autrui” in his favor.

The contract is in evidence, but we find no stipulation therein in favor of plaintiff.

It was held in Allen & Currey Mfg. Co. vs. Shreveport Waterworks Co., 113 La. 1091, 37 So. 980, that a stipulation in favor of third persons, not parties to a contract, need not be set forth in specific terms in order that the beneficiary may have an action upon it, but that such stipulation “pour autrui” may result from implication — -

“that the question of stipulation ‘pour autrui’, vel non, is a question of what was the intention of the parties, and that that intention must be gathered, just as in the case of any other contract, from reading the contract, as a whole, in the light of the circumstances under which it was entered into.”

There is nothing stipulated on the contract in express terms in favor of plaintiff and we find in the document nothing which indicates that it was intended that the contractor was to build any fences for plaintiff. Counsel point to the following as the stipulation in plaintiff’s favor:

“Item 39. Approximate quantities: 2,796 lineal rods of new fence to be built, including the furnishing of all material, complete and in place, at one and no-100 dollars per cubic rod.”
“4. New fence, listed under item No. 39, shall be built according to standard plan, and posts shall be either cypress, white oak or catalpa.”

The contract provided for the building of a road 8.22 miles long. There is nothing to indicate that the new fence was to be built for plaintiff. It may be and probably is true that the Police Jury and the Highway Commission agreed to build fences for some of the land owners along this line from whom rights of way were procured. But plaintiff made no effort to show that any such agreement was entered into with him, and in the absence of such showing we cannot assume that the new fence referred to in the contract was to be built on his land.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed and avoided and that plaintiff’s demands be rejected and his suit dismissed at his cost.


author: JONES, J.

text:
    No. 11,087
    Orleans
    JOHNSTON v. JAHNCKE SERVICE, INC.
    (January 2, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 4 b, 4 d.
    The traffic ordinance requiring a vehicle approaching a right-of-way street to come to a full stop must be observed literally; it will not be sufficient to slacken speed.”
    Belden vs. Roberts, 3 La. App. 339.

      2. Louisiana Digest — Appeal—Par. 625.
    “The finding of the trial court on an issue of fact will not be reversed unless manifestly erroneous.”
    Neddam Lumber Co. vs. Baker, 6 La. App. 229.
    Appeal from the First City Court, Division “C”. Hon. W. Y. Seeber, Judge.
    Action by Allan J. Johnston against Jahncke Service, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Gerald Netter, of New Orleans, attorney for plaintiff, appellee.
    Spearing & Mabry, of New Orleans, attorneys for defendant,' appellant.
   OPINION

JONES, J.

Plaintiff sued Jahncke Service, Inc., for one hundred twenty-one and 50-100 dollars, alleging that on or about January 15th, 1927, about 9 o’clock A. M., he was driving his automobile up Magazine street at about eighteen miles an hour and that when he reached the intersection of St. Joseph street, his automobile was struck and damaged by defendant’s wagon, drawn by two mules proceeding at a gallop out St. Joseph street in the direction of the river; that the wagon failed to stop on reaching the intersection of Magazine street, as required by the traffic ordinance; and that Magazine street is a right-of-way street and plaintiff had the right of way over defendant’s wagon.

That the tongue of defendant’s wagon struck the right rear side of plaintiff’s automobile causing damage detailed in the petition amounting to one hundred twenty-one and 50-100 dollars ($121.50).

In its answer, defendant admitted the accident, but alleged that, upon reaching the intersection of St. Joseph street and Magazine street, its employee stopped the wagon and then proceeded across Magazine street at a walk; and had almost crossed Magazine street when plaintiff attempted to pass in front of the wagon; that plaintiff was driving his automobile uptown on Magazine street at a speed in excess of that prescribed by the traffic ordinance, and plaintiff ran his automobile into the tongue of defendant’s wagon.

From a judgment in favor of plaintiff for one hundred twenty-one and 50-100 dollars defendant has appealed.

As usual in these cases, there is a conflict of evidence, but we agree with the lower judge that the preponderance of the evidence shows that defendant, who was driving a heavy wagon at a fast speed failed to stop on approaching a right-of-way street and thereby caused the accident.

The judgment is affirmed.


author: CLAIBORNE, J.

text:
    No. 11,123
    Orleans
    STEWART, Appellant, v. CANAL STEEL WORKS, INC.
    (January 30, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    When a case involves merely a question of fact the judgment will be affirmed unless manifestly erroneous.
    Appeal from First City Court. Hon. Alex Bahns, Judge.

      Action by S. X Stewart against Canal Steel Works, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Ernest J. Robins, of New Orleans, attorney for plaintiff, appellant.
    N. H. Feitel, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

Plaintiff claims dam ages for injui-y to motors leased by him to defendants and for balance of rent due.

1st. He alleged that he is engaged in the electrical supplies business; that he leased to the defendant one 10 H. P. Allis Chalmers motor at $7.50 per month or fraction thereof; and

2nd. That he also leased to defendant a 5-Horse Power Fairbanks Morse motor with accessories at $11 per month or fraction thereof; that both motors have been returned to him; that the rent for the Chalmers motor has been paid but there, remains due $11 for the rent of the 5 H. P. motor for the month beginning November 5th; that the two motors were not returned in the same good condition in which they were when leased; that when returned the stator of the Allis Chalmers motor was damaged to such an extent that it was necessary to rewind it and to repair the bearings at a cost of $70; that the stator of the 5 H. P. motor had been burnt out and was repaired at a cost of $45. Wherefore the plaintiff claims $126.90.

The defendants admitted the renting of the two motors; averred that the motors were not in first class condition when rented but were second-hand motors, and were returned by defendants in the same condition in which they were when rented, wear and tear excepted; that the 5 H. P. motor was of no use to defendants as same ceased to operate after a few days’ use, and was returned to plaintiff.

There was judgment in favor of plaintiff for $11 and he has appealed. The defendant has also appealed.

The testimony establishes that the motors leased were second-hand at least five years old. Plaintiff and his three witnesses testify that the motors were tested before being delivered to defendants and were in good running order. The defendants’ two witnesses, one the chief engineer of defendant company, a graduate electrical engineer from the Louisiana State University, testify that the Allis Chalmers motor was unfit for use, and that the other worked fairly well and was returned in the same condition in which it • had been received. There is no preponderance of testimony in favor of plaintiff’s allegations that damage was done by the defendants to the motors leased by them from the plaintiff. The trial judge was of that opinion and we cannot say that he erred.

The claim of $11 for the' rent of the motor is established to our satisfaction.

The judgment is therefore affirmed.


author: MOUTON, J.

text:
    No. -
    First Circuit
    McCOLLISTER BROS. v. LABARRE
    (June 7, 1927. Opinion and Decree.)
    (December 6, 1927. Rehearing Refused.)
    (January 18, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus■ by the Editor)

    1. Louisiana Digest — Pleading—Par. 82.
    An amended petition which in no way changes the substance of the original demand is properly allowed under Code of Practice, Article 419.

      2. Louisiana Digest — Evidence—Par. 252, 254.
    Although parol evidence is not admissible under Civil Code, Article 2276, against or beyond what is contained in the written acts, nevertheless, this rule yields to allegations of fraud or misrepresentation.
    3. Louisiana Digest — Evidence—Par. 248, 254; Sales — Par. 118, 152, 218.
    Where purchaser of “Frigidaire Machine” signed contract with the express verbal understanding that she was not to pay for it unless it proved satisfactory, the terms of payment being left blank in the contract, parol proof of the understanding upon which the warranty was based is admissible in evidence, and, where proven that machine was unsatisfactory, plaintiff cannot recover.
    Appeal from Jefferson Davis Parish. Hon. Jerry Cline, Judge.
    Action by McCollister Bros, against Mrs. Cora B. Labarre.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Alvin O. King, of Lake Charles, attorney for plaintiff, appellee.
    Modisette & Adams, and J. H. Heinen, of Jennings, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff sues defendant for $513.75, the price of a Frigidaire Machine with a Fountain or Cooler attachment. The contract for the machine was entered into between plaintiff and defendant on May 5, 1926. In the top corner of the contract appear in large print the words: “Frigidaire Order”. It is signed by J. C. McCollister for plaintiff, and by Mrs. Labarre, defendant. The price is fixed at $513.75. for the machine, when installed. It is made payable on terms or cash. The contract guarantees the machine against defective material or workmanship, which is practically the same warranty that is implied in all sales.

Plaintiff prayed for judgment against defendant for the price of the machine with legal interest from judicial demand.

Defendant joined issue by filing her answer, and thereafter filed an exception of no cause or right of action.

The amended petition in no way changes or alters the substance of the original demand and was therefore properly allowed by the lower court. C. P. 419; Kansas City Ry. Co. vs. R. R. Commission, 106 La. 586, 31 So. 131; Coleman vs. Continental Bank & Trust Co., 139 La. 1078, 72 So. 742.

The agreement embodies on its face the essentials of a contract of sale, but the terms of payment are not fixed therein. The terms, as appears from the evidence, were left out of the contract for future agreement between plaintiff and defendant.

Parol evidence is not admissible against or beyond what is contained in the Acts, nor on what may be said before or at the time of making them or since. C. C. 2276.

This rule of exclusion, as contended by counsel for plaintiff, applies to all written acts, whether for the sale of real estate or movables; Knox vs. Liddell, 5 Rob. 111. This rule of exclusion yields, however, to allegations of fraud or misrepresentation upon which defendant relies to establish her defense.

The main defense is that defendant was induced to sign the contract by J. C. McCollister, who sold the machine under the promise by him that she would not have to take the outfit, or to pay for it, unless it worked to her entire satisfaction. The proof to establish this defense necessarily goes against or beyond the warranty expressed in the deed, but was admissible to sustain the defense under the averments of fraud and misrepresentation made in the answer.

The deal for the machine was made in the office of McCollister in Lake Charles. Defendant says she told McCollister she did not want to sign for “anything I didn’t know anything about”. The proof is that she knew very little, if anything about a Prigidaire Machine. She says she refused to sign. She testifies that McCollister then said: “I will write all over the face of that paper if the machine does not prove satisfactory you don’t have to take it.” She says, McCollister said, she would not have to buy any ice for her hotel, the machine would furnish what she needed.

A. B. Cudd was present in the office when the contract was being made for the machine. He says Mrs. Laharre refused twice to sign the contract. He testifies, the reason given by her for refusing to sign was because she wanted to know more about the machine before she bought it. He says, McCollister told her she would not have to take the machine or she would not have to keep it, unless she was satisfied with the machine after it was installed. He testifies that McCollister said he would write all over the face of that contract if she required it, that satisfaction was guaranteed on sale. It was after that statement that defendant signed the contract, Cudd says.

McCollister says he told defendant that each tray of the machine would freeze 144 cubes at a time, 20 pounds of ice, and that it would freeze that three times a day, which he testifies was the capacity of the machine. In this he is corroborated by Pairman who was also present when the transaction took place. They both deny that the machine was warranted to give entire satisfaction. It is true that the term of payment is not of the essence of a contract of sale, hut in the instant case it becomes an important factor in assisting to determine the question of guarantee which defendant contends was given to her when she affixed her signature to the contract. The fixing of the terms of payment is an important condition in a contract of sale. It is unusual in such a contract to leave the fixing of the terms to a future agreement. Mrs. Laharre says the understanding was that she would pay for the machine if it worked to her satisfaction. In this case she is supported by the testimony of Cudd, a disinterested witness. It is true the contract is couched in language ordinarily used in a contract of sale, hut, it will be noted, that in large print on the face of the agreement appear the words: “Prigidaire Order”. The evidence shows that McCollister was very anxious to get an order for the machine which he needed before delivering one to Mrs. Labarre. We are of the opinion that the true intent which governed the parties when- Mrs. Labarre signed the contract was that she would pay the price if the machine operated satisfactorily after it was installed, and at which time the terms of payment were to be fixed. It was upon the fulfillment of this guarantee or special warranty that the enforcement of the price of sale depended. Mrs. Labarre was induced to sign on the false promise upon which this warranty was based. The proof shows that the machine fell far short of giving satisfaction, and that it did not come up to the guarantee. The defendant is therefore not liable for the price of the machine.'

After submission of this case the defendant departed this life and Samuel W. Hooks, the testamentary executor, was duly made party hereto.

It' is therefore ordered and decreed that the judgment appealed from be avoided and reversed, and that the demand of the plaintiff be rejected with costs in both courts. 1


text:
    No. 9965
    Orleans
    MIDDLETON v. GRISHMAN
    (November 14, 1927. Opinion and Decree.)
    (December 20, 1927. Rehearing Refused.)
    (January 20, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Pleading—Par. 23.
    A petition is sufficiently certain when it alleges the sale of merchandise and annexes an itemized statement showing the goods sold, the price, and the date of sale.
    2. Louisiana Digest — Pleading — Par. 63; Prescription — Par. 218, 219.
    It is not sufficient for a defendant to plead prescription, he must designate the particular prescription he relies on.
    Appeal from Civil District Court. Hon. E. K. Skinner, Judge.
    Action by Albion L. Middleton against Ben Grishman.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Chas. J. Larkin, Jr., of New Orleans, attorney for plaintiff, appellee.
    Marx & Levy, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit for insurance premiums.

The plaintiff alleged that he is a general insurance agent; that as such he wrote insurance for the defendant at various times from October 3rd, 1917, as shown on the itemized account annexed to the petition and accepted by defendant; that the premiums on said policies amounted to $7052.18, upon which defendant is entitled to a credit of $5060.35 for payments made on account and for credits on cancellations of policies, leaving a balance due of $1991.83, for which plaintiff claims judgment.

The itemized account begins on October 3rd, 1917, and ends on February 14th, 1923, and is composed of about 106 items, not one of which amounts to $500.

The credits begin on October 20th, 1917, and end of February 29th, 1924.

After some skirmishing in exceptions that the petition was vague and indefinite and disclosed neither right nor cause of action, which were overruled, the defendant answered:

I. That he is not indebted to defendant in any sum whatsoever; that the petitioner, Albion L. Middleton, never wrote any insurance for your respondent, Benjamin Grishman;

II. That the said Grishman was never requested • to settle any bill for insurance policies written by the said Albion L. Middleton and that all of the said policies itemized and shown on statement attached to plaintiffs’ 'petition are in the possession of defendant and each one bears receipt of “premium in full”.

The defendant filed a supplemental answer pleading “that in the event this court should hold that premiums on policíes listed by petitioner have not been paid, and that the policies were written by petitioner, Albion L. Middleton, that $947.98 of the amount sued for by plaintiff has prescribed and plaintiff can therefore not recover this amount”.

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

We are relieved of the necessity of passing upon their plea of prescription, inasmuch as defendant does' not state what particular prescription he pleads. McIlhenny vs. Barbin, 15 La. Ann. 550; Bordelon vs. Doherty, 21 La. Ann. 395; Bordelon vs. Coco, 21 La. Ann. 671; Gaines vs. Succession of Del Campo, 3 La. Ann. 245; Aillot vs. Aubert, 20 La. Ann. 509; Johnson vs. Gennisson, 20 La. Ann. 511; Succession of Drysdale, 130 La. 167, 179, 57 So. 789.

" On the merits the plaintiff testified that he was in the insurance business since 1914; that the amount claimed is correct; that the charges are for various premiums for policies issued to the defendant on stock and automobiles, personal accident and life insurance;, that the credits were allowed over a period of time, for cancellation of policies and for cash payments; that the defendant never paid for any particular policy but upon the open account; when the policies are first issued the defendant is supposed to remit to him; on renewals he paid to the companies.

Francis H. Hughes testified that he kept books for the defendant; that on those books was an account with the plaintiff which was carried as a liability of the defendant. At this point the witness pleaded a privileged knowledge and was excused by the court.

We know no such privilege. C. C. 2282, 2283.

The defendant testified that he had never refused to pay the account in full; that he never could get a true statement which he could check up; that he got the statement sued on about a year ago; he did not remember the policies in force except 17 which he has in his possession; he denied the correctness of the statement; plaintiff took away the expired policies; he cannot remember on what policies he recovered for losses; he recovered upon one policy some $900; and upon others also; he does not remember paying plaintiff the premiums on those policies; after receiving payment of the loss, plaintiff took back the policy; he has no check to show payment of any premium in any ¡particular policy; he paid on account from time to time for the policies issued to him; the payments were not credited to any particular policy.

A petition is sufficiently certain when it alleges the sale of merchandise and annexes an itemized statement of the goods, the price and the date of sale. 118 La. 339.

The plaintiff annexed to his petition an itemized statement of the various policies written by him in favor of the defendant, giving the names of the companies which issued the policies, the dates and numbers of the policies and the amount of the premiums. A copy of that itemized statement had been furnished the defendant a year previously. If there had been any error in it, it would have been in the power of the defendant to detect and point it out in his answer. He did not deny a single item. Besides, his bookkeeper, Hughes, kept a record of those transactions in a special account. When this witness was pressed for testimony concerning this account, he refused to testify further, pleading privilege.

The defendant could have released the witness from this privilege. If he did not do it, the presumption is that the witness’ testimony would have been against him. The denial of defendant is general and for that reason vague, as it is not addressed to any particular item. When he received the itemized account sued on a year before, he did not deny its correctness.

When the plaintiff testified that the allegations of his petition are true and his claim correct, this creates a prima facie case in his favor, which throws the burden on defendant to disprove. 3 La. Dig. 128, S. 40-41.

We cannot see that the judgment herein is manifestly erroneous and it is therefore, affirmed.


author: JONES, J. PER CURIAM

text:
    No. 9946
    Orleans
    ANGERMEIER v. GIARRATANO
    (November 20, 1927. Opinion and Decree.)
    (December 12, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    As only questions of fact are involved and there is no manifest error in the decision of the trial judge, it is affirmed as to liability.
    2. Louisiana Digest — Damages—Par. 104.
    An award of three hundred dollars is sufficient as damages to an adult woman who suffered a bruise on the left shoulder, caused by a plank falling from a neighbor’s house, when she did not consult a physician for eight days and never complained to the neighbor and there was no permanent injury.
    Appeal from Civil District Court, Division “A”. Hon. H. C. Cage, Judge.
    Action by Mrs. Julia Angermeier against Jos. Giarratano.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended.
    Henry B. Curtis, of New Orleans, attorney for plaintiff, appellee.
    Theo. Cotonio, of New Orleans, attorney for defendant, appellant.
   OPINION

JONES, J.

Plaintiff sues for one thousand, five hundred sixty-one and 90-100 ($1,561.90) dollars, damages itemized as follows:

Physical pain and mental suffering caused by blow _______________________$ 750.00

Resulting injury and loss of health 750.00

Physician’s bill and medicine____________ 161.90

$1561.90

Plaintiff alleges that she was struck and severely bruised about neck and shoulders by a plank falling from defendant’s home, while she was conversing with him in the alleyway between their two homes on December 21st, 1923, at 4 P. M.; that the plank was twelve feet long, six inches wide and one-half inch thick, and struck petitioner so violently that she was unable to continue the interview; that the falling of the plank was due to defendant’s negligence and that the injury caused her to remain in bed for a week in January, 1924, to consult a physician from time to time up to the filing of this suit, June 30th, 1924, and that she was still suffering from pain in the back, dizzy spells, and was unable to lie on her back without pains.

Defendant admitted the falling of the plank from his house at the time of the interview, but denied it struck plaintiff and averred that the filing of the suit against him was prompted by a desire to harass him, because he had shortly before filed suit against her about a right of passage through the alleyway.

The judge of the lower court found against defendant on the question of negligence and gave judgment in favor of plaintiff for seven hundred and fifty ($750.00) dollars.

In his reasons for judgment he states that he did not believe the doctor would ever send her a bill for his services and that her testimony as to cost of drugs was too vague to permit recovery.

There were only two witnesses to the falling of the plank, plaintiff and defendant. The former swears positively that it struck her, the latter somewhat hesitantly that it did not.

Defendant further swears that she made no complaint at the time and, in fact, had never made any to him, and plaintiff admits these charges.

However, the attendant circumstances seem to support the conclusion of the trial judge, and, as careful consideration of the entire evidence reveals no clear error in his decision, we hereby affirm it as to liability.

As the defendant did not consult a physician for eight days after the accident and as the evidence is by no means conclusive as to her having been confined to her home or having lost any time from her occupation at the Charity Hospital as a practical nurse, and as there is no permanent injury, we think the amount awarded should be reduced to three hundred ($300.00) dollars, an amount more consonant with awards of this court in somewhat analogous cases.

Banister vs. City of Monroe, 4 La. App. 182;

Greer vs. Hamilton, 3 La. App. 120;

Hampton vs. Northwest R. R. Co., 2 La. App. 171;

Becker vs. I. C. R. R. Co., 2 La. App. 745;

Boulin vs. Bradley, 1 La. App. 260.

For above reasons the judgment is amended to read as follows:

It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Mrs. Julia Angermeier, by first marriage widow of Bernard Graff and by second marriage wife of William Gerchow, and against defendant, Jos. Giarratano, for the -full sum of three hundred ($300.00) dollars, with legal interest from judicial demand.

ON APPLICATION FOR REHEARING

On application for rehearing in above case, it is ordered that costs of this court be paid by defendant.

PER CURIAM

As the judgment in this ease was amended in favor of defendant, it was intended that costs of this court should be paid by plaintiff,' but by clerical error the costs were put on defendant, and it is now ordered, adjudged and decreed that the costs of this court be paid by plaintiff.


author: BYRNES, Judge WESTERFIELD, J.

text:
    No. 9616
    Orleans
    STEPHENSON v. N. O. RY. & L. CO.
    (March 14, 1927. Opinion and Decree.)
    (April 11, 1927. Rehearing Refused.)
    (May 23, 1927. Writ to Supreme Court Granted.)
    (January 20, 1928. Opinion and Decree of Supreme Court on Writ of Certiorari and Review; Reversed.)
    (See 165 La. —, 115 So. 412.)

      (Syllabus by the Oourt)

    1. Louisiana Digest — Death by Wrongful Act — Par. 1.
    Legal heirs, as such, have no right of action to recover damages for the personal injuries or- the wrongful death of the person of whom they are the legal heirs. Such a right of action is strictly statutory and is granted solely by Article 2315, Civil Code, as amended by Act 159 of 1918, to the certain designated survivors therein named.
    2. Louisiana Digest — Death by Wrongful Act — Par. 1; Prescription — Par. 78.
    The right of action granted to certain designated survivors by Article 2315, Civil Code, to recover damages for the personal injuries sustained by one killed by wrongful act, ceases to exist after the lapse of one year from the death of the said person.
    This is true although the tortious act which caused the injury and death breached a contract and the injured person if living would have the option of an action ex contractu or ex delicto.
    3. Louisiana Digest — Death by Wrongful Act — Par. 1; Prescription — Par. 78.
    A suit by brothers and sisters on an indemnity bond, given under Ordinance 2346 Commission Council Series, of the City of New Orleans, against the principal, and surety therein, for damages sustained by themselves, resulting from the wrongful death of their sister, while riding as a passenger on a street car covered by said bond, is an action ex contractu, although the bond was given for the payment of damages ex delicto. Such an action is prescribed by the lapse of ten years under the provisions of Article 3544, Civil Code, and not by the lapse of one year under Article 3536, C. C.
    4. Louisiana Digest — Death by Wrongful Act — Par. 22, 25.
    A jury verdict for five thousand ($5000.00) dollars in favor of four plaintiffs collectively for the loss of love, affection, society and companionship of their sister killed by wrongful act, held to be excessive, and is reduced to twenty-five hundred ($2500.00) dollars.
    Appeal from Civil District Court, Divisions “A” and “G”. Hon. William H. Byrnes, Jr., Judge.
    • Action by L. O. Stephenson et als. against New Orleans Railway & Light Co. et als.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Baldwin, Yiosca & Haspel, of New Orleans, attorneys for plaintiffs, appellees.
    Dart & Dart, of New Orleans, attorneys for defendants, appellant.
   BYRNES, Judge

ad hoc. On May 29, 1918, Miss Olive May Stephenson, a passenger on Car No. 49, belonging to and operated by the New Orleans Railway and Light Company, fell from the rear platform of said ear, and as a result of the fall she was rendered unconscious and died three hours later without regaining her senses.

Miss Stephenson was 38 years old, unmarried, and left neither father nor mother surviving her. Her sole and only heirs are two brothers and two sisters, the plaintiffs in this case.

The New Orleans Railway and Light Company, in compliance with City Ordinance No. 2346 Commission Council Series, had filed with the Commissioner of Public Safety of the City of New Orleans a bond in the sum of $5000.00, conditioned as required by Section 2 of the said ordinance. The National Surety Company signed said bond as surety. This bond was in full force and effect at the time of the accident.

On October 4, 1921, after the lapse of nearly three years, the two brothers and the two sisters above mentioned of the decedent, Miss Olive May Stephenson, filed this suit to recover damages in the sum of $15,000.00.. The suit is alleged to be founded on an action ex contractu, and not ex delicto, the plaintiffs basing this contention that it is a suit on a contract, for two reasons: I. Because the suit is filed on the bond against the Railway-Company as principal and against the Surety Company as surety; and 2. Because the suit is based on a breach of the contract of safe carriage of a passenger. Paragraphs 3, 4, 5, 8 and 10 of plaintiffs’ petition substantially state their case. These paragraphs read as follows:

III.
“That on December 29, 1918, the said Olive May Stephenson was in New Orleans, Louisiana, and, about three o’clock P. M., she boarded, at the corner of Canal and Baronne streets, an uptown bound Dryades ear, No. 49, belonging to and operated by the New Orleans Railway and Light Company.”
IY.
“That conductor on board said car accepted and received from said Olive May Stephenson the usual car fare of six (6c) cents, and the said Miss Stephenson and the New Orleans Railway and Light Company thereby entered into a contract of carriage, under the terms of which the said Miss Stephenson, as a passenger, was guaranteed by the said New Orleans Railway and Light Company and its officials and employees the usual care, safety and respect and attention and safe carriage throughout the trip and to her destination and while she was alighting.”
V.
“That the said Miss Stephenson asked the conductor to stop the car at the corner of St. Charles and Perdido streets in order that she might alight; that the car was brought to a stop; that Miss Stephenson re-entered the car for the purpose of getting a bundle; that as she reached the rear platform the conductor had already started the car; that thereupon, in view of the refusal of defendant’s employees to permit her to alight in accordance with her rights, and because of his refusal to stop the ear, Miss Stephenson endeavored to signal the motorman herself, and while she had her hands on the bell cord, the conductor, in an effort to prevent her from signaling the motorman, seized and assaulted the said Miss Stephenson, jerking and pushing her so violently that she was thrown from the platform of the moving car.”
VIII.
“That Miss Stephenson at the time of her death was thirty-eight years of age; that she was a highly educated woman, and that by virtue of her death which was caused directly by acts of defendant, as aforesaid, petitioners have been deprived of the society, and association of their sister, of her love and affection, of the comforts and conveniences that she gave them, and of further support and assistance that she would have rendered them; that petitioners are all entitled to recover of defendants all of said loss which aggregates the sum of seventy-five hundred ($7500.00) dollars, and that petitioners are also entitled to recover of defendants the further sum of seventy-five hundred ($7500.00) dollars, the amount of loss and damages sustained by the said Miss Olive May Stephenson before her .death, and by her estate to which petitioners are the legal heirs.”
X.
“Petitioners further represent that the National Surety Company of New York, pursuant to Ordinance 2346, Commission Council Series of the City of New Orleans, has signed and executed and deposited with the City of New Orleans a bond in the sum of five thousand ($5000.00) dollars, covering the said Dryades car No. 49, belonging to and being operated by the defendant, and by its receiver; that the said bond is annexed hereto and made part hereof, the same as if it were copied in verbatim herein. In accordance with the terms of said bond, petitioners have a direct action against the said National Surety Company to recover the amount of damages up to the sum of five thousand ($5000.00) dollars, suffered by them as the result of the death of their sister aforesaid.”

It will be noticed that the plaintiffs claim $7500.00 for the damages which they personally have suffered or sustained through the wrongful death of their sister, as provided by the second paragraph of Article 2315 of the Civil Code. They also claim $7500.00 as the designated survivors of the decedent, their sister, in accordance with the first paragraph of Article 2315, which states that the right of action for damages shall survive in case of death, in default of certain other specified relations, to the surviving brothers and sisters. This right of action is to recover such damages as the decedent herself could have recovered if she had survived the accident. The contention of the plaintiffs is that they should recover on both of these causes or rights of action.

To the petition of the plaintiffs the following exceptions were filed in the lower court by both the Railway Company and the National Surety Company: (1) That plaintiffs claim the right to recover upon a bond to which they were not parties, and should he required to file said bond. (2) That whatever claim plaintiffs may have had upon the cause of action set up in the petition has been barred by the prescription of one year. (3) That plaintiffs are without right to or cause for action upon the bond declared on in the petition. And the dismissal of plaintiffs’ suit is prayed for.

Between the date of the accident and the date of the filing of this suit the New Orleans Railway and Light Company had been placed in the hands of a receiver. This fact was alleged in plaintiffs’ petition and the receiver was made a party to the suit. In his capacity as receiver he filed the answer in behalf of the Railway and Light Company.

On May 1st, 1922, the exceptions were tried and argued. In overruling the exceptions the judge of the lower court stated his reasons for so doing as follows:

“The suit is on a breach of contract for safe carriage. The prescription of one year is pleaded. “The plea is not well taken. The prescription of this action is ten years.
“The plea that the bond is not filed is not well pleaded. There should be a prayer for oyer.”

No disposition appears to have been made of the exceptions of no cause or right of action filed by the defendants. The lower court, in overruling the plea of prescription, specifically calls attention to the fact that neither plaintiffs nor defendants filed briefs as promised.

Thereafter both defendants filed substantially the same answer, alleging that Miss Stephenson either fell from the car or jumped therefrom while same was being prudently operated, and they specifically pleaded contributory negligence. Paragraphs IV and VI of defendants’ answer-set forth the defense on the merits:

“Further answering, respondent avers he is informed, and believing, so charges, that on December 29th, 1918, a lady wjho was a passenger on Car No. 49 of the Dryades Line either fell from the car or jumped therefrom while same was being prudently operated on a trip up St. Charles between Perdido and Poydras streets; that in falling she sustained injuries which rendered her unconscious and from which she died, so respondent is informed, without ever regaining consciousness, on the same night.
“Further answering, respondent avers that if the said Miss or Mrs. O. M. Stephens was the sister of plaintiffs, they have no just claim for compensation, for the reason that the injuries to and death of the said Miss or Mrs. O. M. Stephens was due to her own negligent and imprudent act in failing to take the care required when riding on the platform of a car, or in stepping from the moving car.”

The case was fixed for trial by jury, at the request of the plaintiffs. In the month of March, 1924, the ease was tried in the then jury division of the Civil District Court. On the day of the trial the defendants renewed their exceptions of prescription and, after argument, the plea of prescription was overruled by the presiding judge of that division.

The case was then tried and the jury brought in a unanimous verdict for the sum of $5000.00 in favor of the plaintiffs. Prom this judgment the defendants have appealed.

In this court the defendant, the New Orleans Railway and Light Company, through its receiver, J. D. O’Keefe, filed an exception to the plaintiffs’ suit, as follows: “That plaintiffs’ petition discloses no right to nor cause for action against the New Orleans Railway and Light Company or against him as receiver.”

As plaintiffs allege that their suit is brought strictly ex contractu, for the two .following reasons: first, because the suit 3s filed on the bond against the Railway «Company as principal and against the ¡Surety Company as surety; and second, because the suit is based on a breach of the contract of safe carriage of a passenger; it is necessary, in order to pass on the exceptions of no right or cause of action, filed in the lower court and again filed and urged in this court, and on the pleas of prescription, filed in the lower court and seriously urged and argued in this court, to discuss the following legal propositions:

1.Have plaintiffs, the brothers and sisters of the decedent, as her legal heirs, or as the specified beneficiaries under Article 2315 R. C. C., a cause of action for the personal injuries sustained by the decedent as a result of the violation of the contract of safe carriage which admittedly existed between the decedent and the Railway and Light Company at the time of the unfortunate accident?

2. Have plaintiffs, as the legal heirs of their deceased sister, or as the specified beneficiaries under Article 2315 R. C. C., a cause of action on the indemnity bond furnished by the Railway and Light Company in accordance with Ordinance No. 2346, Commission Council Series, for the personal injuries sustained by their deceased sister?

3. Have the plaintiffs, the brothers and sisters of the decedent, as the persons designated in the second and last paragraph of Article 2315 of the Civil Code, a cause of action to recover on the indemnity bond such damages as they themselves may have suffered from the wrongful death of their sister?

4. If any of the three foregoing propositions be answered affirmatively, is the said action barred by prescription?

1.

Taking up the first question, the damages sustained by the decedent as the result of the breach of the contract of safe carriage were strictly personal to herself, that is, to her body or person, as contra-distinguished from her property rights. Personal actions of this character are those peculiarly and properly embraced in the Latin maxim, “Actio personalis moritur cum persona”. Such personal actions arise from the violation of a personal right. Personal rights are usually described as those rights included in the right to security in the enjoyment of life, liberty, limbs, body, health and reputation. A person sustaining damage by the violation of a personal right may, during his or her lifetime, file suit to recover damages for the said violation. If the act of commission or omission which violates this personal right is, in and of itself, a quasi offense or tort, the party injured may obtain redress by an action ex delicto. If the act of commission or omission which violates a personal right is, when considered by itself, a quasi offense, yet breaches a contractual duty, the party injured may, at his or her option, recover damages resulting therefrom either by an action ex contractu or ex delicto. Irrespective of which remedy is chosen, it remains a personal action; and, unless by statutory provision this personal action survives in certain designated beneficiaries, the rule of law expressed in the Latin maxim above quoted would apply, and the personal action would cease to exist with the death of the party injured.

Article 2315, R. C. C., and its amendments designate certain specified beneficiaries in whose favor this right of action survives for the space of one year. Among these beneficiaries, in default of others, are named the brothers and sisters of the decedent. Therefore, our answer to the first question is that the plaintiffs in this case had a cause of action ex delicto for the period of one year, as provided in the said article, during which they could have recovered such damages as their sister suffered from the tortious acts of the defendant which caused the breach of the contract of safe carriage. After the lapse of one year from the date of the death of their sister their right or cause of action ceased to exist. Not existing at this time, it cannot now be exercised.

Article 2315 of the Civil Code has been fully and learnedly discussed in the following cases. These cases justify the legal principles which we have just stated:

Flash vs. La. Western Rd. Co., 137 La. 352, 68 So. 636;

Cooper vs. Blank, No. 9329 Court of Appeal;

Payne vs. Georgetown Lumber Co., 117 La. 986, 42 So. 475;

Vaughn vs. Dalton-Lard Co., 119 La. 64, 43 So. 926;

Chivers vs. Roger, 50 La. Ann. 57, 23 So. 100;

Wortham’s Civil Procedure, Note 1, under Art. 22;

Hubgh vs. N. O. & Carrollton Rd. Co., 6 La. Ann. 495;

Ballew vs. Andrew’s Ex’s., 10 La. 216;

Thompson vs. N. O. Ry. & Lt. Co., 145 La. 805, 83 So. 19;

2.

The second question concerns the rights of the plaintiffs, either as legal heirs of their deceased sister, or as the specified beneficiaries under Article 2315 of the Civil Code, to recover on the bond furnished by the Railway and Light Company in accordance with Ordinance 2346, Commission Council Series, such damages as their sister personally sustained as the result of the accident.

Our Supreme Court, in the case of Distefano vs. Michiels, 158 La. 885, has construed an action on a bond almost identical with the bond furnished in this case to be an action ex contractu and to be subject to the prescription of ten years, under Civil Code, Article 3544, and not to the prescription of one year, under Article 3536. Hence, had the decedent lived, she could have, at any time within ten years, brought her action ex contractu on the said bond, even though the bond was given for payment of damages arising ex delicto. Her action on this bond would have been a personal action, and this personal action, after the death of the party injured, may be brought only by the designated beneficiaries in Article 2315 within the time prescribed by said article during which the right of action survives, to-wit, one year from the date of the death of the injured party. Learned counsel for the plaintiff practically concedes this to be true, in his original brief, when he says:

“It is easy to understand that where the deceased had an action either in tort for one year or in contract for ten years, there might be some reason for limiting the survival of this action in case of his death to the space of one year.”

Therefore, the answer to the second question is that the plaintiffs, the brothers and sisters of the lady injured, have no right or cause of action at this time to recover on the bond the damages which might have been sustained by their deceased sister as a result of her injuries.

3.

This brings us to a discussion of the third question: Have the plaintiffs, either as the legal heirs of their deceased sister, or as the persons designated as beneficiaries in the second and last paragraph of Article 2315 of the Civil Code, a cause of action to recover from the principal and surety in the indemnity bond heretofore mentioned such damages as they themselves may have suffered from the wrongful death of their sister?

As legal heirs of their sister, they have no cause of action for her wrongful death.

Flash vs. La. Western Rd. Co.; 137 La. 352, 68 So. 636;

Cooper vs. Blank, No. 9329 Court of Appeal.

As the designated beneficiaries to whom a right of action is given under Article 2315 of the Civil Code, they have.

This suit having been filed nearly three years after the death of their sister, the question which must be determined is whether the prescription of one year, as provided by Article 3536 of the Civil Code, bars recovery. If this action is strictly an action ex delicto, the prescription of one year would apply; if, on the other hand, it is an action ex contractu, it could only be barred by the prescription of ten years, as provided by Article 3544 of the Civil Code.

As stated supra, our Supreme Court held as follows:

“The reason why the District Court ruled that the suit was barred by the prescription of one year was that he thought the action arose ex delicto. On the contrary, a suit against a surety on an indemnity bond, even though the bond was given for the payment of damages arising ex delicto, is itself an action ex contractu, and is subject to the prescription of ten years, under Article 3544 of the Civil Code — not the prescription of one year, under Article 3536. Poydras vs. Patin, 5 La. 324; Ballew vs. Andrus’ Executor, 10 La. 216; Brown vs. Gunning’s Curatrix, 19 La. 462; Brigham vs. Bussey, 26 La. Ann. 676; Fox vs. Thibault, 33 La. Ann. 32; Weints vs. Kramer, 44 La. Ann. 35, 10 So. 416; Levert vs. Sharpe, 52 La. Ann. 599, 27 So. 64; Gordon vs. Stanley, 108 La. 182, 32 So. 531.”

The syllabus of the Distefano vs. Michiels case, 158 La. 885, 104 So. 914, prepared by the editorial staff, announces the principal decided by the case, in the following words:

“A suit against a surety on an indemnity bond given under Act No. 196 of 1918, for permission to operate public service cars, even though bond was given for payment of damages arising ex delicto, is an action ex contractu, and is subject to prescription of ten years, under Civil Code Art. 3544, and not to prescription of one year under Article 3536.”

It will be noticed that the Supreme Court, in the Distefano case, cites with approval the leading case on this subject, Gordon vs. Stanley, 108 La. 182, 32 So. 531. In this latter case the entire jurisprudence of our state is thoroughly reviewed, the syllabus of the court reading as follows:

“1. Whilst it is true that mere error, negligence or imprudence, resulting in injury to another, may be a quasi offense, it is also true that one may by contract bind himself to compensate such injury; and because the injured party has an action in damages as for a quasi offense, it does not follow that he should be denied the right to sue on his contract, if he has one, and prefers that remedy.
“2. The bond given by the register of conveyances for the parish of Orleans, as required by Section 3153, Rev. St., constitutes a contract between that officer and the state for the benefit of those interested, that he will faithfully discharge the duties of his office; and, whilst an act of omission or commission with respect to such duties, considered by itself, may be a quasi offense, it is also a breach of the obligation of the bond, and an action on the bond for damages resulting therefrom is an action ex.contractu, which is not barred by the prescription of one year applicable to quasi offenses.”

We believe that the third question is squarely answered by these decisions. No attempt, either in argument or in the able and exhaustive briefs filed by the learned counsel for the defendants, is made to differentiate or distinguish the case at issue from the Distefano case. In fact, it is not even mentioned by him.

The exceptions of no cause or right of action, filed by the defendants in the lower court, and by the defendant New Orleans Railway and Light Company in this court, must necessarily be overruled, for the reason that the petition of the plaintiffs does disclose a right and cause of action to recover, in an action ex contractu, on the indemnity bond, against both the principal and surety named in said bond, for the damages suffered by them from the wrongful death of their sister; and, as this action was brought within the prescriptive period of ten years, the plea of prescription must likewise be overruled.

4.

The prescription applicable to plaintiffs’ right of action having been fully discussed and disposed of, it is not necessary to separately consider it at this time.

Counsel for the defendants raises another point, in his supplemental brief, that the present plaintiffs, not being parties to the bond, cannot maintain an action thereon; that:

“The obligation of the bond was that if the railway company did not indemnify a person injured in person or property by its fault, or that of its servants, in the operation of the car covered by the bond, the surety company would do so up to the sum of $5000.00.
“But the claimant under the bond would first have to establish that he had been injured by the fault of the railway company, or of its servants, before there was any obligation to indemnify.” ■

Then he argues; “The plaintiffs in this case were not injured in their persons. They had no property in their sister, hence did not sustain any damage to their property by her death.”

Counsel would read into the bond words 'which are not in it. If his argument is correct, he would substitute, for the words “to his or their person”, the words “physical injuries”, which words manifestly are not synonymous. It is not necessary, however, to dwell on this point, for the reason that in the Distefano case the parents were suing to recover damages for the wrongful death of their infant child, and, as stated before, the bond in that case, having been given under the provisions of Act 196 of 1918, was worded identically the same as the bond given in this case under Ordinance 2346, Commission Council Series.

The contention that a claimant under the bond in the present case must first obtain a judgment against the Railway Company establishing that he had been injured by the fault of the Railway Company or of its servants before any obligation on the part of the surety arises, is untenable. A mere reading of the ordinance and of the bond, both of which have been filed and are in the record, will destroy this contention. After reciting the provisions of the ordinance as the reason for executing the bond, the obligation follows:

“Now, therefore, the condition of this instrument is such that if the principal indemnifies the obligee or any other person or persons who may sustain damages to his or their person, or property, as a result of the fault of the principal, its agents, servants, or employees in an amount not to exceed the sum of five thousand dollars ($5000.00) for the car used and employed by the principal and known and designated as car No. ■ — , then this instrument shall be null and void; otherwise to remain in full force and effect.”

This matter has also been discussed in the case of Gardiner vs. N. O. Railway and Light Co., 155 La. 447, 99 So. 398.

There is nothing in the ordinance or in the bond above mentioned expressly or impliedly requiring the bringing of an action against the principal to determine its liability before an action is commenced on the bond.

For a full dscussion on the bonds required under the provisions of various state statutes and the decisions of the highest courts of those states, see:

Huddy on Automobiles, 8th Ed., 182.

White vs. Cain, 179 Wis. 478, 192 N. W. Rep. 57.

Fenton vs. Posten, 114 Washington 217, 195 Pac. 31.

City of Providence vs. Payne, 41 R. I. 333, 103 Atlantic 786.

Therefore, we are of the opinion, for the above mentioned reasons, that the plaintiffs in this case, for the loss suffered by themselves, have a right of action on the bond against both the principal and surety in the said bond, and that both defendants may be joined, in the same suit and judgment be rendered against both defendants in solido.

ON THE MERITS

This case was tried by a jury which brought in a unanimous verdict against the defendants. ' The record shows that a new trial was not asked in the lower court. A careful reading of the testimony of the witnesses shows no obvious error on. questions of fact in the jury’s findings, which will not, therefore, under the repeated rulings of this court' and of the Supreme Court, be disturbed.

Plaintiffs were awarded by the jury the sum of five thousand dollars. As there was no evidence before the jury to show that the decedent, Miss Stephenson, sustained any damage for which she herself could recover, as she was rendered unconscious by her fall and remained so until her death, it is reasonable to believe that the entire amount was awarded to the four plaintiffs for the damages sustained by them caused by the wrongful death of their sister.

As we have decided that plaintiffs would have no right or cause of action at this time to recover for any damages sustained by their deceased sister, even if she had sustained any, we can allow only such damages to the plaintiffs as they have suffered by reason of her death, that is, by being deprived of her society and association, and of her love and affection.

We believe that the sum of five thousand dollars, as awarded by the jury, is somewhat larger than amounts awarded in previous decisions for damages of this character. In computing damages where the question of financial loss is not present, each ease must necessarily be considered separately. All of the facts and surrounding circumstances have a direct bearing on the amount of the award. In the present case the evidence shows that Miss Stephenson was a highly educated woman, that at the time of her death she was 38 years of age, and that her relations with her brothers and sisters were exceedingly friendly. We therefore believe that, as there are four plaintiffs, two brothers and two sisters, an award in globo of twenty-five hundred dollars, with legal interest from judicial demand, is fair and reasonable.

It is ordered, adjudged and decreed that the judgment of the District Court is, for the reasons herein assigned, modified by reducing the amount of the said judgment from five thousand dollars to twenty-five hundred dollars, and in all other respects is affirmed — legal interest on the said sum of twenty-five hundred dollars to be computed from the date of judicial demand. Plaintiffs to pay costs of appeal.

On REFUSING REHEARING

WESTERFIELD, J.

The vehemence with which the application for a rehearing is presented, and our confidence in the sincerity of counsel, impels us to add the following observations to the very able opinion, as written by our brother of the District Court who, at our invitation, participated in the hearing and wrote the original opinion of ths court.

It is said that an action must be brought against the Street Railway Company within one year in order to hold either the Street Railway or the Surety Company. It is conceded that if this suit be filed against the Street Railway Company within one year, that the surety may be sued at any time within ten years. Why the obligation of the principal and surety should differ so materially is beyond us. If the principal is released by the failure of plaintiff to institute the suit within one year, of course, the surety would also be released, but the obligation of the surety is not conditioned upon suit being brought against the principal within one year. We know of no law which so restricts the contract of suretyship. As we understand it, a surety agrees with the creditor to satisfy the obligation if the creditor does not. R. C. 3035.

Suretyship is an accessory contract made for the assurance of the performance of the principal contract. R. C. C. 1171.

The principal contract in this case was the one entered into between the City of New Orleans on the one hand, for the benefit of its citizens, and the Street Railway Company, on the other. This agreement is either a contract or it is not. If it is not a contract, then the surety, who is a stranger to the operation of the street cars has no obligation whatever to any person injured by the railway company whether suit is brought within one year or ten.

If it is a contract, and not contra bonos more's, the prescription of action for its breach is ten years and not one year.

In Gordon vs. Stanley, 108 La. 182, 32 La. 531, the Recorder of Conveyances, and his sureties, were sued after a year had elapsed from the date of his alleged fault. This case, in principle, is identical with the instant one. There, the bond ran to the State of Louisiana for the benefit of interested parties, as in this case, where the city represented the public. The suit was brought by an individual who suffered, as a result of the recorder’s fault. The prescription of one year was urged. The court said:

“Whilst it is true, therefore, that mere error, negligence or imprudence, resulting in injury to another, may be a quasi offense, it is also true that one may, by contract, bind oneself to compensate such injury; and because the sufferer may have an action in damages for a quasi offense, it does not follow that he should be denied the right to sue on his contract, if he has one and prefers that remedy.”

It is conceded that a passenger may sue on an implied contract of carriage for damages sustained through negligence of the carrier and the action is subject only to ten years, yet, it is contended that when an express contract is made to indemnify all persons injured by the carrier, a suit can not be brought on the contract but only ex delicto, and within one year. We attribute the confusion of counsel to the fact that a surety was given by the street railway and to the practice of referring to the agreement with the city as a bond.

If the word contract is employed, and the street railway be considered as the principal, and the surety company as the surety, on the one hand, and the City of New Orleans for the benefit of all persons injured as the creditor of the contract, the situation appears in a clearer light.


author: LECHE, J.

text:
    No. -
    First Circuit
    WEST v. MARTIN LUMBER CO. ET AL.
    (June 7, 1927. Opinion and Decree.)
    (October 6, 1927. Rehearing Refused.)
    (January 18, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant Par. 154, 156.
    Under Section 6 of the Employers’ Liability Law, as amended by Act No. 85 of 1926, a lumber company is not liable to pay compensation to the employee of the person from whom it purchased saw logs,” the relation of master and servant being non-existent.
    Appeal from the Parish of Evangeline. Hon. B. H. Pavy, Judge.
    Action by Edward West against Roy O. Martin Lumber Co. et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Peterman, Dear & Peterman, of Alexandria, attorneys for plaintiff, appellee.
    C. E. Hardin, of Lake Charles, attorney for defendant, appellant.
   LECHE, J.

The demand in this suit is for compensation from the Roy O. Martin Lumber Company and W. E. Tubre, and, from a judgment against them, both defendants have appealed. The appeal, however, was only perfected by the lumber company and by it alone, is being present-, ly prosecuted.

Plaintiff alleges that the Roy O'. Martin Lumber Company operated a logging camp, in the Parish of Evangeline; that while it did not directly operate said camp, it employed or contracted with W. E. Tuhre for the cutting and hauling of logs for one of its mills, that same was a part of the trade, business or occupation of said company; that said W. E. Tubre was a foreman or superintendent for said company, or if not, that he was a contractor and defendant company was principal in said work within the contemplation of Section 6 of Act 85 of the year 1926.

These allegations are evidently made with a view of bringing the case within the scope of Section 6 of the Employers’ Liability Law, as amended by Act 85, p. 113, of the Acts of 1926. The section, as amended reads as follows:

“That where any person undertakes to execute any work, which is a part of his trade, business or occupation, or which he had contracted to perform, and contracts with any person * * * for the execution by or under the contractor of the whole or any part of the work, undertaken by the principal, the principal shall he liable to pay to any employee employed in the execution of the work * * * any compensation under this act which he would have been liable to pay if that employee had been immediately employed by him * * *

The evidence shows that plaintiff, West, was employed by W. E. Tubre, as a swamper to cut timber and move sawlogs to a point where they were to he delivered to the Roy O. Martin Lumber Company, and that he was injured while performing such service. The evidence further shows that the lumber company had nothing to do with the cutting of the timber or hauling of the sawlogs to the place where delivery was made to it; that it simply purchased these logs from Tubre; that after the logs had been hauled by Tubre to the agreed place of delivery it would scale them, then buy them at the place of delivery and thereafter control and own such logs. There is no evidence to sustain the allegation that the lumber company undertook to execute the work, in the performance of which plaintiff was injured, or that it operated a logging camp or that the relations between the lumber company and Tubre were those of a principal and a sub-contractor, or that Tubre was a foreman or a superintendent for said company, or that plaintiff was even remotely under the employ of the company.

The testimony of Roy O. Martin, W. E. Tubre, Willie Carter, G. T. Patterson and Y. M. Patureau, shows clearly that the Roy O. Martin Lumber Company purchased from W. E. Tubre sawlogs, which Tubre delivered to it at an agreed place on the highway; that the sale was only made and (perfected after the logs were hauled to the place of delivery, were scaled and the price agreed upon. It is only .reasonable and logical to suppose that there must have been some preliminary understanding between the lumber company and Tubre as to the kind of timber which the company wished to buy and also as to the size and quality of the logs it would accept, but such an arrangement could not make it liable to pay compensation to Tubre’s employees.

The lumber company was the purchaser of a commodity prepared and supplied, by Tubre. Under the most liberal interpretation of the somewhat obscure language of the quoted section of the Employers’ Liability Law, it would he unreasonable and contrary to common right and reason as guaranteed by the Constitution, to hold that the purchaser of a commodity is liable for compensation to the employee of the seller of such commodity.

For these reasons, the judgment appealed from is avoided and annulled insofar as it condemns the Roy O. Martin Lumber Company to pay compensation to Edward West, plaintiff, and it is further ordered that plaintiff pay costs of this appeal and one-half the costs of the lower Court.