text:
    No. 3278
    Second Circuit
    SMITH v. POLLACK COMPANY
    (December 19, 1928. Opinion and Decree.)
    M. C. Redmond, of Monroe, attorney for plaintiff, appellee. ’
    Dawkins & Dawkins, of Monroe, attorneys for defendant, appellant.
   ODOM, J.

The plaintiff brings this suit to recover actual damages resulting from the breach of a contract of hiring. The defense is that plaintiff was not in fact employed by it.

The testimony shows that on or about the first of September, 1924, the plaintiff was employed by the defendant company as collector, at a salary of $160 per month, by and through its manager and agent, Mabry. It was necessary, it seems, for one acting as collector for the defendant company to use an automobile. Mabry, the manager and agent, explained to plaintiff that his company did not furnish -an automobile to its collectors. Whereupon, plaintiff informed him that he had no automobile of his own and was not financially able to buy one, and could not pay for one, except out of the proceeds of his salary. He stated to Mabry, however, that inasmuch as he had secured employment as defendant’s collector, he would probably be able to secure an automobile by having friends arrange for the cash payment on a car. In view of his contract with defendant, plaintiff purchased a Ford automobile and induced two of his friends to endorse his notes for the balance due on the car. Plaintiff testified, and his testimony on that point is not contradicted, that he had no use whatever for the Ford car, except in the performance of his duties as collector. Having purchased the automobile and made all arrangements to take up his duties with the defendant company, he subsequently tendered his services to the defendant and was then informed by Mabry that another manager had been employed to take charge of the business, and suggested that plaintiff wait until the new manager appeared. This, it seems, was satisfactory to the plaintiff. But, when the new manager appeared to take charge of the business, plaintiff was informed by him that his Services would not be needed. In the meantime, as stated, plaintiff had purchased the automobile and had also sold, at a sacrifice, some watermelons and some livestock in order to get ready to take up the duties under his new employment. On account of not having been retained in his new position, he was unable to pay for the automobile and the vendors thereof repossessed the car, under their contract of sale and mortgage, so that the amount of the cash payment on the car, together with the notes which he paid, was a total loss to him. This amount, together with the amounts which he lost on account of having' to sacrifice his crop of melons and his livestock is the sum which plaintiff claims as actual damage and loss on account of the breach of the contract.

Plaintiff is clearly entitled, under the law, to recover these amounts. (Articles 1926, 1930, Revised C. C.)

In the case of Taylor vs. Paterson, 9 La. Ann. 251, it was specifically held that the general rule that the inexecution of contracts gives rise to a claim for damages, laid down in Article 1924 (new Article 1930) is applicable to the contract of hiring; and in the cases of Trefethen et al. vs. Locke et al., 16 La. Ann. 19, and Lloyd vs. Dickson et al., 121 La. 915, 46 So. 919, it was recognized that upon a breach of a contract of hiring, the actual damage resulting therefrom might be recovered.

The District Judge found for plaintiff, and assessed-the damage at $160, and we think his conclusion on that point is amply supported by the testimony.

Counsel for the defendant filed in limine an exception of no cause of action, which was overruled by the Court. The exception is based, as we gather from counsel’s brief, on the ground: first, that plaintiff did not allege that he tendered his services to defendant. Counsel evidently overlooked Paragraph 4 of plaintiff’s petition, in which he alleged that ‘‘after he purchased his said car in the above way, that he reported to said Pollack Company in order to go to work.” Second, counsel argues that the only element of damage in a case of this kind is the difference between what plaintiff would have earned under his contract and what he was able to earn during a like period of time thereafter. That is not the law. What plaintiff claims is that after making a contract with the defendant to go to work, he purchased an automobile on which he paid certain amounfs which were a total loss to him, and that he sacrificed some of his property — all on account of defendant’s breach of the contract. These are elements of damage which, we think, he is entitled to recover.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed, with costs in both courts.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 3281
    Second Circuit
    HARGROVE v. HODGE ET AL.
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.).
    (January 28, 1929. Writ of Certiorari Review Refused, by Supreme Court.)
    Melvin F; Johnson, of Shreveport', attorney- for plaintiff, appellee.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant,, appellant.
   ODOM, J.

This is a petitory action involving the title to Lot 19, Block B, of ten-acre Lot 35, City of Shreveport, Caddo. Parish, Louisiana. Plaintiff and defend-, ant trace their title to. a common author, Burrel Porter, whose title traces back to the Government through an unbroken chain. At Porter’s death, he left six heirs who provoked a sale of the property to effect a partition on January 15, 1927, at which sale Marion K. Smith became the purchaser. Smith, in turn, sold the property to Howard H. Hargrove, the plaintiff, Hargrove brings this suit, setting Up his title, and alleges that ■ the defendant, Hodge, is in actual possession of a portion of said lot, without title, and is a trespasser.

Defendant admits in answer, that he is in possession of at least a portion of said lot', and sets up title in himself, alleging that he acquired the same from Burrel Porter by deed on October 26, 1901.

There was judgment in the lower court in favor of plaintiff, recognizing his title to the property, and ordering defendant to surrender possession of the same. Defendant has appealed.

OPINION

The plaintiff .has an unbroken chain of title to said property which traces back .to the United States through Burrel Porter. But Porter sold to defendant, or rather to his. wife who was made a party to the suit, the following described property, on October 26, 1901, to-wit:

“One Hundred feet off of the West end of the triangular lot No. Nineteen (19) Block B of Ten (10) acre lot No. Thirty-five (35) bought of Mrs. Willie W. Hargrove on November 15, 1897.”

The question to be determined in this suit is whether the description contained in the deed -from Porter to defendant, as above quoted, is sufficient to convey title to all, or any portion, of “lot Nineteen (19) of Block B. of the Ten (10) acre lot No. Thirty-five (35) of the City of Shreveport, Caddo Parish, Louisiana,” and to convey notice 'to third purchasers.

By reference to a copy of the original “plan of subdivision of Ten Ace Lot 35,” filed and recorded on June 10, 1869, in Book Q, page 571, of the records of Caddo Parish, we note that Lot 19 thereof is triangular in shape, with its base or west side running along the east edge ,of Western Avenue, which runs due north and south. The triangle has a base, according to scale, of approximately 135 feet, with an altitude of about 70 feet. This, as stated, is according to the official plat which is recorded. The deed, under which defendant claims, calls for "one hundred feet off the West end of triangular lot Nineteen (19) Block B, of Ten Ace lot Thirty-five (35).”

We think this description is insufficient to identify any portion of the lot, which is claimed by plaintiff, and too indefinite to put third ¡persons on notice.

The lot has no west end, but has a west side, and counsel for defendant' contends that the word “end” in the deed should be omitted as surplus’áge and, if that is done, the deed would call for one hundred feet off the west of said lot; or, that the word “side" should be substituted for the word “end” so that the deed would call for one hundred feet off the west side of ' the lot. But this is not a suit to reform a deed, or to correct errors in description. The plaintiff bought the property on the faith of the public records, and the defendant’s deed must be, as to plaintiff, construed as it' is found therein. But, even if counsel’s contention in this respect be well founded, there is the further objection that Burrell Porter could not sell and the defendant could not acquire one hundred feet off the west side of the said lot, because the lot has an altitude of less- than one hundred feet. Counsel says, that in order to locate the property intended to be sold, a line should be run perpendicular to the base east, through the apex of the triangle, to a point one hundred feet from the base; then run a north and south line through said point, parallel with the base, the full length thereof, and construe the deed as calling for all of said triangular lot west of said line. But, as stated, the triangle has an altitude of only about 70 feet, so that to run a line east, perpendicular to the base through the apex to a point 100 feet east of the base, would throw the point thirty feet above the apex, and entirely beyond the boundaries of the lot. According to counsel’s own theory, therefore, the description is unintelligible.

Counsel brought into this Court, attached to a special bill of exceptions, a plat of said Lot 19, which was ruled out, and correctly so, by the District Judge, as not being identified or certified as correct. According to this map, said triangular lot No. 19 has an altitude of 107 feet. Counsel says that the deed should be interpreted so as to give defendant all that part of said lot west of the north and south line drawn through the lot one hundred feet from its base. If it be conceded that the measurements shown on the plat, which counsel would have us consider, are correct, and conceded further, that the calls of the deed should be construed as counsel would have us do, it will be seen that the vendor divested himself of all Lot 19, except a small triangle at the east end of the lot with an altitude of only seven feet, which would be worthless, unless it lay adjacent' to other property owned by the vendor, and it is not shown, nor even suggested, that he owned any other property there, and, by reference to the official plat, we note that the apex of triangular Lot No. 19 is a point on the edge of an alley. It is hardly probable that Porter intended to sell all his property, except such a small triangular portion thereof.

Counsel says, that inasmuch as there is no west end to this triangular lot, we should hold that it was intended to sell one hundred feet off the west side thereof; but, if we are to indulge in speculation as to what the vendor intended to sell and the vendee intended to buy, we might as reasonably suppose that the ¡parties became mixed on directions, and that it was intended to convey one hundred feet off the north end or the south end of said property, in which event, the vendor would have retained a small triangular lot, with a base of thirty-five feet, fronting on Western Avenue, which would probably be of small value. But this is indulging in speculation, which is not permissible in the interpretation of deeds to real property.

The description in a deed must be such that the property intended to be conveyed can be located and identified, and the general rule is that the description must fully appear within the four corners of the instrument itself, or that the deed should refer to some map, plat or deed as a part of the description, so that the same may be dear.

The purpose of registry is that third persons may have notice of the transfer, and, if the description in the deed is so vague, indefinite and uncertain that the property cannot be located and identified, the sale is void as to third persons who deal upon the faith of the public records. The deed, under which defendant claims, is too vague and indefinite — it > really describes nothing.

We attach great importance to the testimony of Mr. Charles D. Evans, civil engineer for the city of Shreveport, who has practiced his profession for about twenty-seven years. He was handed the deed and plat, and was asked if he could locate or survey the property described, and he stated that he could not. He said:

“There is no way to define the lines.”
“I could not survey it, no.”

And

“As a matter of fact, the description does not mean anything to me.”

He gives as his reasons mainly that the lot has no west end, and that “it lacks about thirty feet of being one hundred feet east and west.”

Defendant’s deed calls for “One Hundred feet off triangular lot No. Nineteen (19), Block B of Ten acre lot No. Thirty-five (35).” It does not recite that ten-acre Lot No. 35 is situated in the city of Shreveport, Caddo Parish, or in the State of Louisiana. No map or plat is referred to nor does it refer to any deed of record for description. It does contain this clause: “bought of Mrs. Willie W. Hargrove on November 15, 1897,” but does not recite that the deed, if there was any, was recorded. The rule “that is considered certain which can be made certain” has no application. Nothing is referred to by which the property can be located or by which the description can be made certain. The deed of Mrs. Hargrove to Burrell Porter was not offered in evidence. It may or may not describe the property as being in the City of Shreveport, Caddo Parish, Louisiana. Counsel for defendant says in argument and in brief that the location of the property in controversy is established by ¡plaintiff’s allegations. Plaintiff alleged that the property in controversy is in the city of Shreveport. But the question is not whether the property is in Shreveport', Caddo Parish, Louisiana, but whether defendant’s deed shows that it is.

In the ease of Weber’s Heirs vs. Martinez, 125 La. 663, 51 So. 679, cited by counsel, the Court held that a sale of property for taxes under the following description was good:

“Certain lots of ground and improvements in the Third District of New Orleans, in Square No. 1179, bounded by New Orleans, Liberal, St. Bernard and Force Streets, said lots fronting on New Orleans Street, which said property was duly and legally assessed for the taxes of 1883 — in the name of Anton Weber.”

The Court said that there could be no difficulty in finding the Third District of New Orleans, or finding the square, municipal number and the street boundaries which were given, or in finding certain lots which were assessed in 1883 to Weber.

In another case cited by counsel, In re Perrault Estate, 128 La. 453, 54 So. 939, the Court upheld a tax sale under the following description:

“Heirs of C. L. and J. L. Williams, 960 acres, swamp land in Township 6, Range 5 East, Parish of St. Landry.”

It will be noted that the sections in which the land was located are not given, but the township and range are given, and it is stated that the land is in St. Landry Parish. The Court considered that a sale under this description would have been null and void if the tax debtor had owned any other land in that township, but this 960-acre tract was all that he owned.

In the first cited case, the city, the district of the city, the streets bounding the lots and the street on which the lots fronted and the assessment rolls were referred to. In the second case, the parish, number of acres and the township and range were given, and it appeared that the tax debtor owned no other land in the township.

In the case at bar, an indefinite, we may say, impossible, description is given of a lot in ten-acre survey, not described as being located in any city, town, subdivision or parish, and not bounded by any street nor located by any reference to map, plat or deed.

In the ease of Castera’s Heirs vs. New Orleans Land Company, 125 La. 881, 51 So. 1021, it was held that the deed must contain a description sufficiently correct to enable an average surveyor, in point of ability, to identify the property.

In the case of Wilfert vs. Duson et al., 131 La. 21, 58 So. 1019, it was held that a: “vague, uncertain and indefinite description in a title deed will not be notice to a purchaser in good faith.”

In the last cited case, a surveyor was asked if he could locate the land in controversy from the description in the deed, and he stated he could not. Surveyor Evans gave like testimony in the case at bar.

Counsel argue, and support their argument by ample authority, that an error in description by legal subdivisions may be cured by other descriptive designations of the property in the deed of conveyance, which leaves no doubt of the particular tract which was intended to be conveyed. We do not hold against that rule so well established for interpreting the description in deeds, but hold that there is nothing in defendant’s deed to make the description certain.

Counsel cites the case of Flegal vs. Dowling, 54 R. 40, 102 Pac. 178, 135 Am St. Rep. 812, 19 Am. Cas. 1159, where the Court held that the following description was good:

“Lots 3 and 4, Block 18 A. H.”

because the description could be made certain by extrinsic evidence, even parol. But that was a suit to enforce specific performance of a contract to sell and was between the original parties. To the same effect is the case of Bogard vs. Barhan, 52 R. 121, 96 Pac. 673, 132 Am. St. Rep. 716, where like issues were presented.

We find no error in the judgment appealed from, and it is accordingly affirmed, with costs in both courts.


text:
    No. 3473
    Second Circuit
    FERGUSON v. SMART
    (January 31, 1929. Opinion and Decree.)
    A. Leonard Allen, of Winnfield, attorney for plaintiff, appellee.
    A. A. Moss and Eugene Beck, of Winnfield, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brought this suit against the defendant, alleging that he was the holder and owner of six promissory notes, each for the sum of $50.00, made and executed by the defendant, and that the said notes were all past due and unpaid. The defendant filed a plea of prescription which was referred to the merits. The case was tried on its merits and a judgment rendered in favor of plaintiff and against the defendant for $200.00. Defendant appealed.

OPINION

On October 26, 1922, plaintiff sold to defendant six horses and mules and some wagons and harness for a consideration of $500.00. Nothing was paid in cash, but defendant gave ten promissory notes, each for $50.00. He paid one of the notes, amounting to $50.00, and, in addition thereto, $29.50, to be applied on the other notes. Subsequently, two of the horses were killed by a railroad train and the railroad company paid $125.00 for the damage, which amount was turned over to plaintiff to be credited on the notes. In the meantime, two of the horses died, and later on, the other two horses, together with the wagons and harness, were repossessed by plaintiff. It is plaintiff’s contention that these two horses and the wagons and harness were sold back to him by defendant for a consideration of $75.00, which amount was credited on the notes, making a total credit, including the first note which was paid, of $279.50— leaving a balance due, to say nothing of the interest, of $220.50.

The only serious contention made by the defendant is that plaintiff repossessed the two horses, the wagons and harness, without his consent and that, as a matter oí fact, there was no agreement between him and the plaintiff as to the credit which was to be allowed for them, and he says that he should not be required to pay the balance due on the notes .unless the plaintiff returns the horses, etc., back to him.

The testimony adduced on the trial convinces us, as it seems to have convinced the trial Judge, that the defendant, Smart, agreed to sell the two horses, the wagons and harness, back to the plaintiff for a consideration of $75.00. The plaintiff’s testimony is positive to that effect, and it is corroborated by the testimony of a man named Bice, who testified that he was present when the trade was' made and that he heard the plaintiff tell defendant that he would give him $75.00 for the horses, wagons, etc. He stated, however, that he did not hear the defendant’s reply to plaintiff’s proposition. The testimony of plaintiff is further corroborated by the fact that immediately after this conversation, the defendant carried to plaintiff’s place the horses and wagons and delivered them to him. The testimony shows that the two horses were worth very little at the time. We think the trial Judge correctly held that the defendant agreed to re-transfer this property to the plaintiff for the consideration of $75.00.

On the question of prescription, we note that two of the notes sued on were prescribed on their face, but that the suit was brought and citation served on defendant prior to the date on which the other four notes prescribed. There seems to have been some doubt in the mind of the trial Judge as to whether the plea of prescription was good as to the other two notes, and he gave the benefit of the doubt to ‘ the defendant and rendered judgment for only the amount of the last four notes. We think that was correct.

For the reasons assigned, it is therefore ordered, , adjudged and decreed that the judgment .appealed from be affirmed, with costs in both courts.


text:
    No. 3424
    Second Circuit
    TRUE v. CLOVERDALE, SHERIFF
    (December 19, 1928. Opinion and Decree.)
    Hugh T. Layne, of Monroe, attorney for plaintiff, appellee.
    Theus, Grisham and Davis, of Monroe, attorneys for defendant, appellant.
   ODOM, J.

On November 27, 1926, the Sheriff of Ouachita Parish seized under a writ of fieri facias four wagons and twelve head of live stock belonging to Bud O’Donley, in the suit styled “Walter W. Simpson vs. Bud O’Donley.” The Sheriff appointed A. F. True, plaintiff herein, keeper of said property. True kept said property until February 26, 1927. He brings this suit against the Sheriff to collect $475.17, keeper’s fees and for amounts expended by him for feed for the stock.

The defense is that the said True agreed to act as keeper and to take care of the property while under seizure, and to make no charge, either for his services as keeper or for feed for the stock, it having been understood, so. the Sheriff alleges, that True might use the stock and wagons while under seizure, and that he need not account to the Sheriff or to anyone else for the earnings of the teams and wagons; in other words, that he should have charge of and use the stock for their feed.

As we understand the issue involved in this case, the only question to be determined is whether the- plaintiff agreed to act as keeper- without charge. It seems that the District Judge was of this opinion also, for, in- the course of the trial, in one of his rulings, he said:

“The only question here is was or was not an agreement made with the Sheriff’s office to use these mules for their keep. On that depends the whole question.”

And again he said:

“* * * it is the keeper’s contract with the Sheriff’s office and nobody else.”

The property was seized by the Sheriff’s deputy, Childers. Childers testified positively that True agreed to keep the stock and the wagons without compensation, with the understanding that the ^ defendant, O’Donley, who at that time was employed by True, might work the stock and use the wagons in order to complete his contract with True. Childer’s testimony to this effect is denied by Mr. True. But the testimony of True that he made no such agreement with the Sheriff’s office is destroyed, we think, by the testimony of Thornhill. R. L. Davis and' Meredith, another deputy connected with the Sheriff’s office. Thorn-hill testified that during the time the stock was under seizure, Mr. True told him that he had made an arrangement with the Sheriff’s office by which he was to keep the stock and the wagons without compensation. Mr. Davis testified that on one occasion Mr. True came to his office in the City of Monroe with O’Donley, and that the matter of the seizure of the stock was discussed, and testified that whereas he was not able to repeat Mr. True’s exact words, yet the substance of the conversation on the particular point at issue was that True was to keep the stock without compensation. Mr. Meredith, the other deputy, testified that on one occasion, sometime after the property had been seized and True had been appointed keeper thereof, True came to the office, talked the matter over with him and stated, in substance-, that he was acting keeper for the property for what he could make out of it, and that the teams and the wagons, up to that time, had been used by O’Donley and had earned a considerable credit. Meredith testified that he told True that'he need not account for the earnings of the animals, as he was acting keeper for whatever he could make from the use of the property.

The testimony of Mr. True, on cross-examination, greatly weakens, we think, his own position. Asked about the conversation which he had with Mr. Thornhill, he would not deny that he had had such a conversation, but said he did not remember it, and he did not remember making any statement to Mr. Davis or to Mr. Meredith to the effect that he was to keep the property without compensation; and he admits that the understanding was that O’Donley should continue to work the stock and that he was trying to help O’Donley out. His position is further weakened by the fact that whereas the stock and the wagons were seized on November 27th, he made no charge whatever for keeper’s fees or for feed until after December 22nd, during which time O’Donley was using the property in carrying out his contract with True. His position is further' weakened, we think, by the fact that the feed was not charged to the Sheriff, but was charged to True and the bill was rendered to, him. It is further weakened, we think, by the fact that on or about December 22nd, O’Donley wanted to remove the stock to .another job and was informed by the Sheriff’s office that he would not be permitted to do so, after which the stock was left with Mr. True, and he, himself, used the mules and wagons for hauling logs.

There is no evidence that the original contract entered into by Childers, the deputy, and True, was ever changed, but, to the contrary, the testimony of Meredith, the deputy, is to the effect that it was continued in full force. The contract between the parties is the law between them. The testimony shows to our entire satisfaction that True, the plaintiff, agreed to keep the stock and the wagons without compensation, and he is bound by that agreement. There was judgment in the District Court in favor of the plaintiff and against the defendant for $194.50. We think the judge erred.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and that plaintiff’s demands be rejected at his costs; and his suit dismissed.


text:
    No. 3339
    Second Circuit
    ADAMS v. BELL MOTORS, INC.
    (December 19, 1928. Opinion and Decree.)

      Matthew C. Redmond, of Monroe, attorney for plaintiff, appellee.
    McHenry, Montgomery, Lamkin & Lester, of Monroe, attorneys for defendant; appellant.
   ODOM, J.

This is a damage suit.growing out of a collision between plaintiff’s automobile, which he -was driving, and 'a Chrysler car, driven by one Tripp, who is alleged to have been an employee of the defendaht company.

After alleging that the collision was due to the fault and negligence of the said Tripp, plaintiff, in order to hold defendant company liable for the resulting damage, alleged that the car which collided with his was “a third party’s car, but was in the hands of tlie Bell Motors, Incorporated, for repairs and under their control, and that said E. L. Tripp was at the time an employee of this company and was in the scope of his employment; that he had just repaired the car and was testing it out, and, on account of the excessive rate of speed, was entirely to blame for. the accident.” . .

We may as well state here that the testimony shows, and in fact it seems ' to be conceded by defendant, that, the collision was due to the fault and negligence of the driver, Tripp,' and that plaintiff' was guilty of no fault. Therefore, plaintiff should recover of defendant whatever damage and loss he sustained, provided that defendant be responsible for such damage.

On the trial of the case, plaintiff offered no testimony in support of his allegation that the car which collided’ with his was in custody of defendant for repairs and under its control, and that the driver, Tripp, was in its employ -and was acting within the scope of his employment when the collision occurred.

The defendant having specifically denied these allegations contends that plaintiff can not recover from it as it was incumbent upon plaintiff to make proof of those facts. In Article IV of his petition, plaintiff specifically alleged that the car which collided with his was under the control of defendant and was being operated by Tripp, one of its employees, who was acting within the scope of his employment. Defendant, in Artivle IV of its answer, said: “Respondent denies the allegations contained in Article IV of plaintiff’s petition.”

If defendant had done no more than deny this allegation, along with the others, it would have been incumbent upon plaintiff to make proof that the car which collided with his and caused the damage which he sustained, was under defendant’s control, in order to connect it with the case. But defendant went further in its answer and set up the special defense that the collision was due, not to the fault of Tripp, but to the fault and negligence of plaintiff himself.

Plaintiff’s petition is written in six paragraphs. Defendant denied, article by article, all these allegations. Then follow four additional paragraphs, as follows:

“(7) Further answering, your respondent shows that the Dixie-Overland Highway, a State Highway; in entering the City of Monroe, Louisiana, runs in an Easterly and Westerly direction, and that the said Highway where the aeci- • dent occurred is frequently traveled by áutomobilists, and particularly at the time of day that plaintiff alleges that the accident occurred, and that Bell Avenue intersects said Dixie-Overland Highway at right angles about a mile from the City Limits of the City of Monroe, Louisiana, and that on the west side of said Bell Avenue where it inter-sets the said Dixie-Overland Highway, is a one-story frame residence, and in front of said residence is a wooden bridge, which is of sufficient size to hold an automobile and which said bridge is frequently used by the owner of the said residence for parking his said automobile.
“(8) Petitioner further shows that at the time of the accident there was an automobile parked on the bridge in front of the residence on the West side of Bell Avenue, and on the South side of the said Dixie-Overland Highway, and which said automobile parked in such a position would prevent one entering the Dixie-Overland Highway from Bell Avenue from seeing approaching automobile traffic proceeding in an Easterly direction on the Dixie-Overland Highway.
“(9) Petitioner further shows that plaintiff’s view of traffic approaching from the West on the Dixie-Overland Highway was obstructed on account of the curtains being up on his Chevrolet touring car, and on account of an automobile parked in front of a residence on the South side of the Dixie-Overland Highway, and that said accident was due to the plaintiff driving on to the Dixie-Overland Highway from Bell Avenue without exercising reasonable care in looking for approaching automobiles from the West, and in not delaying his entrance on the said Dixie-Overland Highway until the approaching automobile driven by Tripp had passed Bell Avenue, the danger point.
“(10) Respondent becoming plaintiff in re-convention, shows that on account of the said accident, which was due to the carelessness and negligence of said plaintiff with his said automobile in entering said Dixie-Overland Highway, it has been damaged in the sum of ONE HUNDRED SIXTY-FIVE AND 75/100 ($165.75) DOLLARS, being the amount expended by it for repairs to the automobile struck by plaintiff, and that it was necessary to make repairs on said automobile in order to place it in the same condition that it was prior to the accident.”

We understand counsel’s contention to be that if Articles VII, VIII and IX are construed as parts of the answer, plaintiff was relieved of the necessity of making proof of his allegations that defendant was, through its employee, Tripp, in control of the Chrysler car and responsible for the damage. But counsel say that those Articles are not part of the answer, but are allegations in support of its reconventional demand, and that a reconventional demand is no part of the answer. In support of their contention that a reconventional demand, although filed at the same time with the answer and in the same paper, is not a part of the answer, counsel cite the cases of Powell vs. Graves, 14 La. Ann. 860, and Stringfellow vs. Nowlin Bros., 157 La. 683, 102 So. 869. But paragraphs VII, VIII and IX speak for themselves and show that they were inserted as a continuation of the answer in which a special defense was set up.

Paragraph VII begins, “Further answering, your respondent shows,” and then follow the allegations that at the point where Bell Avenue intersects the Dixie-Overland Highway there is a residence, and in front of it a bridge on which the owner of the residence frequently parked his car; and in paragraph VIII, that at the time of the accident, there was an automobile parked on the bridge; and, in paragraph IX, that plaintiff’s view of traffic on the Dixie-Overland Highway was obstructed by the car parked on the bridge, “and that said accident was due to plaintiff driving on to the Dixie-Overland Highway from Bell Avenue without exercising reasonable care in looking for approaching automobiles from the West and in not delaying his entrance on the said Dixie-Overland Highway until the approaching automobile, driven by Tripp, had passed Bell Avenue, the danger point.”

The allegations in these three paragraphs are details, all related, and, taken together, constitute the defense to the suit and are not inserted after defendant had assumed the position of plaintiff in reconvention, but are contained in and follow paragraph YII which opens with the words: “Further answering, your respondent shows.” These allegations were not made by defendant as plaintiff in reconvention, but as “respondent,” in answer to the demands brought against it.

As we view it, these allegations were inserted primarily as a basis for the introduction of testimony to defeat plaintiff’s demands. They were made the basis of the reconventional demand, it is true, but they were nevertheless a part of the answer.

If defendant had merely denied the allegations of plaintiff’s petition and then assumed the position of plaintiff in reconvention and set up the matters contained in paragraphs VII, VIII and IX, it would be clear that- these articles would be no part of the answer. But, defendant did not assume the character of plaintiff in reconvention in those articles, but only in article X wherein it is alleged that “on account of said accident, which was due to the carelessness and negligence of plaintiff * * * jt has been damaged,” etc.

The setting up of the special defense in the answer was, in effect, an admission by defendant that the automobile was in its possession and control, and that Tripp was acting within the scope of his authority, and it was therefore unnecessary for plaintiff to make proof of those facts.

Besides, we find that two days before the answer was filed, defendant tendered an exception of no cause of action. By its tender of that exception, it admitted the well-pleaded facts, but not, of course, the conclusions of law contained in the petition. (See La. Digest, Vol. 6, page 31, Sec. 62; Hennen’s Digest, page 1169.)

The lower court rendered judgment in favor of plaintiff for $750.00. Defendant says this amount is excessive. Plaintiff’s Chevrolet car was totally destroyed. He paid $650.00 for it about fourteen (14) months before the collision and used it constantly up to the date on which it was destroyed. The only testimony in the record as to its value at the time it was destroyed is that of Mr. Rogers, a Chevrolet dealer, who says it had a “trade-in” value of about $250.00. But plaintiff alleged and swore that on account of the destruction of his car, he was driven to the necessity of hiring another car; in order to carry on his business, at a cost of $10.00 per day, and he asks reimbursement for this outlay. But, that is not an element of damage in a case like this. Plaintiff’s car was totally destroyed, or so nearly so that it could not be repaired, and he sued for the value thereof. One who recovers the full value of a chattel destroyed through the negligence of another, can not recover for the value of the use thereof after same was destroyed. The measure of damage in such cases is the value of the property destroyed. In Blashfield’s Cyclopaedia of Automobile Law, Vol. 2, page 2004, the rule is stated thus:

“Where an automobile is practically destroyed, or so nearly destroyed as not to be susceptible of repair, the measure of damages is its reasonable market value immediately before the accident.” Citing Langham vs. C. R. I. & P. Railroad Co., 897, 208 N. W. 356; Anderson vs. U. S. Railroad Administration, 193 Iowa 1041, 188 N. W. 826; Cincinnati N. O. & T. P. Ry. Co. vs. Sweeney, 166 Ky. 360, 179 S. W. 214.

See also Marland Ref. Company vs. Duffy, 940 Okl. 16, 220 Pac. 846, 35 A. L. R. 52, 8 R. C. L. 486, 487, Sections 47 and 48.

If, on the other hand, an automobile is only partially destroyed, and can be repaired, the loss of the use thereof during the time the repairs are being made is an element of damage.

Blashfield’s Cyclopedia, Vol. 2, page 2004; Marland Ref. Co. vs. Duffy, 94 Okl. 16, 220 Pac. 846, 35 A. L. R. 52; see note in 32 A. L. R. 706 and 4 A. L. R. 1350; 2 R. C. L., supplement 619, note 13.

We find it stated in counsel’s brief that the lower court allowed plaintiff $340.00, to reimburse him for the amount paid for the use of another car until he purchased one. If so, the Court erred in that respect. The judgment itself is silent as to the items going to make up the total of $750.00, which the court allowed. Our conclusion is that pla.intiff is entitled to recover $250.00 for the loss of his car, and $250.00 for personal injuries. He was knocked out of his car through the windshield; was cut on,the head by glass; his leg was cut; his hip bruised; his chest was sore; his arm rendered stiff; and he was shocked and stunned; and, while he was able to go on with his work, and incurred no medical expense, he is entitled to nominal damages for said injuries, and the lower court no doubt took them into consideration in fixing the amount awarded.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended, so as to reduce the amount of the award from $750.00 to $500.00; and, as thus amended, it is affirmed; appellee to pay cost of appeal, and other costs to be paid by appellant.


author: LECHE, J.

text:
    No. 389
    First Circuit
    RUBINO v. MORESI
    (January 9, 1929. Opinion and Decree.)
    L. C. Bryant, of Jeanerette, attorney for plaintiff, appellant.
    Ventress J. Smith, of New Iberia, attorney for defendant, appellee.
   LECHE, J.

Plaintiff was riding on horseback in a westerly direction on the main street of the town of Jeanerette, opposite the post office, when his horse came in collision with an automobile driven by the defendant. Plaintiff was seated on a sack which served as a saddle. Defendant was also traveling west and was going very slow, at a speed not exceeding ten miles per hour. The contact was on the left side of the horse and the right rear fender and rear bumper of the automobile. The end of the sack which plaintiff was using in lieu of a saddle, was caught by the fender or rear bumper of the automobile and as it was pulled off, the plaintiff slid with the sack off the horse and was injured in his left leg by the fall. Plaintiff charges negligence on the part of defendant and sues for damages. His demand was refused by the District Court and he has appealed.

The question in the case is whether there was any negligence on the part of the defendant.

The accident happened at about eight o’clock in the morning, at which time there was a good deal of traffic at this particular place. Many people came to the post office at that hour, to get their mail, and of course there was always a number of automobiles parked along this street which is said to be about thirty-six feet wide. There was a Ford touring car parked in an oblique or northeasterly direction with its right front wheel against the curbing and with its motor idling. Plaintiff on horseback and defendant in his automobile were nearly opposite the rear of the Ford, with enough room to pass abreast behind the Ford, and at a moment when defendant was about to pass beyond the plaintiff, the collision took place. If plaintiff had kept a straight westerly course there would have been no collision, and whether the horse was frightened or whether plaintiff jerked him does not clearly appear, but it is certain that plaintiff’s horse veered to the left and came in contact with the rear right fender and rear bumper of the automobile. The idling motor of the Ford may have induced plaintiff to believe that the Ford was about to back towards him, or it may be that it frightened the horse, but in either event there was no fault on the part of defendant.

Defendant was moving very slowly and carefully along a path near the center of the street and in accordance with the law of the road, and we find no negligence or carelessness on his part.

The judgment appealed from is therefore affirmed.


text:
    No. 356
    First Circuit
    MANUEL v. VIDRINE
    (January 9, 1929. Opinion and Decree.)
    J. Hugo Dore, of Ville Platte, attorney for plaintiff, appellant.

      Wm. Alex Robertson,' of Opelousas, attorney for defendant, appellee.
   LECHE, J.

Plaintiff sues for damages resulting from an automobile collision, and defendant, denying fault on his part and alleging negligence on the part of plaintiff, demands damages in reconvention.

The whole controversy involves questions of fact. The testimony shows that the following facts are undisputed:

Plaintiff and a companion were driving a Chevrolet Coupe from Ville Platte to Opelousas along a public highway running approximately north and south. Defendant’s vehicle, a' Ford truck loaded to capacity with sheet iron and merchandise, operated by an employee who also had a companion, was being driven north out of Opelousas towards Ville Platte and the two vehicles collided a few miles out of Opelousas. Both vehicles were badly damaged and the four occupants were all more or less, though not seriously, injured.

The trial court rejected plaintiff’s demand and allowed damages in favor of defendant. Plaintiff has appealed.

The question to he' decided is, who Was at fault. The trial judge believed that the accident was due entirely to the negligence of plaintiff, hut our impression from all the testimony and from the conceded position of the Ford truck after the accident, is that both parties were at fault.

There was a curve in the road just-north of the place where the collision took place and as plaintiff rounded this curve, he and his companion both discerned at some distance, an object looking like an automobile, without headlights, on the wrong or west side of the road. Defendant’s witnesses concede that the Ford lamps were illuminated by electricity generated from the magneto of the truck and that the lights were very dim. We assume without discrediting the testimony of defendant’s witnesses, that the Ford lights were so dim that they could not serve the purpose for which they were intended.

Plaintiff was driving at a speed which may fairly he estimated from the testimony,' of about thirty miles per hour. It was plainly the duty of plaintiff under these conditions to have remained on the west side of the road, to have immediately checked his speed and even to have stopped, all of which he could have done in ample time if he had exercised common prudence and caution. Instead of slowing down and stopping, plaintiff attempted to pass the Ford truck by crossing to the east or his left side of the road. Defendant’s chauffeur who evidently was driving on the west side of the road, also attempted to cross to the east side of the road by veering to his right, where he should have been all the time, and reached the point which plaintiff was also trying to reach, at the same time as did plaintiff, and the collision took place on the east side of the road.

According to our appreciation of the testimony and the position of the two automobiles after the collision, there is no other reasonable way of accounting for the accident. We believe that defendant’s truck was being driven on the west or left side of the road. The witness who was riding in the Ford truck with the chauffeur says that the truck had been traveling about the center of the road; plaintiff and his companion say that it was approaching on the west or left side of the road. After the collision the rear wheels of the Ford were about the center of the road and the body of the truck was in a diagonal position heading towards the east. The rear wheels had to be moved four or five feet to the east in order to clear the roadway for traffic. The truck loaded as it was, could not, by the glancing blow on its right front wheel by the Chevrolet, have had its rear wheels pushed out into the center of the road. The Chevrolet was struck on its right front fender near its door and the only effect of the impact was to shove the front wheels of the Ford truck towards the east side ditch. The impact could not possibly have shoved the rear wheels of the Ford into the middle of the road.

We are clearly of the opinion that plaintiff was at fault for not remaining on the right or west side of the road and not checking his speed even to the extent of stopping if necessary, in order to avail himself of the last clear chance, and we are further of the opinion that defendant’s chauffeur was traveling along the left or west side of the road up to the moment when he saw the Chevrolet and tried to cross to the right side, and that he also was at fault. Common prudence dictates that a heavily loaded truck incapable of quick acceleration, should always travel near the right side of the road. Such a rule for traffic is not only based upon ordinary caution but is often indicated by posted signs to the effect that slow moving vehicles should keep near the right curb on streets and highways.

For these reasons, we believe that neither party is entitled to damages.

It is therefore ordered that the judgment of the District Court be avoided and reversed and that both demands be rejected, costs of appeal to be paid by defendant and those of the lower court to be paid in equal portions by plaintiff and defendant.


text:
    No. 3392
    Second Circuit
    BURSON v. THE OHIO OIL CO.
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.)
    Thomas W. Robertson, Vernis Morgan and John Gibbs, of Shreveport, attorneys for plaintiff, appellee.
    R. L. Benoit, of Shreveport, attorney for defendant, appellant. .
   ODOM, J.

The .plaintiff brings this suit under the 'Workmen’s Compensation Law, alleging that he was employed by the defendant company, at $4.75 per day, as a common laborer, to do work around an oil well rig, and that on January 31, 1926, while at work, he slipped and fell, and that as a result of the fall, he received injuries to his back which have rendered him totally and permanently disabled to do work of a reasonable character, and he asks to be paid compensation for 400 weeks. The defendant, in answer, denied any liability whatever to the plaintiff and specifically alleged that, while the plaintiff was in its employ, he sustained no accident or injury which disabled him and that if plaintiff is now, or has at any time, suffered any physical injury by accident which has incapacitated him, such injury and disability arose from causes entirely foreign and disconnected with such employment.

The lower court awarded the plaintiff compensation at $20.00 per week for 300 weeks. From this judgment, the defendant has appealed and the plaintiff moved in this court to increase the period over which compensation is to be paid from 300 to 400 weeks..

OPINION

The plaintiff, as a witness in his own behalf, testified that while at work for the defendant company, he slipped and fell to the floor and that something hit him on the small of the hack, which caused him great pain and suffering and which resulted in permanent disability. He testified that he fell about 9:30 or 10 o’clock in the morning, but that he continued to work during that day; and that on the following morning he did not return to his ■ work because he was unable to do so. He testified that he was attended by Dr. Dennis, a physician employed by the defendant company, and that, after about five or six days, Dr. Dennis discharged him as cured and advised him to return to work, which he did. Plaintiff further testified that he was for a considerable period under the treatment of Dr. Worley, but he does not state the nature of the affliction for which Dr. Worley treated him, but we assume that he intended to convey the impression that he was treated for the injury which he claims to have received while at work on January 31st. Plaintiff further testified that after some five or six days, subsequent to the time he fell, he did return to work for the defendant company, and that he continued to work until about July 22nd, or a period of something like five and a half months, and that after he quit work for the defendant company, he sought and obtained work with the Standard Pipe Line Company and the Standard Oil Company, and that he did some work for a man by the name of Haynes at a blacksmith shop, and that, later on, he sought and obtained work from the defendant company, working the last time about three weeks on an oil well in the vicinity of Cotton Valley. He testified further, however, that during all of this time he did only light work, that he was not able to do heavy work, and that the parties who employed him let him do such light work as he was able to do. His wife testified that after his fall on January 31st, he constantly complained that his back gave him pain and that he was not, in fact, able to do ordinary manual labor. In the year 1927, plaintiff farmed, and introduced testimony to the effect that while he could do some work on the farm he was not able to work regularly.

The plaintiff called Dr. Guy A. Caldwell, an eminent specialist, as a witness in his behalf. Dr. Caldwell testified that he examined plaintiff on the day before the trial, which took place on December 20, 1927, almost two years after the alleged accident. Dr. Caldwell testified that he found the plaintiff suffering from a “chronic strain of the sacro-illiac joint,” which condition incapacitated plaintiff from doing any heavy, manual labor at the time he examined him. Dr. Caldwell further testified that it was impossible for him to state when or under what circumstances the plaintiff had been injured, but stated that such injuries were ordinarily caused by lifting heavy weights from the floor or ground while in a stooping position, or if in an upright position, supporting a heavy weight, to have a mis-step or movement “which throws the strain on one side or the other with the weight of the body at the same time.” Dr. Caldwell was asked whether or not it is possible for a man to do light work after having sustained ’a saero-illiac strain, and he stated that it is possible; and he was then asked:

“Q. Also plausible to conclude that it would eventually incapacitate him?” and he answered:
“A. Tes, he can be eventually incapacitated with a chronic strain even after he has been doing work, light work.”

The Doctor was asked if, from his examination of plaintiff, he could form any conclusion as to how long his presen condition had lasted, and he stated:

“A. None whatever.”

The plaintiff testified that while he did work for the defendant company, and for other persons, until sometime about the month of November, yet he did not work regularly and did only light work,' and that he had constantly complained of his disability. But his testimony to the effect that he did not work regularly and that he did complain of the condition of his back is emphatically contradicted by at least six witnesses who either saw him at work or worked with him. The testimony conclusively shows that plaintiff returned to work for the defendant company not later than nine days of February, and that he worked regularly and continuously for that company until July 22nd, at the same rate of pay. The records show that he drew as wages from the defendant company $924.00, after the alleged accident, said amounts being paid to him as follows:

He was paid $139.50, representing 29 ■days’ labor, in February; $103.50, representing 22 days’ labor, in March; $139.50, representing 29 days’ labor, in April; $135.00, representing 28 days’ labor, in May; $139.00, representing 29 days’ labor, in June; and $100.50, representing 21 days’ labor, in July; and that on July 22nd, he was discharged by the defendant company because it had no further work for him at that time. The testimony further shows that in the month of October, he returned to work for the defendant company and worked three weeks, at the same rate of pay, assisting in the drilling of another well. It is further shown that in the month of August, after having been discharged by the defendant company, he worked for several days for the Standard Pipe Line Company, and, later on, did some work in a blacksmith shop; and one witness says that he saw him shoeing horses, but plaintiff denies that he did that ' kind of work. The testimony of other witnesses who, either saw the plaintiff at work or who worked with him, is that he did heavy, manual labor during the entire time from the early part of February until the month of November, such work as is ordinarily done by common laborers in oil fields; that he assisted in ditching, “pulling pipe,” laying and taking up pipe lines, clearing rights-of-way, etc., and further, that plaintiff did this work without making a complaint either to his employers or in the presence or hearing of any of those with whom he worked. The only complaint which any witness ever heard him make was to Mr. Chastain, who said that he heard the plaintiff state on one occasion that he was troubled with hemorrhoids and was not able to do heavy lifting on that account.

At the time the defendant company reemployed the plaintiff as- an oil field worker in October, 1926, it required of the plaintiff, as well as all other employees, to make a written statement as to his then physical condition. We find in the record a statement signed by the plaintiff on October 19th. In this statement, he was asked what serious sickness he had had, or what injuries he had ever sustained, and he answered, “none.” That medical examination was given plaintiff by Dr. J. M. Dennis, who certified to the company that he found the plaintiff in good physical condition and able to do manual labor. Plaintiff’s statement, it may be said, was made for the purpose of obtaining employment from the defendant company. We therefore have this situation; the plaintiff, after receiving the fall which he now claims permanently disabled him, worked for the same company and other parties for approximately ten months, his work being almost continuous and of the same kind that he had been accustomed to doing, and at the same rate of. pay, and, during all that time, not a complaint was ever made to any of his employers or to anyone with whom he was working.

The following interrogatory which the Judge of the District Court propounded to Dr. Caldwell reveals the situation as viewed by the District Judge before whom the case was tried:

“Q. I will restate the question now— say a man has sustained an accident, falls on December — on January 31st, 1926 — he continues working that day and for the following two days we will say — on February 3 he complains of having been injured by the fall, is treated by a physician for the following days, up to February 9, when he is discharged by the physician as cured — he then takes up his duties the same as he performed before the accident and continues them say through the month of July without complaint to his co-workers, after which time he is laid off by the. company and re-employed in October of the same year and continues working throughout October and a part of November performing the same labor as he performed prior to the accident without complaint to his co-workers, then we will assume you find the man in the condition in which you find this man today physically, would you attribute the condition to the accident which occurred on January 31, 1926, or would you be more likely to attribute it to some other cause which you have no knowledge of?”

Dr. Caldwell was not able to trace plaintiff’s present condition to the accident, but, ip. answer to the above question propounded by the Court, he said as follows:

“A. I would feel like the immediate condition is an acute one that is either an exacerbation of the original condition or that an entirely different injury has occurred in the meantime, would be forced to one of the two conclusions.”

In view of the undisputed facts detailed in the .record, w.e think it cannot be reasonably held that the fall which the plaintiff received on January 31, 1926, produced the condition which Dr. Caldwell found in December, 1927. Dr. Caldwell says that with a strain of the sacro-illiac joint, with which he found the plaintiff to be suffering at the time that he examined him, he was unable to do heavy manual labor. The testimony shows, beyond question, that plaintiff did the heaviest kind of manual labor continuously, or almost so, for nearly ten months after the fall, and this testimony, taken in connection with his written statement, made in October, 1926, that he had had no previous injury; and, in vie.w of the fact that plaintiff filed his suit only a day or two previous to the expiration of one year, makes the conclusion irresistible that the injury which produced his present condition was received subsequent to the date on which he says he received it. If the testimony showed that after January 31st, the plaintiff had intermittent periods of disability or that he ever made any complaint, a different situation would be presented.

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


text:
    No. 3433
    Second Circuit
    LAYNE v. HENDERSON
    (December 19, 1928. Opinion and Decree.)
    Dawkins & Dawkins, of Monroe, attorneys for plaintiff, appellant.
    McHenry, Montgomery, Lamkin & Lester, of Monroe, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff alleges that he is a licensed attorney-at-law, practicing his profession in the city of Monroe, and that the defendant, Henderson, is due him the sum of $1572.50, for his services as attorney, rendered on behalf and for the benefit of the defendant during the summer and fall of 1926. Paragraphs 4 and 5 of his petition read as follows:

“(4) That during the said summer of 1926 the said J. E. Henderson af°resaid consulted with your petitioner on several occasions concerning a tract of land which he had for sale, and on which there were such incumbrances and such clouds on the title as to make it impossible to sell said land in the condition it was then in. That during the period of said consultations and while petitioner herein was acting as the attorney for the said J. E. Henderson,. the said J. E. Henderson proposed to petitioner herein that if he could get the title to said land in such condition as to make it possible to transfer same and also assist him in obtaining a purchaser for said tract, that he would pay petitioner a fee upon final consummation of said sale equal in amount to one-half of the amount of profit he made thereon.
“(5) Petitioner further shows that shortly thereafter he wrote to E. R. Ratcliffe, of Shreveport, Louisiana, advising him that he had a client who had 6300 acres of land, situated in Ouachita Parish, for sale at what he considered a very reasonable price, and on the following day Mr. Ratcliffe sent liis representative to petitioner’s office to see his said client, whereupon petitioner turned said party over to the said J. E. Henderson who either on the same day or the day following closed a contract with the said Ratcliffe for the said 6300-acre tract at a price of $5.25 per acre, subject to the approval of title; and that on or about the 28th day of November, 1926, after considerable curative work had been performed by petitioner on said tract, said title was accepted by the said Ratcliffe and the sale closed and money paid thereon.”

Counsel for defendant in limine filed an exception o'f no cause of action based on the proposition that the allegations of plaintiff’s petition set forth in Paragraphs 4 and 5, as above quoted, show that he is a real estate broker, or real estate salesman, within the meaning of Act 236 of 1920; and that, as his petition fails to set out that he had previously procured a license as such, it sets forth no cause of action.

This exception was sustained by the lower court, and plaintiff has appealed.

OPINION

Section 1 of Act 236, of 1920, makes it unlawful for any person to engage in the business or capacity, either directly or indirectly, of a real estate broker, a real estate salesman or a business chance broker within this State, without first obtaining a license under the provisions of the Act.

Section 2 of the Act provides that a broker, within the meaning of the Act, is any person, firm, partnership or association that for a compensation, or valuable consideration, “sells, or offers for sale; buys, or offers to buy or negotiate the purchase or sale or exchange of real estate; or who leases, or offers to lease; or rent, or offers to rent any real estate, or the improvements thereon, for others as a whole or partial vocation”; and that a real estate salesman is “any person who for a compensation or valuable consideration is employed, either directly or indirectly, by a licensed real estate broker to sell, or offer to sell; or buy, or offer to buy; or to negotiate the purchase or sale or exchange of real estate.”

A reading of plaintiff’s petition discloses that he was Employed by the defendant, Henderson, to perform certain services in connection with the title to a tract of real estate which the defendant had for sale in the Parish of Ouachita, and that the defendant p’roposed to him while he was acting as his attorney that if he could get the title to said land in such condition as to make it possible to transfer the same, and also assist him in obtaining a purchaser for the said tract, he, the defendant, would pay a fee contingent upon the amount of profit realized from such sale. He further alleges that he wrote one E. R. Ratcliffe, of Shreveport, Louisiana, advising him that he had a client who had for sale certain lands at a price which plaintiff considered reasonable, and that Ratcliffe sent his representative to Monroe to see Henderson, and that, subsequently, Ratcliffe purchased the said lands from Henderson.

There is no allegation in plaintiff’s petition that he either sold, or offered for sale, bought, or offered to buy, or to negotiate the purchase or sale or exchange of real estate, or that he was employed by Henderson to sell, or offer to sell; or to buy, or offer to buy; or to negotiate the purchase or sale or exchange of real estate. Plaintiff was, therefore, not a real estate broker, nor a real estate salesman, under the’ Act. The petition does show that plaintiff did render some service to Henderson, who was a real estate broker, in the sale of said tract of land in that he wrote Ratcliffe, calling his attention to the fact that his client, Henderson, had said lands for sale. All plaintiff did, according to the allegations of the petition, in connection $ith the sale of said lands, was to render to Henderson his professional services in clearing the title to said lands and in finding a purchaser therefor. The Act referred to'does not apply to such services, for it is specifically recited in Section 2 thereof, as follows:

“Nor shall this Act he construed to include in any way the services rendered by an attorney-at-law in the service of a client.”

We therefore hold that the allegations of plaintiff’s petition do not show that he rendered the services for which he claims compensation as a real estate broker, a real estate salesman, or a curb, or chance broker.

But, even" if it be true that, under plaintiff’s allegations, he is such a real estate broker or salesman, the exception of no cause of action should not have been sustained on account of his failure to allege that he was duly licensed, under the law, to carry on that business, for, if he were not licensed, that is a matter of defense which should have been urged on the trial of this suit. It was specifically so held in the case of Stanford vs. Bischoff, 159 La. 892, 106 So. 371.

In that case, as in the one at bar, plaintiff sued for commissions as a real estate broker, but failed to allege that at the time he performed the services for which he claimed compensation, that he was licensed to carry on that business. An •exception of no cause of action was sustained by the lower court, but the judgment was reversed.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from sustaining the exception of no cause of action be reversed; and it is further ordered and decreed that said exception be now overruled and that this case be remanded to the lower court, and reinstated on the docket thereof, to be proceeded with according to law.


author: ELLIOTT, J.

text:
    No. 344
    First Circuit
    WILCOX ET AL. v. L. R. & N. CO. and BROCATO, Consolidated
    (October 1, 1928. Opinion and Decree.)
    (December 4, 1928. Rehearing Refused.)
    (January 28, 1929. Writs of Certiorari and Review denied by Supreme Court.)

      George Piazza, of New Orleans, and H. Payne Breazeale, of Baton Rouge, attorneys for plaintiff, appellants.
    Layeock, Barron and Laycock, of Baton Rouge, and Wise, Randolph, Rendall and Freyer, of Shreveport, attorneys for defendants, appellees.
   ELLIOTT, J.

Stanley, Edwin and William Wilcox, brothers of Alvin Wilcox, brought suit against .Louisiana Railway and Navigation Company for $20,277.50 damages on account of his death. The other plaintiff, Mrs. Irene Kern Brocato, brought suit against the same defendant for $15,100.00 damages on account of injuries received by her in the same accident that caused the death of Alvin Wilcox.

The plaintiffs, Wilcox, allege that on or about the 21st of May, 1928, their brother Alvin, riding in an automobile operated by J. Vicknair, at about 4:15 a. m., and while driving on Convention Street in the City of Baton Rouge, on their way out of 'town, was run over and killed by a switch engine belonging to and operated by Louisiana Railway and Navigation Company. That the automobile was being driven at not more than 10 miles an hour and when it entered on the crossing where defendant’s railroad crosses Convention Street, it was struck by defendant’s locomotive, without notice or warning of any kind and their brother killed in the collision. That the accident occurred solely and only through the fault and negligence of the defendant company, its agents and employees, in the operation of said engine. That it wa;s dark at the time and there was no warning to motorists, of a railroad crossing. No gate to prevent vehicles from crossing when an engine was about to do so. No signal bell to warn of an approaching train; that if any bell was there it was not ringing. That no whistle was blown by the engine on its approach. That no flagman was there, nor precaution of any kind to avert accidents; no headlights on the engine. That if the engine carried headlights they were not burning, etc. That defendant’s engine was traveling between 20 and 25 miles an hour at the time, which was dangerous, reckless and grossly negligent at that time and place, and was moreover in violation of the City Ordinance on the subject.

That their brother was thrown out of the automobile by the impact of the collision, on top of the' steam chest of defendant’s engine, and remained in that position until the engine stopped; upon which he fell to the ground with his body across defendant’s rails, in between the little wheel and the driving wheel of the engine. That defendant’s agent and employees then backed the engine over his body while it was in this position, and in doing so, the small wheel ran over him and killed him. That if the engine had remained at a stand still after the collision, and had not backed over him their brother would not have received the wounds that caused his death.

They further allege that their brother was riding in said automobile as the invited guest of said Vicknair, and had no authority over the driver thereof. That at the time of the accident and immediately prior thereto he was asleep on the back seat of the automobile, and had no knowledge of what was taking place.

Mrs. Brocato charges in her petition the same acts of negligence against the defendant, except that she received severe personal injuries. She alleges that as a result, she was confined in Our Lady of the Lake Sanitarium at Baton Rouge for three days, suffering physical pain and mental anguish. That she was then moved to New Orleans, where her suffering continued for about five months.

The defense is the same in both cases. The charges of negligence are denied. The crossing in question is alleged to have been amply protected at the time. That it was well lighted. That the engine approached the crossing slowly with the bell ringing and headlights burning, and the occupants of the automobile should have known of its approach. That the driver of the automobile came to the crossing at a rapid and dangerous speed, without stopping, looking and listening for the approach of trains, and ran into the side of defendant’s engine as it was making the crossing. That no opportunity existed of avoiding said accident.

The defendant further alleges in both cases, that the occupants of said automobile were engaged in a joint undertaking, to the knowledge of each, and in furtherance thereof were in reckless flight. That said automobile was being jointly used by said occupants in furtherance of their said undertaking.

The answers in both cases are practically the same.

Defendant denies that it was guilty of any fault of negligence; but alleges in the alternative, that if it be found to have been at any fault, then, that the said Alvin Wilcox and Mrs. Brocato were guilty of contributory fault and negligence.

The two cases were consolidated and tried together as one case.

The District Judge rendered only one judgment in both cases. Only one appeal was taken, but it brings up both cases. We therefore act on both cases at the same time and in one opinion.

A large amount of testimony was taken; all of which, on important facts, is conflicting.

The witness for the plaintiff, Nester J. Vicknair, who was driving the automobile, and Mrs. Brocato, the plaintiff, one of the occupants of the car, testify that the automobile was not going faster than about fifteen miles an hour. That they did not see the railroad 'crossing, did not know there was one there. That it was dark and the crossing was poorly limited. That they were unable to see the locomotive until about the time it struck their automobile and had no opportunity to avoid it. That the engine struck them with such force that Alvin Wilcox was pitched out of it on top of the steam chest of the engine, from which position he afterwards fell, about the time the engine was stopped, and in falling, dropped between the pony wheels under the engine. That the engine backed over him, killing him.

The train crew testify that the automobile running at fast speed, struck the pilot of the locomotive with such force, that Alvin Wilcox, sitting in the back seat of the automobile asleep, was projected forward out of it and across the rails in between the forward wheels of the locomotive; and that the wheels passed over him before the engine could be stopped.

They say that if he had fallen on top of the steam chest that when he fell from it, he would have fallen outside of the rails and would not have been run over. The evidence of the defense witness on this subject seems the most trustworthy. If the automobile, running fast, had struck a slow moving locomotive the occupants of the car would most likely have been pitched forward out of it toward the locomotive, as actually took place. On the other hand, if a faster moving locomotive had struck a slow moving automobile, the occupants of the automobile would likely have been pushed ahead on the railroad with the automobile, or would have been pushed to one side, instead of being projected towards the locomotive.

The train crew denies that the locomotive was backed after it was brought to a stop, and all testify that Alvin Wilcox was bound to have .Been run over before the engine was stopped. We do not find that the facts established that the locomotive was backed over the decedent after it had been stopped.

Mrs. Brocato testifies that she was rendered unconscious by the collision and did not remember signing, nor hearing read to her a written statement produced against her, and which, it is said, she signed at the hospital two or three hours after the accident. The train crew denies that she was unconscious when she came out of the wreck, because she talked to them before going to the hospital; and their testimony on the subject is corroborated by the fact that when she arrived at the hospital she was not unconscious, but able to talk and did talk, giving an intelligent account of the affair. It was while at the hospital and only a short time after the occurrence that the statement was written, which was produced against her. She admits that she signed the statement, but declares that she could not remember dictating it, nor that it was read to her. The statement was written by one of defendant’s agents, but it contains statements that, could hardly have been known to this agent. He must have received them from her at the time they were written, and the statements made indicate a clear mind on her part.

There were two ladies in the car, the party plaintiff and a friend. Her friend was not produced as a witness. Mrs. Brocato says that her friend and herself were on their way from Donaldsonville to Hammond to pick strawberries. That is possible, only so however, because these ladies were probably not posted as to the berry season. As a matter of fact, the strawberry season is generally over by the date of the accident. It is seldom that any berries are picked as late as the date of the occurrence.

The contention of the defendant is in harmony with the conduct of the occupants of this automobile. The two ladies in question were both young married women, living in New Orleans; but were not at the time, living with their husbands, and their husbands were not with them on this trip. Mr. Vicknair testifies, in one place, that the two ladies asked him to take them to Hammond; in another, he was very sure that Alvin Wilcox was his guest and had no control over the car.

The conclusion at which we have arrived makes this question unimportant.

The defendant’s train crew testifies that the switch engine in question was not running faster than eight or ten miles an hour. That its headlight at the time was burning brightly. That two men, employees of the railroad, were standing at the time on the foot-board at the head of the engine; each with a lighted lantern in his hand. That the engine bell was ringing, also a bell at the crossing, and that there were red and white lights at the crossing, and a large arc light 12 or 14 feet in the air above it. That the crossing was, in addition, plain to be seen by two large cross arms and street lights burning nearby. That the headlights of the automobile were also burning, and that with all these lights nobody could fail to see the railroad and the warning signs, if they had been looking ahead.

There is some reliable evidence that the headlight on the locomotive was not as bright as headlights are on some locomotives, and that the crossing bell could not be heard by parties driving an automobile unless it was attentively listened for. But all the facts taken into account, we are satisfied that the crossing was lit up and could have been plainly seen by the driver of the automobile, and the other parties in it, if they had been looking ahead. The train crew testify that they saw the automobile coniing for more than 150 feet before it reached the crossing. That it was' coming fast. The witnesses differ in their estimate of the speed of the automobile, but all agree that it was running considerably faster than the engine, and that the engine was in plain view for at least 50 feet before it reached the crossing. It was also shown that the engine reached the crossing and was on it before the automobile reached it. The engineer and fireman and two men standing on the footboard all claim to have seen the automobile coming, and that they expected it to stop as it came up to the railroad, but it did not. It came straight on without slacking speed, made a slight swerve to the right just before it reached the locomotive, but was unable to swerve far enough and struck and wrecked itself against the pilot on the engine.

The evidence shows that the defendant has complied with the requirements of the Louisiana Public Service Commission at this crossing and the bulk and preponderance of the testimony is to the effect, that the railroad company was not at any fault, nor guilty of any negligence whatever, and is in no way responsible for this accident. Such being the case, and our conclusion, no useful purpose would be served by further discussing the testimony and the issues urged in the pleadings. As the defendant was in no way to blame it cannot be held responsible. The District Judge rejected plaintiffs’ demands. It is our opinion that his judgment was correct.

Plaintiffs and appellants to pay the cost in both courts.


author: REYNOLDS, J.

text:
    No. 3418
    Second Circuit
    CORDRAY v. STANDARD OIL CO. OF LA.
    (November 8, 1928. Opinion and Decree.)
    (December 16, 1928. Rehearing Refused.)
    (January 28, 1929. Writ of Certiorari and Review denied by Supreme Court.)

      E. J. McLeroy, of Center, Texas, and Crow and Coleman, of Shreveport, attorneys for plaintiff, appellee.
    T. M. Milling; F. L. Hargrove and E. C. MeCallum, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff alleges that he was employed by defendant in operating machinery in drilling a well for oil,. and that in the course of his employment it became his duty

“To stoop and lift a heavy ‘sheave wheel,’ weighing approximately 200 pounds, around which a cable runs, which caused petitioner to have to brace himself against a pole and lift the heavy implement, while the cable was around it, and because of a sudden slip of petitioner’s foot, or a jerk of the ‘sheave wheel’ which petitioner was lifting, and because of the sudden, severe and heavy strain upon petitioner, his intestine, known as the duodenum, was torn from petitioner’s stomach at or in the region of the pyloric orifice or opening at the lower extremity of the stomach; that said injury caused immediate and excruciating pain to petitioner, and necessitated his calling an attendant for relief at once, which he did, whereupon petitioner immediately collapsed, and it took several hours to revive him at a hospital later”

He further alleges that he was earning $5.00 a day or $35.00 a week and that in consequence of his injury he is permanently totally disabled to do work of any reasonable character.

He asked for judgment for $20.00 a week for 400 weeks, the first installment to be decreed due August 17, 1927, with legal interest on each payment from its maturity until paid, and for the further sum of $250.00 for medical, surgical and hospital expenses.

Defendant admitted that the plaintiff was in its employ and was earning the wages alleged, but denied all of the other allegations of his petition.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant for $20.00 a week for 26 weeks, the first payment being decreed due August 17, 1927, and for $10.00 a week for an additional period of 26 weeks, the first payment being decreed due February 17, 1928, with legal interest on each installment from its maturity until paid, and for the further sum of $250.00 for medical, surgical and hospital expenses, with legal interest thereon from the date of the judgment, and for all costs of suit, and the defendant appealed.

OPINION.

The record presents for our decision a question of fact, namely, was the perforation of plaintiff’s duodenum caused by

“A sudden slip of petitioner’s foot, or a jerk of the ‘sheave wheel’ which petitioner was lifting, and because of the sudden, severe and heavy strain upon petitioner”

as petitioner avers, or by the sloughing off of the tissue of the intestine in the regular course and as a natural result of the progress of an ulcer of the duodenum from which petitioner was suffering, as contended by defendant.

Plaintiff was employed by defendant in connection with the operation of a well-drilling rig, and he testified:

“Q. Mr. Cordray, what were you doing on the day that you claim you were hurt?
“A. We was lifting pipe — tubing.
“Q. Well, explain to the court how you did that?
“A. You have to string up a block— string up three lines and slip the pipe up. You could not pick it up with one line; you have to string with three, so there would be strength; it would be strong.
“Q. Well, does that necessitate your going up on the derrick?'
“A. Yes, sir; you have to.
“Q. Why?
“A. You pick the sheave .up to cross the line to string up.
“Q. Pick up the sheave?
“A. Yes, sir.
“Q. How high was this 'sheave wheel on this day, above the bottom of the derrick?
“A. Prom the derrick floor to the top?
“Q. Yes.
“A. I think it was about sixty-four feet; double derrick.
“Q. Well, what were you doing at the time you say this accident happened?
“A. I had went up there to change the line back to string the block.
“Q. Who, if any one, went with you to assist you?
“A. Kilpatrick.
“Q. Well, in doing that work, just what did you have to do?
“A. We had to pick our line up and tie it to the gin pole and then we had to pick our sheave out of the crown block and turn our line back.
* # *
“Q. How large a wheel, and approximately what did that sheave wheel weigh?
“A. It is a pretty large wheel. In my estimation it weighs something like two hundred pounds.
* * *
“Q. Well, when you went to pick up that, or did pick it up, or endeavored to pick it up, what, if anything, • happened to you, what did you experience?
“A. Well, when I picked up that sheave, it seemed that Kilpatrick didn’t make an effort to pick it up and I went ahead and picked it up — it seemed like something grabbed me in my side.
“Q. In the right side of your stomach?
“A. Yes, sir.
“Q. What did you do, immediately after that?
“A. Right after that, I came down the derrick.
“Q. What did you do then?
“A. I walked over to the brake with the thought that maybe it would quit, and it didn’t, and I asked Atwood to take the brake, that I was getting sick and cramping. I went out and taken a drink of water, and when I did, I could not get up, C was cramping so I couldn’t move.”

He further testifies that this occurred about 11 o’clock in the forenoon and that he lay around until about 7 o’clock in the evening of the same day, when he was taken to a sanitarium and there he was operated on the same night.

Doctor C. O. Woolf testified that he was the -surgeon in charge of the sanitarium to which plaintiff was brought and that he operated on him, and that:

“Q. Detail, doctor, what you found the patient suffering with at the time?
“A. He had a large ruptured duodenal ulcer.
“Q. To what extent, doctor, had the duodenum been ruptured?
„ “A. There was a .hole in the base of the ulcer about large enough to admit a lead pencil.
“Q. The portion of the human anatomy-known as the duodenum is the extended lower region of the stomach?
“A. It is the first part of the intestines just below the end of the stomach. This was about an inch from the pylorus.
“Q. What did you do, doctor? What did you do? State what you did?
“A. I resected the ulcer; closed that opening, and did a gastrojejunostomy.
“Q. Did you undertake or endeavor, doctor, to do a permanent job, or was it a temporary measure only?
“A. It was meant to cure.
* * *
“Q. * * * What would you say as to the ability or capacity of the plaintiff to do just ordinary work in a reasonable time after the operation, as compared with his capacity to do ordinary work with the ulcer that existed prior to the operation?
“A. I think he. should be able to do it after a reasonable time. As I say, care and diet should be used for at least a year after an operation of that type.”

Several other physicians were also called as medical experts and all of them testified as to the immediate effects of a bursting of the duodenum said that the perforation instantly causes intense pain.

Doctor B. L. Sanderson said:

“Q. What, if anything, will or rpay cause rupture of a duodenal ulcer?
“A. Well, occasionally a duodenal ulcer will rupture without cause, but it is a very rare thing that a duodenal ulcer ruptures, without some effort. Sometimes it is coughing, sometimes a strain, but it usually is some undue strain that actually precipitates the breaking of the ulcer. I never saw one but what you could trace to some effort or strain, that is, a ruptured duodenal.
“Q. Well, if it had been ruptured, doctor, large enough for a lead pencil to be passed through the opening before he received this strain, what would have been his condition?
“A. As soon as the rupture takes place, an acute pain sets in immediately.”

Doctor J. A. Hendrick testified;

“Q. Now, Doctor Hendrick, this plaintiff testified this morning that on the day of the attack he was on the top of a derrick with another employee of the defendant company, lifting a pulley known as a sheave, for the purpose of changing some lines. That they lifted that pulley, and after doing that he climbed down the ladder from the top of the derrick to the derrick flpor, walked across the derrick floor, got off of the derrick and got a drink of water, 'came back up on the derrick and had hold of the handle of the brake that works on a sort of clutch that is on the derrick floor. In your opinipn, as a physician, and from your experience 'with ruptured duodenal ulcers, do you think that a man could do that without' exciting considerable notice from his fellow employees, if he had a ruptured duodenal ulcer?
“A. As soon as you get the rupture, the first thing that happens is immediate severe pain. Now the man might climb down from the derrick, but he would be in severe pain when he done it. It is similar to a gunshot wound in a way. A man can walk with a gunshot wound, but he is suffering enough to know it.
“Q. Do you think that his suffering would be so acute that it would be noticed by those standing on this derrick floor with him?
“A. Yes; his suffering would be intense.
“Q. In other words, if that rupture occurred while he. was at the top of the derrick, assuming that he did climb down the ladder after that, he would be suffering-intense, acute pain that would be noticeable to any person standing around?
“A. Oh, yes; when you have a rupture, you have immediate pain with spasm of the muscles. The stomach gets as rigid.as can be.
“Q. Does that rupture or perforation produce a certain amount of shock also?
“A. Yes, sir.
^ _
“When a man ha.s a perforated ulcer, there is intense pain in the abdomen, it is most intense. One of the diagnostic features of an ulcer .is sudden, sharp pain in the abdomen, and the abdomen becomes very rigid; board like. That is what we call it, board like. That is one of the diagnostic features. It is sudden, just like that (witness snapped his fingers). There is pain from the ulcer preceding the perforation, because the ulcer is advancing, sloughing, eating into the coat of the bowels; but when he has the perforation, that is sudden pain, and he can tell you the time, just to the minute, that it happens. It is just like that (witness snapped his fingers). Then he suffers intensely after that.
* * *
“Q. As he went on, of course that pain continued increasing while the condition was there?
“A. Well, that pain immediately is ninety-nine per cent; there may be an increase of one per cent, but it is intense from the first.”

Doctor Prank Walke testified:

“Q. Doctor Walke, when a duodenal ulcer perforates or ruptures, what is the effect upon the patient?
“A. He is seized with great pain, and he usually falls, just like being shot by a bullet. It is very sharp and excruciating.
“Q. Is that practically instantaneous?
“A. Immediate.
“Q. Do you think, in your opinion as a doctor, and from your experience with these cases, and so forth, that a man could climb down a ladder leading up to the top of a derrick, some sixty feet, as a normal person, walk around the derrick floor, go over and get a drink of water, and come back and start to take hold of the handle of the brake, after he had ruptured a duodenal ulcer?
“A. No, sir; he could not have done .it; I don’t think.
“Q. Suppose a man with a duodenal ulcer is sick, that is, some time preceding the actual rupture or perforation, what are his symptoms then?
“A. Well, there is usually a certain amount of acute pain, which varies in accord with the amount of ulceration, and then there will be the symptoms of erupting gas, belching, and there will be discomfort around the stomach, around in that area. Then, when the ulcer actually perforates, there is so much shock to it, that a person usually falls to the ground, wherever he is. When walking on the street, he falls. If this man had a perforation, he would have fallen down the derrick; he could not have climbed down without assistance.
* * *
“Q. Is it not possible, doctor, that' that was what happened, the perforation there?
“A. I think not, because I think if that had been the case, he would not have finished the job; he would have had to have been lifted down off of the derrick.
“Q. Or fallen off?
“A. Or fallen off.”

Plaintiff testified that he was in excellent health up to the time of the event in question, but A. W. Atwood, one of his own witnesses, testified;

“Q. Do you know of any disability he had ever had during or prior to that time?
“A. Well, he had complained of stomach trouble before.
“Q. When?
“A. I kept the time myself, and there were a few days he was off. We gave him straight time, but he was off a few days sick, and he was throwing up when he ate.
“Q. When was that?
“A. That was along somewhere near a month before he got hurt.
* * *
“Q. Immediately after he came down off the derrick, the plaintiff, Willie Cordray, did he make any complaint?
“A. Yes, sir.
* * Hi
“A. He didn’t say anything about an injury. When he came down, off the derrick, he got a drink of water and walked back to the brake, and about the time he taken hold of the brake, he said: 'Shorty, come take this. I am getting sick.’ And I stepped over and took hold of it,' and he dropped off the floor to the ground and grabbed his stomach, and I thought at the time he was pretty warm, and may be he had drunk too much water and was cramping.”

In a suit under the Workmen’s Compensation Act it is incumbent Upon the plaintiff to prove the fact of an accident happening to him in the course of his employment and a causal connection between such accident and the disability complained of by him, and we do not think such proof has been made in this case. On the contrary, in view of the testimony of the physicians that duodenal ulcer ' ruptures by the ulcer eating through the tissue or the sloughing off of the tissue of the duodenum in the natural progress of the ulcer, as well as by strain, and that intense pain and total disability instantaneously follow, we conclude that the cause of the rupture was not strain from the lifting of the sheave wheel or a slip of petitioner’s foot or a jerk of the sheave wheel, as contended for by plaintiff, but to the sloughing off of the tissue of the duodenum in the natural course of the progress of the ulcer.

Consequently, the judgment appealed from is erroneous and must be reversed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that plaintiff’s demands be rejected and his suit dismissed at his cost.


text:
    No. 3330
    Second Circuit
    STEVENS v. BROWN
    (December 19, 1928. Opinion and Decree.)
    (See Sec. 52 of Act 64 of 1904.)
    C. P. Thornhill, of Columbia, attorney for plaintiff, appellee.
    Moss & Moss, of Winnfield, attorneys for defendant, appellant.
   ODOM, J.

This is a suit to recover $325.00, evidenced by five promissory notes, each for the sum of $65.00, dated February 14, 1927, all executed and signed by the defendant, J. R. Brown, Jr., and made payable to “The Brenard Manufacturing Company.” The plaintiff alleges that he is the owner and holder of the said notes,, he having acquired the same for a valuable consideration before maturity.

The defense is that the plaintiff is not the holder of the said notes in due course.

There was judgment in the lower court for the amount sued for, together with five per centum interest from the date of the notes until paid, from which judgment the defendant has appealed.

OPINION

On February 14, 1927, the Brenard Manufacturing Company sold to the defendant, J. R. Brown, Jr., certain radio sets for the consideration of $360.00, the purchase price being evidenced, in part, by the notes sued on. Subsequent to the salé, but prior to the maturity of any of the notes, the Brenard Manufacturing Company sold them to the plaintiff for a valuable consideration. In support of his defense that plaintiff is not the holder of said notes in due course, defendant alleged, among other things that the plaintiff is a member of the partnership which took the notes and that he was not a good faith purchaser and did not pay value for the notes; that he is a party interposed for the purpose of defeating any equities which might be pleaded by the defendant as against the original owners of the -notes.

It is elementary that if the plaintiff became the holder of -the notes before they were overdue, in good faith and for value, and had no notice of any infirmity in the instruments, or of any defect in the title of the person negotiating them, he is entitled to recover, regardless of any equities which may exist between the defendant and the Brenard Manufacturing Company. (Sec. 52, Act 64 of 1904.)

The testimony makes it perfectly clear .that the plaintiff purchased the notes sued on before maturity and that he paid the sound consideration therefor; and, further, that plaintiff did not have at the time of the purchase of the notes, nor at any other time, any connection whatever with the Brenard Manufacturing Company; and, further, that he had no knowledge whatever of the transaction which had taken place between the Brenard Manufacturing Company and the defendant.

The defendant sought to prove, and did prove; that on previous occasions the plaintiff had purchased notes from the Brenard Manufacturing Company and had met with some, difficulty in collecting some of them, ahd it is suggested by counsel for defendant that this fact should have put the plaintiff on inquiry and notice. We are not impressed with that suggestion. The testimony shows that the plaintiff had purchased for himself and for his clients other notes from this same concern, and in some instances, had found it necessary 'to bring suit in order to collect some of them. But, on account of that fact, it cannot be said, we think, that plaintiff was called upon before purchasing these notes to go into all the details of the sale by the Brenard Manufacturing Company to the defendant, Brown.

However, if it be. true, as argued by 'counsel for defendant, that plaintiff should have made such investigations, it appears from the record that the transaction be-’ tween the vendor and the vendee was legitimate and that there are in fact no equities between them which would defeat a suit on the notes if brought by the original holders of them. We find in the record a letter written by defendant to the Brenard Manufacturing Company, dated February 22, 1927, in which he says:

“We received the radios today in first-class shape, but no batteries, tubes or connections of any kind. Your salesman told us they come complete, ready to install.”

So far as the récord shows, the only complaint. which the defendant ever made was that the Brenard Manufacturing Company had sold him radio sets which were worthless and, on that account, he should be permitted to defeat the action on the notes. But, by reference to the contract itself, we find that “no tubes, batteries or other accessories included in this order,” so that if this suit were between the Brenard Manufacturing Company and the defendant, he could not defeat the action on the notes under the plain letter of the contract.

However that may be, the testimony shows beyond question that the plaintiff purchased the notes before maturity, in good faith and for a valuable consideration, and that there was nothing either in the notes themselves, or otherwise, to suggest any infirmity in them, and he is, therefore, entitled to recover the full amount thereof, together with interest.

Finding no error in the judgment appealed from, it is accordingly affirmed, with costs.