text:
    No. 3253
    Second Circuit
    WILLIAMSON v. NATL. BENEFIT LIFE INS. CO.
    (April 9, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)
    (June 22, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Herndon & Herndon, of Shreveport, attorneys for plaintiff, appellant.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant, appellee.
   McGREGOR, J.

This is an action by the plaintiff, Lueien W. Williamson, against the defendant, National Benefit Life Insurance Company, a corporation operating under a charter obtained in accordance with the laws of the United States. The domicile of the defendant is in the city of Washington, D. C., but it is engaged in the general life insurance business throughout the country and particularly in Caddo parIsh, La. The plaintiff was appointed assistant manager of the Shreveport office in accordance with the terms of a written .contract of employment signed by both parties, to become effective as of November '2, 1925. Paragraph 34 of the contract reads as follows:

“That in consideration of the services herein described being satisfactorily performed, and this agreement being fulfilled by me upon the terms and conditions herein stated, I shall receive a salary at the rate of $90.00 per month, payable in semimonthly installments on the fifteenth and last days of each month.”

,. Paragraph 1 contains the following stipulation :

“This appointment may also be revoked at the pleasure of the Company without notice to me previous to said revocation. * * *”

On December 7, 1926, the defendant addressed the following letter to plaintiff, which letter was received on December 13, ■1926:

“Please take notice that your contract with this Company as Assistant Manager, bearing date of December 11th, 1925, has been cancelled, per its provisions, to become effective as. of December 15, 1926.
“You will please surrender all property of the Company in your possession to Supervisor H. W. Gore, upon the relinquishment of your office and make full report to him of all monies collected.
“It however, will be agreeable with the Company for you to resume an agency connection. As to this "phase, of t,he work, you may see Supervisor Gore.
“With appreciation for any and all past services rendered, we are.”

■ On November 10, 1926, the plaintiff subscribed for two shares of the capital stock of the defendant, National Benefit Life Insurance Company, at $55 per share. In the written application for the said shares, the plaintiff agreed to pay for them at the rate of $10 per month beginning December 15, 1926, and on the 15th of each succeeding month until fully paid, said payments to be deducted from the plaintiff’s salary check to become due at those respective dates; so that, when the defendant issued and mailed the plaintiff’s check for salary up to December 15, 1926, it was for $'35' instead of $45. Whe'n plaintiff received the letter of December 7 on December 13 giving him notice of the cancellation of his--contract as assistant manager, to take effect December 15, 1926, he immediately wrote a letter to the defendant at Washington, D. C., canceling his subscription for the two shares of the capital stock of the defendant company. This letter reached" the office at Washington on December 15, too late for the $10 already deducted out of his salary to be included in the salary check, but the company acknowledged receipt of the letter at once and agreed to refund the $10 that had been retained.out of the salary check. This letter of the defendant in reply to plaintiff’s reads as follows:

“Your message of December 13th addressed to Mr. R. H. Rutherford has been referred to us and we beg to advise that prior to receipt of this message the Shreveport payroll had been made up and all checks had been forwarded to reach Shreveport by the morning of December 15th. You will no doubt note a deduction of $10.00 was made from your December check and you will please be advised that this amount has been placed to your credit instead of your stock subscription and will be refunded with your final settlement.”

Plaintiff contends that his contract of ■employment was a monthly contract, and that it could not be terminated ' except at the end of a. month. He therefore demanded payment for the latter half of De.cember, 1926, in tbe sum of $45, in addition to tbe refund of the $10 agreed to by the defendant. At the beginning of his employment a rate book was. delivered to plaintiff by defendant, for which the plaintiff deposited with the defendant the sum of $2. Plaintiff also demanded the. return of this amount, and defendant admitted the correctness of the claim. Since the .defendant refused to recognize plaintiff’s right to $45 salary for the latter half of December, 1926, the plaintiff brought suit for the $10 and the $2, both of which were admitted to be correct and due by the defendant, and also for $45 claimed for salary for the latter half of December, 1926. And, in addition to his demand for the said $57, he demanded the penalties provided by Act No. 150 of 1920 of the .General Assembly of Louisiana. On these issues the case went to trial. Judgment was rendered, in favor of plaintiff for the sum of $57, with interest and costs, but his demand for penalties was. rejected. The plaintiff appealed from the judgment 'of the lower court, and the defendant answered the appeal and asked that the judgment of the court be reversed and that the ■demands of the plaintiff be rejected.

All the rights of the plaintiff are governed entirely by the written contract under which he sues the defendant. That contract plainly provides:

. “This appointment may also be revoked at the pleasure of the .Company without notice to me previous, to said revocation. *• * *>’ •. .

A careful reading of the contract clearly shows that it was not entered into for any definite term and that it stipulated that the plaintiff was to be paid for his services “at the rate of $90.00 per month.” (Italics ours.) ■

Under the reservations of the right of revocation quoted above, the defendant had a right at its. pleasure to revolee the contract at any time. . The defendant was clearly within its rights in revoking the contract on December 7S and was specially considerate of plaintiff in making the revocation effective as of December 15 instead of immediately, as it 'had a right to do under the express terms of the contract signed by both parties. Under this view of the case plaintiff was not entitled to any salary for the 'latter half of December. The refund' of the $10 which had been held out as payment on stock subscription and the $-2 for the rate book deposit were temporarily withheld pending a final settlement ;■ The record discloses that, the plaintiff was short in several of his settlements with the defendant, and that fact alone would justify the withholding of these amounts pending a final settlement: ■ Act No. 150 of 1920 is a harsh remedy and a penal statute, and will not be enforced in a case of this kind, where there is a strong equitable defense against the enforcement of the penalty. Not only did the defendant have an' absolute right 'to revoke the contract at its pleasure ’ without any particular cause, hut in addition it had. the right to discharge the plaintiff-for a plain violation of his obligation to remit each week all moneys received by •him. ...

For the reasons assigned, the judgment appealed from is amended by reducing the amount of the same 'from $57 to $12, with legal interest on $10j from December 15, 1926, and on $2 from December 17., 1926, and as "amended the judgment is, affirmed.; the costs of the lower court to be paid by the, defendant, and those of this court by the plaintiff. •


source: Caselaw Access Project

author: TALIAFERRO, J.

license: Public Domain

text:
    No. 3422
    Second Circuit (Second Division)
    MITCHELL v. ADDINGTON
    (May 7, 1931. Opinion and Decree.)
    (June 11, 1931. Rehearing Refused.)
    Murff & Perkins, of Shreveport, attorneys for plaintiff, appellant.
    Mabry & Carstarphen, of Shreveport, attorneys for defendant, appellee.
   TALIAFERRO, J.

On February 20, 1928, plaintiff entered the employ of defendant as prescription clerk and salesman in the Tri-State Drug Store in the city of Shreveport, owned and operated by defendant, at a fixed salary of $165 per month, plus 1 per cent of the gross sales of the business. This relationship between the parties continued until May 3, 1928, when plaintiff was discharged. Defendant says, his action in dispensing with the services of plaintiff was for good cause, while plaintiff says no cause existed therefor.

The salary due plaintiff was paid to April 1st, and this suit was. instituted to recover salary for April and May, and commissions on sales to May 20th, a total of $405.

Defendant admits that at the time plaintiff was discharged he was due to him $224.07 on account of salary and commission, after deducting a small amount plaintiff was due the business, and that a check for this admitted indebtedness was tendered plaintiff, but declined.

After defendant filed answer admitting that he was due to plaintiff $224.07, a rule was taken for judgment for that amount on the face of the pleadings. Judgment was accordingly rendered in favor of plaintiff and, we are informed in defendant’s brief, was paid before the case was submitted for decision after trial.

The lower court rejected plaintiff’s demand for any amount in excess of that for which judgment had been previously rendered (the admitted indebtedness), and condemned him for costs accruing after rendition of the first judgment. He has appealed.

. Issue of fact only is involved in a determination of this case. The question to be settled is whether or not defendant had sufficient legal cause to discharge plaintiff • on May 3d. It is. admitted that plaintiff’s employment was for the month.

Plaintiff, while testifying, enlarged upon the allegations of his petition with respect to his duties under his employment hy defendant. He says:

“The contract was that I was to take care of the prescription department, the prescription work, and when I was not busy I was to help as salesman inside of the store in front and when I wasn’t busy at either of these I was to assist at the soda fountain, inside of the store, at any time it was necessary when I wasn’t busy doing the other work.”

The contract between the parties, was verbal. Defendant, in his testimony, outlined plaintiff’s duties as follows, viz.:

“His duty was to fill prescriptions, to do general • work over the store, to assist behind the soda fountain, to help catch the cars in front, to do general store and prescription work.”

There are two points of difference between the two versions of plaintiff’s duties:

(1) Plaintiff, according to defendant, was obligated to service cars in front of the place of business, while plaintiff omits this in his evidence.-

(2) Plaintiff fixes .an order of precedence with, respect to the discharge of different duties he assumed by his employment, which defendant denied.

Defendant testified that the Tri-State Drug Store had only been in operation for a .short time when plaintiff was employed by him, and that the volume of prescription business being done would not justify the employment of a clerk for 'that alone; that he. could only pay the salary promised plaintiff to one who could and would work in every department of the business.

We are satisfied from the evidence that plaintiff’s duties included all departments of defendant’s, business and it was incumbent upon him to render service and assistance in each department voluntarily, without waiting for suggestions or directions from any one.

It is evident plaintiff was not as zealous of his employer’s welfare as he was expected to be, notwithstanding his interest in the gross sales of the business, and as time passed a lack of harmony arose between plaintiff, on the one side, and other employees, on the other side, on account of his disinclination to render assistance to them to the extent and in the manner these employees deemed he was due to do.

On May 1st, while defendant was absent from the store, about midday, there was a rush of business there; many customers came in to be served, so many that the clerical force could not reach them all as quickly as desired.. Plaintiff during this time was in the prescription room. He did not render, or- offer to render, any assistance to the clerical force in the front of the building where the crowd was, according to the testimony of three witnesses. Miss Marjorie Addington, daughter of defendant and manager in his. absence, testified that she solicited plaintiff1 three times to come out and help take care of the trade, but to none of her entreaties did he respond. When defendant returned, he was informed of what had happened and plaintiff’s discharge followed.

The district judge who saw and heard the witnesses testify reached the conclusion that defendant had good and sufficient cause to dispense with plaintiff’s services. His ruling should not be disturbed unless error is manifest. If plaintiff’s conduct on May 1st was such as has been related by several witnesses, his discharge was justified. The lower court evidently believed these witnesses, and we agree with him.

The judgment appealed from is affirmed; with all costs.


text:
    No. 3720
    Second Circuit (Second Division)
    MINDEN HARDWARE & FURNITURE CO., INC., v. HARDEMAN
    (May 7, 1931. Opinion and Decree.)
    (June 11, 1931. Rehearing Refused.)
    Watkins & Watkins, of Minden, attorneys for plaintiff, appellant.
    Coleman Lindsey, - of Minden, attorney for defendant, appellee.
   TALIAFERRO, J.

Plaintiff brought this action against defendant to recover judgment for $504.50, being a balance alleged to be due upon open account, a copy of which is attached to the petition, and to have a vendor’s lien and privilege recognized and enforced against certain furniture and household effects enumerated in the petition. No writ of any kind was issued or prayed for.

Defendant denies th'at he is due plaintiff any amount, for the reasons set forth in his answer. He avers that he purchased from plaintiff the articles of furniture shown on the itemized account attached to the petition, on the dates and for the prices stated therein, and that the agreement was that he should pay the price in installments of $10 per month; that the payment of interest was. not mentioned; that he paid said installments as they fell due up to the time that plaintiff took possession of the greater part of said furniture without legal right and. refused to deliver same to respondent when demanded.

Defendant further alleges that about August 2, 1928, his business required that he remove from Minden, his. home, to some place in Arkansas, necessitating an absence of several months; that he sold his residence and conferred' with plaintiff about storing said- furniture in its warehouse for an indefinite period, to which plaintiff’s officers assented; that certain pieces of said furniture and household effects were -not stored there as it was feared that same would be damaged by depredation- of rodents, and these were stored elsewhere; that at that time defendant informed plaintiff’s officers that while absent he would not be able to meet the monthly installments due on the price of the furniture; that on or about February 25, 1929, he moved back to - Minden with his family and made arrangements to resume housekeeping; that he rented a house for that purpose and conferred with Mr. H. J. Heflin, an officer of plaintiff company, relative to taking his furniture out of storage and resuming payments thereon, and was assured by Mr. Heflin that this would be satisfactory; that on or about March 25th following, respondent’s wife with a dray-man called at plaintiff’s place of business to remove the furniture, whereupon she was informed by two of plaintiff’s officers (Mr. Heflin and Mr. Lowe) that the furniture could not be removed until the balance on the purchase price was paid; that defendant and his attorney both made request of plaintiff for permission to remove the furniture, but were advised that this would not be granted unless at least 50 per centum of the amount due on the account was paid; that thereafter respondent offered to surrender all the furniture and household effects (in plaintiff’s warehouse and elsewhere) in satisfaction of the account due by him, and this was refused.

It was further alleged that this act of plaintiff constitutes a breach of the contract theretofore existing between plaintiff and defendant, and that for that reason there is no further liability on the part of defendant for the balance due on • the price of said furniture, etc.

It is also alleged that the furniture illegally held by plaintiff is worth more! than the balance due on the account.

In the alternative, it is averred that, should it be found that defendant is due plaintiff any balance on said account, no part thereof is due now, as all installments that had matured, and more, had been paid.

Defendant avers that on account of plaintiff’s unlawful acts he was compelled to purchase additional furniture elsewhere for the use of himself and .family, and that he has been damaged in his credit, social, and business, standing, etc., and asks that his right to proceed against plaintiff therefor be reserved to him.

There was judgment in the lower court in favor of plaintiff for $156.84, with 5 per cent interest from judicial demand, with recognition of vendor’s lien and privilege on the property and furniture involved, in this case in the possession of defendant, and plaintiff was decreed to be the owner of the furniture in its possession, involved herein.

Plaintiff has appealed. Defendant has answered the appeal, praying that the judgment, in so far as it is adverse to him, be reversed; that a proper judgment would be one decreeing plaintiff to be\ the owner of the furniture in its possession and rejecting its demand otherwise; reserving to defendant his right to proceed against plaintiff for damages.

The following clause in the judgment throws some light on the reasons therefor:

“In ascertaining the amount of this judgment, the value of this said property (that decreed to be owned by plaintiff) was accredited to defendant.”

There are only slight differences between plaintiff’s version of its. transactions with defendant, including the storage of the furniture, and that of defendant himself. They agree as to the circumstances attending the deposit of the furniture in plaintiff’s warehouse, and plaintiff’s officers admit that they would not allow the removal of the furniture unless a substantial payment on the account was made. There is difference as to the amount exacted of defendant, but, as. we view the situation, this is unimportant now.

We have analyzed the account sued on and find that the price of the furniture purchased and retained by defendant amounted to $810.85 and that from June, 1926, to March, 1929, defendant made payments amounting to $306.35, leaving the balance due as sued for.

Defendant contends that he had the right to discharge this indebtedness by monthly payments of $10, while plaintiff insists that the payments were to be $20 per month, assigning as reason for not favoring the smaller payments that it would require too long a period—several years— to retire the account on that basis. The account shows that defendant made five payments of $20 each, but none of $10. Several payments in excess of $20 and two below that amount were. made.

Prom June, 1926, when the furniture was purchased, to March, 1929, when release thereof was demanded, thirty-three months intervened. According to defendant’s contention he should have paid $330 during this time, whereas he only paid $306.35.

Plaintiff, admits that no storage charge was made for the deposit of the furniture with it.

The first question that addresses itself to our attention is whether plaintiff can maintain the action it has brought to enforce payment of the account against defendant, as relates to, and the enforcement of the vendor’s lien and privilege against, defendant’s property which is illegally detained by plaintiff. In order to correctly determine this question, it is necessary to ascertain the legal effect of, and the reciprocal obligations arising from, the deposit of these goods.

“A deposit, in general, is an act by which a person receives the property of another, binding himself to preserve it and return it in kind.” C. C. art. 2926.
The object of a deposit must be a movable (C. C. art. 2928) and the deposit -s=sentially gratuitous (C. C. art. 2929).
“The deposit is voluntary or necessary.” C. C. art. 2931.
“The voluntary deposit takes place by the mutual consent of the person making the deposit and the person receiving it.” C. C. art. 2932.
“The voluntary deposit can only be regularly made by the owner of the thing deposited, or with his. consent expressed or implied. Consent is implied when the owner has carried or sent the thing to the depositary, and the latter knowing that the thing had been sent, has not refused to receive it.” C. C. art. 2933.
“The depositary is bound to use the same diligence in preserving the deposit that he uses in preserving bis own property.” C. C. art. 2937.

He cannot use the thing deposited without permission of the owner (C. C. art. 2940) and should restore the precise object he received (C. C. art. 2944).

Other articles of the Code provide in detail the rules and regulations -governing most every contingency that could arise from the relation of depositor and depositary.

“The deposit must be restored-to the depositor as soon as he demands, it, * * * unless there he in the hands of the depositary, an attachment on the property or an opposition made on the owner.” C. C. art. 2955.

In Oneto v. Delauny et al., 6 La. 92, it was held that the “opposition” referred to in this article means opposition through Or by authority of court.

“He who has made a deposit is bound to reimburse the depositary the money he has advanced for the safe keeping of the thing, and to indemnify him for all that the deposit has cost him.” C. C. art. 2960.
“The -depositary can not withhold the thing deposited on pretense of a debt due to him from the depositor on an account distinct from the deposit, or by way of offset.
“But he may retain the deposit until his advances are repaid, as well as any other claims which he may have arising from the deposit.” C. C. art. 2956.

This article is clear and unambiguous, and, while we find no decision of our Supreme Court construing it with reference to facts as appear in the present suit, the Court of Appeal for Orleans parish has done so in two cases coming to our knowledge, where the facts were similar, viz.: Copeland v. Bleakley, 10 Orleans. App. 142; Grunewald v. Evans, 11 Orleans App. 352.

When this furniture was stored with plaintiff, the relationship of depositor and depositary automatically arose between the parties, and that relationship superinduces one of trust.

Article 3223 of the Civil Code provides:

“If the depositary abuses his trust, by alienating the thing confided to his care * * * the depositor retains his privilege on the price which shall be due.”

And article 3222, in part reads;

“He who deposits a thing in the hands of another still remains the owner of it.”

There is a positive prohibition in article 3226 of the Code against the depositary withholding possession of the thing, the object of the deposit, from the rightful owner, except for expenses incurred in connection with the deposit, such as for its preservation, etc., and certainly it would be a flagrant breach of trust for the depositary to forcibly detain the thing deposited for any other debt of the depositor, a vendor’s' lien and privilege debt not excepted.

In Purvis, Wood & Co. v. Breed, 7 La. Ann. 637, it was held that compensation did not take place in favor of the depositary as against the depositor.

In that case the facts were that Breed deposited some money with Purvis, Wood & Co. He became indebted to the company, but sued them for the amount he had left with them on deposit. The company pleaded compensation, but this plea was denied. Judgment was rendered for Breed. Execution issued, and Purvis, Wood & Co. paid over to the sheriff the amount of the judgment, and then attached the amount in his hands for the debt due them by Breed. The trial court dismissed the attachment, and the Supreme court sustained the ruling.

We quote the following excerpts from that decision:

“Why was the plea in compensation rejected? Because such a defence was repugnant- to the nature of the contract under which Purvis, Wood & Co‘. received the money for Breed. * * * This contract is one of confidence. * * * Among the Romans, it was classed in the category of contracts bonae fidei. From its confidential character arose, with them, the rule embodied in our code. * * * It imposes on the depositary the duty of instant return upon demand. It forbids him to withhold that return on pretense of a debt due to him from the depositor on any account distinct from the deposit. The form, then, in which the resistance to the right of the depositor comes, is immaterial. The spirit of the rule covers any substantial resistance. The deposit must be restored.”

It is obvious from the quoted codal provisions and from this decision that the status quo of things prior to the deposit must be restored, and the confidence and trust relationship terminated, before the object of the deposit may be pursued by the depositary and subjected to his rights against the depositor.

. If plaintiff is permitted to maintain his suit and at the same time withhold possession of defendant’s property from him, the protection guaranteed by article 2956 of the Code is rendered nugatory, and it might as well be torn from the booh.

There is another reason why plaintiff’s action cannot be maintained, and that is found in the elementary principle to the effect that one cannot sue to recover the price -of property sold by him and at the same time retain possession of the property itself against the owner’s will and consent.

For the reasons herein assigned, the judgment appealed from, in so far as it recognizes and decrees plaintiff to be the owner of the furniture in its possession at date of filing this suit, and involved- herein, is annulled and set aside, and plaintiff’s suit to recover the price thereof and to enforce the vendor’s, lien and privilege against same is hereby dismissed and their demand rejected as in case of non-suit.

It is further ordered, adjudged, and decreed that, as amended by this decree, said judgment is affirmed. And that costs of appeal be paid by plaintiff, and costs of lower court be paid by defendant; defendant’s. right to proceed against plaintiff for damages for the unlawful detention of his property is hereby reserved to him.


author: McGREGOR, J.

text:
    No. 3152
    Second Circuit
    LOMBARDINO ET AL. v. 707 TIRE CO., INC.
    (April 9, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)

      Dimick & Hamilton, of Shreveport, attorneys for plaintiffs, appellants.-
    Alex Smith, of Shreveport, attorney for defendant, appellee.
   McGREGOR, J.

Mrs. Annie Lombardino and her husband, P. Lombardino, bring this suit against the defendant, 707 Tire Company, Incorporated, for damages alleged.to have been sustained because of the plaintiff Mrs. Annie Lombar'dino, being run down and injured by an automobile of the defendant, commonly known as a “troubleshooter,” while it was being operated by defendant’s employee in the regulan course of his employment. The damages claimed are for pain and suffering, permanent injury, loss of time, and future incapacity for work, medical expense, and clothing destroyed. ■

The accident out of which the suit arises occurred on May 1, 1926, cm Cotton street in the city of Shreveport, about one hun^ dred or one hundred fifty feet west of the intersection with Louisiana avenue. Mrs. Lombardino and her daughter had been in the office of Dr. L. H. Pirkle on the second floor of a brick drug store" building on the north Side of Cotton street. Her automobile, in which she had come to the doctor’s office from her home in the country south of' Shreveport near the town of Lucas, was parked just across, the street on the south side and parallel with the curb. She and her daughter had left the building with the intention of crossing the street and going to the parked automobile; the mother preceding the daughter by a few feet. Mrs. Lombardino proceeded across the street a few feet, and just as she was about to reach her car on the south side of the street she was suddenly run upon, knocked down, and partly fun over by á “trouble shooter” belonging to the defendant and being driven by one of its employees in a westerly direction on the south or left -side of’ the street. The daughter was on the north curb of the street when her mother was thus run down. As soon as the plaintiff could be extricated from beneath the. car, she was carried back to the office of Dr. Pirkle, who administered first aid treatment, then sent her to a sanitarium, where she remained for several days. ’ As a direct result of the accident, the lady’s clothing was practically ruined by being torn and saturated with blood. She suffered from’ concussion of the brain, and remained in a semi-conscious condition for some time. Severe bruises and lacerations were on her head and body. After she was released from the sanitarium, she returned to her home, but continued to come to the doctor’s office for treatment for several weeks. At the time of the trial on April 7, 1927, she complained of suffering from pain, nausea; and dizziness, which remained with her ever since her injury. She also claimed that her eyes and ears had been permanently affected.

The defense set up is a denial of negligence on the part of the driver of the “.trouble shooter,’’ and in the alternative the defense is contributory negligence on the. part of the plaintiff Mrs. Lombardino in running in front of defendant’s car. Plaintiffs’ demands were rejected in the lower court, and from that judgment they are prosecuting this appeal.

There were seven witnesses sworn in behalf of the plaintiffs, two of whom were the physicians who- treated the injuries receiyed, and four .of whom, were eyewitnesses . to the. accident, and one of whom arrived just after it happened.

Charlie Lombardino, ’ son of the plaintiffs; testified that he drove the • car’ on that "day, and that’ he had ’ parked it just opposite the doctor’s office, and at the time of the accident was sitting in the car, facing Louisiana avenue in an easterly direction, waiting for his mother and sister. He never saw his mother come out; of the brick building, nor did he see her crossing the street, but he saw the defendant’s car cross Louisiana, coming toward him on the south or left side of the street. He states that the driver did not wait for the green light to come on, but crossed on the yellow or caution light. He heard his sister scream from the curb on the opposite side of the street, and turned to look to the left in time to see the “trouble shooter” knock his mother down upon the pavement near the rear end of the car in which he was sitting. He immediately jumped from his car, and was the first person to reach his mother and pull her from underneath the “trouble shooter.” He testified that the driver of the “trouble shooter” did not appear to be driving carefully, and that there was no reason for his being on the left side of the street; that there were no cars parked on the right side where he should have been. The plaintiff Mrs. Lombardino testified that she had left her daughter in the drug store, which is on the first floor of the brick building, and was crossing the street on her way to her car where her son was waiting for her. She testified further that, as she entered the street, she looked both ways- and saw no car coming, but that, after she had gotten almost across the street near the rear end of her Ford car, she was unexpectedly struck on her left by the defendant’s car.

Mary Lombardino, the daughter of the plaintiffs, who accompanied her mother to the doctor’s office and the drug store on this occasion, testified that she was on the curb on the north side of the street, in the act of crossing, when she saw her mother nearly across on the other side, and at the same time saw the “trouble shooter” run against her and knock her down. She screamed and attracted the attention of her brother, Charlie Lombardino, who was sitting in the parked car waiting for them. She also testified that no cars were parked in front of the drug store on the north side. Mrs. Phillips, who lives on the south side of Cotton street, just opposite the drug store where the accident occurred, testified that she was on her front gallery and saw Mrs. Lombardino as she was crossing the street. She never noticed the “trouble shooter” until it struck the plaintiff about four feet from the curb on the left side of the street. Tony Mandino, another witness for the plaintiffs, testified that he arrived at the scene of the accident just after it had happened and saw the “trouble shooter” on the left side of the street. Drs. Pirkle and Williams testified as to the extent of the injuries received by. the plaintiff.

There were three witnesses sworn for the defendant. Abe Ross, the driver of the “trouble shooter,” who was in the employ of the defendant at the time, testified that he was proceeding on Cotton street in a westerly direction on his way to the defendant’s place of business on Texas avenue; that, as he reached the intersection of Louisiana avenue, the red traffic light blocked him; that he waited for the green light, when he proceeded on across; that, as he crossed the white line which marks the path for pedestrians in the crossing, he was going at the rate of about 10 miles an hour, and saw the plaintiff and her daughter attempting to cross the street ahead of him (at a distance of about one hundred or one hundred fifty feet). He claimed that the two women entered the street from between two parked cars, and that immediately he cut to the left in order to avoid striking them; that in their confusion the daughter ran back to the curb, and the mother, after hesitating, ran across the street; that, if he had cut to his right,, he would have struck the daughter. Mr. Merrill Monk, who worked in the drug store, and a Mr. Egan both testified that the accident occurred near the middle of the street.

The record in this case is. convincing that the driver of the “trouble shooter” was guilty of gross negligence, and that .but for that the accident would never have occurred. According to his testimony, he saw the plaintiff in the street just as he was crossing the white line about one hundred or one hundred fifty feet away, while he was going not over ten miles an hour. He says he soon noticed that they were confused—one went forward and one back. If he observed this confusion, as he says he did, it was his duty to stop as quickly as possible and give them a chance to recover themselves and to escape danger, and, if he observed them in this confusion one hundred or more feet away, while he was going at not over ten miles an hour, it was his dúty and he could have easily stopped his car before reaching them, and he should have done this instead of trying to run ahead of the plaintiff as she was (according to his theory) trying to get across the street before he reached her. Taking his testimony as true, it is evident that he could easily have prevented the accident by stopping. We think that the driver’s testimony is true in everything except the speed at which he says he was running, and, if he was running at a greater rate of speed, his negligence is even greater. At whatever rate of speed he was running, since he saw the plaintiff and her daughter at the distance that he says he did, under the circumstances he had no right to proceed on his way in an endeavor to pass the two women while they were in the street in a state of confusion. This was gross negligence on his part, and was the proximate cause of the injury. In order to justify himself to a certain degree, he testified that he observed the two women enter the street from between two parked cars in front of the drug store. Other testimony in the record convinces us that there were no parked cars at that point, and that he had ample room to go to the right in order to avoid the accident without even stopping.

The cases of Baader v. Driverless Cars, Inc., 10 La. App. 310, 120 So. 515, 517, and Baquie v. Meraux, 11 La. App. 368, 123 So. 338, 339, justly sustain us in our conclusion. In the case of Baader v. Driverless Cars, Inc., the court said:

“Defendant pleads contributory negligence. Plaintiff is alleged to have been negligent, in that she walked across the street against the signal controlling-traffic at that intersection. But the clear weight of the evidence is to the contrary. Even if she did, the driver of the automobile, Jones, had ample opportunity to see her in time to avoid running her down and could easily have avoided the accident, as there were but few, if any, automobiles moving in his direction at the time.”

In the case at bar, Mrs. Lombardino says she looked both ways’ and saw no cars. The defendant’s driver says he saw her one hundred .or one hundred fifty feet away while he was going not over ten miles an hour and while he thought she was confused by the approach. He therefore had ample opportunity to avoid running her down, and could easily have avoided the accident by stopping. In the Baquie v. Meraux case, the court said:

“If she exhibited confusion and darted, first one way, and then the other, her actions in that regard, even though she ran directly across the path of the automobile, cannot be regarded as contributory negligence for the reason that, in the emergency created by the unexpected appearance of the automobile, she could not be expected to exercise the same degree of judgment as one not subject to the fear of sudden disaster. Blashfield’s Cyclopedia of Automobile Law, vol. 1, p. 597.
“If the Meraux car had been driven as slowly as it is said to - have been, the accident could have been easily avoided by stopping the automobile altogether, until the safety of the four pedestrians was assured.”

So, in the case under consideration, if the “trouble shooter” was being driven as slowly as it is said to have been, the accident could have been' easily avoided by stopping altogether until the safety of the two women was assured.

Mrs. Lombardino’s bodily injury consisted of concussion of the brain caused by her sudden precipitation to the pavement. As a result of this concussion of the brain, she has suffered considerably since at varying intervals with nausea and pains of different kinds. In addition, she received several severe bruises and lacerations about the head and body. Her suffering was necessarily intense for quite a period of time following the accident, and she no doubt will suffer more or less the rest of her life on account of the injury, for at the time of the trial, ten- months after the accident, she was still suffering. The hospital and medical bill-incurred amounted to $115.50, and her clothing, which was destroyed, was worth at least $25.

For the reasons assigned, the judgment appealed from is annulled and reversed, and it is therefore ordered, adjudged, and decreed that there be judgment herein in favor of plaintiff, P. Lombardino, and against the defendant, 707 Tire Company, Incorporated, for the sum of $140.50, with 5; per cent interest from January 12, 1927, for the expenses incurred on account of the injuries inflicted on his wife and for the value of her clothing destroyed; and it is further ordered, adjudged, and decreed that there be additional judgment herein in favor of the plaintiff Mrs. Annie Lombardino against the defendant, 707 Tire Company, Incorporated, for the sum of $1,500, with 5 per cent interest from January 12, 1927, for pain and suffering and permanent injury sustained; the defendant to pay all costs of both courts.


author: TALIAFERRO, J. PER CURIAM.

text:
    No. 3059
    Second Circuit (Second Division)
    JOHNSON v. TEXAS & PAC. RY. CO.
    (April 9, 1931. Opinion and Decree.)
    (June 11, 1931. Rehearing Refused.)
    (June 24, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Henry W. Bethard, Jr., of Coushatta, attorney for plaintiff, appellant.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellee.
   TALIAFERRO, J.

This suit is brought, by Susie Johnson, surviving widow of, Charley Johnson, deceased, and as natural tutrix of their seven minor children, 'to recover damages against the defendant for' $25,000, for the death of the husband and father, on December 18, 1925.

It is alleged that deceased was wantonly and negligently killed by a through freight train of defendant, operated by its agent's and employees, at a dangerous and unlawful rate of speed, a short distance west of Williams station in Red River parish; that deceased was of unsound mind, addicted to temporary partial insanity, and when thus afflicted was oblivious to his surroundings and totally or partially deaf, dependent upon the degree of insanity; that when killed he was partially demented over some business matter of his own; that deceased was traveling in the same direction as the train, and that the defendant’s track, at and about the point where deceased was killed, is straight for some two miles and the view unobstructed; that the train crew saw 'deceased when a mile or more from him and observed his condition, but, notwithstanding this, they continued to operate the train at a high, unlawful and negligent rate of speed until deceased was run down and killed; that there was ample opportunity to have stopped the train, after discovering the perilous condition of deceased, but no effort was made to do so.

It is further alleged that defendant’s tracks in the vicinity of Williams station, to the knowledge and with the acquiescence of defendant’s officers, agents, and employees, are constantly used by pedestrians in going from place to place; that the community there is thickly populated; that said Charley Johnson was not at fault; but his death was solely due to the fault of defendant company, its officers, agents, and employees.

The answer of defendant is a general denial of plaintiff’s allegations, excepting those relating to the mental lapses to which deceased was subject and impairment of hearing when so afflicted, which are admitted. For further defense, defendant avers that the accident resulting in the death of Charley Johnson was occasioned solely by his own fault and negligence in being and walking on defendant’s tracks without exercising the required precaution to learn of the probable approach of trains, and remaining thereon in the face of an approaching train and not heeding alarms and warnings given for him to remove; that his contributory negligence in thus conducting himself bars recovery.

Defendant filed a supplemental answer wherein it is averred:

“That while said decedent was of unsound mind • and addicted to. temporary flights or partial insanity, at which times* he was oblivious of surrounding objects and was also at such times deaf, and that on the day he was killed he was so partially demented, these facts were not known to defendant’s employees and agents in charge of its train.”

The case was tried in the district court without a jury and plaintiffs’ demands were rejected. They have appealed.

We do not find any serious differences between the evidence of both sides. With little or no exception, it is all reconcilable.

The train that killed decedent was a through freight, making the run from Marshall, Tex., to Boyce, La. It consisted of 70 cars, 55 loaded and 15 empty, plus locomotive, tender, etc., carried a load of 2,973 tons, and was moving at the rate of from 25 to 28 miles per hour. These cars averaged 40 feet long, thus making the entire train over 2,800 feet in length.

Charley Johnson was on defendant’s track traveling easterly, and the train was moving in the same direction. He was ■about midway between Williams station and Cupples crossing when struck down. The distance between the station and crossing is about one-half mile.

When the train rounded the curve, about two miles west of the station, its whistle was blown. Several witnesses farther distant than decedent testified to having heard it. A short distance before reaching the crossing, the whistle was again sounded—two long and two short blasts—followed, in a very short interval of time, by a succession of shrill blasts, in an effort to attract decedent’s attention to the train moving down upon him.

The engineer of the train testified that, when about 150 yards of deceased, he realized that the warnings were not having any effect on him; .that he was making no effort to get off of the track, and it was then that he shut off the engine throttle and ■ began making preparations to stop. This evidence is corroborated by that of other members of the crew. The engineer stated that he first discovered deceased on the track when about three-fourths of a mile from him. All of the witnesses who were observing deceased immediately prior to and at the time of the accident agree that he was walking slowly down the track apparently absorbed in the study or reading of a paper he held in his hands and at no time made any move or did any act that indicated he was conscious of the train’s approach.

The train was making about 20 miles per hour when deceased was struck, and 28 ears passed over his body before a stop could be made. Assuming that the engineer began to check the train when 450 feet from point of accident, it required over 1,600 feet to bring the train to a stop. The brakes of the train were in good condition. It usually requires 2,400 feet to stop a train of this kind, according to the evidence. •

Counsel for plaintiffs, after recounting the facts of the case, submits that the principal question of fact before the court is: Could the engineer have avoided the accident?

There is no doubt that the engineer could have brought his train to a dead stop within the three-fourths of a mile that intervened between him and the deceased, had he begun taking steps to do so immediately after recognizing deceased on the track. He could, also, have brought the train under such control within said distance as to have stopped it within 450 feet. The question arises: Under the circumstances, was the engineer required to do either of these acts?

Counsel for plaintiffs, after stating that this case turns upon the doctrine of the-“last clear chance,” says: “We admit that it seems to be the settled doctrine of the State of Louisiana that persons in full possession of their faculties who walk along a track in front of an approaching train and do not avoid the accident by stepping off the track, that such negligence bars recovery”—citing Harrison v. La. W. Ry. Co., 132 La. 761, 61 So. 782; Wells v. M. L. & T. Ry. Co., 147 La. 58, 84 So. 493.

In the Harrison case, the court, after finding that the railway train had been run through the city of Lake Charles, where persons habitually walked on its tracks, at a rate of speed twice that permitted by ordinance, and without any lookout by the engineer, was culpably negligent, yet denied recovery for death of a pedestrian where the evidence showed that deceased was guilty of contributory negligence in failing to keep any lookout for train, which he knew was due, and could have avoided the accident at any time by stepping of the track.

In the Wells case, the facts were that deceased flagged an approaching train in order that his friend might get aboard, and, assuming that the train would respond to the hail and stop before it reached him, proceeded to walk down the track and was killed. His contributory negligence barred recovery.

The syllabus of this case, in part, is:

“The engineer of a train has the right to assume that a man who knows of its approach will not remain on the track and be run over.”

In the course of examination of the engineer in charge of the train that killed Charley Johnson, the following questions were asked and answered by him:

“Q. When you sounded that alarm, what did you expect him to do?
“A. I expected him to take some notice of my train approaching and get off the rails.
“Q. Did you know this negro?
“A. No, sir, I did not.
“Q. Did you know that at the time he was insane?
“A. No, sir, I did not.
"Q. Did you know he was deaf?
"A. I did not.
“Q. You assumed him to be a normal man in possession of his faculties?
“A. I did.
“Q. As you continued to approach him, did you give him warning again?
“A. I did.
“Q. About bow far were you from him when you gave this series of short blasts?
“A. I’ll say about 150 yards from where he was struck.
“Q. Then you realized—when you saw that he did not pay attention to that one, what did you do?
“A. I shut my engine throttle off, and began.making preparations to stop.
4c 4c 4s 4t 4« :)< 4c 4c
“Q. Then when you really did begin to try to stop, it was too late to do any good?
“A. Impossible to stop after I realized he was not going to get off.
4c 4c 4c4c* * 4c *
“Q. Don’t people usually on the track, when you sound a whistle, turn around or give some indication of having heard it?
“A. Some of them do and some of them don’t.
“Q. Don’t you become suspicious and alarmed that something might happen if they do not give any indication of not having heard your alarm?
“A. I do not, because I see them daily along the track, in front, never look back or to the side, until just before the engine gets to them, step off and smile.
“Q. Then you depended solely on the man stepping to avoid the accident?
“A. I expected him to have enough human intelligence to step off the rails.”

Plaintiffs also cite the following cases in support of their contention that defendant is liable: Jacoby v. Gallaher, 10 La. App. 42, 120 So. 888; Betz v. I. C. R., 161 La. 932, 109 So. 766; Belle Alliance Co. v. T. & P. Ry. Co., 125 La. 777, 51 So. 846, 19 Ann. Cas. 1143; Gibson v. T. & P. Ry. Co., 10 La. App 678, 121 So. 382; Jones v. C. R. I. & P. Ry., 4 La. App. 457; Id., Jones v. Chicago, R. I. & P. Ry. Co., 162 La. 690, 111 So. 62. None of these cases are in point. The facts are not on all fours with those of the instant ease.

The decisions draw a line when considering the last clear chance doctrine, between cases where injury has occurred to children or drunken people by railway trains, and those where the injured person is grown and to all appearances in normal condition, mentally and (physically.

It has frequently been held that, if the engineer sees children playing on the track ahead, or near thereto, or sees a person lying on the track or against the ties, or in any other position indicating him to be abnormal or intoxicated, a greater degree of care and caution is required, and if such a situation becomes known to the engineer in time for him to stop his train or slow down in time to avert the accident, and he does not do so, the doctrine of the last clear chance applies, and the railway company will b.e held liable, though there 'be contributory negligence on the part of the injured person. Gibson v. T. & P. R. Co., 10 La. App. 678; Jacoby v. Gallaher, 10 La. App. 42. And many cases cited in these decisions.

However, that rule does not apply when the engineer looks down the track and sees a grown person walking leisurely along. He has the right to assume that such person will exercise ordinary care and prudence to protect himself from injury.

We do not think a decision of this case turns upon application of the last clear chance doctrine.

Here, we have a train over 2,800 feet long, carrying a heavy load, moving at a not excessive rate of speed in an open country, which could not be stopped, after applying all the means available, under 1,600 feet or more. It would be unreasonable to require, and the law does not require, the crew to slow down the train nor bring it to a stop every -time an adult person is seen ahead walking on the tracks apparently in possession of his senses.

In Schexnaydre v. T. & P. Ry. Co., 46 La. Ann. 248, 14 So. 513, 49 Am. St. Rep. 321, the court held:

“Where a party goes on a railway track for the purpose of using it as a highway, he, to a certain extent, assumes all risks, and it would require very gross negligence, amounting to malice, to make the railroad company liable to him; and this rule applies with greater reason when the injured party has a safer mode of travel by a public highway.
“Greater care, caution, and prudence are required of a deaf-mute who goes on the railroad track than from one in the full ¡possession of all his senses. If he uses the roadbed as a highway, placing himself in a situation where hearing is one of the essentials of safety, it is negligence on his part.” Nelson v. T. & P. Ry. Co., 140 La. 676, 73 So. 769.

The evidence discloses that Charley Johnson, the deceased, suffered from mental lapses, and that this condition was accompanied by partial deafness, but these infirmities were unknown to defendant’s train crew. The evidence further shows that a gravel highway nearby parallels the railroad where deceased was killed.

In Hebert v. L. W. Railroad, 104 La. 483, 29 So. 239, it is held:

“The engineer of a train running on schedule time, on its own right of way, in the open prairie, away from any town or crossing, is not called upon to immediately slacken its speed from the simple fact that a trespasser sitting upon the ties does not at once rise and change his ¡position on receiving warning of the approach of the train by the ringing of the bell and the blowing of the whistle, duly and properly given.
“The engineer has the right to assume that he will ultimately obey the signals, and is not held to presume, in the absence of some special circumstance, that the inaction of the trespasser is due to some physical cause or infirmity which prevents his leaving the ties.” Cook v. Ry., 130 La. 917, 58 So. 767; Nolan v. I. C. Ry., 145 La. 483, 82 So. 590; Saitta v. Y. & M. V. Ry., 153 La. 1099, 97 So. 261.

Corpus Juris, volume 52, page 604, under the title, “Right to Presume that PSrson Will Leave Track or Avoid Danger,” says:

“It is a well settled rule that, where the railroad employees in charge of a train see a person on or near the tracks in advance of the train, unless they know or can see from his condition, qr his conduct, or from the surrounding circumstances that he will not or cannot retire to a place of safety in time to prevent an accident, they have a right to presume that such person is of sound mind and good hearing and eyesight,' and that such person will make a reasonable and proper use of his senses; and where the proper alarm signal or warning, as by bell or whistle, is given to him of the approaching train, they have a right to act on the assumption that he will hear and heed the warning when given, and will retire to, or remain in, a place of safety in time to prevent injury from the approaching train of which he has knowledge or of which, by the ordinary use of his senses, he should have knowledge.” The author cites the three cases mentioned above.

There is another legal principle which makes the doctrine of the last clear chance inapplicable in this case, even if it be conceded that defendant was negligent. Decedent, afflicted by infirmities, as he is shown to have been, should have exercised greater care and caution when on defendant’s tracks than a person in full possession of his faculties and senses. He did not exercise the prudence the law required of him by keeping a lookout for approaching trains. His conduct on this score rendered him guilty of negligence, and this continued down to the moment of the accident. If the negligence of deceased is concurrent with that of defendant to the moment of the tragedy, no recovery will lie. Harrison v. Ry. Co., supra; Gibbs v. I. C. Ry. Co., 11 La. App. 697, 123 So. 186; Castile v. O’Keefe, 138 La. 479, 70 So. 481; Hudson v. N. O. Ry. & Light Co., 147 La. 56, 84 So. 492.

This doctrine was applied in the very recent case of Jarrow v. City of New Orleans, 168 La. 992, 123 So. 651. In this case, the court reaffirmed its holdings in the Harrison and Castile cases. Also applied in Thompson v. Morgan, 167 La. 335, 119 So. 69.

Plaintiffs take the position that, as pedestrians habitually used defendant’s track about Williams station to travel on without objection from defendant, the deceased, when killed, was a licensee, while, on the ■other hand, defendant contends that he was a trespasser.

The evidence shows that the railway runs through a plantation country where decedent was killed, not thickly populated; that footmen freely use the track to travel on during the winter or bad weather, though there is nothing to show that they were invited or authorized to do so. At the point where the accident happened, the right of way is fenced.

Under this state of facts, the Supreme Court has frequently held that the person so using a railway company’s tracks is a trespasser.

In Castile v. O’Keefe, 138 La. 479, 70 So. 481, the court said:

“A trespasser on a railroad track, who fails to make use of his eyes, to keep him,self informed of the approach of trains,, will, in case of injury, be held guilty of such contributory negligence as to bar recovery, notwithstanding the concurrent failure of the servants of the railway company to keep a proper lookout.” To the same effect is Sanders v. T. & P. Ry. Co., 118 La. 174, 42 So. 764.

In the Castile case, supra, page 482 of 138 La., 70 So. 481, 482, the court remarks:

“While the evidence shows that pedestrians used the railroad embankment and tracks as a passageway, there is nothing to suggest that such use was licensed by the railroad company. As a matter of common observation, it is practically impossible for a railroad company to prevent tramps and other trespassers from walking. on its tracks.”

If deceased was a trespasser, defendant owned him no duty, except a negative one of not wantonly and maliciously doing him injury. Savage v. Tremont Lumber Co., 3 La. App. 704.

In our opinion the judgment appealed from is correct, and it is hereby affirmed.

ON APPLICATION FOR REHEARING

PER CURIAM.

Counsel of plaintiffs in application for rehearing in this case has incorporated therein citation of authorities in support of his position, together with earnest and forceful argument of his own.

It is alleged that we erred in our opinion herein in holding, or apparently holding, that an insane person may be contributorily negligent to such extent as to bar recovery of damages for injuries sustained by him.

There are varied kinds and degrees of insanity. Because one is of unsound mind or of weak mind, he may be referred to as insane, yet he may have an acute sense or power of discrimination, especially in the presence of danger. No one will contend, nor did we hold, that a maniac, or one totally bereft of all ability to appreciate right from wrong, danger from safety, could legally contribute to negligence.

The deceased, Charley Johnson, the evidence clearly shows, was not, on the day he was killed, nor had he ever been, in such mental condition, nor had he ever experienced such mental lapses, as would render him totally void of the power to discern danger or dangerous conditions, patent to all, who could guard against them.

A rather unique situation is disclosed from the record in this case which was not touched on in our original opinion. For the light it will throw on the case, our original opinion, and our action in denying the application for rehearing, we now-brief ly go into the matter.

The petition substantially -sets forth that deceased “was of unsound mind, addicted to temporary partial insanity and when thus afflicted, was oblivious to his surroundings and totally or partially deaf, dependent upon the degree of insanity; that when killed he was (partially demented, etc., * * Defendant by its supplemental answer admits these allegations of' fact, but disclaims knowledge of such on part of its train crew. Ordinarily these averments; together with the admission of defendant, would close the question. However, plaintiff’s own testimony contradicts the allegations of the petition on this point, which shows that deceased was not totally insane nor partly deaf. We quote her testimony, given on direct examination, so far as pertinent to this issue:

“Q. Was Charley (referring to deceased) hard of hearing? He could hear all right? Was he weak-minded?
“A. Yes.
“Q. Would he have spells?
' “A. He didn’t have any spells, not that I know of.
“Q. You say he was.-weak-minded?
“A. Well, he -was kinder weak-minded.
“Q. Could he hear as good as we can?
- “A. Yes, sir.'-
“Q. When he was weak-minded could he' hear as well then as at other times?
“A. Yes, sir,; he'never had any spells.
“Q. What would he do when he was weak-minded?
“A. Nothing.
“Q. How did you know that he was weak-minded?
“A. He didn’t have as much sense as he ought to have, but he was all right. He was a good worker.
* * * * * ❖ *
“Q. How many bales of cotton did he raise the year before he died?
“A. Nine or ten bales, sometimes.”

It appears that deceased owed his landlord quite a large account, for one of his condition, and it worried him. There is evidence in the record to the effect that when killed, he was returning from a trip to see a Mr. Bonner to whom he had gone for assistance in his business affairs, as appears from the following testimony of plaintiff:

“Q. Did you know he was going to Mr. Bonner?
“A. Yes, sir.
"Q. Did he tell you what he was going up there for?
“A. He told me he was going to see about arranging his business.
“Q. He was planning on moving with ■ Mr. Bonner, wasn’t he?
“A. He must .have.”

Deceased -was no doubt not of strong mentality and when worried revealed a shortcoming in this respect not . uncommon to members of his race. His widow positively states that when these conditions prevailed his hearing was good, seemingly unimpaired. He had been - on a business mission of first importance to. him, that of arranging his old account and preparing for the coming year’s operations. Some intelligence was required to do this.

Hehearing refused.


author: WEBB, J.

text:
    No. 3335
    Second Circuit
    MEYER v. SOUTHWESTERN GAS & ELECTRIC CO.
    (April 9, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)
    Dimick & Hamilton, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis, Wilkinson & Burford, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

Defendant, Southwestern Gas & Electric Company, a public service corporation, doing business in Caddo parish, La., and plaintiff, Lionel L. Meyer, entered into a contract on July 17, 1924, which contract reads as follows:

"Parish of Caddo, State of Louisiana.
"This contract and agreement made and entered into by and between the Southwestern Gas & Electric Company, and Lionel L. Meyer, a resident of said Parish and State (hereinafter called the ‘Consumer’), witnesseth:
“That whereas the Consumer is desirous of securing an extension of the electrical line of the Company to his residence on Cross Lake, Caddo Parish, Louisiana, a distance of approximately one and one-half (1 Vz) miles, and whereas the Company is willing to make such extension;
“Now, therefore, in consideration of the mutual covenants and agreements hereinafter set forth, the parties hereto agree with each other as follows:
“Extension and ” Payment
"Article 1. The Company will extend its electrical line approximately one hundred twenty-five (125) feet, known or designated as one pole, from the terminal of its present line, free of charge to the Consumer. The’ Consumer agrees at the time of the acceptance of this agreement to pay to the Company the sum of Seven Hundred Fifty-six & 40/100 ($756.40) Dollars on account of the cost of constructing said electrical line, in excess of said free extension of one pole. Said line to be single phase, 2200 volt.
“Refund
"Article 2. The Company agrees to refund to the Consumer the sum of Twenty-five & no/100 ($25.00) Dollars for each new consumer connected on the excess part of the line which has been paid for by the undersigned consumer, such refund to be made on the fifteenth day of the month following that in which the new consumer is connected, provided, however:
“First. The total refund to the consumer shall not exceed the amount paid by the consumer as stated above;
“Second. At the expiration of three years from the date hereof all right of the consumer to a refund as above shall cease, even though the entire sum paid by the consumer has not been refunded.
“Title and Ownership
“Article 3. The Company shall at all times have title to and complete ownership and control over said extension and shall have the right to use the same for the purpose of serving other customers.
“In witness whereof the parties hereto have set their respective hands to this agreement, in duplicate, at Shreveport, Louisiana, on the 17th day of July, 1924.
“[Signed]
“Lionel L. Meyer, Consumer.
“Southwestern Gas & Electric Co.,
“By L. L. Westcoat, Vice-President.”

The present suit arises out of a difference of opinion relative to the construction of article 2 of the contract, as quoted above. Plaintiff contends that under the stipulation that defendant would refund to him $25 for each new consumer connected on the. excess part of the line, he was entitled to a refund for each new consumer where the power or electricity supplied was transmitted to the premises of the consumer through any part of the extension line which was paid for by him; while defendant contends that plaintiff was entitled to a refund only for each new consumer where the power supplied was transmitted directly to the premises of the consumer from that part of the extension line paid for by plaintiff, or that plaintiff was not entitled to a refund where the new consumer was supplied with power from a lateral line connected with the extension line, or rather such part of that line which was paid for by plaintiff, which is hereinafter referred to as the “extension line.”

On trial plaintiff’s construction of the contract was adopted by the court and judgment rendered accordingly, from which judgment defendant appeals, urging that articles 2 and 3 of the contract should be read together and that so read, the contract shows that the parties understood and agreed that defendant was not to make any refund to plaintiff for new consumers who were directly supplied with power from any lateral line connected with the extension line.

While the- contract must be read as a whole, it is clear that, considering the cost of constructing the extension line was paid for by plaintiff, article 3 of the contract, under the heading of “Title and Ownership,” was written for the purpose of clearly expressing the intention of the parties as to the ownership of the extension line and not to explain article 2 of the contract. But aside from that, we do not think that the provisions of article 3 furnish any aid in construing article 2 of the contract.

Considering the contract as a whole, we are of the opinion that the agreement of defendant to make a refund to plaintiff for each new consumer connected on the extension line, would include new consumers who were supplied with power transmitted through the extension line, which would include new consumers when the power was transmitted to their premises, either directly from the extension line or a lateral line connected with the extension line; and this construction finds some support in the- admission by defendant that plaintiff was entitled to a refund for each connection made with the extension line by lateral lines constructed by defendant.'

The contract was drawn by defendant, obligor, and if there is anything ambiguous or obscure in the obligation of defendant to make refunds to plaintiff for, each consumer connected on the extension line, which is apparently conceded; the ambiguity arose from the -failure of defendant to explain the extent of its obligations, and any doubt relative to the construction of the contract must be construed favorably to plaintiff (articles 1957, 1958, Civ. Code).

We are of the opinion, therefore, that the stipulation relative to the refund to be ¡made by defendant for new consumers connected on the extension line, included new consumers where the power supplied was transmitted to their premises through the extension line, but if it may be said that, the stipulation does not clearly express the intention of the parties, or that the obligation of defendant was to refund for all new consumers where the power was transmitted to their premises through the extension line; yet considering the contract as a whole, there is at least a doubt relative to whether or not the stipulation included all new consumers where the power suppliéd was transmitted over the extension line, or only such new consumers where the power supplied was directly transmitted to their premises from the extension line, and that the doubt must be construed against defendant.. ,

The judgment appealed from • is therefore affirmed. • ■ . . .


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    No. 3132
    Second Circuit (Second Division)
    SHAW v. KNIGHT ET AL.
    (May 7, 1931. Opinion and Decree.)
    (June 11, 1931. Rehearing Refused.)

      Barksdale, Bullock, Warren, Clark & Yan Hook, of Shreveport, attorneys for plaintiff, appellee.
    Harry V. Booth, of Shreveport, attorney for defendants, appellants.
   TALIAFERRO, J.

On June 25, 1924, plaintiff, by written act, leased to K. D. Poultry Company, composed of C. G. Knight and his wife, Kate Dambly Knight, for a period of eighteen months, beginning July 1, 1924, and for a monthly rental price of $200, six acres of his plantation, north of Bossier City, in the parish of Bossier (on which was located a poultry plant), with all improvements thereon, with some exceptions fixed in the lease.

The following are among the undertakings plaintiff, lessor, bound himself to perform:

(1) To furnish lessees- three four-room cabins -to be occupied by -their laborers.-

(2) To install, within 30 days from date of lease, a tank so situated as to furnish sufficient supply of water to chicken house, poultry plant, and dwelling house occupied by defendants, lessees, during all -hours of day and night.

(3) To drain roadway from gravel road at railroad track to front -door of poultry plant and cover sam.e with sufficient coat of cinders, gravel, or rock, so that said road would be passable for automobiles, trucks, etc., in all kinds of weather, and within 60 days from date of lease.

(4)To furnish straw or hay for hen houses, plow chicken runs, etc.

The contract of lease was signed by lessor and lessees, and by J. Dambly, as guarantor for the payment of the monthly rentals.

Lessees occupied the leased premises and paid rent thereon until July 1, 1925, when, after giving plaintiff written notice many days prior of their intention to do so, they vacated the premises, moving into the city of Shreveport. This suit followed.

Plaintiff seeks to recover judgment against the lessees, and their guarantor, in solido, for $1,200, with 5 per cent interest from July 1, 1925, being the amount of rent for the unexpired term of the lease contract. He also sued for $525 alleged damages to improvements on the leased land caused by lessees, but this demand was voluntarily dismissed and non-suit taken, after trial, but before judgment.

Plaintiff avers that he complied with all of the obligations assumed by him in the lease agreement; that defendants abandoned the lease without good cause, and ■have declined to pay the balance due thereunder.

Defendants admit they vacated the leased premises July 1, 19ÍÍ5, “due to plaintiff’s numerous violations of- his obligations, under the lease agreement”; and that demand had been made on them for • the rent sued for, but deny that they owe plaintiff any amount whatever. They aver that plaintiff did not discharge the agreements made by him in the contract of lease, but on the contrary violated his covenants with defendants, in the following respects, which forced them to vacate the leased premises, viz.:

(a) That he failed to furnish the three four-room cabins for laborers.

(b) That he utterly failed to provide adequate supply of water.

(c) That he failed to build the roadway from railroad to front door of poultry plant.

(d) That he failed to furnish straw and hay for hen houses, except for about two months.

And “that they importuned plaintiff constantly to remedy these conditions, demanding him to carry out the obligations he assumed under the contract with them,” and seeing that he would not do so, no other course was open to them than to vacate the leased property.

Defendants C. G. Knight and his wife reconvene against plaintiff, and state: That they were engaged in the wholesale milk-fed poultry business; that to operate such a business successfully, it is necessary to handle' and dispose of poultry at certain times, which generally runs from seven to fourteen days, when the poultry is on the feed, and, if not handled promptly, it will depreciate; that to cope with these conditions, it is necessary to' have regulan labor on the premises; that plaintiff’s failure to furnish the cabins mentioned in lease contract caused them to be without labor at critical times; that labor would be brought from the city of Shreveport, but, for lack of housing facilities to accommodate them, they would return after a day or two.

They aver that in November and December, they purchased 16,942% pounds of turkey, which should have stood a normal shrinkage of ten per cent for killing and dressing, or 1,694 pounds, but in fact the shrinkage was 2,706 pounds in excess of that amount, which loss in weight is directly attributable to shortage of labor necessary to kill and dress the turkeys at proper times, which lack of labor was due to plaintiff’s- failure to provide the houses he agreed to; that said 2,706 pounds of turkey could have been sold for $0.35 per pound, or a total of $947.10; that they could have purchased 40,000 pounds additional turkey which could have been sold for $.40 per pound, at a profit of 10 cents on the pound, but for lack of houses for labor they did not make further purchases; and as a result their losses on the turkeys they handled and loss of anticipated profits. on those they could have handled amounted to $4,947.10.

That, on account of insufficient water supply, they were damaged $500, for loss of time, inconvenience, and expense in carrying water to meet the requirements of their business.

That, by reason of plaintiff’s failure to build cinder roadway, they were damaged $25, being amount they expended to complete the road.

That they had to purchase peet moss to amount of $50, on account of plaintiff not furnishing hay and straw provided in the contract.

They were forced to sell at a sacrifice price nineteen steel chicken cages as an incident to their moving from the leased premises, sustaining a loss of $379.30 thereon, and, finally, they claim damages to the amount of $250, for miscellaneous expense incurred by them in moving from leased premises, all by reason of plaintiff’s violation of his contract with them. The total of the various elements of damage claimed is $6,151.40.

Defendant J. Dambly admits signing the lease as guarantor of the rental payments therein stipulated, and adopts the answer of his co-defendants, and the defenses by them urged, as his own.

The lower court gave plaintiff judgment for the amount sued for, and defendants judgment on their reconventional demand for $10.66, the amount expended by them for peet moss, after plaintiff failed to provide hay and straw, as agreed in the lease.

Defendants prosecute this appeal.

The record in this case is voluminous. The note of evidence covers 340 pages. The testimony is conflicting.

Defendants’ counsel, in brief, restricts their claims for damages, on their reconventional demand to the following items, viz.:

Excess shrinkage on turkeys 2708 pounds, at 40 cents...................$ 1,042.80
Loss on sale of steel chicken cages ........................... 379.30
Plumbing expense new quarters____ 75.00
Expense of removing_______________________ 46.50
Total----------------------------------------------$ 1,543.60

Prom this position, it is. evident defendants have abandoned all other claims for loss and damages set up in their reconventional demand. This narrows the issue between plaintiff and defendants to whether plaintiff substantially complied with his obligations, under the contract of lease, with respect to furnishing the cabins for defendants’ laborers and providing adequate water supply.

Plaintiff’s plantation of some 3,500 acres surrounds the poultry plant and premises leased to defendants C. G. Knight and wife. To afford water to work stock, tenant houses, and other portions of the place, where needed, he has an elevated tank of about 25,000 gallons capacity, supplied with water from a deep well. This tank is filled twice daily to overflowing. Water mains connect with this tank and are laid beneath the ground. These extend over the plantation so as to conduct water for the purposes above mentioned. On the mains there are storage or reserve tanks to impound water to meet emergencies that might arise at the source of supply. The poultry plant of plaintiff, leased to defendants, is supplied with water from this system. The water system of the plant was installed according to Mr. C. G. Knight’s ideas and desires. After the lease was signed, plaintiff erected an additional storage tank of 1,500 gallons capacity near to and for the use of the poultry plant. The connections with this tank were so arranged that when filled the inflow of water could be cut off, thus holding the entire tank in reserve, and at the same time water from the mains and laterals would supply the plant.

These water systems were designed by competent plumbers, and it is clearly shown that they meet the demands made upon them.

It is possibly true that at times the water supply ran low and the pipes froze, but as defendants’ busiijess only 'required, as a rule, some six hundred gallons daily, they could and should have guarded against such happenings, especially as to freezing. It is an experience common to all of us that water pipes will freeze during very cold, weather, if not drained, causing in- I convenience and injury.

. We are of the opinion plaintiff discharged his obligations' with respect to the water supply to defendants.

It is contended by defendants that under the terms of the contract of lease plaintiff was obligated to erect three four-room cabins on the land affected by the lease, while plaintiff controverts this construction of the contract, taking che position that by making available on his plantation, within reasonable distance of the poultry plant, houses the equivalent of those described in the contract, was a fulfillment of contract on this score.

In construing the word “furnish,” as employed in' the lease agreement, it is well to consider the surrounding circumstances at the time of the signing of the contract. Prior to this date, C. G. Knight and plaintiff operated the plant. The latter was well acquainted with the surroundings. He lived on the leased premises with his wife. Plaintiff’s plantation has something like 75 tenant houses on it. Many of them within one-fourth of a mile of the poultry plant premises, and at date of lease contract nearly all, if not all, of the labor employed at the plant, were living in plaintiff’s houses not on the leased premises.

The evidence, though conflicting, makes it reasonably clear that there were houses within reasonable distance of the plant, available for defendants’ labor at all times. Some of these were not more than seventy-five yards distant*

We agree with plaintiff’s construction of the clause in the lease agreement with regard to the furnishing of houses for defendants’ labor. Going a step further, even should we admit that plaintiff did not meet his obligation fully about furnishing the houses, as contemplated in the contract, it does not. follow, nor is it proven, that defendants’ losses, if any, directly resulted from this failure of duty. So many factors, entered into this poultry sales business, affecting the question of profits or losses, that it would be practically impossible to fix responsibility for lack of success on any one of them.

Plaintiff argues, that this poultry sales venture was unprofitable from the beginning, and for that reason defendants were anxious to rid themselves of it. There is much in the record to support this. Mr. C. G. Knight admits in his testimony that he lost money on all the turkeys he purchased, but ascribes his losses to the lack of houses and water. He resumed the business in Shreveport, after quitting the lease with plaintiff, but soon thereafter secured employment at a. salary with a packing company.

Defendants make the point that, since plaintiff resumed possession of the leased premises, following defendants’ removal therefrom, and held same during the unexpired part of the lease term, he is precluded from suing to collect the unearned rent. This question was not raised by the pleadings, and the lower court so held. However, there is some evidence on the point in the record, and it tends to show, in fact does show, that plaintiff secured a man as caretaker on the property, without compensation to himself. The lessor has the right to take possession of the abandoned leased premises in furtherance of its protection and conservation.

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


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    No. 3926
    Second Circuit
    PAYNE v. PRESTRIDGE
    (February 26, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)
    C. B. Prothro, Booth & Grafton, of Shreveport, attorneys for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, and J. B. Crow, of Shreveport, attorneys for defendant, appellant.
   McGREGOR, J.

This suit grows out of a collision on October 24, 1929, on Highland avenue in the city of Shreveport, at or near the place where Kirby place runs into it on the west side, but extends- no further. It is alleged by the plaintiff that on that day at about 1 o’clock p. m. he was traveling south on Highland avenue on his policeman’s motorcycle, and that as he approached a point where Kirby place runs into Highland avenue, and while he was traversing that part of Highland avenue that is at the end of Kirby place, a Packard automobile owned by defendant, but operated by his chauffeur, Zeke Kennedy, was suddenly driven diag- ■ onally across and out of Highland avenue ■ directly in the path of the plaintiff. It is alleged that, in making this left turn off Highland avenue with the intention of turning west on Kirby place, the defendant’s chauffeur was grossly negligent; that this action on his part was so sudden and abrupt that he (the plaintiff) had no chance or opportunity to escape from the path of the on-coming automobile, and that as a consequence he was violently struck and thrown from his motorcycle a distance of several feet down Highland avenue in the same direction in which he was traveling. As. a result of the collision the plaintiff alleged that he received severe lacerations, bruises, and contusions on both legs, and especially to his knees. He further alleges that he received internal injuries in the lower abdominal region and other severe and permanent injuries to his nervous system. He brings this suit for $12,*500 for damages sustained by him in his person because of the collision. The case was tried by a jury, and judgment was rendered for the sum of $500 and all costs in favor of the plaintiff. The defendant has appealed, and the plaintiff answered the appeal asking that the judgment be raised to the amount originally prayed for, and that the fees of all the doctors who testified as expert witnesses be fixed at $25 each.

Since the case was tried and since the appeal was lodged in this court, the plaintiff has died, leaving a wife and two minor children. The wife and mother qualified as natural tutrix for her minor children and has been properly substituted herein as plaintiff in her representative capacity, and the case is now being continued in her name.

At the trial in the lower court the defendant denied all negligence, and in the alternative pleaded contributory negligence on the part of the plaintiff. In the defendant’s car at the time of the accident there were five men. On the front seat there were the colored chauffeur and the defendant himself. On the back seat there were three business associates of the defendant. The four men were prominent lumber men and highly respected citizens. The negro chauffeur had been in the employ of the defendant for twenty years and was considered a careful and safe driver. The plaintiff had been a member of the Shreveport police force for several years and bore a good reputation. As far as can be determined, all the witnesses in the case are high-class citizens whose characters are above reproach. The trial of this case lasted two days, and able counsel on both sides, contested every inch of ground. The record is voluminous, and it would not be practical or profitable to review it all here. The first thing to be determined is whether the defendant’s chauffeur was negligent, and, if he was, then it must be determined whether the plaintiff was guilty of contributory negligence.

The evidence shows conclusively that at the moment of the collision the defendant’s Packard automobile was going slowly; that it was in a diagonal position facing northwest; that it was south of the center of the imaginary intersection of Highland avenue and Kirby place; and that it was making a left turn to enter Kirby place on the west. It is equally conclusive that, while the defendant’s automobile was thus making a left turn, the plaintiff, riding his motorcycle, endeavored to pass in front of the automobile and to continue his way on down Highland avenue on the west side. In plaintiff’s petition he alleges, that he was violently struck by the automobile and thrown several feet. We do not find from the evidence that defendant’s automobile struck the plaintiff’s motorcycle, but the truth is, as we read the testimony, defendant’s automobile suddenly came into the path of plaintiff and his motorcycle. Plaintiff endeavored to pass in front of the automobile and to continue his way on down Highland avenue. In this effort he was. almost, but not quite, successful. In the effort to pass in front of the automobile, the back wheel of the motorcycle came in contact with the left front fender of the automobile. This could not have happened in this way if the automobile had been making the left turn in a lawful manner. This indicates that the automobile is bound to have been in a diagonal position in the street. If it . had come to the north of the middle of the intersection of the streets as the law requires, the collision would not have happened. All the evidence is, conclusive of the fact that the collision occurred while and because the automobile was “cutting the corner.” It must be admitted that the most dangerous movement on public streets or highways is the left-hand turn. Particularly is this true when the street on which this turn is attempted is a right of way street as Highland avenue is in the city of Shreveport. Any one driving south on Highland avenue has a right to presume that his passage will not be impeded by any one at intersections. One intending to turn off this street on the left, which necessitates crossing the street and interfering with or cutting two lines of through traffic, must use the utmost care and caution. He- has. no right of way across. He must bide his time. If necessary, he must give the proper warning to the traffic behind him and come to a full stop and await a favorable opportunity to turn off the street when he will not interfere with traffic in either direction. He must not be content with holding out his. hand and suppose that all see it. He must look both ways and be sure he is safe before he undertakes to go ahead. In this case the left-hand turn was made by the negro chauffeur. It was his judgment that had to be used. For aught that the evidence discloses, this chauffeur undertook to make the left-hand turn without even seeing the approaching motorcycle, even though it was in plain view, as is testified by defendant’s witnesses. If he did this, it was plain negligence. We do not know what he saw, as we have not been favored with his testimony. He was not called as a witness, though he was available. Defendant’s counsel admit' that they did not call him,’ for the reason that they were afraid to put him on the stand and let him be subjected to cross-examination by plaintiff’s counsel. They feared that counsel would get him confused and make him say things that he should not. We think his testimony was very necessary, and failure to call him is bound to militate against the defendant.

In their brief counsel for defendant cite three cases. (1) Le Boeuf v. Benoit, 3 La. App. 669. This is a case of a collision between two cars going in the same direction when one of them was run into while it was making a left-hand turn. This is not-a parallel case with the one at bar. (2) Cahn v. Hoffman, 3 La. App. 688. This case does not involve the making of a left-hand turn, and it is not, therefore, applicable to the case at, bar. (3) Poster Couvillion v. G. W. Zoder, 2 La. App. 339. In this case the plaintiff is shown by his own testimony to have been going at a reckless rate of speed after he had seen the danger. The facts of that case are so different from those of the case under consideration that it has no application.

In discussing the extreme care required of all those making left-hand turns, Judge Odom, in the case of Lewis v. Gulf Refining Co. of La., 7 La. App., 499, said:

“Under all the rules and practices, aside from any statutory regulations, the driver of a motor vehicle on a much travelled street, as\ this was, who desires to make a left turn across the street, must be particularly careful and on the alert for cars meeting or overtaking his, and must not make such turn until he is sure the way is open.
“It, is a particularly dangerous and. hazardous move to make, and he must use the greatest precaution.”

In the case at bar, if defendant’s chauffeur had paused two or three seconds, the plaintiff would have gotten by. -He had the right of way and got more than halfway across the intersection before he came in contact with the obstruction negligently placed within his path by the defendant’s chauffeur. We therefore find that the defendant’s chauffeur was guilty of the grossest kind of negligence in driving the Packard automobile into and across the path of -the on-coming motorcycle. It remains now to determine whether plaintiff was guilty of contributory negligence.

Counsel for defendant argue that, when plaintiff discovered the Packard automobile in his path, he should have turned into Kirby place, and that, if he had done this, the collision would have been averted, and that in not doing so he was guilty of contributory negligence. We do not agree with this statement. If the plaintiff had suddenly turned into Kirby place in this manner, we do not think his motorcycle would have successfully made the turn. A perilous situation was suddenly created for the plaintiff by defendant’s chauffeur, and the plaintiff had to meet it quickly in the best way possible. If he committed an error of judgment under such circumstances, it is not contributory negligence on his part. Prom the evidence it appears that he pursued the course that would have been taken by the ordinary careful driver. He had the right of way. He had a right to presume that this automobile would not undertake to cross to its. left ahead of him, and, when it did, he did all that was humanly possible to avoid the collision by running around in front of the automobile and by endeavoring to continue on down Highland avenue in the direction in which he was traveling. In doing this he struck the left front fender of the automobile, and his motorcycle was upset. It probably traveled a few feet before it fell. The distance he traveled was by his own momentum and- the traveling of the motorcycle after the collision. It was none the less, however, caused by the negligence of the defendant’s chauffeur in placing the Packard automobile in his path as an obstruction.

A jury of twelve men heard and saw all the witnesses testify, and their verdict was in favor of the plaintiff, and we see no reason, manifest or otherwise, for disturbing this- verdict, bat think that is correct and should be sustained.

The plaintiff has answered the appeal and asks us to raise the amount of judgment and also to increase the amount of the fees of the physicians who testified as expert witnesses in the case. It is a rule of the court never to disturb the verdict of a jury as to the amount of damages allowed unless there is manifest error in the same. We do not find such in this case. We cannot' see any causal connection between the accident and the physical condition of the plaintiff at the time of the trial. In fact, that condition had not arisen at the time of the filing of the petition, and there are no allegations covering it. As to the fees allowed to the witnesses testifying on the trial of the case, we do not find that those matters come within the province of this court. We think matters of that kind are wholly within the discretion of the trial judge.

Por the reasons assigned, the judgment appealed from is affirmed, the defendant and appellant to pay the costs of both courts.