text:
    No. 9641
    Orleans
    MRS. ROGER A. DILL, Appellant, v. DR. E. C. COLLEY
    (October 5, 1925, Opinion and Decree.)
    (November 30, 1925, Rehearing Refused.)
    (January 4, 1926, Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Automobiles — Par. 4 (c), 4 (d).
    Regulations concerning the speed of automobiles must be obeyed and if an injury results to a pedestrian from their violation the driver must answer for the damage.
    2. Louisiana Digest—Courts—Par. 60.
    It is the duty of the Courts to see that ordinances enacted for the public safety should be rigidly enforced in aid of the remedy for the mischief sought to be guarded against.
    3. Louisiana Digest—Automobiles—Par. 4.
    When the driver of an automobile has created a dangerous condition from which damages resulted he will not be heard to -excuse himself by the plea that owing to that condition he could not avoid the damage.
    4. Louisiana Digest—Negligence—Par. 14.
    A defendant is liable in damages resulting from his negligence if by proper care he could have avoided the damage, even if the person injured was originally guilty of negligence and created the situation of damage to himself.
    5. Louisiana Digest—Damages—Par. 105.
    Three thousand dollars damages allowed for fracture of skull and concussion of brain.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Civil District Court Div. “G”. Hon Sam A. LeBlanc, Judge.
    This is a suit arising out of an automobile accident in which the plaintiff was run down by an automobile.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    H. W. Robinson*, of New Orleans, attorney for plaintiff, appellant.
    J.Zach Spearing, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

Plaintiff was run down by an automobile of the defendant and sues him for damages.

Plaintiff avers that on August 16, 1922, at about 8 o’clock a. m., she was standing on the downtown river side of St. Charles and Eighth Streets seeking to cross St. Charles Street in the direction of the Lake; that she looked and listened before entering upon the asphalt roadway; that she saw an auto approaching about 400 feet away and believing that she would have time to cross started to do so; that before she had crossed an auto driven by the defendant E. C. Colley, approached at a high rate of speed in excess of 25 miles, prohibited by the traffic laws, struck her and threw her to the ground, dragging her for a considerable distance; that the defendant was guilty of negligence in driving his car as one of the three automobiles driven abreast down St. Charles Avenue plaintiff further alleged that she received a concussion of the brain and was scarred about the face and head, and received brush burns and contusions all over her body; that she was taken to the Touro Infirmary where she was operated on for bone pressure against the brain, on both -sides of the skull resulting in being permanently scarred; that she remained in the Touro Infirmary a period of fifteen days until August 31st, when she was taken to her home where she remained confined to her bed a period of two weeks until September 20th; during all of which time she suffered great pain; plaintiff claims the following damages:

Suffering ______________________________________________$ 5,000.00
Temporary injuries ____________________________ 5,000.00
Permanent __________________________________________ 3,000.00
Future __________________________________________________ 5,000.00
$18,000.00

The defendant admitted a collision at or near the corner of St. Charles Avenue and Sev'enth Street between his automobile and the plaintiff, but denied all the other allegations. He further alleged “that the accident was caused entirely through’ the fault and negligence and want of care of the plaintiff, who without warning and in disregard of the rules of the road and of safety suddenly ran in front of plaintiff’s automobile which was moving at a moderate rate of speed and less than allowed by the City Ordinance or the law; that when plaintiff ran in front of respondent’s automobile his said automobile was so close to plaintiff that it was imposssible to prevent the collision notwithstanding respondent did all in his power to prevent the accident”.

The case was tried by a jury who returned a verdict for the defendant, by a vote of 9 to 3.

Thereupon a judgment was rendered for the defendant.

The plaintiff appealed.

There is very little conflict in the testimony. The facts as we find them are as follows:

The defendant was the owner of an Overland automobile which he drove himself. On the morning of the accident he left his home on Napoleon Avenue at about eight o’clock to go down to his office in the Godchaux Building; on his way along Napoleon Avenue he picked up four gentlemen to drive them down town; Messrs. Wilson, Englisbee, Green and Orchard. They all four testified. They drove up Napoleon Avenue to St. Charles Avenue, thence down towards Canal Street, at a rate varying from 15 to 20 miles an hour; there was much congestion on the road. When they reached Ninth Street they travelled abreast or nearly abreast with two other automobiles; one towards the river side near the sidewalk driven by John J. Zollinger, defendant’s car in the middle a few feet to the rear, and a third near the neutral ground. On the river downtown side of Eighth Street upon the roadway a few feet from the sidewalk stood the plaintiff, waiting to catch a street car to go down. As the three cars approached, her in the position above described the plaintiff started to cross the stret; Zollinger saw her, swerved his car to the right and stopped and thus avoided the plaintiff. The plaintiff proceeding found herself directly in the path of the oncoming defendant car, which struck her with the headlight or fender, knocked her down, dragged her some distance and inflicted upon her the injuries described in her petition.

We think the defendant liable. He violated the traffic ordinance and his violation was the direct cause of the accident.

1st He was travelling at an excessive rate of speed at the particular place and under the conditions prevailing at the time of the accident. •

It is true that the speed limit is restricted at 25 miles on right of way neutral ground streets. But that rule is modified by the ordinance itself and hy surrounding conditions.

The last sentence under the title of “Caution to pedestrians, drivers, and operators of vehicles” on page 2 of Street Traffic Ordinance No. 6173 contains this warning:

“Drivers and operators of vehicles should on their part drive slowly and cautiously when crossing street intersections and making turns.”

And upon p. 14 of the same ordinance is this modification:

“Reckless driving, nothing in the foregoing sections shall be so construed as to mean that vehicles shall not at all times be driven with due regard to the rights and safety of others on the public streets, or that the speed may at any time be greater than is safe and proper under the conditions then obtaining.”

Section 19 of Act 120 of 1921, p. 286, being an Act to regulate vehicles using the highway of the State reads as follows:

“Sec. 19. That subject to parochial and municipal regulations every person operating a motor vehicle on any highway or road in this State shall run it at a rate of speed at no time greater than is reasonable and proper having regard to the traffic and the use of the highway or road and the safety of the public. * ® *
“It shall be prima facie evidence of a rate of speed greater than is reasonable as aforesaid if a motor vehicle is operated • * * at a rate of speed greater than ten miles an hour where the chauffeur’s view of the road traffic is obstructed whether upon approaching the intersection of highways or roads, or in traversing a railway or highway crossing or in going around a corner or curve in a street or highway.”

It will thus be seen that the rate of speed fixed by the Ordinance is not a license to use it under all conditions but only a rule that it shall not be exceeded in any ease.

How fast an automobile may be driven under given conditions is a question to be decided by the customary rules of care and negligence. Huddy, S. 279, 332, 443, 444; Eichorn vs. New Orleans & C. R. Light & Power Co., 112 La. 244, 36 South. 335.

The evidence is that Zollinger accelerated the speed of his car when he reached Eighth Street and that he was some feet ahead of the defendant’s car. Zollinger says that when he saw the plaintiff walking in front of his car that he stopped within fifteen feet. The defendant said that running at 15 miles an hour he could stop within twelve feet.

We conclude that if he had reduced his speed on approaching Eighth Street, as he was directed to do by law and reason, that he could have seen the plaintiff and stopped his car and thus avoid the accident.

It was an automobile driver’s duty, when he approached a street crossing where people were. constantly crossing, to have the automobile under full control, so that it could be stopped quickly in event of emergency. Duffy vs. Hickey, 151 La. 274, 91 South. 742; Fernandez vs. Montz, 151 La. 302, 91 South. 742; Southall vs. Smith, 151 La. 967, 92 South. 402; Mequet vs. Algiers Mfg. Co., 147 La. 364, 84 South. 904; Wilkins vs. Featherstone Transfer Co., 156 La. 601, 100 South. 732.

There is no evidence that the defendant slackened his speed as he approached Eighth Street. On the contrary, it appears that he continued running at the same rate of speed. It was only after he struck the plaintiff that his speed was reduced, until he reached nearly the corner of Seventh Street when he stopped a distance of about 150' feet.

“Statutory and Municipal regulations, as to the speed of automobiles, are to be obeyed, and, if an injury results to a pedestrian from a violation of such a regulation, the driver, as a general proposition, must answer for the damages.” Huddy, Sec. 444; Tessier 82; Qrl. App., Nos. 8820, 8905, 9205.

2nd, The defendant has also violated another provision of the traffic Ordinance.

Sec. 1 of Article 1 of the same Ordinance provides;

“A vehicle, except when passing a vehicle going in the same direction shall keep to the right and as near the right hand curb as possible.”

Sec. 2;

“Divided Streets, on any avenue, street or boulevard, divided longitudinally by a parking or walk, vehicles shall keep to the right of such division. On streets so divided all vehicles except when in the act of passing a vehicle ahead, shall keep to the right of the center of the roadway so as to permit the passing of faster moving vehicles on the left.”

Sec. 3:

“(d) No vehicles shall attempt to pass two other vehicles which are driving abreast, or nearly abreast.”

The meaning of those sections evidently is that there - shall be only two lines of travel upon the street, one composed of automobiles running behind each other at ordinary speed, slow moving, and the other composed of automobiles running at a faster rate so as to pass the former, or fast moving. The middle course is prohibited, so that no automobile can legally drive in the middle between these two lines, so as to form a dangerous congestion, and bring about the conditions which existed at the time of this accident.

When Zollinger, the driver of the car near the sidewalk, reached Eighth Street he saw the plaintiff standing at the corner and she saw him.

She passed in safety of his car and Zollinger avoided her by swerving to the right. Not so however with the defendant. He did not see the plaintiff standing at the corner, and when she suddenly stood in front of his car, to use his own language, it “just looked like it came out of the earth in front of me and I was about 10 or 15 feet away from her”. She did not see him either. Zollinger’s car intervened between them and intercepted the view of both. The plaintiff had seen Zollinger’s car, had calculated her distance, and passed in front of it in safety. If defendant had not been running his car in the middle of the street and the two lines of cars, the plaintiff when she stopped in the middle, as defendant says she did, would have escaped unhurt.

The defendant himself testifies;

“When I saw her I saw I would run completely over her; she was standing with face turned towards me and completely dazed it seemed, and after the car passed toward the right curbing she looked like she was running past that and that she stopped still in front of me.”

If the defendant had been running at a reduced rate he might have stopped within 10 or 15 feet after he saw her. Zollinger stopped within 15 feet, and the defendant testified that going at 15 miles he could stop his car “when going 15 or 16 miles an hour in 10 or 15 feet, absolutely stop”.

It is the duty of a chauffeur on approaching a crossing to have his car under control. Duffie vs. Hickey, 151 La. 274, 299, 967.

The defendant's plea is that he did not see the plaintiff and could not see her.

But he brought on that situation himself; the very situation which the ordinance intended to reach and prevent. It was his fault if he did not see plaintiff and slie could not see him. “An automobile driver cannot put himself in a position where, in order to save himself, he must run into some one else, and then plead that he could not help it, and therefore is not liable.” Southall vs. Smith, 151 La. 969, 92 South. 402.

“Q. Now, your being six or eight feet behind the machine on your right, did not screen your view of the Eighth Street intersection as you approached it, did it?
“A. Well, no; but it (did) screen the object though that was standing close to the curbing; if there was anybody standing there it would screen me from seeing a person running in front of the other machine.
“Q. Then your answer is that you could not, because you were six or eight feet behind the car on your right, see anybody attempting to cross this St. Charles Street roadway from your right; that is your answer?
“A. I could not say any more than that.”
“Where a street railroad company had created a confusion and noises and car tracks at a crossing, it was bound to use extraordinary care in handling its cars there to prevent injuries to pedestrians.” Hanna vs. New Orleans Ry. & Light Co., 126 La. 634, 52 South. 855.

In the case of Carroll vs. N. O. Ry. and Lt. Co., 125 La. 898, the court said on p. 902:

“We have recently had occasion to refer to an ordinance of the City which makes it the duty of the motorman in charge of a car on one or two lines of parallel tracks, who would see a car upon the adjacent parallel tracks stop to discharge a passenger, to stop his own car in order to give time to any passenger who might attempt to cross the street in the rear of the other car, time to do so in safety.” Jones vs. New Orleans Ry & Light Co., 123 La. 1060, 49 South. 706.
“The terms of the ordinance do not cover this case, but the principle upon which the ordinance is founded finds direct application to these narrow streets along which there runs a single line of railway tracks, with reference to the duty of a motorman to secure the safety of a person who might seek to cross the street directly in the rear of a wagon.
“The motorman testified that he was unable to see Mrs. Carroll by reason of the intervening wagon and horses; but that is the very reason why he should have exercised special and additional caution in the management of his car. He was obliged to know that, if he could not see any one on the crossing because of the intervening wagon and horse, for the same reason a person at the crossing would not have seen the car. He should therefore, have governed himself accordingly.” Shields vs. Fairchild, 130 La. 648, 58 South. 497.
“It is the duty of the court to see that ordinances enacted for the public safety should be rigidly enforced in aid of the remedy for the mischief sought to be guarded against.” Jones vs. New Orleans Ry. & Light Co., 123 La. 1060; Moren vs. New Orleans Ry. & Light Co., 125 La. 944, 52 South. 106.

But as a matter of fact the defendant had been attempting for a long distance to pass the two other vehicles which were driving abreast or nearly abreast of him.

“Q. Now, I am asking you whether you came down in that situation of three abreast practically from where you came into the Avenue down to Eighth Street?
“A. Not all the way, but as far as 50 or 80 yards you may say, we were about three abreast.”

At the instant of the accident he did actually pass the Zollinger car on his right and the other on his left.

The defendant has charged contributory negligence on the part of plaintiff. But the plaintiff was not guilty of any negligence. She had no reason to believe that the defendant would be driving between two other cars in violation of the law. But even so, her negligence was not the cause of the accident. It was defendant’s failure to stop in time to ' prevent the accident. In Hanna vs. New Orleans Ry. & Light Co., 126 La. 634, 52 South. 855, the court said:

“Where a street railway motorman, approaching a crossing, had the last clear chance of stopping the- car and preventing the striking of plaintiff, a pedestrian from the rear had he been looking, but did not see plaintiff until it was too late to prevent a collision, his lack of care was the proximate cause of the accident.” McGuire vs. V. S. and P. Ry. Co., 46 A. 1543, 16 South. 457.
“A railroad company is liable in damages for personal injuries resulting from the negligence of its engineer, who had the last clear chance to avoid the accident, even if the person injured was originally guilty of negligence in creating the situation of danger to himself and others.” Jones vs. Mackay, 137 La. 121 (128), 68 South. 379; McClanahan vs. Vicksburg, S. & P. R. Co., 111 La. 781, 35 South. 902; Schwartz vs. New Orleans & C. R. Co., 110 La 534, 34 South. 667.
“Where that which one uses is an agency of an extraordinary dangerous character, the law throws upon the user the burden of the greater care.” Moren vs. New Orleans Ry. & Light Co., 125 La. 944, 52 South. 106.

The only remaining question is the amount of the damages.

Dr. Urban Maes testifies that the plaintiff was brought to the Touro Infirmary unconscious bleeding from both ears; it was only the next day that she began to show some little signs of awakening and four or five days after she became conscious she had a fracture of the base of the skull with hemorrhage and concussion of the brain; she was operated on, the operation consisted in the cutting through the skull and exposing of the brain controlling the bleeding points, and a removal of parts of the skull on both sides above the ears an inch and one-half to two inches in diameter; she remained in the hospital about eleven days then taken home. At the end of six weeks she was barely able to get about and was slowly recovering; for the first few days while she was unconscious she suffered little but afterwards considerably; she has two scars on either side of the head one-quarter of an inch wide by three inches long; her injury brought on a sagging eye lid though the sight is not affected; her injury is not permanent.

The plaintiff testifies that she was earning at the time of the accident about $15 a week; that she was earning at the time of the trial April 2, 1924, about the same; she went out of the house for the first time about the fifth week; her hair was shaved off; she has not entirely recovered; the holes in her head are not healed up yet; she lost several teeth; 'she is 23 years old; was married at 19 and obtained a divorce. The Supreme Court allowed $1500 for the loss of teeth. Long vs. American Ry. Exp. Co., 150 La. 184, 90 South. 563.

In the case of Cusimano vs. Spies, 153 La. 551, the jury returned a verdict of $12,500 which the Supreme Court reduced to $3000. In that case the plaintiff suffered only a fracture of the base of the skull and remained at the hospital a week or ten days when he was discharged not cured but better. “Within one month after the accident he was sufficiently able to attend to his own affairs, to file this suit and to sign the petition personally”. In the present case the injuries were much more severe and the plaintiff was disabled for a longer time. But Cusimano died three and a half months after the accident.

We have concluded to allow the plaintiff Three Thousand Dollars.

It is therefore ordered that the verdict and judgment herein be reversed and set aside; and it is now ordered that there be judgment in favor of plaintiff Mrs. Theresa Caubin divorced wife of Roger A. Dill condemning the defendant, Dr. Eugene C. Colley, to pay her the sum of Three Thousand Dollars with five per cent interest per annum from November 17,' 1922, until paid and all costs of suit.


source: Caselaw Access Project

author: BELL, J.

license: Public Domain

text:
    No. 9,920
    Orleans
    CYRIAQUE ROY AND WIFE v. LEON ISRAEL, Appellant
    (November 30, 1925, Opinion and Decree.)
    (January 4, 1926, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Automobiles — Par. 4 (c), 7 (a). ’
    Where a trolley ear traveling on a two-way street has stopped at an intersecting street corner to discharge a passenger leaving the front of the car, it is negligent for the driver of an automobile, while trailing the car, to pass around and to the left of it. Under such circumstances, the passenger suing the driver may recover damages notwithstanding the fact that as a pedestrian she has elected'to cross the street or roadway at a point in front of the car rather than upon the intersecting street in the rear of the car.
    2. Louisiana Digest—Automobiles—Par. 4.
    Those who travel in motor vehicles owe reasonable care even to jay-walkers.
    (Civil Code Art. 2315. Editor’s note.)
    Appeal from the Civil District Court, Parish of Orleans, Division “D”, Hon. Porter Parker, Judge.
    This is a suit for damages for physical injuries to a child arising out of an automobile accident. The plaintiffs sue in their own behalf and for the use and benefit of their minor child. The defendant makes counter charges of negligence.
    There was judgment for plaintiffs and defendant appealed. Plaintiffs asked for an increase in judgment.
    Judgment affirmed.
    Guión and Lambremont, of New Orleans, attorneys for plaintiffs, appellees.
    John May, of New Orleans, attorney for defendant, appellant.
   BELL, J.

Plaintiffs sue defendant on their own behalf and for the use and benefit of their minor child in the sum of $2,000.00, claimed as damages for physical injuries and loss of employment, resulting from an automobile accident which occurred in the City of New Orleans on the late afternoor or evening of October 10, 1923, at the corner of Dumaine and N. Gayoso Streets.

The litigants make counter charges of negligence based upon alleged violations of the city traffic ordinances. The facts in relation to the accident are practically undisputed.

There was judgment for plaintiffs in the sum of $500.00.

Answering defendant’s appeal, plaintiffs now pray that the judgment be increased to the sum of $1000.00.

Mary Roy, plaintiff’s daughter, while employed at the rate of $15.00 per week, was returning from her Work on the day of the accident as a passenger in a street car. The car stopped at the corner of Dumaine and N. Gayoso streets for the purpose of discharging her and other passengers. She alighted from the front of the car as it faced out Dumaine street towards the lake, and immediately from that point, some 35 or 40 feet from N. Gayoso "street, she proceeded, while facing the upper or south sidewalk of Dumaine street, to cross over the upper roadway of Dumaine street. She had nearly reached the sidewalk curbing when struck by the left front wheel of defendant’s automobile, which caused her to be thrown or knocked down into the street and against the curbing. Defendant’s automobile had been following behind the trolley car for several blocks. When the car stopped at the upper corner of Dumaine and N. Gayoso streets, defendant did not bring his automobile to a stop or await the discharage of passengers from the car, but proceeded around the car to its left and into the upper roadway of Dumaine street, to the point of the accident. He does not seem to have seen the girl at any time prior to striking her, although he says he was quite certain there was no vehicle between his car and the point of the accident. It does not appear that he gave any signal of his approach while turning into the upper roadway; none of the four or five witnesses present at the time and place of the accident are able to say that they heard any horn blown, and defendant himself does not testify that he gave such a signal. His account of the accident is briefly stated as follows:

“Q. State to the court what happened.
“A. On October 10, 1923, about 6:30 in the evening, I left my place of business and drove out Orleans to Broad, Broad into Dumaine; at the intersection of Dumaine street there was a street car, that is, on the other side, and I trailed the street car, stopping at each corner until I got to the intersection of Gayoso street, and I swerved tlie car to the left-hand side of the street car; seeing the way clear, I continued on my journey. I was just about six feet from the front of the street car when a human form appeared before my car and I struck her with the left front fender.”

We find, from the facts in this case, that defendant was guilty of negligence in several respects. The traffic ordinances of the city of New Orleans, known as C. C. S. 7490, which went into effect on October 1, 1923, nine days before the accident in question, contain the following pertinent provisions:

Art. 1, Sec. 10, par. (e):

“No vehicle shall pass a street car while same is stopped or about to stop to take on or let off passengers, except on the following streets, when the speed of the vehicle shall be reduced in passing cars about to receive or discharge passengers:” (Streets designated, but Dumaine street not listed). “All one-way streets, provided vehicles shall pass to the left of the street car at a greatly reduced speed.”

• Art. 1, Sec. 15:

“The following are designated one-way streets, and traffic shall move on said streets only in the direction herein designated: * * * Dumaine street, west, Decatur to N. Rampart.”

We first note, in considering the foregoing provisions of the ordinances, that Dumaine street is not a one-way street further west than North Rampart, and it follows, therefore, that "at the place of the accident, which was on Dumaine street, near the corner of N. Gayoso street, several blocks west of North Rampart street, that Dumaine street was a two-way street. Defendant was therefore violating the rules of traffic while driving west or toward the lakeside of the city to have at any time driven to the left of Dumaine street. Furthermore, defendant violated Section 10 of Article 1 by failing to come to a full stop immediately behind the street car while he was on Dumaine street in that portion of the street, which was a two-way street. Furthermore, defendant violated the ordinances in failiing to give a warning of his approach while attempting to violate the traffic rules in the respect already noted. We must assume that he knew the law, and if he elected to violate it it was his duty to aT least give a signal of his approach.

On the other hand, defendant contends that, under Article VII, Section 3, of the traffic ordinances, his vehicle had a right of way over pedestrians, between street intersections, and further, that jay-walking, under Section 4 of the same article, is prohibited. This latter section reads as follows:

“Pedestrians shall cross streets only at right angles and at street intersections, and shall not cross street intersections diagonally.”

It is true that if plaintiff’s daughter had been more cautious she would not have elected to cross Dumaine street from a point directly in front of the street car from which she had alighted, but would rather have returned some 35 feet toward N. Gayoso street, and at that point negotiated the crossing in her attempt to reach the south or upper sidewalk of Dumaine street. However, she had a right to presume, even from the point at which she stood before stepping into the street, that no motor vehicle could be approaching her from her left side, the traffic direction at that point being from the lake to the river, or from her right side. She was also entitled to some signal or notice from the defendant that he was attempting to pass on that portion of the street which was not open to him under traffic regulations. We also are inclined to believe, from the facts of this case, that the young lady had all but reached the sidewalk towards which she was traveling, and we cannot believe that in this situation defendant was. unable to see her had he looked for any object on that side of the road, before o’, after entering into it.

For these reasons, we are of the opinion that defendant was grossly negligent in the respects noted, and that the proximate cause of the accident was attributable to such negligence. The judgment against him was correct.

Able counsel for defendant has argued that, even if defendant was negligent in violating any of the traffic laws, plaintiffs’ daughter was likewise so, and that she had the last clear chance to avoid the accident. We do not subscribe to this view of the case. On the contrary, we are satisfied that from the moment defendant swerved into the upper side of Dumaine street he had a clear view of the roadway, for he says himself: "Seeing the way clear I continued on my journey.” Applying the doctrine announced, by this court in Gibbons vs. Terminal Company, et al., 1 La. App. 371, and Norwich Union Indemnity Company vs. Charles Cohen, 1 La. App. 512: the defendant, in the instant case, having looked, should have seen the young lady who was undoubtedly in the roadway for a time long enough for him to have brought his car to a full stop before hitting her. The fact that she was a pedestrian momentarily in the wrong path assigned to her by the traffic laws did not relieve the defendant of the care due her or any other -pedestrian under similar circumstances. Latham vs. Umbach, 9785 Orl. App.

We find that the last clear chance to avoid this accident was with defendant rather than with the injured one.

We are asked to increase the quantum of damages allowed, but we do not feel justified in doing so for the reason that the injuries suffered by plaintiffs’ daughter do not seem to have been more than severe contusions, 'nor to have existed much more than a month after the accident. Dr. Roy Harrison testifies that he examined the young lady on November 23, 1923, at his office in the Hibernia Bank Building; that he made a complete examination of her back and, he believes, of her right leg, those portions of her body which appear from her evidence to have been injured. This witness says that the examination was negative, that though the young lady walked with a limp he found no evidence of physical disability or traumatism, and that he found nothing to indicate that she was justified in limping. Other evidence found in the record satisfies us that the young lady has recovered completely from the physical disabilities sustained, and that her injuries, while temporarily painful, were in no manner serious. Believing that she was able to return to work within a month or six weeks after her accident, and that it was not the physical injuries which prevented her from so doing, we are not disposed to award her damages for loss of employment beyond that time. We think the damages as allowed are fair and reasonable, and that same should not be increased.

It is therefore ordered that the judgment appealed from be affirmed, at defendant’s cost, in both courts.


text:
    No. 9999
    Orleans
    CECILE HOLTHAUS, Appellant, v. THE LANE COTTON MILLS COMPANY
    (November 2, 1925, Opinion and Decree)
    (November 30, 1925, Rehearing Refused)
    (February 2, 1926, Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Prescription — Par. 130.
    Until the fact that the injury sustained and sued for under Article 2315, R. C. C., has been actually known by the injured party, prescription, under Articles 3536 and 3537, does not begin to accrue.
    2. Louisiana Digest—Pleading, Par. 62; Master and Servant—Par. 160 (i).
    A petition, appearing on its face as an action ex delicto, which fails either to allege that plaintiff’s employment was not governed by Employers’ Liability Act or which fails to contain a prayer that, in the alternative, should it be decreed that plaintiff’s action is covered by the Employers’ Liability Act, relief be granted thereunder; held, insufficient to support a cause of action.
    3. Louisiana Digest—Appeal—Par. 201; Pleading—Par. 54.
    “A total lack of a cause of action may be taken advantage of by exception at any stage of the proceeding, even in the Supreme Court.” Yeasey vs. Peters, 142 La. 1012.
    Appeal from the Civil District Court of the Parish of Orleans, Division “C”. Hon. E. K. Skinner, Judge.
    This is an action in tort for damages for physical injuries particularly to the eyes. Defendant filed exceptions no cause of action, vagueness and prescription. The District Court sustained the exception no cause of action.
    Plaintiff appealed.
    Judgment affirmed.
    J. Q. Flynn, of New Orleans, attorney for plaintiff, appellant.
    St. Clair Adams and Leslie Moses, of New Orleans, attorneys for defendant, appellee.
   BELL, J.

This is an action in tort for ten thousand dollars, brought under Article 2315 of the Civil Code. Plaintiff alleges that on August 15, 1921, while employed by defendant in its cotton mills at New Orleans, a belt, attached to the running gear of the machinery, broke, causing a piece of the iron coupling attached to the belt to strike plaintiff in the head; that as a result of such accident plaintiff suffered injuries enumerated in the petition (particularly to her eyes), for which she seeks damages in the amount stated. It is further alleged that the dangerous imperfections of the machinery Were well known to defendant. Suit was not filed until September 23, 1924, over three years after the accident. It is charged in the petition that the officers of the defendant corporation conspired with its physicians, who treated plaintiff, to conceal from her the injuries which she had actually sustained; that the effects of this conspiracy continued until M!ay, 1924, when she was advised by physicians which she herself employed that she had really been injured seriously, and was told by her physicians that she had lost her sight in one eye and would, in all likelihood, lose her sight in the other eye. This charge of conspiracy appears, from argument and brief presented by appellant’s counsel, to have been wholly abandoned on appeal. The usual charge of negligence is made against defendant, its servants and agents. Defendant pleaded the following exceptions:

1. “That said petition does not set forth or state a right or cause of action.
2. “That said petition is so vague and indefinite and lacking in specifications of fact that your defendant is unable to safely and properly plead thereto.
3. “That defendant does hereby expressly plead the prescription of one year applicable to suits for personal injury.”

Plaintiff has appealed to this court from a judgment of the District Court, reading as follows:

“The exceptions herein filed on September 20, 1924, having been tried and the court considering said exceptions to be well founded, for the reasons orally assigned:
“It is ordered that the exception of prescription of one year be maintained, and that plaintiff’s suit be dismissed at her cost.”

The phraseology of the judgment just quoted permits of some doubt as to whether the trial court intended to maintain the exception of no cause of action as well as the exception of prescription. Be that as it may, and taking—as we must—the allegations of the petition to be true, for purposes of both exceptions, we are of the opinion, under the ruling made in Jones vs. Texas & Pacific Railroad Company, 125 La. 542, 51 South. 582, that the exception of prescription was improperly maintained. We must be governed by the jurisprudence established in the Jones case, which has not been qualified by subsequent decisions of the ,Supreme Court, not even by that of Reynolds vs. Reiss, 145 La. 155, 81 South. 884, cited in appellee’s brief.

Defendant, as appellee, has reasserted and filed in this court, as was done in the District Court, its exception of no cause of action. Had no such exception been pleaded originally, we are of the opinion, after careful examination of the petition before us, that plaintiff, under the facts of her employment, as therein set forth, had no other right of recovery against the defendant than that which might have been accorded her under the Employers’ Liability Act of this state (Act 20 of 1914 and its amendments).

The action brought by plaintiff is one ex delicto under Article 2315 of the Civil Code. There are no allegations in the petition that plaintiff’s employment was not governed by the Employers’ Liability Act, nor is there any prayer found in the petition by which plaintiff has sought to obtain recovery under said Act if the court should decree her action to lie thereunder. It follows, therefore, under the frequent rulings of the Supreme Court, that the petition totally lacks any averments that would support a cause of action. Under such conditions as here noted, it is well established that an exception of no cause of action to such a petition may be filed at any stage of the proceedings, even in the Supreme Court. Veasey vs. Peters, 142 La. 1012, 77 South. 948; State vs. Winehill & Rosenthal, 147 La. 781, 86 South. 181; C. P. 902.

It has been held that where an exception of no cause of action pleaded in the lower court is there overruled, and is not again urged in the appellate court by way of answer to an appeal taken by the plaintiff, the ruling as made by the trial court is final and cannot be reviewed on appeal. Dorsett vs. Thomas, 152 La. 60, 92 South. 734, and authorities cited. The law is that where such an exception is reiterated and pleaded in the appellate court, it will be duly considered.

The contention of defendant is that the. petition does not show a cause of action under Article 2315 of tlie Civil Code, but that from the allegations of fact found in the petition, it must be taken as a presumption of law that the action, if any, which plaintiff has, arises under the Employers’ Liability Act. However, it is contended by appellee, and we find it to be true, that the petition contains no demand whatever for compensation under the Employers’ Liability Act. Following a most recent ruling of the Supreme Court made in the case of Labourdette vs. Doullut & Williams Shipbuilding Company, 156 La. 412, 100 South. 547, we cannot supply such a demand nor allow amendment in this proceeding so as to permit plaintiff to bring herself in this suit within the demands which might be pleaded under Act 12 of 1914. In the Labourdette case, as in this case, the action was brought under Article 2315, and an exception of no cause of action was originally filed but overruled by the trial judge. Upon a hearing on the merits, the court, reconsidering the exception, maintained it and dismissed the suit. The judgment of the trial court, however, reserved to plaintiff the right to sue for compensation under the Employers’ Liability Act. The Supreme Court, in reviewing the judgment, approved the ruling of the trial court which had maintained the exception, but despite the former pronouncement for liberality of pleadings in suits brought under Act 20 of 1914 (see Lamieux vs. Cousins, 154 La. 811, 98 South. 255), it refused to supply the demand to which plaintiff was apparently entitled under said Act and refused to consider the suit as brought under the Act rather than undér Article 2315 of the Civil Code. On this point the court, in the Labourdette case, said:

“In cases governed by the Employers’ Liability Act, the rights and remedies of .the employee and of his dependents to recover compensation are limited to those prescribed by the Act, and these exclude other rights and remedies. Philps vs. Guy Drilling Co., 143 La. 951, 79 So. 549. In fact, Section 34 of that Act (Act 20 of 1914) provides:
“ ‘That the rights and remedies herein granted to an employee on account of personal injury for which he is entitled to compensation under this Act shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, relations or otherwise, on account of such injury.’
“See also Paragraph 1, Section 3, Act 38 of 1918.
“Hence, as the presumption is that the employment of the deceased was governed by the provisions of the Employers’ Liability Act, so long as that presumption is permitted to remain, it must be considered that plaintiff’s claim for damages is excluded from the provisions of Article 2315 of the Civil Code. Hence plaintiff fails to show a cause of action under that article, which, it may be said, is the only law under which he possibly could hope to recover the damages alleged, -or any part thereof.
. “The next and last question is, can'plaintiff recover in this suit under the Employers’ Liability Act? In our opinion he cannot. The petition contains no demand for compensation under that Act, and the courts cannot supply such a demand. The prayer for general relief will not answer the purpose of a demand of that nature, resting, as such a demand does, upon principles different from those upon which rests a suit for damages under Article 2315 of the Code. See Colorado vs. Johnson Iron Works, 146 La. 68, 83 South. 381. In fact, plaintiff has not even suggested that he cares to sue for compensation under the Employers’ Liability Act, or that he considers himself entitled to compensation under it.”

Following the later ruling, as above noted, we conclude that the exception of no cause of action as originally filed and as again filed and properly pleaded in this court, is well founded, and that the judgment appealed from, insofar as it .has dismissed plaintiff’s suit, should be affirmed at plaintiff’s cost in both courts.


author: WESTERFIELD, J.

text:
    No. 10,203
    Orleans
    CORRADO GIACONA v. JOHN A. JULIANI
    (November 30, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Courts—Par. 128.
    In a concursus proceeding growing out oí a building contract, where the owner seeks to appeal from a judgment obtained by material man, ordering the inscription of a lien in the mortgage office, affecting his property, in the sum of $1160.00, this court has jurisdiction, notwithstanding the amount deposited in concurso is largely in excess of the maximum jurisdiction of the court, when the judgment involves only the right of the material man to record his lien and does not affect the amount of his claim.
    2. Louisiana Digest—Appeal—Par. 1; Mandamus—Par. 32.
    Appeals are favored in law, consequently, all doubts must be resolved in favor of the appeal. A judgment ordering the inscription of a lien against the property of an owner obtained in a eoncursus proceeding growing out of a building contract will be deemed to work irreparable injury, and mandamus will issue to compel the granting of a suspensive appeal.
    In re: Corrado Giacona applying for Writs of Mandamus Peremptory.
    Theo. Cotonio and W. Catesby Jones, of New Orleans, attorneys for relators.
   WESTERFIELD, J.

Relator seeks by mandamus a suspensive appeal from a judgment rendered by the Honorable Porter Parker, judge of Division “D” of the Civil District Court, on July 21, 1925.

The answer filed by the respondent judge challenges the jurisdiction of this court upon the ground that the amount involved is above the maximum jurisdiction as fixed by the Constitution and raises other issues which, in our opinion, are not relevant to the consideration of relator’s right to a suspensive appeal.

Corrado Giacona, plaintiff, relator herein, filed a petition in the Civil District Court, alleging himself to be the owner of a certain piece of property on the corner of Kerlerec and N. Derbigny streets in this city, and further alleging that, through one Ashton Blum, he entered into a contract with the defendant, Juliani, a contractor and builder, to erect certain buildings on his property for the sum of $16,200.00; that a surety bond was given by Juliani which was duly recorded in the mortgage office, as was the building contract; that he paid Juliani all he owed him under the said building contract except $3240.00; which sum he withheld because of numerous liens being recorded against his property by persons claiming to have furnished labor or materials employed in the construction of the buildings, and that the aggregate of such claims far exceeded the balance due by him to Juliani; that in order to avoid a multiplicity of suits, petitioner herewith tenders and deposits the balance due Juliani in the registry of the court. The usual prayer followed, some seventeen lien claimants and John Juliani were cited and, the proper order of court being obtained, the sum of $3240.00, alleged to be due Juliani, was duly deposited in the registry of the Civil District Court.

Two of the lien creditors objected to the bond given by the 'surety, one of the objectors being James Demoruelle & Sons, Inc. The objections were overruled by the Honorable Percy Saint, the judge before whom they were considered, who held the bond was in conformity with Act 262 of 1916, the building law then in force.

At the expiration of ten days following this judgment a certificate was obtained from the clerk of the Civil District Court as provided by Paragraph 5 of Section 1 of the building law, to the effect that no further objections had been made to the bond, and this certificate was presented to the recorder of mortgages, who thereupon erased all inscriptions against the plaintiff’s property, as he is required to do under the building law.

On October 2, 1923, something over a year following the action of the recorder of mortgages, James Hemoruelle & Sons, Inc., one of the objectors to the surety bond, filed a rule in which it was alleged that the clerk of court had no authority to issue the certificate and' the recorder of mortgages no authority to cancel the inscription of mover’s lien, and that, therefore, the recorder of mortgages should be ordered to reinstate all inscriptions against plaintiff’s property. This rule was made absolute and plaintiff refused a suspensive appeal.

Has the court jurisdiction is the first question to be considered.

The amount deposited in concursus, $3240.00, is, of course, above our maximum jurisdiction of $2000.00, but is the amount in controversy or fund to be distributed in excess of our jurisdictional limit, for that is the criterion.

The claim of James Demoruelle & Sons, Inc., the plaintiff in the rule which resulted in the judgment from which plaintiff desires to appeal, amounted to $1160.00. But the only thing in controversy is the right to inscribe a lien in the mortgage office for that amount against plaintiff’s property. As was freely admitted in argument, the claim of the plaintiff in rule, so far as the amount is concerned, could not be affected by any judgment-which this court could render on appeal. That being true, we cannot see how the entire fund deposited in the registry of the Civil District Court can be said to be the amount in dispute, and we think the claim of plaintiff in rule a fairer basis for fixing this amount, though even that is doubtful, since the right to have the lien recorded and not the monied demand of plaintiff in rule is the only issue determined by the judgment appealed from. In any event, we are satisfied of our jurisdiction. Succession of Pietri, 147 La. 642, 85 South. 623; Anticich vs. Mihaljvich, 149 La. 278, 88 South. 820; Weinfurter vs. Cresap, 155 La. 682, 99 South. 528.

is the judgment from which an appeal is sought final or interlocutory, and, if interlocutory, does it work irreparable injury? is the final question.

It was strenuously argued that tiie judgment is final and not interlocutory, and with some plausibility; but we are inclined to think it is interlocutory and that it is calculated to work irreparable injury. The inscription of the lien in the mortgage office, as ordered by the court in the judgment complained of, affects the merchantability of the property and is in effect an injunction without bond restraining the owner from selling or mortgaging the property. It is possible that an advantageous opportunity to sell the property might be forever lost to plaintiff as a result of this inscription. Moreover, the right of appeal is favored in law, and all doubts should be resolved in favor of the appeal.

For the reasons assigned, the alternate writ of mandamus heretofore issued is made peremptory, and it is now ordered that the Honorable Porter Parker, judge of Division “D”, Civil District Court, be and he is hereby directed to grant to Corrado Giacona a suspensive appeal, conditioned as the law directs, from the judgment in favor of James Demoruelle & Sons, Inc., and against Corrado Giacona, rendered on July 13, 1925, costs to this application to be borne by James Demoruelle & Sons, Inc.


author: CLAIBORNE, J.

text:
    No. 8936
    Orleans
    JOSEPH L. DAUTERIVE, Appellant, v. WEST INDIA TRANSPORTATION CORPORATION
    (December 14, 1925, Opinion and Decree.)
    (January 4, 1926, Rehearing Refused.)
    (February 2, 1926 Writ of Certiorari and Review Denied by the Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Brokers—Par. 15, 17.
    A broker is entitled to his commission when he has performed his part of the contract.
    2. Louisiana Digest—Brokers—Par. 18.
    His principal cannot deprive him of his commission by failing to execute the contract.
    3. Louisiana Digest—Obligations—Par. 17.
    A verbal agreement between parties where their minds have met upon all essential details is binding between them although they may have agreed that they would thereafter commit the contract to writing.
    Appeal from Civil District Court, Div. “A”, Hon. H. C. Cage, Judge.
    This is a suit for broker’s commission.
    There was judgment for defendant, and plaintiff appealed.
    Judgment reversed.
    Quintero and Quintero, of New Orleans, attorneys for plaintiff, appellant.
    Merrick and Schwarz and Chas. Rosen, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a suit for broker’s commission.

The plaintiff alleged that in April, 1919, in his capacity of broker he bought in Havana, Cuba, for account of the defendant one million gallons of molasses from the Cuban American Sugar Company of New York for August delivery at a price of not less than two cents a gallon; that said purchase was confirmed by defendants by letter dated June 21, 1919; that it was agreed between the plaintiff and the defendant prior to the purchase of the molasses, that the defendant was to pay the plaintiff for his services in purchasing said molasses the usual commission of one-fifth per cent per gallon; that the one-fifth per cent per gallon on the million gallons amounts to two thousand dollars which is the amount due to plaintiff for his services.

Defendant filed a general denial but admitted the letter of June 21, 1919; they averred that “the whole deal was abandoned because plaintiff and his principals, the sellers, would not carry out and did not carry out the sale and delivery of said molasses”; they further alleged that later on they purchased directly from the Cuban American Sugar Company 4,500,000 gallons of molasses at 2yz cents per gallon with which plaintiff had no connection whatever”.

There was judgment for defendant, and plaintiff has appealed.

In the year 1919, plaintiff was a broker residing in Havana. The defendants were engaged in the molasses business in Baltimore. Their President was J. F. Harper. The Cuban American Company did business in Havana and New York. Their President was R. B. Hawley. The plaintiff had been acquainted with both Harper and Hawley for many years.

On March 31, 1919, Harper wrote to plaintiff telling him that several cables had passed between them for the purchase of molasses but that so far they had not been able to get together; that owing to the condition of the market in New Orleans, Philadelphia and Baltimore, it was impossible to pay more than two cents per gallon Cuba to which must be added commissions; that there was a considerable better market than that figure if they had the molasses in storage where they could handle it in carload lots; that he had secured the cooperation of the Inter-Ocean Oil Co. to furnish him with tank steamers to transport all the molasses he might want to bring up and all the tank cars from a million and a half to three million gallons; that he was forming a corporation to be known as the “West India Transportation Company”, one-half of which would be owned by the Inter-Ocean Oil Co.; that there was a wonderful opportunity to build up a very successful business; that they had no connection on the Island; that they expected to buy their molasses wherever they could purchase it the cheapest and that accounted for the telegrams they had sent him; they had just received advice from one of their Philadelphia parties saying that they could probably use a million and a half gallons; that they presumed that he was in the brokerage business and would deal with any one who wanted to buy molasses; it was possible that a good business might develop between their corporation that was forming and himself; that the market was very unsatisfactory and that they could do but a limited business at present; but he could assure him that they would not make any firm offers or undertake to enter into any contract which they could not carry out, if he could see fit to make any offer on the tank situation and ears at Havana, that the Company would treat his proposition in a very fair manner.

On April 7th the plaintiff, Dauterive, wrote to Harper acknowledging receipt of his' above letter, and concluded as follows:

“I am at present in touch with planters offering about one million or one and a half million gallons; if you can make me a firm offer of two cents plus %c commission, I might be able to swing the deal; this is for April delivery, as after that they will either store it with the Cuban D. Co. or sell locally.” That he had taken offices at the Banco Nacional 514 and that he would be very glad to offer him, such cargoes as he might want to purchase.

On April 9th, Harper wired to Dauterive:

“Practically no demand now, get your principals consign cargo; we pay freight, duty and furnish steamer and storage and will guarantee price not less than two cents P.O.B. steamer Cuba, answer.”

On April 10, Dauterive wired Hawley the contents of the above message.

To which Hawley answered on April 12th:

“Advise your friends send Vessel immediately million gallons on terms stated I assume their entire responsibility, answer.”

On April 12th, Dauterive wired a reply to Harper as follows:

“Have closed deal for you as per your conditions your cable ninth send ship immediately to Puerto Padre load one million gallons from Chaparara consign ship to Cuban American when can we expect vessel ready to load answer.”

To this cable Harper answered April 13th “cable received will arrange steamer advise depth water”.

Dauterive answered Harper April 15th:

“Cable received depth 23 feet can load in 24 hours. When can we expect steamer. Have notified shipper.”

On April 12th Dauterive wired to Hawley:

“Your telegram received. Have advised consignees to send vessel to Chaparra immediately for one million gallons molasses on the terms cabled me on the eighth inst. and etc.”

On April 17th Dauterive again wired to Harper:

“When can we expect steamer answer.”

On April 18th Harper wired to Dauterive :

“Find vessel Inter-Ocean assigned for April 25th been carrying heavy Mexican crude and so constructed impossible clean they will assign us another vessel but some delay unavoidable can you hold deal open hope to advise definitely first week answer.”

On April 19th Dauterive wires Harper:'

“Deal held open hurry steamer and advise.”

On April 17th upon the letterhead paper of the “West India Transportation Corporation” Harper writes to Dauterive:

“We have been thrown in the air very badly over the discovery that the tank steamer which the Inter-Ocean Oil Co. assigned us for (to) bring up this cargo of molasses on April 25th has some 27 Cylindrical tanks with man-holes not large enough to admit a man to get inside and clean them and as the vessel - has been carrying heavy Mexican crude for seven years, it would cost more to clean her than the entire cargo is worth. We simply had to give it up and get another vessel. The Inter-Ocean Oil Co. are making every possible effort to do it the earliest possible moment but I do not deem it just and fair to your principals to withhold advice of the situation so I am cabling to see if you can hold the deal open but of course, if they are not willing to wait and need to move the molasses, I suppose the deal will have to be called off and see what we can do at a later date.”

Again upon the letterhead paper of the defendant company, on June 21st Harper writes to Dauterive:

“You probably have thought it very strange that you did not hear from us earlier in regard to the million gallons of molasses which we engaged to take from you under terms and conditions in our telegram namely: ‘Bring the molasses here to Baltimore and guarantee your principals a price not less than 2 cents a gallon F. O. B. steamer Cuba we to furnish steamer and pay duty and all charges plus your usual commission.’ We have had no end of difficulty in arranging for a steamer. The Inter-Ocean Oil Company were willing to assign us a vessel to bring up this cargo but they had nothing of a suitable size that could get into the harbor of Porta Padrea except one vessel that I wrote you about that was practically impossible to clean. As above recited, after no end of worry, annoyance and delay, we finally succeeded in chartering from the U. S. Shipping Board, a brand new steel tank steamer of 4800 tons deadweight, capable of carrying about 850,000 gallons of molasses. This steamer is to be delivered to us on or about August first, and will be available for a cargo during the month of August or the early days of September. Now Mr. Dauterive, while the molasses market is exceedingly dull and very difficult to dispose of molasses at any reasonable price, we reeogniez the fact that we are under contract to you and your principals to carry out our arrangements with you and this we are prepared to do as soon as the steamer is delivered to us which will be around August first, possibly the fifteenth.
“We hope you will not think that because you did not hear from us that we are in anywise going to welch on our contract. We want you to understand and your principals as well, that we are out to keep any contract we make. Advise us by cable on receipt of this letter what your wishes are and that of your principals.”

By wire dated June 23rd, Harper again announces inability to comply with contract sooner and concludes “Mail formal contract immediately and confirm by cable”.

Dauterive did not answer either the wire or the letter; they ended the correspondence between him and Harper, and it does not appear that Dauterive had any further communication with Hawley, for the following reasons:

The next and last phase in the case is that by agreement dated July 9, 1919, the Cuban American Sugar Co., represented by R. B. Hawley, President, sold to the “West India Transportation Corporation” four million gallons molasses made by the centrals Chapparas and Delicias in Cuba for the price of 2% cents per gallon, to be delivered at seller’s wharf in steamers to be pro vided by buyer beginning in August and ending in December first.

' Tbe plaintiff drew a draft of $2000 upon tbe defendants who refused to honor same.

The evidence satisfies us that Harper, for the benefit of the defendant corporation about to be organized, the “West Indian Transportation Corporation”, employed .the plaintiff, a molasses broker in Cuba, to the knowledge of Harper, to buy molasses in Cuba; that the defendant corporation was subsequently organized and that it then adopted, approved, and confirmed, and took as its own, the contract made by Harper; that the plaintiff procured the Cuba American Sugar Company as vendor for one million- gallons to be delivered at a port in Cuba in April, 1919. This entitled plaintiff to a commission. 9 C. J. S. 85 p. 590, 591; S. 96 p. 613.

The evidence further shows that the contract procured by the plaintiff was not consummated owing to the failure of the defendants, employers and principals, to receive delivery of the molasses. The defendants were to “furnish the steamers to receive the molasses, and they did .not do if, and confessed their inability to do it, until August when in the meanwhile on July 9th they purchased four million gallons from the Cuban American Sugar Co., through the same Hawley, President, and of course abandoned or ignored their prior contract for one million gallons. It was therefore the fault of the defendants if the first contract with plaintiffs for one million gallons was not consummated.

The grounds of defense are four fold:

1st That no commission is due a broker unless the sale takes place.

As a general rule that is true, but with this proviso; that the responsibility or fault- for the failure of the sale is not attributable to the party who has employed the broker; for if the fault is with his principal the broker is entitled to his commission.

The broker to buy has earned his commission the moment he has found a vendor; he loses it only if the vendor fails to sell. The broker employed to sell is entitled to his commission as soon as he has found a purchaser; he loses it only when the prospective purchaser fails to execute the contract. In other words, the broker is entitled to his commission, when he has performed his part of the contract. Slattery vs. Hussey, 4 Orl. App. 65, affirming the District Court and quoting Mechen on Agency, Sec. 612 and 4-A and Eng. Enc. of Law, p. 972-975. 8 Orl. App., 211; 14 Orl. App. 424; Gurley vs. Loeffler and Authorities there quoted, No. 7848 Orl. App. Bk. 56.

In the succession of Fairchild No. 7848 Orl. App., Bk. 56 this court said:

“Of course where the broker has produced a purchaser able and willing to buy, and the failure to complete the sale results from the act or fault of him who has promised the commission the case is different for the commission is then due.” Affirming 8 Orl. App. 210; 4 Orl. App. 65; 14 Orl. App. 424; also 9 C. J. S. 87, p. 597; S. 102 p. 623.

A party cannot take advantage of his own breach of contract. 13 C. J. 607 S. 632.

2nd. Defendants again contend that the parties had in contemplation a written contract to conclude their agreement. We do not find that to be a fact established by the record. The telegrams that passed between the parties evidence a complete meeting of minds concerning the thing and the price. But even if it were so, a verbal agreement between parties is binding although they understood and contemplated that it should be committed to writing. In De Soto Building Co. vs. Kahnstarn, No. 7627 Orl. App. Bk. 56, this court held:

“A verbal agreement between parties where their minds have met upon all essential details constitutes a contract between them and hinds them at once, although they may have agreed that they would thereafter execute a formal instrument containing the terms of their present agreement, unless it appears that it was the will of the parties that they should be bound only if and when the formal instrument was executed.”

This opinion was affirmed in Stauffer vs. Harty, No. 8043, reviewing the jurisprudence upon this point and quoting many authorities from this state and from others.

3rd That the contract was abandoned by the parties. Assuming that to be the truth, we have shown by the above authorities that the abandonment by the defendants did not affect plaintiff’s rights. But we are rather inclined to the belief that far from being abandoned, the defendants improved upon the contract by increasing it to four millions. The fact remains that the plaintiff procured the Cuban American Co. as a vendor of molasses in Cuba, and that after a contract for the sale of one million gallons had been made to the defendants by said Company represented by its President, Hawley, he proceeded to New York, without any apparent break in the original negotiations, and there effected a sale to the defendants for four million gallons. See Jenkins vs. Trott, 3 La. Ann. 671; Lestrade vs. Perrera, 6 La. Ann. 398; Hornbeck vs. Gilmer, 110 La. 500, 34 South. 651; 8723 Orl. App. Bk. 67; Ct. App. No. 2 p. 391.

4th Defendants lastly argue that the sale of the four million gallons was not procured by the plaintiff and therefore he is not entitled to a commission on that transaction. The plaintiff is not suing for a commission on that transaction; therefore this question is not before us.

The sale of the four million gallons was mentioned only for the purpose of showing that the Cuban American Sugar Co. had been introduced to defendants by. the plaintiffs.

It is therefore ordered that the judgment appealed from be reversed and set aside, and it is now ordered that the defendants the West India Transportation Corporation be condemned to pay to the plaintiff herein Joseph L. Dauterive the sum of Two Thous- and dollars with five per cent per annum interest from judicial demand January 19, 1920, till paid and all costs of suit; that the writ of attachment herein issued be maintained and that plaintiff’s privilege resulting from the attachment and garnishment be recognized and enforced and that plaintiff be paid by preference out of the property attached herein.

WESTERFIED, J. Dissents.


text:
    No. 10,349
    Orleans
    J. D. CATHEY, INC., Appellant, v. FRANK HENRIQUES
    (January 4, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Courts—Par. 127.
    This court has no authority to compel a judge of the First City Court to permit the filing of a supplemental petition since the Constitution has conferred no supervisory jurisdiction and permits the issuance of mandamus, certiorari, prohibition, etc., only in aid of our appellate jurisdiction.
    (On Application for Writs of Mandamus and Prohibition.
    Writs Denied.)
    Theo. A. McGiehan, of New Orleans, attorney for relator.
   ON APPLICATION FOR WRITS OF MANDAMUS AND PROHIBITION

WESTERFIELD, J.

Relator herein seeks by writs of mandamus and prohibition to compel the Honorable W. Alexander Bahns, of the First City Court, to grant an order permitting him to file a supplemental and amended petition changing the form of an action brought by relator in the said First City Court from one via executiva to one via ordinaria.

The relief sought is not in aid of our appellate jurisdiction and we have no supervisory jurisdiction over inferior tribunals. State ex rel. Louis A. Majendie vs. Constable of First City Court, et al., 1 La. App. p. 139.

The alternate writs of mandamus and prohibition heretofore issued are recalled and relator’s petition dismissed at his cost.


text:
    No. 10,270
    Orleans
    CHRIS PERESTERAS v. PHILIP LOMBARDO, Appellant
    (November 30, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Evidence—Par. 340, 351.
    The testimony of three witnesses accepted by the trial court will outweigh the testimony of one witness.
    2. Louisiana Digest—Evidence—Par. 24, 48; Builders and Buildings—Par. 18, 30.
    It is presumed that the owner has consented to extra work when it is so great that it must have been done with his knowledge or when it had not been foreseen.
    Appeal from First City Court, Hon. W. V. Seeber, Judge.
    This is a suit under a building contract. Defendant filed an exception of vagueness and another exception that plaintiff failed to allege whether a contract or quantum meruit was the basis of the suit.
    The exceptions were overruled. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Jas. Casey, of New Orleans, attorney for plaintiff, appellee.
    Theo. Cotonio, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit on a building contract. The plaintiff alleged that “under verbal direction of the defendant” he erected two smoke stacks over the defendant’s place of business at No. 1210 Decatur Street furnishing the labor and material, as fully detailed in the itemized account annexed.

The annexed account is as follows:

Re-rivet stack furnishing materials, etc., (then follows a detail of materials furnished)____________________________________$ 12.90
Labor 10% hrs., mechanic and helper 21.52
400 feet guy line wire________________________ 7.00
Car fare_______________________________________________________28
Put up stacks (2) and also take down stacks, rigging, drayage, all work complete erecting stack also 95.00
$136.70

The defendant excepted that the petition was vague and indefinite, and that the plaintiff failed to allege whether he sued upon a contract or a quantum meruit.

It seems to us that the petition gives to the defendant all the details of plaintiff’s claim sufficient to enable the defendant to defend the suit.

The plaintiff alleged that he made the work “under verbal direction of the defendant”. This clearly indicates a verbal Contract to do the work and a quantum meruit as to price.

The exceptions were properly overruled.

For answer the defendant denied owing the plaintiff the amount claimed or that he employed the plaintiff to do the work mentioned in plaintiff’s petition.

Further answering defendant averred that he is engaged in the bakery business; that one of the chimneys of his bakery required re-adjusting; that he employed plaintiff to do the work which plaintiff agreed to do for $30, which defendant admits o.wing and has tendered to the plaintiff who refused to accept the same prior to the suit; that while plaintiff was doing the work he had contracted to do, by his negligence and want of care or that of his workmen, he allowed the Smokestack to fall, and in its fall to strike another smokestack, and to cause it to fall, making two smokestacks instead of one which the plaintiff had to rebuild but for which defendant cannot be charged.

There was judgment for plaintiff and defendant has appealed.

The sole questions are: Did plaintiff contract for $30 and did the smoke stack fall through his fault?

1st. The plaintiff testifies that he made a contract for $30 to hold up the stack and to put a new foundation under it. The defendant admits it.

2nd. The facts of the case are that the defendant employed an old man named Toney Constant to paint the smoke stacks on the roof of his bakery.

Toney says:

“I put my tackle up and started to work up from the bottom and left spaces between my legs and pull myself up with the rope. I paint six feet up and then six feet down. I was painting when some of the bricks fell and some one called me to get down as I would kill myself, so I came down; X stopped working and went to Mr. Lombardo and I tell Mr. Lombardo the bricks fell down.”

Defendant inquired of Toney if he would do the repairs. Toney declined, but recommended plaintiff. Defendant* agreed with plaintiff to raise the stack and repair the foundation for $30.

Plaintiff started on the work on the next morning. He sent three riggers there. While the men were on the roof, and engaged in gathering the necessary tools and materials, and before they had touched the stacks or the wires supporting it, the stack that plaintiff was to raise, fell of itself, presumably from the wind or from the defective chimney foundation, and in falling struck the guy wires of the adjoining stack and brought it down. Defendant sent for and engaged the plaintiff. In the words of Toney, who was defendant’s witness:

“Q. Did Lombardo tell Chris to put the stacks up?
“A. Yes, he said, do nice job, put the stacks up and put-new guide wires and new spark arresters.”

Did the plaintiff’s workmen cause the falling of the stack?

Three riggers were employed by plaintiff to execute the work.

Fournier, Danridge and Conniff. They all three testified that they had not yet started on the work when the stack fell; that they were gathering their material on the roof when the stack fell without cause that they could attribute, except the wind or the dilapidated condition of the chimney foundation; that they were at a distance from the guy wires or stiff leg and did not touch them nor the foundation of the chimneys. Toney testifies that “the stack fell down on account of the bricks giving away; Chris did not knock the stack down”.

The only witness to contradict that testimony is Nuncio Mario who lives next door to the defendant’s bakery. She says:

“I was taking clothes off the line, and I was looking at them bringing up a big post on end of the roof, and they brought it up to the end of the roof with the rope and laid it alongside the edge of the roof, and all of a sudden the post touched the end of the wire and the pipe fell over.”

She was on the gallery at the time she saw the three men on the roof.

This same witness testified that two people came to see her on behalf of plaintiff about testifying.

“Q. Did you tell them about the colored man touching the wire?
“A. No, sir. He asked me if I thought his men touched the pipes on purpose, and I said I don’t know.
“Q. Mr. Peresteras asked you if his men had done it on purpose?
“A. Yes, sir.
“Q. Did you tell him his men had knocked it down then?
“A. No, sir * * * It was one of her girls who told Toney to be careful. They only asked me one question if I was sure these men had knocked the stack down and I said I don’t know.
“Q. Did you tell him' the men touched the wire?
“A. No, sir.
“Q. Then you swear the wire touched did not break?
“A. Yes.”

The trial judge did not consider that testimony sufficient to destroy the evidence of the three riggers; neither do we.

We must believe therefore that the stack fell by reason of the dilapidated foundations or from some other cause not brought home to the plaintiff.

We must presume that the defendant authorized the plaintiff to do all the work on the two stacks.

The law is that it is not necessary for a contractor to prove an order for extra work “in a case where the alteration or increase is so great, that it cannot be supposed to have been made without the knowledge of the owner, and also when the alteration or increase was necessary and had not been forseen”. C. C. 2764 (2735.)

“To' receive goods from a merchant without any express promise and to use them, implies a contract to pay the value.” C. C. 1816 (1810.)
“No one ought to enrich himself at the expense of another.” C. C. 1965 (I960.)

The value of the work done by plaintiff is established by himself. There is no testimony to contradict it.

Judgment affirmed.


text:
    No. 10,181
    Orleans
    R. P. FARNSWORTH & CO., Appellant, v. FREY GROCERY AND POULTRY CO., INC.
    (January 4, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Builders and Buildings—Par. 12.
    A contractor in possession of a building he is erecting has a right, as regards • a prospective lessee, to prevent him from entering into, and interfering with, the building until it is completed and accepted.
    Appeal from the First City Court, Hon. W. V. Seeber, Judge.
    This is a suit for the value of labor furnished to a building.
    There was judgment for plaintiff in part and plaintiff appealed.
    Judgment amended and affirmed.
    P. H. Stern, of New Orleans, attorney for plaintiff, appellant.
    Alex. W. Swords, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for the value of labor and materials furnished.

The plaintiff alleged that in June, 1924, at the request of the defendant, they built for it, chicken coops at their place of business 1539 Canal Street on the basis of cost plus ten per cent; that the material and

labor amounted to____________________________________$243.15

and ten per cent thereof—_____________________ 24.31

making a total of__________________________________$267.46

which the defendants refused to pay.

The defendant admitted the contract but denied the cost.

Further answering it alleged that the plaintiffs were constructing a building on Villere Street which to plaintiffs’ knowledge the defendant had taken under a lease to begin June 1, 1924; that the lessor of said premises gave possession of them to defendant on June 1, 1924, but that plaintiff refused to allow defendant to occupy said premises until June 15, 1924; that the defendant notified the plaintiffs that it would hold them liable in damages for all the time that it would be kept out of said premises to which plaintiff agreed; that defendant suffered a loss of $165 which represents the rent for one-half month during which defendant was kept out of said premises and which it paid to its lessor. The defendant therefore prays that plaintiffs’ claim be reduced by said sum of $165.

There was judgment for plaintiff for the amount claimed, $267.45, subject to a credit of $129.96 leaving a balance of $137.49.

The plaintiff has appealed.

The evidence is that the plaintiff had a contract with Carbajal the owner to erect a building; that the building was not completed on June 1st nor until June 18th or 26th; that the defendant prior to June 15th, sent a painter to do some painting; that the plaintiff prevented the painter from working for fear that the flooring that they were putting down would be spoiled by the paint; in other respects they did not prevent the defendant from taking possession of the building insofar as it would not interfere with their work. In this respect we think they had a right so to do; the building was their property and under their exclusive control until it was completed and accepted.

If defendant could not take possession of the building it had rented, it should have complained to the lessor which it never did. Surely plaintiff was under no contract with defendant to deliver the building to it at any time. The plaintiff could be liable to the defendant only in case he had wantonly prevented defendant from taking possession.

There is no preponderance of evidence that plaintiff promised to pay the defendant in the manner set forth in its answer.

The defendant swears to it, it is not corroborated in any manner.

The plaintiff denies it. He was not likely to make such promise when he was under no obligation to deliver the building at any specific time.

It is therefore ordered that all that portion of the judgment which allows the defendant a credit of One Hundred and. Twenty-nine 96-100 dollars be reversed and. set aside, and that in other respects said judgment be affirmed at the cost of defendant in both courts.


text:
    No. 10,289
    Orleans
    BOARD OF COMMISSIONERS NEW ORLEANS FIRE DEPARTMENT v. CRYSTAL CREAMERY, ET AL., Appellant
    (January 4, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Automobiles—Par. 4 (b).
    Where a collision occurs at a street intersection between a Hook and Ladder Truck belonging to the Fire Department and on its way to a fire, and an automobile truck engaged in transporting milk for a creamery company, and the evidence shows that the fire truck was sounding its siren horn and ringing its bell as it approached the intersection, the driver of the milk truck will be considered at fault and responsible for the collision unless it can be shown that the driver of the fire truck was guilty of gross carelessness.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from First City Court, Division “A”, Hon. W. Alexander Bahns, Judge.
    This is a damage suit arising out of a collision between a fire truck and a milk delivery truck.
    There was judgment for plaintiff and defendant appealed.
    Judgment’ affirmed.

      H. B. Curtis, of New Orleans, attorney for plaintiff, appellee.
    Milner, Porteous, and W. A. Provosty, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The Fire Department of the City of New Orleans, a public board created by Act 58 of 1910, brings this suit for damages in the sum of $107.65 sustained by Hook and Ladder Truck No. 3, as a result of a collision between the said truck and milk delivery truck belonging to the defendant, Crystal Creamery Co., and being driven at the ■ time of the accident by the other defendant Louis Franceques.

The collision occurred at the intersection of Claiborne Avenue and Frenchmen Street at about midday. The fire truck struck the milk truck on the rear right hand side with its front end.

Defendants deny all blame for the accident which they aver to be entirely due to the gross carelessness of the driver of the fire truck.

There was judgment, as prayed for, and defendant has appealed.

Claiborne Avenue is a wide street, with a neutral ground in the center and two car tracks thereon, and has the right of way under ordinary conditions over Frenchmen Street which is much narrower, being of only customary width of ordinary streets. The fire truck was proceeding out Frenchmen Street toward the lake and the milk truck was proceeding down Claiborne Avenue toward Esplanade Avenue as they approached the intersection of Claiborne Avenue and Frenchmen Street. It is the contention of defendants that the fire truck blew no horn and sounded no bell, and did not stop nor slow up as it approached Claiborne Avenue until almost upon the milk truck when the driver made ineffectual efforts to apply his brakes and began ringing his bell and sounding his siren horn. Only two witnesses support this contention, one of them, the driver of the milk truck and a co-defendant herein, and the other his companion, who was riding with him at the time of the accident.

Under Section 8 of Act 58 of 1910 and Art. 1, Sec. 8 of Ordinance 7490 C. C. S., vehicles of the Fire Department are given the 'right of way in any street, consequently, the fire truck had the right of -way over the milk truck. We are reminded by counsel that this right of way will not excuse gross carelessness and we concede the point, but the evidence of gross carelessness is lacking. Neither vehicle stopped before entering the intersection. The driver of the milk truck says he slowed down to ten miles per hour and the driver of the fire truck claims to have decreased his speed to fifteen miles. The fire truck, according to the three firemen who were on the truck and as testified to by two bystanders who witnessed the accident, was making a great deal of noise, ringing its bell and sounding its siren (the siren was going continuously, the firemen say from the time the truck left the engine house). It is a matter of common knowledge that all fire apparatus on the way to a fire make as much noise as possible, indeed, the firemen seem to take much pleasure in attracting attention to their duties. We are convinced that there was no lack of' warning, which sound could supply, of the approach of the fire truck. Moreover, two witnesses, in no way connected with the Fire Department, testify that there were shouts of warning to the milk truck by pedestrians. John Maquar testified that “the fire truck was coming out Frenchmen Street and the milk wagon was coming down Claiborne Street and I jumped out in the middle of the street with both hands up and even waved at the man to stop”. He was asked:

“Q. Is that the Creamery Company, when you say milk wagon, you mean the Crystal Creamery truck?
“A. I hollered at him as loud as I could, and he came right along, never stopped; the fire truck was coming making enough noise for anybody to hear it, but he paid no attention, it looked like he wanted to beat the fire truck across.”

Mrs. R. Jour dan testified that when the fire truck was going down Frenchmen Street the siren was going and “they were making a lot of noise”. She was asked:

“Q. Did it (milk truck) cross or attempt to- cross in front of the fire truck?
“A. Yes, he crossed right in front. He did not stop.”

Our conclusions are that the milk truck was at fault and consequently, the judgment appealed from must -be and it is hereby affirmed.


text:
    No. 10,291
    Orleans
    LOUIS P. HAKENJAS v. L. W. WARD AND J. N. WARD, Appellants
    (January 4, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Bills and Notes— Par. 216, 218.
    In a suit upon an obligation absolute in character and free from taint on its ■ face, where the defense of the endorser on the note is that the transaction was contra bonos mores, against public policy, and amounts to a suppression of a commission of a felony, the burden of proof is upon the person making the allegations, as well as others pleaded by him.
    2. Louisiana Digest—Bills and Notes— Par. 87.
    The credit given to the maker of a note is consideration sufficient to bind an accommodation endorser.
    Appeal from First 'City Court, City- of New Orleans, Sec. “C”, Hon. William Y. Seeber, Judge.
    This is a suit on promissory notes.
    There was judgment for plaintiff and one of the defendants, an accommodation maker and indorser, has appealed.
    Judgment affirmed.
    Habans and Coleman, of New Orleans, attorneys for plaintiff, appellee.
    Walter G. Wedig, of New Orleans, attorney for defendant, appellant.
   BELL, J.

From a judgment in favor of. plaintiff, as payee, on certain promissory notes made and signed by both defendants herein, one of the defendants, L. W. Ward, as accommodation maker and indorser, has appealed. His individual and special answer to the suit is that the plaintiff is a holder without consideration; that appellant became a party to said notes upon the promise made by plaintiff to appellant and his co-defendant that a certain automobile upon which plaintiff held a chattel mortgage, and which had been sold while so encumbered to a firm known as Guillory & Dee, would not be seized by plaintiff under his mortgage; that a further consideration for which appellant executed the notes was that plaintiff himself would not bring, and that the aforesaid firm would withdraw, certain criminal charges against appellant’s brother, made co-defendant herein; that the first condition as to the foreclosure of the chattel mortgage- was violated by plaintiff, and that the second stipulation or agreement was contra bonos mores. Further answering, appellant claimed, by way of reconvention, certain amounts due for storage of the automobile. The reconventional demand, which was denied by the trial court, has been abandoned on appeal, and therefore will not be considered here.

We have searched the record in vain to find any evidence in support of the contention that plaintiff agreed, before the execution of the notes, that he would refrain from seizing the automobile in question. The aforementioned firm, in whose custody the car was, appears from the evidence to have made an assignment for the benefit of their creditors, and when the car was subsequently seized and sold (with appellant’s knowledge), plaintiff applied the proceeds of the sale to a partial liquidation of the notes here involved. As to the second defense, regarding the withdrawal of criminal proceedings against appellant’s brother, the testimony of appellant is clearly to the effect that plaintiff did not make criminal charges against appellant’s brother, and that whatever charges were made were subsequently dismissed by the District Attorney at the suggestion of the aforementioned firm. The burden of proof as to these special defenses has not been carried by the appellant, as the law requires.

In Yowell and Williams vs. Walker, 118 La. 28, 42 South. 635, and again in Schaffter vs. Irwin, it was held:

“In a suit upon an obligation absolute in character and free from taint on its face, where the defense of the indorser on the note is that the transaction was contra bonos mores, against public policy, and amounts to a suppression of a commission of a felony, the burden of proof is upon the person making the allegations, as well as others pleaded by him.”

The defenses to this suit appear to us to be frivolous and unfounded, and we find no error in the judgment of the trial court.

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


text:
    No. 10,219
    Orleans
    HIPPOLYTE JOHNSON v. OTTO B. SCHOENFIELD, Appellant
    (November 30, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Evidence—Par. 58, 59.
    In a suit for unpaid balance of contract price for work and labor done, defendant, who admits the contract but contends that the balance of price is not due because work is not completed, assumed the burden of proving this fact.
    Appeal from First City Court, Section "C”, Hon. William Y. Seeber, Judge.
    This is a suit for an unpaid balance due on a contract.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Jesse Benedict Gessner, of New Orleans, attorney for plaintiff, appellee.
    E. M. Cahn and William F. Conkerton, of New Orleans, attorneys for defendant, appellant.
   BELL, J.

Only issues of fact are involved in this suit, which is one for recovery of the unpaid balance of the contract price for work and labor furnished under a verbal agreement by which plaintiff obligated himself to cut and clear certain land belonging to defendant.

■ Plaintiff alleges that he was employed by defendant to do this work at the agreed price of $40.00 per hundred running feet, and that he completed the work as contracted for, by clearing the land in question to a depth of eight hundred and forty feet. The total amount due him for the work on the basis mentioned is the sum of $360.00 of which amount he has been paid on account $225.00 leaving a balance now due of $105.00.

Defendant admits the contract at the price mentioned, and that $250.00 has -been paid on account, but denies liability for the balance claimed, upon the special defense that plaintiff has never burned the'stumps, nor removed the rubbish on his land, and that plaintiff had agreed to also make a farm or garden on the land when cleared, but that he has failed so to do.

After the trial judge, accompanied by litigants and counsel in this case, had inspected the land and examined the work done under the contract, there was judgment for plaintiff in the sum of $95.00. Defendant, as his own and only witness, testifies that plaintiff failed to comply with the contract in the manner set out in his answer. The plaintiff and two witnesses working with him on the job all swear that the verbal contract in regard to this work was made by defendant in the presence of all of these witnesses, and that there was positively no stipulation that plaintiff was to remove or burn the stumps or clear away the rubbish, but that all of the stumps and rubbish were to be laid to the side of the sixty-foot roadway or clearance made upon the land. There is also a preponderance of testimony against any agreement concerning a garden or farm. The trial judge seems to have made an allowance for plaintiff’s failure, made evident to him, in respect to the removal of a few of the stumps. This allowance or deduction was fixed by the judge at $10.00.

Plaintiff has not appealed nor answered the appeal. The judgment, in all respects, seems to be correct. It should therefore be affirmed.


text:
    No. 10,294
    Orleans
    JAMES DEMOURELLE & SONS, INC., v. DANIEL W. CARAWAY, Appellant
    (January 4, 1926, Opinion and Decree)

      (Syllabus by the Oourt.)

    1. Louisiana Digest—Courts—Par. 88. 89.
    The First City Court, in the exercise of its original concurrent jurisdiction of “all suits for monied demands above one hundred and not exceeding three hundred dollars”, as conferred by the Constitution of 1921, has authority to enforce a building lien.
    Appeal from First City Court of New Orleans. Hon. W. Alexander Bahns, Judge.
    This is a suit for the collection of account for building material sold and delivered.
    J. G. Schilling, of New Orleans, attorney for plaintiff, appellee.
    Puneky & Barreos, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The plaintiff corporation claims $152.65 to be due it by defendant, alleging that it sold and delivered to the Star Lumber Company, Inc., with whom it is alleged defendant contracted to erect a building, certain building materials aggregating the amount sued for; that the materials so sold and delivered actually entered into the construction of defendant’s building; that no building contract was recorded in the mortgage office, nor bond executed by defendant, and that, under the circumstances, he has a lien and privilege on plaintiff's property which is described in the petition, and that defendant is personally liable therefor. Plaintiff prays for judgment against defendant with recognition of a lien and privilege upon its real estate described in the petition.

Defendant filed exceptions of vagueness, non-joinder, jurisdiction and no cause of action; and, in effect, a general denial. All exceptions were overruled and judgment rendered against defendant as prayed for. Defendant has appealed.

The exception of vagueness seems to have been abandoned, as we have heard nothing of it in this court. The exception of non-joinder is not well pleaded, as it nowhere appears what party defendant has been omitted, who should have been included in the litigation. We surmise that reference is made to the Star Lumber Company, but we are unwilling to conjecture, and without expressing any opinion upon the merits of this exception we will observe that its merit must plainly appear and some injustice clearly made evident before we would be willing to disturb the conclusion of the trial court in this regard. The exception to the jurisdiction and that of no cause of action are both based upon the argument that plaintiff’s demand in this case is a real action in that it seeks to enforce a lien upon immovable property, and that the First City Court is without jurisdiction to enforce a lien upon real estate. This argument is completely refuted by the opinion in the case of Clade vs. LaSalle Realty Co., 144 La. 989, 81 South. 598, which seems to have entirely escaped counsel’s attention.

The court in the cited case was discussing the jurisdiction of the City Court as it existed, prior, to the Constitution of 1921, as limited to “all eases involving not more than $100.00 in principal”, but the principle is equally applicable to this case, where we are considering the additional jurisdiction as conferred by the Constitution of 1921, which that court now has concurrently with the Civil District Court. The language of the Constitution in granting the original exclusive jurisdiction is now, and was, under the Constitution of 1913, as considered in the Clade case, almost identical with the words used in the Constitution of 1921, conferring additional original and concurrent jurisdiction. In one case, the court is given jurisdiction, “in all cases when the amount in dispute, or the fund to be distributed, does not exceed $100.00”. In the other case, “said court shall also have jurisdiction concurrently with the Civil District Court of all suits for monied demands above one hundred dollars and not exceeding three hundred dollars”.

.The court in the Clade case said:

“Neither the Constitution nor any statute that we know of confers upon the court jurisdiction of suits involving title to immovable property, or the possession thereof, save as between landlord and tenant. On the other hand, the grant of jurisdiction in ‘all’ (civil) ‘cases’ involving not more than $100.00 in principal is a broad one, and, as we think, includes an action to enforce a lien upon immovable property for an amount not exceeding $100.00, exclusive of interest. In the case of Elwyn vs. Jackson," 14 La. 411, to which we are referred, the court was dealing with the jurisdiction of a city court of 1840, conferred by a statute of anterior date, which expressly excepted from that jurisdiction actions of ‘a real nature’, and it held that a seizure and sale, in foreclosure of a mortgage, was included in the exception.”

The exceptions were properly overruled.

On the merits, such defense as is made is very weak, and it is apparent that no reliance is placed upon it. At any rate, we think plaintiff has. made out his case. We will not allow damages for frivolous appeal as prayed for by plaintiff and appellee.

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