author: LECHE, J. MOUTON, J.

text:
    No.-
    First Circuit
    SLAUGHTER, ET AL., v. NEW ST. JOHN MISSIONARY BAPTIST CHURCH
    (December 6, 1927. Opinion and Decree.)
    (April 11, 1928. Opinion and Decree on Rehearing.)
    (May 8, 1928. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Courts—Par. 126.
    The Court of Appeal has no jurisdiction over a case involving protection in the enjoyment of a civil right because Sec. 35, Art. VII, of the Constitution gives District Courts original jurisdiction although Sec. 29 of Art. VII gives the Court of Appeal the right to hear appeals only in cases where the District Court has exclusive original jurisdiction.
    REVERSED ON REHEARING
    2. Louisiana Digest — Courts — Par. 126; Constitution and Constitutional Law— Par. 8, 9.
    Sec. 29 of Art. VII of the Constitution gives the Court of Appeal jurisdiction in all cases where the District Courts have exclusive original jurisdiction. Although the Constitution does not grant the right of appeal in expressed terms where the District Court has original, jurisdiction, nevertheless the Constitution should be given a liberal construction, especially in regard to the right of appeal, which should be encouraged and favored. Court of Appeal has jurisdiction in this case, although the District Court had original jurisdiction, but not exclusive original jurisdiction.
    ON THE MERITS
    3.Louisiana Digest — Religion and Religious Corporations — Par. 2; Injunction Par. 18, 35.
    Where a church corporation has the provision that failure of a member to discharge his obligation towards the financial support of the corporation .within a year will cause a dismissal from the corporation without formal action on its part, an injunction will properly be perpetuated prohibiting the suspension or expulsion of a member for non-payment of dues within a year.
    Appeal from the Parish of East Baton Rouge. Hon. Wm. Caruth Jones, Judge.
    Action by Sam Slaughter, et al., against New St. John Missionary Baptist Church.
    There was judgment on original hearing dismissing suit for want of jurisdiction. This ruling was reversed on rehearing and judgment of District Court affirmed.
   LECHE, J.

The purpose of this suit is to enjoin the defendant corporation from expelling the plaintiffs from membership in the organization. There is no demand or claim for money, but it is merely an appeal to the court for protection in the enjoyment of an alleged civil right. A demand of this kind is, according to Section 35, Article VII, of the Constitution, within the jurisdiction of District Courts. The language of the Constitution is as follows:

“The District Courts * * * shall have original jurisdiction * * * in all cases * * * where civil or political rights are involved * * * .”

The question which suggests itself to us, is whether we have appellate jurisdiction in the case.

In another paragraph of Section 35 of the same article in the Constitution, District Courts are given exclusive original jurisdiction in criminal cases, probate and succession matters, receiverships, etc.

Section 29 of Article YII vests this Court with appellate jurisdiction in all cases, civil or probate, of which District Courts have exclusive original jurisdiction regardless of the amount in dispute and of which the Supreme Court is not given jurisdiction. By this language our appellate jurisdiction only extends to cases where the District Courts have exclusive original jurisdiction, and as the jurisdiction of the District Court over this case, said to involve a civil right, is not in terms “exclusive” but only original, the logical inference is that it does not come within our appellate jurisdiction.

For these reasons, the present appeal should be dismissed, and

It is so ordered.

ON REHEARING

MOUTON, J.

On the original hearing this case was submitted on the merits, but was dismissed for want of jurisdiction in this Court.

The demand herein, as was said by us in the original opinion, is not on a claim for money, but is merely an appeal for the protection of an alleged civil right. We found that in cases of this nature, the District Courts are vested under Section 35, Article 7, of the Constitution with original, but not‘in terms, exclusive jurisdiction. As there was no amount in contest, and the jurisdiction of the District Court was not in terms exclusive, we held that we had no jurisdiction under Section 29, Article 7, of the Constitution and therefore dismissed the appeal. A rehearing was granted.

Paragraph 3 of Section 35 of Article 7 of the Constitution gives original jurisdiction to District Courts in cases where civil rights are involved, but does not expressly declare that this jurisdiction shall also be exclusive. In the paragraph following, exclusive original jurisdiction is conferred on those courts in cases which are therein pointed out, but in which no. mention or reference is made to cases involving civil rights. In Section 48, Article 7, of the Constitution, the jurisdiction of justices of the peace is defined, but it nowhere appears therein that they are given any jurisdiction whatsoever when civil rights are in contest or concerned. As they have no jurisdiction in such cases, it is impossible to escape the conclusion that the jurisdiction of the District Courts where civil rights are in contest, is original and exclusive. Section 29, Article 7, of the Constitution gives this Court jurisdiction in all cases where the District Courts have original exclusive jurisdiction. As those courts have exclusive original jurisdiction where civil rights are involved as hereinabove remarked, this Court has jurisdiction regardless of the amount involved under Section 29. We do not think our jurisdiction should be confined to appeals in cases where the State, a parish, or a succession, etc., is a defendant, regardless of the amount in dispute, which under paragraph 4 of Section 35 of the Constitution are placed within the exclusive original jurisdiction of district judges.

Section 29 gives us jurisdiction in all cases where the District (Courts have original exclusive jurisdiction. In this case the lower court had that jurisdiction, although it is not granted to it in express terms, the right of appeal therefore exists and this Court should not be deprived of its authority to review the case, otherwise the Constitution would be given a narrow construction instead of a liberal one, the rule which obtains for the protection of the right of appeal which is precious and should be encouraged and favored. State ex rel. Durand et al. v. Parish Judge of St. Martin Parish, 30 La. 285; Magendie, Sr., v. Constable, 4 La. App. 718. Civil rights frequently involve the solution of extremely important issues, and we think that contests over such questions come within our appellate jurisdiction regardless of the amount in dispute, under the enlarged jurisdiction conferred on this Court by the recent Constitution. Having reached that conclusion after a re-examination of this case, our former opinion and decree are set aside, and we shall now pass to a consideration of the issues of the case which were submitted to us on the original trial.

The New St. John Missionary Baptist Church was organized under its charter in July, 1921. ' In the act of incorporation is the following clause: “Any member failing to contribute to the financial support of the corporation when able to do so for the space of one year, shall ipso facto, and without any formal action on the part of the corporation immediately cease to be a member of this corporation.” In the above it will be noticed that any member who fails to contribute to the financial support of the corporation during one year, ceases ipso facto to be a member of the corporation. Plaintiffs, alleging that they had paid all their dues or assessments in the year 1926, and that for valid reasons had not paid these dues for 1927, but that they were not one year in arrears, and, further averring that the Board of Deacons and other officers of the corporation had procured the adoption of a resolution expelling therefrom all members who were in arrears in any amount, and that if the said New St. John Missionary Baptist Church were not restrained by injunction, plaintiffs would be illegally- ousted from its membership, prayed for the issuance of the writ which was issued and maintained.

In the court below defendant filed exceptions of vagueness, misjoinder, no cause of action, and of jurisdiction ratione materiae. They were all overruled. In this Court, in the brief filed by counsel for defendant, the only exception insisted upon, is the one challenging the jurisdiction of the lower court.

This exception is based on the ground that the only issue presented is one of church discipline, is spiritual and ecclesiastical, and that over such controversies the courts of law have no jurisdiction. In support of that contention among many adjudications on the subject counsel for defendant cites State ex rel. Sloane vs. Hebrew Congregation, 31 La. Ann. 205, where it was said in the course of the opinion, that the preponderating weight of judicial authority is, that whenever the question of discipline or of faith or ecclesiastical rule, custom or law have been decided by the highest church judicatories to which the matter has been carried the legal tribunals must accept such decisions as final and binding on them in their application to the case before them. “Questions of discipline,” the words used in the above quotation, evidently have reference to matters of faith, ecclesiastical rule, custom or law which belong to the realm of the spiritual, and are outside the sphere oí legal tribunals. In such 'eases the courts of law have no jurisdiction and can not interfere in controversies which have been adjudicated upon by the highest church judicatories. The right of the civil courts to intervene in ecclesiastical disputes is well stated in several authorities cited by counsel for defendant, and in the language following: The jurisdiction of the civil courts to interfere with ecclesiastical controversies is limited to those cases in which the rights of property or civil rights are involved.” The above ruling is in harmony with the views expressed by our court in State ex rel. Soaree vs. Hebrew Congregation “Dispersed of Judah,” 31 La. Ann. 205, and is in keeping with the general doctrine enunciated by almost all of the courts of the various jurisdictions.’ In connection with our statement taken from State ex rel. Soare vs. Hebrew, 31 La. Ann. 205, in reference to discipline in matters of faith, ecclesiastical rule or custom which fall within the jurisdiction of high church judicatories, it is proper to refer to a part hereinabove quoted from the charter of the New St. John Baptist Church, which in providing for cessation of membership therein for failure of a member to send in financial support to the corporation for the space of one year, says: “Shall ipso facto, and without any formal action on the part of the corporation, immediately cease to be a member of this corporation.” Here it is unequivocally stated upon failure of a member to discharge his obligation towards the financial support of the corporation within the year, a dismissal from the corporation will follow and without formal action on its part. This penalty or forfeiture of the right of membership in the corporation thus imposed, is based on the contractual obligations which were created between the members by the charter or act of incorporation. This forfeiture for failure to make the required contribution refers to the corporation directly, is self-operative, and is not made dependent in the slightest degree to the lack of obedience, fidelity or conformity to any discipline, church regulation, ecclesiastical custom or law which might become in case of controversy a proper. subject for solution by a church judicatory. The payment of the annual dues by the members was covenanted in the charter and created a civil obligation that was legally binding on the members of the corporation. The obligation exacting a financial contribution to the corporation by the members, it occurs to us, pertains to the material side of life, rather than to the ethereal or spiritual. The issue presented a contest over a civil right, and the lower court had jurisdiction.

In our original opinion we dismissed the suit, holding that though the controverted question was over a civil right, we had no jurisdiction because the Constitution had not declared in express terms that in cases involving such rights the District Courts had exclusive original jurisdiction, so as to invest us with authority to review the case under Section 29 of the Constitution. On a motion for a rehearing, counsel for defendant succeeded in convincing us that as this was a dispute over a civil right, we had jurisdiction regardless of the fact that the Constitution had not declared in so many words that the District Court had exclusive original jurisdiction therein. It would be rather difficult for us to say that we have jurisdiction because the issue involves a contention over a civil right, and at the same time to decree that the lower court had no jurisdiction for the reason that the controverted matter presented an issue purely spiritual or ecclesiastical. We could not adjust ourselves to such contradictory positions, and must conclude for the reasons hereinabove stated that we have jurisdiction of this case; that the lower court also had jurisdiction, and proper ly perpetuated the injunction prohibiting the suspension or expelling of plaintiffs from membership in the New St. John Missionary Baptist Church.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 11,427
    Orleans
    WILLIAMS v. LEYLAND LINE STEAMSHIP CO.
    (June 4, 1928. Opinion and Decree.)
    (June 18, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Courts—Par. 128; Judgment — Par. 114; Master and Servant — Par. 160(1).
    An action of nullity is a separate suit and this court is without jurisdiction to consider an appeal from a judgment decreeing the nullity of a judgment in excess of $2000.00 obtained in a suit under the compensation law. (Act 20 of 1914 as amended.)
    Appeal from Civil District Court, Division “A.” Hon. H. C. Cage, Judge.
    Action by George Williams against Leyland Line Steamship Co. In re Frederick Leyland and Co., Ltd., vs. Robert Williams, calling himself George Williams.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    H. Grady Price, of New Orleans, attorney for plaintiff, appellee.
    Geo. Sladovich, of New Orleans, attorney for defendant, appellant.
   ON MOTION TO DISMISS.

WESTERFIELD, J.

Appellee moves to dismiss this appeal upon jurisdictional grounds.

The judgment appealed .from is one decreeing the nullity of a judgment, rendered in a suit under the compensation law, for one of the causes mentioned in C. P., .607.

The judgment annulled by the decree complained of was rendered by Div. “A” of the Civil District Court June 8, 1926, and it condemned Frederick Leyland & Co., Ltd., to pay to one George Williams $20.00 per week for 400 weeks. The judgment •was affirmed by this court, La. App. Yol. 7, p. 35, and a writ refused by the Supreme Court October 4, 1927.

It is argued that the action of nullity cannot be separated from the compensation suit and since the court has undoubted jurisdiction of compensation suits regardless of the amount involved, it follows that we have jurisdiction of this appeal.

The argument is not tenable. The nullity of the judgment is not urged on appeal but by petition and citation, because the nullities complained of are not patent on the face of the record, C. P., 610. Such proceeding is a separate suit. Walker vs. Borelli, 32 La. Ann. 1160.

The amount involved far exceeds $2000.00, the maximum jurisdiction of this court in this class of cases. The case should be transferred to the Supreme Court as provided in Act 19 of 1912.

IT IS ORDERED that this appeal be transferred to the Supreme Court conditional upon appellant fixing in said court in proper form, a transcript of appeal within thirty days.


text:
    No. 11,458
    Orleans
    CATOIRE v. MADERE
    (May 7, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Elections by the People — Par. 28, 31.
    Whenever it appears that a suit involving a contested nomination in a primary election can not he decided in time to permit the printing of the name of the party nominee on the ballot to be used in the general election, the political party committee, calling the primary, must, under the provisions of Sec. 31 of Act 97 of 1922 certify the name of the contestee in the suit as the party nominee and the courts are expressly prohibited from interfering with such action of the committee.
    Appeal from the Twenty-fourth Judicial District Court in and for the Parish of St. John the Baptist. Hon. L. Robert Rivarde, Judge.
    Action by L. Hamilton Catoire against Prentice Madere.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    L. H. Gosserand, of New Orleans, attorney for plaintiff, appellee.
    Rene Viosea, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Prentice Madere and L. Hamilton Catoire were candidates for the Democratic nomination for the office of Constable of the Fourth Ward of the Parish of St. John the Baptist. The result of the primary was very close and Madere contested the apparent selection of Catoire. The court, both parties consenting, ordered a second primary, which was held Friday, March 30, 1928. At this primary Madere appeared to be successful 'and Catoire contesting upon the ground, among others, that the ballots used in the primary, did not have numbered detachable slips and were not signed on the reverse with the official certificates of the Secretary of State as to the official character of the ballots, as required by Act 99 of 1922, brings this suit, April 3, 1928.

Meanwhile (April 5, 1928) the Parish Democratic Executive Committee for the Parish of St. John the Baptist certified the name of Madere to the Secretary of State, as the Democratic nominee for the office and authorized the placing of his name on the official ballot for the general election to be held April 17, 1928.

Upon the trial of the case it was admitted that the ballots were defective in the respect charged and judgment was rendered April 12, 1928, declaring the primary election of March 30, 1928, void and ordered the certification of Madere as the nominee annulled.

On the same day that the judgment was rendered, or five days before the date of the general election, the Parish Executive Committee met again and adopted á resolution reading in part as follows:

WHEREAS, the St. John the Baptist Democratic Executive Committee in meeting held on April 5th, 1928, certified to the Secretary of State of Louisiana that the said PRENTICE MADERE was nominated for said office, and
WHEREAS, a contest suit has been filed in the 24th Judicial District Court in and for the Parish of St. John the Baptist, State of Louisiana, in which an attempt is being made to annul said primary election of March 30th, 1928; and
WHEREAS, it is apparent that no decision of any kind can be rendered by the courts of this State in said primary election contest suit prior to the general election to be held on Tuesday, April 17th, 1928, and therefore, the said certification of PRENTICE MADERE as the nominee for the office of constable for the fourth ward of St. John the Baptist Parish cannot be. set aside, and
WHEREAS, even if a final decision were rendered in time annulling the said primary election, it would be impossible for this Committee to order another primary election before said general election of April 17th, 1928, and therefore, in such event the Democratic party being without a nominee for the office of constable of the fourth Ward of St. John the Baptist Parish, this committee, the St. John the Baptist Parish Democratic Executive Committee, would be required under ' the law to select a nominee of the Democratic party for said office, and
WHEREAS, it is the intent of this committee to carry out the will of the people and if called upon to select the nominee by virtue of a vacancy in the nominee, this committee will select as the nominee for said office the said PRENTICE MADERE, now therefore
BE IT RESOLVED by the St. John the Barptist Parish Democratic Executive Committee in meeting duly assembled that this committee re-affirms its certification of PRENTICE MADERE as the nominee of the- Democratic party for the office of constable of the fourth ward of St. John the Baptist Parish by virtue of the returns from the special primary election held on March 30th, 1928; and
BE -IT FURTHER RESOLVED that in the event said special primary election of March 30th, 1928, should be annulled and for that or for any other reason there should be a vaqancy in the nominee of the Democratic party for the office of constable of the fourth ward of the Parish of St. John the Baptist, this committee does hereby select, name and confirm PRENTICE MADERE as the nominee of the Democratic party for the office of constable of the fourth ward of the Parish of St. John the Baptist and hereby certifies his name as such nominee to the Secretary of State of Louisiana with instructions that his name be printed upon the ballot as the candidate of the Democratic party for said office.

The case was argued in this court April 16th, and our decree dismissing plaintiff’s suit handed down the same day.

Insofar as the action of the court declaring the primary of March 30, 1928, a nullity is concerned, there can be no question of its correctness. See Hart vs. Picou, 147 La. 1017, 86 So. 479. But it cannot affect the nomination of Madere by the Parish Executive Committee, nor his subsequent election under the plain terms of Sec. 31 of Act 97 of 1922, which reads:

t Section 31. That all vacancies caused by death or resignation or otherwise among the nominees selected by any political party, under the provisions of this act, shall be filled by the committee, which has jurisdiction over the calling and ordering of the said primary election, and in the event that no person shall have applied to become a candidate for a political office within the time fixed by law, or the call of the committee ordering the primary, or in any other event wherein the party shall have no nominee selected under the provisions of this act, the committee calling the primary shall select the nominee for any position named in the call of the committee and shall have full authority to certify said name as the nominee of the said party; provided, however, that wherever, for any reason, any contest filed in court shall not be finally decided in time to print the name of the nominee of the party upon the ticket at election, then the political party committee shall certify the name of the person who is the contestee in the suit filed, and the nominee of said political party, and no court shall have jurisdiction to enjoin such action.

It is evident that the purpose of the cited section of the law was to take care of just such situation as the record presents. The absence of party nominee on the official ballot was the thing to be avoided and the law makes provision for naming an individual in an emergency, when the contest over the result of the primary is so (prolonged, or delayed as to endanger party representation.


text:
    No. 10,461
    Orleans
    APPEL v. CHECKER CAB CO.
    (March 26, 1928. Opinion and Decree.)
    (April 23, 1928. Rehearing Refused.)

      (No Syllabus)

    Appeal from Civil District Court, Division “D.” Hon. J. Porter Parker, Judge.
    Action by Florence Appel against Checker Cab Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dave Wendling, of New Orleans, attorney for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff was a passenger in a taxicab operated by defendant. The taxicab in order to avoid collision with another cab also operated by defendant, ran into the curb and struck a fire plug injuring plaintiff. Defendant’s liability is clearly established and we believe the amount allowed by the trial court ($300.00) to be about right. The injuries were not particularly serious consisting of cuts, bruises and shock, but we see no reason to reduce the small sum the judgment awards


author: JONES, J.

text:
    No. 10,726
    Orleans
    BRITTINGHAM v. DUTTON
    (June 18, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles — Par. 4(d), 7.
    Negligence resulting from violation of an ordinance fixing the age of a chauffeur will not suffice for judgment, where the other party was guilty of contributory negligence.
    Appeal from Division “D,” Civil District Court. Hon. Porter Parker, Judge.
    Action by James N. Brittingham, Sr., against Houston Dutton.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Jas. N. Brillingham, Jr., and Albert E. Moulin, of New Orleans, attorneys for plaintiff, appellant.
    Geo. Montgomery and Jas. J. Landry, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

Plaintiff sued defendant for six hundred seven ($607.00) dollars, value of Studebaker coupe, plus towing charge.

He alleges as follows:

On December 25, 1925, about 9 a. m., his daughter was driving his Studebaker in Willow Street, from Peters Avenue to Napoleon Avenue, when it was suddenly run. into by a Dodge coach, owned by defendant, but then driven by his young son, Clarence, who was crossing Willow Street on Robert at an illegal speed (without stopping) from the river to the lake; Clarence Was driving the car with the knowledge and consent of his father; petitioner’s daughter was driving his automobile in a very cautious manner, but defendant’s automobile was crossing at the rate of 30 or 35 miles an hour -in a reckless manner.

Defendant denied all indebtedness to plaintiff and all allegations in plaintiff’s petition, except the location of the accident, which defendant admitted; he especially alleged that plaintiff’s coupe, at the hour and place stated, was being driven in a careless, reckless and unskillful manner, and at an excessive rate of speed by his daughter; that plaintiff’s coupe crashed into defendant’s car, and that if defendant was in any way negligent, plaintiff’s driver was guilty.of contributory negligence.

Then, assuming the position of plaintiff in reconvention, he charged that his automobile was damaged to the extent of fifty-eight ($58.00) dollars, through the sole negligence of the driver of plaintiff’s daughter especially alleging the following acts of negligence on her part: crossing an intersection at twenty-five miles an hour, at a rate of speed far in excess of that which a careful and cautious driver would have risked, considering the possibility of accident and the volume of traffic passing at Robert and Willow Streets; (2) failure to have her coupe under control; (3) though said coupe was intended to seat only two people, at that time two other young ladies and one young man were in it, thus crowding the said coupe beyond capacity, obstructing the driver’s view, and interfering with the operation of said car.

The trial judge, after hearing all of the evidence, closed the case with the following remark:

“I am prepared to decide this case now. I think both parties to this case are guilty of negligence, one about as equally guilty as the other.
“Let there be judgment for the defendant on the main demand, and judgment dismissing the reconventional demand.”

Only questions of fact are involved and the testimony of the fourteen witnesses is highly conflicting.

The following facts are substantially undisputed: Plaintiff’s daughter, then aged sixteen, was driving a Studebaker coupe, built for two passenger's, down Willow Street about nine o’clock Christmas morning at a speed of twenty to twenty-five miles per hour; seated on her right in the coupe was a young man, Sam Fucich, on his right was another young man, Harrison Bennett, and on the knees of this young gentleman sat a young lady; as the four approached Robert Street, a paved busy thoroughfare, there was a sign on the pavement to “Go Slow,” but they did not slacken their speed much, possibly from twenty-three miles to twenty miles per hour.

Clarence Dutton, then aged' twelve, was driving his father’s Dodge coach out Robert Street toward the lake; on his right in the front seat was seated another colored boy, Jas. Halsey. As Clarence was coming into Willow Street to. go down to Cadiz Street, two blocks' below, where Clarence lived, the Studebaker and the Dodge collided and the Dodge suffered the following injuries: The left end of the front bumper was broken off, the left front fender was bent, the left front wheel was twisted a little.

After the accident the Studebaker ran into a house on the downtown lake corner of Willow and Robert Streets, broke a pipe and stopped up on the Robert Street sidewalk. The Dodge coach was in the intersection of Willow and Robert Streets near the downtown river corner, facing down Willow Street. The Studebaker coupe was so badly damaged that it was later sold for seventy-five dollars ($75.00). Bennett describes the damage to the Studebaker as follows:

“It had a smashed right front fender, mashed running board, the beauty panel was mashed, the chassis was bent, the front axle was bent, spindle was bent, tire was cut and a rim bent.”

The following facts are disputed:

The young lady driving the Studebaker coupe and the two young men with her all swear that the Dodge was coming thirty to thirty-five miles per hour, that it did not stop, but was going full speed straight across Willow Street, that they could not see the Dodge until they were in the intersection, because the streets were narrow there and there were buildings on all three corners, except the downtown river corner; that the Dodge ran head on into the right front of the coupe; they did not see the Dodge until they were in the intersection and only six feet from it.

John H. Bonnelly, a witness for plaintiff, swears he was coming up Willow Street and saw the accident about twenty-five feet from intersection; saw Dodge across vacant lot about two hundred feet from corner coming straight ahead about thirty-five miles per hour, it did "not stop and struck Studebaker, which was coming about twenty-eight miles per hour; heard no horns.

On cross-examination he admits that the Studebaker and Dodge were coming about same speed, and that he could not see the Dodge as the Studebaker was blocking his view. Studebaker after accident was resting against house on downtown river corner of Robert Street and Dodge was facing the house which the Studebaker had struck almost in, center of street; Dodge struck Studebaker just behind front fender in side of the car; cars were going at same speed and neither stopped.

Bo£h young Dutton, aged twelve, and his companion, James Halsey, a boy of sixteen, testify that Dutton blew his horn and practically stopped the Dodge before turning into Willow Street to go down to his home on Cadiz Street; that they stopped, but did not see the approaching Studebaker, as there was a building on the uptown river corner of Willow and Robert Streets and they could not see very far up Willow Street; that they did not see the ■Studebaker until it struck them on the left front fender and bumper and turned their car to the side.

Thos. Weathers, who was standing at the uptown lake corner, swears Studebaker startled him by its rattling and coming so fast, Studebaker didn’t slow up at all; it was going faster than the Dodge, but he couldn’t estimate either speed; Studebaker ran into the Dodge, tore the bumrper off and turned it around; Dodge had almost made the turn into Willow Street when it was struck, the front of the little car (the Studebaker) hit the left front fender and the bumper of the Dodge; .did not hear any horns,' did not see the Dodge stop. He concludes his testimony as follows:

“If that big car (the Dodge) was coming out as fast as the little one (the Studebaker) it would have run over the little car because the big car was much bigger than the little one.”

We think that the damages done to the respective cars and the positions of the two-cars after the accident confirm the testimony of this witness. If the Dodge car, which was the heavier of the two, had run into the front end of the lighter Studebaker at thirty-five miles per hour, the-tremendous momentum of its speed and. weight combined would have turned the lighter car around without reversing the heavier car. The damages to the Dodge car would have been over the entire front and not just on the left front end.

We think that the driver of plaintiff’s car was guilty of contributory negligence.

In Elimendorf vs. Clark, 143 La. 972, 79 So. 557, where a child was run over and killed by a boy under the age required for a license, the Supreme Court on rehearing said:

“The negligence resulting from the violation of the ordinance fixing the age of chauffeurs can serve as a ground of action only in the absence of contributory negligence on the part of the boy, or only if, after this contributory negligence had ceased, there had been a last clear chance of avoiding the accident and under the circumstances there was no such chance.”

For above reasons, the judgment is affirmed.


author: ELLIOTT, J.

text:
    No.-
    First Circuit
    DUPRE v. GRIFFITH, ET AL.
    (May 8, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Brokers—Par. 5, 15, 23.
    Where the preponderance of evidence shows that the agreement of owner with real estate broker was not subject to any condition the sale of the property by the broker will entitle him to his commission even though the owner claims that he had previously found a purchaser.
    Appeal from the Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by Gus E. Dupre against Cary T. Griffith, et al.
    There was judgment tor plaintiff and defendant appealed.
    Judgment affirmed.
    A. H. Garland and R. L. Garland, of Opelousas, attorneys for plaintiff, appellee.
    John W. Lewis, of Opelousas, attorney for defendant, appellant.
   ELLIOTT, J.

Gus E. Dupre claims of Cary T. Griffith and John W. Harvey $125.00 as the amount of a commission due him for having sold certain real estate belonging to them.

The defendants admit that they agreed to pay plaintiff a commission as claimed in his petition, but that the agreement was subject to the condition that they themselves had the right to sell the property in question independent of any negotiations or solicitations by plaintiff; and in the event that they found a purchaser no commission was to be due the plaintiff.

The plaintiff Dupre had hardly anything to do with the arrangement; Edward Conklin, as his agent and employee, acted for him in the matter. Conklin was himself a licensed real estate dealer, in the employ of the plaintiff, who conducted business under the name of Dupre and Conklin, but the business in fact belonged to Dupre.

Conklin was not a licensed real estate dealer at the time he first entered into the agreement with the defendant, and was not at that time associated with Dupre, but the agreement with him was confirmed by defendant after he became a licensed dealer and had become associated with Dupre.

The sale on account of which the commission is claimed was not consummated until several months after Conklin had received a license and obtained employment from Dupre. There is no question about the right of Dupre to collect whatever amount is due, if any.

According to the testimony of Conklin there was no condition to the agreement to the effect that defendants had the right to sell the property independent of the efforts of Dupre, and if they succeeded in doing so, that no commission was to be due Dupre. The agreement' admitted by both of the parties is affirmed by one of them to be subject to a condition. The other denies that it was subject to any condition, therefore the condition is not proved by a preponderance of evidence on the subject.

The evidence shows that Conklin about a week or ten days before the sale, at the instance of Dupre, erected on the property in a conspicuous place, a large sign which read: “For Sale. Apply to Dupre and Conklin,” giving their street address. The sign was erected in the presence of Griffith. He assisted in raising it into position. He admits this, but offers an explanation which is not satisfactory. He contends that he had already, and previous thereto, found a purchaser, but did not communicate the fact to plaintiff nor Conklin, but withheld the information from them.

The defendants also called the lady who had bought the property and her husband, and their testimony has been weighed and considered.

We are satisfied that the amount claimed by the plaintiff is justly due him by the defendants.

We agree with the District Judge in all his conclusions.

Judgment affirmed, defendants and appellants to pay the costs in both courts.


author: LECHE, J.

text:
    No.-
    First Circuit
    KILBERG v. LOUISIANA HIGHWAY COMMISSION
    (April 11, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Louisiana—Par. 51, 53; Refer to Municipalities — Par. 251.
    Under Art. Ill, Section 35, of the Constitution the State may only be sued with its permission. Therefore,- the Louisiana -Highway Commission can not be sued for damages due to a fault of its agent acting within the scope of his governmental powers.
    Appeal from the Parish of East Baton Rouge. Hon. George K. Favrot, Judge.
    Action by Oscar Kilberg against Louisiana Highway Commission.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed maintaining exception no cause of action.
    Peterman, Dear and Peterman, of Alexandria, attorneys for plaintiff, appellant.
    W. M. Barrow, of Baton Rouge, and Percy Saint, Attorney General, of New Orleans, attorneys for defendant, appellee,
   LECHE, J.

The question involved in this case is whether the Louisiana Highway Commission may be sued for damages ex delicto. The District Court held that it could not, and for that reason the Court maintained an exception of no cause of action and rejected plaintiff’s demand. From such judgment the plaintiff has appealed.

Oscar Kilberg, the plaintiff, charges in substance that he was driving an automobile in the night time in the Parish of La Salle, upon the public highway constructed and maintained by the Louisiana Highway Commission, when his automobile plunged into a ravine that' extended half way across said highway. That there was no warning light or signal of any kind to protect him from this dangerous situation, although such danger was well known to the said Louisiana Highway Commission, its agents and employees. That as a result of said accident he suffered great and permanent personal injuries from which he charges that he was damaged in the sum of Twenty-five thousand dollars. He sets out in detail acts and omissions, which, he avers, constitute fault and wanton negligence on the part of said Highway Commission, and prays for judgment accordingly.

The State of Louisiana, acting through the Attorney General, intervened in the suit, and filed jointly with the defendant Highway Commission, an exception of no cause of action.

The question then to be decided by the Court on this appeal is, as previously stated, whether, accepting all the facts alleged in his petition as true, plaintiff has a cause of action for damages ex delicto, against the Louisiana Highway Commission.

Defendant in brief contends that it is a State agency, created for the purpose of constructing and maintaining the public highways, that it exercises governmental functions on behalf of and as mandatory of the Sovereign, that it may not be sued for such cause of action without special permission of the State.

The Constitution, Article YI, Section 19, ordains that the Legislature shall provide for the establishment and maintenance of a system of highways in this State, and shall also provide for a general highway fund for that purpose. The Legislature, in obedience to this mandate, by Act 95 of the extra session of 1921, created the Louisiana Highway Commission, defined its powers and provided for raising revenues with which said Commission could carry out the purposes of its existence, so that there is no doubt that the Louisiana Highway Commission is a State agency, and that in the construction and maintenance of highways it exercises governmental functions.

Plaintiff, however, relies for authority to institute this suit, on the clause in the Act creating the Commission whereby said Commission is declared to be a body corporate and that as such, it may sue or be sued in any court of justice; but the statute is sileht as to the nature of the causes of action upon which the Commission may sue or be sued. The quoted clause in the Act must be read in connection with the fundamental constitutional principle tliat the State may only be sued with its permission (Sec. 35, Art. Ill), and where a State agency is acting within the scope of its governmental functions, it represents the State and as such, it may not be sued except with the permission of the State.

It is evident from other provisions in the Act that the clause subjecting the Commission to the liability to be sued does not confer upon a complainant a right of action whereby the Commission would be eventually deprived and dispossessed of the fund which is necessary for it to exercise its governmental functions and which is dedicated by the Constitution to that special purpose. To so hold would be to recognize that the usefulness of the Commission can be destroyed and the purpose of its existence frustrated through the fault and negligence of the persons appointed to superintend the work necessary to accomplish the legal ends of its existence.

The funds under the control of the Highway Commission are specially dedicated to the construction and maintenance of highways and cannot be diverted from that purpose without express legislative sanction, and even if it were conceded that the Commission could be sued for damages ex delicto, a judgment for damages ex delicto would be worthless. Of course, courts of justice will not lend themselves to render judgments which cannot be enforced or executed.

There is no reason why we should further construe the stipulation “that the Commission is a body corporate and that as such it may sue or be sued.” It is not necessary for the decision of this case for us to express any "opinion as to what actions may be brought against the Commission. Such opinion would be obiter dictum. Suffice it to say that we are clearly of opinion that the Louisiana Highway Commission may not be sued for damages ex delicto, and that therefore plaintiff’s petition does not disclose a cause of action.

Precedents are not wanting of cases wherein police juries, when in charge of the construction and maintenance of public roads, have been sued for damages for causes similar to that alleged in this case, but the courts have uniformly held that such damages were not recoverable. Bankins vs. Police Jury, 116 La. 639, 40 So. 925; Gaudet vs. Parish of Lafourche, 146 La. 363, 83 So. 653.

In fact no fault of an agent of the government can give cause for damages against the government when such agent is acting within the scope of his governmental powers. Jones vs. City of New Orleans, 143 La. 1073, 79 So. 865.

We believe that the judgment appealed from accords with the law and for the reasons above stated, it Is affirmed.


text:
    No.-
    First Circuit
    O’KEEFE AND SIMPSON, RECEIVERS OF A. BALDWIN COMPANY, LTD., v. MAIN STREET PHARMACY, ET ALS.
    (April 11, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    •1. Louisiana Digest — Execution—Par. 55, ,74.
    A seizure made under a writ of fieri facias prematurely issued, confers in favor of the judgment creditor, upon the seized property, the privilege accorded by Code of Practice, Art. 722.
    2. Louisiana Digest — Injunction—Par. 125; Attorneys — Par. 59.
    Twenty-five dollars considered sufficient damages as attorney’s fee for dissolution of writ of injunction wrongfully issued.
    Appeal from the Parish of East Baton Rouge. Hon. George K. Favrot, Judge.
    Action by O’Keefe and Simpson, Receivers of A. Baldwin Company, Ltd., against Main Street Pharmacy et als.
    There was judgment for defendant and plaintiffs appealed.
    Judgment reversed.
    Jess Johnson, of Baton Rouge, attorney for plaintiff, appellant.
    D. J. Sanchez, of Baton Rouge, attorney for defendant, appellee.
   LECHE, J.

The only issue in this case, is whether a seizure made under a writ of fieri facias prematurely issued, confers in favor of the judgment creditor, upon the seized- property, the privilege accorded by Art. 722, C. P. The District Judge held that, it did not, and the plaintiffs have appealed.

Plaintiffs obtained judgment against defendant on October 24, 1927, a writ of fi. fa. in execution thereof was issued on November 2, 1927, and defendant’s property was immediately seized thereunder. Defendant’s property was then placed in the hands of a Receiver on November 4, 1927. Defendant’s Receiver seeks to enjoin the seizure, and contends that as the writ was issued and the property was seized before the expiration of ten days, the delay fixed for the execution of judgments by Art. 624, C. P., as amended by Act 163, p. 321, of 1898, the seizure is of no effect and does not confer a privilege.

The question is not new. “A fi., fa. prematurely issued is a mere irregularity. If defendant suffers the delay to expire without any action, he waives the prematurity.” Wheeling Pottery Company vs. R. Levi, 48 La. Ann. 777, 19 So. 752; Cluseau vs. Wagner, 126 La. 375, 52 So. 547; Dannenman & Charlton vs. Charlton, 113 La. 277, 36 So. 965; Alfana vs. Franek, 159 La. 498, 105 So. 598.

The only penalty for a premature issuance of a writn of seizure under a judgment is that it becomes null and void in case the judgment debtor takes and perfects a suspensive appeal.

Whether defendant was solvent or insolvent at the time the seizure was made, cannot be made an issue in this case, as that matter is not presented by the pleadings.

For these reasons, the judgment of the District Court is avoided and annulled and it is now ordered that the preliminary writ of injunction herein issued, be set aside, and the defendant’s demand for a permanent injunction, refused. It is further ordered that the Receivers of A. Baldwin and Company, Ltd., have judgment against the Receiver of Main Street Pharmacy for twenty-five dollars damages as attorney’s fees. All costs to be paid by appellee.


author: ODOM, J.

text:
    No. 2480
    Second Circuit
    CITY ELECTRIC SHOP, INC., v. H. & G. OIL & GAS CO., ET AL.
    (May 22, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625, 626.
    The finding of trial court on matters of fact and credibility of witnesses, where clearly correct is affirmed.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by City Electric Shop, Inc., against H. & G. Oil and Gas Company, et al.
    There was judgment for plaintiff and defendants appealed. /
    Judgment affirmed.
    Mabry & Carstarphen, F. G. Thatcher, of Shreveport, attorneys for plaintiff, appellee.
    Dickson and Denny, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

This is a suit to recover the amount alleged to be due for the installation of electrical wiring and fixtures in a filling station.

There was judgment for plaintiff and defendant appealed.

OPINION

The defendant employed contractors to erect a filling station in Jewella, which contract included wiring at $75.00. The contractors employed plaintiff to do the wiring according to the specifications. When the station, including the wiring, was practically completed, plaintiff called Mr. Comegys, of the defendant company, to know what fixtures he wanted installed. When Mr. Comegys went to the station and met a representative of plaintiff company he expressed dissatisfaction with the wiring, stating that there were not enough outlets for lights provided for; whereupon lie was informed that plaintiff. had done the wiring in accordance with the specifications. Comegys not being satisfied, instructed plaintiff’s representative to rewire the station in accordance with his views. Plaintiff’s representative informed Mr. Comegys that there would be considerable extra labor and expense connected with the changes suggested, but no amount was specified. However, Mr. Comegys ordered the work done.

Comegys says he was told that the expense would not be great, but admits that he ordered the work done and it was done.

The only complaint which the defendant makes is that the charge is excessive.

Plaintiff attached to its petition an itemized bill showing in detail' the material and labor used, together with the price of each item.

Mr. Morrisett, of .the plaintiff company, testified that all the material itemized on the bill was used and that the charge for labor was correct, all of which charges, he said, were in line with those prevailing in the city.

Plaintiff called as a witness Mr. Elliott, an electrician engaged in contract work in the city, who testified that he had made a minute and detailed inspection of the work and that the items charged by plaintiff were all necessary and that the charge was reasonable and in keeping with prices charged by other responsible electricians, except two items, to-wit: $12.00 for extra switch on pump and $35.00 for extra wiring for pump lights, which items, he thought, should be reduced by one-third. He said, however, that the charge for some other items was below cost.

Admittedly the bill rendered by plaintiff is higher than it would have been had the same work been done while the work of erecting the building was in progress, as is the custom, and as was' done on the original contract; but a complete rewiring of the station was ordered after it was completed or practically so, which was considerably more difficult. Then, too, the system was changed from knob and tube to conduit, which is much more expensive.

Plaintiff called as witnesses some of the men who were employed in the work, all of whom testified that the work was done according to the itemized bill and' that the charges were usual and reasonable.

The only electrician called by defendant was Mr. L. G. Bres, who said he had figured with Mr. Comegys for doing the electrical work at a similar station and the bill which he submitted was $290.00, but included no fixtures; but he stated he knew nothing of the material used in this instance and knew nothing of the circumstances under which the work was done, that is, he did not take into consideration that the work was done after the station was practically completed. His testimony shows that he was not in position to dispute the correctness of plaintiff’s bill.

Plaintiff made out its case. We note that the District Judge awarded plaintiff only $474.97, from which we infer that he reduced two items, one for $12.00 and one for $35.00 by one-third, in accordance with the views of Mr. Elliott who was a competent electrician and wholly disinterested.

The judgment appealed from is correct, and is accordingly affirmed with costs.

WEBB, J. Recused.


text:
    No. 10,179
    Orleans
    FRANZ v. N. O. COFFEE CO., LTD.
    (June 18, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — insurance—Par. 166, 170.
    An owner of an automobile, who has been indemnified by an insurance company for a part of his loss occasioned by a collision with another automobile, may nevertheless maintain an action against the owner of the other automobile in his own -name for the entire amount of damages sustained by the collision.
    Appeal from Civil District Court. Hon. Hugh C. Cage, Judge.
    Action by L. J. Franz against New Orleans Coffee Company, Ltd.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Spearing, Miller and Mabry, of New Orleans, attorneys for plaintiff, appellant.
    John C. Hollingsworth and S. J. Tennant, Jr., of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff sued for $470.36 as damages alleged to be due him as a result of a collision between his automobile and one belonging to defendant.

The examination of the first witness placed upon the stand by plaintiff disclosed the fact that plaintiff had been paid all of his alleged damages except $99.00 by an insurance company, whereupon the judge maintained an exception of no 'cause of action as to the amount paid and dismissed the suit for the remaining $99.00, because of the lack of jurisdiction.

The judgment appealed from is clearly erroneous.

Hanton, et al., vs. New Orleans and Carrollton R. L. and P. Company, 124 La. 562, 50 So. 544; Griffith vs. Keller, 147 La. 540, 85 So. 233; Smith vs. Richland Compress & Warehouse Company, 153 La. 820, 96 So. 668; First National Bank of Miami vs. Jefferson Construction Company, 162 La. 47, 110 So. 84; Hennican vs. Woodman, 1 La. App. 281; Hendren vs. Crescent City S. & M. Water Company, 1 La. App. 625.

The judgment appealed from is reversed and the cause remanded for further proceedings according to law and the views herein expressed.


text:
    No. 10,043
    Orleans
    JACKSON BREWING CO. v. AARON ROSEN
    (May 7, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Mandate—Par. 8, 9.
    To prove that A has signed a certain contract as the authorized agent of B, evidence tending to show a temporary partnership agreement between A and B as to a much larger contract interest with reference to same subject matter is not sufficient.
    2. Louisiana Digest — Appeal—Par. 625.
    Decision of trial court, where amply sustained by the weight of the evidence, will be sustained.
    Appeal from Civil District Court, Dlv. “A.” Hon Hugh C. Cage, Judge.
    Action by Jackson Brewing Co. against Aaron Rosen.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for plaintiff, appellant.
    Woodville and Woodville, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

This suit for One thousand, nine hundred seven and 36-100 ($1,907.36) Dollars, damages for alleged breach of contract, was filed on July 16, 1924. As the contract for purchase of ten cars of bottles, copied in full in Paragraph VI of the petition and later offered in evidence, was dated June 2, 1920, and was signed American Bottle Co., M. R. Rosen, plaintiff alleges that M. R. Rosen was acting as the authorized agent of his father, A. Rosen, the defendant, in signing the document.

Defendant, after denying all knowledge of the existence of the contract, specially denied that he had authorized his son to sign the contract for him 'or that he had ever ratified the contract in any way.

The Judge of the lower court, after a thorough analysis of the evidence, found that defendant had sustained his defense and dismissed the suit.

Plaintiff has appealed.

The sole question before us is one of fact. Has plaintiff proved the alleged agency of the son?

At the outset we admit that he has proved conclusively that defendant did business both before and after the date of this contract in the name of American Bottling Company, but the record also shows that defendant’s son was operating individually under the same name during that time and it was clearly necessary for plaintiff to prove in addition to the above fact, that the son was acting for his father in this specific instance. Plaintiff clearly recognized this burden and, although he was unable to offer any direct evidence on this point, he has sought to prove it by the testimony of L. A. Henline, former cashier of the Liberty Bank & Trust Company, to the following effect:

One of the stockholders of the bank stated that bottles were scarce at the time and that M. R. Rosen, who had large contracts to supply bottles at a good price, needed financing to get banking credit. A. Rosen, defendant, was required to transfer his account from another bank to the Liberty, and on March • 30, 1920, an account was opened there in the name of American Bottle Company, of which A. Rosen was proprietor and M. R. Rosen manager; the first loan of Five hundred ($500.00) Dollars was made on that day and from that time until June 28, 1920, various other loans were made on notes of American Bottle Company, A. Rosen, proprietor, secured by bills of lading on carloads of bottles; A. Rosen, defendant, was alone responsible to the bank.

June 7, 1920, on urgent request of defendant, balance in the account of the American Bottle Company was withdrawn and defendant, A. Rosen, on that day opened an individual account in his own name, a written agreement having then been prepared by him as -cashier and signed by both Rosens according to the terms of which M. R. Rosen would from that date become the sole proprietor as well as manager of the bottle company.

A check for Five thousand, two hundred fifty-one and 50-100 ($5,251.50) Dollars, dated June 2, 1920, given by plaintiff to the bottle company in payment for bottles was endorsed by the payee and deposited on June 2, 1920, in the bank, the proceeds thereof being used to take up the joint debts above described, the balance of these items on June 4th amounting to Five thousand, two hundred forty-five and 26-100 ($5,245.26) Dollars.

Defendant alone was responsible to the bank for these loans, checks of plaintiff, No. 18538 for One thousand, one hundred seventy ($1,170.00) Dollars, No. 18541 for One thousand, four hundred eighty ($1,-480.00) Dollars, and No. 18540 for One thousand, five hundred fourteen ($1,514.00) Dollars, endorsed American Bottle Com-, pany, M. R. Rosen, proprietor, approved by him, were all accepted after the change in the account was made on June 7th.

On cross-examination he stated bills of lading were delivered to M. R. Rosen, but that notes were signed only t>y American Bottle Go., A. Rosen, proprietor; agreement by which defendant gave up his intérest was made on June 7th; does not know what became of the agreement or signature cards.

His testimony is partly confirmed by the following documents in the record:

(1) Ledger sheet of the bank showing account of American Bottle Company, opened on March 30, 1920, with loan of Five hundred ($500.00) Dollars and various other credits and debits up to June 28, 1920.

(2) Typewritten statement of the balance of the' American Bottle Company on June 7, 1920, showing deposits and withdrawals down to that date when account was apparently balanced..

(3) Typewritten statement of checks drawn and deposits made by A. Rosen, the account having apparently been opened on June 7, 1920, with a deposit of Six hundred twenty-nine and 09-100 ($829.09) Dollars and still continuing up to January 5, 1925.

(4) Two checks of plaintiff, one for Two hundred thirty-eight and 34-100 ($238.34) Dollars, dated June 25, 1920, the other for Two hundred thirty-two and 85-100 ($232.85) Dollars, dated June 11, 1920, endorsed by A. Rosen.

His testimony as to signatures on the notes is contradicted by the notes themselves, five of which are in the record, all being signed by American Bottle Company, A. Rosen, M. R. Rosen, and each showing on the back the collateral, namely bill of lading on certain car of bottles, endorsed by American Bottle Company and M. R. Rosen, manager.

Taking this testimony at its best for plaintiff, it shows that there was a partnership between the father and son with reference to the son’s purchase of bottles, which might have included the contract involved herein, but the testimony, no matter how favorably construed for plaintiff, fails to prove the agency of the son in this particular instance. This conclusion is confirmed by following facts:

Both the defendant, his son and his daughter, who was acting as Ms secretary during this entire period, all swear that this was the son’s contract and the father knew nothing of it.

The attitude of Mr. Fabacher, the president of the plaintiff company, toward this transaction is correctly shown in the following extract from the opinion of the trial Judge, who prefaces his reasons for judgment in this case by the statement that he had become and was still prejudiced against both the Rosens owing to several matters that had previously come before this court:

“Now, if I had found that the Jackson Brewing Company, through its President, who made this contract, had known the American Bottle Co. by reputation, and had known and believed that Aaron Rosen was the proprietor, and that by making use of this name, The American Bottle Company, that it had been defrauded, I would not have hesitated, under the proper pleadings, to hold him. But I asked Mr. Fabacher, its President, what knowledge he had of the American Bottle Company, and he said he never heard of such a concern, never heard of Aaron Rosen and never knew anything of them until this young man, Maurice Rosen, appeared in his office in answer to the broadcasting he had done to everybody in New Orleans, who had bottles to sell, to come sell them to him, and he dealt with this young man cn the theory that he had bottles and could deliver, and he was in need of them and he incurred no liability, because he could afford to deal with an absolute stranger, who could get no money until he had a carload of bottles ready to deliver, with sight draft drawn by the vendor, with bill of lading attached and when the Jackson Brewing Company took up the bill of lading they got possession of the bottles, and under their agreement, they would withhold from Rosen a sufficient percentage of the invoice price to make themselves secure on bottles not up to specifications and lor breakage.

“I am, as I say, satisfied that the father and son, after embarking in this transaction, as a special kind of partnership, did dissolve it and the father withdrew and left the son alone in it, and I believe the son made that contract with the Jackson Brewing Company for his own benefit, and the Jackson Brewing Company not having been misled by this juggling of the name, which had been freely indulged in, had no cause to complain.”

Alphonso, an employee, and Cobb, the secretary of plaintiff company, testify that M. R. Rosen was the only one whom they consulted with reference to this matter. In a letter written March 10, 1921, Cobb refers to this as a debt of M. R. Rosen. Though defendant had been selling bottles to defendant off and on during the four years that intervened between the signing of this contract and the filing of this suit, the record nowhere shows any demand made of him.

For above reasons the judgment is affirmed.


text:
    No. 10,218
    Orleans
    PATTERSON & CO., LTD., v. JOHN BONURA & CO., INC.
    (April 9, 1928. Opinion and Decree.)
    (May 20, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Obligations—Par. 87; Sales — Par. 42.
    A contract of sale may be qualified by subsequent conduct of the parties in relation thereto.
    2. Louisiana Digest — Obligations—Par. 87, 162; Sales — Par. 122.
    The obligation to ship from Jamaica to New Orleans five hundred bags of cocoanuts “about October” is complied with by shipping a ipart of them November 2nd, and the remainder November 10th, when the vendee is notified on October 23rd verbally, and October 31st in writing that the vendor intends to ship in this way, and makes no objection until November 10th, the day on which the final installment leaves Jamaica, the vendor and vendee both residing in the City of New Orleans.
    Appeal from Civil District Court. Hon. William H. Byrnes, Jr., Judge.
    Action by Patterson & Co., Ltd., against John Bonura & Co., Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Prank N. Butler & S. Parkerson, of New Orleans, attorneys for plaintiff, appellee.

      Chas. Rosen, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff sold, and defendant bought, 500 bags of 100 nuts each of Jamaica selected cocoanuts at $4.00 per bag. The contract, which was in writing was entered into October 13, 1922, and the cocoanuts under its terms were “to be shipped from Jamaica about October,” meaning, as all are agreed, about October, 1922.

Some difficulty was experienced in getting the size nuts ordered, and in consequence shipment was not made until November 2nd when 300 bags left Jamaica, and November 10th when the remaining 200. bags left Jamaica. The nuts were rejected upon, arrival and plaintiff sues for the difference between the selling price and the market price at the time of defendant’s alleged default.

Defendant justifies its action in refusing to accept tjfie cocoanuts upon the ground that they were shipped too late and upon the further ground that they were of bad quality and unmarketable. The latter defense appears to have been an afterthought. It may be said to have been waived. Smith vs. Petta, 70 N. Y. 13; Littlejohn vs. Shaw, 159 N. Y. 188; DeHoff vs. Aspegren, 161 N. Y. Supplement 53. In any event it is not established. Twelve of the five hundred bags of nuts were examined by defendant and from fifteen to twenty per cent claimed to be bad. On November 23rd, several days after the examination defendant wrote to ¡plaintiff rejecting the shipment upon the ground that it came too late and though this letter was written after a conference with its attorney, as it states, no mention was made of the alleged defective nuts. Defendant, evidently thought little of this defense then and we think less of it now.

As has been said the nuts were contracted for shipment “about October.” They were shipped in two installments, November 2nd and November 10th. There is much discussion of the meaning of the word “about.” It is said that time was of the essence of the contract and “about October” meant “during October” and it is further suggested that “the best proof that time was of the essence in the case at bar, is the undisputed fact that the market dropped abruptly after November 11, 1922, from $4.50 to $3.40 per bag. This shows the absolute necessity for the cocoanuts to have been shipped during October, as then they would have reached New Orleans before November 11th.” On the other hand, it is argued that the decline in the market was the real reason for rejecting the shipment and not the lateness of shipment. It is unnecessary to consider the phrase “about October,” or to interpret its meaning, because the case turns upon another point. Whatever may have been meant originally by the phrase in question, its meaning was interpreted or modified, as the case may be by the subsequent conduct of the parties, R. C. C. 1956; Wilcoxen vs. Bowles, 1 La. Ann. 230; Brunning vs. Grinnage, 4 Orl. App. 429; Jacobsen vs. Mermillon, 12 Orl. App. 72; Metcalf vs. Green, 140 La. 950, 74 So. 261.

Mr. Patterson, who handled the transaction for plaintiff, testified that he notified Mr. Bonura, of defendant corporation, on or about October 23rd that the nuts could not be shipped from Jamaica during October but “half October and half November” and that Bonura assented thereto. This testimony is without contradiction or denial, though Bonura testified as a witness in the case. Following this conversation, plaintiff on October 31st wrote defendant as follows:

“Referring to your coco'anut order with us at $4.00 per 100 nuts, on which you expressed your -willingness to accept 126 to 130 lb. nuts, if at $3.50, we have just received a cable from our suppliers, stating that they have been able to obtain nuts according to the original contract weight, and are shipping 300 bags this week, and the balance next week at the original contract price of $4.00 which will, no doubt, be good news to you.
“We are very glad that we can arrange the matter to your satisfaction.”

No answer, whatever, was made to this letter, and no communication was had between the parties until November 9th, though their offices were within several blocks of each other and, of course, equipped with telephone. Under date of November 9th, plaintiff wrote defendant advising that part of the shipment had left Jamaica and the remainder would follow about the 10th. This letter was received by defendant the day after it was written, or November 10th, and, on the same day, it wrote defendant rejecting the shipment, saying, “We certainly cannot accept November shipment for October shipment in the first place, and, in the second place, there is a vast difference between the price of October cocoanuts and November cocoanuts.” This rejection was not final, however, and a conference was subsequently held at defendant’s request in its office. At this conference defendant’s representative displayed defendant’s copy of the contract (the contract was in duplicate) with a line drawn through the word “about”. This line was subsequently erased and the contract when introduced in evidence read as originally written though the marks of alteration are apparent.

It is fair to say that the individual responsible for the alteration of the contract is no longer in defendant’s employ, but, it is inevitable that this incident should impress us unfavorably.

The efforts to adjust matters failed and the nuts were finally rejected November 23, 1922. The market price of cocoanuts on that day was $2.60 per bag.

It is contended that November 10th when the market price was $3.60 per bag and not November 23rd when $2'.60 per bag is the day of defendant’s .default, if it is held to responsibility. We believe the latter date is the proper one because it was only on that day that final rejection of the shipment was made by defendant.

The trial judge in awarding plaintiff judgment as prayed for was of the same opinion.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No.-
    First Circuit
    DAVIS v. HILL
    (April 11, 1928. Opinion and Decree.)

      {Syllabus by the Editor)

    1. Louisiana Digest — Elections by the People — Par. 10, 63, 64.
    A vote cast by a person who had not paid poll .tax for the previous year was illegal and should be deducted from the count of the candidate for whom he voted.
    Appeal from the Parish of Vernon. Hon. Hal A. Burgess, Judge.
    Action by J. H. Davis against L. M. Hill.
    There was judgment for defendant and plaintiff appealed.

      Judgment affirmed except as to costs which are to be paid in equal proportions by contestants.
    Ferguson and Newman, of Leesville, attorneys for plaintiff, appellant.
    S. I. Foster, of Leesville, attorney for defendant, appellee.
   ELLIOTT, J.

This case was remanded to the lower court, and on the remand, the inquiry was limited to ascertain whether Barbara Bass had voted for J. H. Davis or L. M. Hill, and whether at the time the primary election was held, on February 28, 1928, she was liable for poll taxes for the two preceding years, and if so, whether said taxes had been paid by her.

All other questions were eliminated by our opinion and decree herein of March 22, 1928.

On the trial in the lower court, pursuant to the remand, the evidence showed, and the lower court held, that she voted for L. M. Hill; that she was liable for poll taxes at the time, and had not paid samé, and therefore she had no right to vote ■ in said election. Her vote was illegal, and was illegally counted, and when deducted from the vote of said Hill, left Hill with only 309 votes.

The record shows that Davis also received 309 votes, therefore the election was a tie, and neither party having received a majority of the votes, there was no nominee for the office of police juror for Ward Five of the Parish of Vernon, as a result of said primary.

The judgment so holding is correct, and is accordingly affirmed. The judgment, however, goes further, and acting under the provisions of Section 31, Act 97 of 1922, the trial Judge also entered an order directed to the Parish Democratic Executive Committee. But as the said committee is not a party to this suit, what he said in that respect is simply obiter dictum.

As for the costs, we believe they should be paid in equal proportions by the contestant and the contestee.

For these reasons, the judgment appealed from is affirmed, except as to the costs. One-half of the costs in both courts is to be taxed against said Davis, and the other half against said Hill.


text:
    No.-
    First Circuit
    PATIN v. CASSANO, ET ALS.
    (April 11, 1928. Opinion and Decree.)
    (May 8, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles—Par. 8; Pleading — Par. 56.
    Where one is hurt by the negligence of the drivers of two automobiles which collided he can sue both for damages in solido. Exception of misjoinder is overruled allowing each defendant to sever his defense from that of the other.
    Appeal from the. Parish of East Baton Rouge. Hon. George K. Favrot, Judge.

      Action by Joseph A. Patín against Henry Cassano et als.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed, exception of misjoinder overruled, and ease remanded to lower court for trial.
    Taylor and Parker, of Baton Rouge, attorneys for plaintiff, appellant.
    D. J. Sanchez, of Baton Rouge, attorney for Henry Cassano, defendant, appellee, and Cross and Moyse, of Baton Rouge, attorneys for J. L. Jeffries, defendant, appellee.
   ELLIOTT, J.

J. A. Patin claims of Henry Cassano and J. L. .Jeffries $17,595.00 in solido as damages on account of injuries received by him in a collision of automobiles in the City of Baton Rouge, one of which was driven by Henry Cassano and the other by said Jeffries.

Plaintiff alleges that on the invitation of Henry Cassano he was riding in an automobile truck belonging to and driven by Cassano. That he occupied a seat on the floor, in the rear of the truck, and that said Cassano, while driving on Scott Street and approaching the Center Street crossing, undertook to, make the crossing while driving at an excessive rate of speed, and without slowing down for the purpose of having his car under control. That with proper precaution he could have seen the car of said Jeffries coming on Center Street as it reached Scott Street, in time to slow down sufficiently to have avoided the collision. That the view of the crossing was obstructed, and the situation necessitated the exercise of ordinary caution, etc.

That said Jeffries was driving an automobile belonging to him, on Center Street. That he, Jeffries, approached the place where Center Street crosses Scott Street at an excessive rate of speed, without slowing down for the crossing or having his car under proper control. That with proper precaution he could have seen the Cassano car coming on Scott Street in time to have slowed down sufficiently to have avoided a collision with said Cassano.

He further alleges that both drivers approached said crossing recklessly and without the exercise of proper care, and without regard for the safety of the occupants of the respective cars. That said Cassano and said Jeffries each reached the crossing at the same time and ran together in a collision caused solely by their mutual fault, negligence, carelessness and recklessness. That plaintiff was injured as a result of the combined negligence, careless and reckless act of the two defendants, etc., and prays for judgment against them in solido for the amount stated.

The defendants Cassano and Jeffries each appeared and excepted to plaintiffs demand on the ground that there was a misjoinder of parties defendant. The exception was sustained and the suit dismissed. The plaintiff appealed.

The only question before the Court is whether the petition of the plaintiff alleges a cause of action which justifies, if true, a judgment in solido against the two defendants.

According to the petition it was the combined fault, negligence, carelessness and recklessness of the two defendants that brought about the collision which resulted in plaintiff’s injury. That without their combined act, fault and neglect as set forth in the petition there would have been no collision nor injury.

Such a charge involves but one cause of action against the two parties whose combined act produced the collision which caused the injury. If the allegations are true, then defendants are liable in solido. C. C. Art. 2091 and 2324. Cline Directors vs. Railroad Company, et als., 41 La. Ann. 1031, 6 So. 851; Ruling Case Law, Vol. 20, Subject, Parties, Section 18, p. 880, etc.

The defendants urge that it appears from the petition that there was no privity, collusion or concert in action between them in bringing about the collision, and that their defense will be antagonistic, etc.

The right to join the two defendants in the same suit does not depend on that fact, but on the fact that the act of each is alleged to have been wrongful, and that their combined act, negligence, recklessness and wrongdoing produced the collision which caused the injury.

It is alleged that such was the case, therefore the defendants can be joined together and if the facts justify it, can be condemned in solido for the damage done. The exception should have been overruled. The defendants should be allowed to sever in their defense if they so desire.

The judgment appealed from is therefore annulled, avoided and set aside. The exception of misjoinder filed herein by Henry Cassano and that by J. L. Jeffries is overruled, and the case remanded to the lower court to be proceeded with in the form and manner prescribed by law.

Defendants to pay the cost of the exceptions and the cost of appeal.