author: WEBB, J.

text:
    No. 3632
    Seccnd Circuit
    HILL, HARRIS & CO., INC., v. AVERETT
    (July 5, 1930. Opinion and Decree.)
    (July 31, 1930. Rehearing Refused.)
    R. W. Oglesby, of Winnfield, and H. W. Hill, of Alexandria, attorneys for plaintiff, appellant.
    Eugene Beck, of Winnfield, attorney for defendant, appellee.
   WEBB, J.

In this action, plaintiff, Hill, Harris & Company, Inc., alleged that it delivered to defendant, W. O'. Averett, roofing materials, consisting of shingles and other material necessary to be used in laying the shingles, of the value of $700.18, as shown by invoices annexed to the petition, to be sold at a price fixed by plaintiff, defendant to receive a commission of 75 cents on each square of shingles sold; that it had also loaned to defendant, a shingle machine of the value of $50; that defendant had accounted for material of the value of $553.67, for which amount he had been credited; that defendant refused to account for the balance of $146.51, or to return any material or the shingle machine, and plaintiff prayed for judgment for the balance due on the material and for the value of the shinglq machine, with legal interest from judicial demand.

In answer defendant denied that he was indebted to plaintiff in any amount, admitting, however, that the material had been delivered, to be sold as alleged, and that the shingle machine had been loaned to him. Defendant alleged that plaintiff was indebted to him in the sum of $92.25 for commissions, and in the further sum of $45, for storing materials, and $2.50 for repairs on the shingle machine; that he had some of the material on hand of the invoice value of $63, and the shingle machine, and defendant prayed that plaintiff’s demands be rejected and for judgment in reconvention against plaintiff for commissions, storage, and repairs on the shingle machine, and for judgment permitting him to return the material alleged by him to have been on hand and the shingle machine.

On trial judgment was rendered in favor of plaintiff for $113.80, the invoice value of material, for which the court found the defendant had not accounted, and for the further sum of $50, the value of the shingle machine, and in favor of defendant permitting him to return any of the material which had nqt been disposed of and the shingle machine, to be credited on the judgment in favor of plaintiff, and judgment was also rendered in favor of defendant for the sum of $55.65, and the costs of suit ordered to be paid equally by the parties.

Plaintiff appealed, and urges that it should have had judgment as demanded, and that defendant’s demands should have been rejected, and defendant has answered the appeal praying that plaintiff’s demands be rejected and for judgment against defendant as originally demanded, with all costs of suit.

Considering the demands of the parties relative to the material, the invoices which were annexed to plaintiff’s petition and filed in evidence show that the material consisted of 64 46/87 squares of shingles invoiced @ $580.76, and other material to be used in laying the shingles, consisting of “starters” and “ridge roll,” invoiced @ $76.94, and “nails,” etc., invoiced @ $37.88, showing the total value of the material at $695.58, instead of $700.18, as alleged, and, deducting the credits shown by the memoranda annexed to the petition and filed in evidence, leaves a balance of $141.91.

Defendant admitted that the material had been delivered to him, and he was bound to report all sales made and account to plaintiff for the proceeds (Clark v. Blank, 3 Orleans App. 439; Gilmore v. Gilmore, 137 La. 162, 68 So. 395), and the only evidence indicating that defendant was not given credit for sales of other materials than as shown by the credit memoranda annexed to plaintiff’s petition and filed in evidence is his statement that he had sold some shingles to J. E. Carter, for which credit was not allowed. But, if so, the evidence does not show that such sale was reported or the proceeds, if collected, remitted to plaintiff, and the only other evidence indicating that defendant should not account to plaintifr for the balance of $141.91 is his statement that some of the material, “nails,” etc., invoiced at $37.88, was not delivered to him, and the evidence indicating that defendant had some of the material on hand which would be returned to plaintiff.

As stated, defendant in his answer admitted that the material had been delivered to him, and the evidence tending to show that the “nails,” etc., had not been delivered to him was not sufficient to overcome the admission, especially in view of the fact that defendant was acting as the agent of plaintiff and that the evidence shows he knew the material was shipped to him and that he assisted in distributing the material to parties to whom he had sold shingles, and we do not find that the evidence relative to the material which defendant may have had on hand is sufficiently definite, either as to the character or quantity, to authorize a judgment ordering the material to be returned and accepted by plaintiff; and we are of the opinion that defendant should account to plaintiff for the sum of $141.91 on the material, less any amount which the evidence established that plaintiff was indebted to him growing out of the contract of agency.

There was not any evidence whatsoever offered in support of the' claim for storage on the material and repairs on the shingle machine, and the question is whether or not the evidence shows that plaintiff was due defendant any amount for commissions.

The credit memoranda and the evidence show that defendant was allowed credit for the shingles sold to Carter,. Strain, and Williams, but defendant contends that he should have been allowed credit, under the agreement, on shingles sold to Dr. Fittz and A. E. Raywinkel, the evidence establishing that 44 squares were delivered to the former and 33 41/87 to the latter by (plaintiff at the same time the material was delivered to defendant. The agreement relative to commissions was made between a salesman of the plaintiff company and defendant, and, while they disagree as to whether or not defendant was to receive a commission on the shingles delivered by plaintiff to Dr. Fittz and Raywinkel, it was shown that defendant had assisted the salesman in malting the.sale to Raywinkel, and a witness was called who stated that the salesman had said to defendant in his presence that he would be - allowed a . commission on the sale, and we find that the defendant is entitled to be allowed a commission of 75 cents on the shingles sold to Raywinkel, or $25.10, which should be credited on the amount due by defendant on the material.

There cannot, of course, be any question under the pleadings as to plaintiff’s right to recover the shingle machine, or its value (Civ. Code, art. 2893, et seq.), and, while it is certain that defendant should have returned the machine to plaintiff, the evidence does not show that plaintiff demanded the delivery of the machine or that defendant claimed the ownership or any right of possession adverse to plaintiff’s title, and he should be permitted to return the machine.

It is therefore ordered that the judgment appealed from be avoided; and it is now ordered, adjudged, and decreed that plaintiff, Hill, Harris & Company, Inc., have and recover judgment against defendant, W. O. Averett, in the sum of $141.91, less the sum of $25.10, with legal interest thereon from judicial demand until paid; and it is further ordered, adjudged, and decreed that plaintiff have and recover judgment against defendant in the further sum of $50, the value of the shingle machine, subject to the right of defendant to return the shingle machine to plaintiff within ten days from the date this judgment becomes final, and, in event of the failure of the machine to be delivered w thin the period stated, it is ordered that the judgment for said sum of $50 shall bear legal interest from the expiration of such period until paid. It is further or'ered that defendant pay all costs of suit.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 3634
    Second Circuit
    BEWLEY FURNITURE CO. v. McDANIEL ET AL.
    (July 5, 1930. Opinion and Decree.)
    (July 31, 1930. Rehearing Refused.)
    Bryan E. Bush, of Shreveport, attorney for plaintiff, appellant.
    John F. Phillips, of Shreveport, attorney for defendants, appellees.
   DREW, J.

The Bewley Furniture Company, a ¡partnership composed of F. A. Bewley and B. R. Bewley, sued defendants on a chattel mortgage note for the sum of $162.90 with 8 per cent per annum interest thereon from March 4, 1929, until paid, and 15 per cent upon both principal and interest, as attorney’s fees, alleging that they are the owners and holders of said note, before maturity and without notice, for a valuable consideration, that the note is made' payable at the rate of $15 per month, the first payment being due March 4, 1929, and that the chattel mortgage stipulates that failure to pay any two installments when due matures all future installments.

Plaintiffs allege that they sold to defendants one all-electric Atwater Kent radio No. 47 for the price and sum of $177.90 and that defendants made a payment of $15 at the time of the purchase and executed their solidary note for the remainder of $162.90 secured by a chattel mortgage on the radio. They further allege that defendants have failed to make more than two payments that are past due on the note and that therefore the entire note is due and unpaid.

They pray for judgment in solido against defendants for $162.90 with 8 per cent per annum interest thereon from March 4, 1929, until paid, and 15 per cent on the amount of principal and interest, as attorney’s fees, as stipulated on the face of the note, and for recognition of their vendor’s lien and privilege and chattel mortgage on the radio to secure the payment of the amount of principal and interest and attorney’s fees.

Defendants answered admitting the execution of the note and chattel mortgage and prayed to. be relieved from payment of the note for the reason that the radio was defective and worthless, and they pleaded want of consideration and asked that the sale be rescinded and be declared null and void.

The essential elements of plaintiffs’ case are both proved and admitted, that is, the price agreed upon between plaintiffs and defendants, the delivery of the radio, and the execution of the note and chattel mortgage, together with the down payment of $15 by defendants.

The only question for the court to decide is whether or not the radio was defective and whether the defendants have proved it to be defective and worthless.

The evidence shows that the radio was installed in defendants’ home by plaintiffs and that it was in good condition at that time; that afterwards there was some complaint on the part of defendants, and plaintiffs took the radio back to their place of business and on examination found a defective tube in it; that they replaced the tube with a perfect one and thoroughly tested out the instrument and found it to be perfect; that within a few days thereafter they delivered it back to defendants and hooked it up and that it operated perfectly, and that the reception from Cincinnati, Chicago and New York was good, and that since that time, some three weeks or more prior to the filing of this suit, there had not been any complaint from defendants about the radio.

Defendants contended that the radio had noises in it and that they could not get out of town stations on it except Dallas. They failed to account for the noises in the instrument or to show whether it was caused by local interference or by mechanical defects in the machine. Neither defendants nor any of their witnesses claim to have any mechanical knowledge of the workings of a radio, and defendants offered no evidence tending to show that anything was wrong with the machine, except that it had noises and they could not hear far-off stations well.

It is a matter of common knowledge that many things can interfere with reception on a radio; a loose connection, a bad tube, or any one of the numerous electrical machines and things of that kind that cause local interference and mar perfect reception. This could all happen and the machine still be perfect. It was incumbent on defendants to show by proper testimony that the machine itself was defective and they cannot resist payment of the price of the machine until they have done that. It is not shown that any of defendants’ witnesses were experts on radio or that any of them knew anything about a radio.

The radio was in the possession of defendants all the time after its delivery to them in February until the trial of this case in June, with the exception of the few days plaintiffs had it and checked it over. Defendants have not at any time offered to return the machine to plaintiffs or tendered it back to them, and the testimony shows that on the day prior to the trial of the case in the lower court defendants received over this radio the report of the ball game that was being broadcasted. It would be a strange law that would hold that defendants could keep the radio and make use of it daily and not be compelled to pay for it.

We think the testimony offered by defendants is not sufficient to show that the radio was defective or worthless.

The lower court rejected the demands of plaintiffs and left the radio in the possession of defendants. We think the "judgment erroneous and that it should be reversed.

We find in the record a statement made out by plaintiffs, showing that they had given defendants credit for $10 for one portable phonograph, thereby reducing the amount of the note to $152.90, which amount together with interest thereon at the rate of 8 per cent per annum from March 4, 1929, until paid, together with 15 per cent on both principal and interest, as attorney’s fees, is the amount of the judgment plaintiffs should have.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed, and that the plaintiff, Bewley Furniture Company, a partnership composed of F. A. Bewley and B. R. Bewley, do have and recover judgment against the defendants, W. D. McDaniel, Jr., and W. D. McDaniel, Sr.,, in solido, for the full sum of $152.90, with interest thereon" at the rate of 8 per cent per annum from March 4, 1929, until paid, and the further sum of 15 per cent on- both principal and interest, as attorney’s fees, and all costs of both courts; and that plaintiffs’ vendor’s lien and privilege and chattel mortgage on said radio be recognized and that the same be sold by the marshal of the city of Shreveport at public auction after due advertisement for cash and that the proceeds derived therefrom, after payment of costs, be credited pro tanto upon this judgment and if not sufficient to satisfy this judgment in full that the balance be executory and enforceable in accordance with law.


author: ODOM, J.

text:
    No. 3700
    Second Circuit
    ALEXANDER v. TEXAS & PAC. RY. CO.
    (July 5, 1930. Opinion and Decree.)
    (July 31, 1930. Rehearing Refused.)

      Foster, Hall, Barret & Smith, of Shreveport, attorneys for plaintiff, appellee.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

The plaintiff shipped a carload of mules over defendant's line of railroad from Fort Worth, Texas, to Shreveport, Louisiana. When the shipment arrived at Shreveport, one of the mules was fouDd to be lame and disabled. A veterinarian was called to treat it and he found that the mule’s hind leg had been injured, as a result of which blood poisoning had set up. The disease did not yield to treatment and the mule’s condition grew gradually worse. When all hope of restoring it had been abandoned, the mule was killed. Plaintiff brings this suit for its value, plus $15 expended for its treatment, $5 for having it dragged off and for $50 penalty for delay in making payment of the claim.

There was judgment in the lower court for plaintiff, as prayed for, and defendant appealed.

This was an interstate shipment • under the Uniform Live Stock contract or bill of lading. The plaintiff proved that the animal was delivered to the carrier in good condition; that it was received in bad condition, suffering from blood poisoning resulting from a wound; and that the disease resulting from the wound reduced the animal to such condition that its recovery was impossible. He filed in evidence the contract of shipment, proved the value of the animal and the expenses incurred and proved that the claim was not paid. This made out a prima facie case against the carrier.

The testimony offered by defendant shows that the animal was injured while being loaded into the car by it at Fort Worth. The defense is that the carrier was in no way at fault and the injury to the mule was self-inflicted.

Counsel for the carrier say in brief that the movement of this animal from Fort Worth to Shreveport was covered and that the parties are bound by the Uniform Live Stock contract or bill of lading in the form prescribed by the Interstate Commerce Commission governing the shipment of live stock and wild animals, which contract contains the following special provision:

“Except in cases of negligence proximately contributing thereto, no carrier or party in possession of any of the live stock herein described shall be liable for any loss or damage thereof or delay caused by the act of God, the public enemy, quarantine, the authority of law, the inherent vice, weakness or natural propensity of the animal, or the act or default of the shipper or owner or agent of either or by riots, strikes, stoppage of labor or threatened violence.”

The carrier especially pleads this exception in bar of plaintiff’s action and contends that the animal injured itself by kicking, which was a “natural propensity of the animal” for which it is not liable under the common law and under the plain letter of the contract. As to loss excepted by common law or by contract, the following rule is laid down in 6 Cyc., page 519:

“Proof of loss of or injury to the goods while in the carrier’s possession as carrier throws upon him the burden of showing that the loss or injury occurred by reason of one of the excepted causes, or that it was within some special exception made by contract. Therefore, in the absence of any showing on the part of the carrier, or any exception contained in the contract (if plaintiff sues on a special contract), proof of the loss or injury is sufficient. It is for the carrier to bring the case within one of the common law exceptions if he relies on such exception as a defense. So if the carrier seeks to escape liability on the ground that the loss of or injury to the goods is one excepted by a valid special contract, he has the burden of proving not only the. making of such special contract, but also that the loss or injury for which action is brought falls within a specified exception contained in such special contract.”

This rule prevails in all jurisdictions so far as we know.

If it had been proved that the animal injured itself by kicking, our holding would be that the carrier is not liable. But the testimony introduced by defendant shows that the injury was caused otherwise. The animals were loaded into the stock car in the usual way. The stock pens are adjacent to the railroad track. The animals are driven from the pen to the car through a chute which is a passage consisting of a bridge as a flooring and with wings on the sides. One end of the bridge rests on the edge of the pen and the other in che car door. When these animals were all in the car, the loaders put up the “bull board,” which is a piece of lumber 2x6 inches, extending across the car door on the inside and about three feet above the floor of the car. This “bull board” subserves a double purpose. The car door, which is closed by sliding, cannot be closed until the bridge which has one end resting in the door is “thrown,” or taken away. The “bull board” keeps the animals from getting out of the car between the moment the bridge is thrown and the closing of the door. The other purpose of the “bull board” is to keep the animals from throwing their weight against the car door, the weakest part of the car. Now here is what happened to the mule:

Being one of the last ones in the car, she was next to the door, and during the interval between the removal of the bridge and the closing of the door, her hind foot in some way slipped off the edge of the floor under che bull board and her leg went out of the car and down between the edge of the car and the “dock” (we don’t know what that is). She struggled to get her leg back but could not without help. In her struggles, her leg scraped the edge of the car door so that the skin, was lacerated and she bled profusely.

Mr. Ward witnessed the entire transaction. He says the mule “kicked and slipped out,” and again, “slipped under the bull board when he kicked out.”

Mr. Hickman also saw it. He said:

“Saw the mule while crowding them in and he was standing in front of the door and I saw him there at the time the bull board was pulled and seen him when he stepped out of the ear the .animals backed up and his foot went out the door.”

And again:

“They were crowding the mules in the car and this forced these mules back on this one and then is when the mule’s foot went out there.” •

Mr. Prodfitt, the inspector, was present and made a record o£ the injury which contained this note:

“Brown mare mule got hind leg down between car and dock.”

If either Dr. Hickman or Mr. Prodfitt saw the mule kick, they did not say so. But Mr. Ward says the mule “kicked and slipped out.” Conceded that she did kick, there is nothing to indicate that she injured herself by kicking. The injury resulted, not from the kicking, but from getting her leg outside the car and struggling to get it back.

Carriers cannot be and under the law are not required to warrant the safety of live stock against the consequences of their own vitality. If there is injury and loss due to the peculiar nature of the animals, the carrier is not liable, unless the loss could have been prevented by the. exercise of reasonable foresight and vigilance on its part. The carrier is relieved from liability from such causes if it has provided suitable means for loading and transportation and exercised that degree of care which the nature of the property requires, or has not contributed to the injury otherwise.

The transporting of animals in cars on railroads is opposed to their instinct and^ habits. They may injure themselves through fright or they may injure or kill themselves or each other. The carrier, therefore, has no means of securing absolute safety. But due to the propensity of animals to become frightened and nervous while being loaded, and the danger of slipping and falling in consequence, the carrier is required to exercise a high degree of care in order to prevent them from injuring themselves.- This animal slipped- and one of its hind legs went out of the door under the bull board. This very contingency could and should have been foreseen by the carrier and some safeguard, other than the bull board, should have been provided to prevent such accidents while the door was being closed. Not only that, the testimony affirmatively shows that if the bridge had been in place when the mule slipped, it would not have been injured. The bridge had to be moved, it is true, before the door could be closed, but it is shown that during the operation of removing the bridge preparatory to closing the door, the animals were nervous, restless, pushing and shoving each other about. Under such circumstances, they were likely to slip or fall, and as they were crowded in the car with some of them adjacent to the door, there was likelihood and danger that if one did slip, a part of its body would go out. Common prudence would suggest that the bridge under such circumstances should not be removed until the animals got quiet. We think the carrier was guilty of negligence in these respects and that such negligence was a contributing cause to the injury.

The carrier, we think, failed in its duty in another respect. There were two inspectors present, one of whom was a veterinarian. They saw the animal injured and saw that it was bleeding profusely. Yet it was permitted to go forward without any precautions being taken to prevent infection. They say it* was not their duty to treat the animal — that is, they were there to inspect and make reports. They did report the injury, but nothing was done, for the reason, they say, that they did not consider the injury serious. The injury in itself was not very serious, but infection set in, blood poisoning resulted, culminating in the loss of the animal. This could have been prevented by disinfecting the wound. As evidence of the fact that the carrier had knowledge of the injury to the animal, there was written across the face of the bill of lading before the shipment went forward, this notation:

“Brown mule right hind leg cut inside hock bleeding.”

¥e find no error in the judgment appealed from and it is accordingly affirmed, with all costs.


author: ELLIOTT, J.

text:
    No. 588
    First Circuit
    FOLSE v. HANNAGRIFF & EDMONDSON
    (April 14, 1930. Opinion and Decree.)
    (June 9, 1930. Rehearing Refused.)
    (August 7, 1930. Writs of Certiorari and Review Refused by Supreme Court.)
    Miller & Heintz, of Covington, attorneys for plaintiff, appellee.
    Milner & Porteous, of New Orleans, and Miller & Richardson, of Bogalusa, attorneys for defendants, appellants.
   ELLIOTT, J.

Numa J. Folse, the plaintiff, was badly injured in a collision between an automobile belonging to’ and while being driven by himself and another motor vehicle belonging to Hannagriff & Edmondson while being driven by a negro boy named Harry Sutton.

The occurrence took place after dark at about 8 o’clock p. m. on October 18, 1928, on the highway between Pranklinton and Bogalusa.

Plaintiff’s injuries were about as severe as one can sustain and live. In his petition for damages against the defendants on account of his said injuries the plaintiff avers that he was driving on the right-hand side of the road going from Bogalusa to Pranklinton, which was westward, accompanied by Elton Cooper and U.' B. Busby, and at a point about one mile from Bogalusa he saw, at a distance of about 200 feet or more ahead, what he subsequently ascertained was a motor wrecking truck, belonging to Hannagriff & Edmond-son; that the vehicle was headed toward Bogalusa, was without lights, and was parked on the wrong side of the road, for a vehicle coming toward Bogalusa; that when he got within 40 or 50 feet of it, as it appeared to be stationary, he turned his car toward the center of the road, intending to pass to the left of it, but, when his car came within about 30 or 40 feet of it, the driver suddenly flashed on his lights, started his car in motion, and headed in a diagonal course toward the opposite side of the road to that on which he had been parked, and, in trying to cross to that side, he ran directly into and upon petitioner’s car; that, when the driver of defendant’s car attempted to cut across to the opposite side of the road, the distance between the two cars was so short that it was impossible to get to the opposite side of the road without striking petitioner, or to permit petitioner to pass to the right of the truck; that the action of the driver in parking said truck on the wrong side of the road, without lights, and in leaving where he was as petitioner approached, and attempting to get across to the opposite side when petitioner was about to pass him, was gross negligence, and the sole and proximate cause of the collision and of petitioner’s resulting injury.

He claims of defendants $25,000 in solido as damages on account of his personal injuries, and $250 in addition on account of the loss of his automobile, which was destroyed by fire as a result of the collision.

The defendants admit in their answer that they are a commercial partnership, doing business in Bogalusa, and further admit on information and belief that plaintiff was driving his car on the night of the accident at a speed of 20 miles an hour, if not more. They deny that their truck was parked on the wrong side of the road, without lights, and aver that plaintiff, who had been driving on the right-hand' side of the road, suddenly cut across the road at about the point where the culvert crosses the road, in a diagonal way, and ran into the front fender of their truck, etc. They deny liability, and allege that plaintiff’s injuries were sustained directly and proximately as a result of his own gross negligence and recklessness in turning across the road from the side on which he was driving to the center of the road.

An exception of no right of action nor cause of action filed by defendants was by the court, on their own motion, referred to the merits, and is therefore not before us as an exception.

The plaintiff recovered a judgment in the lower court for $7,500. The defendants have appealed. Defendants urge that on the trial the lower court ruled erroneously concerning the following objections:

The plaintiff opened his case by offering in evidence a judgmefit of the district court of Washington parish, dated. November 3, 1928, emancipating and relieving him of the time prescribed by law for attaining the age of majority, to which no objection was made at the time.

Mrs. Ledet, plaintiff’s sister, later testified that their father and mother were both living, and had always lived in the parish of Lafourche; that plaintiff had been born there.

The plaintiff having completed his evidence in chief, defendants orally moved the court to dismiss the suit on the ground that the district court of Washington parish had no jurisdiction to emancipate and relieve the plaintiff of the time prescribed by law for attaining the age of majority; ■ that said judgment of emancipation was therefore null and void.

The exception was overruled. After ruling, the court permitted the plaintiff to produce and file in evidence the entire record of the emancipation suit.

The evidence shows that plaintiff was over 18 years of age at the time of the injury, which gave rise to the suit, and had been at the time living and working in Washington parish, away from his father and mother, about 18 months. The petition for his emancipation is addressed to the district court of Washington parish. It is signed by the plaintiff, and has on it a written statement at the bottom which purports to be that of his father and mother, stating that they believe the petitioner to be fully capable of managing his own affairs, and giving their consent to his emancipation. Judgment was rendered accordingly. Plaintiff’s father and mother are not parties to this suit.

The judgment is one in personam. The consent of the father and mother vested the district court of Washington parish with jurisdiction to act on the ' matter. The ruling was correct.

The other ruling of which defendants complain was brought about by a question which defendants asked a witness named Wroten Hall. This witness, while being questioned in chief, was asked;

“Q. How fast was that car going that passed you?
“A. It was making about 30 or 35.”

The plaintiff objected before anvthing further could be said, on the ground that he had alleged that he was on the right side of the road, driving on the right side of the road; that defendants had admitted in their answers that he was on the right side of the road, and swerved to the left just before the accident. The court, for reasons stated in the note of testimony, sustained the objection and excluded the evidence. Defendants explained the purpose of the proffered testimony as follows ;

“Counsel does not desire to contradict the judicial allegation as to the movement of plaintiff’s car; however, before the wrecker went into plaintiff’s car he was on the right-hand side of the road. But he alleged this swerving, which was something unknown to the defendant, and since that time defendant' has found that this witness and 6 others will say that plaintiff had been swerving and zigzagging from one side of' the road to the other, when they were passing him. And-prior to that time plaintiff’s car was on the righthand side of the road, as judicially admitted, and prior to the moment when it swerved to the left and some distance down the road, that they had been driving at an excessive rate of speed and swerving from one side of the road to the other, and we offer to prove that fact by this witness and 6 others who saw it. Having alleged that he swerved for some unknown reason, this evidence is eligible and should be admitted to prove the reason, or prove why he should be swerving at the moment he did.”

Defendants urge that the evidence was admissible under the averment in their answer, article 3, in which they “deny that at the moment of the accident the plaintiff was driving on his right side of the road but aver, on the contrary, that for some reasgn not known to your respondents, plaintiff, who had been driving on the righthand side of the road, suddenly cut across the road at about the point where the culvert crosses the road, in a diagonal way, and ran into the front fender of your respondent’s truck,” etc. And article 13, in which they aver “that he (plaintiff) crossed the center of the road and ran into the front fender of respondent’s truck, said truck being at all times on the right side of the road and in its proper place. But respondents aver, only in the alternative and only in the event that it may be shown on the trial hereof, that respondents or respondents’ driver were guilty of any negligence whatsoever, then and in that case respondents charge that the plaintiff was guilty of gross contributory negligence continuing down to the moment of the accident, in view of plaintiff’s judicial allegation that he saw respondents’ car 200 feet off, and 30 or 40 feet before the accident happened. And respondents further aver that if there was any negligence on respondents’ part, which is denied, then the plaintiff had the last clear chance to avoid the accident.”

The lower court; in sustaining the objection, stated in effect that, if there was judicial admission that “plaintiff was driving on the right-hand side of the road up to within 30 or 40 feet of where the wreck occurred, when he suddenly swerved to the left, that they are now estopped from proving anything that happened, one, two, or three hundred yards away from the wreck,” and sustained the objection.

We find, as stated by the lower court, that defendants have admitted in their answer, article 3, that plaintiff had, up until the time he cut across, been driving on the right-hand side of the road, and the purpose was to show zigzagging, etc. The ruling was .correct. Civ. Code, art. 2291. The evidence was also inadmissible under article 13 of their answer. The plaintiff is not charged in article 13 with negligence in the way offered to be shown. Plaintiff’s manner of driving about 300 yards before reaching the place where the collision took place had been judicially admitted. The objection was properly sustained.

The examination of the merits shows that the case depends largely on whether credit should be given to the testimony of the plaintiff and his two companions or to that of the driver of defendants’ car. According to plaintiff and Cooper and Busby, the three occupying the car, they left Bogalusa between 7:30 and 8 o’clock p. m. on the night of the day mentioned, and started to the Fair at Franklin-ton. They got on the highway and driving about 25 miles an hour, the lights of their car burning bright, when out on the road about a mile they saw under the lights of plaintiff’s car an automobile in the road about 200 feet ahead of them, facing them, without lights, parked on the right-hand side of the road in the direction they were going, and which was the wrong side for a car facing them. As it appeared to be stationary and to remain so, when plaintiff got within 40 or 50 feet of it, he swerved his car to the left, slowing down as he did so, intending to pass to the left of it. There was a culvert at about the point where he expected to pass it, but the evidence does not indicate that this culvert was the cause of the collision. Plaintiff testifies that the car which he sought to pass caused the collision by suddenly flashing on its lights about the time lie swerved, and shooting out angling toward the opposite side of the road from where it had been parked and running into his car; that the lights on defendant’s car flashed out, and defendant started up across the road just before plaintiff turned to the left; that the collision took place on the left-hand side of the road in the direction plaintiff was going; that plaintiff’s car turned over two or three times when it struck the other car, took fire, and was destroyed.

Cooper and Busby testified substantially as did the plaintiff. They say that plaintiff, at the moment of the impact, had slowed down to about 15 miles an hour. Busby says that the light turned on by the parked car was dim; he thought it turned on but one light; that the collision occurred in about the center of the road; that plaintiff’s car had at the time passed the middle of the road.

Defendant’s driver gives a totally different version .of the occurrence. He testifies: That he had been out on the highway to fix a tire, and was on his way back to Bogalusa. That he was driving at about 25 miles an hour on the right-hand side of the road in the direction he was going, which was east. That, when he got within about 100 yards of the culvert, he saw plaintiff’s car coming around a curve.' That they were on the right side of the road, meaning the side he was on, which was the wrong side for a car going toward Franklinton. That, when they got close to him, he saw that they were not going to move, so hfe blew for them, jammed on his brakes, and they met on the culvert. Witness estimates that plaintiff’s on-coming car was about 200 feet from him when he first saw it, and running about 25 or 30 miles an hour.

“Q. It has been testified here by Mr. Folse and the two gentlemen who were with him that your wrecker was standing still on this culvert, parked, with the lights out. What have you to say about that?
“A. I had no business parked out there. I was by myself and I was driving coming back from fixing that tire.
“Q. You were not parked?
“A. No, sir.”

That both the lights on his car were burning all the time he was driving it. That the collision was not exactly head-on. That plaintiff came in a little on his left side. That his • car was jammed on his left-hand side. That he had slowed down and was at the moment of the impact going at about 10 miles an hour.

•H. R. Middleton, who saw both cars almost immediately after the collision, stated that the best he could remember was that the coupe, which was plaintiff’s car, was wrecked on its right side, and defendant’s car on its left front end. This is consistent with the version of plaintiff and his companions. But, if plaintiff had been driving on the left-hand side of the road, going toward Franklinton, and if defendant’s driver had maintained his position on the right-hand side of the road going toward Bogalusa, as he contends, then the impact must have been head-on; and, if not head-on, then the most likely result would have been that plaintiff’s car would have been struck on its left front end, and defendant’s on its front end. The photographs show that plaintiff’s car was struck on the right front end, and defendant’s seemingly mostly on the front end; which again corroborates the plaintiff and contradicts defendant’s driver.

A witness, Mr. Simmons, stated that on the night of the collision he passed defendant’s wrecker parked on the highway, without lights, about 2% miles west of where the collision took place; that a negro boy was standing in front of it; that he hollered at the boy, and told him to put on his lights. The fact that defendant’s car had been thus seen parked without lights some 2% miles west of the place where plaintiff says he found it parked, without lights, is also some, though very light, corroboration of plaintiff’s contention.

There is also some testimony which tends to support the defense: A policeman on night duty in Bogalusa testified that he saw the plaintiff, Folse, and Elton Cooper on Columbia street between 7:30 and 8 p. m. on the night in question. He noticed Cooper, the way he was walking, and that he was bareheaded, and says he was drinking. He further testified that he had arrested Cooper several times for drinking, that he also looked across the street, and saw Folse sitting with his arm on the seat of the coupe; that just before Cooper got to the car Folse said, “Come let’s go to the Fair.” A few minutes afterwards he got notice of the wreck on the highway, that Cooper had turned the car over, or something like that.

Cooper testified that he did not see the policeman, and that he was not drinking nor driving the night in question. Plaintiff did stop on Columbia street, and Folse testified that, while they were stopped, Busby was sitting in the car with him. The officer did not speak of seeing Busby, and Busby did not speak of seeing the policeman.

Wroten Hall testified that he was in. a Ford touring car with six others on the night in question going from Bogalusa to the fair in Franklinton; thát plaintiff and his two companions passed them at Nye’s filling station, making about 30 or 35 miles an hour; that they went on about 300 yards from there and ran into the wrecker; that they went on down there; that there were some there before them, etc. This witness further testified:

• “Q. When was the last time, prior to the accident, that you saw the Ford car on the righthand side of the road heading toward Franklinton?
“A. The last time I saw it was before he hit the wrecker, about 50 feet away, I guess. Then it was on the righthand side of the road.
“Q. What did it do then?
“A. He wheeled oyer to the left and ran into the wrecker.
“Q. Where was the wrecker?
“A. On the righthand side, as near as it could get to the curve of the bridge.
“Q. The wrecker was on its righthand side of the road?
“A. Yes, sir.
“Q. And the coupe was on its righthand side of the road?
“A. Yes, sir.
“Q. Until it was about 50 feet toward Bogalusa from the wrecker?
“A. Yes, sir.
“Q. The coupe swung to the left and ran into the wrecker?
“A. Yes, sir.
“Q. Was this the first time he swerved from one side of the road to the other before the accident? (Objection made and question not answered.)”

Another witness, a member of the party of seven who was in the automobile with Wroten Hall, stated that when the coupe passed them it nearly ran into them.

If, as the witness Hall says, he and his six companions were in an automobile about 100 yards behind plaintiff, and, like the plaintiff and his companions, on their way to the fair at Franklinton, he and his companions should have been the first to reach the scene of the wreck, but such was not the case.

Several men living on the roadside heard the crash of the collision, saw the fire, and ran out of their Houses and yards, some a distance estimated as about 50 feet, etc., another a distance of about 100 yards, and reached the place several minutes before the witness Hall and his companions did, in their automobile. In fact, Hall and his companions were among the last to arrive there. It follows that Hall and, his companions could not have been near enough, in the dark, to have seen plaintiff curve across the road to his left and run into defendant’s wrepker, as Hall claims to have done. The lower court could not have believed him, because his judgment is inconsistent with Hall’s testimony.

The credit due these various witnesses was evidently taken into account by the lower court. The note of testimony contains admissions in the application of which he was in a better position to judge than can be done on the appeal in this case.

The municipal speed limit was 15 miles an hour. The collision took place within the incorporated limits of the city of Bogalusa, but not within the street limits. It took place on the highway. The evidence is silent as to where the streets, in the direction plaintiff was going, ended and the highway commenced, but it is, we think, fairly inferable from the evidence that the city street system did not extend to the place where the collision occurred. The ordinance on the subject says:

“In the city limits no vehicle shall under any circumstances be driven at a greater speed than 15 miles per hour.’’

Some exceptions provided are not relevant to the present case. But the ordinance, notwithstanding the above language, when considered as a whole, appears to have exclusive reference to street traffic. It is commenced by the designation:

“Ordinance No. 189, Governing the street traffic in the City of Bogalusa.”

The provisions of the ordinance have reference to the use of the streets only, and therefore did not govern in the matter of speed at the place where the collision took place.

The Act of 1928, No. 296, subsection (b), of section 5, governs as to speed on the highway in question. Fifteen miles an hour is the provided speed for traversing or going around curves. But .it does not appear that the present collision occurred in a curve. Harry Sutton, driver of defendant’s car, in saying; “I was coming from towards Franklinton fixing a tire, when I got about a hundred yards from the culvert I seen these people coming around the curve at the service station; they were on the right side of the road,” does not necessarily mean that the collision took place on a curve. There is no evidence to that effect. The facts, therefore, bear out plaintiff’s contention that defendant’s car was parked in the dark, without lights, on the wrong side of the road, and as plaintiff came up close, defendant’s car appearing to be stationary, plaintiff was justified in swerving to the left for the purpose of passing to the left of it. It was therefore actionable fault for defendant to suddenly start up and shoot across to the opposite side of the road.

Defendant’s act and fault appears to have caused the collision, as claimed by the plaintiff.

The court properly rendered judgment in favor of the plaintiff.

Judgment affirmed; defendant and appellant to pay the cost in both courts.


text:
    No. 3779
    Second Circuit
    NELSON ET AL. v. SNELL
    (July 5, 1930. Opinion and Decree.)
    (July 31, 1930. Rehearing Refused.)
    Herndon & Herndon, of Shreveport, attorneys for defendant, appellant.
    Foster, Hall, Barret & Smith, of Shreveportj attorneys for plaintiffs, appellees.
   DREW, J.

Estelle Nelson died intestate on January 17, 1929, leaving as her sole heirs-at-law the plaintiffs herein, who instituted this suit against defendant for the recovery of one diamond ring, or its value of $252.

On December 17, 1928, the deceased, Estelle Nelson, either sold or pledged to W. M. Snell one diamond ring of the value of $252, at which time the said Snell gave to Estelle Nelson forty dollars and the following written agreement:

“I agree to sell Estelle Nelson one diamond ring for Forty-five ($45.00) Dollars March 1st, 1929 — said ring being same ring bought from her this 17th of Dec. 1928.
(Signed) W. M. Snell.”

On January 25, 1929, after the death of Estelle Nelson, her brother, Joe Nelson, one of the plaintiffs herein, called upon defendant to find out if the ring could be redeemed and was informed by defendant that it could not. That after Estelle Nelson’s death, it was a closed matter. It is very apparent from the testimony of Joe Nelson and the testimony of defendant on cross-examination that defendant was of the impression that the right to redeem or buy back given to Estelle Nelson was personal to her and that at her death no one else had the right to buy the ring back or to redeem it. There is no merit in that contention, and same is not made in this court by attorneys for defendant. However, we feel sure that this idea of defendant is the cause of this suit.

The question has been raised as to whether the ring transaction was in fact a pledge or a sale with the right of redemption. It is immaterial to the case. For if it be held to be a pledge, the defendant has been put in default by Joe Nelson in asking to redeem it, and also by tender of the money ($45) in open court on the day of trial, defendant never having complied with the law relative to pledged prdperty, hy sale, etc., and if held to be a sale with the right of redemption, it is equally clear that defendant has been put in default before the date for redemption had expired by Joe Nelson calling on him and requesting the right to redeem, which right was refused by defendant.

Defendant contends that there was never any actual tender by the plaintiffs, and that after the date of redemption, the ring was absolutely the property of defendant.

Tender of the money was not necessary under the circumstances. Defendant stated to one of plaintiffs that the ring could not be redeemed and that after Estelle Nelson’s death, it was a closed transaction. It is unnecessary to do a useless thing, and when informed that a tender will not be accepted, it is unnecessary to make one.

Plaintiffs contend that the ring was purchased by deceased from Hutchinson Brothers for the price of $252, and their testimony is corroborated by the salesman from Hutchinson Brothers and the sale ticket which was produced on trial of the case; they also testify that deceased had only one diamond ring and described the kind of ring and mounting, which corresponds with the description given by defendant of the ring he received from deceased. Defendant contends that the ring was of small value and. that plaintiffs have not sufficiently identified it as the ring that was purchased from Hutchinson Brothers. We think, as did the lower court, that the preponderance of evidence is that deceased had only one diamond ring, that she purchased it from Hutchinson Brothers and that it is the same ring received by defendant from deceased.

Defendant testified that he sold the ring to one of his fellow-workmen for $45 and did not produce the ring in court for identification, nor did he produce the witness who he claims bought the ring, although he was at the time of the trial working with defendant in the same place of business and was in the court room on the morning of the trial.

It is clear to the court that the defendant was attempting to take advantage of the death of Estelle Nelson to enrich himself at the expense of her legal heirs. His testimony is very contradictory in many instances and to a great extent discredits his own testimony. His attitude as shown by the testimony in this case is contrary to fair dealing.

The plaintiffs in this case are the sole and only heirs-at-law of the deceased and have the same right to redeem the ring as she would have had, had .she lived; they asked to be allowed to redeem the ring from defendant and were refused, and their only recourse left was this suit.

The lower court rendered judgment in favor of plaintiffs as prayed for, and we think the judgment is correct.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with costs.


text:
    No. 3786
    Second Circuit
    GENERAL MOTORS ACCEPTANCE CORP. v. CALHOUN CHEVROLET CO. ET AL.
    (June 2, 1930. Opinion and Decree.)
    (July 5, 1930. Rehearing Refused.)
    Hudson, Potts, Bernstein & Sholars, of Monroe, and Dale, Dale & Dale, of Vidalia, attorneys for plaintiff, appellee.
    Gilbert P. Bullís, of Vidalia, attorney for defendants, appellants.
   WEBB, J.

Defendant, Calhoun Chevrolet Company, a partnership composed of J. L. Calhoun and Edward Ussery, domiciled in the parish of Concordia, Louisiana, and engaged in the business of selling automobiles, and plaintiff, General Motors Acceptance Corporation, a corporation organized under the laws of and domiciled in the State of New York, and maintaining a branch office in Orleans -parish, Louisiana, entered into a contract, designated as the “GMAC Retail Plan,” which is conceded to have been entered into with the view that plaintiff would assist defendant in financing the sale of automobiles on the installment plan by purchasing of defendant notes taken by the latter from persons to whom it should sell automobiles.

The contract provided that the responsibilities are divided between defendant, dealer (Calhoun Chevrolet Company) and plaintiff, and with relation to the obligations of the parties with reference to the notes and division of responsibility, where the automobile is damaged by collision, the contract contains the following provision :

“GMAC (plaintiff) undertakes to followup and keep dealer advised' of delinquencies, and to co-operate with the dealer in educating and training dealer-’s personnel in securing payment from delinquent purchasers or in making repossession of cars where necessary.
“Dealer will take back any repossessed cars at any time, as is, subject to protection' against * * * loss resulting from collision outlined' below, and dealer will pay GMAC upon demand the amount of unpaid balance due GMAC on the obligation. Should repossession be made by GMAC at its expense, retail rebate, if any, will be retained by it.
$ * * * ‡ ‡ $
"Loss resulting from actual collision, damage will be determined on the following basis.
“(1) Upon inability of purchaser to meet his obligation as a direct result of the collision.
“(2) Upon return of car or salvage to dealer.
“(3) Upon cost of repairing actual damage resulting directly from collision, but in no case more than the outstanding balance on the obligation. Salesman’s commission, dealer’s overhead and cost of replacing or repairing dented fenders or running boards, weather worn or scratched paint jobs, motor overhauls, relining of brakes, accessories and tires are not to be included in cost • of repairing actual collision damage unless replacement or repair is necessitated directly by collision.
“(4) Where car is total wreck, by deducting from the balance due GMAC on the obligation, the junk value of car (in no case less than $25.00), in consideration of which the .salvage becomes property of dealer.
, .“(5) Where value of car after repair of actual collision damage is greater than the outstanding balance,- by deducting from the cost of repairs the difference between the outstanding balance and resale value of car.”

On September 17, 1928, defendant sold to J. E. Hodges, of Concordia parish, Louisiana, an automobile at the price of $767.85, of which $239.85 was paid, and for the balance of $528 Hodges gave his note, drawn to his own order and by him endorsed in blank, dated September 17, 1928, payable in twelve monthly installments of $44 each, which note was secured by a chattel mortgage on the automobile. The note, which bore 8 per cent per annum interest from maturity, contained the usual stipulations, that all installments should become due and failure of the drawer to pay any one of them, and for payment of attorney’s fees, and the note was transferred by defendant to plaintiff, defendant guaranteeing payment of the note, except as otherwise provided in the contract. Hodges paid two of the installments to plaintiff, but about the time the third installment was due the car was damaged in a collision, and Hodges removed it from the scene of the collision to a neighboring house, where plaintiff took possession of the car and had it removed to Mississippi, where some repairs were made to it, and thereafter the car was carried to Concordia parish, Louisiana, and tendered by plaintiff to defendant and demand made on defendant for the balance due on the note.

Defendant refused to accept the car or pay the amount demanded, and plaintiff stored the car in a garage in Concordia parish and instituted the present suit against defendant partnership and the individuals composing the partnership to recover judgment against them in solido for the balance due on the note, together with interest and attorney’s fees, and for recognition of the mortgage on the automobile.

Plaintiff annexed to and made part of its petition the note, mortgage and contract and in substance alleged the facts above stated, and defendants excepted that the petition failed to state a cause of action, which being overruled, defendants answered admitting the facts alleged by plaintiff and pleaded that plaintiff had, by taking possession of the car, released defendant from any liability on the note. Defendants further alleged that the car had not been’ properly repaired, and, further, that plaintiff was indebted to defendants in the sum of $20 for services performed at the request of plaintiff in removing the car from the place where it had been left by Hodges; and defendants prayed that plaintiff’s demands be rejected and for judgment against plaintiff in reconvención for $20 and all costs.

On trial judgment was rendered in favor of plaintiff and against defendant partnership and the members of the partnership in solido for the sum of $444 with 8 per cent per annum interest thereon from December 17, 1928, until paid, and 10 per cent on (principal and interest as attorney’s fees, and all costs of suit, subject to a credit of $20 as of date January 1, 1929, and reserving to defendants the right to have further repairs made to the automobile and to proceed against plaintiff for the cost of same.

Defendants appeal, and urge that the court erred in overruling the exception of no cause of action, and further urge that defendants having established that the damage to the car resulting from the collision had not been fully repaired the court erred in granting plaintiff judgment.

Appellants do not state what was the basis of the exception of no cause of action, but, as we gather from the brief, it is contended that under the provisions of the contract, “GMAC Retail Plan,” the parties contemplated that where the car should be damaged in a collision while in the possession of Hodges, the drawer of the note and owner of the car, plaintiff should obtain title to the car and have the repairs made before tendering the car to defendants and demanding payment of the balance due on the note, and that the exception was directed at the showing made by the pleadings that the ownership of the car, when tendered to defendants, was in Hodges, and that the tender was without effect.

As stated, defendant partnership guaranteed the payment of the note drawn by Hodges, and ordinarily it would be conceded that plaintiff would not be required to allege more than that the drawer of the note had failed to pay it after demand prior to the guarantee proceeding against the guarantor, and in the absence of a distinct stipulation that plaintiff should exhaust its rights against the drawer of the note and the property mortgaged to secure its payment before proceeding against the guarantor, the latter could not avail itself of such a defense much less demand that plaintiff, the holder of the note, should first acquire title to the property mortgaged to secure its payment and tender the property to the guarantor before proceeding against it; and we are of the opinion that the exception of no cause of action was properly overruled.

Considering the cause on the merits, and construing the stipulations quoted from the contract, “GMAC Retail Plan,” most favorably to defendant partnership, or that defendant had the right to deduct from the amount due by it as guarantor of the obligation of Hodges the cost of repairing the damage to the automobile, without regard to the responsibility of Hodges, which appears to be the construction placed upon the contract by plaintiff, the right was, we think, a matter of defense, which should have been pleaded, and the amount which it would have cost to repair the car established by defendants. The evidence did not fix the amount it would have cost to repair the car, but defendants’ rights were reserved in that respect, and defendants have no right to complain of the judgment.

The judgment is therefore affirmed at appellants’ cost.


author: MOUTON, J. MOUTON, J.

text:
    No. 602
    First Circuit
    NORWOOD v. BAHM
    (April 14, 1930. Opinion and Decree.)
    (June 9, 1930. Rehearing Refused.)
    (August 7, 1930. Writs of Certiorari and Review Refused by Supreme Court.)
    A. W. Spiller, of Hammond, attorney for plaintiff, appellee.
    P. M. Milner, of New Orleans, and Ellis, Ellis & Ellis, of Amite, attorneys for defendant, appellant.
   MOUTON, J.

On the morning of February 14, 1928, plaintiff, Miss Lucille Nor-wood, was struck at the intersection of Thomas and Orange streets, in the town of Hammond, by a truck which Charles Kemp, an employee of defendant, was driving at the time.

Judgment was rendered in her favor for $5,850 in damages, including medical expenses.

Defendant appeals.

Thomas street runs east and west through Hammond, Orange street, north and south, but is a blind street as it crosses Thomas street, stopping on the north line of that street. The East Side High School building, of Hammond, is situated south of Thomas street, near the intersection of the two streets. There is a pedestrian or foot crossing which runs from the northern side ol Thomas street across that street into Orange street.

Plaintiff was, at the time of the collision, teacher in the East Side High School. She was going there at about 8:30 a. m. to begin her day’s work at that institution, when she was injured. It was while she was walking on this crossing from the north side of Thomas street on her way across that street that she was struck by the truck Charles Kemp was driving. The collision' occurred about the center of Thomas street, or perhaps a little further to the north thereof. The truck was going east, at the time, while plaintiff was coming from the opposite direction on the north side of Thomas street before she turned around to cross that street on the footway which led towards the high school.

The trial' judge found that when she approached the crossing which she was accustomed to use daily, that she started across Thomas street without looking west or in the direction of the approaching car, and did not see or hear it. It seems that her head was inclined downward while she was going over the crossing, and there is therefore no error in the conclusion of fact arrived at by the court, as above stated. Her hearing in the right ear, the direction in which the truck was advancing on her, was only slightly deficient. This is shown by the evidence of Mr. L. A. Simms, superintendent of the schools in Hammond, who testified that she had taught many years, and that he had never heard that her hearing was in the least affected until after the accident, which unquestionably caused the deafness with which she was afflicted when the case was tried. Although the judge said that plaintiff was unconsciously walking on the crossing, and had not seen the truck which was bearing down upon her, the court found that the driver was however responsible for the collision, as he then had a clear vision ahead of him, could and should have seen the dangerous position where plaintiff had placed herself, and in time to have averted the accident. The district judge therefore applied the doctrine of the last clear chance, and held defendant liable.

It is shown that over 500 children were in daily attendance at that school where this accident occurred, and that about one-third of that number, and also the general public, used the crossing in question every day. The fact is that this crossing was used to such an extent that the boy scouts had undertaken to regulate the traffic there, and that a policeman had been asked to be placed at that crossing. It is also shown that Thomas street, over which 'this crossing runs, is the main thoroughfare of the town of Hammond, which makes it apparent that, at the opening hour for that school, at which time this accident happened, a dangerous situation existed there, imposing unusual care and caution on drivers of cars, autos, or trucks at the intersection of Thomas and Orange streets.

Charles Kemp, the driver of the truck, passed that spot in his delivery wagon, which he operated for defendant, many times every day, had besides been a pupil at that school, and was perfectly familiar with the conditions which existed there at the opening hour of the school, and knew that a large number of these children congregated in its vicinity and, with others, used the footway across Thomas street where his truck collided with Miss Nor-wood, plaintiff in this case, and one of his former teachers at that institution.

In Mequet v. Algiers Mfg. Co., 147 La. 364, 84 So. 904, the court, in the syllabus says:

“The driver of an automotive vehicle on a public street must, at points provided for the passage of pedestrians, exercise a high degree of care to avoid accidents, etc.”

Further on in the opinion, the court, in addition to the foregoing statement, expressed itself in the following language:

“But at the points provided for the passage of pedestrians they have the right to assume that the operators of such machines will observe that high degree of care imposed by the circumstances.”

And again in concluding the opinion, the court, in referring to pedestrians, said:

“We do not mean * * * that he is to be excused for failing to use his own senses to being injured; but that the greater duty and care rests upon those who use these dangerous agencies carrying such great possibilities of harm.”

In the opinion of the court from which the above is taken, the unusual care required of the driver of an automobile when he approaches a street crossing where people are constantly crossing is set out in clear and unmistakable language.

In a later case, Duffy v. Hickey, 151 La. 274, 91 So. 733, in reviewing the very case from which we have extracted the quotations hereinabove given, the court in defining, with more precision, the duties of the driver under similar circumstances, held the following to be the rule:

“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 and to have his lights burning.”

The reference to the lights burning has, we must say, no application here, as the accident occurred in broad daylight, but the rule embodied in the foregoing expression of the court, in our opinion, applies with equal force when the elements of danger, to which we referred, are present when the collision occurs, whether the time at which it happens be day or night.

The two cases cited by us are not referred to as precisely or exactly presenting the same facts which appear in the instant case, but which we have invoked because they recognize the rule which should invariably govern car or auto drivers when they are confronted with conditions demanding the commensurate care required to avoid collisions which may, at any time, arise from emergencies at pedestrian crossings where people are “constantly crossing.”

In order to bring the vital issue in this case under the operation of the rule above reproduced, our first inquiry must be in reference to the speed at which Charles Kemp was driving the truck when it struck plaintiff.

Frank Sawyer, the driver, at the time of the occurrence, of a school truck for the school board, saw the accident. Thomas street, on which the truck was traveling, has an asphalt pavement 18 feet wide, with gravel shoulders of about 3 or 4 feet on each side, not including the gutters to which the street extends. He heard the squeaking on the pavement of the wheels of the truck as it slipped or skidded after the brakes had been applied by Kemp before the collision occurred. Immediately after the accident he noticed a depression in the asphalt, which as he expressed it, showed where the brakes “started” to “hold” or “grip” the pavement. The imprint of the wheels of the truck were measured by him. He says he stepped along the line of the marks on the asphalt which showed the skidding of the wheels of the truck, and that these marks started at about 20 or 22 feet on the west side of the foot crossing Miss Norwood was using, this crossing being on the east side of Orange street. The truck, he testified, stopped 22 or 25 feet east of the place or spot where plaintiff was struck. He testified' that his steps covered about 3 feet to the step. The marks between the points from where they began and ended measured approximately a distance of 44 feet, which Sawyer says he had covered in his 14 big steps along the asphalt pavement. These wheel marks of the truck on the pavement were also stepped off soon after the accident by L. A. Simms, school superintendent, who found that they extended 15 steps to the end of the track, where some blood was seen which evidently came from the fall Miss Norwood suffered when she rolled off the front of the truck by which, the evidence shows, she had been carried about 20 feet from the foot crossing where she was hit. Mr. Simms estimated the length of the wheel marks at about 45 feet, thus agreeing with Mr. Sawyer to the measurement actually made by both of these witnesses.

Mr. Simms was taken to the scene of the accident shortly after it occurred by Mr. Bahm, defendant in this case. Simms says Bahm saw where the truck had skidded, and though he could not recall the exact words Bahm had used, testified he had said, referring to Kemp, "He certainly was driving pretty fast from the distance the <car skidded.”

Sawyer' testifies that Bahm, in referring to the car tracks, said it was no use for Kemp to say he wasn’t speeding, for there were these wheel marks showing that he was speeding.

In his evidence in answer to a question from his counsel, Mr. Bahm said: ‘T probably did state that probably the boy was driving too fast,” but explains he did not feel technically responsible at the time, but that what he said was the outcome of a charitable feeling towards Miss Norwood.

Simms and Sawyer have no interest whatsoever in the outcome of this suit, and it is not to be believed that they would have falsely ascribed such a statement to defendant, who, on the other hand, has a lively interest in defeating the demand claimed against him in these proceedings. Though he denies that he made the statement referred to, his explanation is in the nature of an excuse, and is quite unconvincing and unsatisfactory.

Charles Kemp testified that he was going at a speed not exceeding 15 miles an hour. He says when he first saw Miss Norwood she was about 3 feet on the asphalt. He says also, that she was about 3 feet in front of the truck when he put his brakes on. He again repeats that she was about 3 feet on the asphalt when he first saw her and which, no doubt must have been the case, as he says he did not have the time to blow his horn. Then again he testifies that when he first applied the brakes the truck was about a foot or a couple of feet "from where that walk is across the street.” It was on this "walk” that Miss Norwood was struck, and the testimony given by Kemp definitely fixes, according to him, the place where he applied his brakes. It is clearly shown that the skidding started not less than 20 feet on the west side from the foot crossing referred to by Kemp. Two witnesses have clearly established that fact, and which must be accepted as true as it is nowhere contradicted. It was shown, and not denied, that a car traveling at 15 miles an hour can be stopped within a distance of 15 or 18 feet. As it unquestionably appears that the brakes, which were admittedly in good condition, had been applied and had gripped the asphalt some 20 feet on the west side of the crossing, it is impossible to believe that Kemp’s speed was not over 15 miles when he picked up Miss Norwood at the crossing.

Mr. Sawyer, who saw the collision, said that he estimated the truck was moving at 30 or 35 miles an hour at the time. Though such an estimate, standing alone, should not be accepted as an absolute criterion of the speed at which an auto is traveling, when, however, it is taken in connection with the corroborative and confirmatory proof of speed resulting from the appearance of the tracks of a truck extending over 40 feet on the pavement, the case here, it is amply sufficient to fix with moral certainty the approximate rapidity at which an auto is moving.

The district judge found that Kemp was undoubtedly traveling at the rate of 25 miles an hour in which we fully concur as this estimate is entirely supported by the facts and circumstances of record. In traveling at that rate of speed, knowing the conditions that existed around that crossing at the opening hour of school, Kemp was moving in utter disregard of the imperative duty which the circumstances of the situation and the law imposed upon him to -have his “truck under full control” as is required in such instances, not only according to the rulings of our courts on this subject, but also by the generally accepted doctrine recognized by many other courts to which we do not deem it necessary to refer.

Instead of having his truck under control, he was driving at an excessive and reckless speed, considering the emergencies that he could have expected to encounter at any moment. He was therefore negligent, and not exercising ordinary care immediately before and when the collision occurred.

The trial judge applied the doctrine of the last clear chance holding defendant responsible.

In his brief on the question of the last clear chance, counsel for defendant says:

“When Miss Norwood got on the asphalt, defendant’s car was only twenty feet away, and instantly upon' seeing Miss Norwood on the asphalt and walking without looking the driver applied his brakes and did all in his power to stop the car.”

In the foregoing statement of counsel, it is plainly stated that Miss Norwood had gotten on the asphalt, and was 20 feet away when the driver instantly applied his brakes. The driver, Kemp, says in his evidence that he collided with Miss Norwood at the crossing and carried her 20 feet beyond that point. Simms and Sawyer say about 22 feet. It is shown, and not contradicted in the slightest, that an auto going 15 miles an hour can be stopped at a distance ranging between 15 and 18 feet. If the driver had been going at 15 miles an hour, and which counsel positively asserts was the speed at which he was traveling (as it is shown that he had applied his brakes when 20 feet away from Miss Nor-wood), the car would have been stopped before it reached the crossing, and certainly as it got there, and no accident would have occurred. Instead of stopping there, which would unquestionably have been the case had the driver been driving at 15 miles an hour, the fact is he wenj: 20 feet, according to his own admission, beyond that crossing where Miss Norwood fell from the truck, shown by traces of blood on the pavement where the truck finally stopped. If it were true that Kemp was going at 15 miles, we would have to believe that though he applied his brakes and did all in his power to stop that truck, he finally succeeded in stopping it only after he had skidded and gripped the pavement for a distance of at least 40 feet. It is simply impossible to so conclude in spite of the testimony which uncontradictorily shows that an auto moving at that speed can be stopped within the ultimate distance of 18 feet. There can be no doubt that Kemp was not traveling at any such moderate speed of 15 miles, which was the limit fixed in an ordinance of the town of Hammond. He was undoubtedly going at 25 miles or faster, which was at a wanton speed, considering the existing conditions. He, therefore, was grossly negligent, and was certainly not exercising ordinary care.

This brings us to the consideration of the last clear chance doctrine on which defendant was held liable.

Counsel cites several decisions from our courts and other courts on this subject. We will not review the several authorities cited by him, as they present the same familiar rule with only slight variation in the language used.

He refers to Roder v. Legendre, 147 La. 295, 84 So. 787, where the court held that the doctrine did not apply because no proof had been made to show a willful act of negligence by defendant, or his wanton disregard of the life and safety of plaintiff. And where the court also said:

“There is no evidence going to show that defendant had it in his power to have prevented the accident to Miss Germann after he discovered the danger of her position.”

The last line being underscored in counsel’s brief indicating special reference to it.

In Tyer v. Gulf, C. & S. F. R. Co., 143 La. 178, 78 So. 438, the doctrine is put in different verbiage, as follows:

“That plaintiff must clearly show that defendant after seeing the danger, could by the exercise of ordinary care, have avoided the injury.”

Kemp testifies that when he saw Miss bTorwood his truck was 1 foot from the crossing, or that he saw her about 2 feet before she was struck. According to him it was only then that he saw the “danger of her position,” and he says that he instantly applied his brakes. It is probably true that it was only at that time that he discovered the perilous situation in which Miss Norwood had placed herself.

The question then naturally arises as to why the driver did not see Miss Norwood before he had reached the crossing.

The answer is because he had not brought his truck under full control as he was legally required to do. Because, it is plain, if he had, he could and would undoubtedly have seen Miss Norwood in time to stop his truck, as he had an unobstructed view ahead of him in Thomas street and across Orange street, both streets having a width of not less than 30 feet. Seeing her only when he got to the crossing was clearly the result of his own fault; his employer cannot escape liability on the specious plea that upon discovering her perilous position he had done all in his power to avert the collision.

In Tyer v. Gulf, C. & S. F. R. Co., 143 La. 178, 78 So. 438, the rule of the last clear chance is stated with more amplitude than appears in the other decisions quoted by counsel. The amplifying part to which we refer says:

“It must appear that plaintiff has clearly shown that defendant might by the exercise of ordinary care have seen the danger in time 'to avoid the injury.”

As the driver did not have his truck under control at all, it is manifest that he was not exercising ordinary care; and, that if "he had he could have seen the danger in time to avoid the injury.” It therefore clearly appears that if he failed to see the danger in time, it was entirely due to his failure to exercise the ordinary care which was required of him under the circumstances. Any other interpretation of the last clear chance rule would render it valueless, otherwise the driver of an auto whose wanton or reckless driving had been the cause of his failure to see his victim in time would be excused on the theory that, when he first actually saw him or her, he was so close that it was a matter of utter impossibility for him to stop his car before the collision occurred.

The evidence shows that Sawyer, the driver of the school bus, had, on the morning of the accident, placed the bus on the south side of Thomas street, headed west, in the direction from which Kemp was coming in his truck. Counsel- for defendant says Kemp’s attention was riveted on the bus, prompted as he should have been by the fear that some child or children, with childish impulse, might run in the pathway of the truck and be killed or injured. His contention is that he was required to watch for the safety of these children by every law human and divine. The evidence shows beyond all cavil or question that hundreds of children, teachers, and others, every morning at the opening of that high school, about the time this accident happened, and to the knowledge of Kemp, invariably used the crossing where Miss Norwood was hurt, and which led from the north of Thomas street to the school grounds. What about the duty that devolved on Kemp in regard to these little children and others who Kemp knew used this footway every morning in large numbers? It is true, as counsel says, that Kemp was right in looking towards the bus first, but nothing in law or reason demanded that he- should have had his attention riveted or fastened to that particular spot. He was, under the circumstances,' equally bound to immediately look to his left, as a necessary precaution which was required by the situation.

If he had been running at a reasonable speed, or had had his truck under control, as we have pointed out, there can be no doubt that by applying his brakes as he did, no collision would have occurred.

Kemp says also that there were two wooden braces, about five inches wide, which supported his windshield on both sides of the truck. He says this attachment to the sides of the windshield interfered with his view, and he advances that as one of the reasons why he did not see Miss Norwood before she had gotten about 3 feet on the asphalt pavement. Traveling at the speed he was going with his vision so obscured affords an additional reason in support of our conclusion that the district court correctly held defendant liable in damages for the reckless act of his employee.

ON APPLICATION FOR REHEARING

MOUTON, J.

In our original opinion (127 So. 475) we referred to Mequet v. Algiers Mfg. Co., 147 La. 364, 84 So. 904, where the court said- that:

“The driver of an automotive vehicle on a public street must, at points provided for ^ the passage of pedestrians, exercise a high degree of care to avoid accidents, etc.”

In Duffy v. Hickey, 151 La. 274, 91 So. 733, the court said:

“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, etc.”
“At such points,” the court said in Mequet v. Algiers Mfg. Co., 147 La. 364, 84 So. 904, 905, the pedestrians “have the right to assume that the operators of such machines would observe that high degree of care imposed by the circumstances.”
“We do not mean by this,” says the court, “that he is to be excused for failing to use his own senses to avoid being injured; but the greater duty and care rests upon those who use these dangerous agencies carrying such great possibilities of harm.”

We did not say anywhere in our opinion that the plaintiff, in this case, could have relied altogether on this assumption of safety in going over the footway or passage on which she was injured, but we referred to the decisions above cited to show the exacting care which the law imposed upon Kemp, the driver of the car, as he approached that crossing.

In our original opinion we referred to the testimony of witnesses, and the physical facts of the case which, we said, unquestionably established the fact that Kemp was, when he approached the crossing, traveling .at a rate of speed of not less than 25 miles an hour, and we therefore affirmed the finding of the district judge on that point.

It was shown that over five hundred children attended the school near where the accident occurred, and that one-third of that number, and also the general public, used that crossing every day. It was used to such an extent that a policeman had been asked to be placed at that crossing. Thomas street, that is crossed by it, is shown to be the main thoroughfare of Hammond. The accident, the record shows, happened at about the opening hour of that school, and in referring to the foregoing facts, we said:

“A dangerous situation existed there, imposing unusual care and caution on drivers of cars, autos, or trucks at the intersection of Thomas and Orange streets.”

Then referring to Kemp, the driver of the truck, we said:

“Charles Kemp, the driver of the truck, passed that spot in his delivery wagon which he operated for defendant, many times every day, had besides been a pupil at that school, and was perfectly familiar with the conditions which existed there at the opening hour of school, and knew that a large number of children congregated in its vicinity and with others used the foot-way across Thomas street where his truck collided with Miss Norwood, plaintiff in this case, and one of his former teachers, at that institution.”

The care and prudence required of the driver of an automotive vehicle necessarily increases when he is driving over a crossing or footway which he knows is being constantly used'by pedestrians, and where he can expect an emergency at any moment; particularly is it so where, as in this case, a large number of children, including their teachers, and the general public, may be going over the crossing at the opening hour of a public school, situated near the main thoroughfare of a town or city.

No doubt that counsel for defendant realized that Kemp was required, under the circumstances, to exercise more than usual vigilance when he approached the footway on which plaintiff was injured. In reference to the position in which Kemp was placed at that time, counsel says that there was then a bus on the south side of Thomas street from which school children were getting out, presumably to go to the school building, and that Kemp had his eyes riveted to the bus for fear that some child or children might, with childish impulse, run in front of the truck, and be injured or killed. He says, by every law, human and divine, he was under the obligation of looking out for the safety of these children. But as we said in our original opinion, what about the duty that devolved on Kemp in regard to the little children, teachers, and others who Kemp knew used this footway every morning in large numbers to reach the school? It was proper, we said, for Kemp to look towards the bus in the interest of the children that were getting down, but that neither law nor reason demanded that he should have his eyes fastened or riveted to that particular spot. He was unquestionably equally bound, under the circumstances, as we see it, to look to his left also, and ahead of him where he had an open view, before going over the crossing and footway. If Kemp had been driving in an open street where no such conditions existed, his speed of 25 miles or over could not of itself have been considered as wanton or excessive, but driving at that rate, at such a time, and such a place with which he was perfectly familiar, was, we find, to have been at an excessive and reckless speed.

This brings us to the application of the doctrine of last clear chance which was applied by us in the determination of this case.

Counsel for defendant has referred us to the general rule of the last clear chance doctrine which requires the person injured to prove, in order to recover, that defendant “after seeing the danger could by the exercise of ordinary care, have avoided the injury.” This is the accepted rule in most all jurisdictions. Cyc. vol. 29, pp. 530, 531.

In referring to this generally adopted rule, Cyc. says:

‘‘But in some other jurisdictions it.is extended to cases where defendant might have discovered the peril by the exercise of reasonable care or has neglected the most ordinary caution in failing to do so.”

The latter part of that rule, above quoted, was practically adopted in this state in Tyer v. Gulf, C. & S. F. Ry. Co., 143 La. 178, 78 So. 438, where the court, after stating the generally accepted rule herein-above cited, added the following:

“If defendant did not see the danger, it must appear that plaintiff has clearly shown that defendant might by the exercise of ordinary care have seen the danger in time to avoid the injury.”

In our original opinion, we said that the rule of the last clear chance had been stat-ted with more amplitude in Tyer v. Gulf, C. & S. F. Ry. Co., 143 La. 178, 78 So. 438, than in the other decisions on the subject, and we then applied the amplifying part of that rule, so recognized in Tyer v. Gulf, C. & S. F. Ry. Co., 143 La. 178, 78 So. 438, in the solution of the issues in this case.

It was clearly shown that Kemp was traveling at not less than 25 miles an hour, although the speed limit of the town of Hammond was fixed by ordinance at 15 miles. It therefore appears that not only was Kemp violating the speed limit of Hammond, but was for the reasons hereinabove given driving at a wanton and excessive speed due to the conditions existing there particularly at that time. It is therefore clearly shown by plaintiff that Kemp was not then “exercising ordinary care.” If he had been exercising ordinary care, at the time, he would have been driving at a reasonable rate of speed, and, we think, would undoubtedly have seen Miss Norwood in time 'to avoid the collision. The proof is, and not contradicted, that an auto going at 15 miles an hour can be stopped within a distance of 15 or 18 feet. If Kemp had been traveling at that speed, which would have been within the rule of ordinary care, and as it is shown that he applied his brakes with all the force at his command,’ and at a distance of not less than 20 feet from the footway Miss Norwood was crossing, it is manifest that the truck would have come to a standstill before reaching her, instead of picking her up,- as it did, and carrying her more than 20 feet from the footway where traces of blood on the pavement indicated where she had fallen.

' We found that under the application of the amplifying part of the doctrine of the last-clear chance recognized in 143' La.-178, defendant was responsible in damages for •the reckless act of Kemp, his employee.- If we are not correct in thus applying that ■rule, though Kemp had been going at 40 or 50 miles an hour, he could, under the defense made herein, say: When I first saw Miss Norwood she was 20 feet from me, I immediately applied' my brakes, did all in my power to stop the truck, but could hot possibly do so, and my employer is therefore not liable in damages. If such is the doctrine of the last clear chance, it can well be dispensed with, as a party could not be held liable, under cases of this character, even when he happened to be the victim of the grossest negligence.

We have written an unpardonably long opinion on the application for a rehearing. We were forced to do so because counsel for applicant has evidently, as appears from his brief, misunderstood the purport of our original opinion. The blame is that of this writer, who obviously for lack of precision and clearness- of language has failed to convey his meaning to learned counsel for defendant. We trust, however, that in this second effort our ruling has been clearly set out so that counsel may have no trouble in pointing out any errors on our part, if we have fallen into any, and obtain any relief to which his client may be entitled.

For the foregoing reasons, and those expressed in our original opinion, the rehearing applied for is denied.


author: ODOM, J. L. W. Roper,

text:
    No. 3815
    Second Circuit
    ROPER v. MONROE GROCER CO.
    (July 5, 1930. Opinion and Decree.)
    McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for plaintiff, appellee.
    Munholland & Munholland, of Monroe, attorneys for defendant, appellant.
   ODOM, J. L. W. Roper,

the plaintiff, who is a resident of the state of Colorado, brought suit against the Monroe Grocer Company, Limited, a Louisiana corporation, domiciled and having its principal place of business at Monroe, Louisiana, to recover the price of a carload of hay shipped by plaintiff from Colorado to the defendant company at Ruston, Louisiana.

The defendant company admitted that the amount sued for is correct but pleaded in compensation or set-off the amount of a judgment which it had previously obtained in a magistrate’s court in the city of Denver, state of Colorado, against the plaintiff, Roper. The plaintiff pleaded that the judgment against him was prescribed under the laws of the state of Colorado. The lower court sustained Roper’s plea of prescription and rendered judgment in his favor for the amount sued for. The only po_ints involved are whether the prescription of ten years, under Article 3547 of the Civil Code of Louisiana, is applicable to a judgment rendered in the state of Colorado and whether a judgment rendered in another state and prescribed under the laws of that state may be pleaded in compensation against a debt arising under the laws of this state.

This court certified the case to the Supreme Court and propounded to it the following questions and asked for instructions, to-wit:

“1. Is the prescription of six years, under the law of Colorado, or the prescription of ten years, under Article 3547 of the Civil Code of Louisiana, applicable to the judgment rendered by the Justice of the Peace in Colorado in favor of the Monroe Grocer Company and against Roper?
“2. If the judgment is prescribed by the Colorado statute of limitations, may the Grocer Company nevertheless set it up in compensation against the claim of Roper, which arose after the judgment was prescribed?”

The Supreme' Court, in answer, to the first interrogatory, said:

“Our answer, therefore, to the first question propounded by the Court of Appeal, is that, inasmuch as the right of action of the Monroe Grocer Company on the judgment rendered against Roper by the Colorado court was barred by the Colorado statute of limitations before Roper came into Louisiana, ‘the same shall be considered and held as barred by prescription in Louisiana, upon the debtor who is thus discharged subsequently coming into this state.’ ”

In answer to the second question propounded, the court said:

“Our answer to the second question propounded by the Court of Appeal is that, inasmuch as the judgment against Roper was prescribed before the Monroe Grocer Company became indebted to him for the price of the hay, the judgment cannot be pleaded in compensation or set-off against the price of the hay. The reason for that is that the two obligations were not of equal dignity or force when the second obligation arose — one being only a natural obligation, characterized by article 1757 of the Civil Code as ‘one which cannot be enforced by action,’ and the other being a civil obligation. A defendant may successfully plead in compensation a claim which would be otherwise prescribed at the time when the plea is made, provided the claim was not prescribed when the claim against which it is pleaded arose; but a defendant cannot successfully plead, in compensation a claim which was already prescribed when the claim against which it is pleaded arose. Nichols v. Hanse & Hepp, 2 La. 382; Riddell v. Gormley, 4 La. Ann. 140, citing 7 Toullier, No. 388 and 389; Millaudon v. Lesseps, 17 La. Ann. 246; Lewy v. Wilkinson, 135 La. 105, 64 So. 1003; Oilbelt Motor Co. v. Geo. T. Bishop, Inc., 167 La. 183, 118 So. 881. In Lewy v. Wilkinson, it was held that a person sued as an indorser on a promissory note might plead in compensation notes which he had acquired after indorsing the note sued on, provided the notes so acquired were not prescribed when acquired, even though the time for prescription had expired when compensation was pleaded.
“Counsel for the Monroe Grocer Company, in their brief, invoke the maxim ‘qua temporalia sunt, ad agendum perpetúe sunt ad excipiendum,’ and article 20 of the Code of Practice, which provides that he who has a' right of action to claim what is due him has even a greater right to invoke the cause of action by way of exception or defense to a suit brought against him. The maxim has no application to a plea of prescription against a claim set up in compensation, where the claim pleaded in compensation has no relation to the claim against which it is pleaded. Boeto v. Laine, 3 La. Ann. 141, quoting Tropling, Prescriptions, No. 833. “In fact it has been held that the maxim is not applicable where both claims have resulted from the same transaction, and the defendant’s claim is set up_ as a demand in reconvention. In Harris v. New Orleans, Opelousas & Great Western Railroad, 16 La. Ann. 140, the plaintiff sued for $290 damages for the killing of his horse by a locomotive, and the railroad company, claiming that the accident was unavoidable, and denying liability set up a reconventional demand for $1,500 damages done to the locomotive by the collision. The • plaintiff pleaded that the re-conventional demand was barred by the prescription of one year, because, although the plaintiff’s suit was brought within the year after the collision; the defendant’s answer and reconventional demand was filed after the year had gone by. The court sustained the plea of prescription, saying; ‘The rule “Qua temporalia sunt ad agendum sunt ad excipiendum perpetua,” does not apply to a case of this kind. Boeto v. Laine, 3 La. Ann. 141; Knox v. Thompson, 12 La. Ann. 116.’
“This case is ordered remanded to the Court of Appeal, with instructions to af•firm the judgment of the district court.”

See case No. 30734, L. W. Roper v. Monroe Grocer Co., 129 So. 811, on the docket of the Supreme Court, rendered Wednesday, July 2, 1930.

The judgment appealed from is therefore affirmed, with costs in both courts.