Morgan v. Patin
| Decision Date | 29 June 1950 |
| Docket Number | No. 3276,3276 |
| Citation | 47 So.2d 91 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | MORGAN v. PATIN. |
Iddo Pittman, Jr., Hammond, for appellant.
Joseph M. Blache, Jr., Hammond, for appellee.
On May 10, 1949 a mule belonging to the plaintiff, Edward Morgan, crossed an open cattle guard into the premises of the defendant, Patin, in Pleasant Ridge, a subdivision outside the city limits of Hammond, Louisiana, and as a result of the defendant's alleged inability to drive the mule out of his premises he shot the mule. The plaintiff is seeking to recover alleged permanent damages to the mule in the sum of $75.00; loss of earnings while the mule was disabled for sixteen work days in the sum of $128.00; veterinarian expenses undisputedly amounting to $13.00, and attorney fees in the amount of $75.00, or a total of $216.00.
The defendant admitted shooting the mule but otherwise entered a general denial, and by way of reconventional demand alleged that on the day in question, May 9, 1949, the mule had entered his premises by walking or jumping across a cattle guard and had remained in his premises for practically a whole day and destroyed valuable flowers, gardenias and shrubbery to the extent of $150.00, and he also claimed that for mental anguish he was entitled to $113.00.
Plaintiff filed a plea to the jurisdiction as the original amount claimed in reconvention is above the jurisdictional amount of the Hammond City Court, whereupon defendant reduced its demand to the amount stated above. Plaintiff filed an exception of no right or cause of action on two grounds, first, that the allegations of ultimate fact in the reconventional demand do not show actionable negligence on the part of the plaintiff, and second, that the defendant could not urge this claim in the form of a reconventional demand inasmuch as the cause is not necessarily connected with or incidental to the main demand and the parties are residents of the same parish, relying upon Code of Practice Article 375. These exceptions according to the minutes were evidently heard and taken under advisement by the Court. The Judge ad hoc rendered the same judgment as originally in the sum of $75.00 in favor of the plaintiff Edward Morgan, and judgment on the reconventional demand in favor of the plaintiff in reconvention, Patin, in the amount of $150.00, all costs of court to be paid by the defendant in reconvention, Edward Morgan. From this judgment the plaintiff Edward Morgan has appealed.
The plaintiff, who is the defendant in reconvention, is reurging his exception of no right or cause of action. We find merit in the exception, however, due to our conclusion on the merits, we will pass the exception.
It is undisputed that the defendant's premises are located outside the city limits of Hammond where there is no stock law and, therefore, the running of livestock at large is lawful, and should a property owner desire to keep such roaming stock off of his property it is his duty to effectively enclose it. The law applicable is stated in the case of Parrott v. Babb, 15 La.App. 520, 132 So. 377, 379, in which the plaintiff sued the defendant for damages done by the latter's cattle in destroying her crops. The Court found as a fact that the property rented by plaintiff and upon which the crops were growing was located in open range territory, and it would have to be determined by the law applicable thereto and stated such law to be as follows:
In the present case it is shown that the defendant's property was enclosed by a three board fence except for openings, and in the front was a gate not described by the testimony, and at the main drive is what is known as a cattle guard made of eleven 4 X 4s spaced approximately four inches apart which would make a width of 88 inches or 7 feet 4 inches. There was no chain...
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...in support of the claim, and the district judge evidently based his award on, Raney v. Gillen, La.App ., 31 So.2d 495 and Morgan v. Patin, La.App., 47 So.2d 91, both of which were decisions of Courts of Appeal. However, the authorities relied on in the Morgan case were disapproved by this c......
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...bad faith, under Article 1934(2), LSA-Civil Code, or as damages for an intentional or malicious wrongful act or trespass, Morgan v. Patkin, La.App., 1 Cir., 47 So.2d 91; DeGraauw v. Eleazar, La.App., 1 Cir., 24 So.2d 180; Vidrine v. Vidrine, 1 Cir., 14 La.App. 484, 130 So. 244. Attorneys fe......
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...had actually expended in having the animal treated by a veterinarian, and the record adequately supports this award”]; Morgan v. Patin (La.Ct.App.1950) 47 So.2d 91, 93 [“There is no doubt that the veterinarian fee of $13.00 is due”]; Kaiser v. United States (D.D.C.1991) 761 F.Supp. 150, 156......
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Chauvin v. La Hitte
... ... Gillen, La.App., 31 So.2d 495 and Morgan v. Patkin, La.App., 47 So.2d 91, both of which were decisions of Courts of Appeal. However, [229 La. 101] the authorities relied on in the Morgan ... ...