Vititoe v. Shea

• Decision Date: 28 June 1926
• Docket Number: 26250
• Citation: 109 So. 785,161 La. 984
• Court: Louisiana Supreme Court
• Parties: VITITOE v. SHEA et al

109 So. 785

161 La. 984

VITITOE v. SHEA et al

No. 26250

Supreme Court of Louisiana

June 28, 1926

Rehearing Denied October 5, 1926

Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice E. Edrington, Jr., Judge.

Action by Dave Vititoe against W. A. Shea and another. Judgment for plaintiff against the named defendant, who took a suspensive appeal, and defendant James J. White, Jr., took a devolutive appeal.

Amended and affirmed.

Charles J. Larkin, Jr., and Arthur Landry, both of New Orleans, for appellant W. A. Shea.

Charles J. Larkin, Jr., of New Orleans, curator ad hoc for appellant James White, Jr.

F. A Middleton, of New Orleans, for appellee.

OPINION

O'NIELL, C. J.

This is a suit on a verbal contract for services rendered by the plaintiff as a trainer of race horses. The suit was for $ 3,435 as the balance due, but the plaintiff entered a remittitur for $ 600. He sued W. A. Shea and James J. White Jr., averring that they were the joint owners of the horses that he was employed to train and were therefore liable in solido for the services he had rendered. Shea resides in New York and White in Massachusetts. An attachment was levied on three of the horses, which were released to Shea on a forthcoming bond. White pleaded that he was not properly cited, and the suit against him was dismissed. The plaintiff did not appeal from the judgment dismissing the suit as to White.

The evidence leaves considerable doubt as to who owned the horses when the attachment was levied, but that seems to be of little or no importance now, since White is out of the case, and Shea, by taking possession as owner of the horses on the forthcoming bond, has subjected himself personally to the jurisdiction of the court. Rathbone v. The London, 6 La.Ann. 439; Love v. Voorhies, 13 La.Ann. 549; Williams v. Gilkerson-Sloss Commission Co., 45 La.Ann. 1013, 13 So. 394; Hollingsworth v. Atkins, 46 La.Ann. 515, 46 La. 530, 15 So. 77; First National Bank v. Johnson, 130 La. 288. 57 So. 930.

The district court gave judgment against Shea for $ 1,985, from which he took a suspensive appeal, and White having yet an interest in the matter took a devolutive appeal.

Shea admits that the contract of employment was made on the 7th of May, 1921, at the Jamaica Race Track, at Long Island, N. Y and that the employment continued until the 10th of October, 1922, when plaintiff was discharged in New Orleans. The horses were to be entered and run -- and were in fact entered and run -- in the name and under the colors of the "Shea Stable" at the race tracks throughout the country, particularly in New York, Maryland and Louisiana. The plaintiff alleges -- and the evidence in his behalf sustains the allegation -- that the agreement was that he was to receive a salary of $ 200 per month, and that Shea was to bet $ 100 for plaintiff's accounton any horse selected by plaintiff, belonging to the Shea Stable, at any time that the plaintiff, believing that any particular horse was going to win, might request that the bet be made for his account and at his risk. Shea admits that he agreed to pay the salary of $ 200 per month, but denies the obligation with regard to the bets. He contends...