
    NO. 8914
    COURT OF APPEAL PARISH OF ORLEANS.
    OSCAR BUTTNER VERSUS JOHN J. PALMISANO.
    
      
    
   Dinkelsplel; J.

This Is a damage suit. And. ír-a a judgment dismissing said suit an appeal was allowed to the Supreme Court of this State, which Court transferred this cause to this Court, and in so doing Hr. íustioe 8t. Paul, the organ of the Court, rendered the following opinion:«■KafartirsrftMrtwftTiTtlH'Mnr

"Plaintiff alleges ths.t on September 13th, 1919, he purchased from defendant, a certain wagon and tools for #180.00, of whloh he paid #153.50 November 7th, 1919, and #27.50 on February 10th, 1920; that on February Sth, 1920, defendant stopped him on the street, foroabiy unhitohed petitioner's horse and took possession of the wagon, and then struck petitioner when he attempted to Interfere. That defendant kept the wagon four days and until the stun of #27.50 (whloh was then due) had been paid, therefore petitioner lost four ddkkaxixlax days work at five dollars per day; #80.00 in trade permanently withdrawn from him; #1,000.00 da for loss of the good opinion and esteem of his neighbors who witnessed the occurrence, and #2500.00 for mental anguish and the bodily fear to whloh he was put by said defendant. The defense was that the plaintiff consented that the drtrtdartafcawkd defendant should take and hold the wagon until the balanoe of #27.50 was paid. The trial Judge found for defendant and plaintiff appealed to this Court. Not a line of evidence was introduced to show that any of plaintiff's neighbors witnessed the ooourrenoe or that plaintiff lost any of their good opinion or esteem, and the olalm of #2500.00 for mental anguish and bodily fear is mlici manifestly forced and exagerated."

Ike evldenoe in this case is contradictory, but in its principal portions it presents the fact that plaintiff kza bought ,horse and from the defendant, the^ wagon at a given prioe, kept it for a certain number of months, and on the day of this ooourrenoe, plaintiff ^WdMCaattM meeting defendant, his partner, and a oolordd boy damwkmgMi driving the wagon at right near where defendant lived, demanded the balance due him whloh he allege» had been promised to him, took hold of the horse's head sad plaintiff jumped from his wagon, endeavored to free the horse from defendant's hands and in the encounter the evidence show» that defendant struck at this boy, who was not more than nineteen years of age at the time of this ooourenoe, and finally got possession of the horse and wagon and took It into his own possession* This evidenoe is concurred in by the partner. The oolored boy frightened, ran away from the scene of the occurrence. The defendant and several of his witnesses partially deny these statements and assert that plaintiff voluntarily surrendered the home and wagon In question, told defendant to keep it in his possession until the balance of the amount due him was paid, whloh would be done In a few days, and the witness, some of them, partially oonour In this statement, and one of them not entirely, max Subsequent to this oocurrenoe a charge of assault and battery was made In the Criminal Court against the defendant and he was fined the sum of Ten Dollars, from whloh he took an appeal, and this record does not show whatever beoaae of the appeal, whether it was tried or what other disposition was made of it. Be that as It mOy, we axe satisfied of one thing, and that Is that the defendant forea-bly, violently took possession, without the consent of plaintiff, of the horse and wagon, patria put It into his own premises and kept It there for several days, until he was paid by plaintiff the amount claimed to be due to him.

In the decision of this oase in the Court aquo, the learned Judge, deciding this oase In favor of defendant, gave the following reasons:

"This Is a suit between distant relatives by marriage, whloh shows no serious-violation of plaintiff's rights. Defendant cold plaintiff a wagon and certain tools for a prloe, whloh plaintiff negleoted to pay, and after some talk leading defendant to believe that the wagon would be surrendered to the defendant on the following morning took possession of it x& and held it for two or three days when plaintiff appeared paid the balance and took his wagon, and tools. It appears that the cause of action is too trivial to warrant a judgment. Suit dismissed."

On motion for a new trial, the Judge in a written opinion says:

"I am satisfied that an agreement was made to surrender this horse and wsgon to the vendor as security. When the pomas purchaser failed to pay this amount defendant took the horse and wagon when the purchasers changed their minds in this agreement."

The damage if any is trivial, henoe new trial refused."

From the deoisions of our own Court, in three separate cases, the first, Stella Washington vs. Singer Sewing Machine Company, to be found in 10th Court of Appeal, p 370, quoting from the syllabus: "Parties mndertaking to take the law in their own hands and to substitute violenoe for legal prooess should be made to feel the sis weight of judicial procedure»"

In the seoond case, to be found in the same volume, John Greenlee vs. Singer Sewing Machine Company, the syllabus reads as the syllabus in the Washington oase quoted above.

And the third and last case, John Bettis vs. Singer Sewing Machine Company,, virtually deoldes identically on the same propositions as in the two oase Just cited, and adds in that deoision the following language, which is quoted in Thayer vs. Littlejohn, 1st Rob. 140, wherein the Court held:

"But it was effected without judiolal prooess, and it is is not material how gently defendant acted, it wae a trespass vi et armis in contemplation of law, and plaintiff is entitled to reoover yerxsrbstKwttEly substantial damages."

Both plaintiff and defendant have known eaoh other for many years, in faob they are related by marriage, defendant knew plaintiff when he wae a mere lad, and there had never been so far as this record shows, an? oreaoh or any misunderstand-lng between these two parties until the inoident referred to occurred, and then doubtless in the heat of passion, and without seriously contemplating the effects of his notion, defendant struck plaintiff and finally succeeded in taking over the horse and wagon, which he had sold and for whioh be had received all but |27,50 out of (180*00, the prioe of same. Defendant did wrong; he had no right as decided by this Court, to take the law into ha his own hands, whioh he did, and for this plaintiff is entitled to some damages. We are satisfied that awarding the plaintiff the sum of (200.00 for the loss of his property together with the blow inflioted upon him by defendant will answer al3 the purposes of justioe.

March 19th, 1923.

For the reasons assigned, it is ordered, adjudged, and deoreed, that the judgment of the Court aquo be and the same is hereby annulled, reversed and avoided, and that there now be judgment in favor of plaintiff and against the defendant in the full sum of $200,00 with legal interest thereon from judioial demand until paid, and defendant to pay oosts of both Courts.

fadgmwt Judgment annulled and reversed and judgment in favor Plaintiff.  