
    NO. 8487.
    COURT OF APPEAL PARISH OF ORLEANS
    EDWARD J. KESSLER, EXECUTOR et als versus NEW ORLEANS GAS LIGHT COMPANY.
   Dinkelspiel; J.

Plaintiff instituted this suit in hie capacity as Executor of the estate of .his deceased wife, Jasmine Hawthorn and also in his capacity as natural tutor of his minor children, Edward J. and George Stoppered Kessler, xndxihxit plaintiff is joined by his daughter, Merthyr Edwina Kessler, who is an emancipated minor, alleging that on or about July 9th, 1917, oertain agents and employees of defendant Company aoting under the orders of their superiors,broke into, and entered the dwelling house No. 3433 Mars,is Street, in this oity, being the property of the ohildren of his deoeased wife, end-took from said premises, a oertain water heater and other fixtures, all the property of the ohildren of his deoeased wife. Alleging further that this trespass and taking of property was done without the knowledge or consent of plaintiff, and that he was compelled to employ counsel to recover possession of said property, after repeated demands’ the defendants restored the water heater but failed to restore oertain pipes leading to the roof and oertain other pipes necessary to permit water to escape, hence the heater was useless. Alleging further that it has been difficult to rent the dwelling house because of the water not heater/being in good condition for use and that a large e-mount of rent has been lost and stating in his petition that in oonsequenoe of the trespass and illegal removal of the said water heater and fixtures was the cause of mortificetion and humiliation to plaintiff and impaired their credit and good name in their community and among those who knew them. Further alleging that it will require about Fifty Dollars to restore the piping and place the heater in good order and that they have suffered in loss and rent about $350.00 and they are entitled to recover from defendant for attorney's fees, $300.00, snd fox the humiliation, loss of credit f.nd good name they are entitled to recover One Thousand Dollars; they pray for judgment against the defendant in the sum of §1500-. 00 and for general relief.

To this petition there were filed several exceptions; first, that said plaintiffs were without legal right to sue or stand in judgment; seoond, that there was a misjoinder end a nonjoinder of parties plaintiffs; third, ths.t said petition is too vague, uncertain and indefinite to enable defendant to safely answer thereto; fourth, that the petition disoloses no l-egal cause or right of action.

Save and except the third exception, that is, that said petition is too vague, uncertain and indefinite to enable defendant to safely answer thereto, the rest of the exceptions were overruled.

Subsequently plaintiff filed a supplemental petition setting out more specifically the place where the house on Marais Street was entered, and the property heretofore described taken into the possession of the defendant corporation, and further stating specifically the employment of counsel in an endeavor to regain their said property, for several months after the removal of the heater, thereby losing twenty dollars per month, making a total loss of rent, §79.60 and alleging further in this supplemental petition that a oopper coil was broken and replaced by plaintiff at a oost Stated in his original petition; this supplemental petition was sworn to by George B. Smart, the attorney of plaintiff and the judgment prayed for is the same as prayed for in the original petition.

The answer admits that on July 9th, 1917, its employees did enter the dwelling and removed a certain water heater, boiler and vent pipe, but denies that its employees broke into the said dwelling house, denies that plaintiffs were obliged to employ counsel to regain possession of their property, admits that it restored seid wafer heater, and further denies a.ll the material allegations .of plaintiff's petition, and prays for a judgment in its favor.

The testimony in this case both for plaintiff and defendant is in the main portions thereof, admitted, but when thus stated, the testimony in pa.rt, particularly, as to how this heater was taken from the premises, whether the doors were open, os closed, ?nd whet portion of same was taken, under what oirbumstanoes, is contradictory, but the eviaenoe on' the whole satisfies us thet the defendants through their agents entered the prem ises of plaintiff and did take therefrom the heater in question and a part of the pipe attaohed thereto, and subsequently through an agreement between the company end'the Executor of the Succession, Edward J. Kessler finding that there was a small balanoe due by the deoeased wife, the owner of the property, on the promise of the Executor to pay same, whioh he did, the property in question was to have been returned; it is further proven that notwithstanding repeated letters and' frequent calls by. the Ex-eoutor on offioers of the Company, the heater was not returned for a long time, about the beginning of November, 1917, after having been kept by the Company from July 9th, of the same year; it is further proven that.during this time it was very difficult for plaintiff to rent these premises, and when he did so, he did it for a muoh smaller sum than it had been rented for prior to this occurrence, and when finally the heater was replaced, whioh was several months thereafter, at one time, being rented for about sixteen dollars per month, subsequently when•everything was satisfactorily replaoed, it rented for twenty dollars per month; it was admitted in the argument in this oe.se that there wee a loss of rent during the time mentioned of about thlrtv four dollars, that the installation and other oosts connected-with this heater amounted to something-like eighteen dollars, whilst on the othér hend plaintiff asserts and swears that the loss of rent was much larger, and It cost him thirty dollars simply to replace coils, in order to have matters properly adjusted and get this heater in perfeot shape.

It would serve no useful purpose to quote testimony of both plaintiff and defendant, but we are of the opinion that the entering into this plaoe in an illegal manner, and keeping this heater for the time thev did, after positively agreeing to return it from time to time and not complying therewith, gave rise to a loss of rent end to other expenses in connection therewith. There are numerous deoisions in the reports of both our Supreme Court and in our own Court,- whloh’ maintain the faot that in a- suit for damages, on. aooount qf a trespass, the trouble, and expenses the plaintiff has been illegally put to, have to be considered in estimating damages.

Cooper vs. Coppell, 39 Ann. 218.
Hamilton vs. Soloman, 137 La. 240.
Greenlee vs. Singer Sewing Machine Co. 10 Ct.App.271.
Bettis vs. Singer Sewing Machine Co. 10 Ct.App.273.
Lalonier vs. Werlein Co. 13 Ct. App. 225.

On the question of attorney's. fees:

It has been frequently decided that, unless in an extraordinary proceeding, such as an attachment, or injunction, attorney's fees oannot be. recovered and in one of the oases- cited in the brief of-plaintiffs, Chappius vs. Waterman, 34 An. 61, that question was determined, and so we might' multiply deoisions to the same effect without serving any useful purpose.

In so far as the exceptions are oonqerned, to this petition, filed by defendant, we are o'onvinoed that both under the Civil Code and the authorities, same were properly overruled.

C. C. 235.
Black vs. Carrollton Ry. Co. 10 An. 33.

There can be no doubt at this late date but that the father of minors, together with the emancipated minor, have a legal right to institute and prosecute suits in the interest and protection of their wards, and it requires no citation of authorities to prove this fact.

Tie are of the opinion that defendants violated the rights of plaintiff, when they entered these premises, without permission to take possession of the heater in question, they did so without the oonsent of the owner, without any authority from him so to do, and without his knowledge, but more than this, after through a letter from the defendant oompemy, the bal&noe due for- this heater being announoed, $3.50, which under the agreement made between Mr. Kessler, and one of the offioers of the company, was to have been paid, and was paid, they should have restored the fixtures in question without further to do, and not give cause for plaintiff to have been disturbed in any. manner in the possession of the property together with the heater in question, but defendants did not do this, although frequently requested and promising to return the heater and during the time oomplained of there was an admitted loss of thirty four dollars for rent, it was proven that thirty dollars was expended by plaintiff to replaoe the oo.il, end we believe that under the admitted and undisputed facts of this record, plaintiff is entitled to damages in tie sum of Fifty Dollars for the trespass on his property and the taking possession of the watplaintiff er heater and other fixtures of the/dafasdsni and putting them into such a position that tksx* their friends and neighbors and others who knew them would get the Impression they were not worthy of the oredit end respect which they otherwise had and whilst there is no evidence in the record of any kind or character effecting the standing of plaintiffs or. their family,- yet we think they'are entitled to the amount allowed.

For the reasons assigned, it is now ordered, adjudged and decreed-that the judgment of the Qoürt aquá be amended and the amount allowed originally, $353.75, with legal interest from November 14th¿ 1931, be reduced to the sum of $114.00 with legal interest from the date specified to wit: November 7th, 1931 until pa^dan¿ as thusamegcted the judgBMnt ipaffirmed^^oats of -•pipeee}: hi U*e lo>Vtfk~,"Oóürt 'tg^bg-pgirdr-by -eteTendiw&t.

-Judgment amended and affirmed-  