text:
    Milton ARCENEAUX et al. v. LONDON GUARANTEE & ACCIDENT COMPANY, Limited, et al.
    No. 4200.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.
    Rehearing Denied May 25,1956.
    Watson & Williams, Natchitoches, for appellants.
    Voorhies & Labbe, Lafayette, Montgomery, Barnett, Brown & Sessions, New Orleans, for appellees.
   LOTTINGER, Judge.

Petitioners brought this suit for damages resulting from the accidental death of their father, Lawrence Joseph Arceneaux. The suit is against R. O. Ray Broussard, who was driving the truck when it struck deceased, and the London Guarantee and Accident Company, Ltd., et al., the liability insurer of Morton Salt Company, the owner of the truck. The Lower Court main-, tained the exceptions of no cause or right of action filed by the defendant insurance company. The petitioners have appealed from said decision.

The facts show that Lawrence Joseph Arceneaux received fatal injuries on January 23, 1953, when he was run over by a truck owned by Morton Salt Company and operated by its employee, Ray Broussard. The petition alleged that Broussard, at the time of the accident, was operating a Ford truck with an extremely high dump body. Broussard was backing the truck and .standing on. the running board with one hand on the steering wheel so he could see a distance beyond the back of the truck towards where he was backing. The high. dump body on the truck prevented him from seeing on the other side of the rear of the truck where Arceneaux was standing. The petition alleges that Arceneaux was-struck as he was standing with his back towards the truck and that he was knocked down, run over and killed by the truck wheels passing over his body. '

It was stipulated that the policy of insurance issued by London Guarantee & Accident Company, Ltd., was in full force and effect at the time of the accident, and it was on this basis that the defendant was called into this suit as a party defendant. The other defendant is the -driver of the truck at the time of the accident, Mr. Brous-sard, who filed an answer. The insurance company filed exceptions of no cause or right of action which were maintained below. The petitioners appeal from the judgment below dismissing the insurance company.

The parties stipulated that both Brous-sard and the deceased were employees of Morton Salt Company, and that they were both working within the course and scope of said employment at the time of the accident. The questions presented on this appeal deal solely with the judgment on the exceptions below, and the question of liability of Broussard has not yet been tried on the merits.

To show that Broussard was not afforded coverage under the terms of the omnibus clause of the policy, the insurance company cites the following provision of the policy.

“Ill Definition of Insured
“With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. The insurance with respect to any person or organization other than the named inspired does not apply:
* * * * * * *
“(b) to any employee with respect to injury to or sickness, disease or death of another employee af the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer.” (Italics ours.) '

To show that Arceneaux was fatally injured while in the course and scope of his employment and, therefore, his coverage is excluded from the provisions of the policy, the insurance company cites the following:

“Exclusions
“This policy does not apply:
* * * * * * *
“(d) under coverages A and C, to bodily injury to or sickness, disease or death of any employee of the insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen’s compensation law;
“(e) under coverage A, to any obligation for which the insured or any company as his insurer may be held liable under any workmen’s compensation law.”

Coverage A is for bodily injury and coverage B is for property damage. We, of course, are only concerned with coverage A in this suit.

The policy is clearly worded to the effect that the situation here presented is definitely excluded from coverage. The language first above quoted clearly states that the insurance with respect to any person or organization other than the named insured does not apply to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of .the automobile in the business of such employer. Now both Broussard and the deceased were both employees of the Morton Salt Company and were working in the course and scope of their said employment at the time of the accident. Under the clear wording of the policy, with respect to definition of the insured, Broussard was not covered when he injured the deceased.. We are of the firm opinion that under the definition of insured the defendant insurance company is relieved of liability herein.

Furthermore, under the clear wording of the exclusions above quoted, coverage for bodily injury was excluded for employees of the assured while engaged in the work of their employer, or whenever the company might be held liable for workmen’s compensation. By stipulation of counsel it is admitted that the deceased was an “employee of the insured” and that he received the “bodily injury” which resulted in his “death” while engaged in the employment of the insured. It cannot be disputed that his injuries and death are claims for which the insured or any company as his insurer may be held liable under any compensation law. We feel, therefore, that this claim was specifically exempted from the provisions of the policy. ■

The petitioners, however, contend that public liability policies are issued for the protection of the public and that public policy of this State directs that direct actions may be brought under such policies and that their terms must be liberally construed so as not to restrict their provisions to the detriment of the public. They call our attention to the fact that the courts have always liberally construed insurance policies and have even extended their coverage so as to permit a husband to sue his wife’s insurer. They also cite a number of cases wherein the courts have liberally extended their interpretations of omnibus clauses. However, in the cases so cited, the provisions are not similar to the ones with which we are now concerned.

The parties have cited Pullen v. Employers’ Liability Assurance Corporation, Ltd., La.App., 72 So.2d 353, wherein a similar exclusion provision was before the Court. They say that writs have been granted by the Supreme Court in this case. We have been unable to confirm this fact in the reporting system, nor have we been able to ascertain that the Supreme Court has taken any further action on the writs. We feel, furthermore, that the facts in that case are not identical to the ones before us, and, therefore, feel that said decision should not influence us, although, in that case, exceptions, similar to the ones here presented, were maintained.

Petitioner claims that the provisions of the present policy are contrary to the public policy of the State of Louisiana as set forth in the direct action clause now incorporated in LSA-R.S. 22:655. We find nothing in the quoted exclusions which are in conflict with the laws or the public policy of this State. LSA-R.S. 22:655, upon which petitioners’ contention is based, provides that “nothing contained in this Section shall be construed to affect the provisions of the policy or contract if the same are not in violation of the laws of this state." No conflicting law of the state has been cited by petitioners, nor do we know of any.

As was stated by the Lower Court, in a very well reasoned opinion:

“It seems clear that the provisions in the policy to exclude claims that are covered by the workmen’s compensation law are for the purpose of distinguishing this contract from workmen’s compensation insurance contracts. These two types of policies are altogether different. Unless the public liability policy issued in this case contains the provisions that it does, the policy would be both a public liability policy, and, to a certain extent, a workmen’s compensation policy. The liability of the employer to the public for acts of his employees in operating his motor vehicles is one thing. His liability to his employees who are injured in the course and scope of their employment is another. Insurance contracts to protect the employer against claims that may arise in either category are therefore based on different considerations and have nothing in common. To keep the public liability policy issued in each case from becoming one covering workmen’s compensation, the insertion of the provisions with which we are concerned is essential. There is nothing against good morals, or public policy, in these provisions.”

Nor is the wording of the policy of insurance ambiguous. The meaning of the quoted provisions are clear, and they clearly set forth that the particular factual situation here presented is exempt from coverage under the policy.

For the reasons hereinabove assigned, the judgment of the Lower Court will be affirmed, all costs of this appeal are to be paid by petitioners.

Judgment affirmed.


source: Caselaw Access Project

author: REGAN, Judge.

license: Public Domain

text:
    Steve D’ASARO v. Alice Vernon SAWYER, wife of Thomas W. Sawyer et al.
    No. 20609.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.
    Rehearing Denied May 28, 1956.
    Writ of Certiorari Denied June 29, 1956.

      Leo L. Dubourg, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Dreux & Poi-tevent and Robert B. Acomb, Jr., New Orleans, for Joseph M. Jones, defendant-appellee.
   REGAN, Judge.

Plaintiff, Steve D’Asaro, instituted this suit against defendants, Thomas W. Sawyer, his wife, Alice V. Sawyer, and Joseph M. Jones, in conformity with the provisions of LSA-R.S. 47:2228, endeavoring to quiet a tax title.

A curator ad hoc was appointed by the court to represent the first named defendants and no pleadings appear in the record on their behalf.

Defendant, Jones, responded and pleaded, among other exceptions, that of “no right of action” or lis pendens.

From a judgment in favor of defendant maintaining the exception and dismissing plaintiff’s suit as of non-suit, he has prosecuted this appeal.

Plaintiff’s petition reveals that the property in litigation was bid in and adjudicated to him at a tax sale made by the City of of New Orleans on July 10, 1950, for the unpaid taxes due the City of New Orleans for the year 1949; that in confirmation of this adjudication the City, on August 4, 1950, by Act before Jacob H. Morrison, the City’s Notary Public, executed a tax deed to plaintiff which was registered in COB 570, Folio 607 on August 9, 1950.

The assessed name in which the property was sold was that of Sam Ciolino, who was the record owner thereof at the time the assessment for the year of 1949 was made; on August 27, 1948, Ciolino conveyed the property, through the Pelican Homestead Association, to Mr. and Mrs. Thomas W. Sawyer, who were the record owners at the time of the advertisement and tax sale; the Sawyers then conveyed the property, through the Globe Homestead Association, to Joseph M. Jones, on November 14, 1950.

The suit to quiet the tax title was filed by D’Asaro on August 31, 1954, and Mr. and Mrs. Thomas W. Sawyer and Joseph M. Jones were made defendants.

A curator ad hoc was appointed to represent the defendants, Mr. and Mrs. Sawyer, if living, and their heirs, if they were dead, and they were served with notice, petition and citation on September 8, 1954, through the curator. The defendant, Jones, was not served until January 14, 1955.

However, before the petition and citation were served on Jones, on November 19, 1954, he filed what has been termed an action in jactitation against D’Asaro, the plaintiff in the present suit, in which Jones alleged that he was the owner and in possession of the property in dispute and that D’Asaro was slandering his title by having-registered the tax deed above referred to and that he had been damaged thereby in the amount of $1,000. Jones then requested that D’Asaro be cited and ordered to either disclaim any title whatsoever to the property or to assert therein such rights as he may have against the property; that, after due proceedings had and legal delays, there be judgment herein in favor of him and against D’Asaro cancelling the inscription of the pretended title of D’Asaro to the aforesaid property as registered in COB 570, Folio 607, condemning D’Asaro to pay to Jones the sum of $1,000 as damages with legal interest thereon from the date of judicial demand until paid.

This suit was tried on February 15, 1956 and judgment was rendered in the Civil District Court in favor of Joseph M. Jones and against Steve D’Asaro, ordering the cancellation of the tax sale unless D’Asaro filed a petitory action within sixty days from the rendition of the judgment.

In the present suit, as we have related hereinabove, Jones pleaded the exception of lis pendens predicated on the fact that his action was pending. This exception was maintained by the lower court and plaintiff’s suit dismissed as of non-suit.

The only question which the pleadings have posed for our consideration is one of law and that is whether a plaintiff may prosecute a suit to quiet a tax title after he has been made a defendant in a previous suit which was intended to cancel the tax title ?

While it is true that D’Asaro filed this suit to quiet a tax title on August 31, 1954, in view of the fact that he did not cause citation to issue and be served upon Jones until January 14, 1955, this suit was not legally commenced until that date. Code of Practice Art. 359; Canada v. Frost Lumber Industries, Inc., La.App.1942, 9 So.2d 338; Commercial Nat. Bank in Shreveport v. Henderson, La.App.1937, 173 So. 790; General Electric Contracts Corp. v. Murray, La.App.1944, 20 So.2d 19. At that time Jones had already instituted his suit on November 19, 1954 and that action had been perfected through valid service of process on D’Asaro. Therefore, Jones’ suit was legally instituted prior to D’Asaro’s suit, although the latter one was chronologically first.

In the jactitation or slander of title suit, usually the only issues involved are the possession of the plaintiff and the slander by the defendant. However, when the defendant, in his answer thereto, not only denies plaintiff’s possession, but his ownership thereof, and tenders to the court the question of title, it appears to us that the issues then posed for the court’s consideration have thereby changed.

We are, therefore, of the opinion that the judge of the Court below was correct in maintaining the plea or exception of lis pendens since the character of both suits, as reflected by the prayer of each, rather than the appellation given to the action by the parties, indicates that they encompass the same subject matter, substantially the same parties, and have as their objective the same result, that is, determination of ownership.

In the relatively recent case of State ex rel. Marston v. Marston, 1953, 223 La. 1046, 67 So.2d 587, 589, the organ of the Supreme Court in discussing a similar problem said:

“It is well settled that the pleas of res judicata and lis pendens bear a strong analogy and that a fair test of lis pendens is to inquire whether a final judgment in the former suit would be res judicata in the latter, if it would then the exception of lis pen-dens is well pleaded. Dick v. Gilmer, 4 La.Ann. 520; Bischoff v. Theurer, 8 La.Ann. 15; Exchange National Bank v. Holomon Bros., 177 La. 537, 148 So. 702.
“It is stated in Dick v. Gilmer, supra, a land mark case, viz.:
“ ‘There is a strong analogy between the pleas of res judicata and litispendence; and it is a fair test * * * to enquire whether, if there were final judgment in the former suit, such judgment would support the plea of res judicata in this. Exceptioni rei judicatae affinis admodum est ex-ceptio litis pendentis. Voet, De Ex-ceptionibus.
“ ‘The exception of litispendence rests on a wise public policy. Were it not recognized by the law, the consequences, as is well remarked by Merlin, would be not less absurd than dangerous. Suits might be indefinitely multiplied, and the citizen would be exposed to the expense and annoyance of several attacks, at the same time, for the same matter. The simplicity and uniformity which should reign in the administration of justice, might be superseded by the confusion and contradiction of different proceedings and judgments upon the same subject.’ ”

See, also, Estopinal v. Storck, La.App. 1953, 63 So.2d 464.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: McBRIDE, Judge.

text:
    Camille FOLSE v. UNITED STATES CASUALTY COMPANY.
    No. 20605.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.
    Rehearing Denied May 28, 1956.
    Writ of Certiorari Denied June 29, 1956.
    Morphy & Freeman, New Orleans, for plaintiff and appellee.
    Weiss & Weiss and Harold Marx, Jr., New Orleans, for defendant and appellant.
   McBRIDE, Judge.

On the afternoon of October 17, 1954, Miss Carol A. Falcon, who is a school teacher, attempted to drive her 1953 Ford automobile into Highway 30 at a point near Waggaman, Jefferson Parish, from her private driveway. Miss Falcon’s intention was to turn left on the highway in order to proceed in a northerly direction. When her automobile had almost completely crossed the median stripe in the highway, but before she was able to negotiate the turn to the left, it was run into by a 1947 Plymouth coupe owned by Camille Folse, but driven by Louis Falgout, a young man in his teens, in a southerly direction. The left front part of the Folse car struck the left rear portion of Miss Falcon’s car, and Folse has sued Miss Falcon’s liability insurer for $160.25 for the cost of making the repairs to his car necessitated by the accident. The petition alleges that the collision resulted from the fact that Miss Falcon negligently entered the highway directly in the path of an oncoming vehicle without having kept a proper lookout. The answer, after denying that there was negligence on Miss Falcon’s part, charges that the accident solely resulted from the negligence of Falgout, and, in the alternative, he is charged with contributory negligence.

The lower court gave plaintiff a judgment for the amount for which he prayed and defendant has appealed therefrom.

The defendant filed in this court an exception of no cause of action, but as the exceptor relies upon certain evidence adduced upon the trial as support for the exception we, of course, cannot consider it. Our system of pleading contemplates that certain peremptory exceptions of law triable on the face of the pleadings may be interposed at any stage of the case, but the exception before us is not one of these. See Sustendal v. Weber, La.App., 76 So.2d 8.

Now turning our attention to the merits of the case, we find that young Fal-gout testified that he was driving plaintiff’s car along the highway at a speed of 45 miles per hour notwithstanding that the posted speed limit in the vicinity was 30 miles per hour. He states that he saw the Falcon car come out of the private driveway and make a stop at the edge of the highway; that he blew his horn and continued onward and that when his automobile was about 60 feet before reaching the driveway, the other car came into the highway directly in his path and that although he applied his brakes, he could not avoid a collision.

Miss Falcon states that she stopped at the edge of the roadway, and she maintains that she only entered the highway after she had looked to the left and then to the right and saw no vehicles approaching from either direction on the highway. She states that to her left there was a curve in the road which is located 235 feet from her driveway and that there were no cars between her car and the curve when she made the observation to the left. She claims that when she had satisfied herself that there was no oncoming traffic, she proceeded forward slowly and just as she emerged into the highway she saw plaintiff’s car, which meanwhile had rounded the curve, coming toward her at a highly excessive rate of speed. The import of her testimony is that when she saw the oncoming Folse car she gave no thought to stopping in the highway in its path as to do so would be inviting disaster, so she attempted to proceed forward to the other lane to get to a place of safety. According to Miss Falcon the impact occurred as her car had almost completely crossed the first lane in the highway and that it was struck by the Folse car which came along straddling the stripe in the middle of the road.

The drivers of the respective automobiles were the only eyewitnesses who appeared in court and testified, and at the conclusion of the trial the judge below was of the opinion that Miss Falcon had been negligent in driving her car onto the highway without making sure that it was safe for her to do so and he proceeded to render the judgment in plaintiff’s favor.

If there were no other evidence in the record except the testimony of the two drivers, our inclination would be to affirm the judgment on the theory that as only a question of fact is involved, there is no manifest error in the conclusion of the trial judge who saw and heard the witnesses testify.

But certain other facts appear from the record which cannot be explained away and these convince us beyond any reasonable doubt that our brother below erred in his conclusion as to the negligence of Miss Falcon. She and another witness appearing on her behalf testified that plaintiff’s car left certain skid marks on the highway and that these, by actual measurement, extended uninterruptedly for a distance of 190 feet in all. They commenced at a distance of 130 feet away from the point of impact and ended 60 feet past that point. The pattern of the skid marks on the pavement followed the course taken by the plaintiff’s car and they came to an end at a ditch alongside the highway into which plaintiff’s car ran before crashing into1 a fence. There is not a word of testimony from anyone denying that such skid marks were on the roadway or that they had been made by the car Fal-gout was driving. All of this has the effect of working a complete destruction of Fal-gout’s story that he was driving at the rate of 45 miles an hour and that he was but 60 feet away from the Falcon automobile when it entered Highway 30.

The fact that there were such skid marks in the roadway following the accident leijds full support to Miss Falcon’s assertion that in the brief period of time it took her to look to the left and then to the right and then to start forward onto the highway, that Falgout was driving at such a fast rate of speed that his car negotiated the curve and was bearing down on her just as her car had gotten partly into the roadway. Miss Falcon could not say exactly at what rate of speed Falgout was traveling and we have no reliable information or knowledge as to that fact, but we do believe that the speed of the car must have been “terrific” as counsel for defendant contend. We do not know what reaction time elapsed and what distance Falgout’s car traveled before its brakes were applied, but of a certainty it was much more than 130 feet away from the private driveway when Falgout saw the Falcon car and made application of the brakes, and no one would be so gullible as to believe that his speed was only 45 miles per hour in view of the obvious fact that he was unsuccessful in stopping his vehicle even within a distance of 190 feet.

Counsel for plaintiff point up certain fragments of Miss Falcon’s testimony and argue that she negligently endeavored to “beat” plaintiff’s car by crossing the highway ahead of it and that the blame for the accident must be placed squarely on her shoulders. Miss Falcon did use the word “beat,” but considering her testimony as a whole she did not use the quoted word in the sense attributed to it by counsel. What Miss Falcon meant to convey was that she could not stop for fear of her car being struck and that she thought it proper to proceed forward so as to “beat” Falgout’s car in order to get out of its way.

In passing we might mention a circumstance which to our minds appears suspicious, and that is that although Folse’s young daughter (who has since become the wife of Falgout) and another young girl were riding as Falgout’s passengers, they were not produced as witnesses in the case. Falgout when asked if there was any reason why his wife did not appear responded: “Not exactly. * * * I guess she could have come if she wanted to. If I had asked her to but I just came by myself and that is it.”

Fortunately no one sustained personal injuries in the accident, and we think that this resulted from the fact that the collision occurred near the end of the skid and after much of the momentum of Falgout’s car had 'been spent.

. We are unable to perceive any negligence on the part of defendant’s insured.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that defendant have judgment dismissing plaintiff’s suit at his cost. The ap-pellee is condemned to pay the costs of appeal.

Reversed.


author: TATE, Judge.

text:
    Grover C. ASHLOCK, Plaintiff-Appellant, v. ROWAN DRILLING CO., Inc., Defendant-Appellee.
    No. 4208.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.
    Rehearing Denied May 25, 1956.

      Philip S. Finn, Jr., Kermit Frymire, New Orleans, for appellant.
    Porteous & Johnson, New Orleans, for appellee.
   TATE, Judge.

On pulling a handswitch, plaintiff Ash-lock received a severe electrical shock on July 6, 1952 in the course of his employment with the Rowan Drilling Company, Inc. He was hospitalized for six days. The doctors discharged him as without residual disability after six weeks, for which Ashlock received full compensation. On July 6, 1953, Ashlock filed this demand for workmen’s compensation for total and permanent disability. After trial, his suit was dismissed, and he appeals.

Chiefly factual questions are raised: is Ashlock suffering from constricted vision as he claims; and if so, was this a result of the accident?

Plaintiff claims that permanent damage was caused to the nerves affecting vision by the passage of high-voltage electricity through his body at the time of the accident. Allegedly as a result thereof, Ash-lock’s peripheral field of vision is seriously contracted or constricted.

As explained by the medical specialists herein, the effect of such a constricted visual field is to confine the vision of the affected person in the same general manner as though he were looking through a double-barrelled shotgun. Compared to normal eyesight, he may see just as well and for the same distance in front of him, but he may not simultaneously perceive as wide or high a field of vision.

Three extremely competent eye specialists testified: Dr. J. W. Rosenthal, for plaintiff; Dr. Rudolph Ellender and Dr. Albert Braunstein, for defendants.

These doctors are in virtually complete agreement that Ashlock’s eyes were organically within normal limits and displayed no objective pathology of traumatic damage. Plaintiff’s visual acuity, slightly less than normal, could be corrected with relatively weak lenses and was not significantly different at trial than when examined before entering the employ of Rowan five months before the accident. Likewise, all doctors agreed that the tortuosity (twistiness) of Ashlock’s optic blood vessels was not significant or of traumatic origin.

These doctors all agreed that Ashlock suffered from some degree of photophobia, or light sensitivity. Doctors Ellender and Braunstein found this photophobia very minor, and satisfied themselves that Ash-lock’s reactions to direct and indirect lighting followed no recognizable pattern and that Ashlock was greatly exaggerating such complaints, i. e., was malingering. Dr. Rosenthal felt photophobia could result from electrical shock; Dr. Braunstein felt Ashlock’s light sensitivity could not result from the type of electric shock sustained. We feel, in any case, non-erroneous the District Court’s determination that the alleged photophobia’s significant existence, disabling nature, and traumatic causation were not preponderantly proved by the evidence.

However, Dr. J. W. Rosenthal found Ashlock’s visual field markedly constricted, to about one-third of the normal person’s. Likewise using approved testing techniques and instruments, Doctors Ellender and Braunstein, found that the perimeter charts of the field of Ashlock’s vision showed within reasonable limits the same constriction of the visual field as found by Dr. Rosenthal, These perimeter charts result from recording the patient’s verbal responses as to what he can see.

In view of Ashlock’s hesitant cooperation in these tests, and the certain malingering previously noted concerning complaints of light sensitivity, Dr. Braunstein flatly characterized Ashlock as a malingerer in this regard also. Dr. Ellender likewise noted that such responses were subject to some degree of voluntary control. '

Nevertheless, as able counsel for plaintiff persuasively urges,'the close correlation of the results of these perimetric vision charts —taken on several occasions, over an extended period of time, and by different eye-specialists, but showing the' same general pattern of the constricted visual field —indicates a reasonable probability that plaintiffs visual field is constricted as he claims, and as the results of the tests indicate. Doctors Ellender and Braunstein admitted the difficulty of such consistent simulation.

But accepting that plaintiff has borne the burden .of proving this visual,dis-function or disability, to recover he must still prove that this condition is a result of, or was aggravated by, the industrial accident sustained in defendant’s employ;

Plaintiff’s claim of medical disability can be most succinctly summarized by Dr. Ro-senthal’s testimony that “there is enough constriction present to indicaté that some trauma had occurred to his visual field” and thát this condition “could be * * * the result of electrical shock.” Dr. Rosenthal was, of course, unable to ascribe the condition to any specific trauma or to fix the onset of the condition. The other medical witnesses likewise agreed that electric shock could produce such nerve damage to cause such constriction of the field of vision; they greatly minimized the possibility thereof, however.

If believed by the District Court as corroborated by surrounding circumstances, Ashlock’s own testimony that never before and always after the industrial accident had he been so afflicted, would most prob,ably sufficiently have proved the disability’s origin in this industrial accident, see e. g., Zito v. Standard Accident Ins. Co., La. App. 1 Cir., 76 So.2d 25.

But the preponderance of the evidence in the record on this factual issue supports the able District Court’s determination that Ashlock did not prove any loss of visual- function due to this indus-r trial accident.- Rather than corroborating, the surrounding circumstances cast considerable doubt on any causal relationship of the accident to Ashlock’s present condition.

Plaintiff Ashlock was discharged as medically cured six weeks after the accident, and his compensation was terminated. In about October, 1952, he says he went to the New Orleans office of his employer’s compensation insurer with complaint of continued eye-trouble and was unsuccessful insofar as obtaining further compensation. Ashlock made no further move, either to obtain medical advice or workmen’s compensation, until he was referred by legal counsel he retained to a general surgeon for examination oh May 24, 1953, about eight months after his medical discharge. At this initial medical examination his sole complaints were headaches and nervousness. This physician recommended further examinations by a neurologist and an eye specialist,.which latter discovered that Ashlock’s visual field was constricted and fitted him for the first time with optical lenses on July 2, 1953. -

Following, the termination of compensation, Ashlock had travelled with a rodeo and run a contracting company, allegedly in a supervisory capacity; there is testimony in the record, however, that Ash-lock did considerable bronco-busting, and ,a.s contractor personally ran a bulldozer frequently. Ashlock had been engaged in work similar to these occupations for about 8 years prior to his employment with Rowan. It is of some interest that over Ash-lock’s right eye is a scar which he stated had been present since childhood, although allegedly his parents had never told him what had caused it, nor had he ever asked them. Ashlock’s sworn testimony also contained quite a few willful inaccuracies, indicating possibly less than the highest regard for his solemn obligation to tell the truth under oath.

We, like the District Court, note Ash-lock’s apparent failure to find significant or disabling or to complain of this constriction of vision allegedly caused by the accident, until long after the accident when a medical expert found the condition existed. We feel the District Court’s determination is correct that Ashlock did not satisfactorily prove by credible evidence that this condition originated with the industrial accident herein.

By amended petition filed in this court, plaintiff-appellant seeks attorneys fees and penalties for arbitrary nonpayment of compensation under LSA-R.S. 22:658. In view of our disposition of the main demand, it is unnecessary to decide whether the statutory discretion to do so should be exercised to permit amendment at this stage of the proceeding, see LSA-R.S. 23:1315; Osborne v. McWilliams Dredging Co., 189 La. 670, 180 So. 481; Clark v. Employers’ Liability Assur. Corp., La.App. 1 Cir., 27 So.2d 464; Mitchell v. Sklar, La.App., 196 So. 392.

For the above and foregoing reasons, the judgment, of the District Court herein is affirmed. .

Affirmed.


author: McBRIDE, Judge. JÁÑVIER, Judge

text:
    Paul H. McALISTER v. LIBERTY MUTUAL INSURANCE COMPANY.
    No. 20721.
    Court of Appeal of Louisiana. Orleans.
    April 2, 1956.
    Rehearing Denied May 28, 1956.
    Writ of Certiorari Denied June 29, 1956.

      Jones, Walker, Waechter, Dreux & Poi-tevent, New Orleans, for defendant and appellant.
    Wilkinson & Wilkinson, New Orleans, for plaintiff and appellee.
   McBRIDE, Judge.

Plaintiff, Paul H. McAlister, aged 43, instituted this suit against Liberty Mutual Insurance Company, the workmen’s compensation insurer of Bernard & Byrd, Inc., his former employer, to recover workmen’s compensation benefits for permanent total disability at the maximum rate for injuries sustained in an accident on December 23, 1949, during the course and scope of his employment as master mechanic. McAlis-ter was standing on a timber brace which was hit by a piling, and as a result he, the timber, and the piling all fell a distance of IS to 20 feet into the Florida Avenue Canal. Plaintiff landed atop the timber in a sitting position.

It is not disputed that plaintiff sustained injuries in the fall. Besides three operations, he underwent an extended term of medical treatment, and defendant admits he was incapacitated for 189 weeks for which it paid workmen’s compensation to him at the rate of $30 per week.

After a trial of the case on its merits, the judge below held that plaintiff was totally and permanently disabled and judgment was rendered in his favor for workmen’s compensation pursuant to the provisions of LSA-R.S. 23:1221(2) at the rate of $30 per week beginning December 23, 1949, not to exceed 400 weeks (less credit for the 189 weeks already paid), together with legal interest on each installment from due date until paid.

Defendant has appealed suspensively from the judgment and adopts two alternative positions:

(1) That although McAlister was injured on December 23, 1949, he was as of August 27, 1953, completely cured and able to return to his former work and that he was paid all compensation to which he is entitled under the Statute.

(2) In the event McAlister has not fully recovered, he is only partially disabled, and under LSA-R.S. 23:1221(3) he is entitled to no more than 65 per cent of the difference between wages earned át the time of the injury and wages which he has been able to earn thereafter, however not beyond 300 weeks.

Immediately after the accident plaintiff was sent to Foundation Hospital for diagnosis and treatment. His symptoms led Dr. Robert C. Lynch, in whose charge he was placed, to suspect that he was suffering from intestinal obstructions, and Dr. Lynch performed an operation referred to as an abdominal exploratory laparotomy which failed to disclose any physical condition related to the accident of December 23, 1949. The conclusion reached by Dr. Lynch was that the symptoms which led him to suspect an intestinal obstruction resulted solely from an allergic reaction to anti-tetanus serum and adhesions from prior operations. The adhesions were corrected by Dr. Lynch. Seven-days afterward plaintiff developed clots in the veins of the left leg and Dr. Lynch performed what is called a ligation (a tying off of the veins). Following his convalescence from the operative procedures performed, Dn Lynch discharged McAlister as fully cured and as able to return to hard manual labor.

Plaintiff returned to work for Bernard & Byrd, Inc., on or about May 1, 1950, but because of pain and discomfort in his low back and legs he was forced to discontinue his efforts on or about July 11, 1950, and was sent back to Foundation Hospital where he was referred to Dr. Homer D. Kirgis, an experienced neurosurgeon. Dr. Kirgis made diagnosis of plaintiff’s complaints and determined that there was a rupturefl intervertebral disc, and by surgical means he removed the protrusion of the disc in September of 1950. He referred to this operation' as a major one. Dr. Kirgis treated plaintiff until approximately June 9, 1951, and then, believing that he had fully recovered, he discharged him as able to return to all of his duties.

Following the medical discharge on June 9, 1951, plaintiff again went back to work but in the capacity of operating engineer and he was assigned in that capacity by his labor union to various construction jobs. -The record attests that he has worked on construction jobs ever since and his earnings at times have been substantially in excess of what they were prior to the accident in December of 1949. In passing we may say that McAlister’s present higher income does not seem to be the result of a higher, wage basé but because of the fact that he is working in Lake Charles and his employer, in addition to the wage scale, pays something in the way of a bonus. •

' McAlister has been working in the construction industry for seventeen years, and prior to the accident he had worked himself up to the grade of master mechanic. He had been in the employ of Bernard & Byrd, Inc., in that capacity for about six months before the accident. Previously he was a master mechanic with Keller Construction Company at Lake Charles, Louisiana, and this job and the one with Bernard & Byrd, Inc., were the only jobs whereon he worked ás master mechanic.

Considerable ‘evidence was adduced going to show what are the duties of a master mechanic. McAlister’s testimony is that he was required to supervise and repair any and all kinds of heavy equipment on construction jobs and was very often called upon to operate the equipment. It seems that not infrequently machinery breaks down and it then becomes the duty of the master mechanic to make repairs with the assistance of the men working under him. Plaintiff explained that when the accident occurred in December of 1949 he was actually engaged in repairing a crane. He said:

“ * * * We had the machine tore down right in the middle of the Gen- ■ tilly Boulevard, right on the pavement. We had taken the tracks out from under it, jacked the cab up with these jacks, and pulled the tracks out from under it, and I was changing the center pin and the center pin bushing.”

McAlister said further that a master mechanic must be able to take engines of all kinds apart, such as bulldozers, cranes, pile drivers, pile-driver hammers, etc., and that there is “no limit on the (work of the) master mechanic; no limit.” He emphasized that the work requires a maximum of physical exertion and sometimes the workman is required to perform his duties in tight and close places even “up in the air on a building or down in a hole.” As an example, he told of some work he had done, thus:

“Well, we had a tractor, a bulldozer I think I worked on it several times. We had a concrete mixer. That would go bad on us. At least once a week I’d have to go inside the drum on it, fix the water float, and when we would get the mixer in a tight place, we might break a Universal . joint and I would have to go in and fix it. I had an operator that had never run one before, and I had to teach him everything about it, so naturally I had to do all the repair work to show him what to do, so I'would have to change the Universal • joints every time we would get in a tight. The tractor part of our mixer would get in a bind and would break a Universal joint.”

William B. McDonnel, the business rep-resentaive of the International Union of Operating Engineers, testified that Mc-Alister was classified as and had been doing work of a master mechanic before the accident. The witness related in some detail the duties of a master mechanic which he considered extremely heavy work. Among other things, a master mechanic must be physically able to climb on machinery to make repairs and to see to it that all the machinery on the construction job site remains in an operating condition. He mentioned that the master mechanic must do heavy lifting of parts of heavy equipment, such as gears, bushings or whatever particular part has to be repaired.

James Little, a master mechanic, stated that he has known McAlister for some time and that he had worked with him both before and after the accident. When asked if the job of master mechanic required that a workman be in good physical condition, Little replied: “I’ll say it does.” He related how the master mechanic is called upon to do heavy lifting “to make repairs on anything that might break down” and to work in close places “and you also have some mighty strenuous places to get parts out, that you have to take loose to be repaired.”

Notwithstanding his discharge by Dr. Kirgis on June 9, 1951, McAlister insists that he has been able to return to work in the construction industry only as an operator, or, as counsel for defendant characterize it, an operating engineer, and not as master mechanic. He claims that his abdomen and back pain him, that his legs and muscles are “tight” and that if he stands too long his legs get weak, or if he sits too long his legs get stiff, and these are symptoms he never had prior to his accident. :

Since‘June 9, 1951, McAlister has not been wanting for work. It" appears that he has been employed by a number of concerns on construction projects and has served variously as boiler fireman, supervisor of lifts, assistant superintendent, and operator of a hoist, derrick,1 pump and compressor, wench, pile driver and crane. He says he has never had the rating of or worked as a master mechanic since his injuries because he cannot perform the duties thereof and that his áctivities are confined to lighter, less árduous, and a different type of work.

Since his discharge by Dr. Kirgis, the plaintiff was examined by two other physicians. Dr. Howard Karr, admittedly a qualified neurosurgeon, saw him on March 18, 1953, at the behest of defendant, and the doctor’s conclusion after a neurosurgical examination was that there was no residual back disability which would incapacitate plaintiff from the performance of his usual work. Dr. Karr did not appear as a witness in the case, but by agreement of counsel for the parties his written statement was received in evidence in lieu of his testimony. We have most carefully read this statement and nowheré in it is there anything that would infer or even suggest that Dr. Karr was apprised of or possessed knowledge of what particular duties are expected of a master' mechanic. Dr. Karr reported that be believed Mc-Alister could perform his “usual work.” We pause to wonder just what the “usual work” alluded to by Dr. Karr was. We notice that the report in giving a summary of plaintiff’s history sets forth that plaintiff:

. “ * * * belonged to the Operating Engineers Union and he was sent to various types of jobs. He states at the time he was injured his occupation. was that of a master mechanic. Since then he has engaged in various types of work involving the operating of a crane, pile‘driver; he states he did not operate a crane but has operated a steam hoist, compressors, and pumps; and has been assistant superintendent for a foundation company.”

The fact of Dr.- Karr’s being uninformed as to what physical exertions are expected of a master mechanic leads to the logical conclusion that when he referred to “usual work” Dr. Karr meant the work that Mc-Alister was then engaged in, such as crane operator, pile driver, steam hoist operator, operator of compressors and pumps and assistant superintendent. Of course, Mc-Alister can do any and all of these things and he was actually doing them when Dr. Karr rendered-the report, but we are convinced that the.duties required in those jobs consist of lighter work and work different in kind from that which a master mechanic is required to perform.

The other physician to see and examine McAlister since.his return to work is Dr. O. L. Pollingue, an orthopedic surgeon, who appeared as a plaintiff witness. On January. 14, 1955, Dr. Pollingue found that McAlister,was haying some difficulty in the low bade region and he estimates th«re is a disability .rating of about 25 per cent of the body as a whole as a result of the disc operation. He thinks the 'disability will be permanent. Dr., Pollingue pointed out that following the removal of a disc the patient’s back is weakened to a certain extent. During the course of his examination he discerned certain-objective symptoms, particularly the absence of a curve in plaintiff’s back. However, Dr. Pollingue felt that plaintiff can do heavy work in spite of his disability and while he said plaintiff could lift heavy objects, he qualified that assertion by stating that plaintiff could do this only when in certain positions. Dr. Pol-lingue made it plain that he only examined the low back as that was the only complaint which is embraced in the field of orthopedics. He also added that at the time of his examination he knew McAlister was working as a pile driver but that he did not know the kind of work plaintiff was engaged in when he sustained the injuries:

The tenor of the record clearly and unmistakably 'indicates that McAlister, although able to perform substantially all of the duties of 'an operating engineer in con' struction work, is unable to do all of the tasks which would be required of a master mechanic to be done. We believe that his complaints are genuine and are convinced that he cannot cope with the strenuous duties which the repairing of construction equipment entails, such as lifting heavy objects and working in close quarters, which are a substantial part of a master mechanic’s duties. We likewise feel sure that the duties required in the two labor classifications, master mechanic and operating engineer, are quite dissimilar and that while a master mechanic might do what is required of an operating engineer, an operating engineer is not always physically competent or skilled enough to do the work of a master mechanic. By the standards of the construction industry the employment of an operating engineer does not embrace his making repairs to equipment, but on the other hand the master mechanic is required to do such work and to our minds this is the major difference between the two employments.

An examination of McAlister’s testimony, as well as of his lay witnesses, shows that each of the pieces of machinery hé has been able to operate since the return to work was either chosen by him or by the union officials after taking into account his physical limitations. In the interest not only of his . own physical welfare, but in the interest of the safety of his fellow workers as" well, McAlister has scrupulously avoided any operation which requires strenuous physical exertion. The operation of the multitudinous machinery, we are informed, requires only the pulling and manipulation of levers.

McDonnel, of the Union, testified that because of his physical deficiency McAlis-ter is not able to , carry on as a master mechanic, and he has not been sent out on any job as a master mechanic by the union because it is thought that, he- cannot hold such job. McDonnel .stated: “We don’t feel like recommending him because of our sense of responsibility to the' Associated General Contractors.” ■

Little, who has been mentioned before, compared McAlister’s present condition with his condition as it was before the accident, and stated that McAlister could - formerly do any kind of work on a job but that he is now seriously handicapped, and on one occasion Little was obliged to make a special back rest on the seat of a crane in the interest of McAlister’s comfort. He states that McAlister is assigned only to lighter work.

Harold McGloin testified that he works with McAlister, and that since the latter’s accident he cannot even do all of the duties required of a pile-driver operator.

We are importuned by counsel for defendant that the testimony of Drs. Lynch and Kirgis is entitled to more weight than the other physicians because they treated McAlister and their observations of him both throughout their treatment and during the period of convalescence place them in the superior position to say what McAlis-ter’s physical condition really is. We cannot accept Dr. Lynch’s testimony for the obvious reason that after the abdominal operation and the subsequent ligating of the veins in McAlister’s leg, Dr. Lynch discharged his patient as being fully capable of returning to his employment when, as a matter of fact, McAlister at that time had a ruptured intervertebral disc which had to be corrected By surgery performed by Dr. Kirgis.

The opinion of Dr. Kirgis when he discharged McAlister was that he has normal mobility and is able to carry on his usual occupation, but nowhere in his testimony does it appear that Dr. Kirgis knew exactly the kind of work McAlister was engaged in prior to the date of the accident and, like Drs. Pollingue and Karr, we fail to understand how he was able to say that McAlister could return to his former duties. When he last saw him, McAlister was working as a fireman at the Port of Embarkation, and Dr. Kirgis’ statement is that he “felt that the fact that he was working regularly was also an indication that he had made a very satisfactory response to the operation.” We feel very much the same way about Dr. Kirgis’ opinion as we do about the.opinion of Dr. Karr.- Both physiciails knew McAlister was working when they saw him and not knowing the type'of work he was engaged in before he received his injuries, it is not unreasonable to believe that when they stated he could return -to work they very likely had in mind work of the kind he was then doing.

Defendant has cited several cases decided by the Court of Appeal of this state in which was discussed the ■ principle surrounding the admission of lay-testimony in a case such as this, and the argument is advanced that under the doctrine established by the cited cases, we should give no consideration to what the lay witnesses had to say from the witness stand. We aré cognizant that it has been held that the principle of dependence upon lay testimony should be resorted to only in those cases where the medical evidence is so evenly balanced or so violently conflicting as to prevent the court from drawing a conclusion. We have considered the lay testimony not because we believed the experts’ testimony to be in conflict, but rather .because we did not believe that the experts were even in a position to enlighten the court on the all-important question whether plaintiff was disabled. Had it not been for the evidence given by plaintiff, his fellow workers and the union official, who knew what duties a master mechanic must perform, there would have been nothing before the court from which it could be determined whether plaintiff can do work of any reasonable character. In view of the lack of expert testimony on the point in question, the lay -testimony must properly be considered.

We do not' believe this is a case where it can be said that the plaintiff has sustained a partial disability and is entitled to nothing more than the compensation provided for in LSA-R.S. 23:1221(3). On the contrary, the weak back and the 25 per cent disability of the whole body found to exist by Dr. Pollingue, whose testimony the trial judge believed, has had the effect of -rendering McAlister incápablé 'of performing a substantial portion of the duties which he would be required to do and perform as master mechanic, which was his occupation prior to and at the time he received the injuries. Therefore, he must be regarded as a workman who is totally and permanently disabled from doing work of any reasonable character within the purview of the Workmen’s Compensation Statute. See Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695. The Supreme Court held in that case that a skilled workman who was required by his employment to operate an asphalt distributor, which he could no longer operate after his injuries, was to be considered totally and permanently disabled notwithstanding that he is able to drive an automobile or truck, because the driving of a motor vehicle is not of the same character as operating an asphalt distributor. We draw an analogy between the Wright case and the instant case.

Counsel for defendant argue that the phrase “disability to do work of any reasonable character” as contained in the com-1 pensation statute means disability to perform work of the same or similar description, kind or Character (not necessarily identical) as that which the claimant was accustomed to perform or was undertaking when the injury occurred. We are cited to Morgan v. American Bitumuls Co., 217 La. 968, 47 So.2d 739. The contention 'is then made that whereas McAlister is competent to perform the duties of an operating engineer, which, was an occupation to which he was accustomed and which he followed for' some years, ánd so long as he can do and is actually performing the duties of such calling, he cannot claim to be totally and permanently disabled within the inténdment of the workmen’s compensation laws.

We cannot agree with counsel. It is true that for some years the plaintiff did hire himself out as an .operating engineer and over a span of .seventeen years devoted to work as a-n employee on construction projects he succeeded in meriting the rating of master mechanic. We do not think that the Morgan case, would be authority for a holding that because plaintiff might, be able to do the work he had done some time in the past in another job category he is not now totally and permanently disabled. Plaintiff is no longer able to return to and perform the duties of a master mechanic or any duties similar thereto, and under the established jurisprudence of Louisiana that is to be the standard for testing his disability.

Plaintiff’s right to the benefits provided by law for a workman’ who is totally and permanently disabled as a result of injuries received in the course and scope of his employment is unaffected by his ability to perform, even at equal or better wages, the duties of another and dissimilar occupation. Ranatza v. Higgins Industries, Inc., 208 La. 198, 23 So.2d 45, affirming La.App., 18 So.2d 202; Butzman v. Delta Shipbuilding Co., Inc., La.App., 21 So.2d 80; Myers v. Jahncke Service, Inc., La.App., 76 So.2d 436 (writs refused). In the case lastly cited, this court followed the decision of the Supreme Court in Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218, and held that wages may be earned by an injured workman even from the same employer in a higher job classification without loss of the claimant’s right to workmen’s compensation for total and permanent disability.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

JANVIER, J., dissents with written reasons.

JÁÑVIER, Judge

(dissenting).

During the argument before us counsel for plaintiff-appellee made the statement that plaintiff was entitled to compensation for permanent total disability because, by judicial decisions, there have been written out of our compensation laws provisions for partial disability. I am unable to agree that this is so, although I do agree that there remain very few situations in which we are permitted to hold that there is partial disability.

This is a case in which compensation should he based on partial disability and if plaintiff here is to be compensated on the basis of total disability then I can think of no facts which would justify the application of- the partial disability provisions of our compensation laws.

The plaintiff can do practically everything which he could do before the accident. There is very little difference between the duties of a master mechanic and those of an operator of heavy machinery,, the difference, if any, lying in the fact that the master mechanic may be called upon to repair various kinds of heavy machinery, whereas the “operator” of such machinery, though he is usually capable of operating many different kinds, is called upon to repair only the ■ particular heavy machinery which he may be operating when - a repair becomes necessary.

The plaintiff here for five years after the accident, at the time of the trial, and at the time of the argument before us was successfully operating heavy machinery and for a short period had worked as an assistant master' mechanic, and since the accident he has earned and received each week as much as he was able to earn before; the accident. It thus appears that for more than five years he has done work substan-' tially similar to that in which he was engaged before, and it clearly appears that he has earned as much each week as formerly.

There seems to be a belief that the decision.s of the Supreme Court.and qf this. Court have established the doctrine that, in determining whether an employee is totally or only partially disabled, where the employee is a common laborer there should be applied a principle different from that which is applied where the employee is skilled. There is no such difference in principle, 'though the facts in the two situations may require what may seem to be a different result. In either case it should be determined whether the employee, as stated in Morgan v. American Bitumuls Co., 217 La. 968, 47 So.2d 739, 741, is able to “perform work similar in character” to that in which he was previously engaged. In the case of the skilled employee who has been trained to do one specialized job, there are so few jobs which are similar that if he is deprived of his ability to do that particular job, it may be very difficult to find another similar one which he can do. However, in the case of the common laborer who, as the result of accident, is unable to do one or two or three of the kinds of labor which he could do formerly, but is nevertheless able to do countless other laborious jobs, it may often be proper to say that while he can no longer do each and every job which he could do before, he can still do so many other jobs which a common laborer can do that he is only partially disabled.

That there may still be applied those provisions of the compensation statutes which provide for partial disability is made evident by the decision of the Supreme Court in Morgan v. American Bitumuls Co., supra, where, the employee was allowed to recover on a, partial disability basis.

That there may still be partial disability under our statutes is also' made evident by the language of the Court in Brannon v. Zurich General Accident & Liability Ins. Co., 224 La. 161, 69 So.2d 1, 3, in which the Supreme Court clearly held that there is total disability only where the accident makes it impossible for the employee “ ‘ “to do work of any reasonable character.” ’ ” and where the Court quoted from its earlier decision in Wright v. National Surety Corporation, 221 La. 486, 59 So.2d 695, 697, as follows:

“The question here, as1 in'all these cases, is whether'plaintiff is ‘disabled to do' work of' any reasonable character’ within the intendment of the compensation statute.”'

The facts fiere show that the plaintiff can do work of a reasonable character which is substantially similar to that in which he was efigag'ed before the accident.

I respectfully dissent.


author: JANVIER, Judge.

text:
    Mrs. Mary L Schneider WINSBERG, Administratrix of the Estate of Hermand Woodward Winsberg v. Mrs. Sarah Silverman WINSBERG, Mrs. Stella Winsberg Levy, Mrs. Jessie Winsberg Bluhm and Winfred J. Winsberg.
    No. 20104.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.
    Rehearing Denied May 28, 1956.
    Writ of Certiorari Granted June 29, 1956.

      Solomon S. Goldman, New Orleans, for defendants-appellants.
    • Arthur B. Hammond, Jr., New Orleans, for plaintiff-appellee.
   JANVIER, Judge.

This complicated litigation grows out of the remarkably successful operation of a small store on Magazine Street in New Orleans, just below the corner of Napoleon Avenue. The facts were to some extent set forth in an opinion rendered by us on November 8, 1954, in this same matter reported in 75 So.2d 542, and are also partially set forth in an opinion of our Supreme Court, also in the same matter, reported in 229 La. 61, 85 So.2d 31. We shall restate such facts as may seem neces-' sary to an understanding of the controversy which is now again before us.

Jacob Winsberg died on May. 8, 1937, leaving an estate containing movable and immovable property including a small store operated on the real estate. He left a widow, Mrs. Sarah Silverman Winsberg, two daughters, Mrs. Stella Winsberg Levy and Mrs. Jessie Winsberg. Bluhm, and two sons, Winfred J. Winsberg and Hermand Woodward Winsberg. He left a will in which he bequeathed to his widow his entire estate which consisted of community property. Since there were more than two forced heirs, there was in his succession proceedings a judgment which reduced the legacy to his widow and placed her and the four children in possession of the estate, %2ths to the widow and Yi2th to each of the four children. No mention was made of the usufruct in favor of the widow either in the will or in the judgment of possession. There followed at that time no actual distribution or division of the assets of the estate and the operation of the store was actively continued by all except the son Hermand, who was engaged as a shoe salesman by a shoe manufacturing concern.

Hermand Winsberg died on February 25, 1948, but, on May 5, 1948, there was born to his widow a posthumous child, Kathleen Hilda Winsberg. The administratrix of the estate of Hermand Woodward Wins-berg, who was also tutrix of the said minor daughter, brought this suit in the Civil District Court for the Parish of Orleans against the widow and the other-three children of Jacob Winsberg, seeking: an accounting of his estate .from the time of his death on May 8, 1937 through December, 1945.

It is alleged that, although the deceased husband of the administratrix (the father of the minor) had, in the 'succession proceedings of his father, been ordered sent into possession of Y.2Ü1 of his father’s estate, he had in fact never actually received his share and that the management of the property left by his father had been, carried on by his mother, his brother and his sisters, and that there was due a full and complete accounting, particularly as to the earnings and value of the store which had been continued as a going concern and as to the real estate on which the store had been operated from the time of the death of the father until the time at which an accounting was sought.

Petitioner further alleged that "an accounting would show that her deceased husband’s interest was in excess of $2,000, and she prayed for judgment against defendants for such amount as the accounting would show to be due.

As stated, there were .two issues involved, — one grew out of the operation of the store, and the other was based on the claim that the widow of Jacob Winsberg did not have the usufruct of the two-thirds of one-half interest in the real estate on which the store was operated, and that therefore Hermand W. Winsberg’s widow was entitled to his proportionate share, or %?th of the rental value of the real estate during that period.

Although it was contended by the defendants that the widow of Jacob Wins-berg, in addition -to her complete owner- . ship of the undivided one-half of the said real estate, and to one-third of the other . half, did have the usufruct of the remaining two-thirds of the other half, it was 'conceded that if it should be held that she did not have the usufruct of two-thirds of the other half, an accounting' as to the value of the use of that two-thirds would show that Hermand would be entitled to a judgment for $1,460.

There was judgment denying an accounting as to the operation of the store, but in favor of the administratrix for $1,460, based on the conclusion that the widow of Jacob Winsberg did not have the usufruct of two-thirds of her deceased husband’s half of the real estate. From this judgment the defendants appealed to this Court and more than two years later plaintiff answered the appeal, praying that the judgment be amended by the ordering of an accounting as to the store opera-, tions, as well as the accounting which had been ordered as to the rental value of the real estate.

When the matter was first before us, defendants moved to strike from the record the answer of plaintiff to the appeal of defendants, asserting that the answer of plaintiff was in effect an attempt to- appeal from the judgment which had been signed on November 14, 1953, and that therefore since the answer to the appeal was not filed until May 17, 1954, or more than two years after the signing of the judgment, the answer to the appeal came too late and should be stricken from the record.

We considered that contention, discussed it at considerable length, and concluded that the answer did not come too late and that it should be considered. We then went on to discuss the question of jurisdiction ratione materiae and reached the conclusion that we were, without jurisdiction since we felt that there was involved more than $2,000, and we transferred the matter to the Supreme Court. Winsberg v. Winsberg, La.App., 75 So.2d 542. However, the Supreme Court held that the record at that time did not affirmatively show that more than $2,000 was involved and retransferred the entire matter to us. 85 So.2d 31.

It may be that, since we reached the conclusion that we did not have jurisdiction, we should not at that time have considered the contention that the answer to the appeal should be stricken from the record. Now that the matter is again before us we have again studied the reasoning on that question which appears in our opinion in which we held that the said answer should not be stricken from the record and for those reasons, to which we now refer, we hold that the answer to the appeal should be considered and that there is now before us not only the appeal of the defendants from the judgment against them for $1,460, but ‘ also the answer of plaintiff by which she presents the contention that there should be an accounting as to operation of the store also.

Since the appeal is by defendants from that part of the judgment which is against them and which orders the accounting as to the rental value of two-thirds of the real estate, we shall consider that question first. There is involved in it only the small piece of real estate on which the store is operated. It bears municipal numbers 4304-06 Magazine Street.

The will of Jacob Winsberg, as stated, left to his widow everything of which he died possessed. She, as widow in community, was the owner of an undivided one-half of that real estate, and had there been no will she would have been entitled to the usufruct of the other undivided one-half, LSA-Civ.Code, Art. 916, and thus, as owner of one-half and as usufructuary of the other one-half, could have permitted the operation of the store either with or without requiring that the store pay rent to her.

However, in Forstall v. Forstall, 28 La. Ann. 197, it was held that “Article 916 must be construed with Article 1493”, and that where the deceased partner in community has disposed by will of his or her half of the community property, the usufruct does not go to the- surviving partner in community. There the facts were identical with those which are found here and the Supreme Court plainly said that if a decedent has disposed of the share in the community by testament, the usufruct, in favor of the surviving spouse, which would otherwise exist as a result of Article 916, no longer exists.

There can be no doubt that that was exactly what was decided. In fact, in his brief counsel for defendants concedes that and states the holding in the Forstall case as follows:

“The Supreme Court denied the widow the usufruct, holding that under [LSA] C.C. Art. 916, the decedent having disposed by will of his share in the community property automatically deprived the widow of the usu-fruct of the interest in the community property inherited by the issue of the marriage — that is to say, their legitime.”

However, counsel contends that in Succession of Moore, 40 La.Ann. 531, 4 So. 460, 463, the Supreme Court reached a conclusion which is “diametrically opposed” to its decision in the Forstall case.

Succession of Moore is distinguishable from the decision in the Forstall case. In fact in the Moore case the Supreme Court itself stated that there is a distinction, and obviously had no intention of overruling its decision in the Forstall case. “The terms of the wills of Forstall and of Moore are not germane. The facts are different. The ruling, [in the Moore case] therefore, cannot be invoked as a precedent.”

The distinguishing facts to which the Supreme Court pointed in the Moore-case were that

“Forstall had disposed of his entire share in the community in favor of his wife, while in the instant case Moore has bequeathed to his wife only the disposable portion, confirming her legal usufruct over the remaining portion of his share in the community property, without affecting or attempting to incumber, in the least the ownership of the two-thirds inherited by the issue.” ■

We particularly noté the reference to the fact that the will in the Moore case “confirmed” the legal usufruct of the surviving spouse.

Counsel .for defendants also relies to some extent on Succession of Baker, 129 La. 74, 55 So. 714, saying that in- that case the Supreme Court held that where the survivor is entitled to the usufruct it does not come by inheritance but comes as a result of law* Article 916 of. the Code. It is true that the Court did say that, but it went on to say that where there is a will in which the -deceased partner- in community attempts to grant to the survivor the usufruct, the will does not have the effect of creating the usufruct; it merely “confirms it.”1 In other words, as we read the Succession of Baker on this particular point, it in no way overrules Forstall v. Forstall. It merely shows that where there is no will the'usufruct passes to the survivor in community, as a matter of law, and that where there is a will, which attempts to grant to the survivor the usufruct, it does not create the usufruct but merely confirms what the law recognizes as existing. :

In Succession of Moore there is language which, only with difficulty, may be reconciled with the result reached in Forstall v. Forstall, but it is very evident that the doctrine followed in Forstall v. Forstall has not been overruled, though it must be limited to cases in which identical facts appear. This is recognized in an article entitled “Usufruct”, appearing in 18 T.L.R., page 181, for on page 204 appears the following:

“While Succession of Moore does not overrule Forstall v. Forstall, it does seem to limit it to its peculiar factual situation.”

The writer of that article went on to make the following statement:

“In order for the survivor to be .deprived of his usufruct, it would be necessary for the deceased to ignore the laws of forced heirship and attempt to bequeath the entire estate to the surviving spouse. On the other hand, where the deceased desires to give the surviving spouse something in addition to the usufruct, such as the disposable portion or designating him as a particular or universal legatee, it would seem that such an act would not deprive the survivor of his usu-fruct. However, Succession of Moore does indicate that where the deceased bequeaths his disposable portion in his • last will and testament, and also affirms the distribution to his heirs without mention of the survivor’s usufruct, in that situation the survivor would be deprived of his usufruct.”

Counsel for defendants, in contending that the mother enjoyed the usufruct, direct attention to the fact that, after Her-mand W. Winsberg returned from the military service, which was after the termination of the period covering the accounting which is sought, he and his mother and his two sisters entered into a partnership agreement by which he and his two sisters were to take over the operation of the store and that in that agreement which was con-fected on instructions from Hermand, and was signed by him as well as by the others, it was stated that contemporaneously with the signing of the agreement the mother, Mrs. Sarah Silverman Winsberg, as owner and “usufructuary” should lease to the purchasers of the business the said real-estate.

Counsel contends that by entering into this agreement Hermand conceded that his mother was entitled to the usufruct of the real estate and that his administratrix cannot now be heard to contend that his mother did not have the usufruct.

In the first place, that agreement was made sometime after the termination of the period for which. an. accounting is sought. In the second place, that is not the. type of written agreement which may be relied upon as granting a'usufruct where real property is involved. ■ The LSA-Civil Code, in Article 540, provides that:

“Usufruct may b.e established by all sorts of titles; by a deed of sale, by a mariage contract, by donation, compro- • mise, exchange, last will and even by operation of law. * * * ”

However, the contention that where real property is involved a usufruct may be created informally and possibly incidentally, as is contended here, seems to be contrary to the provisions of Article 2275 of our Code which require that transfers of immovable property must be in writing, and it is contrary to the view of the Supreme Co'urt as set out in Guier v. Guier, 7 La. Ann. 103, wherein the Court made the following statement:

“Usufruct may be established by all sorts of titles; by a deed of sale, by a marriage contract, by donation, compromise, exchange, last will, and even •by operation of law, and may be established on every description of estates, movable or immovable, corporeal and incorporeal. Code 532, 533.
“We think it a fair and reasonable interpretation of these articles, that when a usufruct is established on immovable property, it should be established by a written title. The usu-fruct creates an interest in the property itself, which is transferred from the owner to the usufructuary. Now, every transfer of immovable property, or slaves, must be in writing. Code, 2255. We see no reason why an anti-chresis should be in writing, and that the establishment of a usufruct on real estate should not be. Both give rights upon the immovable property itself, and our laws have ever guarded the interests in immovable property by written titles.”

Our conclusion is that the petitioner is entitled to the $1,460 which it is conceded would have been Hermand’s and which is the rental value of the real estate.

When we come to consider the more important question of whether Herman Winsberg, had he lived, could have demanded an accounting of the movable property of his father’s estate, i. e., the operation of the store, we find a very interesting picture., At the -time'.of-the .death of thet father, Jacob Winsberg, oh May 8, 1937, the entire estate was worth very little by comparison with the obvious worth of the real estate and the store on December 31, 1945. According to the inventory of the estate made in 1937, the entire assets were appraised at $7,728.80 of which the real estate was appraised at $3,500.

As of December 31, 1945, when, on the request of Hermand Winsberg, a certified public accountant made a computation of the amounts which had been distributed by the mother to the children, it was found that the assets had a value of $234,995.27. If there be deducted the value of the real estate which was then set forth as $35,-000, it will result that the movable assets were worth $199,995.27. Of this amount there remained in the possession of the mother $113,695, and it is shown that of the balance she had advanced to the children assets held by them in the following amounts: Hermand, $5,556; Winfred, $67,438.77; Mrs. Stella Winsberg Levy, $23,893; Mrs. Jessie Winsberg Bluhm, $24,-412.50.

If these figures constituted all the evidence before us, it would appear that the other children received substantially more from the estate of their father than had Hermand. However, as already stated, the store at the time of the death of the father had a very small value, and the enormous increase is shown to have resulted from its operation by the mother and the other three children and in this operation Hermand took only a spasmodic part when he happened to be in New Orleans.

Shortly after the death of the father, Hermand, who was a shoe salesman for a manufacturing concern, apparently making his headquarters in North Carolina, returned to New Orleans for'his father’s funeral and very shortly thereafter returned to North Carolina, and wrote a letter to his brother, Winfred, who seems to have been in charge of the operation of the store, and in this letter Hermand said: ■

“I suppose you have settled all bills from papa’s illness and put all the surplus funds at interest. We can let other matters remain as they are until September. I feel that the business should be turned over to you by October 1st as you are now entitled to have it. I will transfer my one-twelfth without any payment as I feel that will hardly equalize the difference between what papa gave me at various times and which was never repaid.”

Hermand continued in the employ of others until 1943 and in that year he entered the military service and remained in service until 1945, and it was at that time that he gave the accountants all of the information on which they based the computation to which we have already referred. Apparently Hermand desired the computa-' tion in order to arrange the organization of a partnership which was to take over the operation of the store, for shortly thereafter, on December 28, 1945, he wrote and' gave to Mr. Solomon Goldman, the attorney who then represented thém all, and who now represents the defendants, a ■ memorandum to be used in the preparation of a partnership agreement under which he and his two sisters were to form the partnership and were to take over the business. In the meantime, when it became necessary to prepare the partnership return of income for the year 1945, Hermand, who was an attorney, prepared the forms and/ 'in the blank space for the listing of the names and addresses of each of the partners, showed the name of his mother, his brother and his two sisters and- did not show his own name.

It is not necessary that we .analyze in detail the very interesting computation which, on the request of Hermand and on information furnished by him, was made by. the certified public; accountants, for at this time we are not interested in amounts but. merely in the principle which is.involved.

Did the actions of Hermand Winsberg and of his mother, his brother! and his' sisters indicate at any time that ’ any one of them contemplated that Hermand was' a partner in the conduct of the business’ which was left by the father and which, after the death of the father, was so successfully conducted by those who remained here while Hermand was away attending to the business in which he was engaged? We think not. Had there been losses which the partners would have been required to share, would there now be a claim that, between the time at which Jacob Wins-berg died in 1937 and the time at which Hermand returned to New Orleans in 1945 and determined to form a partnership and to take over the business, Hermand was a piartner or was engaged in the joint venture and, as a result, could have been called upon to contribute his share? We think not, and we feel certain that the actions of Hermand himself during that period belie the contention that he considered himself a partner and that he had an interest in the estate left by his father above and beyond that which had been delivered to him.

When we again study the computation which was made by the accountants on figures given by Hermand, we find that Hermand himself received $5,556, which exceeded by $2,485.50 the value of his share of the'movable property left by his father. When we realize this fact and further realize that shortly after the death of his father, he wrote the letter of June, 1937, in which he stated that he had received more than he was entitled to, and when we further remember that in 1945 he got together the information on which the partnership: was to be based, and when we further realize that he prepared the partnership return and did not show himself to be a partner, we find it difficult to believe that he himself would have contended that he actually was a partner during all of that time and was entitled to his share of the earnings of the partnership, or joint venture.

Counsel for plaintiff argues that when the heirs of Jacob Winsberg were sent into possession of his estate, they became and remained owners in. indivisión and that there was no formal partition among them and that thus there was formed a partnership or something approximately akin to a partnership such as a joint venture which justifies the conclusion that they all understood it as such.

We have referred to a possible joint venture because even where there is no formal partnership, there is sometimes a relationship which is designated as a joint adventure. This relationship is described by our Supreme Court, in Daily States Pub. Co. v. Uhalt, 169 La. 893, 126 So. 228, 231, as

“ ‘a special combination of two or more persons, where in some specific venture a profit is jointly sought without any actual partnership or corporate designation.’”

Where there is a relationship, wé agree with our Brothers of the Second Circuit in their statement in Young v. Reed, La.App., 192 So. 780, 785, that

“ ‘The relation of joint adventurers is governed by the principles which constitute and control the law of partnership.’ ”

We think that here there was neither a partnership nor. a joint venture.

It seems to us that there was quite an effective partition of the movable effects for the mother and the brother and sisters of Hermand bought for him $2,000 of homestead stock and later $5,556 in War Bonds which he accepted and concerning which he gave every indication that he considered that he had received his full share of the movable property.

As shown in the memorandum given by Hermand to the attorney and' which was to be iised in the preparation of the partnership agreement, he, in his own handwriting, wrote that the assets in the names of himself and his two sisters, who, with him, were to form the partnership, would remain in their respective names and that they all “agree that they have been paid in full their interest in the Succn. of Jacob Winsberg and agree to collate balances (and bind their heirs to collate balances) in the Succn. of Sarah S. Winsberg.” This reference is to the fact that in the computation made by the accountants, Hermand himself received $2,485.50 more than his share and that that was to be collated in the succession of his mother at her death, and it also showed that, though the others had received more than their share of the movable effects of the father’s estate, they too were to collate at the death of the mother.

This is interesting because counsel for plaintiff argues that if it be held that plaintiff is not entitled to an accounting of the movable effects of the estate of the father,, at least it should be held that the other heirs must, on the death of their mother, collate in the succession of the mother what each has received in excess of. his or her share of the estate of the mother. It is true that in the computation made by the accountants there are set out the amounts which each should “collate” at the death of the mother and that these amounts are set forth as having been “advances” by the mother, but the question of whether on the death of the mother they should be required to collate is not how before us. All that is presented here is the question of whether there must' be an accounting by the heirs of Jacob Winsberg for the movable effects left by him and we hold, as did the District Judge, that Hermand Winsberg received his full share of those movable effects and that plaintiff is not entitled to a further accounting.

The judgment appealed from is affirmed at the cost of appellant. .

Affirmed.


text:
    EMMCO INSURANCE COMPANY and Frank J. Vandrell, Jr., et ux. v. TRAVELERS INSURANCE COMPANY.
    No. 20604.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.
    Rehearing Denied May 28, 1956.
    Writ of Certiorari Denied June 29,1956.

      Morphy & Freeman, New Orleans, for plaintiffs-appellants.
    May & Carr ere, Ernest A. Carrere, Jr., New Orleans, for defendants and plaintiffs in Reconvention, appellees.
   JANVIER, Judge.

This controversy results from an unusual automobile collision which occurred at about 5:45 o’clock in the late afternoon of September 15, 1954, on what is known as the Airline Highway at the western entrance to the parking lot of ,a large supermarket which is located on the north side of the highway about 150 feet east of the intersection of Labarre Road, in Jefferson Parish.

One of the cars involved was a Chevrolet which was owned and operated by Frank J. Vandrell, Jr., who had driven along the neutral ground in an easterly direction towards the City of New Orleans and had attempted to turn to his left through a gap in the neutral ground and to cross the other side of the highway and enter the parking space 'of the market. The other car was a Chrysler Imperial Sedan which was owned by National Service Corporation and was being operated by Joseph Vinson who was on his way out the highway in a westerly direction.

The highway is extremely wide, there being a neutral ground in the center and four traffic lanes on each side. The traffic, particularly on the north half of the highway, was extremely heavily congested, and it was obviously very difficult for Vandrell, who wished to turn to his left across that heavily congested side of the highway, to do so. When he reached the gap in the neutral ground which provided an opening through which he might turn to his left, he stopped because of the very heavy traffic on the other side of the highway. After waiting a short time, he thought that, although there were three lines of traffic in the three lanes nearest the neutral ground, since all of the traffic in those three lanes had come to a stop, he might thread his way through and enter the parking lot.

At that time all of the traffic in the three lanes on the north side of the highway had come to a stop because of a red traffic light which was at Labarre Road about 150 feet or so to the west and, as a result, as Van-drell attempted to pass through these three lines of cars there were some to his deft as well as some to his right. On the north side of the highway and nearest the curb there remained a fourth lane in .which, so far as he could see, there was no traffic approaching. He therefore turned to his left into a very narrow opening through the three lanes of traffic, and states that he had practically reached the parking lot when the car driven by Vinson, which'approached at a very high speed, crashed into the right side of his car causing the damage to the car and the physical injuries to Mrs.-Van-drell on which this suit is based. ■

Vandrell had secured from Emmco Insurance Company a policy of collision insurance under which that company had agreed to pay all but $50 of such amount as might be required to repair his car should it be-injured in collision, and Emmco Insurance Company, having paid all but $50 of that amount, joined with’ Mr. and Mrs. Vandrell in bringing this suit against Travelers Insurance Company, alleging that the accident had resulted from fault on the part of Vinson, an employee of National Service Corporation, that the said Travelers Insurance Company had issued to that corporation a policy of liability insurance and averring ■ that, as a result, the said Travelers Insurance Company was liable direct- : ly to anyone injured as a result of the negligent operation of the said Chrysler automobile.

Vandrell prayed for judgment for $364 for losses sustained by him as head of the community of acquets and gains which existed between himself and his wife. Mrs. Vandrell prayed for judgment for $3,000 as compensation for her pain and suffering, and Emmco Insurance Company prayed for judgment for $162.41, representing that part of the cost of repairing the Vandrell car for which it was responsible under its collision insurance policy and which it had paid.

The Travelers Insurance Company answered denying that there had been any fault on the part of Vinson and, alleging that the collision had resulted solely from fault on the part of Vandrell, and then, alleging that it had issued to National Service Corporation a policy of collision insurance under which it had agreed to pay all but $100 of such amount as might be required to repair the car of said National Service Corporation, it averred that it had paid $233.63 as its share of repairing the cost of the Chrysler car and, assuming the position of plaintiff in reconvention, it prayed for judgment against Vandrell in the said sum, $233.63.

National Service Corporation intervened in the reconventional petition filed by the Travelers Insurance Company and prayed for judgment for $100 as that part of the cost of repairing its car which it had itself paid.

There was judgment dismissing the demand of Mr. and Mrs. Vandrell and of. Emmco Insurance Company and there was further judgment in favor of Travelers Insurance Company, plaintiff in reconvention, and against Frank J. Vandrell, Jr., in the sum of $233.63. The judgment made no mention of the claim of the intervener,. National Service Corporation, and accordingly it must be assumed that the intervention of that corporation was dismissed, and this is conceded by counsel for that corporation. And it is further conceded that that corporation did not appeal from the judgment and that therefore its claim may not be considered by us.

Vandrell appealed suspensively from the judgment in so far as it ran against him for $233.63, and he and Mrs. Vandrell and Emmco Insurance Company appealed devol-utively from the judgment in so far as it dismissed their respective claims against the Travelers Insurance Company.

Though the respective subrogations do not appear in the record as it is now made up and though there is no proof in the record as to the cost of repairing the two cars, it is conceded that the necessary sub-rogations were actually secured, and it is further conceded that the cost of repairing the Vandrell car was $212.41 and that the cost of repairing the Chrysler car of National Service Corporation was $333.63.

It is the contention of plaintiffs, Mr. and Mrs. Vandrell and Emmco Insurance Company, that as Vandrell at a slow speed turned to his left and attempted to make his way through the gap in the neutral ground and then to thread his way through the narrow partially open lane between the three lines of stationary cars, the drivers of some of those cars which were to his right realized his predicament and backed their cars slightly so that he might be afforded a lane of sufficient width to permit the passage of his Chevrolet and that after he had passed successfully through the three lanes of traffic and had looked to his right and had seen ■ no car approaching in the fourth lane, he almost completed the crossing of that fourth lane when the car driven by Vinson approached at an excessive speed and turning to its right toward the parking lot, crashed into his car.

On the other hand, Vinson says that as he approached in the open fourth lane, he saw that all traffic in the three lanes to his left was stopped — apparently by the unfavorable traffic light about 150 feet ahead— and that since the lane in which he was driving was open except for a truck which he was following, he continued in that open lane at a speed of between 30 and 35 miles an hour without the slightest intimation or reason to anticipate that Vandrell would attempt to cross through the three lines of stationary cars.

Vinson says that he had no intention of turning to his right into the parking lot but intended to continue for a distance of an additional ISO feet and to turn to his right into Labarre Road at the traffic light. There is nothing to indicate that the speed of Vinson’s car was excessive. He says that that speed was about 30 or 35 miles an hour and there is nothing to show that he was incorrect in stating that the speed limit at that point was 40 miles per hour. There was no reason for him to anticipate that some other car would attempt to cross-through the extremely congested traffic at that point. Though there was a gap in the neutral ground, that gap was not opposite an intersecting street.

'Nor is there any substantial corroboration of the statement of Vandrell that some of the cars backed in order to let him through and that this should have been noticed by Vinson who was approaching in the open lane.

As a matter of fact if one or two of the cars found it necessary to back in order to let Vandrell through, it is obvious that as Vinson approached there was not open a sufficiently wide lane for him to notice that it was possible for traffic to pass across and thread its way through the lines of stationary cars.

Vandrell admits that he did not see the Vinson car as he entered the open fourth lane of traffic. He was asked when he first saw the Vinson car approaching and he said: “Right when it hit,” and asked why he had not seen it before, he answered: “He just wasn’t there.” Surely the Vinson car was there and was approaching at reasonable, speed. The record makes it very clear that the lane in which it was approaching was clear and that traffic in it was proceeding forward at reasonable speed.

We ourselves have" considered on three occasions situations which were remarkably similar to that which is found here, and it is necessary to comment on those three cases because in each" of them we reached a conclusion which may seem to be different from that which we have reached in this case. In each there was-one ' distinguishing fact which completely justifies the conclusion which we háve reached in this case. Those three cases are: Schroeder v. Mounes, La.App., 52 So.2d 67; Indovina v. Logrande, La.App., 70 So.2d 456 and Floyd v. Roberts, La.App., 72 So.2d 18. In each the situation was remarkably similar to that found here. In each there were stationary lines of traffic and there was a car, the driver of, which, attempted to thread his way through those stationary lines of traffic, and in each we held that there was negligence on the part of the driver who attempted to pass through a clear lane alongside and parallel to the stationary lines of traffic. The distinguish-, ing fact in each case was that the car crossing through the stationary lines of traffic was on an intersecting street and in each of those cases we felt that the driver of the ca,r passing alongside the stationary cars and attempting to cross' an intersecting street should have noticed that there was an open lane across the lines of stationary, cars through which any car on the intersecting street might be expected to pass across and through the lines of stationary cars. Here that situation did not exist and there was nothing to cause Vinson to anticipate that Vandrell might attempt to cross directly in front of traffic approaching in the open lane.

Since we find no negligence on the part of Vinson, the judgment appealed from is affirmed at the cost of appellants.

Affirmed.