text:
    H. F. OBERLING et al. v. Dewey MILLER, d/b/a Miller Lumber Company.
    No. 4192.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.

      Benjamin W. Miller, Bogalusa, for appellant.
    Horace R. Alexius, Jr., Covington, for appellee.
   ELLIS, Judge.

Plaintiff, the owner of certain timber lands, entered into a contract with the defendant covering the sale of all the pine timber upon plaintiff’s lands 12 inches in diameter and up, 12 inches from the ground, and all hardwood 10 inches in diameter at 16 inches. Cedar and Pecan trees on the property were specifically excluded, and there was a further provision these were not to be cut or destroyed in any manner. Another provision bound the defendant to repair any fences that were destroyed or damaged in removing the timber. The contract was dated October 6, 1951 and the defendant was granted 18 months, or until April -8, 1953, to remove the timber.

The petition shows that between June of 1952 and January of 1953 the defendant cut 64 trees under size, being 6 to 8 inches, 12 inches above the ground, and 8 cedar trees. Other allegations are that the defendant broke down certain fences, did not repair them, and as a result, stock strayed into the plaintiff’s fields and destroyed some 5 acres of corn.

An exception of no right nor cause of action was filed and- overruled, which exception is not reurged here. A plea of prescription was also filed, and although counsel for the appellant states- that there was no ruling thereon, the minutes show that on May 17, 1954, for oral reasons, the lower court overruled this plea, which is reurged here.

Answer was filed,- and the defendant reconvened, seeking damages' upon the allegation that the plaintiffs had’ sold certain trees to another, which were covered by the contract, and which were worth $900. A trial upon the- merits resulted in judgment for the plaintiffs for the 8 cedar- trees cut in violation of the terms of the contract, in the amount of $160.

The defendant has appealed, and the plaintiffs are not seeking the other items of damage, but merely-an .affirmation of'the judgment below.

The appellant maintains the plea of prescription should be sustained on the ground that since the cutting of the trees took place between June of 1952 and January of 1953 and no suit was filed until February 16, 1954, that more than one year had elapsed and the action would be barred by limitation. He argues that this action sounds in tort, and that Article 3536 of the LSA-Civil Code shows such actions are prescribed by one year, and that Article 3537 provides that the prescription runs “ * * * where land, timber or property has been injured, cut, damaged or destroyed from the date knowledge of such damage is received by the owner thereof.”

The pertinent part of Article 3536 reads:

“The following actions are also prescribed by one year:
“That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.”

It is true a landowner suing for the value of timber tortiously cut need not have full knowledge of the trespass, but only such as would require him to make inquiry, and he has only one year from the time he is first put on warning to file his suit. We so held in Reymond v. Sumrall, La.App., 67 So.2d 925, however, the prescription as stated by Article 3536 applies only to tort actions and not to those ex contractu. In Levin’s Auction Exchange v. Samuels, La.App., 28 So.2d 340, the defendant argued that although the claim for damages arose out of a breach of contract the one year prescription would apply because, according to the allegations of the plaintiff, the defendant obviously committed a tort when he refused to return certain goods to the plaintiff after repeated demand. The court stated the suit was primarily one for specific performance of a contract and, in the alternative, for damages for the breach thereof, and was accordingly governed by the prescription of 10 years under Article 3544 of the LSA-Civil Code, and not by the prescription of one year, pointing out that Articles 3534 and 3536 related to torts.

This case is somewhat similar to that of Transportation Equipment Co. v. Younger Bros., La.App., 34 So.2d 347. In this last case the plaintiff sued for the balance due for altering and rebuilding a tank trailer. The defendant reconvened for damages for the loss of the tank, claiming it exploded due to negligence of the employees of the plaintiff while it was being repaired. The plaintiff plead the prescription of one year to the reconventional demand, maintaining it was based in tort. The Court took the position that the demand was based on a contract, even though the acts complained of were due to negligence. It was further held that where a contract is breached by negligence, the party damaged may bring his suit either on breach of the contract or on the tort.

An examination of the petition in the case at bar shows the plaintiff elected to bring his suit ex contractu, and in fact a copy of the contract is attached to the petition.

The ruling of the trial court upon the plea of prescription was correct.

The lower court, with written reasons for judgment, held that the plaintiff had not proven the item of damages covering the cutting of 64 under size trees. He also held the plaintiff had failed to prove the damage to his fences with any legal certainty or the damage to his crops. He did allow damages for the 8 cedar trees which were cut since the defendant himself admitted he had cut these trees in violation of the terms of the contract.

Finding no manifest error in the lower court’s ruling upon the facts, we agree it was correct.

The amount awarded for the cedar trees of $20 each was based upon the fact that the plaintiff intended to build a home in their vicinity and consequently the trees were very valuable to him. We believe the award to be fair.

The judgment of the district court is affirmed.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Lee HALL v. ST. PAUL MERCURY INDEMNITY CO.
    No. 4186.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.
    Lemle & Kclleher, Carl J. Schumacher, Jr., New Orleans, Richardson & Richardson, Bogalusa, for appellant.
    Talley, Anthony & Johnson, Bogalusa, for appellee.
   ELLIS, Judge.

This is a damage suit from the City Court of Bogalusa, arising from an automobile collision and is a direct action against the insurer of one of the cars. The suit was filed on May 28, 1955, issue was joined on June 9, 1955, and on June 9, 1955 the Clerk of the City Court notified counsel for defendant by letter that the case had been assigned for trial on Monday, July 11, 1955 at 9:00 a. m. at the City Hall in Bo-galusa. By letter dated July 6, 1955 counsel for the defendant forwarded the Clerk of Court a motion for a continuance which recited that the said counsel was. trial counsel in another case in the Civil District Court for the Parish of Orleans, which had been fixed for July 11, 1955, and prayed for a continuance upon this ground. On July 7, 1955 the attorney for plaintiff telegraphed the law firm of which the attorney for defendant was a member that the motion for a continuance was being opposed. On this same date counsel for plaintiff also phoned the trial judge and advised him that he was opposing the motion for continuance. Further, on the same day counsel for plaintiff wrote the trial judge a letter in which he gave his reasons for opposing the motion for a continuance and a copy of this letter was sent to Mr. Carl J. Schumacher, Jr. of the firm of Lemle & Kelleher, attorneys for defendant. Counsel for plaintiff testified that no one in defendant’s law firm contacted him in any manner other than by a copy of their letter of July 6, 1955 in which they enclosed their motion for a continuance.

We further find the following statement made by the coürt in ruling upon the motion for a continuance, viz.:

“By The Court: On Thursday, July 7, Honorable Carl J. Schumacher Jr. Attorney for defendant in this matter called me over long distance desiring to know whether a continuance would be granted in this matter. I advised Mr. Schumacher that I did not know for the reason that Mr. Anthony had sent to the office copy of a telegram stating that the continuance was opposed. I suggested that he contact Mr. Anthony and that they have an agreement whether the case would be continued of not. Since I have heard nothing further from Mr. Schumacher and since Mr. Anthony, according to his statement did not hear from Mr. Schumacher, the motion for a continuance is denied.”

The defendant’s counsel did not appear to' urge his motion for a continuance and the City Court overruled this motion and the case was tried on the merits upon, the day assigned, July 11, 1955. Defendant’s counsel did not appear at this trial, which resulted in judgment for the plaintiff in the amount of $512.96 covering damages to his automobile, doctor and medical bills. The defendant has appealed devolutively.

This Court considered returning the brief filed by counsel for defendant in view of the fact that it contained an unwarranted and unjustified attack upon the integrity of the Judge of the Lower Court. Judge A. J. Jones is a higly respected member of our profession and a conscientious, honest and able man and judge. With this answer to counsel’s attack upon the integrity of the Lower Court we proceed to a consideration of the case.

The only ground set forth in the motion for a continuance is that counsel for the defendant was designated as trial counsel in a case which had been fixed by the Civil District Court for the Parish of Orleans on the same date the present case was fixed.

The letter from the firm of Lemle & Kelleher, signed by Carl J. Schumacher, Jr., shows at the head thereof that the mover was one of eleven attorneys comprising the said firm.

Article 468 of the Louisiana Code of Practice reads:

“Continuance-Discretionary power of court. — The court have, besides, a discretionary power to grant continuance whenever the cause alleged by the party applying for it appears sufficient to justify the same.”

Under Code of Practice, Articles 464, 465, there are certain specified grounds which are preemptory for a continuance. Otherwise the grant of a continuance is governed by Article 468.

Construing this Article is the case of Schiro v. Monteleone, 2 La.App. 280. There the Court said:

“It has been repeatedly held that a continuance will r not be. granted on account of the absence of counsel engaged in professional business elsewhere. Johnson v. Dean [48 La.Ann. 100], 18 So. 902.” '

it has also been, held that the absence of counsel is no ground for a continuance unless there is a showing there is evidence which would have produced a different result if counsel had been present. See Gardner, Sager & Co. v. O’Connell and Gould, 7 La.Ann. 453.

American Jurisprudence, Vol. 12, Continuances Section 11, reads:

“Mere pressure of business engagements by which counsel is detained is generally held not sufficient ground for a continuance, particularly where it is not shown that other professional advice is unavailable and that there is a meritorious defense to the action.”

In Gillentine v. McLeod, La.App., 70 So.2d 384, 387, the following language is found: .

“We feel that the question of whether or not a continuance should be granted is a matter which should be left to the sound discretion of the District Court and that the action of the district judge should not be inter-ferred with unless it clearly appears that he has abused that discretion.”

Finding no abuse of discretionary powers, under the above jurisprudence, we conclude the ruling of the lower court upon the motion for a continuance is correct.

As a further ground upon which a remand is urged, counsel for the appellant claims the City Court of Bogalusa did not comply with the provisions of Louisiana Statutes Annotated — Revised Statutes 13:2091, subd. D which reads:

“In all cases where the court is made a court of record, the judge of' said court shall appoint a competent stenographer to take testimony under such rules and regulations as prevail in the district courts.”

Counsel- for appellant also cites Lousiana Statutes Annotated — Revised Statutes 13:-961, subd. B, which provides that court reporters shall be required to take an oath of office and to furnish bond for their faithful performance. This bond, as stated in the Statute, is for the purpose of protecting litigants against any acts of incompetence or neglect of duty on the part of the reporters and gives any litigant a right to sue upon said bond for any damages sustained by him through any wrongful act or neglect of duty committed by official court reporters.

There is no showing whatsoever that the defendant suffered any damages by any wrongful act or neglect of duty upon the part of the stenographer who took the testimony, and certainly we find no grounds for remanding the case for a trial upon the merits for this reason.

The last ground upon which, the appellant bases his request that this case be remanded for a trial upon the merits is that the plaintiff failed to prove the terms and limits of the policy insuring the vehicle and that the vehicle which was involved in the accident was never identified as a vehicle insured by the defendant.

Article 3 of the defendant’s answer admits a policy was issued, and the plaintiff introduced a witness who was a clerk in the Bogalusa Indemnity Corporation. This witness testified a policy was issued by the defendant upon the automobile which was involved in the collision, and further testified that the policy was in effect on the date of the accident. Her testimony was substantiated by a daily record form which was made up at the same time the original policy was written.

This brings us to a consideration of the merits. The record seems clear that the defendant’s .insured crossed an intersection against a red light and struck the right side of the plaintiff’s car. It is equally clear that this last car had preempted the intersection, and the plaintiff’s wife, who was driving the car, as well as his daughter, who was a passenger, substantiated these facts. An officer on the Bogalusa Police force investigated the accident and he testified that the defendant’s insured, who was driving the insured vehicle was drinking at the time of the accident and that the traffic light was in good working order.

Upon these facts it seems the accident occurred through the sole negligence of the driver of the insured car, and the case is similar to that of Greenwood v. Romby, La.App., 51 So.2d 859, as well as that of Moore v. Christoffersen, La.App., 147 So. 914. In both of the cited cases the defendants crossed into traffic against a red light signal, colliding with the plaintiffs.

Finding no manifest error, the judgment of the Lower Court is affirmed.


author: JANVIER, Judge.

text:
    Florian M. SHALL v. Oscar SANDERS.
    No. 20719.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.

      John F. Caraway and Sydney J. Par-longue, New Orleans, for defendant-appellant.
    Charles E. McHale, Jr., New Orleans, for plaintiff-appellee.
   JANVIER, Judge.

Plaintiff, Florian M. Shall, desiring the installation of a septic tank to be connected with the old plumbing system already in his residence, on March 31, 1954, entered into a written contract with defendant, Oscar Sanders, who as contractor, agreed to furnish all necessary labor and material for a total contract price of $490. It was agreed that the work would be completed within ten days after the signing of the contract; that the tank “with all necessary drain lines and fitting” would “hook into the old plumbing that is already in use.” The contract provided that Shall would pay $190 for material and would pay an additional $150 four working days later and the balance on completion of the job.

Shall paid $190 which was required by the contract “for material” and Sanders, with one laborer, commenced the digging of the necessary hole. There is a dispute as to how much work was performed, but it is certain that no work was done after the first day. On that day defendant contends that the laborer worked for eight hours, that he himself helped the laborer to some extent and that one of his sons “laid out” the hole. Nothing more was done until several weeks later when defendant appeared with a plumber since, according to him, it was necessary that certain corrections be made in the old plumbing system before the septic tank could be installed.

Shall says that the plumber came not for the purpose of correcting defects in the old plumbing system, but because he himself wanted to make a change in the bathtub and “to change a couple of faucets,” and that the failure of Sanders to do the work was in no way due to the fact that corrections were required in the old plumbing system. He says that at that time he had lost confidence in Sanders and that he “was in the process of having the work done by somebody else.”

Shall then brought this suit against Sanders, praying for reimbursement of the $190 which he had paid on account of the contract.

Sanders admitted the execution of the contract and that he had received $190 as alleged and that not more than eight hours work had been done in the digging of the hole but he averred that he had not been able to complete the work because of legal regulations which prevented his connecting up the septic tank with the old plumbing system and he averred that he was ready, able and willing to complete the work had plaintiff permitted him to do so.

There was judgment in favor of the plaintiff for $165 and defendant appealed suspensively. Plaintiff has not answered the appeal.

Only a question of fact is involved. Plaintiff says that defendant, without cause, failed to complete the contract, whereas defendant says that he could have completed it had plaintiff done the necessary plumbing work.

The record convinces us that defendant, either because he “had to go to the hospital” or for some other reason of his own, did not complete the work and that plaintiff was justified in having the work completed by some one else.

Defendant maintains that even if plaintiff found it necessary to complete the work, nevertheless he, defendant, should be paid the amount stipulated in the contract less such sum as might be necessary for the completion of the work and that he should be permitted to retain the entire amount ($190), already paid to him.

It is well settled that where there is a contract to do work and such a contract is substantially completed the contractor is entitled to the contract price less such amount as may be required to complete the work, or to remedy such defects as may exist. The authorities on this point are abundant. See West’s La.Dig., Contractor, Vol. 5, ^320, and particularly Pocket Part, page 35.

Here, however, it is very clear that there was no substantial compliance with the contract. It is conceded that not more than one day’s work was done. When we notice that the contract price was $490, it immediately becomes evident that the cost of that one day’s work was so small that it cannot be said that the contract was substantially complied with.

While it is not made clear that in having the work completed Shall made use of the hole which Sanders had had dug, it is a fair inference from the evidence that the said hole was used and that to that extent Shall benefited by the work which was done by Sanders. The Judge of the First City Court seems to have so concluded since it is apparent that he allowed Sanders $25 as the value of the work for' which he had paid and which enured to the benefit of Shall.

In making this allowance to Sanders, the Judge of the First City Court was, we think, correct.

In Katz v. Karnofsky, Orleans No. 9614, we considered a somewhat similar situation. There a contractor sued for a balance alleged to be due on a contract for the performance of certain work in which the contractor was to furnish all labor and material. We held that there had not been a substantial compliance with the contract and that the owner “is not required, under such conditions, to cause the work to be done and to deduct the cost of completion from the contract price.” We also held that, since the contractor had sued on the contract and not in quantum meruit, he could not be heard to claim in that suit such amount as might be due him for the work which he had done. Nevertheless, we reserved to him the right to bring suit “in quantum meruit” and to claim the value of such of the work as had been done and had enured to the benefit of the owner.

Similarly, in A. B. C. Oil Burner & Heating Co., Inc., v. Palmer, La.App., 28 So.2d 462, a contractor failed to carry out his contract for the installation of a heating system. Nevertheless, the owner used part of the equipment which had been furnished by the contractor. We allowed the contractor credit for the value of such equipment as had been used by the owner.

Plere, as we have shown, it is not the contractor who is suing for the balance claimed to be due on the contract, but it is the owner who is suing the contractor for the return of the amount paid to the contractor on account of the contract price. Surely as a partial defense the contractor may rely on the fact that he did do a part of the work and that the owner made use of that part of the work which had been done. Otherwise the owner would be permitted to enrich himself unjustly at the expense of the contractor.

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

Affirmed.


author: McBRIDE, Judge.

text:
    Mr. and Mrs. Joseph A. DIECIDUE v. Robert KILPATRICK.
    No. 20790.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.
    Frank P. Krieger, New Orleans, for Warren A. Doll, defendant and appellant.
    Ernest L. Salatich, New Orleans, for plaintiffs and appellees.
   McBRIDE, Judge.

Warren A. Doll, one of the defendants, appealed from an adverse judgment to the Supreme Court, but because the record failed to affirmatively show that the value of the real estate in dispute is in excess of $2,000, the Court transferred the appeal to us pursuant to the provisions of LSA-R.S. 13:4441. See 228 La. 1004, 84 So.2d 801.

Plaintiffs-appellees now move to dismiss the appeal urging that since the appellant conceded in the trial court that their title is indefeasible, the appeal was frivolously taken. They pray that the motion to dismiss be fixed for trial and that they be allowed $500 damages for frivolous appeal.

The remedy for frivolous appeal is not dismissal but affirmance of the judgment when the appeal is heard and found to be without merit. Gottlieb v. Avery Realty Co., 180 La. 621, 157 So. 369; State v. Up-to-Date Shoe Repairing Co., Inc., 178 La. 188, 151 So. 74; Orleans Homestead Ass’n v. Williams, 171 La. 336, 131 So. 39; Louque v. Hercules Oil Co., Inc., 170 La. 355, 127 So. 866; Cochran v. Louisiana State Board of Education, 168 La. 1030, 123 So. 664, affirmed 281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913; Borden v. Louisiana State Board of Education, 168 La. 1005, 123 So. 655, 67 A.L.R. 1183; Bertoniere v. Savoure, 163 La. 1073, 113 So. 459; Succession of Pavelka, 161 La. 728, 109 So. 403; Succession of Damico, 161 La. 725, 109 So. 402; Juzan Nicholas & Co. v. Fidelity & Deposit Co. of Maryland, La.App., 152 So. 779.

In the second place, even if the appellees had a right to urge the dismissal of the appeal on motion, they certainly effectively waived and abandoned that right by asking'for damages for frivolous appeal. Code Prac. art. 907; Brewton v. Brewton, 159 La. 251, 105 So. 307; Clay v. District Grand Lodge No. 21, Grand United Order of Odd Fellows of Louisiana, La.App., 154 So. 654; Devoe & Raynolds Co., Inc., v. Turpin, 16 La.App. 43, 133 So. 493.

Therefore, the motion to dismiss the appeal is denied.

Motion denied.


text:
    Robert E. ROUSSEL v. William MARSHALL, Individually and Yvonne S. Marshall, By and Through Her Father William Marshall, Administrator and/or Natural Tutor of the Estate of the Minor Yvonne S. Marshall.
    No. 20817.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.
    Writ of Certiorari Denied June 11, 1956.
    Stoulig & Rogyom, Kenner, for defendant and appellant.
    Morrison & Newell, New Orleans, for plaintiff and appellee.
   McBRIDE, Judge.

In this suit plaintiff recovered a judgment against defendant, William Marshall, individually, and administrator and/or natural tutor of the estate of the minor Yvomie S. Marshall, for the sum of $529.-60, with legal interest thereon from judicial demand until paid and for all costs of court. William Marshall, individually and on behalf of the minor, took a devolutive appeal from the judgment and the appellee has moved to dismiss the appeal under Code Prac. art. 567 on the ground that defendant has acquiesced in the judgment. From an affidavit annexed to the motion it appears:

“That under date of July 7, 1955, appellant paid the sum of five hundred twenty-nine dollars and sixty cents ($529.60) on account of the judgment rendered herein, and agreed to pay the remainder thereof including costs and charges, voluntarily, and without any reservation of any right of appeal; that subsequently on January 20, 1956, appellant paid the remainder of the-judgment, in the amount of one hundred sixty-four dollars and nineteen cents ($164.19) voluntarily, and without any reservation of any right of appeal, with the request that appellee’s counsel ‘prepare the necessary letters to the Clerk of Court in order that appellant may have the docket marked satisfied and erase the recordation of the judgment in question.’ That thereafter appellee’s counsel prepared and furnished appellant with all documents and letters necessary for the satisfaction of the docket, and subsequently appeared at the Clerk’s office personally to mark the docket satisfied, when it was learned that the day before appellant had filed the appeal herein and the ■Clerk would not accept a satisfaction, of the docket in view thereof.”

There is no merit in the motion. By the provisions of Art. 567 of the Code of Practice the party against whom a judgment has been rendered cannot appeal if the judgment has been confessed by him or if he has acquiesced in the same by executing it voluntarily. However, it is well settled in this state that to lose the right of appeal there must be an unconditional, voluntary and absolute acquiescence in the judgment on the part of the appellant who must have intended to acquiesce and to abandon his right of appeal. Saunders v. Busch-Everett Co., 138 La. 1049, 71 So. 153; Sanderson v. Frost, 198 La. 295, 3 So.2d 626; State ex rel. Parish of Plaquemines v. Baynard, 204 La. 834, 16 So.2d 451; City of Monroe v. Glasscock, Morrison, Conner Const. Co., La.App., 178 So. 684; Cooper v. Federal Land Bank of New Orleans, La.App., 197 So. 822; Scott v. Scott, 218 La. 211, 48 So.2d 899, 901.

In the case lastly cited above the Supreme Court said:

“The fact that the appellant made alimony payments and before appeal sought by rule to be relieved from the payment of any alimony does not, in our opinion, show any acquiescence whatsoever on his part in the judgment or an intention to abandon his right of appeal, and is not an admission by him that any alimony is due. Since it was necessary to make the alimony payments to avoid the risk of being punished for contempt of court because no suspensive appeal was taken from the judgment, there was no unconditional voluntary, and absolute acquiescence in the judgment. * * * It may be that the appellant was unable to make a suspensive appeal bond, and in such a case, in order to be entitled to a devolutive appeal to this court, under appellee’s theory he would have to refuse to pay the alimony and subject himself to punishment for contempt. The law does not contemplate that a party ordered to pay alimony should render himself liable to pun-íshment for contempt of court and possibly sentence to jail in order to preserve his right to a devolutive appeal.”

We might paraphrase the above language used by the Supreme Court and say that the fact that the appellant in the instant case made the payment of $529.60 and agreed to pay the remainder of the judgment does not, in our opinion, show any acquiescence whatsoever on his part in the judgment or an intention to abandon his right of appeal, and such payment and promise to pay the balance are not such an admission by him that the judgment is correct. It was not necessary that appellant specifically reserve his right of appeal. If he had not paid the judgment, he would have assumed the risk of having his property seized under a writ of fieri facias and, indeed, the record shows that when appellant paid the $164.19 on January 20, 1956, certain property had been levied on by the Sheriff. We do not know what appellant’s reason was for not taking a suspensive appeal or whether he had any reason at all, but the law gave him the right to perfect a devolutive appeal within one year from the rendition of the judgment, which he has now done, and under the circumstances of the case, the mere fact that he paid the judgment in order not to suffer the seizure of his property cannot be considered an acquiescence in the judgment or a waiver of the right to have the judgment reviewed on devol-utive appeal.

From the affidavit appellant sought to obtain a “satisfaction of the docket” and he evidently did so in order to relieve his property from the inscription of the judicial mortgage resulting from the recordation of the judgment in the mortgage office. Upon satisfying the judgment appellant had that right and his exercise of it cannot be construed as in any wise adversely affecting his right to the appeal.

The motion to dismiss the appeal is denied.

Motion denied.


author: REGAN, Judge.

text:
    COMMERCIAL UNION FIRE INSURANCE COMPANY v. Walter E. BLOCKER et al.
    No. 20713.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.

      Curtis, Foster & Dillon, Robert M. Moore, New Orleans, for defendant-appellant.
    Lemle & Kelleher, Carl J. Schumacher, Jr., and John T. Chambers, Jr., New Orleans, for plaintiff-appellee.
   REGAN, Judge.

Plaintiff, the Commercial Union Fire Insurance Company, subrogee insurer of Peter Ricca, instituted this suit against the defendants, Walter E. Blocker, John Johnson, George Sterling and Charles Thomas, Sr., endeavoring to recover the sum of $476, representing property damage incurred by its assured’s building, 2918-20 Washington Avenue, on August 3, 1953, at 10:00 P.M., when the three minor sons of defendants, Johnson, Sterling and Thomas, in the course of “playing with a parked tractor” owned by defendant, Blocker, inadvertently started the engine thereof, which set the tractor in motion and caused it to run into the property designated above.

Defendant Blocker pleaded the except tions of “no right or cause of action” which were either overruled or referred to the merits and, in conformity with the rules of the First City Court, he simultaneously answered generally denying that he was guilty of any negligence which could be considered the proximate cause of the accident, and then asserted that his employee, the operator of the tractor, had exercised every reasonable precaution in safely securing this machine on the “job site” before departing therefrom on the evening of the accident.

The record discloses that the other three defendants were never served with a copy of the petition and citation nor does it reveal any pleadings filed on their behalf; we were informed during oral argument that this occurred because of their insolvency.

From a judgment in favor of plaintiff in die amount of $476 against the defendant, Blocker, he has prosecuted this appeal.

Walter E. Blocker is an “excavating contractor” and, as such, leased an Allis Chal-mers HD5 Tractor Shovel, together with an operator therefor, to Farnsworth and Chambers, General Contractors, who were engaged in the construction of a “housing project” in Washington Avenue.

On August 3, 1953, at about 10:00 P.M. three colored boys, Frank Johnson, age 14, Lawrence Sterling, age 12 and Charles Thomas, age 7, had just emerged from a “motion picture show” near their homes, which are located in a Negro slum in the vicinity of Washington Avenue and Magnolia Street, when Lawrence Sterling’s attention was attracted by a “bright orange tractor” parked on the “job site” near the street. He suggested that they investigate the tractor, which was readily agreed to by his companions. Pie mounted the tractor and in simulating- an operator thereof, he enthusiastically began manipulating the controls and, much to his surprise, the .engine started. In his anxiety to turn the engine off “he pulled some more levers” which set the tractor in motion causing it to run into the premises designated as 2918 Washington Avenue. The tenant thereof, • Jerome Lirocca, upon. hearing the “crash” rushed outside to ascertain what had occurred and observed the boys “running away.” The police were summoned and upon arrival at the scene they asked if anyone knew how to move the tractor away from the' building. Lirocca, who had operated heavy equipment in the Army, volunteered to do so. He testified, “I just stepped on the starter and she kicked off * * * after throwing the clutch out * *

Blocker, upon being interrogated “what precautions did you take with regard to safety in connection with this equipment?” responded “Well, we always have to lock it and dig the bucket into the ground * *. There’s a watchman on the job * * *. It was Farnsworth and Chambers’ watchman;” Despite this testimony he later related that on the night of the accident he “didn’t see any” watchman on the premises, and that there is no key or lock on the tractor, “its totally diesel and, there’s a valve, a little knob that you pull out'which closes the fuel and shuts it off” and to start the tractor “you push that valve in and step on the starter on the lefthand side, that’s all.” He asserted that there was no “way to render that equipment completely inoperative and lock it so nobody can use it” and on the night of the accident the tractor was parked “on the project * * about twenty-five (25) feet from the sidewalk.” He finally related that he knew the neighborhood to be “a colored slum area * * * fully populated with many small children.”

The operator of the tractor was not called as a witness. The defendant excused his absence by insisting that “we weren’t able to locate him. I made several attempts to locate him but we couldn’t find him.”

Therefore, the record reveals that no one actually knew what safety precautions, if any, were exercised by the defendant’s operator prior to parking it for the night. The record also reflects that the watchman was never called as a witness on behalf of the defendant.

In this court the defendant has reurged his exceptions of no cause or right of action and, in his endeavor to substantiate the validity thereof, points to plaintiff’s petition which he asserts discloses that “the tractor which caused the damage was not being operated by * * * Blocker, his agents or employees, but was being operated by the minor children of the other defendants”, therefore, he insists “it is well settled that the owner of a vehicle which causes damage while being operated by a thief is not liable therefor * *

It is our opinion that the exceptions are not well founded. Plaintiff’s claim against the defendant is clearly predicated, in his petition, on the “attractive nuisance doctrine” which is a classical exception to the general rule reiterated hereinabove by the defendant.

The only question posed for our consideration is whether the “attractive nuisance doctrine” is applicable to the facts of this case.

Defendant maintains that the facts are insufficient to establish the contention of actionable negligence on his part.

Plaintiff, on the other hand, insists that the defendant failed to exercise ordinary care in parking an attractive “orange tractor” for the night, without proper safety precautions in a neighborhood, which he knew was “populated by many small children”, whose curiosity was apt to be excited and naturally allured by this type of machinery.

The trial court answered the foregoing question in the affirmative and our analysis of the record discloses no error in its conclusions.

Various theories and reasons have been advanced and discussed by the courts as a justification for the application of the attractive nuisance doctrine. The fundamental concept of the rationale of the doctrine appears to be that the offending condition, circumstance or appliance (although its danger is apparent or obvious to those who have attained the years of discretion) is so enticing, alluring and calculated to excite the curiosity of childish instincts or propensities, so as to induce them to approach, mount, or use it, and that this inherent attractiveness amounts to an implied invitation to such children. Westerfield v. Levis, 1891, 43 La.Ann. 63, 9 So. 52, 56. See, also, 5 T.L.R. 151.

The doctrine of reasonable anticipation applies with particular force where the owner or his representative knew that many children reside in the immediate vicinity and are accustomed to gather about or may play with the machine in question; indeed, it has been considered sufficient that the owner thereof either knows or should have known that children are likely to be attracted to the place where the dangerous instrumentality is parked or maintained.

There is no doubt now that a tractor is both attractive and dangerous to children of tender years; the cases involving “tractors and children” which have been posed for our courts’ consideration, at various times, have established this as a fact.

There is likewise no doubt, as the facts herein have proven, that Lawrence Sterling was attracted to this “orange tractor” which is per se of a dangerous character with respect to a boy of his age. The tractor was left parked for the night, exposed, unguarded and without reasonable safety precautions in a slum area, which the owner knew was “populated by many small children” whose curiosity he knew or should have known was apt to be excited and naturally allured by this type of machinery.

The owner of the tractor failed to produce the operator of the tractor who was the only one that actually knew what, if any, safety precautions were exercised before parking the tractor for the night. Obviously the tractor was left insecure because Lawrence Sterling, possessed of no mechanical ability, simply “pulled the controls” indiscriminately and started the engine. In his anxiety to turn the engine off “he pulled some more levers” which inadvertently set the tractor in motion causing the property damage which is the subject matter of this litigation.

Lirocca, who occupied the building which was damaged, and who volunteered to move the tractor at the request of the police, testified with respect to the ease of starting the engine thereof “I just stepped on the starter and she kicked off.”

The defendant testified that a watchman was employed by the general contractor to guard the tractor, however, neither the watchman nor the general contractor was produced to verify this statement.

The defendant, with respect to what safety precautions were exercised when the machine was parked overnight, initially asserted “we always * * * lock it * * * ”, although he later testified that there was no “way to * * * lock it so that nobody can use it.”

The boy, Lawrence Sterling, twelve years of age, had arrived at that period in life when childish propensities to play with machinery have probably reached their full intensity.

In our opinion, the defendant failed to observe that degree of care which men of ordinary prudence have exercised under the same or similar circumstances. The danger which the defendant was obligated to guard against was such as reasonably might have been anticipated. He was charged with knowledge of ordinary childish conduct, and he was bound to anticipate the consequences resulting therefrom.

In the final analysis, the defendant relies on the rationale expressed in the case of Tabary v. New Orleans Public Service, Inc., La.App.1932, 142 So. 800, 801, in order to reverse the judgment of the lower court. In that case a parked tractor and several children of approximately the same age as the children in the present case, were involved, one of whom was fatally injured while playing in the rear of the tractor. The court, while recognizing the doctrine of attractive nuisance, refused to apply it to the facts of that case for several reasons which distinguish it from this case. In the Tabary case, Bryan, who was about thirteen years of age, removed the crank from its leather holster and then pushed it in so that it would become engaged with the engine. He then attempted to “ 'turn the engine over.’ ” He could not do this by hand and he, therefore, jumped from the top of the radiator to the crank which caused the engine to start. Castaing, who was also about thirteen years of age, was in the driver’s seat, and he shifted the gears into reverse causing the tractor to run over and cause the death of one of their companions. The court in refusing recovery for the death of the child expressed the opinion that “the machinery was so difficult to start that only a very large boy (the court found as a fact that Bryan was ‘large for his age’) with considerable mechanical knowledge, could have succeeded.” The defendant “ ‘was not bound to anticipate consequences resulting from the unusual or extraordinary conduct of the precocious ingenuity displayed by this particular crowd of boys.’ * * * An expert called by plaintiff as a witness testified as to the precautions which he would have taken had he found it necessary to leave such a tractor unattended on a city street, and the precautions set forth by him were identically the same as those taken by * * * the operator. * * * [The boys] were well aware of the danger that would result from the starting of the machine * * *

A casual reading of the foregoing opinion immediately reveals its distinguishing characteristics, i. e., the fact that the engine of the tractor could only be started by “cranking it”, which was so difficult that only a “very large boy, with considerable mechanical knowledge, could have succeeded.” The defendant “was not bound to anticipate consequences resulting from the unusual or extraordinary conduct or the precocious ingenuity displayed by this particular crowd of boys”; and finally an expert testified that the operator thereof had exercised all reasonable precautions before leaving the tractor, during the lunch hour, unattended in a City street.

We are, therefore, of the opinion that the foregoing case is not apposite or controlling with respect to the facts of this case.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

McBRIDE, J., absent, takes no part.


author: ELLIS, Judge. PER CURIAM.

text:
    Willie MAMON v. FARNSWORTH & CHAMBERS CONSTRUCTION CO., Inc. et al.
    No. 4157.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.

      Arnold J. Gibbs, Lawrence A. Uter, Jas. A. Hammers, Baton Rouge, for appellant.
    Breazeale, Sachse & Wilson, Baton Rouge, for appellee.
   ELLIS, Judge.

In this suit plaintiff is seeking to recover the maximum amount of compensation for total and permanent disability as a result of an alleged accident and injury on or about August 26,1953 while employed by the defendant, Farnsworth and Chambers Construction Company, Inc., as a common laborer in the construction of an extension and addition to Louisiana State University football stadium.

The defendant denied generally the allegations of plaintiff’s petition but admitted that plaintiff claimed he injured himself on the date alleged. Defendants specifically deny that plaintiff ever suffered any disability as a result of the accident.

After trial the Lower Court with oral reasons dismissed plaintiff’s suit. Counsel for defendant in his brief states that in the oral reasons the lower court dismissed plaintiff’s suit because he had failed to discharge the burden of proof as to disability, and, secondly, that if he was disabled plaintiff had not proven a causal relation between his disability and the alleged accident on August 26, 1953. From this judgment of the Lower Court the plaintiff has appealed.

While the accident was not specifically admitted, it is sufficiently proven within the contemplation of the Act. It is shown that a wooden “form” for pouring concrete, or a “panel” made of wooden planks fell on the plaintiff on the date alleged. The witness whom plaintiff placed on the stand to prove the accident testified that the form fell upon the plaintiff, knocking him to the ground, and that he saw three or four men lift this form off of the plaintiff. Plaintiff, in giving the history of the accident to one of the doctors, referred to it as a “column” of wood which fell on him. This difference is immaterial as an accident is proven to have happened to the plaintiff on the date alleged. The main question is the effect, that is, whether the plaintiff suffered any disability at that time or shortly thereafter and the extent of the disability.

The main question to be decided in this case is one of fact as to whether plaintiff is suffering a traumatic neurosis or, as diagnosed by Dr. McGruder, a psychiatrist, a “conversion hysterical reaction.”

As of the date of the trial plaintiff had no objective symptoms to support his complaint of pain in his back and leg and his alleged disability.

It is shown that the day following the plaintiff’s accident he went to see Dr. Mc-Vea who handled such cases for the defendant company. At that time Dr. McVea stated that the plaintiff told him a two by eight fell on him and strained his back and legs and that he was suffering pain in both. Dr. McVea examined the plaintiff on three occasions, viz., the 31st of August, and the 3rd and 4th of September, 1953. He could find no objective support for plaintiff’s complaints, and his findings were negative insofar as tenderness in his back, muscle spasm, limitation of motion and any reflex changes in his extremities were concerned. On the date of Dr. McVea’s last examination plaintiff was still complaining but he again found no objective symptoms to support such complaints. It was Dr. McVea’s opinion that the plaintiff was exaggerating his complaints and that they were not compatible with the injury which plaintiff claimed he sustained and he did not feel that plaintiff was hurt as a result of the injury which he described. Dr. McVea thought that there was a strong possibility that the plaintiff was malingering. On the date of the trial Dr. McVea had not examined this plaintiff since the fourth of September 1953. (The date of the trial was May 11 and 12, 1955) Dr. McVea stated, however, that he found some muscle spasm in plaintiff’s back but he reached the conclusion that it was voluntary. On cross-examination Dr. McVea was asked whether a psychiatric problem caused or brought into being by a trauma would necessarily manifest itself within the short period of time in which he saw the plaintiff and he answered not necessarily, although it could manifest itself within that short period.

Dr. Thos. Campanella, orthopedic surgeon of Baton Rouge, examined the plaintiff on September 15, 1953 at which time the latter was complaining of pain in the groin and down the spine and down the right leg. Plaintiff told the doctor that the pain originated in August 1953 while lifting a four hundred pound weight that fell on his left shoulder. Plaintiff was given a routine back examination and upon the doctor’s advice was admitted to the Lady of the Lake Hospital where a myelogram was performed. Dr. Campanella stated that the plaintiff was awfully sensitive and quite nervous, for during the procedure necessary to perform the myelogram plaintiff nearly jumped off the table, and he felt that the complaints of the plaintiff as to the pain caused by the test were exceedingly exaggerated. The test itself was negative. Dr. Campanella further testified that on September 24, 1953 he saw plaintiff at his office “at which time I gave him a shot of B-12 to calm him down a little.” On this date Dr. Campanella felt that he was in a position to diagnose plaintiff’s condition and he testified that his diagnosis was “acute sprain of the lumbo-sacral joint with strain of the right para-vertebral muscle mass,” and that he felt plaintiff “had a residual disability of approximately 10% loss of the use of the back, temporary in nature,” and he based this diagnosis upon objective findings which consisted of “tenderness over the lumbosacral joint, spasm of the right paravertebral muscle mass, positive Patrick test, Lasague signs and straight leg raising test.” He did qualify the above quoted testimony somewhat by stating that plaintiff, when he came to him, was wearing a lumbosacral corset which tends to make the back a little stiff and tightens the muscles, and that it “could be the cause for not getting well, and could cause a condition of the back which assimulates spasm, and that is tightness.” It was his opinion that “any injured muscle should respond to treatment of rest and heat, and I felt that in four to six weeks he should have gotten well.”

While it might be considered placing the “cart before the horse” in discussing the defendant’s testimony prior to that of the plaintiff, it was deliberately done for the sake of brevity in arriving at a conclusion as to whether the plaintiff suffered any injury as a result of the accident.

Taking the testimony of Dr. McVea and particularly the testimony of Dr. Campanella, it is shown that plaintiff did suffer an injury as a result of the accident. It is true that according to their testimony ordinarily the disability would have been temporary in a normal person but it is well settled that whether a plaintiff’s condition is caused by a mental disorder or a physical disorder is immaterial if either is brought on by the accident while in the employ of the defendant and while acting within the scope of his employment. Wright v. Louisiana Gas & Fuel Co., La.App., 140 So. 712; Louisiana Workmen’s Compensation—Law and Practice, by Wex S. Malone, Professor of Law at Louisiana State University; Section 276, page 337; Mitchell v. T. L. James & Co., Inc., La.App., 176 So. 245; Vaughn v. Solvay Process Co., La.App., 176 So. 241; Peavy v. Mansfield Hardwood Lumber Co., La.App., 40 So.2d 505; Lala v. American Sugar Refining Co., La.App., 38 So.2d 415; Vega v. Higgins Industries, Inc., La.App., 23 So.2d 661; Clifton v. Glassell-Taylor Co., La.App., 19 So.2d 590; Porter v. W. Horace Williams Co., La.App., 9 So.2d 60; McCastle v. Architectural Stone Co., La.App., 4 So.2d 120.

In. support of plaintiff’s case Dr. L. F. McGruder, psychiatrist, testified that he examined the plaintiff on March 28, 1955 and that he obtained the history of plaintiff’s trouble from him, and the only objective symptoms or complaints he noted was restlessness; tremors of the extended hands and fingers, moisture of the palms and plaintiff appeared to be “apathetic, depressed, unhappy.” He was cooperative with the doctor but in stating his history he showed a hostility toward various doctors and his attorneys. He walked in a stooped position with a slight limp and favored his right leg and was using a cane. Dr. McGruder stated that he did not do a complete physical examination on plaintiff but he did a “psy-chiatrical.” It was his opinion that the depression which the plaintiff was suffering from was “superimposed upon a conversion hysterical reaction.” When asked what he meant by the latter term he stated:

“Q. What do you mean by conversion hysterical reaction? A. Well, in this process that he complains of, of back pain, a sense of numbness and at times a sensation of prickling pins and needles, along with a morbid fear that he would never get well, would indicate that he had what is known as conversion hysterical reaction, and that it is entirely possible that the disuse you might say or the abnormal use of the right leg could be projected from a psychological point of view to that limb to believe that it was definitely injured.
“Q. Did he appear to you to be sincere in his complaints? A. Yes, I was convinced that he was honest and truthful because the fact is on several occasions I asked him questions that it would no doubt have been to his advantage to have admitted where he denied.
“Q. Was the disability that he spoke to you about, did it appear to you that it was real to him ? A. Yes, I think that he definitely feels that he has a physical disability. I don’t think that he realizes that it is arising from the emotional field.”

Dr. McGruder also stated that “conversion reaction” is essentially the same as traumatic neurosis or post-traumatic neurosis. He very definitely was of the opinion that plaintiff was suffering from such a condition. It is to be noted that Dr. McGruder also stated that his condition has to do with the “unconscious desire for secondary gain, and if the emolument is withheld it has a tendency to make it grow worse.” The fact that plaintiff’s desire for secondary gain is unconscious distinguishes his condition from that of a malingerer whose desire for secondary gain is conscious. It was Dr. McGruder’s positive opinion that as a result of plaintiff’s condition, which in his opinion was connected with the accident and injury, the latter was totally disabled.

Although the defendant contends that the plaintiff is merely attempting to get compensation, it is shown that compensation was paid to plaintiff for 31 weeks and there is no evidence in the record that the plaintiff’s condition was different during the time he was receiving this compensation than it was subsequent to its discontinuance. Dr. Mc-Gruder’s testimony under cross-examination as to the causal connection between plaintiff’s accident and injury and his mental condition was given in the following answer:

“A. Well, my opinion was he had a depressive reaction superimposed upon a conversional hysterical reaction, presumably traumatic in origin. That’s the way I have it here, and that was based on the history that I got from him, and we are forced to accept histories as being within reason reliable as to certain statements.”

Dr. George, an orthopedic specialist, testified that he first saw and examined plaintiff on Nov. 9, 1953 and that he found the circumference of the right calf 12 inches and of the left calf 13 inches, and plaintiff complained of some tenderness on palpation over the lumbosacral joint. He also made other objective findings of “slight muscle spasm on the right side of the lumbar region.” He caused the plaintiff to be placed in the Baton Rouge General Hospital with Buck’s extension, which is a traction or pull on each leg of five pounds, for approximately seven days, and in addition he prescribed heat treatment on the lower back, and when the plaintiff left the hospital he was wearing a low back brace. He re-examined plaintiff on Nov. 13, 1953 and found an area of hypoesthesis over the lateral surface of the left leg and ankle and suggested another myelogram and the Buck’s extension. The doctor did not testify exactly how many times he had seen the plaintiff but on Feb. 25, 1954 he wrote a letter to counsel for plaintiff in which he stated in part:

“In accordance with his impression that he had a disc, I requested Dr. Joseph Sabatier to do another myelo-gram on February 23, 1954. This is negative, and under the circumstances it is my impression that the worst that this patient had was a lumbosacral strain. Since he does not feel he is improving, I do not feel that treatment continued beyond this would be of any benefit to him. I do feel that a settlement of some type would probably be very beneficial to him.”

Dr. George testified that the plaintiff was a very good patient and that he “was very sincere, I believe.”

Thus we see that this doctor found some objective symptoms of an injury to the plaintiff but could not substantiate plaintiff’s complaints with any objective finding; and suggested discontinuance of plaintiff’s visits or treatment by him because plaintiff did not feel that he was improving, although Dr. George thought that the plaintiff was very sincere. There is no suggestion in his testimony that plaintiff was a malingerer. He refused to be interrogated as to whether the plaintiff was suffering from a traumatic neurosis as a result of his injury as that was not within his field.

Dr. Moody, a general practitioner of Baton Rouge, saw plaintiff three times beginning September 3, 1953 at which lime he was complaining of pain over the lower portion of his back over the sacro-iliac and lumbo sacral joints, especially on the right side, and over the paravertebral muscles and also some pain radiating into the right groin. It was the opinion of this doctor that plaintiff was suffering from a torsion type injury. The other two visits by the plaintiff were made on September 12 and October 15, 1953, respectively, and the doctor testified that his notes on the last examination stated that the patient was no better “and that on check he had a stocking type of anaesthesia above the right knee which in my opinion was purely hysterical in character.” This doctor gave a lengthy explanation of the meaning of “stocking type anaesthesia” which it is not necessary to give in detail. This doctor also testified that he told counsel for plaintiff in October 1953 that the latter needed psychiatric treatment. Dr. Moody’s unpaid bill amounted to $45.

Dr. Gilliland, a psychiatrist, testified that he examined the plaintiff on two instances in May of 1954, each examination consisting of approximately 45 minutes. The defendant argues that the time spent in each examination was too brief, however, there is nothing in the record that even suggests that an hour and a half would not be sufficient time in which to make such an examination. On the second visit the plaintiff was placed under sodium pentothal, which is one of the so-called forms of truth serum. This doctor compared the examination with and without the truth serum and testified as follows:

“A. Primarily, under the influence of pentothal he showed a rather striking change in his behavior and his general attitude. During my first interview with him he tended to over-dramatize his movements. He had a somewhat surly and antagonistic attitude, was inclined to be rather unresponsive, and was mostly preoccupied with the fact of his injury and his physical complaints, expressing a good deal of resentment about what had happened to him. Under the influence of pentothal his attitude very spontaneously changed to one of profuse weeping, with a tremendous amount of self pity and anxiety about his disability and his feeling of being disabled and his lack of capacity to do anything to help himself or to get anyone to understand that he was actually suffering.

“Q. Did you learn anything else from him while under the influence of this drug? A. Only that the historical facts which he incidentally recounted while under the influence of the drug were compatible with the ones he gave to me during the waking interview.

“Q. Then would you say that the drug actually had the effect on him which you would expect it to have, that is induce him to give an accurate account of what had happened to him or what he actually felt? A. Well, the primary purpose óf using a drug like this is to at least partially inactivate ordinary working character defenses so that you can get some picture of what the individual is really like and how he operates in his ordinary settings.

“Q. Getting back to your letter, I wonder if you would read the last paragraph to us ? A. 'On the basis of his performance under pentothal narcosis, I felt quite certain that his difficulty represented a hysterical conversion reaction in an infantile and dependent character. I do not feel that he is malingering, but the most important thing in his existence has become the issue of compensation for his disability. Regardless of how much or how little physical disability he has at the present time, from an emotional standpoint he is at present totally disabled. The longer some type of compensation or settlement is denied him, the more intrenched his symptoms will become. I do not feel that any form of treatment will be effective until the question of financial settlement has been concluded once for all. Once this is accomplished, I would anticipate that he will have an uneventful recovery if there is no actual physical disability present.’

“Q. Doctor, is it your opinion after your interview with this patient that he was totally disabled at the time you saw him? A. That he had a total emotional disability, yes.” Dr. Gilliland stated that conversion reaction simply meant .that some emotional conflict or attitude had been converted into a physical symptom which could cause the type of disability and pain complained of by the plaintiff. He testified that he could not say with positive certainty that plaintiff’s emotional disability was due to the accident of August 23, 1953, but he testified: “It is probable and' it is my opinion it was the precipitating factor.”

Dr. Benitez, doctor of internal medicine, treated plaintiff over a period of approximately eight months and testified that plaintiff “seemed to walk with greater ease.” He stated that he found no evidence of insincerity in plaintiff’s behavior. It was his opinion that the plaintiff was handicapped in part, he could not state exactly how much, as a result of the injury sustained and part of his handicap was on a psychosomatic basis.

In addition to the medical testimony we have the testimony of plaintiff himself and lay witnesses who testified that he was a normal human being prior to the accident and a good worker, and that since then he apparently had been disabled.

Plaintiff has proven an accident, some injury to his back as a result thereof, and the record is most convincing that the mental condition which developed in this plaintiff is definitely a result of the accident and injury, and that at the date of the trial he was totally and permanently disabled within the meaning of the Compensation Act as interpreted by the authorities here7 inabove cited.

It is therefore ordered that the judgment of the District Court be annuled, set aside and reversed and that there now be judgment in favor of the plaintiff in the sum of $30 per week payable weekly beginning August 26, 1953 with 5% on each past due installment from maturity for a period not exceeding 400 weeks, subject to a credit of compensation previously paid in the sum of $930.

It is further ordered, adjudged and decreed that plaintiff have judgment against the defendant in the full sum of $45 medical bills together with 5% interest from judicial demand until paid. This is the only amount proven to be due and unpaid.

It is further ordered that the defendants pay all costs.

Judgment reversed.

On Application for Rehearing.

PER CURIAM.

Plaintiff-appellant calls to our attention in his application for rehearing that we failed to allow him more than $45 medical expense incurred by him, although allegedly he had introduced receipts and testimony as to certain additional such expense. We find that the following additional items are supported by proof as for treatment for injuries resulting from the accident: Dr. Leo S. Butler, $5; Dr. David S. Malen, $á; Snell’s Limbs & Braces, $0.51; 'total, $10.51.

The other proof of medical expenses allegedly incurred is not certain and definite enough for us to render a judgment based thereupon. (For example, Dr. Benitez, who undoubtedly treated plaintiff for alleged injuries arising from the accident testified as to the balance, owed him, “I think it was $85.00 or $90.00”; he did not have his records ■ with him.) We will, however, reserve unto plaintiff the right to claim such medical expenses within the statutory limits.

Plaintiff-appellee also suggests to us that the fees of the expert witnesses who testified, were not fixed either by us or the trial court. Such expert witness fees are fixed by the court “with reference to the value of the time employed and the degree of learning or-,skill required”, LSA-R.S. 13 :3666. “Since there is no evidence in the record as to the value of the time employed by the experts who testified in this case, we think this matter should be referred to the lower court for determination”, Hemphill v. Tremont Lumber Co., 209 La. 885, 25 So.2d 625, at page 629. “The trial court is in a better position to determine the value of the expert fees than an appellate court, and it can be decided on a rule to tax such fees as costs”, Meyers v. Alexandria Coca-Cola Bottling Co., Ltd., La. App., 1 Cir., 8 So.2d 737, at page 739.

For the above and foregoing reasons, the judgment previously rendered is amended to increase the award for medical expenses incurred by plaintiff from $45 to $55.51, together with legal interest; and to reserve unto plaintiff the right to claim other such medical expenses incurred by him for treatment for the injuries resulting from the industrial accident herein, within the statutory limits. In all other respects, we adhere to our original decree herein, although the case is hereby remanded to the District Court for the limited purpose of fixing the fees of the experts who testified in this case and taxing such fees as court costs. All costs to be paid by defendants-appellees.

Both applications for rehearing are denied.


author: PATTERSON, Associate Justice.

text:
    Charles T. LUNDSTROM and Rose Lundstrom, Appellants, v. Hunter LYON, II, Mrs. Hunter Lyon, II, William F. Kelen, Mrs. William F. Kelen, Herbert L. Jeffrey, Charlotte Jeffrey, Kogop Kalenian, Adrine Kalenian, Richard R. Twigg, Virginia Twigg, Appellees.
    Supreme Court of Florida. Division B.
    April 11, 1956.

      W: Emory Daugherty, Jr., Miami, and Leonard Pepper, Tallahassee, for appellants.
    Dixon, Dejarnette, Bradford & Williams, Robert King High, James Pilafian and Davant, Letts & White, Miami, for ap-pellees. .
   PATTERSON, Associate Justice.

This appeal is from a Summary Judgment -for the defendants entered in the Circuit Court of Dade County in a common law action. Defendants had pleaded the ’applicable two year statute of limitations provided in Sec. 95.11, F.S.A. The undisputed facts are that the complaint was filed with the clerk within the limitation period (but original process was not placed in the hands of the sheriff until after the limitation period. With respect to the periods of limitation provided in Chapter 95, Sec. 95.-01 provides:

“What deemed the commencement of action. An action shall be deemed to be commenced, within the meaning of this chapter, when the summons or other original process shall be delivered to the proper officer to be served.”

Florida Common Law Rule 4 then in effect provided that actions shall be deemed commenced when the complaint is filed with the clerk. The same provision now appears as Rule 1.2, Florida Rules of Civil Procedure.

The question to be decided is whether adoption of the aforementioned rule by this Court superseded the application of Sec. 95.01. We think it did not, and that with respect to the limitations of actions contained in Chapter 95, F.S.A., commencement of the action is fixed by the express terms of Sec. 95.01 to be the placing of the original summons in the hands of the proper officer for service.

Reading the statute and the rule each in its own context, there appears to be no irreconcilable conflict between the two. Commencement of an action for the purposes of the subject of limitations of actions is quite a different thing than commencement of an action in contemplation of procedural matters comprehended within the Rules of Civil Procedure. The statute is careful to provide expressly that the commencement of the action there contemplated is referable only to the subject of limitation of actions. It therefore is clear that the statute cannot ¡be said to be broad enough to conflict with any other use of the term “commencement of actions” in reference to any matter not germane to -Chapter 95, of which, of course, 95.01 is a part. At the same time, the body of the rules of procedure adopted by this Court, as limited by the statutory authority under which the rules were adopted and promulgated and by the limits of the inherent rule making power of the courts, have application only to processes and procedural matters in the conduct of litigation before the courts. Florida Common Law Rule 4 is one of the rules of practice made and promulgated by this Court under statutory authority found in Sec. 25.03, F.S.A.:

“25.03 Powers to make rules and regulations. The supreme court shall have the following powers, and action taken by it thereunder shall have the force of law until otherwise provided by the legislature, to-wit:
“(1) To make rules of practice, etc. —To make, amend, annul, or modify rules of practice or pleading of the supreme court or any other court as it may see fit not inconsistent with the law.
“(2) To make rules relating to process. — To make rules for the issuing and return of process in all courts not inconsistent with law.”

Among such rules are procedural provisions related to the commencement and pendency of actions and the fixing of a precise time of commencement is necessary to the proper application and workability of such provisions. Such procedural matters lie apart from and have no logical relation to the substantive matter of limitations of actions. Therefore it is evident from their nature and purpose that Rule 4 and Sec. 95.01 have mutually exclusive effect and operation and the Court does not pretend to repeal the statute. Furthermore, it cannot be doubted, that courts may not by rule of practice either by statutory or inherent rule making authority, amend or abrogate a right resting in either substantive or adjective law. Sec. 25.03, F.S.A.; Keen v. State, 89 Fla. 113, 103 So. 399; State ex rel. Fisher v. Rowe, 110 Fla. 141, 148 So. 588; Petition of Florida State Bar Association, etc., 145 Fla. 223, 199 So. 57. If Common Law Rule 4 were given the effect of abrogating ¡Sec. 95.01, it would have the effect of altering statutory periods of limitation by court rule contrary to this established proposition.

There is yet another reason to support our view of the Rule. Section 25.47, F.S.A., under -which the civil rules were promulgated provides that this Court, in adopting rules of procedure, should expressly designate such procedural statutes as should be repealed or superseded in whole or in part by the rules adopted. Sec. 95.01 was not so designated.

From the considerations mentioned which are peculiar to the statute and rule here considered, we are not persuaded by cases from other jurisdictions under rules and statutes unlike our own.

The judgment appealed from is affirmed.

DREW, C. J., and THOMAS and ROBERTS, JJ., concur.


author: THOMAjS, Justice.

text:
    Ralph MEAD, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division B.
    April 11, 1956.
    Martin & Martin, Plant City, for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
   THOMAjS, Justice.

The appellant was 'convicted of grand larceny, was adjudged guilty of that -crime, and was sentenced to serve five years in the State penitentiary. -He maintains here that error committed in his trial was so prejudicial that he should be tried anew. .We will discuss and decide in the order in which they are argued in his brief the first two questions he presents for our decision.

When the appellant was testifying in his own behalf he was asked, by his attorney, if he had “ever been convicted” and replied that he had “been convicted in the military service.” Immediately the county solicitor began the cross-examination of the appellant he persistently questioned him with reference to the relative periods the appellant had spent in the “guard house” and in performing his duties as a soldier. His counsel persistently objected to the questioning and the court consistently overruled the objections. All this testimony, insists the appellant, was irrelevant and immaterial, and all the rulings admitting it constituted reversible error.

Of course, once the appellant became a witness he could be examined the same as any other witness about matters that would illuminate the quality of his testimony, and in the process he could be properly asked about former convictions of “crime.” Sec. 90.08, Florida Statutes 1953, and F.S.A. Evidence of conviction of other crimes might affect the credit the jury would give his story, Martin v. State, 86 Fla. 616, 98 So. 827, cited in Watts v. State, 160 Fla. 268, 34 So.2d 429. It is the rule that a witness may be asked if he has been convicted of crime but the inquiry must stop there unless he denies the conviction, in which case the opposing party may produce the record of conviction. In any event the matter may not be pursued to the point of naming the crime when the defendant admits it, for such a course would result in an abuse of the rule to the disadvantage of the defendant. Washington v. State, 86 Fla. 519, 98 So. 603. However, it is proper for a defendant on his own account to state the nature of the crime of which he was convicted because the effect upon his testimony might vary according to the severity of the offense. Madison v. State, 138 Fla. 467, 189 So. 832.

In the instant case the initial question, was asked by the appellant’s attorney, instead of the county solicitor, and the question was incomplete. The appellant was not asked if he had been convicted of crime, but simply if he had been convicted — we might add — of something or other. If a person' has been ‘convicted’, it does not follow that he has been convicted of “crime”, and in the present case any replies showing a comparison of the periods defendant was languishing in the guard house and performing-the duties of a soldier would not establish his conviction of -crime. Incarceration in the guard house might have been imposed for infractions of minor nature. And certainly even evidence of confinement in jail before trial is completely beside the point for many persons spend time in jail who are ultimately found not guilty. The course of questioning followed by the county solicitor was not proper under the theory that it would aid the jury in weighing the appellant’s testimony by showing that he had been convicted of crime.

■ The State now argues that the statute we have cited was authority for the examination. We think not. In our opinion the inquiry went afield to the prejudice of the appellant and it could not be justified on the theory that inasmuch a9 the appellant introduced the subject of his service in the army, the State could examine him fully on the'subject and take advantage of the privilege by emphasizing the time spent by him in the guard house. By answering the original question, the appellant did not put his character in evidence and invite an assault upon it by means of the cross-examination.

The next question is a challenge of the charge defining the offense for which the appellant was being tried, namely, grand larceny. The judge charged the jury that the appellant was alleged to have taken certain property of the value of more than $50 and that it was “not necessary, however, that [they] believe, or the State to prove that he stole wire of that amount or that value.” The judge added: “You must believe that he stole some and that it had some value, and if you believe he did * * * steal any [property] alleged in here, * * * then you would find him guilty. And then you will have a form of verdict and find the value of the property you believe to have been stolen.” The jury returned a verdict of guilty as charged in the first count— the crime there described was grand larceny — and specified that the value of the property stolen was “$51.00 or more.”

We agree that the definition of the crime contained in the charge was incomplete because it did not include the element of value prescribed in the statute, that is, that if the property taken is of .the “value of fifty dollars or more, [the defendant] shall be deemed guilty of grand larceny * Sec. 811.01, Florida Statutes 1953, and F.S.A. And we are aware of the rule that when the trial judge attempts to define a crime he must acquaint the jury with all its essential elements. Croft v. State, 117 Fla. 832, 158 So. 454. Though it would have been better for the judge to state what value would constitute a taking petit and what grand larceny, when we consider that the judge charged the jury to fix the value of the property taken and that the jury did place- the value at $51, we conclude that any deficiency in the definition became harmless error. Moreover the evidence supported the verdict that the value of the property taken was sufficient to make the theft grand larceny. Damico v. State, 153 Fla. 850, 16 So.2d 43.

We have examined the appellant’s two remaining questions and have found them unsubstantial.

For the reasons given, the judgment is reversed and the case is remanded for retrial.

Reversed.

DREW, C. J., and ROBERTS and THORNAL, JJ., concur.