author: AYRES, Judge.

text:
    Ellis H. HAMMER, Sr., Plaintiff-Appellant, v. John A. LAZARONE et al., Defendants-Appellees.
    No. 8502.
    Court of Appeal of Louisiana. Second Circuit.
    May 21, 1956.

      Gravel, Humphries, Sheffield & Man-sour, Alexandria, for appellant.
    Stafford & Pitts, Alexandria, for appel-lees.
   AYRES, Judge.

Plaintiff instituted this action for and on behalf of his minor son, hereinafter designated employee, against the workmen’s compensation insurer of his son’s employer for compensation at the maximum statutory rate and as for total and permanent disability.

Defendants filed an exception of no cause or right of action, predicated on these propositions: (1) That the employee was not engaged in a hazardous occupation and (2) that the employee was injured outside the course and scope of his employment.

On the basis of the second of defendants’ contentions, the trial court sustained the exception. From a judgment accordingly dismissing his suit, plaintiff appealed.

A consideration of the issues presented requires a statement of the alleged facts. The employer is alleged to own and operate a drive-in cafe and restaurant located on Lee Street in the City of Alexandria, Louisiana, where plaintiff’s son was employed as a waiter or “car-hop”. The son’s duties were to serve the patrons in their cars in the parking area of the restaurant and, in the performance thereof, it was necessary that he come in contact with such motor vehicles as they arrived and departed and moved upon the lot. It was additionally alleged that plaintiff’s son was required to work in the kitchen in close contact with a mechanical potato peeler, cooking grills and other mechanical, electrical and gas equipment, and, too, that in the conduct of the business the employer owned a'nd operated a motor truck. A further contention was made that the employee and other personnel of the restaurant habitually parked their automobiles across Lee Street from the restaurant as they were required to park outside the employer’s premises.

On the occasion of the accident out of which this action arose, it is alleged that, after the completion of the night’s work, the employee left the place of business in the early hours of the morning of November 8, 1954, and crossed Lee Street where his car was parked the night before, preparatory to returning to his residence; that he had difficulty in starting his car, whereupon, with the assistance of two others, he began pushing his automobile south along the curb on Lee Street, and that during this operation the employee was struck by an automobile driven by William B. Alexander.

Consideration is first directed to the issue secondly enumerated hereinabove. It was, as heretofore stated, upon the sustaining of defendants’ contention in that regard that the exception was sustained. In sustaining this contention, the trial judge stated:

“The question here is whether plaintiff’s injury comes within the ‘threshold doctrine’. As a general rule an accident which takes place when an-employee is going to or from work does not give rise to liability for compensation unless the employer is furnishing the transportation. Neyland v. Maryland Casualty Co. [La.App.], 28 So.2d 351. However, our jurisprudence has established an exception to this general rule and this exception is known as the ‘threshold doctrine’. In the case of Attaway v. Fidelity [&] Casualty Co. of New York [La.App.], 39 So.2d 632 cited by plaintiff, the Court allowed recovery where an employee’had to cross dangerous railroad tracks in order to get to iiis employer’s premises and plaintiff was actually injured while crossing these tracks. In the case of Ward v. Standard Lumber Co., 4 La.App. 89, cited by plaintiff, the CQurt allowed recovery where an employee was on his way to lunch at the noon hour' and while crossing the highway at a point contiguous to employer’s premises he was struck by an automobile being driven by a fellow employee.
“In the case of LeBlanc v. Ohio Oil Co., 7 La.App. 721, recovery was allowed where the plaintiff was injured while crossing a public road which lead through his employer’s premises on his way to work.
“It must be noted that in all of the cases cited by plaintiff the Court allowed recovery where the employee was actually injured at the time he was leaving or going to his employment and crossing the highway, railroad tracks, etc. The Courts have never extended this doctrine to allow compensation in a case where an employee has' actually completed the crossing of the street and has already successfully surmounted the hazards surrounding his place of employment. As a matter of fact the case of Walker v. Lykes Bro[thers]-Ripley Steamship Co. [La. App.], 166 So. 624 [627], presented a factual situation almost identical to the one set forth by the allegations of the petition in the present case, and the Court in denying recovery held as follows :
“ ‘Can it be said that a servant, after successfully surmounting the obstacles surrounding him, may again, of his own volition, bare himself to such risks at a different location, for strictly private purposes, and thereby create liability on the part of the master who has lost, actually and constructively, all supervision and control over the servant’s movements? We think not. The act of the plaintiff was one personal to himself. Thus the resulting accident could not and did not have any causal connection with the business of his master. Neither did his injuries occur during the course of his employment nor arise out of his relationship with the defendant. Compare Cudahy Packing Co. of Nebraska v. Parramore [263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366]; Bountiful Brick Co. v. Giles, supra, and [276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507], LeBlanc v. Ohio Oil Co., 7 La.App. 721.’”

In the instant case, from plaintiff’s allegations, it clearly appears that the employee, after his employment had ceased for the night, left the employer’s premises and crossed the street to the lot beyond where he had parked his automobile the night before. After reaching his automobile, he experienced difficulty in starting the motor, whereupon, with the assistance of others, the car was pushed south on Lee 'Street near the curb, where the accident occurred. While plaintiff contends that it is not alleged that the employee crossed and then reentered the street, no other conclusion could be reached. On reaching the parking lot beyond the street, the employee surmounted the hazards of such crossing which may have had connection with his employment. His reentry into the street was an exposure to new risks at a different location while in pursuit of a private purpose wholly disconnected with his employment. It is immaterial that the accident occurred within a short distance of the place where the employee worked or where he had just recently crossed the street, or, for that matter, that he reentered the street and subjected himself to such new risks and hazards at the precise point at which he had first crossed over the street, or that only a short space of time intervened. "The important and determining factor was whether or not the employee had already, at the moment of the accident and injury, surmounted the hazards of his employment and entered upon a purpose of his own. That he had done so affirmatively appears from plaintiff’s allegations. The employee had passed beyond the direction and control of the employer. The employer no longer had authority over the employee— he could not direct his movements and, as an employer, was not concerned with the employee’s efforts to start his car.

While the conclusions reached herein-above are sufficient to sustain the exception, we do not rest our decision solely thereon. The other proposition submitted by defendants in the exception, that is, that the employee was not engaged in a hazardous occupation at the time of the occurrence of the accident, is likewise meritorious and should have been sustained.

The right of an employee to compensation is generally determined by the nature of the business of the employer rather than by the particular duties performed or services rendered by the employee. Brown v. Remington-Rand, Inc., La.App., 81 So.2d 121; Harrington v. Franklin’s Stores Corp. of New Iberia, La. App., 55 So.2d 647; McAllister v. Peoples Homestead & Savings Ass’n, La.App., 171 So. 130; De Lony v. Lane, La.App., 155 So. 476; Charity Hospital of Louisiana v. Morgan, La.App., 143 So. 508; Kern v. Southport Mill, Limited, 174 La. 432, 141 So. 19.

A cafe or drive-in restaurant is not one of those businesses classified and designated by the Workmen’s Compensation Statute, LSA-R.S. 23:1035, as hazardous, entitling an injured employee thereof to the benefits of the Act. Accordingly, there can be no liability for compensation unless plaintiff is able to show there are certain hazardous features of the business with which he has been brought in contact, or that the business has been previously declared to be hazardous, either by agreement or judicially, under the provisions of LSA-R.S. 23:1035, or that if not hazardous, the parties have contracted in writing to be governed by the Act as provided in Section 1036 thereof.

In an effort to bring the employer’s business within the purview of the statute, plaintiff contends that the employer’s business possesses hazardous features in which is claimed the employee performed services. These features, as stated herein-above, pertained to the employer’s ownership and use of a motor vehicle in connection with his business, to the use of mechanical and electrical equipment in the kitchen with which the employee is alleged to have come in contact and to the patrons’ cars, which it is also alleged the employee must come in contact, while the occupants thereof were being served. Thus, it is urged that the employee would be entitled to recover under the well established jurisprudence that, where an employee performs services in both the hazardous and non-hazardous features of his employer’s business and is injured while performing services in the latter category, he is entitled to compensation. Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303; Brownfield v. Southern Amusement Co., Inc., 196 La. 73, 74, 198 So. 656, 660.

In applying the provisions of, the statute to cases where employees are injured in performing services in a business not specifically designated as hazardous, the inquiry is always whether or not the duties of the injured employee required him to perform services of a hazardous nature incidental to his employment and directly associated with his employer’s business. Brownfield v. Southern Amusement Co., Inc., supra.

It is nowhere contended that plaintiff performed any duty in connection with the operation of either the motor truck or the electrical or mechanical equipment in the kitchen. Even an occasional use of an automobile by an employee in the course of the performance of his non-hazardous duties in a non-hazardous employment is insufficient to bring the employee within the provisions of the statute. Brownfield v. Southern Amusement Co., Inc., supra. Coming in contact with the motor truck or the potato peeler and other kitchen equipment presupposes a closer relationship than merely appearing on the lot where the truck may be parked or in the kitchen where the equipment is located and installed. In a case recently considered by this court, it was held that an employee, a supervising cashier oí a department store, who, as a part of her duties, worked with and operated electrically-driven office machines and equipment and used elevators and escalators, was not entitled to compensation for disabilities resulting from injuries sustained in falling when riding an escalator in connection with her employment. Coleman v. Sears, Roebuck & Co., La.App., 83 So.2d 469, 473.

The instant case is distinguished from Scott v. Dalton Co., Inc., La.App., 1 So.2d 412, wherein it was alleged that the employee was required to operate electric dishwashers and electric dumb-waiters and to lift and carry heavy loads, particularly cases of beverages, and place on the dumbwaiter. Neither was the employee here required to operate an electric slicing machine as was the employee in Storm v. Johnson, La.App., 23 So.2d 639.

Neither is the contact by the employee with the automobiles of the employer’s patrons while serving such patrons from the restaurant sufficient to bring the employee under the Compensation Statute. In Fields v. General Casualty Co. of America, 216 La. 940, 45 So.2d 85, the defendant’s insured owned and operated a feed and seed store. Claimant therein was employed to keep the store clean and to load sacks of feed on the cars or trucks of customers of the store. He claimed to have sustained a hernia when he picked up a sack of feed to load on a customer’s truck. The employer was held not to be engaging in a hazardous enterprise within the purview of the Workmen’s Compensation Law and accordingly the employee was denied recovery.

Plaintiff’s petition itself presents no difficulty. Its recital of the facts relied upon and pertaining to the issue now under consideration is full and complete, clear and concise, and all material facts upon which plaintiff relies are alleged. These allegations disclose facts and circumstances, such as the non-hazardous features of the employer’s business which exclude the employee from the benefits of the statute. Where the petition discloses the business of the employer to be nonhazardous within the purview of the statute and sets out a state of facts showing the duties of the employee pertain to non-hazardous work in which the employee was engaged at the time he was allegedly injured, the petition fails to state a cause of action or to disclose a right in the employee to recover compensation. Such is our view of the petition here. Coleman v. Sears, Roebuck & Co., supra; Allen v. Yantis, La. App., 196 So. 530; Rester v. Community Stores, Inc., La.App., 169 So. 183; De Lony v. Lane, La.App., 155 So. 476.

Plaintiff was authorized to prosecute this action without the payment of costs, pursuant to LSA-R.S. 13:4525. The judgment assessing costs against him is, therefore, erroneous, and will be amended in that regard.

Accordingly, the judgment appealed is amended by eliminating the assessment of costs against plaintiff, and, as thus amended, is affirmed.

Amended and affirmed.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    Adeline Turner DUCOTE, Plaintiff-Appellant, v. Sidney STARK, Defendant-Appellee.
    No. 8407.
    Court of Appeal of Louisiana. Second Circuit.
    May 21, 1956.
    Rehearing Denied June 14, 1956.

      Charles A. Riddle, Jr., Marksville, for appellant.
    Earl Edwards, Marksville, John A. Boat-ner, Jr., Bunkie, for appellee.
   HARDY, Judge.

This is an action to annul a conveyance of property executed by plaintiff in an act of sale to her son-in-law, defendant herein, on the ground that the said conveyance was in reality a donation in disguise, which donation, being one omnium bonorum, was a nullity by reason of the prohibition set forth in Article 1497 of the LSA-Civil Code. After trial there was judgment in favor of defendant rejecting the demands of plaintiff, from which she prosecutes this appeal.

The facts are that on July 5, 1951, the plaintiff, Adeline Turner Ducote, executed an act of sale to and in favor of her son-in-law, Sidney Stark, by which she purported to convey four acres out of a tract of approximately twenty-one acres, together with the improvements thereon, for a recited consideration of $360, represented by two notes in the sum of $180 each, payable in one and two years after date respectively. In addition to the stated consideration the vendor reserved the use for life of a bedroom in the house, which was located upon the property transferred. Estimates of the value of the property conveyed arid that retained by the plaintiff, as reflected in the testimony of witnesses on trial of the case, indicate a considerable variation, but we think it is established that a minimum valuation on the property conveyed should be fixed at $1,800, whereas the admitted value of plaintiff’s remaining property was placed at $1,400. Judging from his written opinion these appear to be the figures accepted by the district judge. There is little testimony, and that of a very vague and uncertain nature, with reference to the expected income from the seventeen or eighteen acre tract retained by plaintiff, but, at best, it does not appear that this represents more than the approximate amount of $150, which would be derived from a farm lease on a share basis. It is established and emphasized that plaintiff receives an old age pension from the State of Louisiana in tire amount of $50 per month. It is noted that the district judge predicated his conclusion upon the valuation of the property retained and the monthly gratuity of $50 received by plaintiff from the State of Louisiana.

Plaintiff’s attack upon the act of sale and the basis for her action are found in the following recitals of her petition:

“Petitioner shows that the purported Act of Sale referred to hereinabove was in truth and in fact a donation in disguise; that there was never any real consideration intended at the time of the execution of same, that none was paid nor has any been paid since, and that it was in truth and in fact the consummation of a method by which petitioner could live on her property and at the same time continue to receive old age benefits from the State of Louisiana, and by which defendant could acquire the said property without the payment of any consideration.
“Petitioner shows that at the time of the execution of the alleged Act of sale aforesaid, she did not reserve unto herself enough property for her subsistence, and that ■ consequently the donation' of the property described in said deed is null and void for the whole thereof; that the only property which she had remaining at the time of the purported Act of Sale consisted of approximately seventeen acres of land located near Dupont, Avoyelles Parish, Louisiana.”

It is obvious that plaintiff seeks the relief prayed on the ground that the purported sale was, in reality, a donation in disguise, which donation, being one omnium bono-rum, is null and ineffective under the specific prohibition of law contained in LSA-Civil Code Article 1497.

To plaintiff’s petition defendant interposed an exception of no right and no cause of action and a special plea of estop-pel, which were referred to the merits. Following trial on the merits, defendant again filed an exception of no cause nor right of action based upon the pleadings and the evidence adduced on trial. The burden of defendant’s exception is that, in the absence of allegations of fraud, error or misrepresentation, parol evidence was not admissible on trial for the purpose of varying or contradicting the terms of the written act of sale. In other words, counsel for defendant strenuously objected, and here reiterates, his objection to the admission of parol evidence designed to establish the instrument of conveyance as a donation rather than an act of sale. These objections were overruled by the district court and we think properly so.

Article 1497 of the LSA-Civil Code reads as follows:

“The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole.”

It is clear, in view of the prohibition established in the above article, that a donation omnium bonorum is one in fraudem legis. As early as 1860 we find a pronouncement pertinent to our consideration of this issue in the case of Lazare v. Jacques, 15 La.Ann. 599, in which the court stated:

“This is not the case of a simulated sale, but of a prohibited donation made under the form and semblance of a real contract of sale.
* * * * ‘ * *
“But it is well settled that parol evidence is admissible whenever the obligation is one contracted in fraudem legis, and that it is immaterial what form may be given to the reprobated contract.” (Emphasis supplied.)

Counsel for defendant insistently urges that the contract of sale, being valid upon its face and containing acknowledgment of receipt of a substantial consideration, is not subject to attack by parol evidence. Unquestionably, this would be a correct assumption were it not for the fact that the determination of the true nature of the instrument is an essential element in the application, vel non, of the prohibition of law contained in the above quoted codal article. As pointed out by our distinguished brother of the district court, it would be impossible to establish the actual nature of a conveyance as being a reprobated and prohibited donation omnium bonorum unless evidence extraneous to the recitals of the formal act should be admissible. The district judge relied upon the holdings in Cahow v. Hughes, La.App., 169 So. 801 and La.App., 173 So. 471, 473; Jeansonne v. Jeansonne, 187 La. 939, 175 So. 626; and Kelly v. Kelly, 131 La. 1024, 60 So. 671, 672, from which latter case the following extracts from the opinion were quoted:

“The nullity of donations omnium bonorum is based upon motives of public order, and estoppel by acknowledgment or admission cannot be invoked to maintain a condition or state of things created in violation of a prohibitory law. Ackerman v. Larner et al., 116 La. 101, 40 So. 581.
* * # * ‡ *
“It concerns the state that a donor should not pauperize himself by his gratuities.”

It follows that it is essential to inquire into all circumstances surrounding a transaction which may be subject to the prohibition against donations omnium bonorum, and the customarily accepted rule against the admission of parol evidence, under such circumstances, is inapplicable.

We come next to a consideration of the point as to whether the transaction in question constituted that character of donation which is prohibited by LSA-Civil Code, Article 1497. As above noted, the district judge was of the opinion that the retention of property valued at some $1,400 and the receipt of a monthly old age pension in the sum of $50 was sufficient to justify the holding that the conveyance in the instant case did not constitute a donation omnium bonorum. We regret that we find ourselves in disagreement with this conclusion. The receipt of a monthly old age pension is, at best, the acceptance of a gratuity from the State which is susceptible to revocation or discontinuance. It is not, nor can it be considered, as income. It is appropriate at this point to comment on the fact that there are strong implications in connection with the instant case which tend to substantiate plaintiff’s allegation that the conveyance which is here called in question was confected for the very purpose of qualifying the plaintiff for the continued receipt of an old age pension from the State. We think this particular point could have been effectively settled were it not for the fact that one of the witnesses tendered by plaintiff, “a welfare visitor” in the employ of the State Department of Public Welfare, refused to testify on the ground that she was prohibited from divulging information obtained from welfare records. We can only observe that this is a classic illustration of the cross purposes between the several branches of government which eventually militate against the just administration and proper function of each of the several branches. Be that as it may, the effefct here has been to deprive the court of pertinent information as to relevant facts.

We think there is no real ground for misconception or misinterpretation of .the meaning and intent embodied in the use of the word “subsistence” in Article 1497. It must be conceded that the apparent lack of exactness in some holdings of our courts might indicate that the value of property retained is the only measure of consideration in determining the factual resolution as to an excessive donation, but we think that has been due to inadvertence and lack of meticulous expression rather than to intent. Our point here may be graphically illustrated by simply calling attention to the proposition that a donor might retain property of substantial value, which, however, would not produce a subsistence. While the property retained by this plaintiff, amounting to some seventeen or eighteen acres, is shown to constitute a value of approximately $1,400.00, it is conclusively established that it does not produce sufficient revenue for plaintiff’s subsistence. The principle was clearly enunciated in Kirby v. Kirby, 176 La. 1037, 147 So. 70, 71:

“It is the settled jurisprudence of the state that a contract whereby a person gives away his property without reserving sufficient property for his subsistence is null from its incipiency.”

The effect of this pronouncement is simply that no matter how much property a donor may retain, a donation will be considered void if the residue is not sufficient for subsistence. We think it clear, under the facts of the instant case, that the property retained by the donor cannot be considered as sufficient to provide for her subsistence. It is true that plaintiff, who was 84 years of age at time of trial, is a person of meager needs, but, even so, the conclusion is inescapable, that the small contribution to her subsistence available from the restricted revenues of the property retained in her hands would be woefully insufficient even for her small needs.

We pretermit consideration and discussion of the question of lesion beyond moiety, which we think was erroneously considered and determined by the district judge since this factor is clearly inapplicable and appellant has not only vigorously objected to the injection of this issue, but insists that this ground of attack was intentionally omitted.

Defendant’s plea of estoppel, based upon the construction and erection of improvements by defendant, is not urged on this appeal, and, therefore, must be considered as abandoned. In any event, the effect of the plea is preserved by the reservation immediately hereinafter set forth.

In answer, defendant alternatively prayed for judgment against plaintiff for the value of the improvements which he has placed upon the property during his occupancy thereof. The evidence contained in the record with reference to the value of these improvements is so vague, uncertain and indefinite that it is insufficient to provide the basis even for a reasonable approximation of the value of such improvements. Under this circumstance, we think the better procedure would be to reserve the right of defendant to assert and establish this claim in a separate and appropriate action, subject, of course, to such offsets in the nature of rental to which plaintiff might be entitled, and, accordingly, such right is specifically recognized and reserved.

For the reasons set forth the judgment appealed from is annulled, avoided and reversed and there is now judgment in favor of plaintiff, Adeline Turner Ducote, and against the defendant, Sidney Stark, declaring that certain instrument dated July 5, 1951, bearing original document No. 137327 of the Records of the Parish of Avoyelles, State of Louisiana, recorded in Alienation Book A-147, page 555, executed by Adeline Turner Ducote, purporting to transfer to and in favor of Sidney Stark certain property described as:

“Four (4) acres of land, together with all buildings and improvements thereon, to be taken out of the northwest corner of a larger tract of 21.95 acres which is further described as follows as to the larger tract: Being lots three, four and five of a partition among the heirs of Placide P. Ducote, entered into on Dec. 14, 1929, appearing of record in Al. Book A-49 at page 287 of the Avoyelles records, and bounded on the north by Bayou Jacque; on the East by lot six of said partition now belonging to Edison Stark; on the south by Bayou Dubroc and on the west by lot 2 of the said partition now belonging to Henry Mayeux. The larger tract was acquired by the vendor herein from Cleveland Ducote on Dec. 13, 1929 by deed recorded in Al. Book A-48 at page 226 of the Avoyelles records.
The lot of four acres herein conveyed is to be taken out of the northwest corner of the above larger tract belonging to the vendor, on a measurement of seventy (70) yards of front by a depth of two hundred eighty (280) yards, and bounded on the north by Bayou Jacque, on the east by vendor or balance of tract on the south by vendor and on the west by Henry Mayeux.”

to be null and void.

There is further judgment ordering and directing the Clerk of Court and Ex-officio Recorder of Conveyances for the Parish of Avoyelles, State of Louisiana, to cancel said purported act of conveyance from the records of his office.

Finally, there is judgment declaring petitioner, Adeline Turner Ducote, to be the true and lawful owner of the property described, and all costs are assessed against defendant-appellee.


text:
    Lucille L. JENKINS, Individually and on behalf of her Minor Children, Plaintiff-Appellant, v. J. O. PEMBERTON et al., Defendants-Appellees.
    No. 8480.
    Court of Appeal of Louisiana. Second Circuit.
    May 21, 1956.
    Rehearing Denied June 14, 1956.

      C. B. Prothro, Shreveport, for appellant.
    Sevier, Yerger & Sevier, Tallulah, Bien-venu & Culver, New Orleans, for appellees.
   AYRES, Judge.

The object of this action, instituted by Lucille L. Jenkins, individually and on behalf of her two minor children, is to annul and to have decreed 'null and void a certain compromise settlement of her claim and that of her two minor children for compensation alleged to have been due them because of the death of Jesse Jenkins, Sr., on November 16, 1951. Additionally, plaintiff prays that on the annulment of said proceedings, she, individually and on behalf of said minors, be awarded compensation in a lump sum, computed at $30 per week for a period of 300 weeks, plus a penalty of 50 percent thereof, with legal interest thereon, together with $250 funeral expense, less a credit of $2,750 paid in accordance with the provisions of the aforesaid settlement.

The deceased was an employee of J. O. Pemberton, a logging contractor for the Chicago Mill & Lumber Company. Pem-berton, his aforesaid principal and the workmen’s compensation insurance carrier, Employers Mutual Liability Insurance Company, were made defendants. While discharging duties of his employment as a truck driver, Jenkins was killed in a collision between a log truck driven by him and a freight train of the Illinois Central Railroad Company. His survivors are the above named plaintiff and two sons, Jesse Jenkins, Jr., aged 13 years, and Charley Jenkins, aged 11 years.

This is plaintiff’s second appeal to this court, the first was from a judgment sustaining an exception of no cause or right of action. 65 So.2d 420. The present appeal was taken after a trial on the merits from a judgment sustaining a plea of res ad judicata.

As a basis for this suit, plaintiff alleges that no bona fide dispute existed as a prerequisite for such a voluntary compromise settlement; that she was not represented in such proceedings by an attorney of her choice but by an attorney appointed by the court, who, from belief, she alleged made no investigation of her claims either as to the facts or law; that she was induced by fraudulent misrepresentations of the adjuster of the employer’s insurer to enter into said agreement and into accepting a smaller sum than she was entitled to in settlement of said claim by the agent’s assertion that plaintiff was neither the legal nor putative wife of the deceased because the said deceased had been previously married and un-divorced, and that said minors were, illegitimate and did not live with nor constitute a part of the family or household of the said Jesse Jenkins, Sr., at the time of his death.

Plaintiff contends, however, that at the time she married the deceased she had no knowledge of his prior marriage and that after their marriage they lived together as man and wife and supported their two children, who, until seven or eight years prior to his death, lived with them at their residence, but that after they established their residence in the quarters of the Chicago Mill & Lumber Company at Tallulah, there was insufficient room for said children, on account of which they remained with their grandmother, supported, however, from their father’s earnings.

Defendants denied plaintiff’s charges and asserted the validity of the compromise settlement-and its approval by the judgment of a competent court as constituting res adju-dicata and as a bar precluding recovery herein by plaintiff. Defendants specifically contend that a bona fide dispute existed between the parties for the reason plaintiff claimed she was entitled to recover compensation as the legal wife, or, at least, the putative wife, of the deceased and the children as his legitimate children, or, in any event, as members of his family, which claims defendants denied, contending that plaintiff was not the legal nor putative wife of the deceased because she allegedly married him or lived with him with full knowledge that he had been previously married and not divorced; that the children were not the children of the deceased; that they did not reside with the deceased and plaintiff at the time of his death, were not members of his family or household, and were not supported by him; that on the submission of the proposed settlement to the court for its consideration, a qualified attorney was appointed by the court to represent plaintiff and her minor children, and that said settlement was only approved after said attorney discussed the facts and law with the plaintiff, and, further, only after having been brought before and questioned by the district judge, who approved said settlement as being fair and equitable and doing.justice between the parties.

For an investigation, the insurer, soon after the death of Jesse Jenkins, Sr., referred this matter to their adjuster, Gene Love, who immediately commenced his investigation and contacted the plaintiff approximately four days following the accident, at which time he obtained a written statement from plaintiff, dated November 20, 1951, wherein she stated, among other things, that she and Jesse .Jenkins, Sr., were married November 20, 1938; that neither had been previously married and that two children were born of their marriage, who were living with them at the time of her husband’s, death. Whereupon, it was explained that it would be necessary to make an investigation of the facts relative to the accident and death of her husband, as well as to her dependency upon the deceased and that of the two children. Request was made-of plaintiff for a copy of her marriage license and birth certificates of the children. These documents were not furnished by plaintiff and their existence could not be determined by Love in his investigation. In the course of his investigation, however, Love found that the children were not living with plaintiff and the decedent at the time of his death nor had they lived with them during the course of several years that plaintiff and decedent lived at Tallulah. While making a search of the public records for a record of the marriage of plaintiff and decedent, the adjuster found a record of the marriage of Jesse Jenkins to Ethel Mercy on December 19, 1936. A further search revealed no divorce between them.

The information thus obtained being clearly contradictory to plaintiff’s statement of November 20, 1951, the adjuster again contacted plaintiff on December 7, 1951, at which time she made another statement wherein she admitted that she and Jesse Jenkins, Sr., were not living together or married when Jesse Jenkins, Jr., was conceived; that before they were married she knew that Jesse had been married to Ethel Mercy and that she did not know at the time of their marriage whether a divorce between them was obtained or not. By this second statement, it would be most difficult to believe that plaintiff did not know that Jesse Jenkins, Sr., had been married to Ethel Mercy. The position taken by plaintiff was that she had no knowledge that Jesse Jenkins and Ethel Mercy were married, saying that she was told of the marriage by the investigator, after which she admitted that she knew nothing of a divorce between those parties.

That Jesse Jenkins and Ethel Mercy w'ere married was established by the marriage record filed in evidence. Moreover, Ethel Mercy testified they were married; that plaintiff was aware of that fact, and that Jesse Jenkins, as well as the plaintiff, discussed with her the intention of their marriage for the purpose of ascertaining whether or not she, Ethel Mercy, objected.

The adjuster learned by interviewing Pemberton, Jenkins’ employer, that no children lived with the deceased and Lucille during the years that he was employed as a truck driver.

Additionally, the record reflects that the attorney appointed by the court to represent plaintiff and her minor children in connection with the compromise agreement and settlement, after accepting said appointment, very carefully reviewed the documents of the adjuster’s file pertaining to this matter. He discussed the facts and the law at length with plaintiff, after which they returned to the judge’s office, whereupon another discussion took place, when, at first, plaintiff denied that she had knowledge previous to her marriage that her husband was married to Ethel Mercy, but later admitted the same in much the same manner as was done in the two statements signed by her.

The court has before it primarily one issue for determination, that is, whether the voluntary compensation settlement entered into by plaintiff, individually and on behalf of her minor children, was founded on a bona fide dispute at the time of the settlement and whether fraud or misrepresentation was practiced by the employers or their insurer. We are not, therefore, particularly concerned with whether plaintiff, Lucille L. Jenkins, was either a legal or putative wife of the deceased, Jesse Jenkins, Sr., and as such, in either capacity, entitled to compensation under the Act, nor whether the two children were members of his household, but, rather, we are concerned with the facts of this case as existed at the time the settlement was agreed upon and the compromise effected. Our concern is whether or not such facts showed the existence of a bona fide dispute and whether or not fraud or misrepresentation was practiced on her by the employers or their insurer.

The trial court concluded from the record that it was established that a marriage was celebrated between Lucille L. Jenkins, plaintiff, and Jesse Jenkins, Sr., the deceased, notwithstanding no marriage license was presented and no issuance or recordation thereof was shown. Such marriage is shown by the testimony of persons who witnessed the celebration, particularly by Sam Henry and Myrtis Henry, who participated with plaintiff and her husband in a double marriage celebration. Sam Henry produced the original of his and his wife’s marriage record, which was shown not to have been recorded.

On the question of plaintiff’s good faith in contracting said marriage, the trial judge found that the deceased, prior to his marriage to plaintiff, had been married to Ethel Mercy and that said marriage had not been dissolved by a divorce or otherwise, and that plaintiff’s testimony, considered together with her two affidavits, strongly indicated that she did have at the time of her marriage some definite knowledge of a previous marriage of Jesse Jenkins which had not been dissolved by a subsequent divorce. From this it was concluded that plaintiff was in bad faith and, therefore, she was neither a legal nor putative wife of the deceased. The trial court found, however, that Jesse Jenkins, Sr., was supporting plaintiff as his wife and the two minor children as his own, but concluded from the facts and circumstances disclosed by the record that it was a matter of no consequence that the children were not, at all times, under the parental roof. We are impressed with the accuracy of these conclusions.

However, as we view the situation it matters not whether, as a fact, Lucille Jenkins and Jesse Jenkins, Sr., were legally husband and wife, or that Lucille Jenkins married said decedent in the utmost good faith and was, therefore, a putative wife, or whether the two minor children actually, and in fact, constituted with their father and mother a family group and were actually dependent upon their father for support. The predominant factor is whether or not there was actually, and in fact, a bona fide dispute between plaintiff, individually and as representative of the minors, and her husband’s employers and their insurer as to such facts.

Attention is now directed to the provisions of the Workmen’s Compensation Statute authorizing voluntary settlement of claims. LSA-R.S., Title 23, §§ 1271, 1272 and 1273 read as follows:

“§ 1271. Right of parties to settle or compromise
‘Whenever a bona fide dispute exists between the employee or his dependents on the one hand, and the employer or his insurer on the other, as to liability or coverage under this Chapter, whether the injuries complained of are com-pensable, and existence, nature, extent or duration of the injury or disability involved, the amount of compensation due the injured employee, or his dependents, or any other matter or thing affecting the right of the claimant to recover compensation hereunder, the interested parties shall have the right to compromise and settle such bona fide dispute, including the manner in which compensation is to be paid, by agreement to be approved by the court having jurisdiction.
“§ 1272. Approval of compromise by court
“The agreement entered into between the employee or his dependents and the employer or his insurer, shall be presented to the court for its approval upon a joint petition verified by all parties thereto. The judge to whom the petition is presented shall, in every case, discuss the settlement and its terms with the employee or his dependents. When the employee or his dependents are not represented by a lawyer the judge shall appoint one to advise them relative to the proposed compromise settlement. A reasonable fee for such services shall be fixed by the court and when taxed as costs, it shall not exceed the sum of fifteen dollars. The judge shall require such proof of the dispute between the parties, and of the other facts set out in the joint petition as he thinks proper.
“§ 1273. Judgment of compromise
“If the court believes the compromise agreed upon to be fair and equitable, and that it was entered into primarily to 'avoid or to end litigation, it shall approve the same, and immediately enter it as the judgment of the court, and the said judgment shall not thereafter be set aside except for fraud 'or misrepresentation made or induced by the employer or his insurer. The judge may, however, refuse to approve the settlement if he does not believe that it does substantial justice to the parties.”

The article appearing next hereinabove is quoted as it appeared at the time of the decedent’s last employment and death and when said compromise was consummated.

Voluntary settlements, under the Workmen’s Compensation Statute, based on a bona fide dispute, are authorized when presented on.joint petition of the parties and reduced to judgment. When judgment has .been rendered approving and consummating such settlement and compromise, it cannot be set aside except for fraud or misrepresentation. Self v. Wyatt Lumber Co., Inc., La.App., 189 So. 327; Walding v. Caldwell Bros. & Hart, La.App., 193 So. 501, 503; Calhoun v. Louisiana Delta Hardwood Lumber Co., Inc., La.App., 182 So. 362; Racine v. Campti Lumber Co., La.App., 43 So.2d 288.

Louisiana Workmen’s Compensation Law and Practice by Malone (Sec. 387, Pages 507-512) states:

“Whenever there exists a bona fide dispute the parties are authorized to enter into a comprondse agreement which, upon being approved by the district court, is reduced to judgment. When this has been done, the judgment cannot be set aside except for fraud or misrepresentation. The provision for compromise has been distinguished on many occasions from the provision authorizing a lump sum settlement. Under the latter type of agreement it is assumed that there are no differences between the parties; and the sole purpose of the arrangement is to avoid continuous weekly payments. On the other hand, a compromise derives its very validity from the existence of differences,• and its purpose is to offset the fear of loss by the chance of gain.
“Any bona fide dispute with reference to the applicability of the Act will furnish sufficient ground for a valid compromise agreement. A disagreement as to whether the claimant was an employee is sufficient, and the same is true where the employer claims that the work of the employee was not part of the employer’s regular business, or that the employer’s business was not included within compensation coverage. Similarly, the parties may compromise differences of opinion as to whether the accident occurred during the course of the employment, or whether the injury or death was caused by an employment accident. In the same way, a valid compromise may be made where the claimant's .dependency on the deceased worker is questioned, or where the employer claims to have a defense against the suit. In fact, any dispute on the question as to whether the employer is liable for any compensation whatsoever may be compromised. The judge, however, may refuse to approve the settlement if he does not believe that it does substantial justice to the parties.
* * # * * *
“When the compromise agreement based upon a dispute has been approved by the court and translated into a judgment it cannot thereafter be set aside except for fraud or misrepresentation made or induced by the employer or his insurer. . Ignorance of the complainant or the employer, or both, concerning the worker's true condition is not sufficient to upset such an agreement. Similarly, the fact that the amount paid is trivial in light of the worker’s ultimate physical condition will not invalidate the compromise. However, where fraud inducing compromise is alleged in the suit for additional compensation the court will usually overrule an exception of no cause of action and permit a trial of the issue on its merits.” (Emphasis supplied.)

On plaintiff’s behalf, her rights and that of the children under the Compensation Act and under the jurisprudence interpreting the provisions thereof as to a putative wife and the illegitimate children are emphasized, both by oral argument and in brief. It is, however, conceded by defendants, and correctly so, that a putative wife is entitled to compensation under the statute as is an illegitimate child forming part of the household.

In Eason v. Alexander Shipyards, La.App., 47 So.2d 114, 116, the court said:

“ * * * as it is the settled jurisprudence of this state that a woman, who was in good faith when she married, and remained so until her husband’s death, is, as a putative wife, entitled to claim the benefits due a widow under the Workmen’s Compensation Act. Jones v. Powell Lumber Co., 156 La. 767, 101 So. 135. See also Rollins v. Foundation Co., La.App., 154 So. 674, wherein a putative wife and her children were allowed to recover; and Fulton Bag & Cotton Mills v. Fernandez, La.App., 159 So. 339.”

On the other hand, it is well settled that a common law wife is not entitled to compensation as the wife or as a dependent member of the family. Moore v. Capitol Glass & Supply Co., La.App., 25 So.2d 248; Patin v. T. L. James & Co., Inc., La.App., 39 So.2d 177. Too, illegitimate children are entitled to recover only as members of the household and not otherwise. Thompson v. Vestal Lumber & Mfg. Co., 208 La. 83, 22 So.2d 842. Children not living with the father must prove dependency as a “fact”. Moy v. Schuylkill Products Co., 209 La. 782, 25 So.2d 542; Haynes v. Loffland Bros. Co., La.App., 34 So.2d 80, affirmed by Supreme Court, 215 La. 280, 40 So.2d 243. Therefore, the disagreement between plaintiff and defendants concerning the validity of the marriage and whether the children formed a part of the household of the deceased was founded upon a reasonable and substantial basis .and constituted a valid bona fide dispute.

The record is replete with evidence showing the existence of a reasonable and substantial basis justifying serious doubt as to the legality of plaintiff’s marriage or that she was a putative wife of the deceased or that the minors constituted a part of decedent’s household at the time of his death. This is sufficient to support a judgment approving a compromise settlement, when the statutory procedural prerequisites have been complied with. That such procedural requirements were substantially followed was amply proven. A joint petition was presented to the court for its consideration, after which, being unrepresented, an attorney at law was appointed to represent plaintiff and the two minor claimants. The attorney held a conference with plaintiff, reviewed the record and entire file of the defendants containing the affidavits and other documents, which were later presented in its defense herein, and then advised plaintiff as to her rights, following which a conference was held with the district judge, who, after considerable discussion, approved the settlement.

Plaintiff is, therefore, endeavoring to annul a judgment of a competent court of-this state, rendered and signed after compliance with all statutory formalities. In Walding v. Caldwell Bros. & Hart, supra [193 So. 503], this court, in sustaining defendant’s exception of no right or cause of action in a suit brought by plaintiff to annul a compromise settlement under the Workmen’s Compensation Statute, held: '

“The requirements of this law were strictly conformed to by the parties in petitioning the court to approve and ratify their compromise agreement. Transactions of this character, when not influenced or affected by fraud or fraudulent representations, may not lightly be disregarded or set aside. If this were not true, there would be meager incentive for such transactions.” '

The allegations of fraud, misrepresentations or imposition are serious charges, the truth of which- must be established, as any other fact in the case, by a preponderance of the evidence. Calhoun v. Louisiana Delta Hardwood Lumber Co., Inc., supra; Cagnolatti v. Legion Pants Co., La.App., 186 So. 377; Young v. A. Marx & Son, Inc., La.App., 189 So. 167; Self v. Wyatt Lumber Co., Inc., supra; Bradford v. New Amsterdam Casualty Co., La.App., 190 So. 210.

The trial court found no fraud or misrepresentation in the proceedings. The record reveals that the adjuster exercised diligence in ascertaining the facts pertaining to this case. His findings were subsequently substantiated by the testimony introduced on the trial of the case. The evidence does not support plaintiff’s claim that she was threatened or coerced into accepting the settlement offered. By her own efforts and request the settlement was raised $250. Neither has it been established by a preponderance of the evidence that plaintiff was told if she did not accept the offer she would not receive anything. Her testimony on this point was denied by Gene Love, the adjuster, Rufus T. Yerger, defendants’ attorney, who prepared the settlement, and Frank Voelker, Jr., the attorney appointed by the court to represent plaintiff and her minors in making said compromise settlement. The trial court, from the many contradictions in her testimony, found plaintiff was unworthy of belief. In the absence of fraud, ill practice or misrepresentation, settlements made under and in compliance with the provisions of the Act are valid and binding on'the parties and beyond successful attack. Horney v. Scott, La.App., 171 So. 172; Self v. Wyatt Lumber Co., Inc., supra.

The established jurisprudence of this State in determining whether issues are in dispute as a basis for compromising an employee’s claim for compensation is that the outcome of the dispute, had the matter gone to trial, need not be considered. The decision rests solely on whether there were reasonable grounds for dispute. Cagnolatti v. Legion Pants Co., supra; Musick v. Central Carbon Co., 166 La. 355, 117 So. 277; Young v. A. Marx & Son, Inc., supra.

In the Cagnolatti case it was stated [186 So. 380]:

“There can, then, be no doubt that, where there are issues in dispute, a compromise may be made even though the amount paid is less than the claimant would have received had those issues been judicially determined favorably to the said claimant.
“It thus becomes necessary that we determine whether any fraud or misrepresentation was resorted to, and, if not, whether there were any issues in dispute when the compromise settlement was made by the parties and approved by the court.
******
“The evidence on this question— whether or not he had been told to wait or whether he was required to wait— is quite contradictory, and, were that question before us now, we would find it difficult to reach a conclusion. But that is not the question which we must decide, for, in determining whether there was room for legitimate dispute, we do not have to go so far as to reach a conclusion as to what would have been the outcome of the dispute had the matter gone to trial. All that we are called upon to decide is whether there were reasonable grounds for dispute. If there were, then, a compromise was justified and authorized by law, and, since even after reading all of the evidence we find the question doubtful, it is quite certain that there was a disputed issue and that, therefore, a compromise was authorized." (Emphasis supplied.)

The legality of the settlement approved December 19, 1951, must be tested in the light of the circumstances existing at that time. Puchner v. Employers’ Liability Assur. Corporation, Limited, 199 So. 799 (Annulled on other grounds), 198 La. 921, 5 So.2d 288; Griffin v. Coal Operators Casualty Co., La.App., 84 So.2d 481.

In Eaglin v. Southern Kraft Corp., La. App., 200 So. 63, 67, plaintiff, a widow, sought to annul a compromise compensation settlement wherein she had accepted $2,000 for the death of her alleged husband. She alleged that no bona fide dispute existed. The dispute resolved about the true marital relationship that had existed between plaintiff and decedent. In an opinion reviewing plaintiff’s demands, it was stated by this court:

“If plaintiff’s marriage to the deceased was valid, or, if invalid, and she enjoyed the status of putative widow, she was entitled to compensation for three hundred weeks, the total of which, under either contention as to amount of weekly payments, would be materially in excess of $2,000; but, regardless of the prudence or imprudence of acting as she did, her rights against the defendant and the issues between them have passed into the realm of things adjudged; if the compromise was legally confected. Massey v. W. R. Pickering Lumber Company, 136 La. 688, 67 So. 552; Sellwood v. Phillips, 185 La. 1045, 1048, 171 So. 440.
“Subsequent developments revealing errors of law bn the part of either or both contractants and/or acceptance of less than was really due, are in themselves impotent to disturb the status of relations fixed, in good faith, by the parties. It is highly important that this be true. If it were not so, compromise would be more often than not, idle gestures.”

Our diligent and most painstaking review of the record and study of the issues presented for determination disclose no manifest error on the part of the trial court or in the judgment rendered. Our conclusion is that the compromise settlement was based upon a valid and bona fide dispute as to whether plaintiff and her minor children were entitled to compensation on account of the death of Jesse Jenkins, Sr., consummated in good faith by all parties, and, therefore, without fraud, misrepresentations or ill practices on the part of the employer, or his principal, or his insurer, or on the part of any attorney concerned therein.

For these reasons, the judgment appealed is affirmed at appellant’s cost.

Affirmed.


text:
    Herman DEMARS, Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellants.
    No. 8496.
    Court of Appeal of Louisiana. Second Circuit.
    May 21, 1956.
    Rehearing Denied June 14,1956.

      Grove Stafford, John L. Pitts, Alexandria, for appellant.
    Eugene N. Scallan, Marksville, for ap-pellees.
   HARDY, Judge.

This is a compensation suit in which plaintiff claimed an award for total and permanent disability. After trial there was judgment in favor of plaintiff at the rate of $28.08 per week for the duration of his disability, not exceeding 400 weeks, subject to credit for compensation paid over a period of 31 weeks. From this judgment defendants, a commercial partnership and the individual partners theréof and the compensation insurance carrier, have appealed.

Plaintiff’s original petition, filed February 8, 1955, alleged that he sustained an accidental injury on March 31, 1954, while engaged in unloading wood crates of building slate weighing 150 to 200 pounds; that his injury was manifested by a sharp, jerking pain in the center of. his shoulders, which radiated up the back of his neck and head and down to his lower back area; that, as a result of the accidental strain, he sustained ,a partial dislocation of the seventh cervical vertebra and resulting pressure and damage to the spinal cord and nerves and severe sprain of the muscles and ligaments of the lower back and shoulders, all of which has caused his permanent and total disability to perform manual labor.

By supplemental and amended petition filed April 11, 1955, plaintiff alleged that on January 20, 1954, while in the same employ and engaged in unloading bricks, he fell between his truck and a “stack of bricks”, striking his upper abdomen, as the result of which he suffered considerable pain in the abdomen and in the vicinity of the left inguinal area ‘of the body and the left testicle; that he was confined to-bed for a period of three days, his injury being diagnosed as a contusion of the abdominal wall. Plaintiff further alleged that as a result of the accident of March 31st, fully set forth in his original petition, the condition of his, abdominal injury was aggravated to the extent that it resulted in an epigastric hernia, which development has caused him to be totally and permanently disabled.

Answers filed on behalf of all defendants to both petitions admitted the accident of March 31, 1954, but affirmatively averred that plaintiff had completely recovered therefrom on or before the date of November 9, 1954, at which time compensation payments were discontinued. Answer to plaintiff’s supplemental petition generally denied the allegations thereof and asserted a plea of prescription as to any claim resulting from the alleged accident of January 20, 1954. Additionally, the defendant, Liberty Mutual Insurance Company, denied any liability by reason of the alleged accident of January 20, 1954, on the ground that it was not then the insurer of the defendant employer.

The only issue which is tendered by this appeal involves the factual determination of the extent, nature and duration of plaintiff’s disability.

Examination of the record is convincing on the point that plaintiff suffered a neck and back sprain as the result of the accident of March 31, 1954, and by reason of which injury he received payments of compensation for a period of thirty-one weeks, such payments being discontinued by the insurer on November 9, 1954, on .the ground that plaintiff had recovered and was able, as of that date, to return to work. We think this position is abundantly supported by the vast preponderance of the medical testimony. This expert testimony was tendered by testimony or deposition of eleven physicians. Additionally, the written report of the doctor who first examined plaintiff after the accident of March 31st was introduced on behalf of all parties by stipulation of counsel. Careful examination of the testimony of these expert witnesses completely fails to substantiate plaintiff’s claims of total permanent disability resulting from the back injury sustained on March 31, 1954.

In consideration of the fact that our evaluation of the expert testimony in this case has led us to. an opposite conclusion from that of our learned brother of the district court, we think it advisable, even at the risk of involving this opinion in a mass of details, to set forth the basis of our appreciation of this testimony.

In this connection, in order to avoid repetition, we will take occasion to make note of the testimony bearing upon both of the disabilities claimed by plaintiff, that is, the back injury and the epigastric hernia. For the sake of consistency, we set forth below the analysis of this testimony, in chronological order with relation to the first examination by each of the consulting physicians. -

Following the accident of January 20, 1954, plaintiff was examined by Dr. Kirby Roy of Marksville, who treated plaintiff January 20th, 21st and 23rd for the injuries which he diagnosed as contusion of the abdomen. Dr. Roy testified that plaintiff did not have a hernia at thib time.

Following the accident of March 31, 1954, plaintiff was examined and treated by Dr. W. R. Hargrove, a general practitioner of Oakdale, whose written report, furnished to Dr. Abramson of Marksville, is incorporated in the record and which we quote in its entirety as follows:

“Subject patient was injured while working on the Edward’s house in this city. He has some pain and tenderness in the cervico-thoracic region pin- ' pointing over the 7th cervical vertebra and radiating down to about the 3rd ■ thoracic vertebra. It seems that his neck was jerked forward accidentally while unloading bundles of slate which were quite heavy.
“There is a very slight subluxation of the 7th cervical on the 1st thoracic, vertebra which is visible in the oblique film, which I am sending. There is also a small amount of arthritic changes in this area and a very slight nárrow-ing of the disc which could be the angulation in which the film was taken.
“I have advised him, however, that he should have hospitalization and head halter traction applied for 3 to 4 days and if .complete relief was received by this treatment a cervical brace should be worn for a few weeks until complete correction has been attained. If no relief is .derived from the traction, then I think it wise that he see an orthopedic specialist. I did try manual traction on his neck for a short while and he received much relief while the traction was being applied.”

On April 3, 1954, plaintiff was first examined by Dr. Albert M. Abramson, a general practitioner of Marksville, to whom the patient had been referred by Dr. Har-grove. We think it significant that this witness was not called by plaintiff but was summoned and tendered as a witness on behalf of defendant. Dr. Abramson testified that he treated plaintiff from April 3rd to June 17, 1954, during which time plaintiff made forty-eight visits to his office. Dr. Abramson did not find anything which would substantiate Dr. Hargrove’s diagnosis, and advised plaintiff to consult Dr. Banks, an orthopedic surgeon of Alexandria'. Dr. Abramson diagnosed plaintiff’s injury as a sprain of the neck in the cervical area, and he testified that plaintiff never, at any time, made any complaints of pain in the abdomen nor mentioned any symptoms indicative of the existence of a hernia.

Apparently in response to Dr. Abramson’s suggestion, plaintiff consulted Dr. T. E. Banks, Jr. of Alexandria, a specialist in orthopedic surgery, who made an examination on April 5, 1954 and diagnosed plaintiff’s affection as traumatic myositis, recommending conservative treatment, consisting of support to the neck and head. The witness testified that he thought this nature of treatment and “a little time” should be all that was necessary for recovery. This witness also saw the plaintiff on the occasion of a visit to Marksville and, again, in his office in Alexandria on August 16, 1954. This August consultation resulted from a recommendation of Dr. Forman of Baton Rouge. The witness testified he read Dr. Forman’s report and “could not determine from this report the exact treatment that he had1 in mind and could not find any findings to treat.. I thought he had recovered at that time.”

Plaintiff was examined by Dr. ,P. M. Davis, Jr. of Alexandria, a specialist in orthepedic surgery, on April 29, 1954. After physical and x-ray examinations this witness was of the opinion that plaintiff had evidence of a mild sprain of the muscles of the neck and possibly the structure of the neck and upper dorsal spine. Plaintiff was again examined by this witness on May 28, 1954, at which time the doctor found no objective evidence of difficulty with the back and neck. Specifically he stated:

“It was felt at that time that the patient could return to work if he so desired, and I gave him two weeks to get back in full hard labor.”

On June 26, 1954, plaintiff was examined by Dr. Duane Forman, a neurosurgeon of Baton Rouge, to whom he had been referred by Dr. Abramson. Dr. Abramson’s testimony developed the fact that the consultation with Dr. Forman was arranged at plaintiff’s request. Dr. Forman made further examinations on July 20th and November 9, 1954, on which latter date it was his opinion that plaintiff had fully recovered. This witness, called by plaintiff, further testified that he had discussed plaintiff’s case with him on December 7th and urged him to return to work. From the testimony of this witness it is conclusive that his findings, even on the occasion of his first examination, were substantially negative and his diagnosis of plaintiff’s condition was limited to a mild or moderate cervical sprain.

Plaintiff was examined by Dr. Daniel M. Kingsley of Alexandria, a specialist in orthopedic surgery, on November 15, 1954. This witness testified, on behalf of defendant, that he made a complete examination and found no orthopedic disability. He testified that he “deduced” at the time of the examination that plaintiff had suffered a muscle sprain in the neck and shoulders, but, at the time of examination, he could make no findings which would justify this diagnosis.

Plaintiff was examined on September 1, 1954 by Dr. F. P. Bordelon, Jr., a general practitioner of Marksville, who testified on behalf of plaintiff. Upon examination this doctor found that plaintiff had an epigastric hernia which, in his opinion, could have been caused by a strain. He referred plaintiff to Dr. Guiffre of Cottonport.

Dr. Elliott Roy, a general practitioner of Mansura, who testified on behalf of plaintiff, was first consulted by plaintiff on October 6, 1954. He put plaintiff under treatment for a gastric complaint. The witness testified that plaintiff had been taking dex-amyl, which medicine he believed to be the cause of plaintiff’s stomach queasiness, nausea and other symptoms relating to the upper g. i. tract. The witness testified that plaintiff had a history of coughing and chest pains, for which he had treated him some years before. This witness made no orthopedic examination nor did he make any examination for hernia. The witness testified that, in his opinion, the gastric disturbances of which plaintiff complained had no connection with any accident and concerned purely a medical problem. The witness further testified, and we think this to be most significant, that plaintiff did not, at any time, make any complaint or mention of a hernia, despite the fact that he treated him intermittently between the dates of November 2, 1954 and February 23, 1955.

The testimony of Dr. Phillip Guiffre, a general practitioner of Cottonport, who testified on behalf of plaintiff, has no particular significance. This witness examined plaintiff on February 11, 1955, and again on June 16, 1955, the day before trial of the case. On examination the witness found plaintiff to be suffering from a hernia, which he denominated an epiplocele, and was of the opinion that this affection was disabling to some extent.

On March 21, 1955, plaintiff was examined by Dr. H. H. Hardy, Jr., a physician and surgeon of Alexandria, whose testimony by deposition was offered on behalf of defendants. Dr. Hardy found plaintiff to be suffering from an epigastric hernia. The testimony of this witness necessarily was predicated upon the history of the two accidents of January and March, 1954, as related to him by the plaintiff. Dr. Hardy testified positively that, in his opinion, the hernia was congenital. He further testified that after careful and thorough examination of plaintiff he was of the opinion that there was no evidence of any injury to the neck nor any residual effect therefrom. In answer to a specific question Dr. Hardy testified that he did not think plaintiff suffered from a ruptured disc, and, in his opinion, he was able to go back to work.

Plaintiff was examined by Dr. William M. Moody, a general practitioner of Baton Rouge, on June 14, 1955, three days prior to trial of this case, who testified by deposition on behalf of plaintiff. The major findings of the’ examination of this witness were evidence of a neuritis of the occipital nerves on the left side of the neck, evidence of a cervical-dorsal sprain, and the residuals of dorso-lumbar sprain with involvement of the paravertebral muscles, and the evidence of an epigastric hernia. As the result of these findings the witness estimated plaintiff’s disability at between ten and fifteen percent and recommended he be sent to the Oschner Clinic for examination and evaluation by a neurosurgeon.

Upon the basis of repeated examinations made by twelve doctors and their expressions of medical opinions and conclusions, we think it is abundantly clear that plaintiff has not only failed to establish his claim but, on the contrary, that the great weight of the expert testimony is convincing that he did not suffer total and permanent disability. As above stated, we feel assured that plaintiff sustained a neck and back sprain which disabled him for a period of time, but we find nothing in the record which would justify a holding that this disability continued beyond November 9, 1954, upon which date payments of compensation were discontinued. It is noted that the district judge in his written opinion made the statement that he was convinced beyond any doubt that plaintiff suffered from a herniated disc. We have carefully and repeatedly examined the record before us and are completely unable to find support for this conclusion.

In view of what we regard as the overwhelming preponderance of the medical testimony as opposed to plaintiff’s contention with specific reference to a factual medical question, we think it unnecessary to comment upon the testimony of lay witnesses.

Turning to consideration of plaintiff’s claims of disability arising from his epigas-tric hernia, we have experienced no difficulty in reaching the conclusion that plaintiff has abysmally failed to connect the causation or exaggeration of this hernia with either of the accidents alleged upon or to establish any relationship between this physical affection and his labor in the course of his employment.

In connection with our consideration of plaintiff’s physical disability resulting from the hernia, we are forcibly impressed with a number of unusual circumstances as reflected by the record. As we noted in the beginning of this opinion, plaintiff’s original petition was filed on February 8, 1955, in which petition his claims of disability were predicated exclusively upon the alleged back injuries received in the accident of March 31, 1954. The supplemental and amended petition filed April 11, 1955, contained the following allegations:

“Petitioner shows that simultaneously with seeking treatment for his other injuries sustained on March 31, 1954, as aforesaid, he has during this past year sought treatment repeatedly for what he thought was simply stomach pains; that he has recently learned that he suffers from a hernia.
******
“That on February 17, 1955, upon receipt of a medical report from his physician diagnosing petitioner’s disorders as hernia, petitioner immediately notified his employers through his attorney and mailed them a copy of said medical report.”

We say that these allegations are so strange as to appear inexplicable in view of the fact that the epigastric hernia was disclosed by an examination made by Dr. Bordelon on September 1, 1954, and plaintiff’s testimony shows that he was informed of this diagnosis at the time. In other words, it is conclusively established that plaintiff knew of the existence of the epigas-tric hernia more than five months before filing his original petition and yet he asserted no demand and claimed no accidental injury with reference to the development of the hernia until the filing of his supplemental petition, which action was taken two months subsequent to the filing of the original petition.

It is indisputable that plaintiff did not sustain the hernia upon the occasion of the alleged accident of January 20, 1954, for the testimony of his examining physician, who treated him for several days following this incident, is positive on the point that, at that time, plaintiff did not have a hernia. Nor is there anything in the record which indicates that plaintiff sustained or exaggerated a pre-existing hernia by reason of the accident of March 31st. Plaintiff himself testified that he suffered no pain nor stomach trouble nor back pain during the period between his return to work three days following the accident of January 20th and the date of March 31st.

Even disregarding these circumstances, which throw considerable doubt upon the validity of this claim, we do not find the slightest evidence in the record which would establish any causal connection between plaintiff’s employment and the development of the hernia. On this point the district judge found that plaintiff did not have a hernia prior to March 31st, and, there being no evidence to show that plaintiff did not have a hernia at time of trial, the manner in which it was discovered was a matter of no consequence. While these findings, in themselves, are unquestionably correct, they do not sustain the conclusion that the hernia and the consequent disability were the result of plaintiff’s employment.

The issue tendered by this appeal presents, solely and simply, the determination of a factual question. Our study and consideration of the evidence has convinced us that the judgment of the lower court is manifestly erroneous.

For the reasons assigned the judgment from which appealed is annulled, avoided and reversed and there is now judgment in favor of defendants rejecting .plaintiff’s demands.


text:
    Mrs. Lorraine SOLOMON et al., Plaintiff-Appellee, v. TRAVELERS INDEMNITY COMPANY, Defendant-Appellant.
    No. 8511.
    Court of Appeal of Louisiana. Second Circuit.
    May 21, 1956.
    Rehearing Denied June 14,1956.

      W. Peyton Cunningham, Natchitoches, for appellant.
    . Gerard F. Thomas, Jr., Julian Bailes, Natchitoches, for appellee.
   HARDY, Judge.

This is a suit by plaintiff, Mrs. Lorraine Solomon, and husband, Earl W. Solomon, for the recovery of damages, medical expenses, etc., allegedly sustained by reason of,the negligence of the driver of a truck owned by defendant’s assured. After trial there was judgment in favor of plaintiff wife in the total sum of $7,419, represented by the sum of $6,500 for personal injuries, plus the additional amount of $919 for damages sustained by her automobile, and for thé plaintiff husband in the sum of $1,183.05, being the total amount of medical expenses for which he was .obligated for treatment of his wife. From this judgment defendant has appealed and plaintiffs have answered the appeal, praying for an increase in the amount of the judgment allowed for personal injuries.

The accident which gave rise to this suit occurred at or about the hour of 12:00 o’clock noon, April 5, 1955, at a point in Winn Parish known as the St. Maurice Community where U. S. Highway No. 71, < running generally north and south, is intersected from the east and west by Louisiana Highway No. 480. A 1953 Pontiac Sedan, the separate property of plaintiff wife, driven by her husband, proceeding south on U. S. Highway Np. 71 at a speed of about fifty miles per hour, struck a dump truck loaded with five yards of native gravel weighing approximately 2,700 pounds per yard, which was being driven east along State Highway No. 480, across Highway 71. The point of impact involved the right front of the Pontiac automobile and the left rear of the truck, the exact location being on Highway 480 about one foot east of the eighteen foot wide paved slab of Highway 71. It should be noted that Highway No. 480 does not make a straight crossing at the intersection in question, the continuation of Highway 480, to the east of Highway 71, being slightly south of the intersection on the west side thereof.

There were only three eye witnesses to the accident, these being the plaintiffs and the driver of the gravel truck, one Miron B. Parker, an employee of the Winn Parish Police Jury, the defendant’s assured. Indeed, there were only two eye witnesses to the actual collision, inasmuch as Parker testified that he never did see plaintiff’s automobile until after the collision and until after he had gotten out of his truck. For a case of this nature there is surprisingly little conflict in the testimony of these three parties. The testimony of plaintiffs is that they were driving at a speed of approximately forty-five miles per ■hour; that both saw the Parker truck approaching the intersection from the west at a very slow rate of speed and, according to the plaintiff husband, the driver of the truck, Parker

“ — looked like he looked right at me and I assumed that he was going to stop.”

The plaintiffs further testified that when Parker continued to drive the truck, which was nineteen feet long, out onto the highway blocking the entire slab, Solomon, the • driver of the Pontiac, immediately applied his brakes and tried to move to the left, hoping to miss the truck. The Solomon car skidded eighty-five feet from the point of effective application of the brakes to the point of impact, and, from the appearance of the skidmarks, it is established that the car was angling off the highway to the left during this entire distance. Neither of the plaintiffs, according to their testimony, observed Parker bring his vehicle to a stop before he moved out into the intersection. On the other hand, Parker testified that he brought his truck to a stop some fifteen or twenty feet west of the paved slab of the highway, looked to his left, then to his right and, perceiving no traffic approaching from either direction, put his truck in gear and moved out onto the highway without again making any observation to his left, that is to the north, from which direction plaintiffs’ car was approaching. As stated above, Parker frankly testified that he never d'id see plaintiffs’ automobile prior to the actual collision.

Certain pertinent physical facts established without dispute are that from the point of intersection Parker had a clear view of Highway 71 for a distance of 440 yards to the north, but the view of the intersecting road on which Parker was traveling is somewhat obscured from full view by southbound travelers on the highway by a large tree and a fence. It is noted in the written opinion of the district judge that he also includes, in listing these obstructions, a large sign erected on or near the edge of the highway at the intersection. Counsel for defendant insists that this sign is located south of the intersecting road and therefore would not obstruct the view of drivers of vehicles approaching from the north. There is no testimony on this point, and, because of the unreliable perspectives of the photographs introduced in evidence, we are unable to determine which of these opposed statements is accurate. However, we do not consider this point to be particularly material in view of the fact that the existence of some obstruction to the view is quite clear. Solomon testified that he first saw the truck moving along the road “through the trees.”

As we consider this matter, it is necessary to resolve, first, whether Parker was guilty of negligence in attempting to drive his truck across the intersection in the path of the approaching Pontiac automobile. We have had not the slightest difficulty in concluding, as did the district judge, that he was guilty of negligence in this respect, which negligence was the sole and proximate cause of the accident. It is true that Parker testified that he moved 71 feet, from the point where he stopped to the point of impact, at a speed of three to four miles per hour and that, subsequently re-enacting his actions, he timed this maneuver as consuming fifteen seconds. From this testimony counsel for defendant attempts to justify the conclusion that Parker was free of negligence in attempting to negotiate the crossing of the main highway. We cannot find, under any rule of reason, how such a conclusion can be sustained. On the contrary, it is clearly evident, even if the plaintiffs’ automobile was not in view for a distance of 1,320 feet at the time Parker first looked to the north, it must have come into view before he completed his actions in making observation to the south, putting his truck in gear and moving slowly up to and across the highway. It follows that his failure to again look to the north, under the circumstances, was gross negligence. Time after time our courts have reiterated the principle that a motorist discharges only part of his duty by stopping before attempting to negotiate an intersection. A recent pronouncement by this court in Chase v. Burley, 76 So.2d 587, 590, is appropriate:

“ * * * there seems to be a somewhat prevalent idea among automobile drivers to the effect that when one has brought a vehicle to a stop, as required by law, before entering an intersection with a favored street he has fulfilled the requirements of the law. This is but a part, indeed the least effective part, of a motorist’s duty. The very purpose of stopping is to permit the opportunity for a full and complete observation in both directions along the favored street in order to ascertain the presence of approaching traffic which might interfere with free and safe passage across such a favored highway.”

Conceding that Parker made some observation to the north, it is obvious that this observation was not full and complete, and his failure to continuously observe the highway in both directions before driving a large, awkward, cumbersome, slow-moving vehicle into a customarily heavily traveled main highway, is sheer negligence.

The second question which is presented to us for consideration concerns the contention of contributory negligence on the part of Solomon, the driver of the Pontiac. We find no basis whatsoever upon which a conclusion of negligence in this respect could be sustained. Both plaintiffs testify that their speed was approximately forty-five miles per hour and this estimate is further supported in the testimony of Parker himself to the effect that immediately after the collision, when he asked Solomon how fast he was driving, the reply was:

“ — about forty-five miles.”

■Nor is there any substance in any other testimony or in the physical facts which would indicate any substantial error in fixing forty-five miles per hour as the approximate speed of the Solomon vehicle. However, in this connection, the speed of the Solomon car comprehends no element of negligence, no matter if it should be fixed at sixty miles per hour. The assumption of the driver, perceiving a slow-moving, heavily loaded truck approaching the highway, that it would be brought to a stop before proceeding thereupon directly in his path, is amply justified.

We think, under the facts, which are much more clearly and certainly established than is the usual experience in automobile collision cases, there can be no question as to the correctness of the conclusion of the district judge that the accident was caused by the negligence of the driver of the truck and that plaintiffs were free from any contributory negligence.

There remains for resolution the difficult question of quantum of damages, which has been placed at issue on this appeal by plaintiffs’ answer seeking an increase in the amount allowed in response to the personal injuries. There is no contest as to the judgment for medical expenses in favor of plaintiff husband, who did not sustain and makes no claim for personal injuries to himself, nor as to the amount allowed for damages to the automobile which was the separate property of plaintiff wife. Eliminating these items from consideration, we are called upon to determine whether the sum of $6,500, adjudicated by our learned brother of the district court, was inadequate, as contended by plaintiffs, or excessive, as urged by counsel for defendant.

The principal injuries sustained by Mrs. Solomon were a fracture through the lower third of the left humerus, in which a piece of bone had been knocked off the shaft, necessitating an open reduction and a fixing of the fracture with three metal screws, and a serious and troublesome laceration of the left side of the face extending from a point about one inch in front of the lubule of the ear, in a curving line, down to a point about one-fourth inch “medial to center of the naso-labial fold.” This laceration has left a perceptible and disfiguring scar about 3}/£ inches in length. Additionally, Mrs. Solomon sustained a number of minor facial lacerations which have left scarcely perceptible scars. To add to the pain, suffering and permanent disfigurement and disability for which damages are claimed by reason of the above described injuries, an additional element of damage arises from the fact that at the time of the accident Mrs. Solomon was eight months pregnant, and, naturally, sustained serious worry and concern as to the possible effect of the shock of the accident and her injuries upon the condition of her unborn child, which, fortunately, showed no resultant injurious effects upon its birth' approximately one month following the accident.

Immediately following the accident Mrs. Solomon was removed to Natchitoches where she underwent emergency treatment and suturing of the major facial laceration; she was transported the same evening by ambulance from Natchitoches to the North Louisiana Sanitarium, in Shreveport, where she was hdspitalized for approximately ten days, the operation for the open reduction being performed the, day following the accident. A short time after being released the patient was forced to return to the hospital where it was determined that one of the screws, with which the fracture had been affixed, had pulled loose, which development required the removal of the plaster splint and the application of a hanging cast on April 18th. For a period of several weeks between the time of ápplication of ’ the hanging cast and its removal Mrs. Solomon was forced to sleep in a sitting position. The birth o.f her baby on-May 3rd occurred during this period and, following this event, she was unable to give the baby her personal care and attention for a considerable period of time. At the time of the trial, about the middle of September, 1955, more than five months after the accident, Mrs. Solomon testified that she was still suffering intermittent pain and limitation of use of the arm. The medical testimony indicates that there will be a permanent, though not serious, limitation of use of the left arm as the result of the accident. As the result of the operation for the reduction of the fracture there is an unsightly scar extending along the back lower area of the upper arm to a point at or just below the elbow joint.

The healing of the serious facial laceration sustained by Mrs. Solomon was marked by complications involving the obstruction of the parotid gland, which caused periods of severe pain and which necessitated the administration of ten deep therapy x-ray treatments. Additionally, Mrs. Solomon’s injuries have necessitated numerous physiotherapy treatments.

Summing up the elements of damage for which restitution is claimed, in addition to severe pain and suffering, shock and worry with reference to her unborn child, a slight permanent loss of function of the left arm and a small area of insensitivity on the upper lip, there must finally be added the substantial item of physical disfigurement caused by the ugly'scars on face and arm. We are impressed with the very restrained testimony of Mrs. Solomon with reference to the effect of these scars. She evidenced no disposition toward any hysterical or neurotic exaggeration but, on the contrary, simply testified in a very matter of fact fashion that these scars, particularly the facial disfigurement, where embarrassing and as a result she did not go out on social occasions as much as had been her custom before the accident. The photographs introduced in the record are eloquent testimony of the nature and effect of the scars and this is supported by the introduction in the record, on behalf of defendant, of a report made by Dr. Stewart DeLee of Shreveport, dated August 31, 1955, which we quote in full as follows: /

“I examined the facial lacerations of Mrs. Lorraine Solomon today.
“Her lacerations apparently were caused by glass broken from the windshield of her automobile at the time of her accident in April of this year.
“There are five very small and barely visible lacerations of the forehead, nose and face. These small lacerations are visible only after close scrutiny at a distance of one foot.
“The large laceration of the left side of the face is visible from across the room. This large laceration extends from a point located about one inch in front of the junction of the lobule of the ear and the face and extends in a curving line the convexity of which is pointed down to a point located about inch medial to center of the naso-labial fold. This laceration is about Z1/2 inches long.
“The parotid gland is not palable on either side. The opening of the Paro-tid duct (Stenson’s duct) is not visible from inside the mouth on either side. These findings are of course normal.
“If the parotid duct was severed in the accident it must have healed itself or there is now a fistula communicating with the inside of the mouth which is functioning as the duct normally would. I doubt if the X-ray treatments would have destroyed the secretory cells of the parotid gland.
“She complains of numbness of a small area of the upper lip near the nasolabial fold. This numbness is probably caused by the severance of a tiny branch of the Superior labial nerve which is a branch oí the Infra orbital Nerve which is the terminal branch of the Maxillary Nerve which is a branch of the Trigeminal Nerve.”

. Additionally we think it helpful to quote from the report furnished to the -defendant by Dr. Willis J. Taylor, an orthopedic specialist of Shreveport, omitting only the recital of the patient’s history of the accident and the injuries sustained therefrom:

“The above named 31 year old white female patient was seen in the office on the afternoon of August 29, 1955. She complained of limited usefulness of the left arm and mentioned limited motion in the left elbow and reported aching occasionally at the site of the fracture in the upper arm.
* * * * * *
“Physical examination disclosed the patient to be a rather slender adult female of about the stated age. A healed laceration was noted above each eye on the forehead and another in the right supra-orbital region in the lateral browline. An indented scar, well bleached and approximately 3j4" in length, was noted on the left side of her face, curving upward from a point midway between the left nostril and the upper lip to a point anterior to the lobe of the left ear. There was no facial paralysis; however, she , complained of numbness anteriorly above the lip. Several small healed lacerations were noted on the antero lateral aspect of the right knee inferior and lateral to the,patella. Another healed laceration was noted on the anterior aspect of the right shoulder inferior to the acromion. It was noted that the right index finger had been amputated apparently in the mid portion of the proximal phalanx and the stump was noted to be insensitive and well padded. She stated that she was right-handed, and the power of grip was tested with a Dynomometer and was recorded as being 25 pounds of pressure on the right and 20 pounds of pressure on the left. One-quarter inch atrophy was measured in the left upper arm while the forearms were found to be equal in circumference. A 5}4" operative scar, well healed and apparently slightly sensitive in the upper portion, was noted on the posterior aspect of the left elbow, extending upward from the medial aspect of the olecranon. She complained of some ‘touchiness’ over the ulna nerve of the posterior portion of the medial humeral epicondyle. It was found that the patient could make a tightly closed left fist and that she had full left thumb and finger motion, being able to oppose the tips of each of her fingers with her thumb and able to oppose the head of the 5th metacarpal with the thumb. Full motion was present in the left wrist and shoulder. It was found that the left elbow lacked 10°s of attaining flexion comparable with the right and 20°s of obtaining extension comparable to the right. Full pronation and supination were present. One hundred twenty degrees of active motion, that is in the flexion and extension range, was present in the left elbow, in comparison with 150°s in the right. There was apparently no impairment of sensation in the left hand.
“X-ray studies completed on this occasion included AP and lateral views of the left lower humerus and outlined the elbow joint proper. Study of these films is reported as follows:
“There is evidence of a healed and almost completely consolidated fracture of the distal left humeral shaft which did not apparently involve the elbow joint proper. The presence of 3 metallic screws is noted, and on the lateral view is noted a small central defect. In this view, slight forward angulation of the distal fragment is noted, and ample callus is observed both anteriorly and posteriorly. There is no evidence of absorption about the internal fixation, and the overall alignment appears satisfactory. There is possibly some hypertrophic arthritic change noted medially about the articulation between the ulna and humerus.
“Conclusion: In my opinion, there exists an approximate 20% disability of the left elbow joint in the flexion-ex-tension range but no disability in the pronation-supination range. The former range of motion is felt to constitute 60% of elbow motion, and therefore, the functional disability in the elbow approximates 12%. It is possible that some further improvement in the range of motion will occur, but in my opinion, the disability stated will likely reflect the residual impairment at the conclusion of treatment.”

After thorough consideration of all of the above related elements of damages, we think the allowance made by the district judge was somewhat too conservative, and are of the opinion that it should be increased to the extent of an additional sum of $1,000.

For the reasons assigned the judgment appealed from is amended by increasing the amount of the judgment in favor of plaintiff, Mrs. Lorraine Solomon, and against the defendant, Travelers Indemnity Company, to the full sum of $8,419, with interest thereon at the legal rate from date of judicial demand until paid, and, as amended, the judgment is affirmed at appellant’s cost.