text:
    Alfried BRAZIEL v. M. A. POPE and C. P. Mitchell.
    No. 4172.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.
    Writ of Certiorari Denied June 11, 1956.

      Erlo J. Durbin, Denham Springs, Ponder & Ponder, Amite, for appellants.
    Mary B. Purser, Amite, .for appellee.
   LOTTINGER, Judge.

This is a workmen’s compensation proceeding wherein the plaintiff claims' to be totally and permanently disabled and seeks benefits in the amount of $30 per. vice-k for 400 weeks, together -with ^attorney ¡-fees,, medical expenses -and a penalty ,o:f 12%; for the arbitrary refusál of the defendants to pay the amounts.due.: The petition alleges,that on. May 24, 1954, the plaintiff was- in the employ of one- C. P.- Mitchell, an agent of one M. "A.-Pope,- engaged in loading.and hauling pulpwood. .It is set forth that about 4:30 P.M. on said day, the petitioner ‘.‘was loading pulp wood onto the truck and that too heavy a pi'ece of wood-was placed on petitioner’s shoulders ;tó be placed upon the truck and that petitioner’s back was injured.'to-such--an extent that he was unable to unload the truck.-” It is further set forth that, on 'the following day, -the petitioner reported for work but was unable to do any work. No, allegation is made concerning the exact nature o-f the alleged injuries, the petition merely concluding that the plaintiff is totally and permanently disabled.

Following the filing of an exception of vagueness, a supplemental and amended petition was filed wherein it was set forth that C. P. Mitchell, was an independent contractor dealing with M. A. Pope. It was further alleged that the injuries sustained by the plaintiff were “Sacro-illiac injuries which caused great pain to. petitioner and caused one leg to- be shorter than the other.” The defendants then answered, generally denying all of the allegations of both the original and supplemental .petitions. Subsequently, another , supplemental petition was filed wherein it was alleged, that a reexamination'of the plaintiff by a Dr. J. II. McClendon on November 2,. 1954, revealed that'“He has a left inguinal hernia of traumatic origin or a potential left inguinal hernial’ A.supplemental answer was then filed by the. defendants denying the allegations of the'second supplemental petition.

Following trial of the matter in the court below, the trial judge rendered judgment in fav.or ■ of the plaintiff and the matter is now before us on an appeal taken by the defendants» :

The trial, ju^ge rendered written reasons for judgment, which we set out herewith in fun: '' ' , . ,

“It ds this 'court’s 'opinion that this plaintiff, is-, suffering' from-.a' disability-caused or-'aggravated by the injury received by him on May 24, 1954, while ■employed by-C. P. Mitchell,- independent contractor for M. A. Pope. From the appearance j and .attitude of the plaintiff while testifying; this court'' is convinced that he is not a malingérer.
“As to just what causes the pain of which he complains, this court does not know, nor’ is it up to plaintiff to- prove that exact physical condition which causes the pain.
“On-the report of Dr. Dowell dated April 8, 1955, is this statement:
“,‘It.is possible that the transitional vertebrae noted in X-ray with the accessory articulation is causing some back pain.’
“The doctors in this case are agreed that there is no inguinal hernia at the present time, although Dr. Osborn says there might have been an inguinal injury at the time of the accident, or injury to some other organs if there was sharp pain at the time of the accident. Dr. McClendon claims a potential hernia but considering all the evidence, this court believes it is not a herpia or potential hernia that. is causing the pain.
“Dr. Aycock says that he ‘gave him the benefit of the doubt,’ and treated him for strain on his first visit, and on his second visit he found that plaintiff was suffering from epididymitis and sent him to Lallie Kemp hospital where he was treated for this condition and that at the time of the trial plaintiff was not suffering from epididymitis, but this condition had entirely cleared up.- Therefore, the suffering of which plaintiff was complaining at the time of the trial was -evidently caused by something other than by the epididy-mitis, for which he was treated at Lal-lie Kemp hospital.
“It is this court’s opinion that this ■plaintiff, at the time of the trial, was not able to do work of -the same character he was doing at the time of the injury. Therefore, the court will hold •that he is entitled to '65% of his wages ■ during the period of his disability, no_ , to-exceed 400 weeks, with the right, reserved to the defendants to have this patient givén- 'a thorough’:' diagnostic examination to’ see exactly what-is the exact- nature of' his disability; and tó have same corrected. - 1 :
“In view of the evidence concerning the earnings o,f the plaintiff, including his own testimony, the court believes that $25.00 per week was his average wage, 65% of which would be $16.25 per week. - '
“In view of the conflicting opinions of the doctors in1 this matter, the refusal of the claim until .final determination 'by the court would not seem ar-bit-rary, 'and the court will, therefore, refuse penalties and attorney’s fees, except of course 5% per annum interest from date of each past due installment until paid.
“The court finds no doctor bills paid by the plaintiff and will, therefore refuse claim for doctor bills at this time.
“As to the expert witness fees for the doctors, all doctors summoned in this case being local general practitioners who were away from their offices only a portion of the day, the court rules that a fee of $25.00 each be approved.
' “Therefore, the’ court will render judgment in favor of plaintiff and against defendants in the sum of $16.25 per Week for the period of disability, not to exceed 400 weeks, beginning May 24, 1954, with 5% per annum interest on each past due installment until paid.”

An examination of the record convinces us that the -trial -judge committed manifest error in awarding the plaintiff compensation benefits.

The plaintiff gave the following version of the accident:.

“A.. The boys was pushing a stick of wood on me and after I got it up on me, well, I didn’t have it quite far enough up on me, I kinda released’ it a little bit so I could pull it back up on me and that is when I staggered. I rolled it .off on-the graundand then I went and laid down and that next-day I'came back out to try to work and. I couldn’t make it and I told Reverend I couldn’t make it and he said if I’d wait á while he would carry me to the doctor and get me a prescription and I did.” ' ; '

It is clear 'from the testimony of the plaintiff and other witnesses that he has done no work since the alleged accident.

Four doctors .testified in-the matter. Dr. J. H. McClendon, testifying on behalf of the plaintiff, stated that he could find' no objective or physical .reasons for pain,- and that while he found one leg to be shorter than the other, he was of the opinion that his condition existed before the occurrence of the alleged accident. This doctor testified that the plaintiff had no inguinal hernia but at most, only'a potential hernia.

Dr. Clifton G. Ayco.ck testified that he examined the plaintiff on May 26, 1954, which was two days after the alleged accident. This doctor found the plaintiff suffering from an infection of the left epididy-mis and testicles, infectious in origin, and was referred to the Charity Hospital at Independence, Louisiana. This doctor examined the plaintiff on five different1 occasions through April 7, 1955', and never found that he had a,hernia. On the .Occasion of his last- .examination,, the doctor said that he found nothing, wrong with plaintiff which would disqualify, him from joining .the Army, being eligibly for life insurance and doing hard, manual labor.

Dr. Retus W. Osborn, Jr. examined the plaintiff on the day of the- trial (April 13, 1955)', and stated that the plaintiff had no hernia and that he could find no objective symptoms which would explain pain'in the inguinal area.

Dr. J. Willard Dowell examined the plaintiff on two occasions and the record contains two letters which he wrote concerning the plaintiff’s condition. The first of these, written October 14, 1954, concluded as follows:

“This patient • shows little objective evidence of disability at this time. The only,positive findings on physical examination" were slight difference in leg lengths ' wnich were present prior ’ to leg injury, of course, and some restriction of active extension of the spine. This limitation of extension may be voluntary on the part of the patient as no attempt was made to force through any range of motion. I was unable to find any evidence of a'herniated inter-vertebral' disc. I am not certain as to the cause óf the patient’s complaint in regard to the left testicle and left inguinal region, and made no attempt to evaluate, these complaints: .On the basis of my. examination, I do not feel that .the patient has any permanent disability, and feel that he is capable of returning to work at this time.”

The second letter of Dr. Dowell, written on April 8, 1955, concluded the following:

“I don’t feel that this 'patient has made any change since the last examination. It is possible that the transitional vertebra noted on X7ray with the accessory articulation is causing some back pain.
“However I'can find no objective evidence at this time of residual disability, and it is therefore my opinion that he has no permanent disability and is capable of returning to work at this time.”

We-find a report of Lallie Kemp Charity Hospital in the. record on -the plaintiff and it concludes as follows: - •

, “Diagnosis upon discharge; Epididy-mitis.”

In view of the above and foregoing; we are of the opinion that the plaintiff has 'definitely:-fáiled to prove-his case. We do not believe that the record -shows him to be disabled and even if it did, we do not think that the plaintiff has ■ shown any causal connection between his alleged disability and the alleged accident. It is well established in the jurisprudence of this State that a plaintiff in a Compensation case is required to prove his cláim by a preponderance of the évidence and not by conclusions based upon speculation ■ or possibility. Furthermore, he must prove a causal connection between his alleged disability and his alleged accident. ' We believe the plaintiff has' failed to prove his case. It is with reluctance that wé'reverse the finding of fact by a trial judge but feel compelled to do so in this matter' for the reasons stated.

For the reasons assigned, the judgment appealed from is reversed and plaintiff’s suit dismissed.

Judgment reversed.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    William W. JONES v. GAYLORD CONTAINER CORPORATION.
    No. 4182.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.
    France W. Watts, Jr., Franklinton, for appellant.
    Delos R. Johnson, Jr., Franklinton, for appellee.
   LOTTINGER, Judge.

This .is an action brought by William W. Jones to be declared-the owner of a parcel of property located' in Section 14j Township 2 South, Range 13 East, St. Helena Meridian.' . The Lower Court .granted a judgment for defendant,-and the petitioner has appealed. • ....

The petition alleges that petitioner, William W. Jones, is the owner and in possession of á certain piece of property containing 30 acres more or less. He further alleges that defendant, Gaylord Container Corporation, is slandering his title to said property by claiming to be the owner thereof under color of title recorded in the conveyance records of Washington Parish, and that defendant is further attempting to slander his title by attemping to enter and trespass upon the property by threatening to cut timber therefrom. Petitioner bases his. ownership of said property upon his continuous possession of same ,for a period in excess of thirty years, He. prays that, he be decreed the owner of said property, and that the Jitle- recorded in favor of defendant be erased from the conveyance records of Washington Parish.

Defendant answered denying thát petitioner has 'been in possession of the property for á period of--thirty years. It admits that petitioner' was in possession of a tract containing1 6.8 acres of land up until the- year 1951. ' Defendant denied that petitioner’s possession of the property began in 1919 and -claimed that, prior to--1934, petitioner had never claimed possession of the property. Defendant claimed that in the year 1934 petitioner acknowledged that defendant was the owner of said land. Defendant further set forth its' chain of title, and alleged that it had cut timber ‘ from said land during the last three or four years. Defendant reconvened for the sum of $S60 as damages for pine and hardwood cut and removed from the property by the petitioner. - ’

The facts developed on trial of the casé show that the petitioner did actually ’cofi-struct a house'on the tract of land,-with-a fence surrounding 6.8 acres of the land, and lived on the property for a period of several years. However, during the year 1934, when the property was owned by Great Southern Lumber Company, an author in title of defendant, petitioner signed a lease agreement wherein the lumber company leased the property to petitioner for the sum of $1 per year, plus' the consideration that petitioner would not injure the property and would notify defendant should anyone trespass thereon. As to this lease agreement, the Lower Court stated as follows :

“This lease agreement, which is filed in the record and identified ás ‘D-l’ shows that the owner Great Southern Lumber Company, leased six'acres'of ’ land in the North half of the Northeast quarter of Section 14-2-13 to the'' plaintiff on February 20, 1934. At the time this document was sought to be introduced in evidence Counsel for plaintiff objected to it on the ground that in .defendant’s answer it was alleged this lease showed the recognition of defendant’s ownership, ahd sincé it showed a recognition of the defendant’s ownership and not the Great Southern Lumber Company, its predecessor in title, then said document was not admissible under thé pleadings. I admitted the document for the very-obvious reason that I considered it to have -been proper for the defendant to have shown, by any means whatsoever -.that at some..time during, the-thirty .years which plaintiff is claiming he possessed the- property, that he in truth .apd. in fact did not possess it. Counsel in brief argues there are certain alterations in this document, particularly the section which appears right under the red square on said document, which shows that originally the section was .written ‘24’ and there had been an erasure and the section is now designated as section ‘14.’ I, think Counsel is correct and from an examination of the document it is true that the ‘2’ was erased and a T’ inserted in lieu thereof, ' and apparently another ‘2’ was erased and a ‘4’ inserted in lieu thereof, but this does not mean that the alteration was made subsequent to the time the document was signed. The mistake certainly could have been made prior to the signing of the document, and I note even though this erasure was on there at the time of the trial, Counsel for plaintiff failed to question the witness R. W. Knight about said erasure. Counsel for plaintiff further claims that there has been an alteration in that part of the document where the land is described, and a half mark placed over a quarter mark; that is likewise true, but this alteration was likewise’on.the document at the time it was introduced in.'evidence and Counsel for plaintiff failed to question the witness R. W. Knight about this alteration. Plaintiff further- claims that the alteration shows that the pencil was different and the writing darker, but I do not believe it is justifiable to say’ the' pencil was different — it is true the writing is darker — but that was brought about as a result of the. erasure. I further note there is nothing wrong with the description relative ' to the six acres in the Northeast quarter of Section 14-2-13, and the fact that the North quarter was changed to the North half to my mind could make no material difference. ' After all, the only property this plaintiff claims he had possession of was in the Northeast quarter of Section 14, and -I am quite sure whatever erasures appearing- in this document were placed there prior to the time the plaintiff William Jones signed it. I might add; that William Jones denied on the witness stand that he signed this document.”

Counsel -for’ -defe'ndant .introduced into evidence several documents, which were' admittedly signed by petitioner. The Lower Court compared the signatures on said documents with the signature .on the" léase agreement and found them to be the same. The signatures look the same -to us, and we feel, as did the Lower Court, that’the lease agreement -was signed - by petitioner.

The Lower Court further found that petitioner was not in • continuous possession of the property for the thirty year, period. For, a perio4 of one year he farmed 'for a man-named Talley. During 1931 he was-sent to the penitentiary for hog stealing where he served a 13 month term. Although he testified that his sister possessed the property - for him during his absences, he failed to produce any proof to substantiate his testimony. , petitioner had a wife and children who apparently knew the facts, yet he failed to have any of them testify. .

The' Lower Court found that the petitioner did not have continuous ánd uninterrupted possession of the property for a period of thirty' years, as is required by Articles" 852, 3499 and 3500 of the LS A— Civil Code.' We find no apparent error'in the holding of the Lower' Court, and the jugment below will be affirmed. "

The Lower Court dismissed the demand in recofivention as the defendant-has failed to prove damages. -Wé agree with the dismissal of the’Lower Court, and, furthermore, the' defendant has not answered the appeal praying for reconsideration of the reconventiónal demand.

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

Judgment affirmed.'


text:
    Lucius T. SIMMONS v. Joe SMITH.
    No. 4178.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.
    Talley, Anthony¡,& Johnson,. Bogalusa, for appellant, ■ ¡
    France W. Waits, Jr., Franklinton, for appellee:
   LOTTINGER, Judge.

This is the second time that this matter has come before us. The first time, the appeals' taken in'this case and the companion casé'Of Jeffie B. Smith versus Joe-Smith, which were consolidated for the purpose of trial and-appeal, were dismissed because of the 'fáilure of the Judge ad hoc to-sign the judgments rendered in each case. See La.App., 79 So.2d 504, 505.

The petition in each case alleges that the defendant, Joe Smith; on. October 9, 1952, at approximately l,l,o’clopk p. m. was driving a 1949 Ford in an easterly direction towards Bogalusa on 'the Franklinton-Bogalusa highway when, upon reaching the community of Sheridan, he ran into and killed a bull belonging to plaintiff Jeffie B. Smith and a cow belonging to Lucius T. Simmons. Negligence in each suit is charged against the defendant in the following particulars:

. ■ “1.. In driving at an excessive, reckless rate of speed..
“2. In. driving without keeping1 a proper lookout ahead.
“3. In not driving so he could stop within range of his headlights.
“4. In having improper lights.
“5. In having bad brakes.
“6. In driving while in an intoxicated condition.
“7. In not having proper control of ■ his car.
"8. In not driving with proper regard for the terrain.
“9. In failing to take proper measures to avoid the collision.”

Exceptions of vagueness and no right and no cause of action were filed in each suit and overruled by the trial judge. Subsequently, answers were filed in the‘nature of a general denial and containing also an alternative plea of contributory negligence on the part of each plaintiff.

The trial judge rendered written reasons for judgment which read, in part as follows :

“The evidence and pleadings show" that the accident occurred at Sheridan, which is approximately half-way between Franklinton and Bogalusa jn Washington Parish. At this point the paved two-lane highway runs approximately East and West.. The Pine Highway enters this, highway from the north between Galloway’s Store on the east and a garage or other building on the west. All the buildings 1 at this point are on the north side of the Boga-lusa-Franklinton Highway.
“At approximately 11:00 o’clock P. M. while Joe Smith was returning to Bogalusa from Franklinton after attending a football game on October 3, 1952, he ran into and instantly killed both animals. It is the contention of plaintiffs, Jeffie B, Smith and Lucius T. -Simmons, that the sole and proximate cause of the accident was, among other things, the excessive and reckless rate of speed at which the automobile was being driven, driving without keeping a proper lookout ahead; in hot driving so he could stop within the range of his headlights; and, driving while in an intoxicated condition. The defendant denies this and it is his testimony that he was operating his car at a normal rate of speed between 45 and 50 miles per hour; that he had his car under control; that he was observing where he was going; that his lights and brakes were in good working order; and that he applied his brakes as soon as he saw the animals, but that he was too close upon them to avoid the accident. In other words, it is the defendant’s contention that he was in no way negligent but that the accident was unavoidable due to the suddenness with which the ‘cow and yearling’ came onto the highway from the dark shadows of a building.
“It was also the contention of defendant, Joe Smith, that he was alone in the car at the time of, the accident and there were no other eye witnesses. However, this is seriously contradicted by the testimony of Mr. and Mrs. Claude Thomas, who did not see the actual impact when the car hit the animals, but saw the car before it came to a stop and immediately thereafter saw two colored men come upon the highway from down the bluff where the car came to rest. ■ This was also corroborated by Mr. Osborne Galloway, who. heard the collision, looked out his bedroom window and saw two colored, men coming out from under the bluff , immediately .after the accident occurred, as well as, the testimony of Mrs. Galloway, .all disinterested witnesses.
“Although t.here is some variance as to the exact distance the car traveled after hitting the animals, it suffices to say that the distance was some 300 to 400 feet before the automobile finally came to rest off the highway after carrying both animals on top of the car, one down bluff and the other the entire distance.
“There was also testimony to the effect that the car traveled some 10 or . 12 feet after leaving the highway and. jumped over two or three slabs of concrete measuring four feet wide and eight feet long. All of this, coupled with the fact that there were parts of the inside of the animals scattered up-, on the highway and on the window of the store building some 150 feet from the point of impact, would indicate that the car was traveling at a very high rate of speed.
“Although defendant testified that his lights were in good order and burning bright, he did not see the cow and bull yearling until they were both in the middle of his right lane, and about-20 feet in front of his car. At another point in his testimony he states that -the animals came from his left,or the north side of the highway around the garage or store-room building. The store building has gas pumps in front of it and at least three lanes for servicing cars ‘between the buildings and the paved portion of the highway. The garage or storeroom is to the west of the store building. There appeared to be no obstruction of view and certainly had defendant been keeping a proper lookout, he would have seen the cows in sufficient time to have brought his car under control had he not been driv-ving at such, an .excessive and.reckless . :.rate of speed. ' ¡ , .
“ 'The' negligence of a driver colliding' with an animal loose on the1 public highway should be tested and determin- ■ ed by the application o.f .the rule of due care under the ci'rcufnstances. . The -fact that a-motorist ran-into an animal -■which-was in! plain v-iew.on a public highway, where there was ample room for safe passing, has been .held to show a lack o'f due care on the -part of the operator of the motor vehicle.’ Blash- . fields Cyclopedia of Automobile Law, Section 1615 Volume 3, Page 7.
“It is not contended .that there was a' stock ..law prohibiting cattle running at large, and although defendant contends that the .animals dashed onto the highway in front of his automobile, which would be a legal defense, the physical facts and the preponderance of testimony by disinterested witnesses convinces the Court that the sole and proximate cause of the accident was the excessive and reckless rate of speed at which défendarit was driving and his failure to keep a proper lookout and not being able to stop within the range or view of his headlights. There certainly was ample room for safe passing to the left of the animals had defendant been traveling at a safer rate of speed or had he been keeping a proper lookout, since the point of impact was in the middle of .his right lane of traffic.
■ “This conclusion 'of liability on the part of defendant is reached without the necessity of deciding whether or not there was another occupant in defendant’s automobile at the time of the accident' and should have been produced as a witness, or whether or'not defendant was driving while in an intoxicated condition'.”

■ There is no question but that the trial judge’s findings with respect to the physical condition' of the road and surrounding premises at the location of the accident are correct.' We do not believe, however, that he was warranted from the evidence adduced in concluding that the charges of negligence levelled,against the .defendant.were proved to that degree of certainty required by law.

The only 'eyewitness to the accident is the'’defendant' hifííself and he, on cross-examination, ;gaVe'the following version of its occurrence: On the night in question he had been to a-ballgame¡and uvas .proceeding in the direction of Bogalusa1 at' approximately 11 o’clock p. m.' Just before the accident, he was proceeding at a speed of between 40 and 50 miles per hour. His bright lights were 'on -and were in good condition. He first saw the two animals when they ran onto the .road from his left at a distance of about 20 feet ahead of him. The defendant testified, that as soon as he saw the cows, he applied his brakes, (which were in good condition), but was unable to avoid the accident and .the cows were struck in his right .lane of travel. According to the defendant, one of the cows was carried by the car a distance of about 100 feet be-for the car came to a stop. He stated very definitely that he was alone in the car at the time, and that he had not been drinking that night. He admitted having been found guilty of “negligent driving” in a criminal proceeding resulting from the accident.

On direct examination, the defendant repeated that he wás proceeding at less than 50 miles pet''hour'when he first saw the animals some 20 feef ahead of him and to his left, tie repeated that he 'was alone, that he was ¡not. drunk and that his lights and brakes were . good. He stated again that he attempted to stop but -did not have time as the cows had suddenly appeared from behind the shed on his left. .(This shed is referred to by the trial judge in his reasons for judgment set opt above.). The defendant stated, that one. of the cows was knocked to the right of his, ear in the spot where it was first hit and that the other fell across 'the hood of the automobile and fell off after the car - stopped. Gn re-efoss-examination, he repeated 'that his lights were on bright and that he first saw the cows when they were running ahead of him some 20 feet away in the left lane of travel.

As ¡will be.- seen .from the above quoted reasons for. judgment of the trial :court, the latter-was of’the opinion that the proximate cau-se:of the accident was the excessive, rate of Speed at’which the-defendant was traveling. As stated above,'the only eyewitness to the-accident was the'defendant himself and we-do not believe that:the fecord contains sufficient physical evidence to warrant our concluding that’ he testified falsely when he said that he was not going over 50 miles per Kojin We 'do not think' that 'the fact alone that he traveled some 300 feet after the collision is sufficient proof that he was traveling at a’dangerous rate as the evidence indicates that the, highway he was traveling on was on á downgrade and further indicates that he lost control of his car after the impact and that his car went down • an "embankment. Furthermore,' we are impressed by the fact that one A. M. Cesario, Jr.,'testified that he repaired the vehicle at a cost of only $38.50. - While' it is true that this man made use of second hand parts and performed the labor himself,- we do' not think that the impact could have been too great-with the resulting damage'to'tlie car being so small. Considering the fact that the animáis were1 only 20 feet away from him when they'ran'into the road from his left, we do not think that the speed he was traveling wa,s a proximate:cause of the accident. Under, the facts and circumstances as found in this record, if defendant., ha.d been traveling' at the rate .of 20.or 30..mil'es 'per hpur, .which he had a perfect right to do, he could, not have avoided ,thc accident. • ■ ■ , .. ,-

The trial judge did not pass upon whether or not the plaintiff was intoxicated, but we think it pertinent to point out, without goiñg-into unnecessary-detail, that the record is completely barren of any proof whatsoever to the effect that the defendant was drunk. The' appellee, in-his brief, makes much of the fact that" there' was another person in the car with the defendant who was not called to testify;- -The -fact of' the matter is, though, that the record fails to show that there was a passenger in the car with1 the-defendant. Not only did he deny this' ’on several occasions, but none of the persons who testified with respect to this supposed passenger actually stated that they had seen him in the car. .All that they could testify.to was that they saw another negro, with the defendant on the highway after the accident had occurred.

Though it is with reluctance that we" reverse a factual finding" by a- trial judge, we feel constrained to do so here. Negligence in cases of this sort must be proven by a preponderance of the evidence and we feel that the plaintiff has failed to do so. See Holmes v. Lindsey, La.App., 15 So.2d 89.

Eor the reasons assigned, the judgment appealed from is reversed and plaintiff’s suit dismissed at his cost. ...

Judgment reversed.


text:
    Jeffie B. SMITH v. Joe SMITH.
    No. 4179.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.
    Talley, Anthony & Johnson, Bogalusa, for appellant.
    France W. Watts, Jr., .Franklinton, ,fo¡r. appellee.
   LOTTINGER, Judge.

For the reasons assigned in the companion case of Simmons v. Smith, La.App., 86 So.2d 723, the judgment appealed írom' is reversed and plaintiff’s suit’ dismissed at his cost. ’ " " ’

Judgment reversed.


author: TATE, Judge.

text:
    Jeff CUMMINGS, Plaintiff-Appellee, v. Harry J. ALBERT et al., Defendants-Appellants.
    No. 4155.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1955.
    Rehearing Denied April 27, 1956.

      Bienveriu &" Culver, New Orleans, for appellants.-
    Arnold J. Gibbs, 'Lawrence A. Uter, Dúr-rett & Hardin, Wallace A. Hunter, Baton Rouge, for appellee.

      . “It is agreed that:
      “1. In addition to any payments which are required under Division (2) of Paragraph One (a) of the Policy by the provisions of the applicable Workmen’s Compensation Law,' the Company will also pay the reasonable and proper cost of any additional medical, surgical, nurse or hospital services, medical or surgical apparatus or appliances and medicines which in the opinion of the Company may be reasonably necessary for' the treatment of injuries sustained by any person who is entitled, on account of such injuries, to the benefits afforded under Division (2) of Paragraph One (a) or who ip entitled to such benefits under other terms of the Policy.
      • “2. • The Company’s liability- under this endorsement shall be limited to $10,-000.00 on account of each person for whom benefits are payable under Paragraph One of this, endorsement”.

   TATE, Judge.

Harry J. Albert, employer, and the Houston Fire & Casualty Co., his compensation insurer, appeal from an award of total and permanent workmen’s compensation benefits to an injured employee, Jeff Cummings. Plaintiff answers the appeal, requesting the additional award of penalties and attorneys fees for arbitrary failure to pay compensation when due.

The principal issues of this appeal relate to (a) the extent of disability, (b) the liability of the insurer to the employee under an “additional medical payments clause” in the policy issued to the employer for medical expenses in excess of the statutory, maximum, and (c) the liability of the insurer for attorney’s fees' and penalties for allegedly arbitrary refusal to pay'Compensation when due.

(1) Disability.

Plaintiff Cummings was employed as a. plasterer’s helper. His duties included heavy lifting, bending, and climbing arid involved, inter alia, carrying cement sacks,, loading and unloading, and erecting scaffolding. While at work on May 2, 1952, Cummings fell -four floors down an open, elevator shaft. His most serious injuries were a broken back and a badly.broken arm. In medical terminology, he suffered numerous fractures (including compression, com-minuted, and compound) of the spine (five vertebrae), left arm, .and ribs. Cummings was hospitalized 'for six weeks and confined to bed at home approximately two months more.

We see little advantage in detailed discussion of the medical evidence, excellently analyzed and reviewed by the District Court in its written opinion. We agree with the analysis and conclusions therein.

All doctors testifying found residual disability. Defendants urge that- this medical testimony shows Cummings entitled to further compensation only on the basis of 20% loss of function of the arm and 10% loss of function of the back, rather than on the basis of total and permanent disability as allowed. That is, defendants argue that Cummings is instead entitled to compensation only at a maximum weekly rate of $9.-93 under the specific disability and the loss of function provisions of the Compensation Act, LSA-R.S. 23:1221(4), subsections (o) and (p) ; limited to the number of weeks therein provided.

The record preponderantly shows that as result of the serious injuries sustained in the.accidént and the prolonged immobilization in a cast thereafter, Cummings is presently disabled from doing heavy work, lifting, or extensive bending. For instance, Dr. I. L. George, orthopedist called by plaintiff, testified to a 50% loss of. flexion of the spine; Dr. William Moody, general practitioner, testified to a 25-30% total disability of the body; and Dr. C. H. Mo’sely, surgeon called by defendants, supports their finding that as of date of trial due to limitations of motion in the back, arm, and shoulder, Cummings was able at most to perform only light duties and was unable to work' without pain.

As Judge Dore stated in Estilette v. United States Fidelity and Guaranty Company, La.App. 1 Cir., 64 So.2d 878, at page 880: “Our compensation law has never required that a man be completely helpless before he can be adjudged totally and permanently disabled. The criterion is whether he can go back to the same job or to.-a job similar to \yhat he was 4ping before. * * * It is obvious as we view plaintiff’s condition that he could not now hir-e himself out to do. the work he was doing in 1950 [time of injury], because, he is not; physically able; to do it. * * * It is well established in our jurisprudence that an employee whose injuries prevent him from performing his 'customary and Usual dutiés without suffering pain, hardship and discomfort is totally disabled within the meaning of the compensation act.”

'Such cases as Wright v. National Surety Corp., 221 La. 486; 59 So.2d 695; Fruge v. Pacific Employers Ins. Co., La.App. 1 Cir., 71 So.2d 625, affirmed as to other grounds 226 La. 530, 76 So.2d 719; Strother v. Standard-Accident Ins. Co., La.App. 1 Cir., 63 So.2d 484, Fontenot v. Goldenstern Pipe & Supply Co., La.App. 1 Cir., 50 So.2d 484; Scott v. Fulton Bag & Cotton Mills, La.App., 65 So.2d 397, hold that where an employee due to the accidental injury is unable to perform substantially the duties formerly performed by him during the employment in which injured, he- is totally disabled, despite his ability to earn a living doing other and lighter or less laborious, or less (or more) skilled duties.

Cases relied upon by able counsel for defendant' such as Morgan v. American Bitumuls Co., 217 La. 968, 47 So.2d 739; Coon v. Germany Iron Works, La.App., 81 So.2d 83; Loflin v. Erectors & Riggers, Inc., La.App. 1 Cir., 68 So.2d 694; Perry v. Louisiana Central Lumber Co., La.App., 16 So.2d 136; Washington v. Holmes & Barnes, La.App. 1 Cir., 4 So.2d 51, in general do not concern employees unable by industrial accident to perform some or all of the substantial duties of an employment similar to that in which engaged at the time of accident.

As to' defendants’ related defense based on' the testimony of Dr. Mosely, that if Cummings, tried light, work, his working ability should or might return despite. his present-- residual ■ disability, we stated- in Watson v. Floyd Electric Company, Inc., La.App. 1 Cir., 75 So.2d 361, at page 365 (writ denied), rejecting similar contentions:

“The question to be determined -is whether or not the plaintiff, at the time he refused to accept light work or the employer 'refused to give him light work, was able to do and perform the type of work he was doing at the time-of the alleged accident.” ■ ■ '

Or as stated by our brothers of the Second Circuit in Brown v. International Paper Co., La.App., 58 So.2d 557, at page 560:

“Defendant relies largely on the medical testimony of Doctors Hamilton and Rawls, both of whom were of the opinion that plaintiff’s condition was sucR that if he did engage in light work, it would restore full function of his arm within six weeks, and at most, twelve weeks. But the test is not whether a. plaintiff in a compensation case, is able to do light work, ]mt is whether or not he is able to do the same -¡work he was doing when inj.urcd, or similar work, and .we are not to speculate on the time it would require for his recovery or in fact whether he would recover at all, especially in the face of the conflicting medical testimony.” . •

2. Medical expense.

Plaintiff bases his claim for recovery of medical expenses incurred by him in excess of the statutory maximum upon a clause in the policy issued by defendant insurer to the employer entitled “Louisiana extra legal medical endorsement.” -

Concerning such clause to the policy, the able district court stated:

“My first impression of the above quoted endorsement was that it is merely an agreement between the insured -and=the insurer-and that it does not' inure to the befiefit of the injured em-•plo’yee- and: that notwithstanding this' ■ endorsement a plaintiff workman can recover for medical and hospital expenses ,no more than permitted by the ..statute. One of the reasons suggesting-this conclusion is that part of the endorsement providing tfiat additional medical and hospital expenses will be paid if in the opinion of the Company the same may be ‘reasonably necessary etc.’, — a purely potestative condition; •and the other being'thát the provisions, of the statute limiting liability for med- - ical expenses to .$1,000.00 only should be applied.
“However, upon further reflection,, this question occurs, — if the provision is not for the benefit of an injured employee, why have it in the policy at all," and why should an employer pay an extra premium, .(which he must do) to have it made a part of the policy contract ?
“The second paragraph of the endorsement limits liability to $10,000.00, ‘on account of each person for whom benefits are payable under paragraph one of this endorsement.’
“This paragraph it seems to me amounts to a stipulation ‘pour autrui’ and was intended to be for the benefit of the third party employee. Therefore, I am of the opinion than an injured workman can avail', himself of this provision and recover an amount in excess of the statute if he has by reason of the injuries sustained required and received additional treatment,, hospitalization etc.” (Italics by District Court.) '■ " j-“- ‘ ■"

Although since this holding, the Orleans Court of Appeal reached a somewhat different conclusion, Smith v. W. Horace Williams Co., La.App., 84 So.2d 223, at page 228, it does not appear to have had brought to its attention the possibility that such agreement might be á stipulation in favor of a third person, Art. 1890,■ • LSA-Civil Code. Further, the insurance “agreement shall be construed to be a direct obligation by the insurer to the person entitled to compensation, enforceable in his name”, LSA-R.S., 23:-1162; Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695.

We therefore think- the' District Court herein correctly allowed plaintiff to recover under this excess medical payments clause for “reasonable medical, surgical-and hospital-services and medicines”, LSA-R.S. 23:1203,'incurred by him, although in excess of the statutory maximum of $1,000.-

As noted, the insurer had already .paid the sum of $1,173.20. It is stipulated m the record at Tr-4 that plaintiff had incurred the following medical expenses on his own account: ■

Dr.'David S. Malen" $75'.00
Dr. I. L. George ' 40.00
Dr. F. A. Benitez 140.00
Dr. William M. Moody 75.00

Defendant alternatively urges, non-liability for these excess medical expenses because allegedly tliey were expended not for treatment -or care of the plaintiff, but for purposes of preparing this law ' Suit. Employers and their insurers are neither liable for, not entitled to fcredit against a statutory or legal medical’expense limit, for sums expended for examinations for purposes pf litigation, rather, than .for purppses pf treatment, Jones v. Hunsicker, 188 La. 486, 177 So. 576; Chamberlin v. Maryland Casualty Company, La.App. 1 Cir., 75 So.2d 366.

The record indicates that the1 medical liability of-the late Dr.-F. A. Benitez in the amount of $14Q:and that bf-Dr, Davis S. Malen, x-ray specialist in the amount of $75 were incurred in .connection- with.medical treatment and- attention,, and not primarily with -examination for .the purposes of litigation. However, the District Court inadvertently allowed the fees of Dr. I. L. George and Dr. W. M. Moody, who examined plaintiff primarily as medical witnesses; therefore the- District Court's award of excess medical expenses wilbb'e reduced -to $215 total. ■ ' o"

3. Penalties and attorneys fees under LSA-R.S. 22:658.

‘ Such penalties and attorneys fees will ‘ not be ’ allowed upon excess me'dical payments above recovered, since the liability of an insurer therefor, not previously litigated, presented a substantial question.

But even accepting the somewhat self-serving testimony of defendant insurer’s claims manager that compensation payments were ceased to. this, crippled employee on December 1.1, .1953, under a now--admitr tcdly mistaken calculation Jhat, such payment discharged in full the insurer’s liability calculated on a loss of function’or specific disability basis, we find'in defendants’ brief the frank admission that even under its own present calculation it 'owes the injured employee further' compensation iri 'the amount of $1,232.55. ' ■ '

The r'ectird reveals that-with equally commendable frankness ■ the ‘ same concession' was made by the defendant in brief filed in the District Court’"on or about September lj 1955 (seepage 11; “Reasons for Judgment” of District Court, October 17, 1955). Despite this admitted liability for unpaid compensation, the record is devoid of any -tender or payment of additional compensation due to the injured employee, and upon argument of this appeal on January 23, 1956, in response to questioning from the bench, counsel for defendant answered that none had been made.

Our Supreme Court has held that when there is, no bona fide dispute as to whether compensation is due for disability, and the insurer nevertheless fails to tender the amount due, then such failure to pay compensation is clearly arbitrary, capricious, and without probable cause, subjecting the defendant to penalties under LSAR.S. 22:658, Fruge v. Pacific Employers Ins. Co., 226 La. 530, 76 So.2d 719; Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695.

Decree.

For the above and foregoing reasons, the judgment of the District Court herein is amended so as to decrease the het additional medical expense awarded' to plaintiff to the sum of $215 assessed against defendant Houston Fire & Casualty Company, arid further amended so as to hold said defendant insurer liable to plaintiff: in the amount of 12% of all weekly compensation payments now due and unpaid, with a like penalty ori all such payments which might become 60 days overdue in the future, together with an attorney’s fee payable to the plaintiff in the sum of $500. In all other respects, the judgment of the District Court herein is affirmed. All costs to be paid by defendants, . '

Amended; and as amended, affirmed'.1'"

      . ■ Of. LSA-R.S. 23:1165 providing that an employer and an employee may b&twéen themselves provide in writing for compensation over -and above, the statutory:-. compensation rate. There, seems no rea-., son why the employer’s agreement with., a third party might not give rise to an enforceable right either to compensation of such other additional benefits as might be the subject. of- the agreement.

      . Which reason for discontinuance so far as the record reveals whs n.dver- advanced' the claimant, claimant’s attorneys, or in the pleadings, prior to the claim-manager’s testimony on the last day of trial. • .


text:
    WOMACK AGENCIES, Inc., Plaintiff-Appellee, v. Harry FISHER, Jr., Defendant-Appellant.
    No. 4174.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.

      Henry A. Mentz, Jr., Hammond, for appellant.
    ■ Iddo Pittman, Jr., Hammond, for appel-lee.
   TATE, Judge.

This is an action by a real estate -brokerage firm for its commission for the sale of certain property by defendant. Defendant appeals from judgment awarding plaintiff $1,000 (or 5% of the gross selling price), and plaintiff answers the 'appeal seeking an-additional' award of $350' for attorneys "fees. ’ A ■ . >. •

A contract with plaintiff ás exclusive agent to sell defendant’s residence on Easy Street in Hammond, La., was terminated by written notice effective September 22, 1953. By virtue of another clause in said contract, defendant -Fisher- is also specifically liable to plaintiff broker if.“an agreement of sale” was “arrived at” by Fisher on or before October 22, 1953, to sell to a party interested in the property by plaintiff agency.

The originally listed minimum selling price was $21,000 net to Fisher. The real estate agency’s commission was to be “5% on the gross sale price whether said price be the amount above stipulated or some other price I [Fisher] may agree to accept”. During the five, months the property was listed with plaintiff, defendant Fisher reduced the minimum price to $20,000 net to him.

' Although the contract was terminated effective September 22nd, Fisher thereafter requested plaintiff agency to continue negotiating with Guy Billups, Jr., who had been previously interested in the property while listed with plaintiff agency. At a final conference between Thomas Womack, president of plaintiff agericy, defendant Fisher, and Billups on October 8, 1953, Fisher rejected an offer of $20,350 (from which the real estate agent’s commission, although reduced, was to be paid).' Fisher said he was unwilling to surrender occupancy by October 15, 1953. On October 24, 1953 (or 2 days after expiration of . express liability under the contract), Billups arid defendant Fisher executed' in writing an agreement to sell the latfer’s residence- for the sum of $20,000. Fhe sale pursuant thereto was executed on December 19,' 1953, although Billups moved into the premises on October 26th or 27th.

The foregoing facts are undisputed. Defendant Fisher and Billups deny any discussions or negotiations between the final conference of October 8th in plaintiff’s office, and their meeting in lawyer’s office on October 24th ■ (arranged by a co7employee of Billups by telephone conversation of October 23rd), when allegedly -they, reached the final agreement which resulted in the salé! ' - '

The legal propositions; upon which Fisher relies in resisting liability .are: “It is well settled that a real estate agent does not ordinarily earn his commission unless he procures a purchaser within the time fixed- in his contract”, Wolf v. Casamento, La.App., 185 So. 537, at page 539. “The mere fact that the sale was made to a prospect obtained by Mathews [the plaintiff-broker] is not sufficient to entitle him a commission on a sale effected by defendant [the seller] after the expiration of the' time limit in his contract the absence of any showing of collusion or that plaintiff’s' efforts were the procuring cause of the sale”, Mathews v. Cacioppo, La.App., 172 So. 584, at page 586, rejecting .a real estate agent’s claim for his commission; Moore v. Loe, La.App., 37 So.2d 345; Cobb v. Saucier, La. App., 30 So.2d 784. See also Lehmann v. Howard, La.App., 49 So.2d 453. “Where a broker has failed to effect a sale, and negotiations have ceased or been broken off, the owner may take up the negotiations where they were left off, and himself. complete the salé,, and the mere fa.ct that the sale may in .-some, degree have .been aided by the previous efforts of the broker does not of itself entitle.the latter to a commission; i. :e., unless it clearly appear that those efforts were in fact the procuring cause of the -sale”, Bullis & Thomas v. Calvert, 162 La. 378, at page 383, 110 So. 621, at page 623. .... ..

. Defendant Fisher argues that plaintiff real estate agency was' nol; the “procuring cause” of the ..sale. This is based upon the testimony of iie’rb-ert, Billups] co-employee, that Herbert had been interested 'in and seen Fisher about purchasing the property for himself personally before .Fisher had listed it for sale with plaintiff real estate agency. These negotiations came to naught. Subsequent thereto and to its listing with Womack, Herbert hád informed Billups of the house when the latter was transferred to Hammond, and had indicated -it to Billups while they were passing by in a car.

This casual information played no substantial part- in the ensuing' negotiations. Both Billups and Woiiiack testified that the former called the latter to assist him in finding a residence in Hammond (without specifying any particular house),-was interested in-Fisher’s house when brought to several properties by plaintiff’s salesman, who by appointment arranged to show Bil-lups through Fisher’s house and to introduce him to Fisher for the first time.

Uncontradicted evidence further shows that plaintiff altogether attempted to interest about twenty prospects in the purchase of the Fisher home, had secured an FHA appraisal at its own expense ($20) to- facilitate financing by any prospective purchaser, and that it conducted intensive negotiations with Billups in an effort to sell said property .to him, even (at Fisher’s own request) past the technical termination date of the contract. As a matter of fact, these negotiations resulted in an offer from Billups $350 more than the price at which Fisher actually sold the property to Billups.

It seems to us., undeniable that plaintiff’s active efforts were a procuring cause of this sale. “ ‘Procuring -cause’ refers to the efforts of a broker in introducing, producing, finding, or interesting a purchaser, and means that negotiations which eventually lead to a sale, must be the result "of some active effort of the broker. Lehmann v. Howard, La.App., 49 So.2d 453, 454.” 34 Words & Phrases ' (Pocket Part), Verbo “Procuring Cause.”

Although agreement to sell is reached with the ultimate purchaser after the final expiration date of the contract as agent to sell the property (in this case, October 22nd), nevertheless the seller is liable to the agent for the latter’s commission if the agent was the procuring cause of the sale, and if the sale was-the direct and continuous result of negotiations entered into while the contract- was in force, even though- the selling price be lower than that listed as minimum ifi the contract, Gottschalk v. Jennings, 1 La.Ann. 5; Corbitt v. Robinson, La.App., 53 So.2d 259; Sollie v. People’s Bank & Trust Co., La.App., 194 So. 116; Harvey v. Winters, 1 La.App. 383. In all of these cases a broker was allowed to recover his fee although the seller did not reach agreement with the purchaser until after the technical expiration date of the agent’s contract. As set forth in Harvey v. Winters, the rule is based upon.equity. and fairness, as otherwise the parties to the sale can easily avoid compensating the broker who brought them together to the verge of the sale by tacitly, or at least un-provably, agreeing to delay acceptance until after the broker’s contract expires.

I11 view of .the foregoing, it is unnecessary to disGuss at any length our belief that the record substantially indicates that although the formal agreement to sell was not executed until October 24th, actually an understanding to sell was arrived at on or before October 22nd, so as to render the seller liable to the. broker under the specific terms of the contract, Caruso-Goll v. La Nasa, La.App., 72 So.2d 13; Adair v. Fleming, La.App., 68 So.2d 215; Zollinger v. Gust, La.App., 192 So. 132; Wolf v. Casamento, La.App., 185 So. 537.

Plaintiff answered the appeal, requesting allowance (in addition to commission) of the $350 attorney’s fee demanded in the petition and rejected by the District Court.

In support of this demand plaintiff cites such cases as Raney v. Gillen, La.App., 31 So.2d 495, Givens v. Chandler, La.App., 1 Cir., 143 So. 79, awarding attorney’s fees as an element of damages for breach of contract when there is fraud or bad faith, under Article 1934 (2), LSA-Civil Code, or as damages for an intentional or malicious wrongful act'or trespass) Morgan v. Patkin, La.App., 1 Cir., 47 So.2d 91; DeGraauw v. Eleazar, La.App, 1 Cir., 24 So.2d 180; Vidrine v. Vidrine, 1 Cir., 14 La.App. 484, 130 So. 244.

Attorneys fees were awarded a real estate agent for failure to comply with the contract to purchase in Blache v. Goodier, La.App., 22 So.2d 82 (certiorari denied), but were specifically based upon a clause in the contract.permitting recovery of “ ‘all fees ánd costs incurred in enforcing collection and dámages’ ”. 22 So.2d 88. They were disallowed in Blackshear v. Landey, La.App., 46 So.2d 688, on- the ground that the contract did not provide for payment of them (as neither does the present contract).

Our Supreme Court has stated that, except as damages for dissolution of conservatory writs, “it is equally well settled that attopnqy’s fees are not recoverable in a civil action in the absence of statute or contract”, Brantley v. Tugwell, 223 La. 763, 66 So.2d 800, at page 801; Griffin v. Bank of Abbeville & Trust Co., 228 La. 857, 84 So.2d 437; Rhodes v. Collier, 215 La. 754, 41 So.2d 669. See Chauvin v. La Hitte, La., 85 So.2d 43, to same effect, and specifically disapproving -some of cases cited by plaintiff. ,. .•

The contract cases cited by plaintiff concern the recovery of damages for breach of a contractual obligation to do something other than to pay money, for which Article 1934, LSA-C.C, provides the measures of damages. Damages for breach of an obligation to pay a sum of money are limited to legal interest, Article 1935, LSA-C.C, -unless éxpressly provided otherwise in the • contract, Article 1934(5), LSA-C.C.

For the' above and foregoing reasons, the judgment of the District Court is affirmed: All costs to be paid by defendant-appellant.

Affirmed.

      . “The reports of appellate court decisions of this State teem with similar cases and as we said in the case of Jeter & Monroe v, Daniels, [La.App.] 25 So.2d 911, 912: ‘Down through the years, as shown' by the reported eases, beginning with Gottschalk v. Jennings, 1 La.Ann. 5, 45 Am.Dec. 70, to the present, peo- ' pie have sought to reap the benefits of the efforts of real estate brokers without paying them for their work. In every case where the broker has procured the purchaser, the courts have, awarded judgment’ ”. Cruse v. Bruscato, La.App., 28 So.2d 56, at page 58. See also Grace Realty Co. v. Peytavin Planting Co., Inc., 156 La. 93, 100 So. 62, 43 A.L.R. 1096.


text:
    Annie Cusachs THEISEN et al., Plaintiffs-Appellees, v. Matt BROOM, Defendant-Appellant.
    No. 4193.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.
    Fred J. Heintz, Covington, Benjamin W. Miller, Bogalusa, for appellant. ■ ■
    Philip E. Pfeffer, Covington, for appel-lee.
   TATE, Judge.

This appeal is from lower court judgment awarding $480.50 to plaintiffs for timber owned by them, found to have been cut and removed by defendant Broom from a twenty-acre tract. Plaintiffs answered the appeal, requesting increase of the award.

In seeking reversal of this judgment, defendant Broom chiefly urges that the evidence does not preponderantly prove that Broom cut and removed the plaintiffs’ timber because: (1) plaintiffs produced no witness who actually saw Broom cut any of the timber in question; (2) allegedly, plaintiff had earlier sought recovery and been paid for cutting by a Mr. Jenkins of the same timber.

The witness, Peoples, owner of the 20-acre tract (who had sold the timber thereon to the Theisens’ predecessor in title), testified that in July, 1952, receiving information of timber operations on his land, he went and found Broom hauling some recently cut timber from his land. Peoples showed Broom the true line and informed him that the timber was for the Theisens, following which Broom desisted further operations. Peoples testified that no other crews were operating in the area at the time. Co-plaintiff Alvin Theisen went to the property immediately thereafter and found that 120 trees had been freshly cut and had been removed since he had seen the property 8 days before.

While defendant Broom denied cutting the trees in question (testifying that he had purchased said trees already cut from Messrs. Boyd and Herrington), we find this defense singularly unimpressive in view of the judicial admission in his answer that he had been engaged in cutting timber upon land “immediately adjacent to and adjoining” the Theisen property (Article 14 answer), and in view of his failure to call either Messrs. Boyd or Harrington or one, McCain, whom he testified had actually done the cutting as their employee. Broom does not deny he was hauling the freshly cut timber from the Theisen tract, although he alleges that he left most of it lying on the ground after being notified by Peoples that the timber belonged to the Theisens.

The testimony of co-plaintiff Thei-sen and the timber estimator, Talley, proves in our opinion without contradiction that the earlier Jenkins’ cutting (as to which Talley had made an estimate four months earlier, at which time there was no evidence of the Broom cutting) was in a different portion of the tract and also clearly distinguished as being an old cutting in comparison with the more recent fresh cutting.

Despite able argument by defendant’s counsel, in our opinion the District Court correctly held that plaintiffs proved by a preponderance of the evidence that their timber removed from the 20-acre tract was both cut and removed by Broom, the only person conducting operations at that time in the area and who admittedly was caught while removing some timber from plaintiffs’ tract.

The amount and value of plaintiffs’ timber shown to have been removed on the occasion of this cutting as found by the District Court in computing its award of $480.50 is supported by the record, who awarded stumpage value only on a finding that Broom was acting in good faith in cutting across the line.

Plaintiffs answered the appeal seeking an increase in the amount awarded on the premise that Broom was acting in bad faith when he cut and removed the plaintiffs’ timber, in which case the measure of damages is the manufactured price of the lumber, less the cost of manufacturing it (about $1,700 herein), rather than merely the stumpage value awarded to a trespasser in good faith.

Most cogent argument is offered in support of this higher award, based on the un-contradicted fact that shortly before Broom was found removing plaintiffs’ timber, he had attempted to purchase same; upon Broom’s failure to produce the witnesses from whom he had allegedly purchased timber in the immediate neighborhood; and upon the uncontradicted testimony that the line to the Theisen-Peoples tract was clearly marked by tree blazing.

We feel the case presents a very close question indeed as to whether Broom was acting in good or in bad faith. However, in view of Peoples’ testimony that the landowner to the north of him had earlier informed him that Broom had purchased the timber on a tract immediately north of Peoples-Theisen property; in view of Peo-pies’ testimony that Broom was cutting timber within Peoples’ property but also outside of a (freshly cut) line incorrectly marking the boundary line of Peoples’ tract; and in view of the uncontradicted testimony by Broom that this incorrect line had been marked and shown to Broom by Broom’s vendor as the boundary line of the tract; we are not prepared to say that the judgment below is manifestly erroneous in holding that plaintiffs failed to prove by a preponderance of the evidence, not only that Broom cut the timber and removed the timber in question, but that he did so in bad faith.

For the above and foregoing reasons, the judgment of the District Court herein is affirmed. Costs to be paid by defendant-appellant.

Affirmed.


author: ELLIS, Judge. TATE, Judge

text:
    Anthony CARDINAL, Individually and for the Use and Benefit of Louisville Fire and Marine Insurance Company, v. KRAFT FOODS COMPANY et al.
    No. 4151.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.

      Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellant.
    Cangelosi & Lane, Baton Rouge, for appellee.
   ELLIS, Judge.

This is a suit for damages resulting from an accident which occurred January 31, 1950 on the Plaquemine-Port Allen Highway at approximately 5:55 p. m. Plaintiff is suing for the amount of $50 which was deductible under the terms of his policy and also on behalf of his insurer for $484.22 representing the amount it paid for damages to plaintiff’s automobile.

There is no dispute as to the amount of damages and the sole question in the lower, as well as this, Court is one of liability. Judgment was rendered in the Lower Court in favor of the plaintiff and the defendant has appealed.

On the date of the accident approximately one mile south of Port Allen the highway department, for the purpose of repairing same, had dug out the concrete in the south bound traffic lane for a distance of approximately fifteen feet, more or less. A barricade had been placed in each end of the hole and also farther north and south on each side of the hole an estimated distance, according to the plaintiff, of about 50 feet. The highway department had also placed a warning sign for traffic approaching from the north and south an approximate distance of 200 feet. The effect of these barricades was, of course, to make a one way lane of travel out of the highway opposite the barricades.

Plaintiff was traveling south and the defendant north, and the collision occurred between plaintiff’s car and the defendant’s truck at approximately the center of the excavation.

Plaintiff relies mainly upon the case of Kruta v. Gibbon, La.App., 21 So.2d 744, 745, in which the court stated:

“It is an elemental rule of the road that a motorist driving at a reasonable rate of speed who first enters upon a one-way bridge or roadway, enjoys a right of preemption over other motorists desiring at the time to use the bridge or roadway. It follows, as a corrollary, that if the right of preemption is interfered with by another in such manner as to cause damage to the preemptor, the offending one may be held responsible therefor.”

The defendant in his brief agrees that the above stated rule of law is applicable to the present case for he contends that the driver of the defendant’s truck reached this one way lane of travel before the plaintiff and, therefore, he had preempted same. Defendant also plead contributory negligence. The defendant, after arguing that its truck had preempted the one way traffic lane, presents the following:

“We have been able to find one case which is remarkably similar to the instant case. The case to which we refer is Taormina v. Reid, La.App.Orleans 1954, 71 So.2d 351. In the Taormina case the plaintiff was riding as a passenger in the automobile driven by Timphony. The car in which he was riding approached a car which had been going in the opposite direction but which had stopped for repairs. The stopped car was parked on the side of the highway for traffic traveling in the direction opposite to the plaintiff and Timphony with the left side of that vehicle extending over the edge of the paved portion of the road approximately two or three feet. At approximately the same time, the truck of Reid was approaching the stopped car, traveling in the direction opposite to that in which the plaintiff was riding. The stopped car was partially blocking the traffic lane in which the truck was traveling. The Reid truck reached the stationary car just before the Timphony car and since it had been swerved slightly to its left in order that it might pass around the stationary car, its left side was about two or three feet on the left, or wrong, side of the center of the roadway. Just after the Reid truck had passed the stationary car, the collision occurred between the Timphony car and the Reid truck. Taormina sued the drivers of both vehicles involved in the collision. Timphony filed suit for liis injuries and damages against the driver of the Reid truck. The court found both drivers guilty of negligence and stated that it had no 'difficulty’ in reaching that conclusion.”

The question of preemption is a factual one, however, the burden of proof is upon the plaintiff, if he is to recover, to offer convincing testimony to substantiate his claim of preemption. It was plaintiff’s testimony that as he approached the barricade across his lane of travel he saw two cars stopped, evidently awaiting traffic coming north to pass the barricade, so he slowed down and the two cars started around the barricade and he fell in behind the last car a distance of approximately 30 feet; that when he had proceeded a short distance into the barricade (if we accept SO feet as being the distance between the north and south barricades) he had traveled approximately 15 feet when he saw the defendant’s truck approaching at 55 or 60 miles per hour a distance of 200 feet away. He testified the two cars preceding him had already cleared the barricade. The defendant’s truck, according to plaintiff’s testimony, applied its brakes at about 175 feet, and plaintiff went approximately 10 feet further in pulling off of the concrete portion of the highway onto the shoulder. Plaintiff stated that his car stopped at this point which was midway between the barricades and approximately opposite the middle of the excavation and that the defendant’s truck skidded 175 feet, and that due to the fact that the driver of the truck was attempting to steer the truck slightly to the west and the road being slick, the truck came at an angle so that its right rear corner struck his right front fender and raked down the length of his car. Plaintiff also testified that the left front and rear wheel of the truck went down into the excavation and then out again on the north side and came to rest approximately 25 feet from the excavation. It is also plaintiff’s testimony that his car was completely off the paved portion of the highway and there was room for the truck to have passed had it not been going at an excessive speed and gotten out of control on the wet, slippery pavement. Plaintiff testified that he did not see the truck at the time that he first entered the one way portion of the highway but offered as an explanation for his failure the fact that there was a curve four or five hundred feet to the south of the barricaded portion of the highway and that the truck must have been around this curve and hidden from his view. This, of course, was impossible as it would have been necessary for the truck to be traveling at a speed of more than 100 miles per hour to have reached the point of impact midway of this barricaded portion of the highway, whereas the plaintiff, who stated he was traveling 15 or 20 miles per hour when he saw the truck 200 feet away, only went 10 or 12 feet further.

On the day of the accident it had been raining and the pavement was especially slippery in and near the approaches to this barricaded portion of the highway as cars had been pulling off partially on the shoulder to pass the barricade which carried mud onto the paved portion of the highway.

The State Trooper who arrived at the scene after the truck and car had both been moved out of the way of traffic, testified that the point of impact was approximately opposite the middle of the excavation and “on the edge” of the concrete portion of the highway. He also stated that the defendant’s truck had traveled approximately 15 feet after the impact, and an important portion of his testimony insofar as the plaintiff's version is concerned is to the effect that the plaintiff told him that he first noticed the danger of an accident “at 75 feet, approximately.” Plaintiff does not deny having told the officer this but testified that he was excited at the time and thought that his testimony on the trial after he had thought it over was correct to the effect that the truck was 200 feet away instead of 75 feet away when he noticed the danger of a collision. Plaintiff testified that the accident did not happen immediately after he pulled off the pavement or paved portion of the highway (there is a serious dispute as to whether he was off the highway) but that it must have happened within a minute or seconds, whereas the driver of the defendant truck and his brother, who was a guest passenger, both testified that it happened just as he stopped with his right wheels on the eastern edge of the concrete slab.

According to the defendant’s version of the accident as given by the driver of the truck and the guest passenger, they were coming from the south toward Port Allen, and shortly prior to reaching a warning sign approximately 200 feet south of the southern-most barricade, had been traveling 45 miles an hour, and when they reached the warning sign they had slowed down to 40 miles per hour and continued to coast which brought their speed at the time they entered the barricade to about 35 miles an hour. The driver of defendant’s truck testified that he saw plaintiff’s car approaching the barricade on the north and thought that plaintiff would stop at the barricade and allow him to come on through. The driver also testified in effect that he thought he had the right of way as it was the plaintiff’s lane of travel across which the barricade was located. He therefore continued and just after he had .entered the barricade on the south the plaintiff pulled around the barricade on the north, and realizing the danger of the collision, he applied his brakes but that due to the wet and slippery condition of the highway the truck merely skidded, and it is his testi-timony that the collision took place on the eastern edge of the concrete slab about midway of the excavation; that the point of contact was the rear right corner of his truck with the side of the plaintiff’s car, and that his truck went down into the excavation and stopped with the left back wheel still in the excavation. Defendant also testified that had the highway been dry he was of the opinion that his truck would have been stoppd by the brakes prior to the collision.

The evidence is most conflicting and neither the plaintiff’s nor defendant’s evidence in its entirety can be accepted as to material points as logically true. For example, plaintiff testified that the defendant’s truck was 200 feet away when he realized the danger of a collision and he was already within ten feet of the center of the barricade and only went this small distance while the truck skidded 175 feet, which is illogical and practically impossible. Neither vehicle was traveling at an excessive rate of speed just prior to or upon entry into the barricaded portion of the highway. Furthermore, the 200 foot version given by the plaintiff is flatly contrary to what he told the State Trooper whose testimony is not even mentioned in the reasons for judgment of the lower court, and there is nothing in the record to lead this court to disbelieve the testimony of the Trooper as to what the plaintiff told him. In fact, the plaintiff himself practically admits having told the Trooper that the distance between the two vehicles at the time he noticed the danger of a collision was approximately 75 feet. It is not shown by the record that he told the Trooper where he was when he noticed the truck at a distance of 75 feet.

Plaintiff admits that he did not see the truck approaching this barricade until, as he says, it was within 200 feet of him. There was nothing to obscure his vision and he should have seen the truck before he ever entered the barricade. It is more than likely, considering all the facts in the case, that had he seen the truck just prior to entering the barricaded portion of the highway that he would and should not have done so for he would have realized that the truck was about to enter the barricade. Under these circumstances plaintiff did not preempt the one way lane.

The two witnesses for the defendant who were present at the time of the accident testified that the truck arrived at the southern-most barricade just prior to the time the plaintiff entered the northern barricaded portion of the highway. However, we are inclined to believe plaintiff may have arrived at the barricade a fraction of time ahead of the truck of the defendant. From all the testimony the plaintiff is guilty of contributory negligence in failing to keep a proper lookout, for he most assuredly would have seen the defendant’s truck approaching in such close proximity to the barricaded portion of the highway that he would have realized the danger of the collision which subsequently occurred.

The plaintiff in the alternative pleads the doctrine of last clear chance, and depends upon his testimony to the .effect that his car was completely off the pavement. There is a most serious conflict of testimony on this point. It is the testimony of all the witnesses other than plaintiff himself, which included the State Trooper, that the point of impact was on the eastern edge of the concrete slab. Plaintiff testified that the Greyhound Bus passed through after the collision. It is shown by this record that a deputy or some police officer first came to the scene of the wreck, although plaintiff did not offer this witness. There is testimony that the deputy sheriff had the truck and car moved so that traffic could pass by. Plaintiff has failed to substantiate facts necessary to entitle him to recover under the doctrine of last clear chance. Furthermore, if we are to accept the fact that the car was entirely off the paved portion of the highway it would raise a serious question under the emergency doctrine. We do not think it is necessary to consider this question, as the facts do not substantiate plaintiff’s contention that the truck could have safely passed between the parked car and the excavation.

Plaintiff contends that he followed two cars into the barricade which if correct gave him the right to proceed. The defendant’s testimony is contrary and there is no other evidence that would sway the scales in favor of either as to this fact. However, from the distances given by plaintiff, one of the cars would have been approximately five feet within the barricade when plaintiff was twelve or fifteen feet therein, and the truck at this time had entered or was about to enter the barricade. If the two cars were preceding plaintiff as he stated, the truck driver would have seen them. Further, there would have been no reason for plaintiff to stop as he would have been within thirty feet of the end of the barricade as the car in front of him left it. There is nothing to show that the truck driver and his guest brother were not in complete control of their faculties and it is difficult to believe the truck would have been driven into the barricade under such existing conditions. At best the proof is not sufficient as to the two preceding cars.

For the above reasons the judgment of the district court is reversed and the plaintiff’s suit dismissed at his cost.

TATE, Judge

(dissenting).

I respectfully dissent from this decision to reverse the judgment of the District Court on a factual matter.

I have no quarrel with the majority opinion if the facts found by the majority are correct. Nor have I any quarrel with its opinion if an appellate court is entitled to disregard the District Court’s evaluation of the credibility of the witnesses and make factual findings independent of such evaluation. The majority’s findings are based on the testimony of defendant’s two witnesses, driver and passenger respectively in defendant’s truck.

But here the District Court explicitly accepted as true the contrary testimony of plaintiff Cardinal. He testified that he followed by about 30 feet two other cars into the single open lane. If this is true, this traffic had pre-empted the single open lane of highway, as against defendant’s truck approaching from the opposite direction, see authorities cited in majority opinion. The sole proximate cause of this accident would be, as the District Court found, the negligence of defendant’s driver in entering the narrow one-way lane already pre-empted by plaintiff and said other traffic.

I cannot see how we can disregard this testimony accepted as true by the trier of fact. Whether these two cars in fact preceded plaintiff into the traffic lane, preempting same for themselves and plaintiff, cannot be established by physical evidence; only by the testimony of these witnesses to the accident. It seems to me we are unable from the cold record to evaluate as well as the District Court who saw them testify which of these witnesses are more accurate.

If it is argued that (due to delays in transcribing testimony and filing briefs, etc.) the District Court did not render judgment until about three years after the trial, which lessens the weight of its evaluation of these witnesses — this appellate court never saw them. Surely the impressions of the accuracy of witnesses gained from observing them over a day of trial, although three years old, are superior to any deductions made from a typewritten record, without benefit of any observation whatsoever of the demeanor, attitude, apparent intelligence, positiveness of tone as compared to indecisiveness, etc., of these witnesses.

Being firmly of the opinion that the District Court’s resolution of factual matters herein is not manifestly erroneous, it becomes my regretful duty to record my disagreement with the decision of my esteemed brethren.


author: ELLIS, Judge.

text:
    WASHINGTON FIRE AND MARINE INSURANCE CO. v. TRAVELERS INDEMNITY CO. et al.
    No. 4161.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.
    Taylor, Porter, Brooks, Fuller & Phillips,Baton Rouge, for appellant.
    Iddo Pittman, Jr., Hammond, for appel-lees. .
   ELLIS, Judge.

This is a suit for damages which arose, out of an automobile accident, which occurred at about 9:00 o’clock P.M. November 13, 1953, on Louisiana Highway 46 about. 6 miles south of Albany, La. One of the plaintiffs, Cutrer, was driving his automobile when it collided with the rear of a vehicle owned by Adrian M. Beckham, the defendant’s insured. One of the plaintiffs is the insurer of the Cutrer vehicle and he joined the suit as a party plaintiff, seeking the deductible portion of his policy. His insurer claims the amount paid by it, $744.-06, to which amount it was subrogated.

The defendant was the insurer of the Beckham car, and judgment below was rendered in favor of the plaintiff as prayed for. The defendant has appealed.

At the site of this accident the highway is straight and the night upon which it occurred was clear, but dark. The road was a two-lane 18 foot wide black topped highway, with shoulders of approximately 2 feet on each side.

Both of the vehicles involved were headed in a northerly direction and it is admitted the Beckham vehicle was parked on the highway and that the Cutrer vehicle struck it in the rear. Cutrer stated he was proceeding along the highway at about 50 or 60 miles per hour when he approached two cars coming from the opposite direction; that he dimmed his lights and the first approaching car dimmed its lights, but that the second car did not and just as he was passing this last car, the lights of which had momentarily impaired his vision, he suddenly realized he was within a very few feet of a parked car and that he could not help striking it; that it had no lights or warning signals of any kind upon it. He further testified that after the Beckham vehicle was struck it rolled a short distance down the highway, its lights suddenly were turned on and it pulled to the right and into a ditch along the highway.

Beckham testified that he had stopped his car because he thought one of his rear tires was going flat, got out of the vehicle and went towards its rear to see what the trouble was; that he did not notice any of the approaching vehicles, from either direction, and that all of his lights were operating properly and were turned on all of the time.

The plaintiffs alleged that Beckham was guilty of gross negligence, which was the proximate cause of the accident, in parking his car on the highway at night without any lights or warning signals; that he was not keeping a proper lookout for other traffic and was ’negligent in failing to warn any approaching traffic in time to avoid the accident and, further, that there was no sudden emergency necessitating his parking where he did as he could have parked on the shoulder in several places available within a few feet of the site of the accident. On the other hand the defendant argued that Cutrer was negligent by operating his car in a reckless and unlawful manner without due regard to other traffic; that he was not keeping a proper lookout for other traffic; that he did not have his car under proper control to avoid the accident and that he was driving at an excessive rate of speed, all of which was the proximate cause of the accident. In the alternative, contributory negligence was plead. The quantum of damages is not in dispute.

LSA-Revised Statutes 32:241 provides:

“No person shall park any vehicle, attended or unattended, upon the main traveled portion of any highway, outside of a business or residence district, when it is practicable to park it off the main traveled portion of the highway. In no event shall any person park a vehicle, attended or unattended, upon a highway unless an unobstructed width of not less than fifteen feet upon the main traveled portion of the highway opposite such parked vehicle is left free for passage of other vehicles, nor unless a clear view of such vehicle exists from a distance of at least two hundred feet in each direction upon the highway. Even then, if such vehicle is left parked, attended or unattended, one half hour after sunset or one half hour before sunrise, the person parking it shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence.
“Whenever any police or traffic officer finds a vehicle parked upon a highway in violation of this Section, he is authorized to move it, have it moved, or to require the person in charge of such vehicle to move it to a position permitted under this Section.
“B. The provisions of this rule shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic. * * * ”

The trial court stated in his written reasons for judgment that he was impressed with the straightforward and frank manner of plaintiff’s testimony to the effect that he did not see Beckham until after the car was struck and finally stopped rolling, and that its lights never were turned on until after it was struck. Beckham contradicts this, stating he was standing near the right rear wheel of his car when it was struck, but that he did not see the lights of the Cutrer car, nor did he see any approaching traffic from the other direction. The lower court states he cannot see how this testimony could be true for if Beckham was standing where he said he was he could not have helped but see the lights of the approaching Cutrer vehicle, and he certainly would have seen the lights of the two cars approaching from the opposite direction; also there was nothing to prevent Cutrer from seeing him. This trial Judge expressed his satisfaction, from all of the evidence, that Beck-ham was in his car, and that after it was struck and started rolling he then switched on the lights.

There seems to be no doubt of the negligence of Beckham and the only remaining question is whether Cutrer was guilty of contributory negligence.

While our Courts have held for many years that a driver of a vehicle approaching from the rear must keep his car under such control as to stop for any emergency which arises within the range of his lights, see Odom v. Long, La.App., 26 So.2d 709; Locke v. Shreveport Laundries, 18 La.App. 169, 137 So. 645, and Mickens v. F. Strauss & Sons, La.App., 28 So.2d 84, yet our courts have modified this principle in recent decisions, holding there are certain exceptional circumstances which will take the case out of the application of this doctrine.

In the case of Buford v. Combs, La.App., 50 So.2d 469, 476, we used the following language:

“ ‘The general rule is well established in this State to the effect that it is the duty of the operator of an automobile, while driving at night, to operate said automobile in such a manner that it can be stopped within the range of vision illuminated by the headlights of the car. It is also well settled that there may be exceptional circumstances which will serve to exculpate a driver who, because of those exceptional circumstances and in spite of due diligence, fails to discover some obstruction or some other vehicle on the road ahead of him, and that no fixed rule may be laid down by which it may be determined just what will constitute such exceptional circumstances. Woodall v. Southern Scrap Material Co., La.App., 40 So.2d 495; Hemel v. United States Fidelity & Guaranty Co., La.App., 31 So.2d 38; Gaiennie v. Cooperative Produce Co., Inc., 196 La. 417, 199 So. 377; Louisiana Power & Light Co. v. Saia, 188 La. 358, 177 So. 238; Dodge v. Bituminous Casualty Corporation, 214 La. 1031, 39 So.2d 720; Rea v. Dow Motor Co., La.App., 36 So.2d 750.
“ ‘The facts in the cases of Gaiennie v. Cooperative Produce Co. and Dodge v. Bituminous Casualty Corporation, supra, both of which were decided by the Supreme Court, are similar to the facts in the case now being considered. In the Gaiennie case (196 La. 417, 199 So. 378) the vision of the plaintiff was “momentarily and intermittently impaired” by the lights of approaching cars, and in meeting these cars he dimmed or deflected his lights so that the tilted beam of his headlights projected under the body of the parked track, making it more difficult for him to see the truck. The body of the truck was suspended some three or four feet above the ground and extended back about four feet over the rear wheels. The Court held in that case that because of the exceptional circumstances, the general rule did not apply and that plaintiff was not contributorily negligent in running into the rear of the parked truck.
“ ‘In the Dodge case plaintiff’s vision was impaired by approaching vehicles, but there is nothing in the opinion of the Court to indicate that plaintiff dimmed or deflected his headlights. And there is no mention in the opinion as to the distance the body of the truck was suspended above the ground, the distance it extended behind the rear wheels, or the color or design of the body of the parked vehicle. The evidence simply showed that plaintiff’s visibility was affected by the lights of oncoming traffic, and because his visibility was so affected, he did not see the unlighted truck parked at an angle on the highway until he was right on it. Under those circumstances the Supreme Court held that plaintiff was not contributorily negligent in colliding with the parked vehicle.’ ”

In the Combs case we concluded that the driver of the car approaching from the rear could not, because of the exceptional circumstances existing, be charged with contributory negligence.

Our Appellate Courts are very hesitant to disturb findings of fact of the trial court unless these findings be manifestly erroneous and our Supreme Court has expressed this principle many times, expressing it succinctly in Barlotta v. Walker, 223 La. 157, 65 So.2d 122.

The judgment of the District Court is affirmed.


text:
    FINANCE SECURITY COMPANY v. Harlan FORD.
    No. 4180.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.
    Writ of Certiorari Denied June 11, 1956.

      Talley, Anthony & Johnson, Bogalusa, for appellant.
    France W. Watts, Jr., Franklinton, for appellee.
   ELLIS, Judge.

The Finance Security Company, having effected the foreclosure of a chattel mortgage executed by Harlan E. Ford on his automobile, but having failed to realize the full amount -secured by said chattel mortgage, obtained a deficiency judgment by default for the balance. This judgment was obtained against Harlan E. Ford on Oct. 9, 1953.

A writ of fieri facias was issued on August 10, 1954, and the bank account of Piarían E. Ford in the Washington Bank & Trust Company in Angie, La., was seized to satisfy the deficiency judgment.

Harlan E. Ford then filed the instant suit to annul the deficiency judgment and recall the writ of fieri facias issued thereunder. Judgment was rendered as prayed for by the plaintiff and the Finance Security Company has appealed from this judgment, urging that the Sheriff’s Sale in the original foreclosure proceeding was with appraisal and, therefore, under LSA-R.S. 13:4106 a deficiency judgment could validly be rendered.

The facts upon which the original judgment rests are as follows:

The record reveals that the plaintiff herein was served as defendant in the foreclosure proceedings with a notice of seizure on February 26, 1953. This notice gave March 28, 1953 as the date upon which the Sheriff’s Sale of the mortgaged property was to be had and also contained the standard notification to Harlan E. Ford to appoint an appraiser if he saw fit. Instead of having the sale on the date set out in the notice of seizure it was postponed to May 2, 1953. The testimony regarding notice to the plaintiff of this change in the date of sale is in conflict. The sheriff testified that he gave his deputy a notice of the postponement to serve on Harlan Ford. Ford testified that he did not receive this notice until after the property was sold. After the required advertisement and ap-praisement by the appraisers appointed by the sheriff the plaintiff’s automobile was sold to the highest bidder, defendant herein.

Under the jurisprudence it is immaterial whether or not Ford was notified of the postponement of the sale and whether or not he was again requested to appoint an appraiser. In the case of Austin v. Currie, 16 La.App. 375, 134 So. 723, 724, these points were considered and passed upon as follows:

* * * it remains, therefore, to determine whether the notice of the sheriff to the defendant in execution to appoint an appraiser was defective or lacking in any respect. This is the only ground which counsel for plaintiff and appellee urges in support of the judgment appealed from. When the advertisement of the sale was first inserted in the newspaper on May 27, 1930, and the date of the sale was published for July 5, 1930, a notice to appoint an appraiser was served on the defendant in execution directing him to appear in the sheriff’s office on July 5, 1930, at 10 o’clock a. m. for the purpose of appointing an appraiser for the property under seizure. When,the sheriff discovered that the advertisement could not be started until after three days had elapsed after the service of the notice of seizure, he canceled the advertisement and began it over on June 5, 1930, and a new date of sale was fixed for July 12, 1930. This change of the date of the sale did not necessitate the issuance of a new notice of seizure, nor did it necessitate the issuance and service of another notice to appoint an appraiser for the property under seizure. The attorney for the plaintiff and appellee appears to be under the impression that the •appraisement of the property must be made on the day of the sale. That is not the law, though it may be the local custom in some places. Article 671 of the Code of Practice, the law governing this case, provides:
“ ‘Ten days before proceeding to the sale of the property seized, if it consists of immovables, the sheriff shall summon the party whose effects are seized, by a written notice, delivered to him in person, or left at his usual place of residence, to appear on the day, place and hour which he shall mention to him, for the purpose of naming an appraiser of the property to be thus sold/
“The notice to appoint an appraiser, which is admitted to have been served on the plaintiff and appellee, was served more than ten days before the sale, and it named the day, place, and hour. If the plaintiff did not appear at that place, day, and hour, then, under the provision of article 672 of the Code of Practice, the sheriff could proceed with the making of the appraisement. Even though the date of the sale had been advanced one week beyond the date first fixed and advertised, the plaintiff and appellee was still bound by the notice to appear on July 5, 1930, to appoint an appraiser for the property. The judgment appealed from is wrong and will have to be reversed.” See also Thibodeaux v. Bergeron, La.App., 166 So. 898.

The Currie case, supra, is directly in point, and, although Article 671 has been amended so that notice to appoint appraisers must be served at least three days instead of ten days prior to the sale, the law today is substantially the same as it was when the above interpretation was made. This interpretation of Articles 671 and 672 of the Code of Practice seems eminently just and equitable.

In the present case the plaintiff allowed his car to be seized and sold and a deficiency judgment to be obtained without appel-lee making any effort to oppose with suit or appoint appraisers. Then, almost a year later, when his funds are seized which were on deposit in the bank, he hastened into court to recover his losses.

For the reasons assigned, the judgment of the District Court annulling the deficiency judgment is reversed and the deficiency judgment is reinstated, costs to be paid by plaintiff.