text:
    Lancaster PARKER v. ARMOUR & COMPANY, Limited.
    No. 20691.
    Court of Appeal of Louisiana. Orleans.
    April 2, 1956.
    Rehearing Denied April 23, 1956.
    Writ of Certiorari Denied June 11, 1956.
    Arnold C. Jacobs, New Orleans, for plaintiff appellant.
    Jacob H. Morrison, New Orleans, for defendant appellee.
   REGAN, Judge.

The plaintiff, Lancaster Parker, a common laborer, 62 years of age, instituted this suit against the defendant, Armour & Company, Ltd., his employer, endeavoring to recover workmen’s compensation at the rate of $29.60 per week for a period of 400 weeks, subject to a credit of 36 weeks compensation previously paid, for total and permanent disability, resulting from a broken wrist incurred on March 11, 1953, when a heavy “pan” of meat which he was assisting in unloading from a boxcar accidentally “jammed” his wrist against the side thereof causing the above injury.

The defendant answered and admitted the occurrence of the accident and the resulting injuries to plaintiff’s wrist, but asserted that the plaintiff had fully recovered therefrom as of December 15, 1953, the date of his discharge by defendant’s physician.

From a judgment awarding plaintiff compensation at the rate of $8.89 per week for a period not to exceed 200 weeks, subject to a credit of $1,050, plus $150 for expert’s fees, plaintiff has prosecuted this appeal. Defendant has answered the appeal asserting that plaintiff has already received all compensable disability benefits to which he is legally entitled and, therefore, his suit should be dismissed.

The record reveals that on March 11, 1953, plaintiff was engaged in removing “pans” of meat from a-boxcar. The “pan” was a large one, 7 feet by 4 feet, mounted on wheels, 4 feet in height and contained approximately 1,000 pounds of meat. In endeavoring to roll the “pan” from the boxcar, its wheels somehow became obstructed and when plaintiff and a fellow employee forcefully endeavored to free the “pan” it loosened unexpectedly and jammed plaintiff’s wrist against the side of the boxcar causing it to fracture.

Plaintiff was then instructed to visit -the office of defendant’s physician, Dr. Robert A. Robinson, a general surgeon, who, after x-raying the injury, related “I reduced the fracture, and placed it in splints, plaster of Paris, mechanical devices used to immobilize the fractured site, which included the arm, elbow, wrist and hand.” He treated plaintiff again on March 13, 16, and 27th, and, on the latter date, which was sixteen days after the casting of the wrist, it was removed, the wrist was bandaged and a sling provided for the arm “for the purpose of beginning physiotherap/ty measures.” On March 30, 1953, the plaintiff returned to the physician’s office with his left wrist and forearm in an improvised splint wrap-, ped in bandages and complained of extreme pain in the hand and wrist. Dr. Robinson became, as he said, “suspicious of this hand and sent plaintiff to the Baptist Hospital for an x-ray on the 31st day of March”, which, according to Dr. Robinson, disclosed a secondary fracture in the same location. Plaintiff admits he improvised a splint to relieve the pain, but denies that he ever re-injured his wrist at any time or in any manner whatsoever, particularly between the time the cast was removed on March 27th, and the day of his visit to the Doctor, March 30, 1953. Dr. Robinson explained “that since the plaintiff refused reduction of this particular fracture * * * I, therefore, immobilized this fracture again for a period of two weeks, then removed the splints and advised him to go for physiotherapfiy measures again as a compromise for his refusal of any manipulative reduction of this particular fracture.” Incidentally, we have been unable to discover any evidence in the record to show that the plaintiff was ever cognizant that such a decision, relative to a “reduction” of the secondary fracture had even been posed for his acceptance or rejection by Dr. Robinson. Dr. Robinson continued to see the plaintiff six or seven times a month and, in July of 1953, he instructed him to return to his former employment and “attempt to use that hand because fractures of that nature, left untreated by active mobilization, will acquire a stiffness, and the earlier you rehabilitate the involved part, the better the prognosis is for ultimate recovery.” Although plaintiff was in pain he acquiesced therein and returned to the same occupation on July 23, 1953, where he endeavored to do lighter work until August 7, 1953, but he related “this hand could not do this work * * * and I stopped work” after informing Minter H. Baumy, defendant’s superintendent, of the pain, who then referred him to Dr. Robinson. He continued to visit the offices of Dr. Robinson and, on December 16, 1953, he was discharged by this physician with what he termed an “ultimate” disability of 5 to 8 per cent, at which time compensation likewise ceased.

Dr. Robinson, itpon being interrogated “Would you have discharged him ’if you felt that-he could not do the normal duties of a common laborer without pain”?, responded “No, I expected him to have pain for two or three years after the treatment of this type of fracture, when under stress and strain, but inactivated, sitting around in a sedentary way, I don’t think he would have pain.” He was then asked a more pertinent question:

“Q. How about doing ordinary,' normal labor jobs? Do you think pain would discommode him any? A. It would possibly discommode him in the first year or year and a half, but after that, we have patients who have marked physical defects that are doing heavy manual labor without pain.”

The Court at this point interposed itself and interrogated Dr. Robinson:

“Q. * * * while he was working, he would be in pain? A. Oh, definitely, yes, sir.”

.-The purpose of this painful labor, according to Dr. Robinson,-..as we have related elsewhere hereinabove,- was that laboring in pain would provide a sort of therapy which would .facilitate the rehabilitation of the plaintiff’s arm and wrist.

Dr. William S. Neal.-also appeared on behalf of defendant, as an expert in Radiology, and simply discussed the existing difference between the x-rays of March 11 and 31, 1953.

Dr. George Battalora appeared on behalf of plaintiff as an expert in orthopedics and related that he could exert a pressure or “grip” of 100 pounds with the left arm or hand as compared with a pressure or “grip” of 240 pounds with the right or uninjured hand — a diminution in strength of approximately sixty percent. He stated that the x-rays also revealed considerable bone damage to the wrist which he estimated to be thirty percent permanent partial, which was predicated upon plaintiff’s ability to use the arm. He further asserted that if the plaintiff attempted to do work involving the use of the injured wrist there would be pain and continued use thereof would involve and aggravate both the pain and the condition of the wrist.

Dr. Irwin Cahen also appeared on behalf of plaintiff as an expert in orthopedics and related that he had developed traumatic arthritis and had incurred a loss of the use of the injured arm of twenty to twenty-five per cent permanent, based upon the bone changes, separation of the joint, and arthritic changes within the small bones. He believed that the condition of the wrist would prevent plaintiff from doing heavy work, but that he could use it when engaged in ordinary activity. He also expressed the opinion that if he engaged in heavy or laborious work it would cause pain to the wrist after the use thereof and that it would “also show swelling of the wrist joint * * * he would probably show some muscle spasm as nature’s attempt to restrict the rotation at the wrist, because that is the separation of this joint.” Upon being informed that part of the plaintiff’s duties were to push a hand truck weighing, perhaps, one or two thousand pounds, assisted by another employee, he finally expressed the opinion that if the plaintiff did- this • he wo'uld probably have pain and a swelling of the wrist.

The testimony of Drs. Battalora and Cahen, whose recall as expert witnesses was necessitated in order to rebut the unexpected defense of a secondary fracture of the wrist, not previously pleaded, is also quite pertinent.

Dr. Battalora testified that an immobilization period of sixteen days would not insure a very strong union (plaintiff’s cast was removed sixteen days after the fracture) and that vertically any force applied to the wrist at that stage of the injury would have destroyed the reduction. Upon being interrogated “ * * * can you tell from an inspection of those -plates (x-rays taken at the time of the primary and the alleged secondary fracture) whether there is any additional damage shown to the wrist as compared with the initial plate?” responded “No. This is the same injury, although the direction of the displacement now is anteriorly in the distal fragments. In the original plates the displacement .was posteriorly; but the fracture lines are identically the same, going through the same part of the bones.” Dr. Battalora also asserted that proper treatment of this fracture did not include removal of the cast within sixteen days, but related that the usual period of immobilization was about six weeks and, therefore, the union was not secure enough to withstand, any amount of strain.

Dr. Cahen, in rebuttal, corroborated all of the essential aspects of' Dr. Battalora’s testimony and, in reply to a question as to the amount of trauma necessary to cause loss of reduction in a fracture after sixteen days of immobilization, responded that “the loss of reduction could come from minor trauma or from muscular contraction alone” and, in explaining this, asserted

“In fractures of bone there is a certain degree of irritation that occurs at the fracture line through motion. Nature, in an effort to splint that, must produce muscle spasms or con-tractility of the muscle. Such spasms, if uncontrolled in relation to immobilization of bone fragments, will cause displacement. In cases of this type it has been my experience that, unless the bone is fixed, that the muscular contraction which occurs during the phase of healing can displace bone.”

Dr. Cahen was also of the opinion that the proper period for immobilizing a fracture of this type in a cast, considering the plaintiff’s age of approximately sixty years, should be a minimum of 6 weeks to the maximum of 12 weeks.

In addition to the foregoing expert testimony there appears in the record the lay testimony of plaintiff’s wife, Georgiana Parker, his son, August Parker, and Tommy Magee, his son-in-law, who, in substance, testified that plaintiff could use the injured arm only as an adjunct to the uninjured arm.

The initial question posed for our consideration is one of fact and that is did plaintiff deliberately refuse to follow the treatment prescribed by Dr. Robinson and permit him to “reduce” or “reset” the secondary fracture irrespective of whose fault caused it to occur?

The burden of proving this assertion was, of necessity, to be borne by defendant and our examination of the record fails to disclose that this defense was ever pleaded or proven by the defendant. In fact, we have failed, as observed hereinabove, to discover any evidence indicating that plaintiff was even cognizant of having been offered a choice or the opportunity of accepting or rejecting Dr. Robinson’s advice. Therefore, we find no merit in this contention, however, the record abounds with evidence to the effect that good orthopedic practice was violated by defendant’s physician in removing the cast too soon which probably accounted for the displacement of the bone.

The fundamental question posed for our consideration is likewise one of fact and that is whether the plaintiff has incurred by virtue of his fractured wrist, a permanent partial or permanent, total disability?

It is our opinion that the injury incurred by the plaintiff has resulted in permanent, total disability.

In several relatively recent opinions of this Court we have had occasion to remark that whenever the experts are in substantial disagreement they are of little aid to the Court and, therefore, we must decide the case on the record as a whole. However, it is rare indeed where the record reveals agreement between the medical experts appearing on behalf of plaintiff and defendant as is evidenced by the following testimony. Dr. Robinson, defendant’s physician, related that he expected the plaintiff “to have pain for two or three years after the treatment of this type of fracture” and, in the performance of “ordinary, normal labor” pain “would possibly discommode him in the first year or year and a half * * * ” and, in the final analysis, he asserted that the plaintiff would definitely experience pain in the performance of his laborious duties for a period of from one and a half to three years.

Dr. Battalora, plaintiff’s physician, was of the opinion that if the plaintiff attempted work involving the use of the injured wrist, there would be pain and continued use thereof would both involve and aggravate the pain and the condition of the wrist.

Dr. Cahen, also plaintiff’s physician, was of the opinion that if the plaintiff engaged in heavy or laborious work it would cause pain to the wrist after the use thereof and that swelling of the wrist joint would occur together with muscle spasm as nature’s effort to restrict the rotation of the wrist.

We do not intend to convey the impression that some conflict did not exist in the medical testimony with respect to the percentage loss of plaintiff’s use of the injured member for this is to be expected because of the very nature of medicine as an inexact science, but the answers given by the medical experts in response to pertinent questions directly bearing upon the issue “of pain” were in accord.

The record discloses that prior to his injury plaintiff possessed a good and enthusiastic work record, however, since the injury to his wrist, he has only been able to earn, together with the assistance of his wife, about $24 or $25 per week as a “mar-chand” or vendor of “fried pies.”

In the case of Brannon v. Zurich General Accident & L. Ins. Co., 1953, 224 La. 161, 69 So.2d 1, 3, the Supreme Court, in awarding total permanent disability to an injured workman, stated “The law does not expect, and it does not contemplate, that a worker, in order to make a living, must work in pain * *

In the case referred to hereinabove, while it is true that the injured employee was one designated as a “skilled laborer”, we think that the rationale expressed in the rule enunciated therein, applies with equal facility to a “common laborer.” In this connection in Scott v. Fulton Bag & Cotton Mills, La.App.1953, 65 So.2d 397, 401, we expressed our opinion thereof as follows:

“ * * * even in the case of a common laborer as distinguished from a skilled laborer, whenever the injuries make it impossible for the laborer to perform a substantial number of the functions which were normally required, the injuries have produced inability to do work which was formerly done — in other words, to do ‘work of any reasonable character,’ and that, as a legal result, the employee is entitled to compensation for permanent total disability.
“It is recognized, in the case of the skilled laborer, that since a period of training and learning have developed a special ability to do a particular kind of work, or to operate a particular kind of machine, if the injury which has been sustained makes it impossible for the employee to continue doing that particular kind of work, or some work very similar to it, or to operate some particular kind of machine or tool, or some machine or tool closely resembling it, the employee can no longer do work of any reasonable character.
“In the case of the common laborer, there are so many different kinds of work which may be done that ordinarily total disability does not result, if the injury causes disability to do any particular kind of work if the employee, in spite of the injury, may still successfully do what is required in a large number of other occupations requiring only common labor. But where the injury is such that the employee is prevented from undertaking a substantial number of the different operations ordinarily open to a common laborer, we think that he is totally disabled and as such is totally disabled just as the skilled laborer who is prevented from undertaking any work substantially similar to that in which he was-formerly engaged.”

For the reasons assigned the judgment appealed from is amended and it is now ordered that there be judgment herein in favor of the plaintiff awarding him compensation at the rate of $29.60 per week for a period not exceeding 400 weeks, subject to a credit of 36 weeks for compensation already paid, and, as thus amended, it is affirmed.

Amended and affirmed.


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    Roy E. GREEN v. Mrs. Mary Messina BILLA, widow of Antonio Billa et al.
    No. 20591.
    Court of Appeal of Louisiana. Orleans.
    April 2, 1956.
    Rehearing Denied April 23, 1956.
    Nestor L. Currault, Jr., and Nathan Greenberg, Gretna, for plaintiff-appellant.
    Louis H. Marrero, III, Marrero, for de~ fendants-appellees.
   JANVIER, Judge.

Plaintiff, Roy Green, a mail carrier working out of the postoffice in Gretna, Louisiana, claims that he sustained physical injuries on April 14, 1947, as a result of a fall to the ground when, after delivering mail on the front porch of a residence in Gretna, the front steps leading to the ground gave way as he placed one of his feet on the top tread. He makes the owners of the property defendants and he prays for solidary judgment against all of them in the sum of $2,931.21.

Although the defendants in effect deny all of the essential allegations of the petitions, they concede that the steps did move slightly as plaintiff placed his foot on the upper tread, but aver that they did not entirely leave their position against the edge of the porch, and they maintain that plaintiff did not fall but merely took an “exaggerated” step or jump from the upper tread to the ground which was about three or four feet below the porch. They contend that he sustained no injuries which were caused by the defective condition of the steps.

The plaintiff was hospitalized shortly after the occurrence and the Administrator of Veterans Affairs, an independent agency of the United States Government having jurisdiction of Veterans Administration Hospitals, intervened and claimed of defendants $225 as the cost of services rendered to the plaintiff as a result of his injuries.

In the Twenty-fourth Judicial District Court for the Parish of Jefferson, there was judgment against plaintiff dismissing his suit, and the matter is now before us on his devolutive appeal.

In their brief in this Court, defendants assert that the appeal should be dismissed “because of the fact that the plaintiff has never perfected his appeal by the filing of the appeal bond * *

Counsel for appellant meet this contention, that the appeal should be dismissed, by presenting a certificate of the Clerk of Court showing that there was filed in the Clerk’s office a cash deposit of $50 in lieu of an appeal bond.

An appellant of whom an appeal bond is required may deposit with the Clerk of Court the amount of the bond as fixed by the Court. See Dart’s New La.Dig., Vol. 2, p. 284.

There is no doubt that plaintiff, having deposited in the mailbox on the porch of the residence in question certain mail, attempted to descend from the porch to the ground and that, as he stepped upon the upper tread of the steps, the steps themselves moved from their fixed position against the edge of the porch. Whether they fell to the ground or merely moved slightly from their position we find it unnecessary to determine, because even if they moved only slightly and, as a result, plaintiff had reason to fear that a fall was imminent and, in order to avoid such fall, jumped to the ground and sustained injury, there would be liability for such injury even if the steps did not fall completely to the ground.

In Klein v. Young, 163 La. 59, 111 So. 495, 497, our Supreme Court disspelled the doubt which, up to that time, seemed to have existed and established the principle that a house-owner is liable for damages caused by its defective condition and that this liability exists in favor of any one who is legally on the premises. The Court said:

“There are several articles in the Civil Code on this subject. Article 670 makes every owner of a building liable in damages to any neighbor or passerby who is injured by the fall of any part of the building, through negligence on the part of the owner to keep his building in repair. Article 2322 makes every owner of a building answerable in damages to any person who is injured— either while rightfully inside or while outside of the building—by an accident resulting either from the owner’s neglect to repair the building or from a vice or defect in its original construction. * * * ”

In Staes v. Terranova, La.App., 4 So.2d 453, 455, wc said:

“ * * * On several occasions, in other cases, it has been contended that the owner of a building is not liable to third persons rightfully on the premises unless the injury had resulted from fault on the part of the owner. But from all of those cases there has resulted a settled rule that because of the effect of Articles 670 and 2322 of our Civil Code, an owner is liable to a third person for the results of accidents caused by defects in the owner’s building, whether those defects were latent or not. In Heath v. Suburban Building & Loan Association [La.App.], 163 So. 546, 551, we quoted from Hanover v. Brady, La.App., 148 So. 267, as follows : ‘ “Although the liability of the house owner to a licensee or passerby is made to depend upon negligence, the mere fact that the building is defective is in itself proof of that negligence, and this; whether the defect is apparent and easily discoverable, or is such as would-not be noticed except upon careful inspection.” ’ ”

Since the building in question was occupied by tenants, it is important to note that in Tesoro v. Abate, La.App., 173 So. 196, 202, we held that in such case even if the owner has no knowledge of the defect, nevertheless there is liability for resulting damage. We said:

“It is true'that the jurisprudence of this state has broadened the language of articles 670 and 2322 of the Code to such an extent that the owner of a building practically insures any third person, rightfully on the premises, against injury caused by the vices or defects of the building due either to construction or failure to make repairs. And this is so even though the property is in possession of a tenant and the owner is not acquainted with the fact that some of the appurtenances of the building are in need of repair. * * x ”

There have since been numerous decisions on the subject and in Hughes v. Abate, La.App., 2 So.2d 68, 70, we said:

“ * * * To state the matter very simply, an owner is liable to any person rightfully on or near the premises if, because of a defect, that person, being himself without fault, is injured. Klein v. Young, 163 La. 59, 111 So. 495; Heath v. Suburban Building & Loan Association, La.App., 163 So. 546; Tesoro v. Abate, La.App., 173 So. 196; Morris v. Hava, La.App., 180 So. 216.”

But the. matter does not end with our conclusion that, as a matter of fact, the defective condition of the steps did cause plaintiff to either fall or jump, nor with our conclusion that, as a matter of law, an owner is liable for such damage as may be caused by such defective condition.

It is apparent that the principle defense relied upon is the contention that plaintiff did not sustain any injury as a result of the defective condition of the steps.

It seems certain that the dismissal of the suit by the District Judge resulted from his conclusion that' the plaintiff did not sustain any injury. Just what was the real cause of plaintiff’s stay .in the hospital we are unable to determine. As we read the report of the hospital, though in answer to a question as- to “objective findings”, the surgeon in charge wrote “tenderness of left leg,” it seems evident that, since there was no apparent bruise or anything of that kind, that finding must have been based on the statement of plaintiff that there was tenderness and not on any objective finding.

Plaintiff, soon after the accident, told several different persons that he had not been hurt and remarked that he couldn’t do the same thing again without injury even if he tried.

The accident occurred on April 14, 1947, and if, on that day, he sustained injury sufficiently serious to require that he be hospitalized for several days, it is quite remarkable that on April 16 he personally made application to the building inspector of the City of Gretna for permission to erect a six-room addition to his residence and stated in the application that he was going to do the work himself.

There is other evidence which tends to throw doubt upon the claim of plaintiff as to his injuries. Among other things, we find that though the accident occurred on April 14, 1947, and though plaintiff was discharged by the hospital on May 20, 1947, as being “physically fit for duty,” more than five years later he returned to the hospital and attempted to use his earlier fall as the reason for this second visit to the hospital five years after the first occurrence.

Were it not for the finding of the District Judge, it might be that the evidence could be construed as showing that plaintiff sustained some slight injury, but since there is evidence which throws doubt on this question and since the District Judge found in favor of the defendants, we are unable to say that that finding was manifestly erroneous.

Consequently, the judgment appealed from is affirmed at the cost of appellant.

Affirmed.


author: -AYRES, Judge.

text:
    J. W. CARSON et al., Plaintiffs-Appellees, v. Mrs. Minnie Lee Doles WARD, Defendant-Appellant.
    No. 8483.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956.
    Morgan, Baker & Skells, Shreveport, for appellant.
    Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for appellees.
   -AYRES, Judge.

Plaintiffs, J. W. Carson ‘and Dan’ P. Logan, instituted this action’ to recover of the defendant $1,086.25, an amount allegedly incurred by them in farming operations during the spring of 1952 on land1 which Carson had leased from the defendant and which sum defendant allegedly agreed to reimburse upon plaintiffs relinquishing their rights under said lease'.

From a judgment, in plaintiffs’ favor as prayed for, defendant appealed.

By an instrument of December .19, 1950, defendant leased to plaintiff Carson a 50-acre tract of land situated in Caddo Parish, Louisiana, for occupancy and use for agricultural and related purposes for a period of four years, beginning January 1, 1951, wherein Carson agreed to operate said farm in an efficient manner and'furnish all equipment and expense necessary to produce crops of cotton, corn and hay, l/5th of which crops was to be paid defendant as rent for said lands. The farm was operated pursuant to said lease and agreement during 1951. During that year, according to Carson, the arrangement appeared to have been profitable to defendant and unprofitable to him. Thereafter, on January 1, 1952, another instrument of lease coveting this land was executed and signed by these parties, whereby the term recited a period of one year and the lessor agreed to pay l/5th of the cost of all fertilizer and poison used in making the crops to be grown thereon, and in payment of the rent on said property the lessee agreed to pay the lessor l/5th of all corn and l/5th of the baled cotton produced.

Subsequent to this agreement, a verbal contract was entered into between Carson and Logan providing for the operation' of said farm for the year 1952. The record discloses that Logan owned adjacent farm lands, as well as a plantation nearby across the river, located in the State of Arkansas, and to facilitate the operations of both parties, Carson’s equipment was moved to the plantation across the river, where he was in charge of the farming operations, and Logan used his equipment on the propert)' leased from defendant in connection with his own operations on his lands in the same vicinity. Pursuant to this agreement, Logan began farming operations on this land and with the use of his tractors and other mechanical farm equipment, flat broke, disced and, for a second time, flat broke the land and prepared it for planting. Planting was done, fertilizer applied, and chemicals to kill and/or prevent the growth of grass and weeds, as recommended by the experimental station, were applied, at a cost of the aforesaid sum. Notwithstanding the farming operations conducted as aforesaid, defendant became dissatisfied with the manner the land was being cultivated and expressed lack of faith and confidence in the chemicals used by plaintiffs and insisted upon said operations being conducted to her satisfaction in the theretofore conventional method of using manual labor and hoes as implements in ridding the crops of grass and weeds. She expressed her dissatisfaction to both Carson and Logan. At Carson’s residence she stated she would pay, upon possession of the property being delivered to her, the expense incurred to date, less the cost of certain chemicals, known-as “Premerge”, applied to the soil to prevent the growth and development of grass. Defendant went to the field where the farming was being done, expressed dissatisfaction of the farming operations to plaintiffs’ laborers and likewise to Logan upon his appearance upon the scene. Logan likewise at that time agreed to relinquish the property to defendant upon payment of the expenditures made in pursuance of the farming operations conducted on said property. Thereafter, Mrs. Ward called at Logan’s office on his plantation, where Logan prepared and gave her a statement of the costs expended, which she agreed to pay, notwithstanding her complaint that it was excessive. She further stated she could not then make the payment for lack of cash, whereupon Logan agreed to defer payment or to accept her note.

The property was relinquished to Mrs. Ward, who took possession thereof, continued the farming operations begun by plaintiffs, and harvested, according to her own testimony, a good crop, from which, however, she contended she made no piofit. Mrs. Ward denies that she agreed to pay this entire sum and testified that she later offered to pay Carson $500 in compromise settlement.

Considerable importance was attached to the question of whether or not the second lease instrument novated the first instrument executed. While we are of the opinion the second instrument constituted a novation of the first, this appears to be a matter of no material consequence, even though the first instrument contained a provision that the lessee could not assign the lease or sublet any portion of the farm without the consent of the landlord. The purpose was to show that Carson was without right or authority to contract relative to this property with Logan. Nevertheless, what was done between them was an accomplished fact. The validity of the lease is not assailed for that or any other reason. Regardless of whether the rights of the parties were conferred by one or the other or by both of those instruments, such rights were relinquished and the property delivered to the possession of the defendant upon her promise and obligation to pay the expenses of the farming operations incurred by plaintiffs to that date. Neither was she concerned nor harmed by the arrangement between Carson and Logan providing for the farming operations under said lease or as to whether or not the expenditures, the reimbursement for which is now sought, were made by either or both of said parties, it appearing without serious doubt that the expenditures were made for the account of Carson as well as Logan. There is no serious dispute or controversy as to the amount actually spent in these farming operations. Such was the conclusion of the trial court.

Defendant does not make her position clear as to what the consideration was to be for plaintiffs’ relinquishment of the property. Apparently, she would have us believe that they released their rights under the leases without any obligation upon her part, notwithstanding the work done in connection with the crops for that year had progressed as far as the month of June. This, of course, would not be consistent with reason. We think it has been established by a preponderance of the evidence that defendant agreed to reimburse plaintiffs the aforesaid expenditures.

Therefore, finding that a definite agreement was entered into by and between plaintiffs and defendant, whereby plaintiffs released their rights under the aforesaid lease or leases and delivered possession of said lands to defendant in consideration of her promise and agreement to reimburse them for the aforesaid expenditures, we base our conclusion upon that basis. In this respect, we respectfully differ with the trial judge, who was of the opinion that plaintiffs should recover of'the defendant the amount of expenditures made by them in the production of the crops upon a quantum meruit basis, which principle, however., only finds application in the absence of an agreement between the parties. The ulti-. mate judgment and conclusion, however, reached by the trial court as to the amount of the indebtedness is correct, in our opinion, and should be affirmed.

Accordingly, the judgment appealed is affirmed at appellant’s costs.

Affirmed.


author: HARDY, Judge.

text:
    Gus FOX, Plaintiff-Appellant, v. H. H. HAYNES et al., Defendants-Appellees.
    No. 8477.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956.
    Godfrey & Edwards, Many, for appel-*ant-.
    . Blanchard, Goldstein, Walker & O’Quin, Shreveport, for appellees.
   HARDY, Judge.

This is a suit for damages resulting from an automobile collision between a truck driven by plaintiff and a lumber truck owned by the H. H. Haynes Lumber Company and driven by one of its employees. Named as defendants were H. H. Haynes, the H. H. Haynes Lumber Company and the liability insurer, Traders & General Insurance Company, against whom judgment was prayed to the extent of the limits of the policy in effect at the time. After trial there was judgment in favor of defendants rejecting plaintiff’s demands, from which he has appealed.

The accident occurred on September 10, 1948, on U. S. Highway 171 at the intersection with Grace Street in the unincorporated village of Florien in Sabine Parish, Louisiana, at or about 11:30 A.M. Plaintiff was driving a 1934 model Ford truck loaded with tie timbers and at the time of the collision was making a left turn to the west across the highway and into the intersection of Grace Street. The lumber company truck, heavily loaded with dressed lumber weighing in excess of 13,000 pounds, was being driven south on the highway. The collision occurred, as nearly as can be fixed, about the center of the west lane of the highway, the point of impact between the vehicles being the front of the lumber company truck and the right side of the cab of the plaintiff’s vehicle. At the time the surface of the highway was dry, the weather clear and visibility unlimited.

From the intersection at which the collision occurred U. S.. Plighway 171 is straight, to the north, for a distance of 430 feet, at which point it begins a curve to the east. The highway inclines to the north on a vertical grade of approximately 2.9 feet in 100, and declines from the crest of this grade at approximately the same rate. This information was elicited from the testimony of a licensed surveyor in connection with the introduction of a scale plat of the highway in the vicinity of the accident. The surveyor testified that a line of vision from a point five feet above the surface of the highway at the intersection, to the north, would permit sight of a vehicle six feet ten inches in height (which was the height of the lumber company truck) at a distance of approximately 470 feet. Carrying this line of testimony into further detail the witness testified that all of the outline of the truck, except the lower two feet, would be visible at a distance of 370 feet and the entire truck could be seen at a distance of 268 feet. We have detailed these calculations for the reason that they constitute important considerations in connection with the facts, as will later appear from this opinion.

As noted above, the accident occurred on September 10, 1948, and the case was tried on May 9, 1955, almost seven years later. It is not astonishing, therefore, that the testimony of the witnesses is even more vague, uncertain and unreliable than is customary even in the ordinary automobile accident case.

'Generally, plaintiff contends that the driver of the lumber company truck was guilty of negligence which was the sole and proximate cause of the accident in that he was driving at an excessive and illegal rate of speed through an unincorporated village; failing to keep a proper lookout; and to maintain his truck under control, and, alternatively, that he had the last clear chance to avoid the accident when the danger of a collision with plaintiff’s truck became evident.

Defendants first deny negligence on the part of the truck driver, and, alternatively, plead the contributory negligence of the plaintiff in failing to see the approach of the truck and in attempting to execute a left-hand turn in the path of an approaching vehicle which he could and should have seen.

Confronted with these conflicting contentions the district judge, in a written opinion, found the driver of the lumber truck to have been guilty of negligence in operating his loaded truck through the Village of Florien at a speed of 35 miles per hour, and further found the plaintiff to have been guilty of negligence in failing to keep a proper lookout and in attempting to make a left turn across the highway under the circumstances, which actions constituted negligence that was the proximate cause of the accident. On the question of the last clear chance the district judge found that the driver of the Haynes truck was confronted with an emergency and that he took such action as was possible at the time in the effort to avoid the collision.

Examination of the testimony of the witnesses tendered by plaintiff and defendant proves to be of little assistance. Much of the testimony is palpably incredible, and we think the general unreliability of the recollection of these witnesses is readily and understandably accounted for by the lapse of time intervening between the accident and trial of this case. The testimony of the drivers of the vehicles, who would have the best reason for a clearer recollection of the circumstances surrounding the occurrence, is, of course, in violent conflict.

Plaintiff testified that he brought his truck to a complete stop on the highway at the intersection with Grace Street, signaled for a left turn; began to make the turn; observed the Haynes truck when be was pulling across the highway at a speed of about eight miles per hour, at which time, according to his testimony, the Haynes truck was approximately 160 feet north of the intersection; that he mashed down on the accelerator and that the collision occurred when the front wheels of his truck had reached a point just west and off of the paved slab of the highway, which, admittedly, is .18 feet in width. Even accepting this testimony as reasonably accurate, plaintiff did not, and, indeed, could not explain why he did not perceive the approach of the truck until it was only approximately 160 feet distant, when it could have been seen at a distance in excess of 400 feet. We think the following quoted portion of plaintiff’s testimony adequately and- correctly explains this point:

“Q. When was the first time you knew that Haynes Lumber Company truck was on the road north of you? A. Right along there.
“Q. What called your attention to the truck? A; When I pulled across I happened to glimpse it.
“Q. You happened to glimpse it? A. Yes, sir.
“Q. You say at that time the truck was right in front of Mr. Williams store? A. Yes, sir.” (Emphasis sup*plied.)

It is clear to us that plaintiff failed to make a proper observation to the north before beginning his turn, and that he could and should have seen the approach of the truck before undertaking this maneuver. His failure so to do unquestionably constituted an act of negligence which was a proximate cause of the accident.

The driver of the Haynes truck, I. D. Williams, Jr., testified that he was driving upgrade in second gear; that after reaching the crest of the hill and beginning the descent of the grade to the south he was gradually picking up speed preparatory to shifting into high gear-; that he saw the Williams truck on the highway just south of the Grace Street intersection; that Fox started his left tqrn-across the highway at a time when the truck was only some 35 or 40 feet from the intersection; that he immediately applied his brakes and skidded approximately 30 feet, at the same time turning to his right until the right wheels of the truck were- upon the west shoulder of the highway, but was unable to avoid the collision. There is some corroboration for this version in the testimony that the truck was locked in second gear after the accident when it was towed from the scene, and further corroboration in the surrounding physical circumstances themselves. It must be borne in mind that in negotiating the left turn across the highway the plaintiff’s truck had to travel only the 18 foot width of the concrete slab of the highway in order to clear the intersection. Meantime, the Haynes truck would have been forced to travel more than 400 feet in view of plaintiff, or, in any event, approximately 160 feet from the time plaintiff admitted observing its approach, at which time, according to plaintiff, he Was actually pulling across the highway. Any reasonably possible calculation of comparative speeds and distances clearly indicates the utter impossibility of the occurrence of the accident as contended'by plaintiff. To the contrary, the account given by the driver' of the Haynes truck, making reasonable allowances for a margin of error in his testimony, is not only reasonable but entirely consistent with the physical facts.

While the speed of the Haynes 'truck was variously estimated at from 25 to 55 miles per hour, we are of the opinion, as was our learned brother of the district court, that the truck was traveling at a speed of approximately 35 miles per hour. Clearly this rate of speed was a violation of LSA-R.S. 32:225, which fixed a maximum speed of 25 miles per hour within unincorporated towns and villages, and, under the circumstances, this finding unquestionably establishes negligence on the part of the driver of the Haynes truck.

However, it is equally clear that plaintiff was guilty of negligence, which was a proximate, as well as a contributing, cause of the accident, in attempting to negotiate a left turn across the path of an approaching vehicle which he could and should have seen, which action constituted a' violation of LSA-R.S. 32:235.

Stripping the instant case of all the conflicts in, testimony and reducing it to the bare physical facts, which, to our minds, are satisfactorily established, we think it is clear that the accident resulted from the concurrent negligent acts of the drivers of the two vehicles involved. It follows that this finding effectively bars plaintiff’s right to recovery unless the driver of the Haynes, truck should be held responsible under the last clear chance doctrine. We do not find that the facts justify the application of this doctrine in the instant case, for it is clear that when the danger became apparent, by reason of the plaintiff’s negligent action, the elements of time and distance were of such minimum degree as prohibited the taking of effective action designed to avoid the collision. We believe the driver of the Haynes truck reacted in an entirely normal and reasonable manner, for it is established that he applied his brakes and turned his truck toward the right shoulder of the highway. It is evident that this action substantially minimized the force of the impact, for, despite the heavily loaded condition of the two vehicles and the broadside nature of the impact, plaintiff’s truck was not overturned, and, as a matter of fact, was knocked only a comparatively few feet to the south from its position in the intersection at the time of impact.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.


author: GLADNEY, Judge.

text:
    Henry H. WRIGHT et ux., Plaintiffs-Appellees, v. Walter MONSOUR et al., Defendants-Appellants.
    No. 8484.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956.

      Wilkinson, Lewis & Wilkinson, Shreveport, for appellants.
    Mecom, Scott & Despot, Shreveport, for appellees.
   GLADNEY, Judge.

Henry H. Wright and his wife, Mrs. Lucille Wright, brought this suit against Walter Monsour, Emile' G. Monsour and Fred Monsour, to recover a real estate agent’s commission allegedly earned by Mrs. Wright on the sale' of a building by the aforesaid three brothers, the owners of said building, to Edwin Moore. After trial,, judgment was rendered in favor of plaintiffs and against defendants Walter and! Emile G. Monsour for two-thirds of the commission allegedly due. Proceedings were abandoned against Fred Monsour, a non-resident, when legal service could-not be secured. From a judgment favorable to plaintiffs, the defendants have prosecuted this appeal. ■ •

The appellants present two defenses. The first denies liability for the commission on the ground that no agreement was had as to the amount of the real estate fee or commission. The record, however, conclusively shows the defendants thoroughly understood that in event of a sale entitling Mrs. Wright to a commission, the amount thereof would be the usual and regular rate of commission charged by the Shreveport Real - Estate Board. The second reason advanced for refusing to pay the commission is that Mrs. Wright was not the procuring cause of the sale. This latter contention is the only serious issue in this case.

The Monsours owned a commercial building located in the 200 block of Texas Avenue in Shreveport. For more than a year prior to its sale to Edwin Moore, the owners had been attempting to- sell it through three real estate agents of Shreveport, each of whom was employed on a non-exclusive basis. The property was so listed with Mrs. Wright and she made repeated efforts to procure a sale,- first at the asking price of $100,000, and later for the sum of $75,000. During this period she advertised the property and contacted numerous prospects to no avail. Edwin Moore, a personal friend of the owners, had apparently from time to time indicated an interest'in purchasing thé building, but not at the prices so indicated. On Saturday, May 22, 1955, the Monsours in -order to secure a quick sale, decided to reduce the asking- price of their property to net them $50,000.

, Shortly after noon on said date, Walter Monsour met Linton Carney on the street and requested that Carney have his business associate, Moore, get in touch with him.- Walter Monsour testified he told Carney he wished to talk with Moore with reference to the sale of the building. Carney, however, testified that Monsour simply asked that he have Moore contact him, and he was unable to so inform Moore until about- 1:00 o’clock of May 24th, when Moore, without elaborating, told him that he had already seen Monsour.

Early Monday morning, May ;24th, the Monsours in-formed the several real estate agents, including Mrs. Lucille Wright, that they had reached an agreement to lower the selling price of the building to $50,000, which amount should be net to them. In her testimony, Mrs. Wright stated she understood from Walter Monsour she should endeavor to secure in addition to $50,000 her real estate commission and a certain sum to cover alterations, and, therefore, suggested that her quoted price be $55,000, which figure she relates was agreeable to Walter Monsour. The latter, in testifying, said he could not recall this turn of the conversation, but indicated the owners expected to receive $50,000 net. It is conceded that during the morning of May 24th, Mrs. Wright telephoned Edwin Moore and informed him the Monsours had reduced the asking price of the building and it could be purchased for the sum of $55,000. Mr. Moore testified he then informed Mrs. Wright he was not interested in the purchase of the building at all. He stated further there was no conversation whatsoever about any alterations to the building, and that Mrs. Wright quoted a price of $55,000. Mrs. Wright’s testimony is to some extent at variance with that given by Moore. She says Mr. Moore .told her that he would go right down to see Walter Monsour and that immediately thereafter she telephoned Walter Monsour and told him that Mr. Moore would be down to talk with him about the building. Walter Mon-sour had no recollection of such a conversation but admits that on that same day after he had seen Moore and given him a verbal option to purchase the building, Mrs: Wright did inform him she had contacted Moore early that morning. Mrs. Wright said also that after the option was given to purchase the building, Walter Monsour repeatedly had advised her she was entitled to and would receive her real estate commission from the sale. Her testimony to this effect is corroborated by that of Har-ney S. Bogan, Jr., and LeRoy H. Scott. Walter Monsour denies making such affirmations, explaining that he only assured Mrs. Wright she would receive her commission if she made the sale. Irrespective of these differences in the testimony, however, the following pertinent stipulation appears in the agreement to buy and sell executed by the Monsours and Edwin Moore on June 4, 1954:

“Vendee agrees to pay any and all real estate agent’s fees which may have been incurred by vendors in the sale of this property to this vendee.

“Vendee agrees to assume on behalf of vendors the obligations contained in that certain lease by and between the Abe Meyer Corporation of Shreveport and the vendors covering the property adjacent t'o that property above described insofar and only insofar as it obligates vendors to restore the leased premises to the condition they were in at the time of the execution of the said lease. All remaining obligations of the lease shall remain the obligations of the vendors herein.”

A discussion as to whether the performance by a real estate broker entitles the broker to a commission appears in the case of Dew v. Hunter, 1953, 66 So.2d 400, 402, wherein this court reviewed the law in the following manner: -

“ ‘The rule is tersely given in 12 C.j.S. (Brokers) § 93, p. 215, as follows : “Provided he is the procuring cause of the transaction, a broker is entitled to a commission on a transaction with a customer procured by him, even though the final negotiations are conducted or the transaction is closed by the principal personally.”
‘“The Supreme Court of this state has, in several cases, recognized the rule embodied in the quotations, supra, and enforced it in proper cases. In Grace Realty Company v. Peytavin Planting Company, 156 La. 93-96, 97, 100 So. 62, 63, 43 A.L.R. 1096, dissertating upon facts to which said rule was applicable, said:
“ ‘ “It is well settled that where a broker, who is employed to sell property at a given price, and for an ■agreed commission, has opened negotiations with a purchaser, and the principal, without terminating the agency or negotiations so commenced, takes it into his own hands, and concludes a sale for a less sum than the price fixed, the broker is entitled', at least, to a ratable proportion of the agreed commission.
“ ‘ “This rule is supported by numerous authorities, upon the ground that the broker is, in such a case, really the moving cause of the sale, as he has brought the parties together and thereby procured a purchaser and performed his contract which was contingent upon his success. Hoadley v. Savings Bank of Danbury, 71 Conn. 599, 42 A. 667, 44 L.R.A. (321) 350, 351, note, citing numerous authorities.”
“ ‘Many cases from other states are cited to support the rule. The court, in passing, also said: “The decisions above quoted, when considered as a whole, are based, not only upon the principle that in such cases the agent is considered as the proximate or procuring cause of the sale, but also upon the equitable maxim that the principal shall not be permitted to enrich himself at the expense of the agent or broker, whose services have inured to his benefit.” ’ See also the following authorities: Corbitt v. Robinson, La.App.1951, 53 So.2d 259; Lawrence v. Bailey, La.App.1949, 41 So.2d 474; U. S. Realty Sales of Shreveport v. Rhodes, La.App.1948, 34 So.2d 523; White v. Havard, La.App.1946, 25 So.2d 108; Sollie v. Peoples Bank & Trust Company, La.App.1940, 194 So. 116; Grace Realty Company v. Peytavin Planting Company, 1924, 156 La. 93, 94, 100 So. 62, 43 A.L.R. 1096.”

This court pointer out in the case, oí Malarcher v. Nackley, 1954, 73 So.2d 580, 582, that under certain circumstances performance by a broker would be considered as fulfilled. Therein we referred to Article 2040 of the LSA-C.C., which provides :

“The condition is considered as fulfilled, when the fulfillment • of -it has been prevented by the party bpund to perform it.”

In Malarcher v. Nackley, the court also felt that consideration should be’ attached to the meaning of Article 1965'of LSA-C.C., reading:

“ ‘The equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties have made for themselves by their contract, are silent, courts must apply these principles to determine what ought to be incidents to a contract, which are required by equity.’ ”

Counsel for appellants directs our attention to two citations as sustaining appellants’ position. We have carefully examined the cases referred to.and find them not controlling herein. In Lehmann v. Howard, 1950, 49 So.2d 453, this court was convinced the owner terminated his contract with the broker only after negotiations with the broker’s prospect had broken off. We held the new negotiations between the owner and said prospect began thereafter and regardless of the time interval showed no collusion ■ and presented an entirely new relationship. There was never any discontinuance of the services of Mrs. Wright by the Monsours. Their contention is confined to the issue of whether vel non Mrs. Wright was the procuring cause of the sale. The other decision relied upon by counsel is also inapposite. Ramsey v. Harry Bros. Company, 1942, 11 So.2d 256, decided by the Orleans Court of Appeals, dealt with the employment of a broker limited to the submission of the property for sale to a named prospective purchaser. When negotiations for the sale to that party failed, and the owner sold to another party, the court properly refused the broker’s claim for a commission. The facts in the instant case manifestly present an entirely different legal situation.

We have resolved Mrs. Wright was entitled to the commission claimed as she was the procuring cause of the sale. It can hardly be doubted Moore immediately contacted the owners of the property solely as the result of his telephone conversation with Mrs. Wright. Moore’s profession to Mrs. Wright he was not interested in purchasing the building is completely refuted by his haste to secure an option, the effect of which was to forestall competitive prospects which could be produced by Mrs. Wright and the other relators. Conceding, arguendo, the evidence discloses that on prior occasions and independently of any service from Mrs. Wright, Moore had become acquainted with the property and had a desire to purchase it, nonetheless, he did obtain a substantial benefit and advantage from the timely receipt of information through the telephone call. Mrs. Wright testified she was engaged in showing a different prospect the property when she was informed by Walter Monsour that Moore had been given an oral option. A number of hours intervened between the telephone message from Mrs. Wright and the delivery of Walter Monsour’s message by Carney to Moore. The advantage in' time thus enabled Moore to obtain the verbal option before other prospective purchasers had an opportunity to negotiate concerning the sale.

As pointed out in the. authorities above set forth, where there is some interposition which may preclude a broker from carrying his performance to a completion of the sale, he is relieved from such further performance under circumstances which show his efforts were ignored or excluded without which the sale would likewise have been concluded.

In our conclusion herein we are supported by the findings of the district judge set forth in written reasons, in which there is a careful analysis of the evidence and citation of authorities. Accordingly, the judgment from which appealed is hereby affirmed at appellants’ costs.


author: AYRES, Judge.

text:
    Rosalie A. COLEMAN et vir, Plaintiffs-Appellants, v. SHREVEPORT RAILWAYS COMPANY, Defendant-Appellant, and J. A. Frantom, Defendant-Appellee.
    No. 8492.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956.

      Cook, Clark, Egan, Yancey & King, Shreveport, for plaintiffs-appellants.
    Booth, Lockard, Jack & Pleasant, Shreveport, for defendant-appellant.
    Browne, Browne & Bodenheimer, Shreveport, for defendant-appellee.
   AYRES, Judge.

Rosalie A. Coleman and her husband, Elgie Coleman, instituted this action for damages as the result of an accident occurring October 21, 1952, near the intersection of Marshall and Fifth Streets in the City of Shreveport. The defendants are Shreveport Railways Company and J. A. Frantom.

Plaintiff, Rosalie A. Coleman, boarded a trolley as a fare-paying passenger at approximately 7:15 P.M. and was proceeding in a southerly direction on Marshall Street to her residence. A short distance south of the aforesaid intersection the trolley collided with the rear end of an automobile driven by Frantom. Rosalie A. Coleman, seated on the back seat of the trolley, was thrown forward by the stoppage of the trolley resulting from the sudden application of brakes and not necessarily from the collision, which was very slight. The result was that plaintiff Rosalie A. Coleman’s head was struck a severe blow across the right ear on an iron post and thereafter her right hip struck the floor of the trolley. She seeks to recover the sum of $5,000 for pain, suffering and disability; her husband seeks to recover the sum of $1,185 representing the loss of wages of his wife and medical and hospital expenses incurred.

There was judgment in the trial court in favor of plaintiff, Rosalie A. Coleman, against the defendant, Shreveport Railways Company, for $1,250 and in favor of plaintiff Elgie Coleman against the same defendant for $693. Plaintiffs’ demands against J. A. Frantom were rejected. From the judgment thus rendered and signed, the Shreveport Railways Company has appealed suspensively, which appeal plaintiffs have answered, praying that the awards in their favor be increased to the amount originally sought.

Plaintiffs perfected a devolutive appeal from that portion of the judgment rejecting their demands against Frantom.

After pleading the doctrine of res ipsa loquitur, plaintiffs charged the driver of the trolley with negligence proximately causing the accident in failing to maintain a proper lookout, or to keep the trolley under control, or to proceed at a safe distance behind the preceding car and in suddenly and sharply applying the brakes and crashing into the rear of the vehicle driven by Frantom. Negligence was also charged to Frantom in the bringing of his vehicle to a sudden stop on Marshall Street in the lane of traffic proceeding in a southerly direction, and in failing to give any signal of his intention to stop, by hand signal or otherwise, or to keep his vehicle under complete and proper control or to keep a proper lookout.

Defendant Shreveport Railways Company contends, however, that if actionable negligence were present in this case, it was the negligence of Frantom, particularly in suddenly bringing his car to a stop in the line of traffic when he knew that a vehicle was following in close proximity. Frantom reiterated plaintiffs’ charges of negligence against the driver of the trolley and further charged him with failure to drive into the innermost traffic lane to the left to avoid striking his car.

The trial court came to the conclusion that it was unnecessary to determine whether or not Frantom was negligent in bringing his car to a sudden stop to avoid striking a collie dog which ran out into Marshall Street a short distance ahead of the Frantom car, in view of the finding that the proximate cause of the accident was the negligence of the trolley driver in failing to keep his trolley under complete control and in failing to keep a proper lookout.

Both defendants filed exceptions of no cause or right of action, which were overruled. These exceptions have not been urged before us and, therefore, may be considered as abandoned. In passing, however, it may be stated that we find no merit in either exception.

The original answer of the defendant, Shreveport Railways Company, denied generally plaintiffs’ allegations and alleged that the accident was due to the negligence of Frantom. In an amendment this defendant alleged that the trolley stopped at the aforesaid intersection immediately to the rear of the Frantom automobile awaiting a change in the signal lights from “red” to “green”, upon which occurring both vehicles proceeded forward, and that upon the Frantom vehicle coming to a sudden stop, the trolley driver was faced with a sudden emergency requiring application of the emergency brakes and the sudden stopping of the trolley. By a second supplemental answer it was alleged that the trolley had not stopped but was approaching the intersection when the light changed to “green” and that the driver was never closer than 35 or 40 feet from the rear of the Frantom car. In this connection, B. L.. Hinsley, the trolley driver, testified that as the Frantom car proceeded he accelerated the speed of the trolley and was traveling about 20 miles per hour when he saw the Frantom car stopping after the emergency brakes were applied. The collision between the trolley and the car was very slight.

Hinsley’s explanation of the cause of the accident, taking into account the reaction time after seeing the flash of the rear lights on the Frantom car, due to-Frantom’s application of the emergency brakes, was that it was impossible for him to avoid the collision. There was no other traffic in the vicinity on Marshall Street,, a four-lane street. No explanation was made why Hinsley could not have driven, the trolley to the left of the Frantom car and thereby have avoided the accident, other than, of course, his contention he had. no time or opportunity to do so after the discovery of the sudden stopping of the-Frantom car in front of the trolley.

Frantom alleged that in proceeding in a. southerly direction on Marshall Street he stopped for a “red” light at the intersection with Fifth Street; that after the change of signals he continued forward a distance of approximately 50 feet when he saw running in front of him a large collie dog and, in an effort to avoid hitting the dog, he applied his brakes and his car was struck from the rear by the trolley. In a statement taken shortly after the accident Frantom stated that he saw the large collie dog running at about 20 feet in front of his car, causing him to apply his brakes. On the trial, however, he testified that, after continuing forward at the intersection a distance of about 50 feet, he saw an object coming out from behind a parked car, which he did not discover was a dog until the accident had happened. Although he knew the trolley was following his car, he admitted stopping in the south-bound lane of traffic of the trolley on Marshall Street, without giving a hand signal of his intention to stop.

Frantom’s explanation that he did not know whether the object darting into the street in front of his car was a child, dog or other object, appears reasonable under the circumstance that it was dusk-dark at the time. His immediate reaction was the normal and usual reaction of an ordinary, prudent person confronted with an emergency such as this. He immediately applied his brakes and brought his car to a stop. When he hit his brakes his rear lights flashed a signal of that fact, indicating a sudden stop. There was no time or opportunity for the giving of the conventional hand signal of an intention to stop before applying the brakes. That time-consuming maneuver would have likely obviated the necessity of either applying the brakes or stopping before striking the object suddenly appearing in the street.

On consideration of the question, of liability, it would appear that the distance between the two vehicles and their speed at the time the dog ran out in front of the said car-and when Frantom, the driver , of the forward car, applied his brakes and when Hinsley, the driver of the trolley, likewise applied his brakes, are matters of material importance. The testimony of the various witnesses on these points is at best only estimates, which must be weighed in the light of the conditions and the suddenness of the accident, as well as the lapse of time from- the accident to the date of trial. In thus giving consideration to the testimony on these features of the case, the defendant, Shreveport Railways Company, submits that it becomes completely clear that the trial judge was in error in concluding that after Frantom’s stop-light signal flashed* the trolley traveled 75 to 85 feet before coming in contact with the Frantom car. Fifth Street is 35 to 40 feet wide. Frantom stopped his car outside of the 'intersection and, after proceeding, he traveled slightly beyond the intersection when the object appeared suddenly from beyond cars parked on the right of Marshall Street and beyond the intersection. Hinsley testified that the trolley was operated from 15 to 20 miles per hour, and, on seeing that the light Was “red”, he applied his brakes, preparatory to stopping, reducing the speed, but the signal changed before the stop was completed, whereupon he accelerated his speed;' that when the Frantom car began moving forward, the trolley was 40 or 50 feet away, and that after he saw the “red” signal light flash on the rear of the Frantom car, the car traveled 35 feet before it came to a stop. The mathematical calculation of the distance traveled by the trolley after the lights were flashed, between 75 and 85 feet, was admitted by Hinsley. Frantom testified that the dog came from among parked automobiles and appeared suddenly in front of his car, about 10 feet away, when he was traveling at approximately 15 miles per hour in second gear. Ernest Crain, Jr., who was accompanying Frantom at the time, testified that they traveled a couple of car lengths beyond the intersection when Frantom applied his brakes and slowed down on account of the object appearing suddenly in the street. Hinsley says the trolley was never closer than 35 to 40 feet from the Frantom car as the trolley was coming to a stop, the speed of which was reduced to 10 miles per hour, and that in proceeding forward the distance between the vehicles, if it diminished at all, was very little.

The record, therefore, supports the conclusion of the trial judge that the trolley proceeded a distance of from 75 to 85 feet after the stop lights flashed on the forward car and that, accordingly, Hinsley had that distance within which to stop the trolley or within which to maneuver' the trolley to the left innermost traffic lane proceeding in a southerly direction.

There is no question as to the law involved in the instant case so far as concerns the obligation of the defendant, Shreveport Railways Company, to its passengers. Amer.Jur., Vol. 10, p. 163, “Carriers”, Sec. 1245, states the general rule as to the degree of care required of a carrier towards its passengers. It states:

“The degree of care required of a common carrier is not capable of a precise formulation, applicable to all situations that may arise. In general, however, carriers of passengers are required to exercise the highest degree of car-e, vigilance, and precaution for the safety of those it undertakes to transport, and are liable for the slightest negligence.”

This rule has been consistently followed in this State.

Mire v. Lafourche Parish School Board, La.App., 62 So.2d 541; Chisholm v. Ryder, La.App., 56 So.2d 316; Hopper v. Shreveport Rys. Co., La.App., 51 So.2d 845; Brown v. Homer-Doyline Bus Lines, La.App., 23 So.2d 348; Oppenheim v. Toye Bros. Yellow Cab Co., La.App., 7 So.2d 420; Hughes v. Baton Rouge Electric Co., La.App., 188 So. 473; Wallace v. Shreveport Rys. Co., La.App., 175 So. 86.

See, also, 13 C.J.S., Carriers, § 678, pp. 1257-1258.

This rule was recognized and followed in this State as early as 1875 in the case of Julien v. Captain and Owners of Steamer Wade Plampton, 27 La.Ann. 377, wherein Justice Taliaferro of the Supreme Court, in quoting from Angelí on Common Carriers, stated:

“ ‘Common carriers are bound . to carry their passengers safely and securely, and to use the utmost care and skill in the performance of their duties.’ * * * ‘And, of course, they are responsible for any, even the slightest, neglect.’ * * * ‘The burden of proof is on the defendants to establish that there has been no disregard whatever of their duties, and that the damage has .resulted from a cause which human care and foresight could not prevent.’ ”

That holding was cited as authority by this court in Wallace v. Shreveport Rys. Co., supra [175 So. 88], and, after listing numerous decisions wherein the general rule, as stated, has been adhered to, it was stated:

“Therefore, in view of the rule so definitely announced in these decisions, a defendant is required to prove, by a preponderance of evidence, freedom from negligence as a cause of the breach of the contract of carriage, when once the plaintiff has made out a prima facie case of negligence; and, in this respect, such a defendant is in practically the same position, after this prima facie showing has been made, as a plaintiff occupies in an ordinary, tort action. He must exonerate himself from negligence and overcome the presumption against him by a preponderance of the testimony.”

It was held in Brown v. Homer-Doyline Bus Lines, supra, and quoted with approval in Hopper v. Shreveport Rys. Co., supra [51 So.2d 847]:

“ ‘Under this rule of ‘highest degree of care’ the commission of any act of negligence which contributes to accidental injury to a passenger, or the omission of any act of prudence, care or caution which might have resulted in- avoiding the infliction of injury upon a passenger, subjects the carrier to liability in damages.’ ”

The jurisprudence is well settled, too, on the proposition that when a fare-paying passenger proves his status as such and that he was injured b.y accident in or on the vehicle in use, he makes out a strong prima facie case and should recover, unless the carrier adduces evidence of a character of sufficient weight to clearly overcome such prima facie case. It was so held in the Wallace case and in Chisholm v. Ryder, both supra. Therefore, plaintiffs, having established that plaintiff Rosalie A. Coleman was a fare-paying passenger on one of defendant’s common carrier trolleys, the burden is upon such defendant to exonerate itself from the imputation of actionable negligence. Hopper v. Shreveport Rys. Co., supra.

Our consideration of the evidence as contained in this record leads us to the conclusion that the defendant, Shreveport Rys. Co., not only has failed to discharge its burden of exonerating itself from actionable negligence but that the record affirmatively establishes acts of negligence on the part of the trolley driver which were sufficient to and did, in fact, constitute a proximate cause of - the accident. We agree with the trial judge, who found from the evidence, as we have attempted to point out hereinabove, that the driver of the trolley proceeded from 75 to 85 feet after the brakes were applied on the forward car and after the trolley driver saw the rear signal lights flash from Frantom’s application of his brakes. At the rate of speed at. which both Vehicles were operated, the conclusion is inescapable that the trolley could, in all probability, have been stopped by the. use of ordinary and prudent care without coming to such- a sudden halt as to throw and jerk its passengers in a manner as to do-injury to them. Time and opportunity were ample for the driver to veer the trolley to the left and into a lane of traffic to the left of the Fran-tom car, and to avoid the accident.

In the Hopper case, supra, the facts were that plaintiff boarded, ,in the down town section of the .Gity of Shreveporj, one of defendant’s trolley buses, operating on what is known as the Cedar Grove line, paying her fare as she entered.and,seating herself in the first seat on the left-hand side facing the front of the bus. As the bus proceeded south on Southern Avenue and. approached the driveway entrance of a bottling company situated on the west side of the street, the bus driver noted the presence of a pick-up truck which had come to a stop at or near the center of the street on the east side'thereof, evidently preparatory to turning left into the driveway of the bottling company’s premises, the driver evidently awaiting the passage of the bus before completing his turn. While ■ so stopped and as the bus was approaching, another vehicle proceeding northward on Southern Avenue crashed into the rear end of the halted truck with such force as to throw the front wheels of the truck slightly across the approximate center of the street. Whereupon, perceiving the occurrence of the accident, the bus driver swerved his vehicle sharply to the right and suddenly and sharply applied his brakes, throwing plaintiff therein to the floor of the bus and inflicting the injuries for which she sought damages. There was no traffic, congestion in the vicinity and there was ample room, by maneuvering the bus slightly to the right, for the driver to , have taken that course and avoided the possibility of a collision with the truck in the center of the street. The accident resulted from the driver’s urgent application of the brakes by reason of which he brought the bus to a sudden and abrupt stop. The conclusion of this court was .that the accident could in all probability have been avoided had the bus driver swerved or veered to the right, which would have obviated any necessity for the sudden arid abrupt application of the trolley brakes.

Of equal certainty was Hinsley’s opportunity to have veered the course of the bus to the left and avoided striking the car or the riecessity of suddenly applying the brakes or stopping. Hinsley’s failure to thus use ordinary and prudent . care places upon his employer the duty and obligation of repairing the damage done.

We are not impressed with the record as showing that Frantom was guilty of actionable negligence in slowing down and stopping his car some distance ahead of the trolley in order to prevent the striking of an object suddenly appearing in the highway ahead of him, the nature of which he could not ascertain by the suddenness of its appearance and in the darkness of 'the night. The traffic regulations, as- 'contained in LSA-R.S. 32:234, pro vide'that

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such ■ vehicle and the traffic upon and condition of the highway.”

This rule is applicable to a street in a city. Under Sec. 1 of said title, Par. (8), “ ‘Highway’ ”, so it states, “includes 'every way or place of whatever nature open to the use of the public for the purpose of vehicular travel”.

In McDaniel v. Capitol Transport Co., Inc., La.App., 35 So.2d 38, 39, it appears that McDaniel was driving south on U. S. Highway 51 at night, with a'car approaching him, and as the cars approached one another, McDaniel saw some objects in the highway between the lights of his own and that of the approaching car, whereupon he reduced his speed when he discovered some cows were crossing the highway. The defendant’s truck was following McDaniel, and when McDaniel slowed the speed of his automobile, the vehicle of defendant struck the rear of the McDaniel automobile. McDaniel was allowed to recover damages. The court quoted from Hill v. Knight, La.App., 163 So. 727, 728, wherein the following rule of law found in Blashfield’s Cyclopedia of Automobile Law, Vol. 1, p. 942, was cited with approval :

“ ‘The driver of a car following a few feet behind another, under circumstances such that he should anticipate the possibility of obstruction or trouble of some sort, should have his car under such control or proceed at such rate of speed that he could stop at once if the car in front stops.’ ”

To the same effect is the holding in Max Barnett Furniture Co., Inc., v. Barrosse, La.App., 70 So.2d 886, 887, wherein the court cited with approval Crow v. Alesi, La.App., 55 So.2d 16, where it was stated:

‘A motorist following other traffic must keep his automobile at a safe distance behind so as to enable him to stop his automobile in, a sudden emergency.’.”,,

See, also, Overstreet v. Ober, 14 La.App. 633, 130 So. 648; Chisholm v. Ryder, supra.

While the courts have recognized differences in traffic upon country highways from that upon crowded, city streets, the absence of other traffic on the street in the vicinity and at the time of this accident renders unimportant here any such distinction.

In the Barrosse case, an accident occurred- between two Buicks on Poydras Street in the City of New Orleans. The defendant’s car was followed by that of one LeBlanc, whose claim for damages was assigned to plaintiff, Max Barnett Furniture Co., Inc. A strong wind was blowing and a hard rain was falling and the surface of the street was wet and slippery. The hood of the Buiclc car was blown from its position on the automobile, whereupon Barrosse applied his brakes in emergency and brought his car to a sudden stop. Before LeBlanc could bring his car to a stop, it crashed into the rear of the Barrosse car and sustained the damage for which the suit was brought. It was there held that the proximate cause of the accident was not the blowing off of the hood by the wind but was the fault of the driver of the following car in operating his automobile too close behind the preceding car at a speed which did not permit him to bring his car to a stop in time to avoid contact with the preceding automobile.

We, therefore, conclude that the record fails to establish that Frantom was guilty of any actionable negligence constituting the proximate cause of the accident herein involved, but that, for the reasons hereinabove stated, the proximate cause was the negligence aforesaid of Hinsley, the driver of the trolley.

There remains for consideration the question of quantum. The award is attacked as excessive by defendant and contended as inadequate by plaintiffs. That plaintiff Rosalie A. Coleman sustained serious and painful injuries is hardly questionable. Plaintiff was seated in the middle of a seat extending across the width of and at the rear of the bus. When the brakes were suddenly applied she grabbed an iron post in front of her seat and, by the force of momentum and the sudden and abrupt stopping of the bus, she was thrown forward and swung around the post, striking her head about the right temple against the post, whereupon she fell, her hip striking the floor. Plaintiff was hospitalized in the Highland Sanitarium for two days and nights and was then permitted to return to her home. Dr. W. F. Drummond diagnosed her condition, as recorded in the hospital records, as a contusion of the right side of head and right thigh, and Meniere’s syndrome, probably traumatic. There were visible bruises on the right side of her face across her right ear, with tenderness over the right mastoid. tier hip showed evidence of a bruise; she suffered headaches, vertigo, nausea and vomiting while in the hospital. Beginning October 25, 1952, plaintiff was treated by her family physician, Dr. G. H. Cassity, who found her suffering with a lumbosacral sprain, rigid muscle spasms of the lumbar muscles, bruises on her thigh and hip, disturbance of equilibrium by a concussion of the brain, headaches, nausea, vomiting and dizziness, and contusions of the right side of her head. It was the doctor’s opinion that her injuries were sufficient to and did disable plaintiff from returning to her work until May 1, 1953. The testimony of Dr. Heinz K. Faludi, testifying for the defendant, in effect, corroborated the testimony of Dr. Cassity.

Taking the testimony as a whole as to plaintiff’s injuries, it appears to us that the trial judge gave proper weight and 'consideration, not only to the p'ain and s'uf-féring, disability and 'the extent and' "duration probably due thereto, but also to her husband’s claim for her loss of salary and medical expenses incurred. The award appears to .be neither excessive nor. inadequate.

For 'the reasons herein assigned, the judgment' appealed is affirmed at appellant’s costs.

Affirmed.


text:
    Clifton WYSINGER, Plaintiff-Appellee, v. T. B. GODFREY et al., DefendantsAppellants.
    No. 8494.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956

      George J. Ginsberg, Alexandria, for appellants.
    Pickett & Pickett, Many, for appellee.
   AYRES, Judge.

Plaintiff instituted this action against T. B. Godfrey, his alleged employer, and God-frey’s workmen’s compensation insurer for compensation at the maximum rate and as provided for total and permanent disability on account of accidental injuries sustained by him February ,19, 1955, while he was engaged in loading pulpwood on railroad cars at Florien, Louisiana. From a judgment awarding compensation at the rate prayed for, but only for a period of plaintiff’s disability, found to extend from the date of the injury to September 12,' 1955, defendants appealed.

The defense is that there existed no employer-employee relationship between plaintiff and defendant Godfrey. Defendants contend that plaintiff was in the employ of one E. E. Weldon, whose relationship to Godfrey was that of a vendor of pulpwood which was being loaded .at the time plaintiff was injured, the title to which had not been acquired by Godfrey. There is no contention as to the occurrence of the accident nor that plaintiff was injured within the course and scope of his employment.

Plaintiff has. not answered the appeal and defendants do not seriously urge error on the part of the trial judge in fixing the period of plaintiff’s disability. Hence, the only issue presented for determination is whether or not an employer and employee relationship: existed between plaintiff and Godfrey, as contended by plaintiff, or whether plaintiff was employed by Weldon, between whom and Godfrey the relationship of vendor and vendee existed, as claimed by defendants. ■ This issue presents a question of fact, resolved by the trial court in plaintiff’s favor.

The record establishes that Godfrey, whose operations -are extensive and widespread, is a procurer of pulpwood for the Brown Paper Mill Company, West Monroe, Louisiana. It appears that in the ordinary and usual course of his operations, Godfrey purchased wood from the producer, delivered on the railroad cars and shipped to the mills for his account, where it was scaled, after which settlement or final adjustment of the purchase price was made between Godfrey and his producers, based upon the quantity thus determined. If such had been the case in the instant matter, the relationship between Weldon and Godfrey would, no doubt, have been that of vendor and vendee, and plaintiff, as the employee of the vendor, would not be entitled to recover compensation from the purchaser of the wood or his insurer. It was so held in Smith v. Crossett Lumber Co., La.App., 72 So.2d 895, 896, wherein it was stated:

“The jurisprudence makes it perfectly clear, in our opinion, that a purchaser of pulpwood is not liable for compensation benefits for accidental injuries sustained by employees of the seller.”

Our appreciation and understanding of the record lead us to a different conclusion as to the facts concerning this particular wood from what the defendant would have us believe. When Godfrey had shipping orders from the mill, the wood purchased by him was loaded directly on the railroad cars from the trucks conveying it from the woods. However, when this particular wood was obtained, Godfrey had no shipping orders. Accordingly; when he acquired it through Weldon, he directed and instructed Weldon to deliver the wood to the railroad yards and dump it on the ground to await receipt by Godfrey of appropriate shipping instructions. When this wood was thus delivered, Godfrey paid Weldon therefor by reimbursing him for the amount of the purchase price paid by him to the producer, plus a commission of $1.25 per unit for his services in making the purchases.

The evident on-set of deterioration in this wood, by having lain on the ground, required that it be shipped to the mill before such deterioration became pronounced. Accordingly, Godfrey instructed Weldon to load and ship this wood. Weldon employed the necessary laborers to perform this task, one of whom was plaintiff, who, together with another, was employed to load a car with the wood, and for their labor they were to be paid $2.50 per unit. This was paid by Weldon, who was reimbursed by God-frey after the wood was received and scaled at the mill. Weldon, however, had theretofore been reimbursed the full purchase price and there only remained for reimbursement to Weldon the aforesaid loading cost. That the wood at the time it was being loaded was the property of the defendant, Godfrey, is clearly established. The loading of this wood was, therefore, a part of Godfrey’s business in his pulpwood operations and was undertaken pursuant to his .orders and instructions. He designated the wood to be loaded, particularly that which had become water-soaked.

It is a matter of no material importance whether plaintiff was employed directly by Godfrey or by Weldon, who, it is established, was loading this wood under orders and instructions of Godfrey and was acting as his agent. Where any person undertakes to execute any work, which is a part of his hazardous trade, business or occupation, or which he has contracted to perform, and contracts with any person for the execution of the whole or any part of the work undertaken by such principal, the principal is liable to pay any •employee engaged in the execution of the work, or his dependent, any compensation which he would have- been liable to pay if the employee had been directly employed by him. LSA-R.S. 23:1061. Under this section, the jurisprudence is firmly settled that a principal employing a contractor, sub-contractor or independent contractor is liable for compensation to an injured employee of such contractor, direct contractual relations between' the injured employee and the principal being-unnecessary. Hollingsworth v. Crossett Lumber Co., 184 La. 6, 165 So. 311; Carter v. Colfax Lumber & Creosoting Co., 9 La.App. 497, 121 So. 233; Seabury v. Arkansas Natural Gas Carp., 171 La. 199, 130 So. 1; Helton v. Tall Timber Lumber Co. of Louisiana, Inc., 148 La. 180, 86 So. 729; Lindsey v. White, La.App., 22 So.2d 689; Owers v. Louisiana Long Leaf Lumber Co., La.App., 14 So.2d 275; Lyons v. Wheless, La.App., 2 So.2d 719; Hatch v. Industrial Lumber Co., La.App., 199 So. 587; McKay v. Crowell & Spencer Lumber Co., La.App., 189 So. 508.

See also 10 La.L.Rev. 25.

For the reasons herein stated, it is clearly established, and the conclusion is inevitable, there was no vendor-vendee relationship between Godfrey and Weldon, so far as the particular wood involved was concerned but that Weldon was in the service of Godfrey as his agent in over-seeing the loading of Godfrey’s wood on the railroad cars and that plaintiff’s services were rendered in connection with said work. Even though plaintiff contracted this load of wood at a specific price per unit, he is not on that account an independent contractor himself and as such excluded from the benefits conferred by the Compensation Act, as the whole of said undertaking required manual labor. LSA-R.S. 23:1021 (6). The work undertaken by Godfrey was an essential part of his operations. Whether plaintiff was employed directly by God-frey or by Weldon under the facts and circumstances of this case, detailed herein-above, is of no material importance. • In either event he is entitled to recover compensation of the principal and his insurer.

The record reveals a state of facts identical, so far as material to the issues before the court, with the facts found to exist in Cahee v. United States Casualty Company, La.App., 86 So.2d 631. The facts in the instant case are so similar to those of that case as to the acquisition of the wood and its delivery to the railroad yard, taken in connection with the short interval of time intervening between the accidents involved, as to justify the conclusion that the wood involved in each of those cases constituted. portions of the same batch or, at least, wood obtained in the same manner. Upon the issues mutual to both cases, our ruling there is applicable here.

For the reasons assigned, the judgment' appealed is affirmed at appellants’ costs.

Affirmed.