author: LOTTINGER, Judge.

text:
    Ellas HOLLIER v. TRAVELERS INSURANCE COMPANY.
    No. 4197.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.
    Dubuisson & Dubuisson, Opelousas, for appellant.
    Paul C. Tate, Mamou, for appellee.
   LOTTINGER, Judge.

This matter is before us on a suspensive appeal taken by the defendant from a judgment of the lower Court awarding the plaintiff workmen’s compensation benefits for 400 weeks at the rate of $30 per week from June 24, 1953, subject to a credit for previous payments, and for reasonable medical expenses not to exceed $1,000.

The petition alleges that the plaintiff was injured when he struck his left knee with a hammer in the process of dismantling some boards. In addition to praying for compensation benefits for total permanent disability, he also alleged that the defendant’s failure to pay was arbitrary and capricious and that he was therefore entitled to a penalty in the amount of 12% of all payments due plus attorney fees.

The suit was brought as a direct action against the Travelers Insurance Company, compensation insurer of T. Miller and Sons, Inc., plaintiff’s employer. The defendant’s answer admitted the employment, the hazardous nature of employer’s business and plaintiff’s duties, and the fact of insurance coverage, but denied the accident, the injuries and the disability.

Following trial on the merits in th@ court below, the trial judge rendered written reasons for judgment which we herewith set out in full:

“This is a suit under the Workmen’s Compensation Act, LSA-R.S. 23:1021 et seq.
“On or about May 6, 1953, plaintiff was employed by T. Miller & Sons, Inc., in the town of Mamou, Evangeline Parish, La., as a carpenter-helper on a construction project. Plaintiff, in the course and scope of his employment was injured when he struck his left knee with a hammer. This accident was duly reported, and in due course, plaintiff was sent to a physician who referred plaintiff to an Orthopedic Surgeon who performed an Orthrotomy on plaintiff’s left knee.
“The main question at issue is the plaintiff’s disability. An incidental question concerns plaintiff’s wages for the purpose of computing the rate of compensation due him.
“The trial took place on the merits, plaintiff offering both expert and lay testimony on the question of disability. Defendant confined its evidence to the presentation of expert medical testimony.
“On the question of lay testimony, the plaintiff testified that he is unable to work because of the pain in his knee and leg. He stated that his wife and son had to make the 1954 crop with the assistance of hired help; that he had never hired help before except for cotton picking, since his farming operations were modest; that he tried to do light work and specifically harvest or dig sweet potatoes, but could not stand the work and was forced to quit before finishing the first day; that this knee hurts more at some times than at others, but that it hurts always; that he also has pain along his leg, below and above his knee, and up to his hip; that his leg swells frequently with or without exercise or exertion.
“Mrs. Elias Hollier, plaintiff’s wife, testified that she and her son, with the assistance of hired help, made the crop; that plaintiff had tried to work but could not; that plaintiff performed menial house chores while she worked in the fields; that plaintiff had never hired before except for picking cotton; that plaintiff’s knee swells frequently —every week; that plaintiff complains to her frequently, almost daily, about pain in his knee and above and below his knee; that the 1955 crop will be grown by her and her son; and that further, on cross-examination, plaintiff has never complained to her about pain in his back, and that complaints do not vary with the temperature.
“Another lay witness,' Mr. Isaac Deshotels, testified that plaintiff hired him to plant plaintiff’s 1954 cotton crop;' that he had never worked for plaintiff before; that he lives about one mile from plaintiff’s residence and has known plaintiff many years, but yet, he has never visited plaintiff and plaintiff has never visited him; that he does not do work for hire for anyone else and hired out to planitiff because plaintiff told him he had a sore knee and could not walk behind a plow.
“Another lay witness, Mr. George Soileau, testified that he had hired plaintiff to help dig potatoes in 1954; that plaintiff started work at 1:00 P.M. and was put to operating a plow, uprooting the potatoes, but that plaintiff, because of pain in his knee, could not follow the plow; plaintiff was thereafter put to picking potatoes and placing them in crates, but, in spite of this lighter work, plaintiff had to quit in the middle of the afternoon at about 3 :30 P.M.; that plaintiff had been hired for the entire afternoon.
“The plaintiff’s son, Gene Hollier, testified that he and his mother had grown plaintiff’s crop in 1954; that he had been working and living away from home about three or four weeks at the time of the trial; that he had last seen his father’s knee swollen about three or four weeks ago; that his father complained- about his knee and leg daily’; that he frequently Saw his father’s knee swollen; that his father’s pain did not seem to vary with the humidity or 'temperature;- that his father’s complaints were sometime in the morning, during the day or at night; that his father did not complain about his back, did not use a walking stick and did not limp; that he does not recall ever hearing his father complain about his leg or knee pri- or to this injury, while employed by’T. Miller & Sons, Inc.
“From the above lay, testimony, the. Court finds no difficulty at arriving at the conclusion that the plaintiff cannot work without suffering great pain, and that prior to the accident from which this suit arises, that plaintiff did and was able to do all the work required of him.
“In'view of the above finding of facts on the question on lay testimony,' the Court will now examine the expert medical.
“Dr. George B. Briel, M. D., Orthopedic Surgeon, testified that on his first examination of July 14, 1954, he found a ‘fair amount of tenderness over the scar and over the medial joint space’ ; ‘Considerable amount of pain along the medial joint space’; ‘mile amount of locking at 160 degrees’ and ‘a positive Appely Test’.
“On November 12, 1954, Dr. Briel again examined plaintiff and found ‘slight rebound tenderness’, excerpt ‘170 degrees extension’ ; ‘tenderness over the medial joint space and along the medial side of the patella’; ‘a considerable amount of grating and crepitation under the patella’ ; ‘a clunking sound in the knee’ ; ‘pain at the extreme of extension’ ; ‘10 degrees lateral instability of the knee’ ; ‘weakness of the quadriceps group and hamstring muscles of the left leg compared to the right leg and atrophy of the left calf, knee and thigh’.
“Dr. Briel re-examined plaintiff on March 9, 1955, and found the following objective signs: 1. ‘Swelling along the joint spaces’ ; 2. ‘Positive McMurray Test’ ; 3. ‘Positive Appely Test’ ; 4. ‘Less tone and strength in the quadriceps muscles than on previous examination.’
“The Court finds that from the above findings, Dr. Briel concluded that plaintiff presently has a loose piece of cartilage posterior in the knee joint.
“As against the above medical testimony of Dr. Briel, defendant relies strongly on the findings of the following:
“Dr. Charles V. Hatchette, Orthopedic Surgeon, examined plaintiff on May 21, 1953, and diagnosed his injury as ‘a tear of the medial meniscus’. On August 5, 1953, Dr. Hatchette surgically removed the torn medial meniscus. On December 4, 1953, four months thereafter, Dr. Hatchette discharged plaintiff as able to resume his regular duties. On January 21, 1954, plaintiff was again re-examined by Dr. Hatch-ette, who found a lack of- normal tone of the quadriceps muscles. On April 5, 1954, Dr. Hatchette found considerable improvement and advised plaintiff to return to his regular duties. Plaintiff was paid compensation during this entire time. On June 16, 1954, plaintiff was again examined and found able to return to work. Defendant ceased to pay compensation on June 9, 1954. On December 30, 1954, when plaintiff returned to Dr. Hatchette, he was found by the Doctor to have no disability. After that Dr. Hatchette did not see him.
“Another medical expert, Dr. Moss M. Bannermann, Orthopedic Surgeon, examined plaintiff once in January of 1955, and his findings were negative except for a small amount of atrophy of the left leg. Dr. Bannermann did find some slight disability which he estimated at five (5%) per cent. He has not seen the plaintiff since nor before.
“It is the contention of the defendant that it is a well established rule that in compensation suits, as well as in any other type' of civil- action, plaintiff, in order to recover, must prove his case by a preponderance of the evidence and with reasonable certainty. It is the further contention of the defendant that the testimony of Dr. Hatchette and Dr. Bannermann outweigh the testimony of .the plaintiff and the lay witnesses plus the testimony of Dr. Briel.
“The position of the plaintiff is that the positive testimony by either expert or layman is more convincing than negative testimony, and he cites as his authority, ‘Hair v. Williams Bros., [La. App.] 144 So. 800’.
“Plaintiff further contends that the positive testimony of all lay witnesses, plus that of Dr. George B. Briel, is far more convincing than the negative testimony of Dr. Hatchette and Dr. Ban-nermann, particularly when their failure to find the positive objective signs found by Dr. Briel is explainable and explained by their own testimony. The Court is inclined to agree with plaintiff.
“This court finds that our jurisprudence has conclusively established the fact that an employee is totally disabled when he can perform work of the same character in which he is engaged at the time of the accident only with substantial pain. This principle of law was reviewed in the case of ‘Zito v. Standard Accident Insurance Co., [La.App.] 76 So.2d 25.’ As heretofore stated, this Court found no difficulty in concluding that the plaintiff is unable to work because he suffers disabling pain upon the least exertion.
“On the incidental issue of the amount of compensation to which plaintiff is entitled, the Court finds that that matter was settled in the case of ‘Martin v. Great American Indemnity Co., [La.App.] 75 So.2d 415’.
“The claimant in this case worked six (6) days per week at eight (8) hours per day, weather permitting, is therefore entitled to sixty-five (65%) per cent of six (6) times his normal daily- wage of Eight ($8.00) Dollars, or the statutory maximum of Thirty and No/100 ($30.00) Dollars per week. . - -•
' “It is therefore the opinion of this Court that the plaintiff has established by-preponderance of evidence, that he suffered an accident while in the-course - and scope of his employment in a hazardous occupation, and that the disability ,is total and has continued from the date of his injury to this date,, and that his wages for the purposes of computing his compensation rate are Forty-eight and No/100 ($48.00) Dollars per week, and that his disability is a direct result of the above accident.
“Let proper decree be therefore prepared and presented to this Court for execution in open Court, and in accordance with the views hereinabove, and for all costs, less any compensation payment already made.”

The above quoted reasons for judgment represent an accurate statement of the facts as testified to by the various witnesses. It is the defendant’s contention in this appeal, of course, that the plaintiff has failed to prove his case by a preponderance of the evidence. The plaintiff’s position, on the other hand,- is that while the testimony of Doctors Hatchette and Bannermann may be against him, that it is overcome by the positive evidence, both lay and medical, introduced by him. The case, as we see it, is in many respects similar to that of Morrison v. Travelers Insurance Co., La.App., 79 So.2d 177, decided by us not quite a year ago. In that case the doctors who testified on behalf of the defendant were positive that there were no objective symptoms of pain and that the operation performed had been a complete success, while the plaintiff’s physician found the latter suffering from a relaxed inguinal ring and suffering a great deal of pain. In that case, the trial judge found in favor of the plaintiff and being unable to find any manifest error in his conclusions, we affirmed the judgment.

The same situation is true in this matter. While we are greatly impressed with the testimony of Doctors Hatchette and Ban-nermann, we are still unable to find where the record as a whole would reflect any manifest error in the conclusions arrived at by the trial judge.

While, as stated before, the plaintiff asked for penalties and attorney fees, which were not granted by the trial court, we need not pass upon this question as the plaintiff neither appealed nor answered the appeal taken by the defendant.

Finding no manifest error in the judgment appealed from, the same is hereby affirmed. v

Judgment affirmed.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    HAMMOND FINANCE CO., Inc. v. Marvin M. RENFRO et al.
    No. 4173.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.

      Henry A. Mentz, Jr., Hammond, for appellant.
    Ben N. Tucker, Hammond, for appellee.
   ELLIS, Judge.

Plaintiff appeals from a judgment dismissing its suit on an exception of no cause of action.

In its original petition, filed on November 11, 1953, plaintiff alleges substantially the following facts, viz.:

Louis Calamia executed a promissory note, identified with a chattel mortgage, for $892.80 on April 8, 1953, payable in 18 monthly installments of $49.60 each; beginning on May 8, 1953. In Jiily of 1953, Calamia became delinquent in making the payments on the note and, on August 15, 1953, Marvin Renfro agreed to assume the balance of $595.15 due on the note and mortgage. Plaintiff waives stipulations in the mortgage which authorize executory process and seeks judgment for the unpaid balance of $595.15 on said mortgage, which remains unpaid despite amicable demand, and recognition of its lien against the mortgaged property as a first privilege thereon. The note contained an acceleration clause and provisions for 8% per annum interest from date of default, and .for 25% attorney’s fees.

An attorney ad hoc was appointed to represent Calamia who was out of the State.

A supplemental and amended petition was filed by plaintiff on December 13, 1954, containing the following allegations:

On or about August 24, 1953, Marvin M. Renfro, through his wife, Mrs. Marvin M. Renfro, agreed to assume the balance on said note and mortgage and took possession of the mortgaged vehicle. Mrs. Ren-fro is Mrs. Calamia’s aunt and she and her husband, Mr. Marvin M. Renfro, were thoroughly acquainted with the circumstances surrounding the note and mortgage of the Calamia vehicle on April 8, 1953, and the fact that the loan had become in default. Mrs. Marvin M. Renfro represented to plaintiff that she had the full authority of her husband to assume the unpaid debt on the mortgage and on the strength of this representation, the plaintiff agreed that Mr. and Mrs. Renfro could assume the debt and take possession of the mortgaged vehicle, without releasing the primary obligation of Louis Calamia to see that the mortgage contract was performed. Mrs. Renfro also represented to the plaintiff that her husband was employed out of town and needed the vehicle to go to and from work and that the purchase of this vehicle was a family necessity. After 'August 24, 1953, Mr. and Mrs. Renfro made a payment of $30 on October 3, 1953, a payment of $20 on December 10, 1953, a payment of $49.60 on January 9, 1954, a payment of $25 on March 3, 1954, and a payment of $25 on May 10, 1954, in ratification and confirmation of the agreement to assume the mortgage.

An exception of no cause or right of action and an exception of improper joinder were filed by Mr. Renfro’s attorney. The exceptions of no cause of action and of no right of action were sustained and plaintiff’s suit was dismissed.

An application for new trial and/or rehearing was filed January 19, 1955 but was dismissed.

Plaintiff has perfected a devolutive appeal from the judgment of the trial court dismissing its suit on exceptions of no cause or right of action.

It is well settled that all well-pleaded allegations of fact contained in a petition which has been dismissed on an exception of no cause of action must be taken as true for the purposes of the exception. The question before this court is whether or not the allegations set forth above state a cause of action.

Defendant contends, on appeal, that the agreement sued upon in these proceedings amounts to a promise to pay the debt of a third person, and that, under Article 2278, Par. 3, of the LSA-Civil Code, such a promise cannot be proven by parol evidence :

“Parole Evidence—Proof of judgments, promise to pay debt of third person or renunciation of prescription.— Parol evidence shall not be received:
* * * * * *
“3. To prove any promise to pay the • debt of a third person.”

The above 'quoted article has been interpreted many times in our jurisprudence. In the case of Baskin v. Abell, 14 La.App. 601, 122 So. 133, 134, it is held that the “ ‘statute contemplates the mere promise of one man to be responsible for another, and cannot be interposed as a cover and shield against the actual obligations of the defendant himself.” Other cases similarly interpreting the article in question are: Coreil v. Vidrine, 188 La. 343, 177 So. 233; Fabacher v. Crampes, 166 La. 397, 117 So. 439; Wallenburg v. Kerry, 16 La.App. 221, 133 So. 823; Calhoun & Barnes, Inc., v. Epstein Land & Improvement Co., La.App., 165 So. 539.

As will appear from the following interpretation of.the alleged facts, an “actual obligation of the defendant himself” is set forth and, accordingly, on the trial on the merits, parol will be admissible to prove that obligation.

Under the facts alleged in the petitions, Calamia, Mrs. Renfro and Hammond Finance Company effected an agreement under which Calamia turned over the mortgaged vehicle to Mrs. Renfro on vhe strength of her promise to pay the balance due the Hammond Finance Co. on the original purchase price of the vehicle.

Counsel for defendant contends that such an agreement cannot amount to a sale since LSA-R.S. 32:705 provides that “On and after December 15, 1950, no person shall sell a vehicle without delivery to the purchaser thereof, * * * a certificate of title issued under this Chapter in the name of the seller with such signed endorsement of sale and assignment thereon as may be necessary to show title in the purchaser”. The case of Transportation Equipment Co., Inc., v. Dabdoub, La.App., 69 So.2d 640, 643, stands for the proposition that the “provisions of the statute clearly do not make the sale of a motor vehicle void if the transfer is not executed in conformity with the statute, but simply causes the title to be imperfect until the certificate is acquired.” In addition, it is found, in said case, that “the statute does not directly or by implication repeal the provisions of LSA-Civil Code Article 2456 * * * hence title to motor vehicles, although imperfect, may still be transferred in accordance with the provisions of LSA-Civil Code Article 2456 as between the parties, even though the purchaser has not complied with the Certificate of Title law.”

LSA-Civil Code Article 2456 reads as follows:

“The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.”

It is defendant’s contention that Mrs. Renfro could not bind her husband and the community for anything other-than necessities, and' that an automobile is not such a necessity. This question is. not before the Court, however, since Mr. Renfro ratified the purchase by making; several payments on the purchase price and using the automobile with full knowledge of the circumstances under which it came into his possession.

On the face of the petitions plain-fiff has alleged facts which if proven would constitute a sale of the Calamia automobile to defendant Marvin M. Renfro, in consideration of his paying the balance due on the purchase price by Calamia and under the same terms as shown in the act of mortgage.

The court must conclude that there was ample consideration for Marvin M. Renfro’s promise. He obtained possession of the vehicle and, under the authorities cited above, he obtained a title to the vehicle, even though the title was imperfect. Prior to the date upon which this suit was filed, he used the automobile for a period in excess of a year.

For the reasons assigned, the judgment of the trial court dismissing plaintiff’s suit on an exception of no cause or right of action is reversed, and the case is remanded to the trial court for a trial on the merits.


author: GLADNEY, Judge.

text:
    Clyde LOE, Plaintiff-Appellee, v. Arvis E. WHITMAN et al., Defendants-Appellants.
    No. 8504.
    Court of Appeal of Louisiana. Second Circuit.
    April 19, 1956.

      Elven E. Ponder, E. Drew McKinnis, C. Wayne Hays, Baton Rouge, for appellants.
    Robert H. Wimberly, Arcadia, for ap-pellee.
   GLADNEY, Judge.

The defendants applied for and were granted an order of suspensive appeal from a judgment rendered by the Second Judicial District Court making absolute a rule nisi enjoining them “and anyone acting under or through or in consort with them or either of them, from taking advantage of their possession of the plaintiff’s * * * mule * * * to sell or dispose of said mule.” The order of appeal was made returnable to this court on January 31, 1955. The appellants filed bond and properly perfected their appeal, but failed to deposit the five dollars fee required by Rule 3 of this court. When it became evident that appellants had no intention of making the deposit, the Clerk of this court returned the record to the trial court. After the Supreme Court, acting on writs applied for by the defendants, held the trial court to be divested of jurisdiction, 228 La. 598, 83 So. 2d 641, the appellee filed the record in this court with the requisite filing fee and has filed a motion to dismiss the appeal as not having been timely filed.

The issue to be resolved is whether the appeal should be dismissed on the motion presented by plaintiff. Had appellants complied with the rules of this court and deposited on or before the return date of the appeal the requisite filing fee the sufficiency of the appeal could not be validly questioned. We infer from briefs filed in their behalf that defendants failed to deposit the fee for the reason that their conduct and actions involved in this suit were in the performance of their duties as public officials of the State, of whom such costs may not be required, such exemption being provided by LSA-R.S. 13:4521, which provides :

“Except as hereinafter provided, neither the state, nor any parish, municipality, or other political subdivision, public 'board or commission, shall be required to pay court costs in any judicial proceeding instituted or prosecuted by or against the state or any such parish, municipality or other political subdivision, board or commission. This Section shall have no application to stenographers’ costs for taking testimony.”

The Constitution o-f Louisiana, Article VII, § 28, LSA, provides the cost of appeal in any case appealed to this court shall not exceed $5.00. LSA-R.S. 13:356 authorizes the deposit of $5.00 so paid to be apportioned and disbursed by t}ie clerk as directed and prescribed by the judges. Predicated upon the foregoing authority, this court adopted and promulgated in its rules Rule No. 3, which prohibits the filing by the clerk of any case until a deposit of $5.00 has been made. Except in instances where the appellant is favored by statute with an exemption from the payment of such costs, the clerk is accordingly prohibited from filing the record without the payment of the filing fee. Where an appellant has deliberately refused or failed to pay the filing fee required by the Constitution and statutes of this state and the rules of this court, the appeal must be dismissed. Danna v. Yazoo & M. V. R. Co., La.App., 154 So. 365; Varnell v. Babin, La.App., 13 So.2d 495; Johnson v. Louisville Fire & Marine Ins. Co., La.App., 49 So.2d 462; Automobile Ins. Co. of Hartford, Conn. v. Dykes, La. App., 50 So.2d 643.

The petition seeks to hold defendants individually liable only. They were cited as individuals, enjoined as such, and their appeal bond was executed in their individual capacities. Their employer, Division of State Police, is not sought to be held and is not a party defendant. Plaintiffs’ cause of action is founded upon Article 2315 of our LSA-Civil Code, which provides that: “Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it”, whereas the defense appears to rest primarily upon the contention that each of the defendants was acting in response to his duty as a public officer and therefore is exempt from liability for any act of negligence which he is alleged to have committed.

It must be recognized, of course, that there is no personal liability on the individual acting strictly pursuant to his public duties when that act is in good faith and without malice, for in such instances the action of the individual becomes merged in the official act. See: Monnier v. Godbold, 1906, 116 La. 165, 40 So. 604, 5 L.R.A.,N.S., 463; Tucker v. Edwards, 1948, 214 La. 560, 38 So.2d 241. Strahan v. Fussell, 1951, 218 La. 682, 50 So.2d 805. On the other hand when the defendant acts outside of his strict authority he breaches the condition of his immunity and is liable to a civil action for damages to persons harmed by his improper conduct. Harper on Torts, sec. 298, p. 668 ; 2 Shearman and Redfield on Negligence (Rev’d. Ed.), sec. 323, p. 792; 2 Elliott on Roads and Streets (4th Ed.), sec. 858, p. 1120; see also David, The Tort Liability of Public Officers, 12 So.Cal.L. Rev. 127, 151; Thibodaux v. Town of Thibodaux, 46 La.Ann. 1528, 16 So. 450; LeCourt v. Gaster, 50 La.Ann. 521, 23 So. 463; Tucker v. Edwards, supra; Anders v. McConnell, La.App., 31 So.2d 237; Strahan v. Fussell, 1951, supra.

The record is convincing that under the pleadings, any judgment which plaintiffs may be entitled to can affect their individual capacity only, and in consequence thereof there is no basis for recognizing the exemption from the payment of costs as claimed by the defendants.

The motion to dismiss is therefore sustained, the appeal is dismissed, and the record ordered returned to the District Court for further proceedings, the costs incurred upon this appeal to await the final termination of the case.


text:
    Henry Tate POOLE, Sr., Plaintiff-Appellee, v. Arvis E. WHITMAN et al., Defendants-Appellants.
    No. 8505.
    Court of Appeal of Louisiana. Second Circuit.
    April 19, 1956.
    Elven E. Ponder, E. Drew McKinnis, C. Wayne Hays, Baton Rouge, for appellants.
    Robert H. Wimberly, Arcadia, for appel-lee.
   GLADNEY, Judge.

This appeal presents a companion case to that of Loe v. Whitman, La.App., 87 So.2d 217.

The two cases were consolidated for trial in the District Court and the issues presented herein are the same as in the case heretofore decided. The question presented is as to the dismissal of appellants’ appeal for failure to deposit a filing fee as required by Rule No. 3 of the rules of this court.

For the reasons set forth in Loe v. Whitman, the motion to dismiss the appeal is sustained, the appeal is dismissed, and the record ordered returned to the District Court for further proceedings, the costs incurred upon this appeal to await the final termination of the case.


author: AYRES, Judge.

text:
    Jesse TAYLOR, Plaintiff-Appellee, v. GENERAL GAS CORPORATION, Defendant-Appellant.
    No. 8455.
    Court of Appeal of Louisiana. Second Circuit.
    April 19, 1956.

      W. T. Holloway, David T. Caldwell, Jonesboro, for appellant.
    W. Jackson Emmons, Jonesboro, for ap-pellee.
   AYRES, Judge.

Plaintiff, asserting ownership of a butane tank, prayed that a sheriff’s sale thereof under a judgment in favor of defendant and against Dudley Taylor and» Emily Taylor be decreed null and void and annulled, and that possession of the tank be restored to him. Coupled with his demands for recognition of title to said property, plaintiff prayed for judgment for damages sustained by him because of the wrongful seizure and sale of his property, such as for embarrassment, humiliation and impairment of credit rating, as well as a reasonable attorney’s fee, aggregating $1,100.

From a judgment recognizing plaintiff’s ownership of the tank and ordering its restoration to his possession, defendant appealed. Plaintiff has re-urged his demands for damages by answer to the appeal.

The record establishes these facts: That defendant, General Gas Corporation, on August 25, 1953, sold and delivered to Dudley Taylor and Emily Taylor, father and mother of plaintiff Jesse Taylor, a General Gas System Plant for residential use, including a 150-gallon butane tank, Serial No. 201971, together with range and connections, for the purchase price of $43.55 cash and a credit balance of $485.28, representative of which Dudley and Emily Taylor executed their vendor’s lien and chattel mortgage note, payable to said vendor in monthly installments.

None of this indebtedness having been paid, General Gas Corporation instituted suit on said note and obtained a judgment, dated February 5, 1954, against Dudley Taylor and Emily Taylor, in solido, for the aforesaid sum, plus interest, attorney’s fees and costs.

For the purpose of enforcing collection of said judgment, the sheriff of Jackson Parish, pursuant to a writ of fieri facias dated February 24, 1954, seized, advertised and sold to General Gas Corporation under date of March 27, 1954, the whole of said property for a price of $60. Subsequently, on August 27, 1954, another writ of fieri facias issued in said cause directing and commanding the seizure and sale of property of said debtors ■ sufficient to pay and discharge the remainder of said indebtedness. Accordingly, as was pointed out by the creditor in the writ .issued, there was seized, advertised and.sold to General Gas Corporation ,on September 25, 1954, the Butane tank involved herein and designated as a 150-gallon Sphere Butane System Tank, manufactured by Delta Tank Manufacturing Corporation and bearing Serial No. 85572.

Plaintiff’s action is predicated upon LSA-C.C. Art. -2452, which declares:

“The sale of a thing belonging to another person is null; * *

This principle applies to judicial sales. Guidry v. Sigler, La.App., 21 So.2d 232; Magnolia Petroleum Co. v. Keller, La. App., 22 So.2d 65.

To plaintiff’s action, defendant first filed an exception to the citation, which was abandoned in the trial court; then an exception to the jurisdiction of the court, which was overruled and which may now be considered as having been abandoned by not being urged before us, followed by a plea of estoppel, which was referred to the merits, and subsequently an exception of no cause or right of action, which we are informed in brief was directed at plaintiff’s demand for attorney’s fees as an item of the damages claimed. This exception likewise presents no issue before this court as plaintiff’s demands for attorney’s fees were rejected and he has neither appealed nor answered the appeal with respect to such fees. Hence, we are powerless and without authority to modify the judgment in appellee’s favor through the allowance of such fees.

On this appeal the defendant poses three questions for determination, (1) the ownership of the tank; (2) plaintiff’s estoppel to claim ownership thereof, and (3) in the alternative, what damages, if any, plaintiff has sustained.

We experience no difficulty in concluding that plaintiff is the owner of the tank. The record leaves no doubt of that fact. This tank was sold by General Gas Corporation to Grambling Supply Mart, Inc., Grambling, Louisiana, October 3, 1949, which concern conveyed it to Jesse Taylor July 19, 1953. This was established by the testimony of Bennie Woodard, president of the Grambling corporation, as well as that of the plaintiff herein. Plaintiff’s testimony was corroborated by the testimony of Dudley Taylor and Emily Taylor. There was no evidence to the contrary and plaintiff’s position was, in effect, conceded in brief filed by defendant. The fact that the tank was installed on his father’s premises, where he resided, does not alter the situation nor affect his ownership.

Neither do we find merit in defendant’s plea of estoppel. The record fails to disclose sufficient facts upon which such a plea might be sustained. The facts are that plaintiff was living with his parents and was employed by the Southern Advance Bag & Paper Company, Inc., as a common laborer at its plant at Hodge, Louisiana. He knew of the previous purchases made by his father and mother from the General Gas Corporation consisting of a butane gas system for their residence, a gas range and a tank; also, that on account of the non-payment of the purchase price the items purchased had been “picked up”. Subsequently, he was informed that additional “papers” had been served or left by the sheriff at his father’s residence but he disclaimed any knowledge or information concerning their contents, or that their contents had been discussed with him or that he had any idea that he could be affected thereby. He denied that he had any information as to the seizure of his tank until it was removed from the premises on the day of the sale after returning home from work at 1:00 o’clock P.M. During the afternoon he proceeded to defendant’s office, asserted his ownership of the tank and protested the sale. It is further established by a stipulation in the record that, when the seizure of this tank was made, plaintiff’s mother informed the sheriff or his deputy that the tank was not the property of either her or her husband 'but was owned by a third person, and that when the officers returned for the tank on the morning of the day of the sale, she informed them that her son was the owner of the property.

Defendant’s plea of estoppel is predicated upon plaintiff’s alleged silence and inaction. The defendant, as the purchaser of the property, does not enjoy the status of an innocent third person; it was the seizing creditor. It is not conceived wherein it could have 'been misled to its prejudice by any action or non-action of plaintiff. Information of the ownership of the tank, as was stipulated, was given the sheriff prior to the sale. The general rule for silence and inaction constituting a basis for an estoppel is stated in 31 C.J.S., Es-toppel, § 87, pp. 301-303:

“Mere silence of itself will not raise an estoppel. To make the silence of a party operate as an estoppel the circumstances must have been such as to render it his duty to speak, and there must also have been an opportunity to speak, and it is essential that he should have had knowledge of the facts, and that the adverse party should have been ignorant of the truth, and have been misled into doing that which he would not have done but for such silence.”

In Bishop v. Copeland, 222 La. 284, 62 So.2d 486, 489, which was a petitory action to recover a %ths interest in 74.64 acres of land situated in Claiborne Parish, Louisiana, the interest claimed was by virtue of ownership asserted by plaintiffs as heirs of their deceased half-sister. The defendant relied upon its plea of estoppel, and in this connection Justice McCaleb, as the author of the opinion, stated:

“It is professed' by counsel for defendant that plaintiffs. have estopped themselves from claiming ownership of an interest in the land because they sat idly by and permitted their father to be placed in possession of Angall’s succession as sole heir; that they knew that he was mortgaging the land to Burnette and that they, over a long period of time, allowed him to deal with the property as sole owner without protest.
“The proposition is not tenable. In ■the first place, the contention, even if it were otherwise sound, could affect only two of the plaintiffs as the other five were minors at the time their father, Tom Bishop, was placed in possession of Angall’s estate. But above this, the asserted inaction of plaintiffs could not constitute an es-toppel as it is the firmly established jurisprudence of this court that mere silence and delay cannot effect a loss of title to property other than by the laws of prescription. Long v. Chailan, supra [187 La. 507, 175 So. 42]; Tyson v. Spearman, 190 La. 871, 183 So. 201; Parker v. Ohio Oil Co., 191 La. 896, 186 So. 604; Dugas v. Powell, supra [207 La. 316, 21 So.2d 366]; Dileo v. Dileo, 217 La. 103, 46 So.2d 53 and Juneau v. Laborde, 219 La. 921, 54 So.2d 325.” (Emphasis supplied )

The authorities cited by defendant in support of this plea are inapposite, being clearly distinguishable on the facts.

Plaintiff's position, however, with respect to his claim for damages appears to us to be without merit. The property was placed by plaintiff on his father’s premises and, 'without being apprised of the ownership in some one else, it could not be said that, in having the property seized as the property of the father and mother to satisfy an indebtedness of theirs, defendant acted otherwise than in good faith. Lack of good faith on its part has not been. shown. There is no evidence showing that the protests made to the sheriff were ever communicated to the defendant; defendant’s local manager denied ever having received notice of plaintiff’s claim until after the sale. Nevertheless, whatever damages plaintiff may have suffered have not been proven to that degree of certainty that would justify an award in his favor.

We find no manifest error in the judgment appealed and it is, accordingly, affirmed at appellant’s cost.

Affirmed.


text:
    Joseph P. HABETZ v. VIDA SUGARS, Inc., et al.
    No. 4207.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.

      Mouton & Mouton, Lafayette, for appellant.
    Gravel, Humphries, Sheffield & Mansour, Alexandria, Provost & Ernest, New Iberia, for appellees.
   ELLIS, Judge.

Plaintiff appealed from a judgment of the District Court in favor of the defendant, Vida Sugars, Inc., and Coal Operators Casualty Company, dismissing and rejecting his demand.

Plaintiff sued for damages as the result of an accident and injuries which occurred on Nov. 11, 1952, during the course of the unloading of a truck of cane which plaintiff had hauled for his employer, Howard Breaux, to the defendant’s mill.

Plaintiff has alleged that he has been rendered totally and permanently disabled and that he was without actual knowledge as to how the accident occurred, and since the operation of unloading the truck was under the complete control and direction of the employees of the defendant, the latter had superior knowledge over that of the plaintiff and, therefore, he expressly 'pleads the doctrine of res ipsa loquitur. In the alternative plaintiff alleged that the accident, damages and injuries resulting therefrom were due to the gross negligence and 'carelessness on the part of the defendant and/or its employees, which negligence constituted the sole and proximate cause of the accident in the following respects:

(a) In the negligent and careless method of operating the derrick hoist by lifting the cane over the front cab of the truck where the driver was standing;
(b) In the negligent and careless operation of the derrick hoist by the sudden release of the clutch and application of the brake causing the load to jerk and break the chain;
(c) In its failure to park the truck sought to be unloaded in a safe position where the cane could be removed by hoist without passing over the cab of the truck and the driver thereof;
(d) In requiring the driver of the truck to stand near the cab (an inherently dangerous position) for the purpose of unhooking the chain after the cane had been dumped and replacing the chain in the truck ;
(e) In not providing sufficient employees for the purpose of unhooking the chain after the cane had been tripped to repláce the chain in the truck for the driver thereof;
(f) In not providing safety measures for the protection of cane drivers engaged in this operation, a dangerous operation, connected with the management of a sugar factory, knowing that said operation resulted frequently in the breaking of chains during unloading process.

Defendant’s answer was a general denial and in the alternative .a plea of contributory negligence and assumption of risk on the part of the plaintiff.

The District Judge found from the facts that the doctrine of res ipsa loquitur was not applicable and also that the plaintiff’s injuries were due solely and proximately to his own negligence and assumption of risk, in standing where he did. -

The record reveals that the plaintiff was employed by Howard Breaux as the driver of a cane truck engaged in hauling his employer’s cane to the defendant’s mill. The cane was loaded in the field of his employer presumably by the latter’s employees. In any event the defendant company had nothing whatever to do with the loading of Breaux’ cane into the truck. The chains were laid and the cane placed on them in such a manner that the chains could be fastened around it. The cane was then lifted by a derrick or other means in the field and in this process the chains tightened around the bundle of cane and it was placed on the truck body. It is shown that each bundle weighed approximately four or five tons and there were several bundles to the truck. The plaintiff drove the Breaux truck onto the premises of the defendant company and parked it in position for the derrick man operating the hoist to swing the derrick over and down to the bundles of cane in the truck where an employee of the defendant would hook the hoist chain to the chain surrounding the bundle of cane, then the defendant’s derrick man would lift the bundle from the truck and swing it to' the cane stack. After the cane had been swung and dropped on the stack, another employee of defendant would release the chain from the cane and the derrick man would swing the chain back to the side of the truck and drop it and the truck driver would pick the chain up and put it on his truck.

The defendant company had loaned Breaux chains to be used in bundling and loading the cane in the fields, however, Breaux also had chains of his own and there is no proof in the record as to whether the chain which broke while the truck operated by plaintiff was being unloaded belonged to the defendant or to Breaux.

This accident occurred on the morning of Nov. 11, 1952, when the derrick man at the defendant company was lifting the first bundle of cane out of the truck driven by plaintiff. - It appears that plaintiff, after placing the truck for unloading, had gotten out of the cab and walked to the front of the truck and was talking to the employee, of the defendant company when the derrick man lifted the bundle of cane and as he swung it over the side of the truck the chain broke and it is not clear whether the chain whipped out and struck the plaintiff on the head or whether a portion of the chain completely broke off and was slung through the air and struck him on the head.

The breaking of these chains in which the cane is bundled in the unloading process is rather a common • occurrence at all of the sugar mills, and the unloading is recognized as a most dangerous operation. The testimony shows that these chains in which the cane is wrapped for loading into the trucks break on account of being twisted or due to cold weather, jerking by the operator of the hoist when the brakes are applied or metal fatigue. In other words, if the chain which had been placed around this bundle of cane in Breaux’ field at the time of its loading was twisted on the bottom it could not be detected by the employees of the defendant. It is also shown that if the man who hooks the hoist to the bundle 'should twist the chain on top it might break. However, the employee’ who performed this duty testified positively that he had not hooked the chain with a twist. Under the facts' in this case the learned Judge of the District Court has fully discussed the inapplicability of the doctrine of res ipsa loquitur and given full reasons for his refusal to apply this doctrine and we quote:

“Plaintiff relies upon the doctrine of res ipsa loquitur and defendant Vida’s negligence. The Court cannot see that the doctrine applies and that Vida was in any way negligent.
“To apply the doctrine, the Court must conclude that the accident would not ordinarily have occurred in the absence of negligence on’the part of Vida, and the’ accident must have been proximately caused by an instrumentality, over which Vida had exclusive control. Alexander v. City of Shreveport, 1944, 205 La. 480, 17 So.2d 716, 718 (s. 4).
“The record clearly shows that Vida did not have complete control of anything; except the hoist. . The cane was loaded in Howard Breaux’s field, by Breaux’s employees, it may well be with Breaux’s chains. The bundle of cane was completely made up, ready to be hoisted, in Breaux’s field, by Breaux’s employee. The record shows that all chains break, and, certainly, that is not true only of Vida’s chains.
“The record shows that Viltz, who operated the hoist at Vida’s, is, according to the testimony of plaintiff’s own witnesses, one of the best operators in the business. Viltz hoisted this particular load in his same, usual, careful manner. There was no jerking of the load by him and he did nothing at all that would have caused the chain to break, because of negligence on his part. We copy of the following from Dunaway v. Maroun [La.]App. 2 Cir., 1938, 178 So. [710], 711:
‘(3-6) Blashfield’s 'Cyclopedia of Automobile Law & Practice, Volume 9, §§ 6043, 6048, 6046, verbo “Res Ipsa Loquitur Rule,” carries a cogent discussion of the doctrine in all of its phases, which he supports by citing decisions from many states of the Union. The following quotations excerpted from what he has to say, in our opinion, correctly reflect the operative effect of the rule in the respects mentioned, and apply to the facts of the present case: “When both the apparatus and the operation of it are in the control of the defendant, and the accident is one which ordinarily could not happen except by reason of defects in the apparatus or negligence in its operation, a presumption of one or the other arises from the happening of the accident. However, there are exceptions even to this rule. The application of the rule depends upon the circumstances in the particular case.
“ ‘ “The rule will not be applied where the evidence discloses that the injury might have occurred by reason of the concurrent negligence of two or more persons or causes, one of which was not under the management and control of the defendant. * * ’ ”
“The doctrine of res ipsa loquitur is applied where, by reason of the mere happening of the accident, defendant is in a better position to explain its occurrence than the plaintiff, Loprestie v. Roy Motors, 1938, 191 La. 239, 185 So. 11, 13(7).
“That is not the case here. Bujol v. Gulf States U. Co. [La.] App. 1st Cir., 1933, 147 So. 545, 548, (3) holds that: ‘ “the doctrine allows a presumption of negligence, on the part of the defendant, as arising under certain circumstances, but has no application where it is clearly shown that the deceased was killed by his own negligence.” ’ This decision has peculiar application to the case at bar.”
Counsel for plaintiff on the plea of res ipsa loquitur has the following to say in his brief:
“The applicability of the doctrine of res ipsa loquitur is to be determined by the court on the conclusion of the trial, and we now propose to discuss the many reasons why this doctrine is particularly applicable in the case at bar.
“The plaintiff very frankly and unhesitatingly testified that he had no recollection whatsoever of what happened at the time he sustained the injury and sometime prior thereto.
“It cannot be successfully contended by the defendant that it did not have superior knowledge as to the happening of the causes that brought about the accident and the injury entailed thereby. The process of unloading prior to the accident had been conducted exclusively and was under the sole control of the employees of defendant company, and up to that time, consisted of one man, an employee of defendant corporation, getting on the truck driven by plaintiff and hitching the chain from the hoist to the chain that bound the cane together, and then the operator of the hoist, in lifting the cane to deposit it on the pile in the yard of the factory. The plaintiff had nothing whatsoever to do with the part of the unloading; and, as he was so seriously injured during the unloading process and remembers nothing of the happenings that caused his injury, the employees of plaintiff’s (defendant’s) company were certainly in a vantage position to explain to the court the happenings that brought about the accident and the injuries sustained by the plaintiff.”

It is true that the employees of the defendant had complete charge and control of unloading the Breaux truck which was in charge of the plaintiff. However, the record is devoid of any testimony that shows any negligent act by such employees in the unloading process. On the other hand, it is shown that the breaking of the chain could have been due to the negligence of Breaux’ employees when they loaded the cane in the field, therefore the employees of the defendant company whom the record shows committed no negligent act in unloading the cane were not in a “vantage position” to explain to the court the happening that brought about the accident if-it was due to negligence on the part of the employees of plaintiff’s employer, Breaux.

For the doctrine to be applicable in this case it would be necessary for the facts to show that the defendant company had complete charge of the loading as well as the unloading of the cane.

Counsel for plaintiff in his brief argues that if the accident was caused by the negligence of Breaux and/or his employees, that the doctrine laid down by this court in Edelmen v. Refrigerator Equipment Co., Inc., 72 So.2d 627, is applicable and the defendant still cannot escape. In that case it was held that where the negligent acts of two parties “were each a concurring, contributing and proximate cause of the accident”, each or both were liable. This case is not applicable to the facts in the present case for there was no negligent act committed in the process of unloading this cane by the defendant company which was concurrent, contributed to or rívas a proximate cause of the accident. This could have come about if Breaux’ employees had twisted the chain and then the defendant’s derrick man in lifting the cane had swung it and applied his brakes so as to cause the load to jerk and put extra pressure upon this chain, then the cited case would be applicable, but the proof insofar as the manner in which the cane was unloaded is all to the contrary.

The many cases cited by able counsel in his exhaustive brief which dealt with the doctrine of res ipsa loquitur are' not applicable to the case at bar for the defendant company did not have complete charge of the loading of the cane in the truck so as to be responsible for a twisted chain or any other negligent manner in which this cane might have been loaded.

The alternative plea of negligence on the part of defendant as charged by the plaintiff in his petition, 'supra, which are designated (a) through .(f) are not sustained by the proof in this record.

The testimony shows that the cane was not lifted - over the front cab of the truck where the -driver -was standing but was lifted three feet to the rear of the cab, whereas the driver was standing in the front of his truck, nor is there any proof of the charge contained in Paragraph (b) that the derrick hoist was recklessly and carelessly operated by the sudden release of the clutch and application of the brake, causing the load to jerk and break the chain. The charge contained in (c) that the defendant company failed to park the truck in a safe position so that the cane could be removed by hoist without passing over the cab of the truck and the driver of the truck is not proven. Neither is the charge contained in (d) that the defendant company requested the driver of the truck to stand near the cab, “an inherently dangerous position”, for the purpose of unhooking the chains' after the cane had been dumped and replacing the chain in the truck. It is shown that the driver was not required to: stand any particular place except that he was supposed to get out of the cab and go a safe distance. It is true that at defendant’s mill, unlike the .practice at some other mills, the driver of the truck unhooked the chain after the cane had been dumped and replaced his chain in his truck. ■ However, there was no requirement that the driver of.the truck stand in a dangerous position for. this purpose, hut there is testimony that.the drivers were in a hurry to make, another load and usually rushed in to get the chain. .The position in which the plaintiff was standing at the time he was injured was where some of the plaintiff’s witnesses said it was customary for a driver to stand, at. the front of the truck. In this position the cane did not pass over his head and if the chain broke the driver remained unhurt by the falling cane. In fact, this is the only accident in which the chain struck a driver standing in front of his truck according to the testimony in this record.

Counsel for plaintiff criticized a statement of the Lower Court in its written reasons that no driver was ever injured at the defendant’9 mill prior to this injury “even though two or three chains broke every day. The defendant can hope to find no solace in the fact that no prior injury occurred. The Court held in the case of Chavers v. A. R. Blossman, Inc. [La.App.], 45 So.2d 398, that the consequences of negligence are always invariably surprises and that a man may be negligent in a particular matter a thousand times without mischief, yet, though the chance of mischief is only one in a thousand, the court would continue to hold that the mischief, when it occurs, is imputable to the negligence, quoting from Wharton Law of Negligence, 2d Ed., 77. In that same decision the Court referred to the case of Payne v. Georgetown Lumber Company, Ltd. [117 La. 983], 42 So. 475, in declaring that the particular injurious consequence was improbable or not to be reasonably expected was of no defense *

“Negligence @~559. The General doctrine of foreseeability ■ is not applicable to the extent of relieving one who sets in motion, through the agency of the negligent act, a chain of circumstances leading to the final resultant injury.” Chavers v. A. R. Blossman, Inc., 45 So.2d 398, syl. 4.

Counsel’s criticism is not well taken for there is no proof that the defendant set in motion through the agency of a negligent act a chain of circumstances leading to the plaintiff’s accident and injury.

The charge contained in Paragraph (e) is not shown to have contributed in any manner to the plaintiff’s accident and injury.

As to the charge referred to in Paragraph (f) that the defendant was negligent in not providing safety measures for the protection of the cane drivers engaged in this operation, which was a dangerous one, knowing that said operation resulted frequently in the breaking of chains during the unloading process, counsel for plaintiff contends in his brief:

"The employer is certainly chargeable with the knowledge of its employee, the hoist operator, and since it knew of the very dangerous situation connected with the unloading process by the breaking of chains several times a day, it certainly should have taken necessary safety measures to guard against injury of those bringing cane to the factory.
“As we stated before, where dangerous agencies are employed, it is necessary that the operator use care commensurate with the danger so as to eliminate injury resulting to persons or damage to property in the vicinity. This is very forcibly brought out by the case of Prescott v. Central Contracting Co., 162 La. [885], 886, [111 So. 269] from which we quote as follows :
“‘2. Negligence ©^ló — Persons employing dangerous agencies must use care commensurate with danger.
“ ‘Those who employ agencies, which may endanger persons or property, must use care commensurate with the ■ danger and risk reasonably to be apprehended.’ ”

As previously stated the testimony shows that most of the truck drivers customarily stood in front of their truck as this spot had always been a safe position until this particular accident occurred.

Can it be said 'under the facts that the defendant did not use care commensurate with the danger and risk reasonably to be apprehended when it required its drivers to get out of the cab of their truck and out of the way of the bundle of cane while in the process of lifting it from the truck and placing it on the stack ? While chains broke frequently to the knowledge, we feel sure, as found by the trial judge, of the plaintiff and defendant and all other employees engaged in the loading and unloading of these cane trucks whose presence was required during the unloading process as was plaintiff in this case, this was the first time that an accident such as happened to plaintiff had occurred. Therefore, under the facts in this case defendant could not have reasonably apprehended any danger or risk to a driver standing in front of his truck.

Assuming merely for the sake of argument that the defendant was guilty of negligence, it would then be necessary to decide whether the plaintiff should be denied recovery on the ground of assumption of the risk or contributory negligence. We agree with the finding of the District Judge on this point and quote from his written reasons denying plaintiff’s recovery on these grounds, as follows:

“As far as this Court can see, plaintiff’s injury was due solely and proximately to his own negligence and assumption of risk, in standing where he did. Plaintiff is an intelligent man, he had delivered cane to Vida’s mill for a number of years; he knew that there is danger in hoisting cane from the truck to the carriage or to the pile; he knew that chains broke continually ; and the Court is bound to conclude that he, as well as all other drivers, knew of the dangerous operation of hoisting and swinging cane and that he should have done what the other' drivers did — remove himself to a place of safety, which he could have done very easily...
“Proximate cause is well defined in Gay v. U[nited] S[tates] F[delity] & G[uaranty] Co., [La.]App 2 Cir. 1954, 76 So. 2d [60] at Page 64:
“ * “A comprehensive definition, and one which is, perhaps, most often stated, is that proximate cause is any cause which in natural and continuous sequence, unbrolien by any efficient intervening cause, produces the result complained of and without which the result would not have occurred, and from which it ought to have been foreseen or reasonably anticipated by a person of ordinary prudence in the exercise of ordinary care that the injury complained of, or some similar injury, would result therefrom as a natural and probable consequence.” *
“As I said before, the case of Bujol v. Gulf States U. Co. clearly holds that the plaintiff cannot recover on account of his contributory negligence and assumption of the obvious, known (to him) danger.
“I refer to the many cases cited in 14 La. Dig., Dart, ^20, commencing at page 79, on contributory negligence and imputed negligence, especially those holding:
“ ‘To constitute contributory negligence, it must be shown that plaintiff voluntarily and unnecessarily exposed himself to a known danger.’
“ ‘Contributory negligence is act or omission of plaintiff amounting to want of ordinary care, which, concurring with negligent act of defendant, is the proximate cause of injury.’
“ ‘Where plaintiff contributes to accident by his own want of ordinary care, he may not recover damages against defendant, who may have been negligent.’
“ ‘Negligence is contributory in a legal sense, when and only when it is a proximate cause of the injury, and if such contribution exists in the least degree there can be no recovery.’
“ ‘In action by experienced air-craft inspector for personal injuries sustained in fall from ladder, which was wobbly and did not have hand-holds, plaintiff was held to have assumed the risk by using the defective structure with knowledge of the defects.’
“ ‘Where one goes on premises by implied permission, he assumes responsibility of all risks incident to the place.’
“ ‘In order to charge an injured person with contributory negligence, it must be first shown that he should reasonably have apprehended the danger which threatened him.’
“ ‘Where plaintiff had been taking wood from a certain place for 20 years and was familiar with the situation, he was negligent in putting himself within range of falling pieces of wood.’
"This last statement is taken from the case of Little v. A. Wilbert’s Sons’ L. & S. Co., 1917, 142 La. 122, 76 So. 582, and this case also has peculiar application to the case at bar.
“As to the duty of Vida to the plaintiff, as Vida’s invitee, and invitee’s contributory negligence, see: 65 C.J.S., [Negligence] § 50, Page 541; Corpus Juris, Vol. 45, verbo Negligence, Sec. 237, and Sec. 244; Regenbogen v. Southern Shipwrecking Corp., [La.]App. Orleans 1940, 41 So.2d 110, 112.
“This last case is cited with approval in Fradger v. Shaffer-Stein Corp., [La.]App. 2d Cir. 1954, 73 So.2d 612, 614, 615 and 616.
“In view of all of the above, this Court can only conclude that plaintiff, an intelligent, mature man, exposed himself carelessly to a known danger and to a danger which was obvious to anyone and should have been observed in the exercise of reasonable care. He cannot recover, even if it should be held that defendant Vida was negligent.”

Plaintiff, in argument and brief to this Court, complains of the statement of the trial court that plaintiff had delivered cane to Vida’s mill for a number of years, and urges that he had only three weeks experience as a truck driver, and so' far as the record shows had no knowledge that the condition was dangerous. It is shown that plaintiff hauled his own cane for about thirty days in 1946 and hauled for about two weeks in 1948 and in 1952 for one week and two days, and, in addition, every employee and official who testified admitted that it was a very hazardous operation and the District Court found: “The danger from the operation was obvious, apparent and well-known by all.”

We agree with the District Judge that plaintiff had sufficient knowledge and experience so as to be cognizant of and chargeable with the danger in the unloading operation.

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