text:
    Frank ASHWORTH, Plaintiff-Appellant, v. CALCASIEU PAPER COMPANY, Inc., Defendant-Appellee.
    No. 4128.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Rehearing Denied March 20, 1956.
    Julius T. Long, Shreveport, for appellant.
    Plauche & Plauche, Lake Charles, for appellee.
   TATE, Judge.

Plaintiff Ashworth was held totally and permanently disabled by the District Court by reason of a knee injury. He waIs awarded 400 weeks workmen’s compensation benefits at the rate of $28.92 per week, conditioned upon his accepting an operation tendered by defendant employer, which allegedly will correct the disability resulting from the ruptured or torn medial (inside) semi-lunar cartilage (sometimes called the medial meniscus) of his right knee.

Ashworth devolutively appealed from this judgment in his favor, requesting that it be amended to hold that his present disability also results from a right .inguinal-hernia, a lower back injury, and a right hand injury allegedly resulting from the same accident; and also, to strike out the judgment’s requirement that Ashworth submit to the major surgery recommended by the physicians to cure his knee disability. Defendant employer did not answer the appeal.

It is now undisputed, and indeed there is no evidence at all to the contrary, that Ash-worth in the course of his employment at defendant’s paper mill in Elizabeth, La., suffered an industrial accident. One leg fell up to his groin, or the fork of his body, into a hole between heavy rolls of paper, and while so .fallen, a moving heavy roll of paper (weighing about 300 lbs.) caught him and crushed his right front and back between it and other rolls of paper. .

Without recapitulating the evidence, we may simply - state that the vast preponderance of the medical evidence indicates no residual disabling- effects from the back sprain and finger injuries initially sustained. There is further little question, as the District Court found, that Ashworth is presently disabled by a knee injury sustained in the same accident, being the aforesaid ruptured medial meniscus.

As to the disability resulting from incomplete or potential right inguinal hernia, we believe the preponderance of the evidence in the record indicates this to be a disabling condition resulting from accident in the course of Ashworth’s employment with the defendant.

It is undisputed that on the initial examination of Ashworth by Dr. C. L. Saint, the company physician, Dr. Saint examined Ashworth for a hernia condition and found a “right inguinal hernia pouching.”

As to whether this condition resulted from the industrial accident, Ashworth testified, TR-110:

“Q. I’ll ask you whether or not that area of your body (i. e., the hernia) was hurt in this fall? A. That’s right.
“Q. How was it hurt? What was the first you knew that you was hurt in the area that he examined you this morning? A. When I first knew it, well, it hurt through there. I had a hurting all the way through there. Right straight through. I did not know what the cause of it was.
“Q. When you went to Dr. Saint the first time, did he examine you for Hernia? A. He examined me for Hernia and he examined me in my lower back.” (Italics ours).

Aside from plaintiff, the only witnesses to testify in this cause were doctors, as follows : On behalf of defendant, Dr. T. E. Banks and Dr. C. V. Hatchette, orthopedic specialists, and Dr. C. L. Saint, general practitioner and company physician. Three general practitioners testified for plaintiff: Dr. W. E. Reid, Dr. O. B. Owens, and Dr. George W. Smith.

The first two orthopedic specialists did not testify concerning the hernia condition, nor apparently did they examine Ashworth with regard to same. Their lack of interest therein, of course, is explained by it being outside the field of their specialty.

The testimony of Dr. C. L. Saint is as follows:

“Q. Now, isn’t that known by all doctors, that know anything about a hernia, as an incomplete hernia? Isn’t that an incomplete hernia ? A. I don’t quite understand that question — an incomplete hernia. It’s either a hernia or no hernia or potential hernia you might say.
“Q. Yeh, but I want more than that. Isn’t a potential hernia sometimes just has that enlarged ring. This man has more than just an enlarged ring there? A. Yes, he has a pouching.” (TR-138)
******
“Q. Is that man a safe risk for you to recommend to work? A. No.
“Q. You wouldn’t recommend him to work, would you? A. No.
“Q. Talk out so they can hear you. You wouldn’t recommend that kind of man to work, that’s got that condition?. A. No. (TR-139)

The substance of Dr. W. E. Reid’s testimony is contained in the following excerpts from his testimony:

“Q. That is more than what you’d call potential hernia? A. Well, it is a potential hernia but you find it bulging down well against your finger through the ring, the external ring.
“Q. Well, what kind of a hernia is that? A. It is a potential hernia; it is not through but it does bulge down against the finger. Therefore, he has an incomplete hernia.
“Q. Should that be operated on? A. Yes.” (TR-83)
******
“Q. Well, do you think that he ought to work until that hernia is corrected? A. I don’t think so because it’s going to come through if he does any strenuous work. (TR-85)
******
“Q. In which case of course you have to rely pretty well upon the veracity of the patient? A. Yes. The only thing that I am sure of is that he has either a ruptured external ring and has that potential or indirect hernia, whichever you want to call it. It is indirect all right down through the canal, but it is not entirely through. It bulges down to your finger, etc., and of course we know an operation is the only cure for it.” (TR-87)

Dr. O. W. Owens failed to find a right inguinal hernia disability, while Dr. George W. Smith thought that Ashworth was disabled by reason of same.

The medical testimony indicates that an accident such as was sustained by Ash-worth could produce his present condition, and as above outlined, we believe the preponderance of the medical testimony indicates that Ashworth is presently disabled because of a “potential” or an “incomplete” hernia. While defendant correctly urges that an unfavorable inference may be drawn from the failure of plaintiff to take the testimony of Dr. Beckcom, the personal physician who first treated Ashworth after the accident, we do not believe the unfavorable inference outweighs credible sworn testimony.

The serious question, of course, is whether this disability arose because of the industrial accident and is compensable.

The substance of defendant’s factual defense is contained in the following testimony of Dr. C. L. Saipt at TR-140:

“Q. Do you know even whether it was acquired on the job? A. No.
“Q. The fact that it was completely asymptomatic upon your questioning at all times following this injury, do you have any idea as to where it was acquired or could have been acquired? A. No.
“Q. Could it have been acquired in, hundreds of ways other than by reason of the history of this particular accident, assuming that such an accident occurred? A. Certainly.
“Q. Would it he possible for me to say to get a hernia, merely on getting up and out of his chair or lifting his chair or going down ■ the stairs ? A. Yes.
“Q. If it was a true traumatic hernia caused by a severe blow in the abdomen, would it not have been symptomatic in your opinion? A. Immediately.
“Q. And upon your palpations, would it not have' been symptomatic rather than asymptomatic upon your examination? A. Yes.”

Taking into consideration the circumstances that Ashworth was initially suffering from back, knee, and hand injury, as Well as a kidney ailment, we do not believe his failure .to call the attention to the first examining physicians to pain in this area to be especially significant.' Ashworth’s prior record of public employment over an extended ■ period of time without a single prior industrial disability or any complaint whatsoever prior to this accident of pain in the area of the potential or incomplete hernia; his testimony that pain in this area commenced at the time of the accident and continued thereafter; in our opinion, adequately support the finding that his present undoubted disability in this respect stems from this industrial accident.

Further, we are not. overly impressed with the accuracy of the recollection and records of the company'physician, Dr. C. L. Saint, who testified, nor his objectivity, since, he gratuitously testified to the effect that Ashworth’s complaints did not originate in an industrial accident, (his notes allegedly stated that Ashworth “reported to his foreman 'that he couldn’t work because his back ached and his kidneys wouldn’t act”), when the uncontradicted testimony — undenied by defendant employer — is to the contrary; gratuitously included an unfavorable valuation of Ashworth’s credibility, and . reference to “The. first thing I noticed was definite alcoholic odor in his breath” on date of first examination; found significant a diseased tooth which absolutely no other physician testifying found worthy of comment; and in general overlooked as significant symptoms of the knee and back and finger which Dr. T. E. Banks, approximately three weeks later, found worthy of comment (e. g., Dr. Banks found “a definite area of swelling” at the knee, “slight splinting off the low back” and tenderness, a “definite ulnar deviation of the little finger”, which allegedly despite examination with reference to these specific complaints the company physician was unable to notice.) In fairness, however, we must note that this physician did discover a “right inguinal hernia pouching”, and admitted that he could insert his finger %ths of an inch into Ashworth’s abdomen.

Partly on the basis of this testimony, the able District Court held the hernia claim of plaintiff an afterthought. But the chief basis of his holding was that a condition denoted as a “potential hernia” is not compensable. While of course this is true with regard to nondisabling “potential” hernias which are only a congenital enlargements of the inguinal rings, in the present instance what is sometimes denoted as a “potential” hernia is actually a traumatic weakening in which there is a bulging, but not a rupture, of the tissues — what in some of the lawcases is denoted as an “incomplete” hernia.

Thus, defendant-appellee urges that the condition known as a “potential hernia” is never compensable, citing Cormier v. Hart-Mun Furnace Co., La.App. 1 Cir., 9 So.2d 814, Taylor v. Kirby Lumber Co., La.App. 1 Cir., 182 So. 169 and Deville v. Dennis, La.App. 1 Cir., 152 So. 154. The first two cases concern instances where the “potential” hernia specifically was found to be nontraumatic in origin and not disabling, being nothing more than a predisposition to sustain a hernia; and the last cited case concerns an instance where a congenital (“embryonic”) potential hernia had indeed resulted in a true hernia from some strain or cough, but where the court specifically found that there was no proof that this strain or accident had occurred in the •course of employment with defendant employer so as to render the disability com-pensable.

In the present instance, whether the doctors denote Ashworth’s condition as a “potential” or an “incomplete” hernia, they agree it is disabling; and as above-stated, we find the preponderance of the evidence proves that this condition resulted from the accident in the course of his employment. The present injury and disability, therefore, is similar to those for which compensation was awarded in Long v. Louisiana Highway Commission, La.App., 2 So.2d 683; Parker v. Weber-King Mfg. Co., 1 Cir., 19 La.App. 177, 139 So. 660, and Plumlee v. Calcasieu Sulphate Paper Co., Inc., 1 Cir., 16 La.App. 670, 132 So. 811, where incomplete hernias resulting from industrial trauma were held to be compen-sable. ‘ “An attempt on his (the employee’s) part to do hard manual labor would cause pain and a possible complete hernia, there is no reason for him to undergo that pain and incur that danger” ’ ”, Long v. Louisiana Highway Commission, La.App., 2 So.2d 683, at page 686. As stated in Rivero v. Leaveau, La.App., 45 So.2d 418, at page 422, “the giving way of any portion of the laborer’s body while engaged in his work” constitutes a compensable accident.

In view of the foregoing finding, it is inappropriate for this court to issue any dicta concerning whether plaintiff should be required to submit to an operation to correct the medial meniscus condition — that is whether this court will follow Simmons v. Blair, 194 La. 672, 194 So. 585, or the later Second Circuit cases, Fredieu v. Mansfield Hardwood Lumber Co., La.App. 1951, 53 So.2d 170 and French v. Employers Mutual Liability Insurance Company of Wisconsin, La.App.1954, 70 So.2d 179. Since Ashworth. is disabled from other causes as well as the medial meniscus, the judgment will b,e and is hereby amended to strike out the requirement' that plaintiff submit to surgery, for the above and foregoing reasons, and is affirmed in all other respects insofar as awarding weekly compensation during disability, interests, costs, etc.

Amended and affirmed. ■

      . This initial examination was on August 11, about 18 days after the accident; Ashworth had been undergoing treatment by a personal physician in the interim, having reported to Dr. Saint about four days after the accident, during which four days Ashworth had been home off work. Due to a misunderstanding or disagreement on originally reporting to Dr. Saint, he was told to come back the following day, but instead went to a private physician that same night.


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    Mrs. William A. DUNCAN v. Orey TANNER.
    No. 19084.
    Court of Appeal of Louisiana, Orleans.
    March 5, 1956.

      Porteous & Johnson, Wm. A. Porteous, Jr., New Orleans, for appellant.
    Connolly & Simoneaux, M. R. Simon-eaux, Trial Atty., New Orleans, for ap-pellee.
   JANVIER, Judge.

The plaintiff is the widow of William A. Duncan who, more than twenty years ago, died as a result of a 'blow of the fist struck by the defendant, Orey Tanner, in a beer parlor operated by Winfield, commonly known as “Jack” Tanner, the brother of the defendant.

Plaintiff alleges that her husband had been in the said barroom for more than an hour during which time he and his brother, Winfield Tanner, the operator of the bar, had been “skylarking or boxing in the friendliest spirit, when all of a sudden and without any previous warning the defendant, Orey Tanner, who was unknown to your petitioner’s husband, struck your petitioner’s husband a hard or violent blow on the head with his fist and broke the neck of your petitioner’s husband, killing him instantly.”

The defendant answered, denying generally all of the allegations of the petition and especially averring that Duncan, “shortly before midnight,” had come into the beer parlor in a “quarrelsome, boisterous and violent mood, under the influence of liquor,” and that he had created a disturbance and “picked a straw hat off the head of one of the customers and proceeded to kick the same all around the beer parlor, * * * ” that the said Duncan had been asked to leave and had refused to do so; that the defendant had left the beer parlor and on returning saw that the deceased was “clinched with defendant’s brother, Winfield Tanner,” and that the “defendant’s brother appeared to be trying to extricate himself from the clinch,” but “was being securely held by said deceased who was endeavoring to strike defendant’s brother,” and that the defendant “believing that his brother was in grave danger of severe bodily injury and harm, or perhaps death, * * * in defense of the person and life of his said brother struck said William A. Duncan with his fist.”

There was judgment dismissing the plaintiff’s suit. She has appealed.

The matter remained on appeal here for many years, apparently with no effort on the part of counsel for plaintiff to have it placed on the docket for hearing.

In the District Court the testimony was taken before Luther E. Hall, now one of the Judges of the Civil District Court for the Parish of Orleans, then commissioner of the Civil District Court. A study of the record conclusively establishes the correctness of the findings of fact made by the said commissioner from which we shall quote.

“At about 8 P.M. the deceased, accompanied by a friend * * * attended a business meeting” of the church society of which he was President. “The meeting broke up about 9:30 P.M. and the deceased and his friend drove to a beer parlor operated by one Frank Basile * * * where they had a ‘few rounds’ of beer and where on leaving the deceased obtained some boiled shrimp to take home to his wife.” Instead of going home, however, the deceased went to Tanner’s beer parlor operated by a brother of the defendant, commonly called “Jack”. They arrived at Tanner’s beer parlor about midnight and remained there until the deceased was killed about an hour later. “It is undisputed that the deceased and his friend * * * had been drinking beer even before they went to the meeting * * * ” and that “they drank some beer at Basile’s place before going to Tanner’s Beer Parlor, and that they had some more at the latter place.”

The Commissioner found that it could not be determined just how much beer the deceased had drunk during the evening, but that “he had had at least eight or ten ‘6 or 8 ounce’ glasses.”

The Commissioner found from the record that, when the deceased had arrived at the church meeting sometime before going to Tanner’s Beer Parlor, he at that time gave the Pastor the impression that he had been drinking. The Pastor stated that he would not say that he was intoxicated, and that he based his impression that the deceased had been drinking on the way he talked, on the fact that he criticized everything very ■severely and that “even some of the ladies noticed that.” Weber, one of the customers in Tanner’s Beer Parlor whose hat was kicked around by the decedent, said that very obviously Duncan was looking for trouble and that for that reason he left the place before the fatal blow was struck.

The defendant, Orey Tanner, stated that he arrived at his brother’s beer parlor shortly after midnight, and that it was very obvious that the decedent Duncan was “in a belligerent mood,” and that he tried to go behind the bar and was asked to stay out by Jack Tanner; that, after breaking up Weber’s hat, the deceased put it on his head and started singing in a loud voice and that Jack Tanner asked him to stop creating a nuisance and said that “if he didn’t stop he would have to leave” and that the deceased then said “who is going to put me out, go get your big ‘mush’ brother to help you put me out.” The big brother referred to was the defendant, Orey Tanner, who says that he left the place “because it looked like trouble was brewing”; that he drove away and then, thinking that Duncan had left, he returned to his brother’s beer parlor and found “that the deceased was in the middle of the floor shouting.” He says that he again left to go to the toilet and that when he returned to the barroom the deceased “grabbed” his brother by the arm and tried to place it behind his back and that his brother said, “Don’t hit me, Duncan, don’t hit me,” and that he, defendant, then pushed the two apart when Duncan advanced on him with his fist and that he then struck Duncan with the fatal result.

The record leaves no doubt whatever that the decedent was highly intoxicated, that he was very objectionable, that he was anxious to engage in a fight with anyone, and that the defendant, Orey Tanner, was amply justified in believing that his brother was in danger of bodily harm.

The brother, “Jack” Tanner, was a comparatively small man, weighing about 150 pounds and being only 5' 6" or 8" in height, whereas Duncan himself was more than six feet tall and weighed over 200 pounds.

There can be no doubt that the defendant did not intend to kill Duncan and that he thought it necessary to hit him with his fist in his attempt to defend his brother from the attack which seemed to be impending.

Under the circumstances he is not liable for the fatal result. There can be no doubt that he was justified in striking Duncan whether it was in defense of himself or in defense of his brother.

It is well settled that where one who provokes an assault or who is the aggressor in a barroom brawl, such as that which we have discussed, sustains injury, or is even killed as the result of a brawl instigated by him, there can be no recovery.

Had it not been for the unfortunate and unexpected serious result we would not have dignified this barroom brawl by giving it so lengthy a discussion.

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

Affirmed.


author: McBRIDE, Judge.

text:
    Elva MURO, Divorced Wife of Robert R. Chesnut, Sr. v. NORMAN S. CORPORATION d/b/a Sanders.
    No. 20080.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.
    C. Cyril Broussard, New Orleans, for plaintiff and appellant.
    Hammett & Bertel, New Orleans, for Norman S. Corporation and Lumbermens Mutual Casualty Company, defendants and appellees.
   McBRIDE, Judge.

Plaintiff and Mrs. Patricia Edwards Lum were salesladies in the employ of Norman S. Corporation which operates a department store on Canal Street in New Orleans under the trade name “Sanders.” They worked in different departments of the store and neither was the superior of nor had authority over the other. On June 6, 1950, about 1 o’clock p. m., plaintiff and Mrs. Lum, as the result of a personal difference with which the employer had no. concern, engaged in an altercation which led to physical combat on the employer’s premises, and there resulted blows, kicking, and hairpulling, to say nothing of the bad language indulged in by the participants; apparently plaintiff cannot claim the distinction of being the victor for the record shows that she was the recipient of various and sundry injuries and had to be hospitalized.

Mrs. Chesnut brought this suit to-recover $33,500 damages from Mrs. Lum and Norman S. Corporation in solido; in the alternative, plaintiff prayed for a judgment in her favor condemning Norman S. Corporation and its compensation insurance carrier, Lumbermens Mutual Casualty Company, to pay her workmen’s compensation at the rate of $16.25 per week not to exceed 400 weeks. Mrs. Lum was never cited, and the matter proceeded to trial as to the other defendants, and the judge a quo rendered judgment in their favor dismissing the suit and plaintiff has appealed. The claim for workmen’s compensation has been abandoned by appellant and we now concern ourselves exclusively with the tort claim.

This suit was filed on the theory that as employer, Norman S. Corporation is responsible for the tortious actions of Mrs. Lum; the petition represents that Mrs. Lum’s conduct was within the scope of the employment and it is alleged in a supplemental and amended petition that Norman S. Corporation was negligent in continuing to employ such an incompetent and careless person as Mrs. Lum in that it knew or should have known of previous threats by Mrs. Lum to do bodily harm to at least one other employee of the store.

The employer was able to prove by undisputed testimony that Mrs. Lum had worked in its store for at least four months preceding the affray, during all of which time she acted with circumspection and gave no evidence of possessing a vicious or dangerous disposition, and it does not appear from the evidence that the employer knew or had any reason to believe that other employees would be endangered by the hiring of Mrs. Lum. No negligence at all has been, shown on the part of Norman S. Corporation in the selection of Mrs. Lum as its employee.

Counsel for plaintiff argues that Mrs. Lum was the aggressor and that this makes the employer liable under LSA-C.C. art. 2320, which provides:

“Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
“Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
“In ' the above cases, responsibility only attaches,: when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.”

Even if we concede that Mrs. Lum was the aggressor, still there is. no liability in the storeowner for it is patent that the beating administered Mrs. Chesnut by Mrs. Lum was not within the scope of the latter’s employment, the nature of which did not authorize her to commit a battery on another servant. Under the codal article the responsibility of the master for damages by the servant only attaches where it occurs in the exercise of the functions in which the servant is employed. Queen v. Schwann, 119 La. 495, 44 So. 276.

The judgment appealed from is affirmed.

Affirmed.


text:
    Mrs. Lonnie Mae Malone Vicknair MARTINEZ v. DIBERT, BANCROFT & ROSS CO., Ltd., et al.
    No. 20667.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.

      C. Paul Phelps, Ponchatoula, and Amos L. Ponder, New Orleans, for plaintiff-appellant.
    Chaffe, McCall, Phillips, Burke & Hopkins and Nolan Kammer, New Orleans, for defendants-appellees.
   JANVIER, Judge.

Mrs. Lonnie Mae Malone Vicknair Martinez, widow of Henry Robert Martinez, brought this suit for workmen’s compensation in her behalf as widow and for the benefit of Arthur Henry Martinez, the minor child of herself and her deceased husband. She alleges that her husband died as the result of an accident which occurred while he was carrying out the duties of his employment in the hazardous business of his employer, Dibert, Bancroft & Ross Co., Ltd., and she prays for an award of 46%% of his weekly wages for a period of 300 weeks and for penalties at 12% of the total amount because’ of the alleged arbitrary and capricious refusal to make compensation payments, and also for an attorney’s fee of $1,000 and for funeral expenses amounting to $250.

The defendants are the said employer and i-ts liability insurance carrier, American Mutual Liability Insurance Company. The Board of Administrators of The Charity Hospital of New Orleans intervened and prayed for judgment against defendants in t-he sum of $116.70, alleging that to be the cost of treatment afforded to the said employee.

Petitioner does not allege the exact time at which the “accident” occurred, but rather, by a series of allegations, charges that the excessive heat and the dust and fumes “arising incidental to the defendant’s business” caused her husband “to suffer an accident while employed.” She describes the said accident as follows: “cerebrovascular accident; spontaneous pneumonia homo thorax.”

Defendants admitted the employment of petitioner’s husband and that at the various times referred to in the petition, he was earning $1.20' per hour for a forty-hour week, and they further admitted that the defendant insurer had issued a policy of liability and compensation insurance to the employer. They denied that Martinez had died or that his previous condition had been aggravated as the result of an “accident.” They conceded that if there is liability to the plaintiff there is liability to the Administrators of the Charity Hospital in the amount prayed for.

From a judgment in favor of defendants and dismissing her suit, Mrs. Martinez has appealed.

The record leaves no doubt as to the actual occurrences which preceded the death of Martinez, and there is little or no dispute as to those occurrences. The only controversy arises over the question of whether those events can be pointed to as the cause of the death of Martinez, the plaintiff con* tending that the said death was caused thereby and the defendants maintaining that the death resulted from natural causes and was in no way brought about by any unusual occurrence which can be characterized as an industrial accident.

Martinez was 29 years of age at the time of his death, which occurred in the Charity Hospital ©n July 31, 1953. He had been in the employ of the defendant employer for sometime when, on January 16, 1953, he sustained a slight injury either while operating a press of the defendant employer, or while conducting some sort of playful contest with a fellow-employee. As a result of that occurrence on January 16, 1953, he was disabled for a very short time and, on his return to work, was given lighter duties to perform. Shortly thereafter, however, he was returned to his former employment and six months after the occurrence of that first accident in January, that is, on July 27, 1953, on reporting at about 4:30 P.M. to go to work on the night shift which began at 5 P.M., he stated to his foreman that “he probably had a wild pain * * * ” and “thought maybe it could have 'been something he ate.” However, he went to work on that shift and completed the entire eight hours without again referring to any disability or discomfort of any kind.

Though the foreman left for short periods during that eight-hour shift, he was on duty at midnight at the time Martinez completed his work, and he says that Martinez at no time reported any recurrence of his feeling any pain.

On the next morning Martinez arose rather late and complained to his wife that he did not feel particularly well and they, with their young son, walked a few blocks to some place at which they ate breakfast. They then returned to the apartment. During that morning, while in the bathroom washing his face, he suffered a severe pain, though he did not report this to his wife. That afternoon he again reported for work shortly before five o’clock, but told the foreman that he was suffering considerable pain and that he was not sure that he could complete that eight-hour shift. At about nine o’clock that night he left work and, accompanied by a fellow-employee, went to the Charity Hospital. There the following diagnosis was made: “Spontaneous Pneumow Hemothorax — Possible cerebrovascular accident.” Three days later he died.

Were it not for the fact that the word “accident” appears in the diagnosis and also appears in the death certificate, there would be not one syllable in this record which could in any way, or to any extent, create the impression that there had been any unusual external traumatic occurrence which had caused the pain and ensuing death of Martinez.

There is in the record, in addition to the Charity Hospital record, the testimony of only one doctor, Dr. Sam Nadler, admittedly a specialist and an expert in internal diseases and disorders and the treatment thereof, and he testified at great length after examination of the Charity Hospital records. At the termination of the trial concerning his testimony, the Judge a quo said:

“ * * * I want to say for the record that Dr. Nadler, I think, gave a very clear exposition and I think he tried to be eminently fair in his testimony — one of the fairest witnesses I have heard for quite some time. * * * »

Dr. Nadler referred to the word “accident” as it appears in the hospital records and in the death certificate and said:

“The medical terminology ‘cerebral vascular accident’ simply means one of two or three things may have occurred: rupture of a blood vessel in the brain tissue, or thrombosis, that is plugging up of a blood vessel in the brain tissue. These two are the commonest causes of the so-called cerebro-vascular accident and has nothing to do with outside trauma. * * * ”

The testimony of Dr. Nadler, particularly this statement, simply means that where, as here without apparent cause, something internally has become involved and has given way without any external violence or unusual traumatic occurrence the medical term “accident” is resorted to.'

Dr. Nadler explained the meaning of the term “spontaneous pneumow hemothorax” in a way which, remarkably enough, seems to us to be understandable to the lay mind. He says that the human lung is analogous to the bladder in a football which is surrounded by the outer covering, so that there is a space between the lung which is the bladder of the football and the outer covering which is the outside of the football. He says that this space is “potentially a closed space” and is known as the “pleural space,” and that normally there should be no air in this space. He says that if by chance air gets into this space between the outer covering and the bladder, it does not allow the lung to follow the contour of the outer covering and that then, when there is air in that space, that condition is referred to as “pneumothorax”. He says too that, if in addition to that air, blood enters, that space then it is called “pneumohemothorax”. He says that sometimes this is caused by a penetrating wound, as by a bullet or a knife, and that sometimes this condition is caused spontaneously where there is no evidence “of a traumatic injury from the outside.” That this is called spontaneous and that this condition “is not ordinarily related to the occupation” and “occurs in individuals at odd times.” that •“it occurs with dramatic suddenness and the patients invariably feel pain in the chest, a feeling of suffocation * * *.» He then said that what he has referred to as being similar to'the bladder of a football is not exactly similar because it is- not composed of one element but it is made up of innumerable small elements similar to toy balloons and if 'one of these elements similar to a toy balloon is defective and a part of it expands abnormally this is called a “bleb”, and that if one of these blebs expands to such an extent that it can no longer resist, it breaks and that this causes blood to get into that space between the lung itself and the-outer covering. That that is what occurred in this case is made' very obvious by his testimony, by the hospital reports; particularly by the fact that in one of these reports at least it is stated that a bloody fluid was removed from that particular location in the chest of Martinez.

. Dr. Nadler stated that in his opinion it was practically certain that this bleb occurred , for the first time when Martinez was in the bathroom on Tuesday morning and that it grew progressively worse so that he could not remain at work for the Tuesday night shift and that it was the ultimate cause of his death. He added:

“I do want to emphasize that the vast majority of these cases occur in persons who are not working and not coughing or doing anything.”

When asked whether he thought that the original accident six months before on January 16th had had anything to do with the ultimate occurrence and with his death, the doctor said:

“I would say it has nothing to do with this spontaneous pneumohemo-thorax.”

Dr. Nadler was asked whether he could say what might be the cause for such “blebs” as he referred to. He asked: “How old was this man?” and when told that'-“he was in his twenties * * * ” probably “twenty-nine years of age,” he answered:

“Well, he would fall well within the group born with these congenital cysts. The reason I asked his age — if 65 or 70, it is possible that other diseases may have contributed, but in the twenties or teens we look upon it as congenital. ■ I believe he was born with a defect, in the form of a.bleb or a cyst of the lung, or some such- structural abnormality.”

And he said that if an employee should suffer such a bleb while working, “I believe he would feel it then and there.”

• Our conclusion is that the record conclusively shows that there was no industrial accident which in any way, contributed to the death of Martinez or aggravated a preexisting condition.

Counsel for plaintiff, with considerable confidence, relies upon the opinion of the Court of Appeal in Dortch v. Louisiana Central Lumber Co., La.App., 30 So.2d 792, the facts of which to some extent resemble those presented here, particularly in that there the plaintiff suffered “spontaneous pneumothorax” or Collapse.-of the right lung, but there, entirely differently from here, “a pain was suddenly felt from the right shoulder downward” while the employee was “pulling one end of a cross-cut saw” which “began to run heavily and pinched,” and while the employee was “using considerable effort in doing so.”

The facts of that cáse show that it was unusual exertion while working which caused the sudden pneumothorax. Here, as we have stated, there was no sudden exertion and nothing unusual which could be referred to as a traumatic accident.

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

Affirmed.


author: LOTTINGER, Judge. MILLER, Judge ad hoc PER CURIAM.

text:
    Aurelia JONES v. O. C. HENNESSY, Inc. et al.
    No. 4104.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 23, 1956.
    Rehearing Denied March 20, 1956.
    Guillory & Guillory, Eunice, Dubuisson & Dubuisson, Opelousas, for appellant.
    Fusilier & Vidrine, Ville Platte, for ap-pellees.
   LOTTINGER, Judge.

This is a suit under the Workmen’s Compensation laws of the State of Louisiana, LSA-R.S. 23:1021 et seq-., for total and permanent disability resulting, from an accidental injury sustained by plaintiff in the course and scope of his alleged hazardous employment with O. C. Hennessy, Inc., a Texas Corporation. L. B. “Jack” Hennessy (hereinafter referred to as Jack Hennessy) was joined as a co-defendant, but it was proved and is now admitted that Jack Hennessy was an agent for the defendant corporation and, therefore, he was released from any personal liability. The Lower Court found that the plaintiff was employed by one E. H. Malone; that E. H. Malone was the contractor working for the defendant, the principal; that the contract with E. H. Malone was necessary and incidental to the business of defendant corporation so as to place plaintiff under the provision of LSA-R.S. 23:1061, formerly Section 6, Paragraph 1 of the Workmen’s Compensation Act. The Lower Court further found total and permanent disability and rendered judgment at $30 per week for four hundred weeks commencing October 13, 1951, together with legal interest on each past due installment; plus $500 medical benefits, and all costs.

Before this suit was tried in the Lower Court the defendant, O. C. Hennessy, Inc., filed a call in warranty against United States Fidelity and Guaranty Company (hereinafter sometimes referred to as U. S. F. & G.) asking for judgment in defendant’s favor and against U. S. F. & G. for the amounts for which they may be cast, together with attorney’s fees. Defendant alleged that U. S. F. & G. issued a policy of Compensation Insurance to them which provided coverage in this case. The Lower Court granted judgment in favor of defendant, O. C. Hennessy, Inc., condemning the said U. S. F. & G. to pay to ¡O. C. Hennessy, Inc. any and all liability incurred by it under this judgment plus $500 attorney’s fees. Defendants O. C. Hennessy, Inc. and U. S. F. & G. appealed.

The accident occurred on October 13, 1951 while plaintiff was hauling certain timber “sticks” which were later to be cut into railroad crossties. The entire operation was conducted in Evangeline Parish, Louisiana. The primary question for decision concerns the relationship between the plaintiff and defendant. Was plaintiff an employee of defendant or was plaintiff an employee of a contractor operating for the defendant such that the provisions of LSA-R.S. 23:1061, formerly Section 6 of the Workmen’s Compensation Act apply or was defendant involved in the case solely as a purchaser of crossties?

Defendant contends that its business in Louisiana is limited to the purchasing of railroad crossties. Defendant’s operations start each year when the railroad company informs the defendant 0. C. Hennessy Inc. as to the number and specifications of the ties it will accept. The defendant then informs certain lumber producers that they will bu-y ties at a certain price delivered to certain points along the Missouri Pacific Railroad. After the ties have been delivered to these points defendant sends an agent to inspect the ties. Those that come up to grade are paid for and the others are rejected. To help facilitate procurement of ties, the corporation owned certain trucks or power saws and either owned or financed movable sawmills, which it leased or sold to the various individuals actually engaged in the cutting and hauling of the ties the designated points at the railroad. Should these movable items of equipment be leased to individuals, they were leased on a rental basis of so much per tie on all ties delivered to the company. For instance, here the price for the rental of a truck was 15‡ per tie. If an individual delivered one hundred ties to a railroad crossing, when final settlement was made with him, $15 was deducted for rental of said truck. Similarly, the other prices charged were 5‡ per tie for lease of power saws, 2>5‡ per tie for milling the ties, and 20^ per tie for stumpage. The regulation and calculation of the payments was generally made by the buyer, and he retained from the purchase price any rentals which were due by the people who cut and made the ties and also held out the milling fees and the stumpage, paying those amounts to the individuals concerned. The reason for this was that many of the operators engaged in the cutting and hauling of ties are impecunious, and it was only for this reason that any amounts due as lease money or stumpage money or mill money was held out of the final settlement and paid by the defendant O. C. Hennessy, Inc. to these people. This, plaintiff argues, is a common and ordinary .practice in the lumber business.

In addition to these facts as to defendant’s general operations, we must consider defendant’s specific arrangements with the plaintiff. In the month of June 1951, O. C. Hennessy, Inc. started purchasing cross-ties in Louisiana. At that time it owned the logging rights on a tract of land near Basile in Evangeline Parish. The time for removal of the lumber on this tract was fast approaching, so the corporation through its agent Jack Hennessy contacted the plaintiff who lived in Houston, Texas. The principal stockholder of the defendant corporation is the father of Jack Hennessy and he was of the opinion plaintiff was a good worker. Jack Hennessy took the plaintiff to Basile and suggested that he take over the operation for the. logging of this particular tract. At this time he explained to plaintiff that he could rent the necessary power saws and trucks at so much per tie, and that the corporation would make arrangements for plaintiff’s groceries, for his oil and gas, and they would rent a house for him. In turn, plaintiff was to receive pay at the rate of so much per tie and deductions were to be made from this sum for rent on the power saw and the trucks. Deductions were also to be made from plaintiff’s earnings for groceries, gas and oil, and house rent. This arrangement was satisfactory to plaintiff, so Jack Hennessy moved plaintiff and ..his family from Houston, Texas to Basile, Louisiana. Plaintiff made his own arrangements for employing men to help him log the timber, however, since plaintiff was an illiterate thirty-one year old Negro it was impossible for him to compute the pay which he owed to his employees. Plaintiff’s wife helped with these matters and Jack Hennessy helped both plaintiff and plaintiff’s wife make these computations. Jack Hennessy also supervised plaintiff’s operations on the Basile tract.

About the end of September, all of the timber owned by O. C. Hennessy, Inc. at Basile had been cut, and it is important to note that from that date forward plaintiff’s and defendant’s relationship changed. Sometime during the early part of August, 1951, Mr. Jack Hennessy and a Mr. E. H. Malone met each other. Mr. Malone had the right to cut timber on a tract of land owned by Erwin Fontenot and located at St. Landry, Louisiana (Evangeline Parish). It seems that this timber was not entirely suitable for logging and therefore Mr. Malone wished to make some arrangements to make crossties out of a portion of said timber. Following this discussion and on the 15th of August 1951, the defendant sold by credit sale one Corley Tie Mill to be used for the purpose of manufacturing railroad crossties. Mr. Malone was to pay for the credit portion of the purchase price at the rate of ten cents per crosstie prqduced and further Mr. Malone bound himself to offer to defendant all crossties which were produced by the mill. Although plaintiff saw fit to introduce certain evidence and to argue that .this sale was not genuine, it is our opinion that this was a bona fide transaction. Mr. Malone located and operated this Corley Tie Mill on the Fontenot tract at St. Landry. When the defendant’s Basile operation was concluded some time in September 1951, Mr. Jack Hennessy informed Mr. E. H. Malone that Aurelia Jones was a good worker and was available and asked Mr. Malone what he would pay for Jones’ services. Mr. Malone advised Jack Hennessy that he would pay plaintiff 60‡ a tie to cut and haul from the Fontenot tract. If the timber was cut by Malone’s own crew, plaintiff would be paid 40^ per tie for hauling. Mr. Jack Hennessy then conveyed this information to Aurelia Jones and further informed the plaintiff that he could continue to use the corporation’s truck and power saw under the same rental basis, to be used while working for Malone. Plaintiff considered these terms and decided that he wanted to work under these conditions. Then defendant’s agent brought the plaintiff over and introduced him to Mr. Malone, and Mr. Malone put the plaintiff to work on the Fontenot tract. Mr. Malone and Mr. Fontenot are the ones who showed the plaintiff where to cut and where to haul. Mr. Hennessy never did go upon the Fontenot tract. Mr. Malone is the party who gave all instructions as to where the sticks were to be hauled. The record makes it abundantly clear that as to the St. Landry operation, the only ties that defendant bought were those which came up to specification and were delivered to a siding at Eunice, Louisiana. All culls were the property of Malone and Fontenot.

In addition to the above facts, it is true that after the Basile operation the plaintiff was in debt to the defendant corporation, and that defendant’s agent, Jack Hennessy, testified that this was the reason he wanted to see that the plaintiff obtained work. It is also true that after plaintiff agreed to cut and haul for Mr. Malon'e, Jack Hennessy moved plaintiff’s family to the location in St. Landry. Jack Hennessy made arrangements to rent a house for the plaintiff to occupy at St. Landry and paid the first two weeks rent, for which he was to be reimbursed. Jack Hennessy guaranteed a line of credit so that plaintiff could purchase groceries at the St. Landry location. These factors however' do not in any way indicate that the defendant either controlled or had the right to control the plaintiff’s work on the Fontenot tract at St. Landry.

It was on October 13, 1951 while plaintiff was hauling timber to Malone’s Mill from the Fontenot tract for the price of 40‡ per stick, that plaintiff sustained an accident which rendered him totally and permanently disabled.

The defendant’s last purchase of ties from Mr. Malone was made on October 2, 1951. The record does show that on October 12, 1951 the defendant advanced $360 to Mr. Malone based on an agreement that some six hundred sticks which were on Malone’s yard would be manufactured and delivered to defendant’s railroad siding in Eunice for sale to the defendant. This sale did not materialize because Mr. Malone was offered more money for the ties by one Stanley Gates of Oakdale, Louisiana and Mr. Malone sold those ties to Mr. Gates. Mr. Malone later repaid this $360 to the defendant. Mr. Malone also testified that some of the timber cut from the Fon-tenot tract was sold by him to Kellog Lumber Company.

We feel that Professor Wex S. Malone’s Law Review Article reported at TO Louisiana Law Review page 25, et seq. sets forth the pertinent and controlling law applicable here. At page 29 of this article Professor Malone distinguishes the relationship of independent contractor from that of seller or buyer as follows:

“Section Six of the Workmen’s Compensation Act is not brought into operation unless the relationship of principal and contractor exists between the defendant and the claimant’s employer. The employees of a seller have no claim for compensation against the buyer of the article upon which they worked unless they were also employees of the buyer and were subject to his control (Harville v. Eicher-Woodland Lbr. Co., 3 La.App. 406 (2d cir.1926).
“The buyer is not made liable to the seller’s employees by Section Six even though an exclusive buying and selling agreement existed: Langley v. Widow and Heirs of McDonald, 7 La.App. 715 (2d cir.1927); Williams v. George, 15 So.2d 823 (La.App. 2d cir.1943) nor is it of any consequence that the buyer reserved the right to reject commodities sold under the contract, West v. Martin Lumber Co., 7 La.App. 366 (1st cir.1927); Anthony v. Natalbany Lumber Co., Ltd., 187 So. 288 (La.App. 1st cir. 1939) nor that he discharged taxes which were properly chargeable against the seller Whitley v. Hillyer-Deutsch-Edwards, Inc., 142 So. 798 (La.App. 1st cir. 1932) (sever-anee tax on timber). However, when it is doubtful whether the relationship is that of buyer and seller or principal and contractor, the fact that the severance tax was charged against intermediary may be persuasive. Reed v. J. W. Jeffries Lumber Co., 9 So.2d 87 (La.App. 2d cir. 1942), or otherwise assisted the seller in keeping his records in order Williams v. George, 15 So.2d 823 (La.App. 2d cir. 1943). Likewise, the buyer is not subjected to compensation because he furnished materials or tools to enable the seller to fulfill his ■contract, Windham v. Newport Co., 143 So. 538 (La.App. 1st cir. 1933); Scott v. Futrell, 197 So. 688 (La.App. 2d cir. 1940). Even the fact that the buyer paid the seller’s employees, Miller v. Brenner Lumber Co., 8 La.App. 141 (2d cir. 1928); Eaves v. Hillyer-Edwards-Fuller, Inc., 139 So. 510 (La.App. 2d cir. 1932) or carried compensation insurance for their protection, Eaves v. Hillyer-Edwards-Fuller, Inc., 139 So. 510 (La.App. 2d cir. 1932) has not served to make him liable for compensation under this Section.
“The great bulk of the cases in which the defendant claimed immunity from Section Six liability because of his status as purchaser have arisen in connection with lumbering transactions. From a total of twenty-seven reported cases in which the problem was presented, only the following three cases related to transactions other than lumbering; Brown v. City of Shreveport, 15 So.2d 234 (La.App. 2d cir. 1943); Wilson v. Roberts, 194 So. 88 (La.App. 2d cir. 1940); Jones v. Pan American Petroleum Corp., 190 So. 204 (La.App. 2d cir. 1939). Not infrequently the owner of a tract of timberland undertakes to log his own property under a contract to sell the timber to a mill or other lumber concern. It is clear that under such circumstances the owner’s employees have no valid claim against the buyer in the event of injury, Morrison v. Weber-King Mfg. Co., 6 La.App. 388 (1st cir. 1927); Langley v. Widow and Heirs of McDonald, 7 La.App. 715 (2d cir. 1927); West v. Martin Lumber Co., 7 La.App. 366 (1st cir. 1927); Miller v. Brenner Lumber Co., 8 La.App. 141 (2d cir. 1928); Williams v. George, 15 So.2d 823 (La.App. 2d cir. 1943). If, however, the wood is being procured from property owned by defendant, the latter will be regard-ed as employer of a contractor; James v. Dear & Johnson, Inc., 172 So. 25 (La.App. 1st cir. 1937); Owers v. Louisiana Long Leaf Lumber Co., 14 So.2d 275 (La.App. 1st cir. 1943).
“More often, however, the alleged seller occupies the position of a middleman between the landowner and defendant, the ultimate buyer. He negotiates a purchase of timber from the owner with a definite resale transaction to defendant in prospect. Usually he is financially insolvent and his employee’s compensation claims against him are worthless. Nevertheless, the courts have consistently held that the purchasing mill or concern cannot be made liable either as a partner of the middleman under Section One, Langley v. Widow and Heirs of McDonald, 7 La.App. 715 (2d cir. 1927); Vincent v. Industrial Lumber Co., 199 So. 593 (La.App. 1st cir. 1941) or as a principal under Section Six, Eaves v. Hillyer-Edwards-Fuller, Inc., 139 So. 510 (La.App. 2d cir. 1932); Whitley v. Hillyer-Deutsch-Edwards, Inc., 142 So. 798 (La.App. 1st cir. 1932); Windham v. Newport Co., 143 So. 538 (La.App. 1st cir. 1932); Brasher v. Industrial Lumber Co., Inc., 165 So. 524 (La.App. 1st cir. 1936); Cannon v. Tremont Lumber Co., 188 So. 431 (La.App. 2d cir. 1939); Harris v. Southern Kraft Corp., 183 So. 65 (La.App. 2d cir.1938); * * * Weldon v. Pickering Lumber Corp., 186 So. 371 (La.App. 1st cir. 1939); Anthony v. Natalbany Lumber Co., Ltd., 187 So. 288 (La.App. 1st cir. 1939); Scott v. Futrell, 197 So. 688 (La.App. 2d cir. 1940); Hatch v. Industrial Lumber Co., 199 So. 587 (La.App. 1st cir. 1941); Perkins v. Hillyer Deutsch Edwards, Inc., 199 So. 590 (La.App. 1st cir. 1941); Vincent v. Industrial Lumber Co., 199 So. 593 (La.App. 1st cir. 1941); Reed v. J. W. Jeffries Lumber Co., 9 So.2d 87 (La.App. 2d cir. 1942). But of, Carter v. Colfax Lumber & Creosoting Co. [9 La.App. 497], 121 So. 233 (La.App. 2d cir. 1928); Owers v. Louisiana Long Leaf Lumber Co., 14 So.2d 275 (La.App. 1st cir. 1943); Grant v. Consolidated Underwriters, 33 So.2d 575 (La.App. 2d cir. 1947). This is apparently not affected by the fact that whatever remuneration the middleman may receive comes solely by reason of the labor bestowed by him and his employees in severing and transporting the timber, Cannon v. Tremont Lumber Co., 175 So. 881 (La.App. 2d cir. 1937); Cannon v. Tremont Lumber Co., 188 So. 431 (La.App. 2d cir. 1939) (same case on retrial)
. “The opinions that have dealt with this type of transaction abound in statements to the effect that the courts are alert to detect the use of the resale device as a means of avoiding compensation liability whenever the middleman is in fact an employee, partner, or contractor acting for the defendant. See Hatch v. Industrial Lumber Co., 199 So. [587] 590 (La.App. 1st cir. 1941); Perkins v. Hillyer Deutsch Edwards, Inc., 199 So. 590, 592 (La.App. 1st cir. 1941); Reed v. J. W. Jeffries Lumber Co., 9 So.2d 87, 90 (La.App. 2d cir. 1942). However, in only one reported case, Carter v. Colfax Lumber & Creosoting Co. [9 La.App. 497], 121 So. 233 (La.App. 2d cir. 1928) have the courts branded such a sale as a subterfuge. Generally, in support of the bona fide character of these arrangements the courts have relied upon the fact that the intermediary negotiated the sale-resale transaction as an independent enterpriser, Eaves v. Hillyer-Edwards-Fuller, Inc., 139 So. 510 (La.App. 2d cir. 1932); Scott v. Futrell, 197 So. 688 (La.App. 2d cir. 1940); Vincent v. Industrial Lumber Co., 199 So. 593 (La.App. 1st cir. 1941); Reed v. J. W. Jeffries Lumber Co., 9 So.2d 87 (La.App. 2d cir. 1942); Windham v. Newport Co., 143 So. 538 (La.App. 1st cir. 1932) (sem-ble) or that he was free to resell to whomsoever he pleased, Cannon v. Tremont Lumber Co., 175 So. 881 (La. App. 2d cir. 1937); Harris v. Southern Kraft Corp., 183 So. 65 (La.App. 2d cir. 1938); Anthony v. Natalbany Lumber Co., Ltd., 187 So. 288 (La.App. 1st cir. 1939); Scott v. Futrell, 197 So. 688 (La.App. 2d cir. 1940); Reed v. J. W. Jeffries Lumber Co., 9 So.2d 87 (La.App. 2d cir. 1942); Williams v. George, 15 So.2d 823 (La.App. 2d cir. 1943). Weldon v. Pickering Lumber Corp., 186 So. 371 (La.App. 1st cir. 1939); Stanley v. Industrial Lumber Co., 193 So. 367 (La.App. 1st cir. 1940) (In the last two named cases the court found defendant was a seller and that the intermediary was a buyer. The court emphasized in both instances that the latter was free to resell to whomsoever he chose.) Nevertheless, on several occasions they have supported deals in which the intermediary was a former employee of defendant. Eaves v. Hillyer-Edwards-Fuller, Inc., 139 So. 510 (La.App. 2d cir. 1932); Cannon v. Tremont Lumber Co., 175 So. 881 (La.App. 2d cir. 1937); Cannon v. Tremont Lumber Co., 188 So. 431 (La.App. 2d cir. 1939) (same case on retrial); Hatch v. Industrial Lumber Co., 199 So. [587] 590 (La.App. 1st cir. 1941). See also Scott v. Futrell, 197 So. 688 (La.App. 2d cir. 1940). Cf. Weldon v. Pickering Lumber Corp., 186 So. 371 (La.App. 1st cir. 1939). But cf. Carter v. Colfax Lumber & Creosoting Co. [9 La.App. 497], 121 So. 233 (La.App. 2d cir. 1928), where fact that intermediary was a former employee of defendant was persuasive in characterizing the former as an employee.) or was operating under an exclusive resale arrangement with the latter, Hatch v. Industrial Lumber Co., 199 So. 587 (La.App. 1st cir. 1941); Perkins v. Hillyer Deutsch Edwards, Inc., 199 So. 590 (La.App. 1st cir. 1941). Whether the intermediary regarded himself as a seller or a contractor has been regarded as important in determining his status in a few cases (Carter v. Colfax Lumber & Creosoting Co. [9 La.App. 497], 121 So. 233 (La.App. 2d cir. 1928) (intermediary regarded himself as an employee purchasing for defendant; the court held he was not a seller). Compare Eaves v. Hillyer-Edwards-Fuller, Inc., 139 So. 510 (La.App. 2d cir. 1932).
“In two reported instances where the transaction was regarded as a bona fide sale the initial negotiations were conducted with the assistance of a representative of the defendant, Hatch v. Industrial Lumber Co., 199 So. 587 (La.App. 1st cir. 1941) (owner’s initial offer to sell directly to defendant was rejected. Defendant used intermediary to cover up the price.); Perkins v. Hillyer Deutsch Edwards, Inc., 199 So. 590 (La.App. 1st cir. 1941) (similar). Cf. Vincent v. Industrial Lumber Co., 199 So. 593 (La.App. 1st cir. 1941) (defendant’s representatives visited owner to see that timber under consideration conformed to defendant’s specifications), and in one extreme decision the negotiations had been completed between the landowner and defendant before the intermediary was apprised of the transaction (Grant v. Consolidated Underwriters, 33 So.2d 575) (La.App. 2d cir. 1947. In nearly all the cases the defendant was consulted and his approval secured prior to the consummation of the transaction. Since the middleman usually is not financially solvent the landowner generally required the defendant to hold back the stumpage charge from the purchase price on resale and remit this directly to him. Thus the sale to the middleman is made exclusively upon the credit of the defendant. However, in three reported cases when the intermediary purchased for purpose of resale to defendant, it appeared that he purchased the timber with his own funds or credit: -Whitley v. Hillyer-Deutsch-Edwards, Inc., 142 So. 798 (La.App. 1st cir. 1932); Harris v. Southern Kraft Corp., 183 So. 65 (La.App. 2d cir. 1938); Weldon v. Pickering Lumber Corp., 186 So. 371 (La. App. 1st cir. 1939). This fact tends strongly to support the good faith sale and resale (in the following cases defendant withheld stumpage from money due intermediary. The transaction was nevertheless regarded as a sale); Eaves v. Hillyer-Edwards-Fuller, Inc., 139 So. 510 (La.App. 2d cir. 1932); Windham v. Newport Co., 143 So. 538 (La.App. 1st cir. 1932) Cannon v. Tremont Lumber Co., 188 So. 431 (La.App. 2d cir. 1939); Weldon v. Pickering Lumber Corp., 186 So. 371 (La.App. 1st cir. 1939); Anthony v. Natalbany Lumber Co., Ltd., 187 So. 288 (La.App. 1st cir.1939); Scott v. Futrell, 197 So. 688, (La.App. 2d cir. 1940); Hatch v. Industrial Lumber Co., 199 So. 587 (La.App. 1st cir. 1941); Perkins v. Hillyer Deutsch Edwards, Inc., 199 So. 590 (La.App. 1st cir. 1941); Vincent v. Industrial Lumber Co., 199 So. 593 (La.App. 1st cir. 1941); Williams v. George, 15 So.2d 823 (La.App. 2d cir. 1943); Grant v. Consolidated Underwriters, 33 So.2d 575 (La.App. 2d cir. 1947). Cf. Stanley v. Industrial Lumber Co., Inc., 193 So. 367 (La.App. 1st cir. 1940) (defendant claimed it sold stumps to intermediary. Stumpage withheld by repurchase for benefit of defendant). But cf. Carter v. Colfax Lumber & Creosoting Co. [9 La.App. 497] 121 So. 233 (La.App. 2d cir. 1928).
“An illustration of the extent to which the position described above has been carried is furnished in Reed v. J. W. Jeffries Lumber Co., 9 So.2d 87 (La.App. 2d cir. 1942) In that case the owner of a tract of timberland refused to sell to an intermediary on a credit basis. As a result of negotiations, the timber was transferred directly to defendant lumber company, who paid cash and was named as purchaser in the deed. The purchase price, however, was charged by defendant against the intermediary’s account, to be credited as timber was cut and delivered by him to defendant. Chargeable also against the account were severance taxes and interest and carrying' charges on the money .advanced. The transaction was regarded as a bona fide sale from the intermediary’s employee under Section Six was dismissed. The court’s position was fortified by the observation that the intermediary had previously purchased timber through the financial assistance of defendant, that he had never served in the latter’s employment, and that part of the timber in question had been sold to third persons by the intermediary without objection by defendant.
“The most extreme example of the situation under discussion is the recent case, Grant v. Consolidated Underwriters (Grant v. Consolidated Underwriters, 33 So.2d 575 (La.App. 2d cir. 1947). See Note (1949) 9 Louisiana Law Review 573). Defendant tie company entered into negotiations with a landowner to purchase timber. The latter was to receive twenty cents from defendant for each tie cut. Defendant then engaged a sawyer, McAllister, to ctit the ties. He was paid the prevailing market price per tie after a deduction of the twenty cents for the landowner which defendant remitted directly to the latter. Claimant, an employee of McAllister, sought compensation against defendant for injuries received while he was cutting ties in furtherance of this arrangement. The court held that no relationship of principal and contractor existed between defendant and McAllister, claimant’s employer. It stated that defendant was a purchaser of manufactured ties. Strangely .enough, the opinion assumes that a principal cannot hire an independent contractor to do work upon property which the principal does not own at the time but expects to purchase thereafter. Although defendant doubtless agreed to purchase ties from the landowner, yet this should in no way affect his relationship to McAllister whose only participation in the scheme was to do a job for pay. The fact that the market price for .the ties was used as the basis upon which the contractor’s fee was fixed was a mere matter of convenience, and it in no way should affect the nature of the relationship. McAllister sold nothing to defendant; in fact it was not contemplated that he should at any time become owner either of the ties or of the logs from which they were made.
“The same attitude prevails when it is disputed whether the intermediary is a contractor or a purchaser from defendant. Situations controverted in this respect usually arise where there has been a purported sale by defendant of stumps or timber and the claim is made that the-alleged purchaser is in fact a contractor who has 'undertaken to clear the owner’s land under an arrangement whereby the stumps are to be sold to some third party. Employees of the intermediary have been consistently denied compensation under Section Six, Weldon v. Pickering Lumber Corp., 186 So. 371 (La.App. 1st cir. 1939); Stanley v. Industrial Lumber Co., Inc., 193 So. 367 (La.App. 1st cir. 1940). The factors emphasized are the same noted in the preceding pages-.”

We have concluded that insofar as the ties which were produced from the Fonte-not tract at St. Landry, Louisiana, the defendant was a purchaser of crossties and nothing more. Jack Hennessy never did see the Fontenot tract. It was Mr. Malone who directed the plaintiff as to the timber to be cut and hauled, and as to the location where the cut timber was to be delivered. The accident occurred on October 13 and the last ties purchased by. the defendant from Mr. Malone were consummated on October 2, 1951. From these facts it would appear that the relationship that existed between plaintiff and Malone was that of either employer and employee or independent contractor, and under the present jurisprudence of this state Mr. Malone would be liable for plaintiff’s compensation. However, the defendant was involved in this St. Landry operation solely as a purchaser of crossties and is therefore not liable for ' plaintiff’s compensation.

The Lower Court predicated its decision on the case of Belaire v. Elder, La.App., 49 So.2d 508. There is a basic difference in the facts in the Belaire case and those in the instant case. ' There was a right to control and an actual 'control' in the Belaire case, which is entirely absent from the present case insofar as the operation on the Fontenot tract. Tf this accident in this case had happened during the Basile operation, then this case would be similar to the Belaire case.

We feel that the instant ‘ case is similar to the case of Kline v. Dawson, La.App., 84 So.2d 76 wherein we concluded that the defendant was a purchaser, and therefore not responsible for the compensation due the plaintiff.

Therefore for the above and foregoing reasons, the judgment rendered by the Lower Court is reversed and plaintiff’s suit dismissed. Since this suit was filed in forma pauperis, plaintiff is released from paying court costs.

Judgment reversed.

TATE, J., recused.

MILLER, Judge ad hoc

(dissenting).

Being of the opinion that the plaintiff was an employee of the defendant, I am duty bound to respectfully dissent.

Although the record is not absolutely clear as to who paid the plaintiff for his work at St. Landry, I am of the opinion that Mr. Malone and Mr. Hennessy, with plaintiff’s permission, agreed that all of the money which plaintiff earned by hauling for Malone was to be paid to Hennessy. Hennessy would then withhold rent on the trucks. He would further withhold additional sums to repay the defendant for a part of the indebtedness which plaintiff owed. Part of this indebtedness arose from plaintiff’s failure to make ends meet while plaintiff was working for defendant on the Basile operation. Another part of the indebtedness arose from advances which defendant made so that plaintiff could go to St. Landry to work on the Fontenot tract. As I understand it there was no way that the plaintiff or defendant could state with certainty what sum of money the defendant would see fit to turn ''over to plaintiff each pay day. Mr. Hennessy testified concerning the Fontenot operation that

“as he '(Jones) would get his check 'for ties that were produced, any amount.that we could hold out and still leave him enough to live on, we did.”

It is therefore my appreciation of the facts,, that Malone was bound to pay all of plaintiff’s earnings to the defendant, and that defendant had it within its exclusive control to determine how much of the $656.22 that plaintiff owed to defendant should be withheld from, each pay check. .

As I see it, it is not so important to note that October 2, 1951 was the last date Malone delivered ties to the defendant. What is important is that through the date-plaintiff was injured, Malone was to pay all of plaintiff’s earnings to the defendant, who-would in turn pay plaintiff enough to live on.

■ It is also important to note that on October 19, 1951 defendant gave Samuel Whatley a check for $89.04 representing the grocery bill which the defendant had guaranteed Mr. Whatley on behalf of the plaintiff. Mr. Hennessy testified that he-gave the check to Mr. Whatley “paying Aurelia’s grocery bill after Aurelia got hurt.”

I agree with the majority opinion that the Law Review article by Mr. Malone correctly sets forth the jurisprudence. However, in none of the cited cases do I find the cumulation of relationships that existed between this plaintiff and defendant. Here we find that the buyer sought out work for the plaintiff. Mr. Hennessy testified that!

“After Aurelia Jones came to Louisiana to produce ties, he got so far in debt to O. C. Hennessy, Inc. that it was to my advantage to try and give him work where he could make enough money to live and to repay his indebtedness to O. C. Hennessy, Inc.”

At another point he testified that:

“I was interested in seeing Aurelia get started with Mr. Malone so that he might work and repay the debt he owed us.”

Further, the buyer paid the plaintiff for his services. I agree that plaintiff was paid but 40ff a stick for lumber hauled to Malone’s mill, and that Malone is the one who set the price. However, Malone was to pay this price to the defendant and the defendant in turn by giving a check on the defendant’s own company paid the plaintiff. Here the buyer was the one who finally determined what amount should be paid to the plaintiff, for as Mr. Hennessy testified, he simply tried to leave plaintiff enough to live on. Here the buyer made arrangements for the plaintiff’s housing, and actually used his own automobile to move plaintiff’s family to St. Landry. Here the buyer “guaranteed” the plaintiff’s grocery bill so that plaintiff could work at St. Landry.

I believe that the sum total of all of the arrangements can lead to no other conclusion but that the defendant had the right to control plaintiff’s work and plaintiff was an employee of Mr. Hennessy’s company. I feel that the arrangements in this case show that the defendant attempted to pattern its operations on that line of cases cited in Professor Malone’s Law Review article, but that this defendant falls short of meeting the test. In this instance the defendant company simply did not hew to the line.

I feel that the Lower Court erred in holding U. S. F. & G. liable under its insurance contract. As I understand the insurance contract it is limited to cases arising under the Texas law. This case was brought under the Louisiana law and, therefore, U. S. F. & G. should be discharged from liability.

For the above reasons I am of the opinion that the plaintiff should be awarded the judgment as prayed for against the defendant, O. C. Hennessy, Inc., and I therefore respectfully dissent.

On Applications for Rehearing.

PER CURIAM.

Aurelia Jones, Plaintiff, and United States Fidelity and Guaranty Company, defendant in call in warranty, have both filed an application for a rehearing in this matter.

United States Fidelity and Guaranty Company, defendant in call in warranty and an appellant herein, has called our attention in its application for a rehearing to the fact that in the judgment handed down on January 23, 1956, wherein we reversed the judgment of the Lower Court and dismissed plaintiff’s petition, that we failed or inadvertently omitted reversing the judgment of the Lower Court in the call in warranty against the said United States Fidelity and Guaranty Company. This was certainly not our intention as we intended and do hereby amend our original judgment so as to reverse the judgment of the Lower Court “granting judgment in favor of defendant, Q. C. Hennessy, Inc., condemning the said U. S. F. & G. Co. to pay O. C. Hennessy, Inc. any and all liability incurred by it under said judgment plus $500.00 attorney’s fees.” As thus amended our original decree herein is reinstated.

Both applications for a rehearing are denied.


author: REGAN, Judge.

text:
    Mrs. Rhea NEFF, Widow of Samuel T. Gately, v. TEXAS MUTUAL INSURANCE COMPANY and Don Sibley.
    No. 20566.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.
    Zelden & Zelden, New Orleans, Louis J. Ourso, Jr., Hammond, for defendant appellant.
    Miazza & Drury, James H. Drury, New Orleans, for plaintiff appellee. •
   REGAN, Judge.

The plaintiff, Mrs. Rhea Neff Gately, a pedestrian, instituted this suit against the defendants, Don Sibley, the owner and operator of a Chevrolet automobile and his liability insurer, the Texas Mutual Insurance Company, endeavoring to recover the sum of $5,000 for personal injuries incurred by her as a result of being struck and knocked to the ground by the reverse movement of the principal defendant’s automobile, during the course of her attempt to walk across Iberville Street between Royal and Bourbon Streets, in the City of New Orleans, on December 19, 1952, at about 3:00 p. m.

The suit as it related to the Texas Mutual Insurance Company was abandoned and the remaining defendant answered and admitted the occurrence of the accident, but denied that he was guilty of any negligence in the premises and, in the alternative, pleaded the contributory negligence of the plaintiff.

From a judgment in favor of the plaintiff in the amount of $1,500, the defendant has prosecuted this appeal.

Plaintiff .related that on December 19, 1952, at about 3:00 p. m., she finished shopping in Solari’s Grocery, which occupies the corner of Royal and Iberville Streets; she then departed through the Iberville Street exit thereof carrying bags of groceries in her arms which she intended to deposit in her automobile parked on the opposite side of Iberville Street in Eglin’s Garage; before leaving the sidewalk adjacent to Solari’s, plaintiff noticed that the street was devoid of moving traffic but that “several cars were lined up” awaiting entrance to the garage, the first of which was defendant’s; it was parked on a forty-five degree angle with its front wheels on, the garage’s sidewalk' and driveway; about •eight feet in the rear thereof another vehicle was parked also awaiting entrance therein; plaintiff decided to walk through this space and around the rear of defendant’s car and when she had reached the right rear side thereof, the defendant sud- ■ denly and without the manifestation' of any warning whatsoever, set his vehicle into reverse motion causing her to be knocked to the ground resulting in the injuries which formulate the subject matter of this suit.

Mrs. Charles Bergeron, employed as a cashier at Eglin’s Garage, appeared on behalf of the plaintiff and related that prior to the accident (from her position in the “cashier’s cage”) she watched the plaintiff walk across Iberville Street carrying bags of groceries in her arms and she had practically completed the crossing thereof when she was struck by the sudden reverse movement of defendant’s car.

Alan Ross, the garage manager, also appeared on behalf of the plaintiff and related that while he did not see the accident occur, he did observe Mrs. Gately lying on the garage side of Iberville Street, three or four feet removed from the sidewalk and that the defendant’s car was parked straddling the driveway.

Defendant, on the other hand, in his endeavor to exculpate himself from negligence, related that he had driven his car at an angle upon the sidewalk and driveway of Eglin’s Garage to await parking facilities therein; upon being informed by the attendant that the garage had reached its capacity, he prepared to back out of this position and seek other parking accommodations. However, before engaging in this maneuver, he stated that he first turned around, looked to the rear of his car and saw the plaintiff crossing the street, he blew his horn and then looked again, but this time into the rear view mirror where he observed that she was now on his side of Iberville Street near the back of his car; he anticipated that she would stop and await the reverse passage of his vehicle; it was under these circumstances that he then set 'his car into motion-apid unfortunately the left rear side thereof inadvertently struck the plaintiff.

Defendant was accompanied by two friends, both of whom were seated in the front seat of his automobile when the accident occurred, namely, James Hagan, Jr., and George Waguespack. They both appeared as witnesses on behalf of the defendant.

Hagan confirmed the testimony of the defendant in all of its essential aspects, while Waguespack testified that he did not see the plaintiff before the defendant’s vehicle struck her, but he did know that the car moved about six or eight feet before it came in contact with the body of plaintiff.

We have carefully evaluated the actions of the plaintiff in traversing Iberville Street. It is conceded that she was “jay walking”; despite this concession we find no causal connection between this indiscretion and the accident; we also believe that she was free of any other negligence, which would be considered the proximate cause of the accident. The plaintiff testified that she observed the position in which the defendant’s car was parked in Iberville Street and that there was considerable space existing between it and the vehicle parked in the rear thereof, which she believed afforded her a safe passageway to the sidewalk and Eglin’s garage; there was no manifestation of a warning or other indication or reason for her to anticipate that the defendant would suddenly place his vehicle in reverse motion and strike her as she reached a point in the rear of the defendant’s car.

In view of the foregoing conclusion the only remaining question posed for our consideration is one of fact and that is whether the defendant’s negligence was the proximate 'cause of the accident.

The trial judge obviously resolved the answer to this question in the affirmative and our careful examination of the record fails to reveal any factual or legal error in his conclusion.

We remarked in the relatively recent case of Robichaux v. Toye Bros. Yellow Cab Co., La.App.1952, 61 So.2d 264, 265, that it is “an imperative legal and moral obligation imposed upon the operator of a motor vehicle, particularly when reversing the movement thereof, to do so slowly and to ascertain that there is no pedestrian or vehicle situated in the rear thereof” and in Neyrey v. Maillet, La.App.1945, 21 So.2d 158, 164, the organ of the Court wrote that “it is, of course, not negligence to back a car. * * * However, a motorist is charged with the duty of exercising ordinary c-are to see that the maneuver will not injure the persons or property of others. By ordinary care, we mean the degree of caution which would be observed by reasonably prudent persons under similar conditions.” In the instant case the record reflects the very evident fact that the defendant was fully aware of the precarious or perilous presence of the plaintiff, and after watching her approach the rear of his vehicle, he failed to keep her under close observation until such time as he knew that she had cleared the rear path of his vehicle before starting the reverse motion thereof.

In view of the foregoing findings of fact both by the trial and this court, even if we concede arguendo that the plaintiff was contributorily negligent, a view which defendant believes to be most favorable to his case, we then are of the opinion that the defendant possessed the last clear chance to avoid injuring the plaintiff. The evidence reflects that the defendant was fully cognizant of plaintiff’s perilous presence to the rear of his vehicle and if he had exercised that .degree of .caution commensurate with the existing circumstances the accident would not have occurred.

Plaintiff, a woman of about fifty-two years of age, incurred injuries to her left leg and right side. In consequence thereof she was subsequently confined for several days in the Foundation Hospital and in Baptist Hospital. An elastic stocking was prescribed for her leg which she was still wearing at the time of the trial, thirteen months .after the accident. She also was required to engage in prescribed exercises two and one half hours per day at her home and had to soak her right foot alternatively in hot and cold water thirty minutes each day. She incurred approximately $400 of hospital and medical expenses. 1 The trial court, after considering the limited financial ability of the defendant to respond in damages, awarded-plaintiff the sum of $1,500. Plaintiff obviously acquiesced therein since she failed to answer the appeal, therefore, the question of increasing the quantum is not one posed for our consideration.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


text:
    Lou Ellis HALL v. PIPE LINE SERVICE CORPORATION and St. Paul Mercury Indemnity Company.
    No. 20557.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.
    Rehearing Denied March 19, 1956.
    Writ of Certiorari Granted May 7, 1956.
    Claude F. Kammer, New Orleans, for appellant.
    Christovich & Kearney, A. R. Christo-vich, Sr., A. R. Christovich, Jr., New Orleans, for appellee.
   JANVIER, Judge.

On June 15, 1953, while plaintiff, an unskilled laborer, was engaged in the hazardous business of his employer, Pipe Line Service Corporation, the sharp edge of a piece of a metal drum containing tar which was being cut open with an ax struck him in the rear of his left leg, inflicting a severe injury and severing the achilles tendon in the rear lower portion of the left leg above the heel.

He was taken to Dr. J. W. Atkinson, a general medical practitioner, who cleaned and dressed the wound and who, not being an orthopedic surgeon, sent him to the Flint-Goodridge Hospital and referred the case to Dr. Lyon K. Loomis, an expert and specialist in orthopedic treatment and surgery. The severed tendon was sutured and the entire lower portion of the left leg was placed in a plaster cast. The cast remained on the leg until June 29th when it was changed and another similar type of cast was applied which encompassed the entire leg “up to the groin,” and which second cast was removed on September 2nd. At that time the wire and the sutures which had been applied and with which the two severed ends of the tendon had been tied together were removed. The plaintiff was then referred back to Dr. Atkinson, by Dr. Loomis with instructions to “check” with him twice a week.

On September 16th, Dr. Loomis saw the plaintiff again “on a routine visit.” He saw him again on September 30th and on October 3rd wrote a letter stating that he was able to return to his former employment. On October 12th, Dr. Atkinson discharged plaintiff as able to return to work, but told him that if he had any trouble to come back for further treatment.

The plaintiff did not return to Dr. Atkinson, but on January 18, 1954, brought this suit against his former employer and its compensation insurance carrier, averring that he is totally and permanently disabled and praying for compensation at $30 per week for 400 weeks, less compensation payments previously made, and also praying for 12% as a penalty for arbitrary refusal to make compensation payments and for an attorney’s fee of $1,000.

From a judgment dismissing his suit, plaintiff has appealed.

The medical testimony was given by four doctors, three of whom say that plaintiff is able to perform all of the duties of his former employment as a laborer and the fourth of whom, Dr. Blaise Salatich, says that he cannot do so.

Dr. Loomis is very positive that no appreciable permanent disability has resulted from the injury. He said that “this fellow I felt had especially good repair.” He said also that on his final examination, which was made before plaintiff was discharged as able to return to work, “there was no limitation of motion, * * * complete range of activity and passive motions in the left ankle.”

It is true that he said that after any such accident there remains some slight disability; that he estimates the disability to the foot at not more than five or ten per cent and that he was certain that, in spite of this slight disability to the foot, there was no overall disability and that therefore, if plaintiff had been willing to do so, he could have returned to the full duties of his former occupation.

Dr. Atkinson was equally certain that plaintiff had fully recovered and could have resumed his former’ duties.

Dr. George C. Battalora, admittedly an orthopedic expert, said that when he examined plaintiff he “walked without any limp. He could stand on his heels or his toes. When he stood on his toes, the tendon, the achilles, stood out well indicating that there was continuity in the tendon. * * * ” He said too “that he had excellent function in the calf muscles and the tendon achilles in the left leg.” He was asked whether he knew that the plaintiff was a laborer and what kind of work he had done and whether he could return to that kind of work, and he answered: “I thought he should be able to resume his previous occupation.” He also said that the resulting disability to the foot amounted to a possible ten per cent but that that disability to the foot would not affect his overall ability to perform “his usual work as a laborer.”

As against the testimony of these doctors plaintiff relies upon the testimony of Dr. Salatich who stated that his overall disability amounted to about thirty per cent and that he could not perform the duties of a common laborer. He also added that “achilles tendon injuries are significant and carry a significant degree of residual disability.” He found from X-ray photographs that, what he terms osteoporosis, was present and while it is difficult from the testimony of Dr. Salatich to determine just what is meant by osteoporosis, we find from all of the evidence and from an examination of Webster’s New International Dictionary that osteoporosis is: “Absorption of bone so that the tissue becomes unusually porous and fragile, occurring esp. in old age.”

Dr. Salatich states that he did not make an examination of the right leg to see whether there was also osteoporosis in the bone of that leg.

Dr. Salatich based his opinion that plaintiff is totally disabled to some extent on his belief that in an injury of that kind, in addition to the severing of the tendon, considerable damage usually results because of the fact that a blunt object causes more injury to surrounding tissue than if the severing of the tendon is done by some sharp instrument such as a surgeon’s knife.

The fact of the matter is that the record abundantly shows that the cut was remarkably clean and sharp and that the other doctors unanimously agree that it was just as clean and sharp as if it had been made by a surgeon’s scalpel.

As to the presence of osteoporosis, the doctors agree that this usually results where bones of the leg or of the arm are placed in a cast, but they state that the effect of it disappears within a reasonably short time and Dr. Loomis, when asked about osteoporosis, said that such osteoporosis as may have resulted was not disabling and that on his later examination there was much' less than was shown in the X-ray pictures which had been made in September. He said that the amount of osteoporosis was so small that “from a professional angle, I just don’t see it. * * ■* It would be unusual if it weren’t there.”

Counsel for plaintiff very vehemently criticizes what he says was the refusal of defendant to permit Dr. Battalora to examine the plaintiff in Court during the progress of' the trial.

In his brief he refers to this refusal as “shocking”. The fact of the matter is that the record shows beyond any possible doubt that counsel for defendant did not refuse but- on the contrary, granted full permission to have Dr.. Battalora examine the plain-, tiff during the trial, but insisted that it be after the adjournment on that day.. When counsel for plaintiff asked that Dr. Batta-; lora examine the plaintiff “now”-, counsel for defendant replied that if Dr. Battalora could throw any further light on the matter he had no objection. The Judge then stated:

“I cannot complete the case today and we quit at four o’clock. You can have the examination made then. I have no authority to compel the doctor to examine anybody.”

Counsel for plaintiff then said that he wanted to make the point of having the record show that counsel for the defendant “refuses to have Dr. Battalora examine the man in Court, as of today; right now.” The Judge answered:

“He doesn’t have to do that,”

and then counsel for defendant said:

“I want the record to show that is absolutely not so and that I say to Mr. Kammer now, if he desires an examination by Dr. Battalora or any other doctor of .his man this afternoon, I will certainly sit here and wait for it to be done. I have no obj ection to it.”

Counsel for plaintiff made no further ef-' fort then or thereafter to have a further examination made by Dr. Battalora or by anyone else.

Our con'clusion is that the record overwhelmingly demonstrates that the plaintiff could have returned to work at any time had he been willing to do so.

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

Affirmed.


text:
    T. S. C. MOTOR FREIGHT LINES, Inc. v. LIBERTY ICE AND COLD STORAGE CO., Inc.
    No. 20529.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.

      Roos & Roos, New Orleans, for defendant-appellant.
    Jones, Walker, Waechter, Dreux & Poite-vent and Robert B. Acomb Jr., New Orleans, for plaintiff-appellee.
   JANVIER, Judge.

Plaintiff corporation operates a motor truck line for transportation in interstate and intrastate commerce of merchandise of various kinds. Defendant corporation operates a cold storage plant in New Orleans.

Plaintiff, having accepted from a shipper in Houston, Texas, a shipment of frozen waffles for delivery to a designated cold storage plant in New Orleans and apparently having delayed delivery until after 12 o’clock noon on a Saturday and, finding that the designated cold storage plant had closed at noon, found it necessary to store the said waffles in another cold, storage plant until delivery could be made on the following Monday or Tuesday.

The said waffles were stored on Saturday afternoon with the defendant corporation and when the waffles were removed .from the plant of the defendant they were refused by the original consignee because the cardboard or corrugated board containers in which the waffles were packed were found to be contaminated by. the odor of shrimp or lobster or fish which had been stored alongside the waffles in the cold storage compartment of the defendant corporation. There is an unimportant dispute as to whether the delivery was made on Monday or Tuesday. It was necessary for the plaintiff corporation to have the waffles repacked before delivery would be accepted by the original consignee.

This suit has as its object the recovery by the plaintiff transportation line of the cost of repacking the waffles and the cost of the additional storage which resulted while the waffles were being repacked. The cost of repacking is shown to have been $385.62 and the cost of the additional storage is shown to have been $91.90, making a total of $477.52, which is the amount for which this suit is brought.

In Article 7 of the petition the amount of the additional storage is incorrectly shown as $43.60, whereas the total amount sued for shows that the additional cost of storage was $91.90.

The defendant cold storage plant denied liability, contending that when it accepted the waffles for storage, it did so under the plea of plaintiff that it could find no other plant which was open at that time on Saturday and that it, the defendant, accepted the goods for storage only after it had warned the representative of the plaintiff corporation that it, the defendant, was engaged in the storage of seafood and that there was danger that the waffles might be contaminated by the odor of seafood and that the representative of plaintiff was fully aware of this when the waffles were delivered to defendant for storage.

There was judgment for plaintiff as prayed for and defendant has appealed.

The evidence convinces us as it must have convinced the District Judge that when the representative of the plaintiff corporation tendered the waffles to defendant for storage, he was not told that it would be necessary that they be stored in the same compartment with seafood and did not know that they would be stored in a compartment in which there were some 10,000 pounds of lobster and about 870 pounds of fish.

Not only do we believe the testimony of plaintiff’s witnesses, but we find it most remarkable that those in charge of the defendant’s plant, knowing that the containers of the waffles might become contaminated by the odor of fish and lobster, did not in a written exception in the warehouse receipt call attention to the fact that the waffles would be stored in the same compartment.

In the receipt which was given there were certain notations. For instance, it was stated that some of the cartons were torn and pushed in and it was also stated that the waffles had arrived in a truck which was not refrigerated. The fact that some of the cartons were torn is not complained of, nor is there any contention that the waffles were damaged as a result of arriving in a non-refrigerated truck.

The most important notation that should have been made on the receipt would have directed attention to the danger of odor contamination as the result of storage alongside the fish and lobsters.

Mr. Grosz, who seems to have been the principal owner and directing head of the defendant storage company, said that he himself often stored meat and poultry and waffles in the plant, and that none of them were contaminated by fish odors, yet he stated that it was the custom of his employees to notify those who might store other things in the cold storage plant that there was danger of contamination.

If, then, as he admits and as is otherwise shown, there was danger of such contamination, and if there was no other compartment in which the waffles could be stored, the representative of plaintiff should have been so advised, and to make assurance doubly sure there should have been a notation in the receipt which was issued to plaintiff. Our conclusion is that at no time was the representative of the plaintiff corporation warned of the danger of contamination. It is the duty of a storage company such as this, knowing of the danger of contamination, to warn those who might store merchandise that it would be stored alongside fish and lobsters and that it might thus be contaminated by those seafood odors.

Counsel for defendant direct attention to section 21 of Title 54 of the Louisiana Statutes Annotated—Revised Statutes, Warehouses and Warehouse Receipts, reading as follows:

“A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise, but he shall not be liable, in the absence of an agreement to the contrary, for any loss or injury to the goods which could not have been avoided by the exercise of such care.”

Counsel point to the words, “in the absence of an agreement to the contrary.” As we have already stated, we find that there was no agreement to the contrary, and that, therefore, since the warehouseman did not exercise such care “as a reasonably careful owner of similar goods would exercise,” liability has resulted.

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

Affirmed.