text:
    Vaudie Curry McDONALD et al., Plalntiffs-Appellants, v. Vollie HOWARD et al., Defendants-Appellees.
    No. 8390.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.
    Alwine L. Mulhearn, Tallulah, for appellants.

      John J. McKeithen, Cameron-C. Minard, Columbia, Harvey G.. Fields, Farmerville, George Lester, Monroe, for appellees.
   GLADNEY, Judge.

Plaintiffs, eleven in number, alleging themselves to be forced heirs of the late Luther Howard, who died intestate in Caldwell Parish on November 18, 1929, instituted this suit April 9, 1954, against three other forced heirs and Carl Williams and Bourbon Calloway. The case is before this court on appeal by plaintiffs from a judgment sustaining an exception of no cause or right of action, a plea of estoppel and pleas of prescription of five and ten years.

The material allegations of the petition 'disclose: the relationship of plaintiffs and defendants (other than Williams and Callo-way) to the late Luther Howard; that said heirs were judicially placed in possession of the property of Luther Howard’s succession, including, as described therein, 374 acres of land situated in Caldwell Parish; that the succession proceedings failed to reflect a pre-existing mortgage on said land which was executed by Luther Howard in,,favor of the Prudential Insurance Company of America and also “omitted” money advanced to Oliver Howard by Luther Howard prior to his death; that Oliver Howard, now deceased, Edgar and Vollie Howard — the last two named defendants herein,- embezzled and fraudulently converted this money to their own use; that the Prudential Insurance Company of America in 1935 foreclosed on the above referred to tract of land, purchased said property at the judicial sale, and thereafter sold the property to Oliver Howard, Edgar and Vollie Howard, who had remained in possession of said property and who used embezzled money in purchasing the property; that the above referred to sales were simulated, and in fraud of the rights of plaintiffs, and should be declared null and void. The pertinent portion of plaintiffs’ prayer for relief is as follows:

“ * * * That after due proceedings had this Court order a full and complete accounting by Vollie Howard and Edgar Howard of movable and incorporal property of the estate of the late Luther Howard and of the revenues of the real property of the estate of the late Luther Howard.
“Petitioners further pray that the sales to Prudential Insurance Company of America, dated 31st day of July, 1935, and recorded in Conveyance Book 42, at Page 511 a-nd to Vollie Howard, Oliver Floward and Edgar Howard and recorded in Conveyance Book Y-43, at Page 376 et seq. be decreed to be simulated sales, null and void and of no effect and set aside, and that the property therein conveyed be decreed to belong' to the heirs of Luther Howard in their respective proportions.
“Petitioners further pray in the alternative, that the said sales be decreed to be fraudulent sales and set aside and the property be decreed to be owned by the heirs Of the late Luther Howard in their respective proportions.
“Petitioners further pray that the sales to Carl Williams and Bourbon Calloway be decreed to be fraudulent sales, or in the alternative, simulated sales; and that the following described property, to-wit: * * *
“ * * * Be decreed to be owned by the heirs of the late Luther Floward in the following proportions: * * *
“ * * * Petitioners further pray for all necessary and/or appropriate orders and decrees in the premises and for full equitable and general relief.”

The relief sought by plaintiffs may thus-be summarized: First, an action to require Vollie and Edgar Howard to account for money and incorporeal property obtained prior to the death of their father; and second, an action to have annulled as simulated contracts all conveyances affecting the said 374 acres of land with recognition, of plaintiffs’ proportionate ownership.

The first enumerated ground of relief, if sustained, would indirectly result in collation of money or property received by defendant heirs during the lifetime of Luther Howard, and which concededly never became part of his succession. The instant action is not one for collation but ■seeks a direct money judgment for funds •allegedly concealed from the succession and constituting a portion of plaintiffs’ legitime. The asserted cause of action does not lie. The money plaintiffs lay title to could only bave become the property of the succession ■of Luther Howard by being returned to the mass of the succession by collation or otherwise. Since this was never done -the money and intangible property so claimed never became the property of the estate or ■succession.

Collation is the return to a succession ¡property which a descendant heir has received “in advance of his share or otherwise,” in order to secure a legal division of the total succession mass. LSA-C.C. art. 1227 ; 26 T.L.R. 203. See also article entitled “Collation in Louisiana”' by Maurice L. Burk. In Byrne v. Succession of Byrne, 1949, 215 La. 1050, 42 So.2d 699, the Supreme Court had before it a case where certain forced heirs had presented a claim of a similar nature to the one before us, and it sustained an exception of no cause or right of action. The court, speaking through Judge Ponder, at page 700 of 42 So.2d, said:

“It appears, from a reading of the petition, that the plaintiffs are attempting, indirectly, to obtain a collation of money alleged to have been advanced' by Mrs. Byrne to her daughter during her lifetime. The succession of Mrs. Byrne was closed more than twenty years ago.
“Collation is the supposed or real return to the mass of a succession money or property that an heir has received in advance of his share or ■otherwise in order that such may be divided with other effects of the succession. Article 1227, Revised’ Civil Code. Collation can be made only to the succession of the donor. Article 1242, Revised Civil Code. The rules governing the partition of property belonging to a succession are applicable to a partition between co-proprietors of property not belonging to a succession except that which relates to collation. Article 1290, Revised Civil Code; Doll v. Doll, 206 La. 550, 19 So.2d 249.
“Articles 940, 941 and 942, Revised Civil Code, are found in the section of the Code dealing with the opening of successions. The alleged donation in dispute was the property of Mary Byrne and not the property of the succession because it had not been brought back into the mass of the succession by collation or otherwise. The judgment placing the heirs in possession of the property did not place the heirs in possession of the property belonging to Mary Byrne.
“Article 1029, Revised Civil Code, could not govern under the facts in this case. This article of the Code is to the effect that heirs who have embezzled or concealed effects belonging to a succession lose their share in the embezzled or concealed property. The property donated to Mary Byrne by her mother during her lifetime was not the property of the succession of her mother and could only have been so had it been returned to the mass of the succession by collation or otherwise.”

It is our opinion, therefore, that the petition herein fails to state a cause or right of action and seeks to recover by direct action money or property that was never returned to the succession of Luther Howard.

The second principal issue pertains to the alleged sales of the realty as being simulated. The action in declaration of a simula-' tion rests upon the provisions of LSA-C.C. art. 2239, which provides:

“Counter letters can have no effect against creditors or bona fide purchasers; they are valid as to all others; but forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit, and shall not be restricted to the legitimate (legitime).”

“A simulation is a feigned, pretended act — one which assumes the appearance without the reality. Since the act is entirely without effect, it is held not to have existed, and for that reason may be disregarded or attacked collaterally by any interested person.” “The Action in Declaration of A Simulation” by John Wood Anthony, 17 T.L.R. 457. A total want of consideration is essential to support such an action. So, where the contract sought to be annulled has some reality and there is some consideration, even though inadequate, the creditor may not resort to the action in declaration of a simulation. Brown v. Brown, 1878, 30 La.Ann. 966; Renshaw v. Dowty, 1887, 39 La.Ann. 608, 609, 2 So. 58; Payne & Joubert v. Buford, 1901, 106 La. 83, 30 So. 263; Citizens’ Bank & Trust Co. v. Willis, 1935, 183 La. 127, 162 So. 822; Freeman v. Woods, La.App.1941, 1 So.2d 134; Succession of Nelson, 1953, 224 La. 731, 70 So.2d 665.

No direct attack has been made herein upon the sale of the 374 acres through the proceedings by executory process instituted by the mortgagee. The suit was instituted over five years after the death of the mortgagor, Luther Howard, and we must assume the heirs of Luther Howard were therein properly cited. The foreclosure suit has not been made a part of the record in the instant case, but the petition herein does not attack the form of or legality of the procedure therein resorted to. Without doubt the sale to the Prudential Insurance Company of America and the subsequent sale to Oliver, Vollie and Edgar Howard were valid and real and not simulated transactions. Furthermore, we find that the foundation of the attack on the sale of the property to the three Howard brothers is the alleged embezzlement of and use by them of money claimed by plaintiffs. As we have so resolved, the plaintiffs cannot in this action claim.title or ownership to and in said money. Thus plaintiffs’ petition cannot be said to state a cause or right of action.

It is the ruling of this court that the exception of no cause or right of action was properly sustained by the court a quo. We find it unnecessary to pass upon the other pleas or defenses herein urged. The judgment from which appealed is affirmed at appellants’ costs.


source: Caselaw Access Project

author: AYRES, Judge.

license: Public Domain

text:
    WHOLESALE DISTRIBUTING COMPANY, Plaintiff-Appellant, v. Gregory C. WARREN, Defendant-Appellee.
    No. 8393.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.

      Wilson, Abramson & Maroun, Jack Kap-lan, Shreveport, Oliver & Oliver, Monroe, for appellant.
    Jones, Blackwell & Chambliss, West Monroe, for appellee.
   AYRES, Judge.

Plaintiff instituted this action to recover of the defendant judgment for $564 as the alleged purchase price of two television sets sold and delivered by it to defendant in 1953, which sets were alleged to be only two of the many sets and other appliances sold to defendant upon open account. From a judgment sustaining exceptions of no cause and of no right of action and dismissing its suit plaintiff prosecutes a devolutive appeal to this court.

. Defendant’s exceptions are predicated upon an affirmative showing of a compromise and settlement of defendant’s account with plaintiff. In this connection plaintiff alleges that in March, 1954, a dispute arose between plaintiff and defendant concerning the balance due on refunds under extended warranty contracts and in consequence of which plaintiff and defendant entered into a negotiated settlement for $1,150.50 in full settlement for all television sets delivered by plaintiff to defendant, less credits for extended warranty contracts then known to plaintiff; that at said time plaintiff did not know and was not informed by defendant that the two television sets, for which judgment for the purchase price is sought, had been delivered by its agent to defendant, and that had it known of such transfer and delivery it would not have entered into said settlement for the aforesaid consideration. It was further alleged that defendant at the time of the aforesaid settlement knew that plaintiff was not aware of the facts here-inabove detailed. There was no demand or prayer that the compromise be set aside. Notwithstanding the compromise and settlement of the open account as aforesaid, plaintiff seeks to recover for two of those sets which were sold and delivered prior to the compromise without the compromise settlement being first set aside.

The action of the trial court was predicated upon the proposition that plaintiff has no cause or right of action to recover for the purchase price of merchandise covered and included in the compromise settlement so long as the compromise agreement is not set aside and remains in force. With this we are in full accord. A compromise is defined by LSA-C.C. Art. 3071, which reads:

“A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
“This contract must be reduced into writing.”

The effect of a compromise is stated in Art. 3078 to be:

“Transactions have, between the interested parties, a force equal to the authority bf things adjudged. They can not be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.”

Thus it is seen that a compromise is as binding on the interested parties as a judgment and can not be collaterally assailed, Oglesby v. Attrill, 105 U.S. 605, 26 L.Ed. 1186, and has the force of a thing adjudged. Adle v. Prudhomme, 16 La.Ann. 343. A compromise agreement freely made has the dignity and force of a definitive judgment so far as it definitely and irrevocably fixes the rights and liabilities of parties thereto as relating.to the subject-matter dealt with. Jackson v. United States Fidelity & Guaranty Co., La.App., 199 So. 419.

And, where a compromise settlement, such as involved here, is not an absolute nullity, it can not be attacked collaterally, and a direct action is necessary to set it aside since the Codal provision above quoted gives to it the same force and attributes of a judgment of court. Succession of Rouse, 144 La. 143, 154, 80 So. 229; Chapin v. Federal Transp. Co., La.App., 70 So.2d 189; C.P.Arts. 607, 610.

The effect of our jurisprudence is that where a compromise or settlement is not an absolute nullity it can not be attacked collaterally but a direct action is necessary to set it aside. Succession of Rouse, supra; Bodcaw Lumber Co. of Louisiana v. Wallette, La.App., 19 So.2d 663; Chapin v. Federal Transp. Co., supra.

The reason therefor is that the aforesaid provisions of the LSA-Civil Code accord such a compromise or transaction the force and effect of a definitive judgment.

As indicated, this is not an action to set aside the compromise and settlement made and entered into by plaintiff and defendant. However, notwithstanding this settlement, plaintiff seeks to recover judgment for items covered and included in the settlement. It is clear this can not be done. A prerequisite is a direct action to set aside the settlement. Inasmuch as plaintiff’s petition affirmatively alleges a compromise settlement, it necessarily follows plaintiff is without right to recover judgment on the items included in the settlement. Its petition, therefore, discloses no cause of action.

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

Affirmed.


author: HARDY, Judge.

text:
    Rufus W. FONTENOT, Collector of Revenue, State of Louisiana, Plaintiff-Appellee, v. Jamie STINSON, Defendant-Appellant.
    No. 8335.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.

      Wayne Stovall, Jonesboro, for appellant.
    Robert L. Roland, George C. Gibson, Baton Rouge, for appellee.
   HARDY, Judge.

This is a summary proceeding brought in the name of the Collector of Revenue of the State of Louisiana, in accordance with the provisions of LSA-R.S. 47:1574, seeking the recovery of tobacco taxes, penalties, interest and attorney’s fees. From a judgment in favor of plaintiff making the rule absolute and ordering the defendant to pay a total sum of $249.60, plus interest and attorney’s fees, defendant brings this appeal.

In the lower court, contemporaneous with the filing of answer in the form of a general denial, defendant filed an exception of vagueness, an exception to the citation and an exception of no cause and no right of action, which exceptions were either overruled or referred to the merits. In this court defendant has filed an exception of no cause or right of action, together with an alternative tender of the amount of the tax in the sum of $9.60 and relies upon these pleadings in support of his appeal.

The exception of no cause and no right of action is predicated upon the proposition that the prayer of plaintiff’s petition is defective in that it does not end by conclusions analogous to the nature of the action as provided in Code of Practice Article 172 et seq., and, alternatively, no demand having been proved, the tender of the actual amount of the tax is sufficient to discharge defendant from any liability.

Reference to plaintiff’s petition discloses an allegation of indebtedness on the part of defendant in the nature of tobacco taxes incurred during the month of March, 1954, in the sum of $9.60, allegedly due by reason of defendant’s importation and consumption, in the State of Louisiana, of twelve cartons of cigarettes, the assessment of a penalty of $20 per carton, and, finally, the making of amicable demand in vain. On trial, neither party to the litigation introduced evidence, save and except the affidavit by an Assistant Collector of Revenue for the State of Louisiana, setting forth the amount of the tax and penalties claimed, which affidavit had been annexed to and made a part of plaintiff’s petition.

Careful examination of the pleadings serves to convince us that defendant’s position is without merit. The petition concluded by praying for the issuance of a rule nisi, ordering defendant to show cause “why judgment should not be rendered herein condemning the said defendant to pay the tax, interest, penalty and attorney’s fees hereinabove set forth * * The prayer further contained the usual clause comprehending general and equitable relief. Conceding the requirements of the prayer as set forth in Article 172 of the Code of Practice, we do not find that the pleading in the instant case is lacking in compliance with such requirements. For the purpose of considering the exception the allegations of the petition and the matters reflected by annexed documents must be accepted as true. Additionally, the statute itself, LSA-R.S. 47 :- 1574(4), specifically provides that an affidavit by the collector or one of his assistants as to the facts alleged in the pleadings shall be accepted as prima facie true and “as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the defendant or opposing party.”

There can be no question as to the propriety of the pleading in the instant case. In default of any evidence on behalf of defendant, the prima facie case made out by the State under the statutory provisions above noted must be accepted as conclusive.

In connection with defendant’s alternative position, it is urged that the allegation of the petition considering the making of amicable demand is “only a legal conclusion.” We cannot agree with this interpretation for it appears evident to us that an allegation that amicable demand has been made is an allegation of fact, and, by pleading on the basis of the exception, defendant perforce admits the fact to be true.

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

AYRES, J., dissents.


text:
    Mrs. Helen Irene WALSWORTH (Mrs. James M. Howard), Plaintiff-Appellee, v. J. Hadley HEARD, Administrator, Division of Employment Security, Department of Labor, Defendant-Appellant.
    No. 8347.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.

      Lewis D. Dunbar, Baton Rouge, for appellant.
    Wayne Stovall, Jonesboro, for appellee.
   HARDY, Judge.

Plaintiff brought this action as an application for a judicial review of a finding by the Louisiana Board of Review rejecting her application for unemployment security compensation. Named as defendant was J. Hadley Heard in his capacity as Administrator of the Division of Employment Security of the Department of Labor of the State of Louisiana. After entrance of a preliminary default, on plaintiff’s petition for review to the Second District Court in and for Jackson Parish, the same was confirmed and judgment rendered in favor of plaintiff reversing the decision rendered by the Louisiana Board of Review and ordering the Department of Labor of the State of Louisiana to pay plaintiff the sum of $500. From this judgment defendant has devolutively appealed.

Defendant has filed no pleadings in the instant case, either in the district court or on appeal, and has contented itself with the filing of a brief by the General Counsel for the Division of Employment Security of the Department of Labor of the State of Louisiana.

The issues presented in counsel’s brief involve contentions which could and should have been presented on hearing of plaintiff’s application before the district court but are here raised for the first and only time. Principal among these contentions are the claims that the district judSe was without authority either to take evidence or to pronounce any judgment on the merits plaintiff s claim, in view of the provi-s*ons °f LSA-R.S. 2o:1634 limiting the jurisdiction of the court to questions of ^aw> prohibiting additional evidence, and restricting the relief to the ordering of additional evidence to be taken before the Board of Review.

In connection with the position assumed by appellant with respect to this appeal, we note an order of the court appended to plaintiff’s application for judicial review reading as follows:

“It Is Ordered that Hon. J. Hadley Heard, Administrator of the Division of Employment Security, Department of Labor, State Capitol Annex, Baton Rouge, Louisiana file forthwith and not less than fifteen (15) days from the service hereof with the Clerk of the Second Judicial District Court, Jonesboro, Jackson Parish, Louisiana, a certified copy of the record in this case bearing docket No. 271-BR-54 (#1180-AT-54) including all documents, papers and a transcript of all testimony taken in the matter before the Administrative Boards, their findings, conclusions and decisions in order that a Judicial Review may be had in accordance with law particularly R.S. 23:1634 of the laws of the State of Louisiana.
“Thus Done ordered and signed at Jonesboro, Louisiana, on this the 21 day of June, A.D. 1954.”

The record shows that plaintiff’s application was properly filed; that service of her petition and order of the court for the filing of the record was duly made on defendant, J. Hadley Heard; that the above order for the production of the record was not complied with; that default judgment was confirmed and rendered by the court on the basis of testimony by the plaintiff; that this appeal was taken by ■petition and order thereon almost five months after rendition of judgment, and that no pleadings have beén filed in this ■court.

The foregoing observations would serve ■to dispose of this matter were it not for •the somewhat stringent limitations which .govern the procedure with reference to judicial review, as provided in LSA-R.S. 23:1634. We quote below the applicable ■extracts from Section 1634 which we think should govern the disposition of the in:stant case.

“In any proceeding under this Section the findings of the board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court * * *. Upon the final termination of a judicial proceeding, the board of review shall enter an order in accordance with the mandate of the court.”

It is evident that a certified copy of the record of the case before the Board of Review was not filed in the district court. It is further clear that the district court •was. prohibited by the statute from taking additional evidence. In view of these considerations the court was without authority to pronounce any judgment. Plaintiff, who .appears to have scrupulously fulfilled the requirements of the statute with respect to 'her application for judicial review, and who was therefore properly before the court, had the right to compel the administrator to produce the record of the hearing of her claim before the Board of Review either 'by a rule for contempt or through mandamus proceedings, and, under the specific •.provision of the statute as above ■ quoted, the court was prohibited from receiving additional evidence.

It is also evident that a court, un■der these proceedings for judicial -review, ■is without authority to pronounce a money ■judgment and is limited to the pronouncement of a judgment ordering the Board of Review to grant relief in accordance with the terms of such mandate as the court might decree.

It follows, because of the irregularities above noted, that the judgment appealed from is a nullity. Under the provisions of Article 609 of the Code of Practice the nullity of judgment can be demanded on appeal when the nullity is apparent on the face of the record.

For the reasons assigned the judgment appealed from is annulled and set aside and the case is remanded to the Honorable the Second Judicial District Court in and for the Parish of Jackson, State of Louisiana for further proceedings in conformity with this opinion.


author: HARDY, Judge'.

text:
    Narvis Gene McELROY, Plaintiff-Appellant, v. T. L. KENNEDY et al., Defendants-Appellees.
    No. 8388.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.

      Harvey G. Fields, Farmerville, for appellant.
    Gravel, Humphries, Sheffield & Mansour, Alexandria, for appellees.
   HARDY, Judge'.

This is a compensation suit in which plaintiff claimed total permanent disability at the maximum weekly rate from his employer and insurer. After trial there was judgment rejecting plaintiff’s demands, from which he has appealed.

Plaintiff, employed by defendant, T. L. Kennedy, was injured on July 24, 1952, while engaged in cutting timber on a tract of land in Union Parish. A pine tree felled by plaintiff and his co-worker struck a black gum tree, 'breaking a large limb therefrom, which limb fell upon plaintiff, striking him upon the head and inflicting serious and allegedly permanent injury. Plaintiff was removed to Marion Clinic and Hospital in Union Parish where he was hospitalized for a period, of eleven days. Compensation was paid at the rate of $22.75 per week by defendant insurer from the date of the accident through date of February 4, 1953, at which time payments were terminated.

Plaintiff alleged that as the result of the accident he sustained an injury to his brain which caused excruciating pain; dizzy spells and swelling of the eyes, continuing until about the first of December, 1952, .since which time

“ * * * if petitioner exerts himself physically, the headaches and dizzy spells return and petitioner’s vision is affected.”

It was further alleged that being unable to perform any nature of manual labor by reason of the headaches and dizzy spells, plaintiff had entered Southern University in September of 1952 but was unable to apply himself to his studies and was forced to return to his home. Finally, plaintiff contended that he was totally and permanently disabled.

The question of disability which is presented by the instant case must be resolved upon the basis of the medical testimony comprehended by the record. Plaintiff relies upon the expert testimony of Dr. J. N. Jones, a general practitioner of Bas-trop, Louisiana, and Dr. C. M. Lobrano, an expert radiologist of Monroe.

Study of the testimony of Dr. Jones, given on trial of the case on February 17, 1954, reveals that the doctor saw plaintiff in his office on the 11th of November, 1953, but if he made any examination at that time his testimony fails to disclose the extent and the result thereof. The witness’ opinion, according to his testimony, was based upon a history of the case as related to him by plaintiff and the examination of x-ray films which had been taken by Dr. Lobrano. In the first place, the history was unquestionably erroneous inasmuch as plaintiff informed Dr. Jones that following the accident he had been unconscious for a period of four days. This fact is conclusively disproved by the record in the case, and particularly by the testimony of the physician who was in charge of the Marion Clinic in which plaintiff was a patient following his injury. It is uncontrovertibly established that plaintiff was unconscious for only a few hours.

Continuing with the evaluation of Dr. Jones’ testimony, we think the witness himself succeeded in establishing the fact that he was not in any degree whatsoever an expert in the interpretation and evaluation of x-ray films. At one point in his testimony the witness was exhibiting and interpreting his finding of a fracture in a left lateral view of plaintiff’s head, depicted by an x-ray film taken by Dr. Lobrano, and purported to make a comparison between the left lateral and right lateral views simply by examining the reverse side of the left lateral film. Inexpert though we may be in the field of medical science, even ordinary common sense would indicate that a left lateral x-ray film cannot be converted into a right lateral simply by turning over the film. Finally, we point out that the doctor’s opinion as to plaintiff’s inability to work is without any factual foundation, as evidenced by the following question and answer on cross-examination :

“Q. Now, Doctor, you stated this man couldn’t do work. What do you base that opinion on? A. Well, that fractured skull he’s got there, that traumatism it did to his brain bound to done something. When — for a man to be unconscious as long as he was he musta had a terrible blow.”

Notwithstanding the witness’ testimony as to the evidence of fractures represented in the Lobrano films, we think the testimony taken as a whole is completely unconvincing.

Turning to the testimony of Dr. Lobrano we find that he made x-ray films of plaintiff’s skull on November 20, 1953 and determined what he considered to be the existence of a linear fracture of the right frontal region measuring some two or two and one-half inches in length. This witness testified, on the basis of his opinion as to the existence of a fracture, that plaintiff’s subjective complaints could have resulted from the accidental injuries, but he consistently refused to express a definite opinion as to disability, qualifying his conclusion of serious results upon the history of continuing unconsciousness over a period of four or five days. On direct examination the witness testified that “ * * * a simple fracture may not cause much trouble,” but that fracture accompanied by concussion and coma could produce lasting disability.

In summing up the effect of the testimony of this witness we point out that even the acceptance of his finding of evidence of a fracture disclosed by the x-ray films was not sufficient to justify an opinion in the mind of the witness himself as to the existence of total and permanent disability.

As we have above noted, Drs. Jones and Lobrano were the only expert witnesses tendered by plaintiff, although according to the testimony of plaintiff and his uncle, with whom he lived, plaintiff had been examined or treated by four other physicians. No explanation was given for the failure to tender the testimony of these doctors on trial of the case.

In support of their contention that plaintiff did not suffer total and permanent disability defendants relied upon the testimony of Dr. Faheam Cannon, an eminently qualified orthopedic surgeon, Dr. V. S. Gulley of the Marion Clinic, and Drs. R. W. Dicken-horst and David D. Salmon, expert radiologists.

The testimony of Dr. Gulley is convincing on the point that the history given by plaintiff and others of his lay witnesses that he was unconscious for a period of some four days following the accidental injury is completely false. Plaintiff, as we have above noted, was hospitalized in the Marion Clinic and Hospital, which was under the supervision of Dr. Gulley, and was seen, attended and treated by Dr. Gulley a number of times. The witness testified that plaintiff recovered consciousness within a space of some hours following his admission to the hospital shortly after the accident. This fact was further corroborated by plaintiff’s employer, who testified that plaintiff partially recovered consciousness within a period of two hours following the accident and that he was completely conscious and rational within a period of a few hours following that. There is no question as to the correctness of the conclusion that plaintiff s period of partial or complete unconsciousness endured for only a matter of hours and was not followed by any evidence of coma.

We were particularly impressed by the testimony of Dr. Cannon, who not only made x-ray films of plaintiff’s skull but appears to be the only one of the expert witnesses who accorded plaintiff the benefit of a thorough medical examination in addition to taking the pictures. Dr. Cannon found no indications of disability at the time of his examination, which was made on April 7, 1953. In connection with his own x-ray films and an examination of the films made by Dr. Lobrano, this witness testified that the so-called fracture line found by Dr. Lobrano was duplicated on both sides of plaintiff’s skull and the witness very logically pointed out the fact that, if one of these lines should be interpreted as a fracture, the same interpretation should be made of the other. It was the positive opinion of this expert witness that none of the x-ray films justified the conclusion of the existence of evidence of a fracture and that, on the contrary, the lines depicted by the films marked the course of an impression made by a blood vessel. It was pointed out that the lines were perfectly smooth and regular, evidencing no indication of the broken or jagged irregularity which would have tended to indicate the line of a fracture.

The testimony of Drs. Dickenhorst and Salmon corroborated the x-ray findings of Dr. Cannon, and these experts were also positive in their conclusion that none of the x-ray films evidenced the existence of any fracture.

Learned counsel for plaintiff urgently argues that in cases of conflict in medical testimony the court should be guided in its conclusion by the testimony of the lay witnesses, which in this case, as in most others, was furnished principally by close relatives and intimate friends. We point out that this principle of dependence upon lay testimony serves as a guide only in those cases where the medical testimony is so evenly balanced and so violently conflicting as to prevent the drawing of a con-elusion. No such element exists in the instant case, and, in truth, we find surprisingly little conflict in the medical testimony as presented on behalf of plaintiff and defendants. There is not the slightest doubt as to the overwhelming preponderance in weight and value of the expert medical testimony in support of defendants’ contentions. Apparently the district judge was of the same mind. This case involves purely and solely the resolution of a question of fact. We not only find no error of fact in the judgment of the lower court, but we find abundant and conclusive support therefor in the record.

For the reasons assigned the judgment appealed from is affirmed.


text:
    J. B. DELOUCHE, Plaintiff-Appellee, v. CITY OF MONROE, Defendant-Appellant.
    No. 8429.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.

      W. H. Thompson, Hillyer S. Parker, Monroe, for appellant.
    A. Milling Bernstein, Monroe, for appel-lee.
   AYRES, Judge.

This is a suit for compensation on account of disabling injuries allegedly sustained in an accident of June 23, 19S4, while plaintiff was in the employ of the defendant City of Monroe. Alleging that said injuries resulted in his total and permanent disability, plaintiff claims compensation in the sum of $23.08 per week for the period of his disability, not exceeding 400 weeks, less compensation for 21 weeks previously paid, and for the maximum medical expense, together with penalties and attorney’s fee.

From a judgment in plaintiff’s favor for the aforesaid weekly sum during the period of his disability and not extending beyond 300 weeks as for total temporary disability, less compensation previously paid not only for the aforesaid 21 weeks but also for 11 weeks additional, calculated from the excess payments made during the aforesaid 21 weeks and ordered credited at the end of the aforesaid maximum period, and further reserving unto plaintiff the maximum $1,000 for medical expense, less $271.95 previously incurred by defendant on plaintiff’s behalf, defendant has appealed.

Plaintiff likewise devolutively appealed and has made a further appearance by answering defendant’s appeal, praying that he be awarded compensation as for permanent, total disability and for the duration thereof, not exceeding, however, 400 weeks, less 21 weeks during which wages were paid in lieu of compensation. Plaintiff’s demands for penalties and attorney’s fees were not urged either in brief or by argument before this court. These demands were apparently abandoned in the trial court and will accordingly be so treated here.

Plaintiff was employed as a common laborer by the City of Monroe. His employment was in connection with the construction and repair of its streets, sewers, and other public improvements. While so employed on June 23, 1954, with other employees, he was engaged in delivering and unloading concrete meter boxes for water lines to be installed and used in connection with the municipal water system. These boxes varied in size and weight according to the size of the lines upon which they were to be connected. There were three sizes, the largest ones weighing as much as three to four hundred pounds. Plaintiff and a fellow employee by the name of William Mecom were unloading one of these boxes from the truck upon which they had been transported to the delivery site, when plaintiff stepped and slipped on rocks or pebbles in the street, which, from the weight he was carrying, produced a severe strain upon his back, resulting in the injuries of which he complains. As his back strained there was a “snap” or “pop” in his back, followed immediately by a painful and burning sensation, and, according to his testimony, he then and there informed Mecom that he had hurt his back. Notwithstanding this, however, plaintiff continued his work and assisted in unloading several other meter boxes and remained on the job until the conclusion of the work day at 5 :00 o’clock. Pie, as well as the other employees, was transported to the defendant’s barn and from there they were transported to their residences.

Plaintiff made no complaint to any of the other employees during the afternoon while at work or on the truck to the barn or to his residence to the effect that he had sustained an accident and was injured thereby. Plaintiff’s wife was visiting in Jena, Louisi-an, but his married daughter, a Mrs. Jackson, was at his residence, and, after she prepared plaintiff’s supper, he refused to eat and complained of his back, telling her of the injury that he had suffered during the day. All during the night he complained of pain and on the next morning sent word to his foreman that, due to his injury, he was unable to work. He was advised by his superior, an employee of the defendant, to report to Dr. Fred Marx. Plaintiff complied with this instruction and called at the office of Dr. Marx on the day following his injury, and on the following day, June 25, 1954, he was, on Dr. Marx’ advice and instructions, admitted to the St. Francis Sanitarium, where he was treated by Dr. Marx daily until July 3, 1954, at which time he was released and permitted to return to his residence. On the day of his admission to the hospital, Dr. F. Cannon, an orthopedist, at the suggestion of Dr. Marx, also examined plaintiff.

During the next three months Dr. Marx attended plaintiff professionally upon 24 occasions. Dr. Cannon made further examinations on July 16 and August 20, 1954. Dr. Lobrano assisted in the examinations by making X-rays on two occasions, that is, on June 25 and June 28, 1954. During the following September Dr. Marx, evidently suspecting that plaintiff was suffering a herniated disc or other involvement of the spinal column, advised that plaintiff submit to a myelogram, which requires a puncture of the spinal column and the injection of a fluid around the spinal cord. Also, at Dr. Marx’ request, plaintiff was examined by Dr. A. Scott Hamilton, another orthopedist, who made two examinations, the first on September 20, 1954, and again on January 17, 1955. Plaintiff refused the myelogram test and did not return for treatment by Dr. Marx after October 11, 1954. Whereupon Dr. Marx discharged him and the defendant accordingly discontinued the payment of his wages, which had been paid from the date of the accident to November 19, 1954, or for a period of 21 weeks.

The defendant denied that plaintiff was involved in an accident while in its employ and averred that in the event he was experiencing any disability it was not the result of any accident while in its employ but was due to an old injury received in an accident in 1939 while he was in the employ of another. Additionally, it was claimed that if plaintiff did sustain an accident and disabling injuries therefrom, such disability could not have exceeded 12 weeks, during which time plaintiff was paid full wages.

The first issue presented for determination involves questions of fact. They may be stated:

Was plaintiff involved in an accident? Did he sustain accidental injuries thereby, and, if so, what disabilities did he suffer, and the extent and duration thereof?

These questions were resolved by the trial court in plaintiff’s favor. His Honor’s findings and conclusions find support in the evidence in the record. A careful review and examination of the record discloses no manifest error therein. In summarizing the facts and in reaching its conclusions, the court stated:

“The testimony of the plaintiff relative to the accident was that on June 23, 1954 that he was digging ditches and hauling meter boxes with a crew of fellow employees. The meter boxes were made of concrete; and weighed around 300 or 350 pounds; that there were six men in the crew including his foreman, Mr. Jim Garner; that about 2:30 p. m. the foreman, Mr. Jim Garner was some distance from the truck; that all the members of the crew, with the exception of the plaintiff and William Mecom, were working across the street; that a man by the name of Thompson also working for the City, bpt not a member of the plaintiff’s crew was working on the same side of the street as the plaintiff and nearby; that as the plaintiff and Mecom unloaded the third meter box, the plaintiff’s foot slipped on a pebble causing a strain on his back; that he told Mecom that he had hurt his back and that he had heard a popping and felt a burning sensation in his back. The plaintiff further testified that he and Mecom unloaded five more meter boxes after he hurt his back; that he continued to work until approximately 4:30 p. m. when they quit work. The members of the crew were loaded on the truck and carried to the barn. From there the plaintiff and Pete Shambro were carried to their home by Jim Garner in the truck.
“Mrs. Jackson, daughter of the plaintiff, stated that she was at the plaintiff’s home when he arrived; that the plaintiff’s wife was out of town visiting her sister in Jena, Louisiana. Mrs. Jackson further stated that she prepared supper for her father and that he refused to eat and when she asked him what was wrong, he stated that his back was hurting and when asked how he hurt it that he said something about a box and that she tried to get him to go to a doctor or call one but that the plaintiff said he thought it might pass off and would not call a doctor; that the plaintiff complained all night long and was unable to go to work the next morning. The next morning, which was June 24, 1954, the plaintiff sent word to his foreman, Mr. J. B. Renaud, that he had gotten hurt and the foreman came by plaintiff’s home and advised him to report to Dr. Marx, which he did.
“Dr. Marx testified that upon examination of the plaintiff that there was muscle spasm of the muscles along each side of the spine from approximately the level of the first lumbar vertebra through the fifth lumbar vertebra of a moderate degree. The most minor degree of palpation produced a remarkable response in the form of a pulling away or complaint on the part of the plaintiff. Cough produced pain in the region of the fourth or fifth lumbar vertebra and straight leg raising also produced pain. The next day the doctor sent the plaintiff to the St. Francis Sanitarium, where the plaintiff remained until July 3rd. Treatment consisted of bed rest on a boarded bed, medicine to relax the -muscle spasm and narcotics to alleviate the pain. Plaintiff was also put in pelvic traction. X-rays were made by Dr. Lobrano, roentgenologist and revealed no fracture or dislocation. Dr. Marx testified that in his opinion the plaintiff received a sprain or strain, possibly even a ruptured disc.
“Dr. F. Cannon, orthopedist, examined the plaintiff at the St. Francis Sanitarium on June 26, 1954. He concluded upon his examination that the patient had sustained trauma which was superimposed upon a congenital or pre-existing defect in his inferior articular processes of the fifth lumbar vertebra and the doctor also detected definite spasm involving the sacral-spinalis group of muscles to either side of his lumbar spine. The doctor stated that it was his opinion that the plaintiff’s disability was based primarily upon either the ligementous or muscular strain with respect to the lumbo sacral area. The doctor stated further that he found no evidence of any herniated disc.
“Dr. A. Scott Hamilton examined the pl-aintiff on September 20, 1954. The doctor found that upon his examination that the plaintiff had a first degree spondylolisthesis. The doctor stated it was possible that this condition was aggravated to some extent by his injury.
“Dr. Frank Rizzo examined the plaintiff on January 24, 1955. He stated that the plaintiff could possibly have a ruptured disc pressing on some of his nerves causing sciatica. Upon being asked:
“Q. ‘Well, in unloading one of those boxes, two men, could a man receive a strain or injury of some character, to his back? A. Well, yes, sir. It is less likely for a man to hurt himself handling heavy boxes or any heavy object if everything is going well. He is accustomed to it and knows how to handle himself. It is very unlikely for a man to hurt him,self doing straining work per se. By ■the way that he gave the history to me that he stepped on a rock or something, that he twisted his ankle, naturally causing him to give suddenly and the weight was suddenly thrown on him when he wasn’t really prepared for it that way, that is more likely to do it. You can get a severe injury .to the back actually believe it or not from just stooping down tying a shoe string than you can from actually lifting heavy objects.’
“Therefore, the plaintiff relates in detail the accident. His story is corroborated by that of his daughter who saw him some three hours later. He reported to his foreman the accident the next morning. Dr. Marx, Dr. Cannon, Dr. Hamilton and Dr. Rizzo all stated that it could have happened as he said and all found that the plaintiff was disabled. The only other testimony to the contrary was the testimony of the members of the crew with whom the plaintiff worked, that he at no time that afternoon confided with them that he had received an injury. The only person that the plaintiff told that he had received an injury was William Mecom, who was lifting the other end of the meter box and the plaintiff’s testimony was that Mecom was somewhere in Texas and whose address he did not know and, therefore, was not available to testify on the date of the trial. The testimony of the members of the crew, being negative in character, the Court is of the opinion that the plaintiff received an injury to his back on the afternoon of June 23, 1954. •
“As to the entent of his disability, Dr. Marx testified that he did not discharge plaintiff because he thought he had fully recovered but for the reason that the doctor had advised a myelogram and that the plaintiff had refused and had not come back to Dr. Marx for further treatment. Dr. Marx stated that the last time that he examined the plaintiff which was in September, that he felt disability should have probably terminated within a period of four to six months following the date of injury; that as he had not examined the plaintiff since September, 1954, he would not be able to give an opinion as to the extent of his disability at the moment he testified but he felt that by that time — that is the time' 'of trial — that the plaintiff should be completely free of disability.
"Dr.. F. Cannon stated that upon his first examination that he felt like the patient would require probably three or four months of convalescent time and felt that there was no reason why he should not have a complete recovery from the effect of the injury. On July 16, 1954, the doctor examined him and stated that he felt like at that time that the plaintiff should recover in approximately three or four months from that time which would make approximately six months from the date of injury. The doctor examined him on August 20, 1954 and felt that at that time that the plaintiff would require the total of three or four months convalescent time from the date of injury and found no evidence of any permanent disability. The doctor did not examine the plaintiff after that date.
. “Dr.. A. Scott Hamilton examined the plaintiff first on September 20, 1954 and again on January 17, 1955. The doctor, upon being asked:
“Q. ‘Now ■ doctor, based on all of those tests in your examination what is your opinion as to Mr. Delouche’s complaints? A. I think as I said before, that he had a first degree spondy-lolisthesis. It is possible that this condition was aggravated to some extent by his injury, nevertheless with the amount of exaggeration, falsification, increased response, abnormal response, I can only feel that the aggravation of his spondylolisthesis is not too great in extent. I think he has some disability; I don’t think there is any doubt about it. I don’t think that the disability is as great as he feels it is.’
“The doctor stated further in response to the question as to whether or not the patient would be able to return to hard manual labor:
“Q. ‘Could you give an estimate as to when that might be — as to time ? A. In order to be absolutely fair and to bend over backwards I would say that twelve to eighteen months would be the time required.
“Q. Would that time date from the beginning of the injury? A. From the beginning of his condition, yes, sir.’
“Dr. Rizzo stated that he examined the plaintiff on January 24, 1955.
“Q. ‘Doctor, from your examination of him, Mr. Delouche, from his history and objective evidence, did you find that he had a disabling injury for the one engaged in manual labor? A. I think so at the present time he has.’
“So, therefore, the doctors are in agreement that the plaintiff was totally disabled from doing manual labor at the time of trial. The testimony revealed that the plaintiff had never done any other type of work other than hard manual labor. The plaintiff testified that at the time of trial that due to the injury to his back he was unable to lift anything; that he was unable to sleep without taking dope pills. His neighbor, Mr. A. W. Thompson, Sr., stated that he lived across the street from the plaintiff and the plaintiff had on one occasion since his accident tried to mow his yard but was unable to do so due to his disability.
“From the testimony given the Court must conclude that the plaintiff received an injury in the scope and course of his employment; that he was totally and permanently disabled because of the injury to do the type of work he was doing at the time of injury and that he is still totally and permanently disabled for doing manual labor.”

On a rehearing the court concluded that it erred in two particulars, (1) in not granting to the defendant credit for over-payments in excess of the weekly compensation that the defendant had been paid since June 23, 1954, and (2) in granting to the plaintiff compensation for the maximum period of 400 weeks. With the conclusion reached on these two points we are unable to agree. We shall direct our attention to these issues in the reverse order.

Inasmuch as the conclusion reached by the trial -judge, as well as by us, is that plaintiff was totally and permanently disabled because of the injuries ' suffered in the accident sustained by him and was so totally and permanently disabled at the time of trial, and it appearing problematical under the evidence as to the duration of the disability, the interval for the payment of compensation should have been fixed as for the period of such disability, not exceeding 400 weeks.

Professor Malone in Louisiana Workmen’s Compensation Law and Practice 354, Sec. 280, says:

“If at the time of trial it appears that the injury will produce disability for an extended period, the court will not usually indulge in conjecture or attempt to fix definitely the number of weeks for which compensation shall be paid. In such cases, the award will be made for ‘the duration of the disability’, subject, of course, to the appropriate maximum. Whenever thereafter the disability ceases, the employer is authorized by the statute to apply for a modification of -the judgment. Thus he is fairly protected against imposition.”

See the authorities therein cited.

Our views herein are in.accord with the views of the First Circuit Court as expressed in Peavy v. Calcasieu Paper Co., Inc., La.App., 70 So.2d 755, 759, wherein the court stated:

“The jurisprudence is clear that where a claimant is shown to be totally disabled at the time of the trial and there is no evidence on which to fix a definite period for the duration of the disability, compensation should ' be awarded for the maximum number of weeks, since the defendant is protected ■by the provisions in the law which permit a review of the judgment at intervals of six months. Woodward v. Blair, La.App., 197 So. 920; Vilce v. Travelers Ins. Co., La.App., 24 So.2d 485; Strother v. Standard Acc. Ins. Co., La.App., 63 So.2d 484. The District Court allowed plaintiff compensation during the period of disability not to exceed 300 weeks. However, in view of the evidence, it is the opinion of this Court that the maximum period should be increased to 400 weeks.”

It was held in Strother v. Standard Acc. Ins. Co., La.App., 63 So.2d 484, that where the evidence was conflicting as to whether plaintiff’s disability was of a permanent or temporary nature and the court was unable to determine whether plaintiff would recover and, if so, when such' recovery might be expected, plaintiff was en-' titled to an award of compensation during the period prescribed for permanent, total disability. An award of compensation as for permanent and total disability and for a period of disability not exceeding 400 weeks, subject to payments previously made, was approved by this court in Wallace v. Spohrer-Pollard Contractors, 76 So.2d 312, wherein it was found that plaintiff was still disabled at the time of trial.

As to the first of these propositions we do not think the authorities cited by the lower court in support of its conclusion that plaintiff should be credited by the excess payment of wages over compensation payable to plaintiff by crediting such excess at the end of the term for which compensation is payable, namely, Thibeau v. Dutton & Mercer, 17 La.App. 338, 136 So. 186, and Hammons v. Mississippi Cottonseed Products Co., La.App., 160 So. 140, are controlling here or are in accord with the later authorities and the established jurisprudence of this State.

It is firmly settled that where .an employee sustains compensable accidental injuries but is kept on the pay roll out of charity, and his wages are paid him solely as a gratuity, or as a benevolence, as was done in this case, and the wages, although not.earned, amounted each week to at least as much as the compensation would have been, credit :on the compensation is due on a week-to-week basis for each week such gratuitous payments are made. It is also well settled that if during any such week the employer or his insurer pays to the injured workman gratuitous wages amounting to more than the compensation would have been, credit is not to be given to the employer, or to his insurer, on the basis of the amount paid but the credit to be allowed is only one week in compensation in which the gratuitous wages paid him equal or exceed what the compensation would have been. Daigle v. Higgins Industries, Inc., La.App., 29 So.2d 374.

The first case presenting the question of credit to an employer for services paid a retained employee was Hulo v. City of New Iberia, 153 La. 284, 95 So. 719. The plaintiff there had been retained oh the pay roll following his accidental injury. After a period of recuperation he returned to work and performed lighter duties. For a time he was paid $90 per month, then later $45 per month, but the court found that he was only able to earn $30 per month and an award of permanent, partial disability was made on that basis. Concerning the wage payments in excess of $30 per month, it was held that where an employer has, out of sympathy and benevolence, and with a view to assist, paid an injured employee more than he is really earning, such excess payments should be taken into account as advance payments.

The general policy of recognizing wage payments has continued to receive support in later cases and the employer has been allowed credit in some form of other for wages paid during a time an injured employee is paid full wages for lighter work with a view of eventually re-establishing him at his old, or in a new, job; the employer, however, need not pay both wages and compensation. Becton v. Deas Paving Co., Inc., 3 La.App. 683; Hennen v. Louisiana Highway Commission, La.App., 178 So. 654; Holmes v. Armour & Co., La.App., 190 So. 865; Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 199 So. 228; Holliday v. Martin Veneer Co., La.App., 15 So.2d 168, affirmed 206 La. 897, 20 So.2d 173; Annen v. Standard Oil Co. of New Jersey, La.App., 28 So.2d 46; Daigle v. Higgins Industries, Inc., supra; Goodman v. Hillyer, Deutsch, Edwards, Inc., La.App., 49 So.2d 60; Malone’s Louisiana Workmen’s Compensation Law and Practice, Sec. 402.

In his comments, Professor Malone states:

“The method of computing the credit has not always been uniform. The court in the Hulo case undertook to divide the wages into earned and unearned portions, and based the credit on the total ‘unearned’ payments. Since the retained employee is usually given lighter duties at full wages, part of the wage is actually ‘earned’ and part ‘unearned’. The difficulty in making a fair determination of what a worker actually ‘earns’ is obvious, yet to disregard completely the worker’s productivity and to allow the employer full credit for rehabilitation wages might be regarded as unfair. However, the method accepted in the Hulo case of dividing the wage was not followed in succeeding cases, although lip service has been paid in allowing total credit for all wage payments.
“The case, Carlino v. U. S. Fidelity & Guaranty Company, decided seventeen years after the Hulo case, placed the employer’s credit on an entirely new basis. The suit was against the employer’s insurer, who claimed credit for the total wages paid by the employer. The supreme court held that an insurer cannot have ‘credit for excess payments made by the employer to employee as a gratuity.’ The payments merely take the place of the compensation which accrued to the worker during the same period in which wage payments were made.
“Ability to earn played no part in the Carlino decision. Instead of apportioning the wage payments on an earned and unearned basis, the court allowed the defendant a flat deduction of a week’s compensation for every week wage payments equalled or exceeded the compensation rate. Although the court in the Carlino case was dealing with the employer’s insurer, the same rule has been applied to the employer.
* * * * * *
“The effect of the Carlino case was fully discussed later by the court of appeal in Annen v. Standard Oil Company of New Jersey. The defendant sought to return to the Hulo rule, and asked for credit for the total amount of unearned wages paid the claimant. The court noted that it would be inequitable to charge the employer with compensation in addition to the prior wages, but on the other hand it would be inequitable to treat all such wages as ‘advance compensation’. Yet the court expressed itself as being opposed to a separation of earned from unearned wages. The easy rule of the Carlino case furnished a rough compromise. Later, in the case of Daigle v. Higgins Industries, the court held that the employer is entitled to credit even though the prior wages had been fully earned. Since the Daigle case, the method for computing the credit described above has been consistently applied without modification.”

The conclusion necessarily follows that defendant herein is entitled only to credit for the period of time for which full wages were paid, that is, for 21 weeks, and not credit for such length of time as compensation at plaintiff’s rate would equal the total wages paid during the 21 weeks.

Before concluding this opinion, it should be noted that defendant strenuously contends that plaintiff’s failure to obtain the testimony of a fellow employee, William Mecom, with whom plaintiff claims he was working at the instant of the accident and to whom he allegedly complained immediately of his injury, constitutes a presumption that Mecom would not have, had he testified, corroborated plaintiff’s statements. We are not of the opinion, from our appreciation of the matter, that plaintiff’s failure to obtain the testimony of this witness is entitled to the importance contended. In the first place, Mecom was a former employee of defendant, and, although the testimony reveals that at the time of trial he was somewhere in Texas, the defendant was in a much better position to locate the witness and obtain his testimony. Plaintiff was a common laborer and his suit was prosecuted in forma pauperis.

For these reasons, the judgment appealed should be, and it is, therefore, amended by increasing the period of payment of compensation from a term of 300 weeks to the period of plaintiff’s disability as of total, permanent disability, not, however, exceeding 4.00 weeks, subject to a credit only of compensation previously paid covering a period of 21 weeks, and, as thus amended, the judgment is affirmed.

Amended and affirmed.


text:
    David MONTGOMERY, Jr., et al., Plaintiffs-Appellants, v. LOUISIANA POWER & LIGHT COMPANY et al., Defendants-Appellees.
    No. 8277.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.
    Rehearing Denied Jan. 9, 1956.
    McBride & Goff, Ruston, for appellant.
    Hudson, Potts, Bernstein & Davenport, Theus, Grisham, Davis & Leigh, Monroe, for appellee.
   HARDY, Judge.

This is an action 'for damage's resulting from personal injüries sustained by plaintiff, David Montgomery, Jr,, when- struck by an automobile driven' by 'the' defendant, J. Ollie Ware. Jpined as defendants are the driver’s employer, Louisiana Power & Light Company, and its insurer, Hartford Accident & Idemnity Company. Plaintiff, David Montgomery, Jr., having been a minor at the time of the accident, was joined as a party plaintiff by his father, David Montgomery, Sr., who sought recovery for medical expenses paid for the care of his minor son, and, alternatively, for the loss of wages or earnings of his said son until his attainment of the age of majority. From a judgment in favor of defendants rejecting plaintiff’s demands they have prosecuted this appeal.

The accident occurred shortly after 5:00 P. M. on July 10, 1950, within the corporate limits of the town of Bernice, Union Parish, Louisiana, at a point on Louisiana Highway No. 167. David Montgomery, Jr., hereinafter referred to as plaintiff, was in the company of a number of his friends and fellow employees, all of whom had just finished their day’s work at the Bernice Hardwood Lumber Company, which is located a few hundred feet east of the highway, and all were returning to their homes, which necessitated crossing the highway from east to west. As the six or ■seven Negroes reached the highway they came to a stop to await the passage of a log truck which was proceeding south along the highway. The testimony shows that the Negroes were standing some two or three feet east of the paved slab of the highway and were either in somewhat of a line along the side of the highway or were bunched together in a group, the testimony •differing on this point. At the time, an automobile driven by the defendant, Ware, who, admittedly, was in the course of his ■employment and who was accompanied by his wife, was proceeding north on the highway, in the lane nearest to the position occupied by the Negroes standing along the side of the road. The plaintiff was struck by Ware’s automobile, receiving serious and painful injuries, particularly to his left leg, which sustained the impact either of the car bumper or of the right front fender. Despite the unquestionable fact that all the members of the waiting group were in ■close proximity one to another, Montgomery was the only one who was struck by the automobile. It is established that Montgomery did not see the Ware automobile nor did he make any attempt to make any ■observation in the direction from which it was approaching. There is considerable conflict on the point as to whether the immediate locale of the accident constituted a highway intersection or crossing. There is some testimony on the part of plaintiff as to the existence of a road intersection, but, as best we can interpret the testimony, the “thrown up’-’ road, if any existed, must have been to the west of the highway. On the east side of the highway, at or very near the exact location of the accident, there is a blacktopped surface in front of the Salley Motor Company building. According to the testimony of the plaintiff himself the only passage to the sawmill where he and his companions were employed appears to be a footpath or trail leading across the area through high weeds and grass. It was the positive testimony of the defendant, Ware, who was familiar with the vicinity because of frequent traveling therein, that there was no intersection nor any apparent crossing.. The district judge stated as a fact in his written opinion that there was not “an apparent or conspicuous crossing on the highway where the employees of said mill crossed the highway.” Careful examination of the record fails to establish any manifest error with respect to this finding. Admittedly Ware was driving at a speed of 30 to 35 miles per hour, which was in excess of the 25 mile limit fixed by ordinance of the town of Bernice at street intersections.

The testimony is conclusive on the point that plaintiff and his companions had centered their attention on the approaching log truck and at the time there was quite a bit of discussion among them as, to ■ the identity of the driver. Such was their preoccupation in this respect that they neither observed nor made any attempt at observation of traffic approaching from the opposite direction.

The one other point which is of paramount importance, and as to which the testimony is hopelessly conflicting, concerns the actual occurrence of the accident itself. The conflict is expressed in the pleadings of the parties litigant. , In his petition. plaintiff specifically avers that the driver of the. automobile which struck him “ — steered said car to the right and off onto the East shoulder of said Highway, striking your petitioner, David Montgomery, Jr.—

Defendant’s answer affirmatively avers that plaintiff “ — walked or stepped into the right front fender of the said automobile — .”

The conflict as thus initiated by the irreconcilable factual allegations of the pleadings was developed in the testimony of a number of the witnesses who attempted to explain the actual occurrence of the accident. One certain conclusion can be reached with reference to this question, namely, that there is no alternative explanation of the accident save by the adoption as a fact of one of the explanations above suggested. And it further follows that the acceptance of one serves to eliminate the other.

On this issue of fact the district judge expressed his conclusion as follows:

“The court is convinced that the plaintiff, David Montgomery, Jr. did step out in front of the oncoming Ware automobile. There is no convincing evidence to show that the Ware automobile ever left the paved portion of the highway and ran onto the shoulder of the road just prior to striking the plaintiff, and the court is convinced that said automobile did not run off of or leave the east paved lane of the highway. It follows that the plaintiff, David Montgomery, Jr. must have left his place of safety on the shoulder of the road and stepped out onto the pavement, otherwise he would not have been struck.”

With this conclusion we are completely in accord. The defendant, Ware, testified positively that his car did not leave the paved surface of the highway, and thorough examination of the testimony of all of the witnesses has convinced us that Ware was the only one who was qualified to testify on this point with any certainty. The testimony of witnesses on behalf of plaintiff is unimpressive because it is predicated purely and simply upon an assumption of what the witnesses thought must have happened and not upon what they actually saw. As a matter of fact, we do not think any of these witnesses saw the Ware automobile until the instant it came in contact with Montgomery. One other circumstance serves to substantiate this conclusion. In our opinion the close proximity of Montgomery and his companions would have made it impossible for the Ware car to move off of the pavement and onto the shoulder of the road and strike only one of the group of six or seven. It follows that the only logical conclusion which can be reached indicates the correctness of the definite finding that Montgomery himself stepped forward from his place of safety on the shoulder of the road onto the pavement and into the path of the Ware automobile.

Written statements prepared by an insurance adjuster, signed by plaintiff, David Montgomery, and by Wilbert Watley, one of his companions, which were made on July 12th and July 11th, respectively, after the accident occurred on July 10th, both declare that Montgomery stepped out onto the pavement. We quote from Montgomery’s statement as follows:

“I was looking to the north at the log truck and I did not look to the south when I started to step out onto the highway. Just as I had my left leg up in the air to take a step I was hit by a car that was on the highway. I never did see the car that hit me but it was going north.”

From Watley’s statement we quote:

“There was a big G. I. truck coming headed So. on the pavement. They were watching the truck. Just as the truck passed them David stepped out onto the pavement and I did not see him look to the south and walked into the path of a car which was headed north. I had not seen the car coming until David was hit.”

Despite the fact that both Montgomery and Watley testified on trial that Montgomery had not stepped onto the pavement, we are convinced, as was the district judge, that the circumstances related in their original statements are more accurate and reliable than their sworn testimony. We are resolved therefore that Montgomery did step out onto the pavement and was struck by the Ware automobile, and, further, that plaintiff completely failed to establish his contention that the Ware automobile left the pavement and came over on the shoulder of the highway.

In view of this finding of fact we think the conclusion is inescapable that Montgomery, by failing to make any observation of approaching traffic, was grossly negligent and careless in leaving a place of safety and stepping into the path of an approaching vehicle, and we further conclude that this negligence was the sole and proximate cause of the accident.

This being so, it is unnecessary to consider facts and circumstances relating to the determination of negligence on the part o-f defendant, Ware, and there remains for our attention only the strenuously argued proposition on behalf of plaintiff as to the applicability of the doctrine of last •clear chance or discovered peril.

The doctrines relied upon have been ■discussed in a multitude of cases and have been denied or applied in accordance with the facts involved in each particular case. But never, so far as we know, has the •discovered peril doctrine been applied for for the purpose of holding a driver liable unless the discovery of the peril in which .a negligent party has placed himself is susceptible of being observed in sufficient time to permit the avoidance of the accident. Similarly, the principle of the last •clear chance is not applicable unless the •circumstances are such as indicate the possibility of the avoidance of the accident. The factor of time is an essential element.

In the instant case there are no facts which would justify the application •of either of the doctrines urged. Plaintiff, being in a position of safety, concededly awaiting the passage of traffic on a highway, without warning, and with the utmost negligence, stepped out into the path of an approaching car. When he took the one step necessary to remove himself from a place of safety into a place of danger there was no time for the defendant, Ware, either to observe plaintiff’s danger or take any action or chance of avoiding the accident. Under these facts we are at a loss to perceive any ground, no matter how slight, which would support the application of the doctrines considered.

For the reasons assigned the judgment appealed from is affirmed.


author: GLADNEY, Judge.

text:
    O. S. McDONALD, Plaintiff-Appellee, v. O. C. ALVEY, Defendant-Appellant.
    No. 8432.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.

      Trousdale & Oliver, Monroe, for appellant.
    Oliver & Oliver; A. E. Montgomery, Jr., Monroe, for appellee.
   GLADNEY, Judge.

This is an action in tort instituted by the owner to collect for damages sustained by his Chevrolet truck in a collision with a Chrysler sedan owned and operated by O. C. Alvey. The accident occurred about 11:00 o’clock P. M. on January 31, 1954, on U. S. Highway No. 80, approximately one mile east of the limits of the City of Monroe, Louisiana, where the highway is intersected by Kansas Avenue from the south. Kansas Avenue does not continue north of the highway and thus forms with the highway what is commonly referred to as a “T” intersection. A collision between the two vehicles occurred when the operator of the truck, Grant M. Arnold, who was driving westerly along the highway, attempted to execute a left turn into Kansas Avenue at the time Alvey was engaged in ■ overtaking and passing the truck. For purposes of trial this suit was consolidated with that of Alvey v. General Insurance Corporation, La.App., 84 So-.2d 275, which suit presented a property damage claim by Alvey against the insurer of McDonald’s truck. After a trial on the merits the trial court, without assigning written reasons for judgment, rendered judgment favorable to McDonald and rejected the demands of Alvey against McDonald in the instant suit and against McDonald’s insurer in the companion suit. From the decision Alvey has appealed.

Alvey is charged with fault in five specifications of negligence:

(a) failing to sound his horn or otherwise signal that he intended to pass petitioner’s truck; (b) failing to observe the statutory law of the road anent passing vehicles at highway intersections; (c) crossing the broad yellow strip that marked said intersection at a time when it was dangerous to do so; (d) failing to heed the left hand signal when given by the driver of petitioner’s truck; and (e) traveling at a rate of speed which was excessive under the circumstances.

In his answer Alvey denies that he was guilty of any act of negligence and avers that the collision was solely and proximately caused by Arnold’s negligence, in that:

(a) he operated a motor vehicle on a heavily traveled main highway at night although he was an incompetent driver, which incompetence led to and was responsible for the dangerous operation of the truck; (b) he started up from the extreme right hand side of the highway and made an abrupt left turn without ascertaining whether or not vehicles were approaching from the rear; (c) he made said abrupt left turn without making any signal of his intention to do so; and (d) he made said left turn across the highway directly in front of plaintiff’s on-coming automobile which he could have and should have seen had he looked.

The answer also contains a reconven-tional demand for the damage sustained by the Chrysler automobile. In brief and argument before this court, counsel for appellant contends that the trial court erred: (1) in not holding that McDonald, the truck owner, was liable for the damage done by Arnold, an inexperienced driver who had been permitted to drive the truck-on the -highway at night; (2) in holding as a matter of law that Alvey was guilty of negligence in attempting to pass a parked vehicle at an intersection; (3) in failing to hold that the sole and only cause of the collision was Arnold’s gross negligence in driving the truck across the highway in the face of on-coming traffic; and (4) alternatively, in not holding that Arnold had the last clear -chance of avoiding the collision.

On the date of the accident Mrs. Vallarie Arnold, mother of Grant M. Arnold, her nineteen year old son, obtained the use of the subject truck from her employer, plaintiff in this cause, for the purpose of making a visit to Mrs. Arnold’s sister. Grant M. Arnold was also an employee of McDonald as a driver of tractors and trucks. He had been licensed to drive an automobile for about three years at the time of the accident which has given rise to this litigation. Following the visit to Mrs. Arnold’s sister, Mrs. Arnold and her son, Grant, were returning home'about 11:00 o’clock P. M. and proceeding in a westerly direction along U. S. Highway No. 80. Grant Arnold testified that as he approached the scene of the accident with the intention of turning left into Kansas Avenue, he observed following him Alvey’s car about 100 yards to the rear, and at the time he gave a hand signal to turn to the left and slackened his speed in order to make the left turn into Kansas Avenue. He states that after commencing said turn his truck was struck just about the left door by the right front fender of the Chrysler automobile. The truck stopped in the ditch on the south side of the highway and the Chrysler came to rest in the south traffic lane of U. S. Highway No. 80.

Alvey was accompanied by Mrs. Aina Petty. He testified that he was proceeding westerly along U. S.' Highway No. 80 and first observed the truck ahead of him parked on the north side of the highway with its lights on; that he approached the truck for the purpose of passing it, blinked his lights but did not sound his horn, and proceeded to pass the parked vehicle; that in the act of passing, because the parked truck occupied a portion of the north traffic lane, it was necessary for the left wheels of the Chrysler to cross the yellow line which marks the center of U. S. Highway No. 80 so that said wheels were about two feet within the south traffic lane; and that while he was so passing the truck, and without any previous signal or warning from the driver thereof, it suddenly started and abruptly turned left in front of him. He further testified that he vainly turned to the left in an effort to avoid the collision.

Shortly after the accident J. W. Rabb, who had been following the Chrysler Automobile, arrived at the scene of the accident and I. H. Otwell, an officer of the Louisiana State Police, also came up. During the time Officer Otwell was making his investigation there were present Grant M. Arnold and his mother, Alvey, J. W. Rabb and Mrs. Aina Petty. All of these parties testified upon the trial as did Mrs. J. W. Rabb, Officer Otwell, Alvey, J. W. Rabb and Mrs. Petty testified that Mrs. Arnold and her son both related the truck had been brought to a stop opposite Kansas Avenue while they attempted to determine if Kansas Avenue was the street which they wished to turn into from the highway. Mrs. Petty and Alvey testified Grant Arnold gave no signal of his intention to make a left turn. Officer Otwell stated that Arnold told him he did not remember giving a hand signal. Alvey, Mrs. Petty and Rabb testified that Mrs. Arnold likewise admitted after the collision that her son did not give a signal of his intention to turn. Mrs. Arnold and Grant Arnold both deny making any such admissions or statements as testified to by Officer Otwell, Alvey, Mrs. Petty and J. W. Rabb.

The evidence as disclosed by the record does not sustain a holding by this court that Grant M. Arnold was either on a mission for plaintiff at the time of the accident, or that he was an inexperienced and incompetent driver. Grant Arnold and his mother were gratuitous bailees of McDonald and in consequence thereof the negligence of the driver of the truck cannot be imputed to the owner thereof. Burke v. Toye Bros. Yellow Cab Co., La.App. 1946, 28 So.2d 369; Smith v. Litton, La.App.1950, 47 So.2d 411; Emmco Insurance Company v. Savoy, La.App.1954, 71 So.2d 573; Metzler v. Johnson, La.App.1954, 71 So.2d 607; Hardy v. M. W. Solomon & Son, Inc., La.App.1955, 78 So.2d 73. It follows from this conclusion that defendant’s reconventional demand herein asserted by the defendant must be denied. Upon this point there was no error in the ruling of the trial court.

Appellant’s second assignment of error complains that the trial court held Alvey guilty of negligence in attempting to pass a parked vehicle at an intersection. The statutory provision which prohibits the following motorist from overtaking and passing at an intersection a forward vehicle moving in the same direction, is too well known to require reference. N-or does it require any authority, statutory or otherwise, to establish that a motorist is not negligent from the mere act of passing a vehicle parked at an intersection. The question which herein confronts the court is one of fact, and that is whether or not the McDonald truck was actually standing still and parked opposite the intersection of Kansas Avenue with U. S. Highway No. 80 while Alvey was in the act of approaching the intersection and engaged in the act of passing the truck. The preponderance of the evidence, we think, indicates clearly that the truck was so parked and resultant of this finding Alvey was neither negligent in attempting to pass the truck at the intersection, nor was he guilty of negligence in crossing the yellow line.

Thirdly, appellant charges error in the decision from which appealed in not holding that the sole and proximate cause of the collision was Grant Arnold’s gross negligence in driving the truck across the highway in the face of on-coming traffic. In view of our holding that the truck was parked on the north side of U. S. Highway No. 80 before it attempted to enter Kansas Avenue, and forasmuch as a preponderance of the evidence shows that Grant Arnold did not give any signal of his intention to make a left turn into Kansas Avenue, there remains no doubt in our minds that the driver of the truck was negligent in attempting to make a left turn under such circumstances as it was unsafe to do so. From our examination of the record we do not find any act of negligence attributable to Alvey unless it he his failure to sound his horn. Alvey testified that he blinked his lights before passing but did not blow his horn. Grant Arnold and his mother both deny that they noticed that the lights of the Chrysler car were blinked. Both say that no horn was sounded. We are not prepared to say that because of his failure to blow the horn Alvey was guilty of negligence constituting a proximate cause of the collision. In the absence of some signal or warning by the driver of a parked vehicle it is not reasonable to expect that the latter will suddenly from a stopped position make a left turn in front of an approaching vehicle. The record does not indicate culpable negligence on the part of Alvey.

In our opinion the sole and proximate cause of the accident was the sudden and quick left turn executed by Grant Arnold without proper signal and when it was unsafe to make such a maneuver. In the case of McBroom v. Chavis, La.App. 1952, 62 So.2d 177, 180, the court said:

“ * * * It is well settled in Louisiana that the operator of a motor vehicle who desires to make a left turn carries the responsibility of being certain that the turn can be made without danger to normal overtaking or oncoming traffic, and he must yield the right-of-way to such vehicles. See: Bonstaff v. Hawkins, La.App., 1947, 30 So.2d 781-782; Malone v. Fletcher, La.App., 1950, 44 So.2d 352; Myers v. Maricelli, La.App., 1951, 50 So.2d 312.”

See also Autenreath v. Southern Mercantile Co., La.App. 1955, 81 So.2d 168 and Benoit v. Commercial Casualty Insurance Company, La.App. 1955, 79 So.2d 647.

We find it unnecessary to consider defendant’s alternative plea predicated on the last clear chance doctrine. It is reasonably clear, we think, the doctrine is without application in the instant case.

For the reasons above given, it follows that the judgment from which appealed should be annulled, reversed and set aside insofar as it recognizes the claim of plaintiff for damages and said judgment is affirmed insofar as it denies the recon-ventiona.1 demand of Alvey. All costs, including cost of this appeal, shall be taxed against plaintiff.


text:
    O. C. ALVEY, Plaintiff-Appellant, v. GENERAL INSURANCE CORPORATION, Defendant-Appellee.
    No. 8433.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.
    Trousdale & Oliver, Monroe, for appellant.
    Theus, Grisham, Davis & Leigh, Monroe, for appellee.
   GLADNEY, Judge.

This suit is a companion suit to that of McDonald v. Alvey, La.App., 84 So.2d 271. Both suits arise out of the same automobile collision. The instant case represents the claim of O. C. Alvey against the insurer of a 1951 Chevrolet truck owned by O. S. McDonald. All the facts pertinent to a decision herein are fully stated in Me-Donald v. Alvey, in which case we found the responsibility for the collision rested entirely with the driver of .the McDonald truck, and it follows, therefore, that plaintiff O. C. Alvey is entitled to have his claim sustained.

Accordingly, the judgment from which appealed is reversed and it is now ordered, adjudged and decreed that there be judgment in favor of O. C. Alvey, and against defendant, General Insurance Corporation, in the sum of $240.12, with legal interest thereon from date of judicial demand. It is further ordered that defendant pay all costs of this suit, including cost of appeal.