author: McBride, judge.

text:
    Civera V. EHTOR v. Robert PARISH and Great American Indemnity Company (Consolidated with No. 20,531).
    No. 20532.
    Court of Appeal of Louisiana. Orleans.
    Feb. 6, 1956.
    Rehearing Denied April 23, 1956.
    See, also, La.App., 86 So.2d 548.

      Christovich & Kearney, New Orleans, for defendants and appellants.
    Adams & Reese, Pat F. Bass, New Orleans, for plaintiff and appellee.
   McBride, judge.

Two vehicles, one a 1953 model Buiclc sedan and the'other a 1950 Chevrolet coach, collided at the intersection of Perdido and Saratoga Streets on June 11, 1950, about 7:45 a. m. Two suits for property damage arose from the accident and these were consolidated for the purposes of trial and a separate judgment was rendered in each. This is one of the suits. Civera V. Ehtor, owner of the Chevrolet, seeks to recover from Robert Parish, the owner and driver of the Buick, and his liability insurance carrier, in solido, the sum of $143.84, representing the damage which the Chevrolet sustained. Seven specific charges of negligence are ascribed to Parish, chief of which is that he was speeding and failed to yield the right of way to the Chevrolet “which had pre-empted the intersection and had practically completely crossed said intersection at the time the collision occurred.” The defendants deny that Parish was negligent and then set up that the accident was caused by the fault of the driver of .the Chevrolet in several respects. Among other things'she is alleged to have failed to maintain proper control of her vehicle, failed to keep a proper lookout, failed to heed a stop sign facing her on Perdido Street at the intersection, failed to notice the approach of the Parish car, and attempted to beat the Parish car across the intersection. Contributory negligence on the part of plaintiff’s driver is pleaded in the alternative.

The trial resulted in a judgment in favor of plaintiff as prayed for. Defendants appealed. 'fc'

Plaintiff’s car was being driven .by his wife toward the lake on Perdido Street, which is a street designated to accommodate traffic moving, in that direction; Parish was traveling in an uptowo direction on Saratoga Street, which is also a one-way street. The parties to the suit concede that the intersection formed by the two streets is a blind one. It is also a conceded fact that before entering Saratoga Street Mrs. Ehtor was confronted.with an official stop sign.

The trial court in his reasons for judgment found that Mrs. Ehtor stopped before making her entry into Saratoga Street and that she had pre-empted the intersection when her car was struck on its right rear fender by the front of the-Parish vehicle. The judge also believed that Parish was “probably” driving at a speed of more than 20 miles per hour. We do not agree with our brother below that there had been a lawful pre-emption of the intersection by Mrs. Ehtor’s vehicle and will later state our reasons for so saying. We also differ with the observation that Parish was probably driving at more than 20 miles per hour. ' He stated on both his direct and cross-examinations: “I «could not have been going over 20 miles per hour.” No other witnesses testified as to his speed; neither Mrs. Ehtor nor her passenger, Mrs. Favalora, ever saw Parish’s car until the very moment of the impact. Therefore, there being no countervailing evidence, we must accept as true the statement of Parish that his speed was not in excess of that permitted by law.

All that Mrs. Favalora said she knew was that Mrs. Ehtor stopped at the sign. Mrs. Ehtor’s story is that she made the stop, shifted into low gear, and then started forward and had almost made the crossing of the 22-foot intersection when the crash came. She admits that a building to. her right obliterated any view into Saratoga Street in the direction whence Parish came, except for a distance of a car-length, and that within that distance she saw nothing coming. The lady claimed to - be well-acquainted with this particular intersection, and it is interesting to note what is her idea of safe driving under the existing circumstances:

“As far as seeing ahead of you, there is a building at the corner that obstructs the view of Saratoga until you get started over. Well, after you give your gas and start over, if you see anyone, you would certainly have to rush to get over, you understand, when you see something coming. But honest to goodness, it came so quick you didn’t know where it came from, and it hit me in the rear fender in the back on the right side.”

This bit of testimony also deserves honorable mention:

“Q. Before starting from your stopped position, Mrs. Ehtor, and as you say, getting across the intersection, couldn’t you have brought your car so that perhaps the front part of it was in Saratoga Street and be able to see all the way down to Charity Hospital ?
* * "J * * *
“A. You can’t unless you put the front part of your car in Saratoga. If they took the front part off of youy car, you are in the wrong.”

Mrs. Ehtor claims she looked for a second time after starting forward but again she could see no vehicles approaching from her right. She has no idea how far down Saratoga Street she could see on this second look.

Parish says he first saw the Chevrolet when it emerged from Perdido Street and when his car was from S to 10 feet away from it. According to him, the Ehtor vehicle made such a sudden and unexpected appearance that he believes Mrs. Ehtor failed to make a stop. He claims he applied his brakes in an effort to avert the crash.

The intersection undoubtedly teems with danger as is to be seen from Mrs. Ehtor’s testimony. The narrow width of Saratoga Street (22 feet) enhances the hazard. After reading her testimony, it is a certainty that Mrs. Ehtor knowingly tempted fate in the endeavor to proceed through the intersection. Even if we accept her word for it that she looked a second time she is nonetheless guilty of negligence.

A motorist is under the duty to look at all times and he must see what he can see and in legal contemplation does see and his failure to see what could have been seen had he exercised due diligence does not absolve him from liability for resulting damage to others. There cannot be the remotest doubt that when Mrs. Ehtor attempted her ill-timed crossing, the oncoming Parish automobile was but a short distance away and there was nothing that would have prevented her from seeing it on the second look.

In Hardy v. M. W. Salomon & Son, Inc., La.App., 78 So.2d 73, 76, we discussed what were the duties of the driver of a motor vehicle desiring to cross a street intersection after bringing his vehicle to a complete stop in obedience to a stop sign but finding that his view into the intersecting street is obliterated.

We said:

“We do not hold that the duty to look resting upon a motorist at a street intersection is as strict as the duty the above cited cases seem to impose upon one at a railroad crossing, but we do say that what Foley did at the Caron-delet Street intersection was not only imprudent but grossly negligent. We believe when he found upon his first stop that his vision was interfered with by conditions at the corner, he could have taken some less daring step to ascertain whether it was safe to proceed into Carondelet Street.”

It is also well-settled that a motorist who merely stops before attempting to enter into a right-of-way thoroughfare has only performed one-half the duty resting on him. He must not only stop but look out for vehicles on the intersecting street. To stop and then proceed forward without ascertaining if it is safe to do so is negligence of a gross character and renders the person guilty of such imprudence responsible in damages resulting therefrom. Chase v. Burley, La.App., 76 So.2d 587; Anderson v. Morgan City Canning Co., Inc., La.App., 73 So.2d 196; Porter, for and on Behalf of Porter v. De Boisblanc, La.App., 64 So.2d 864; Pancoast v. Cooperative Cab Co., La.App., 37 So.2d 452; Glen Falls Ins. Co. v. Copeland, La. App., 28 So.2d 145; Arline v. Alexander, La.App., 2 So.2d 710; Goff v. Southern Coffee Mills, La.App., 144 So. 513.

There has not been pointed out to us in the record any evidence which goes to show that Parish operated his Buick automobile in a negligent manner. He was driving along and going about his business at a lawful rate of speed and the accident was caused solely by the fault of Mrs. Ehtor in entering the intersection at a blind corner without knowing whether there was oncoming traffic which could interfere with her passage. In the light of the circumstances it is certain that Parish was in close proximity to Perdido Street. The stop sign with which Mrs. Ehtor was faced had the effect of constituting Saratoga Street, insofar as this particular intersection is concerned, a favored street, and Parish had the legal right to assume that motorists on Perdido Street would respect his right of way and comply with the law by stopping and looking before attempting to negotiate a crossing. The jurisprudence of this state is clear that a driver on a right-of-way thoroughfare has the right to entertain a belief that motorists on intersecting streets and roads will comply with the law and will not enter on the superior thoroughfare in his path, especially when he knows that a stop sign inhibits entrance from the inferior street. Bahry v. Folse, La.App., 83 So.2d 912; Anderson v. Morgan City Canning Co., Inc., supra; Federal Ins. Co. v. Le-pine, La.App., 55 So.2d 83; Salvation Army v. Toye Bros. Yellow Cab Co., La.App., 52 So.2d 873; Young v. New Orleans Public Service, Inc., La.App., 35 So.2d 881; Droddy v. Southern Bus Lines, Inc., La.App., 26 So.2d 761; Termini v. Aetna Life Ins. Co., La.App., 19 So.2d 286; Upton v. Bell Cabs, Inc., La.App., 154 So. 359.

The trial judge was of the opinion that Mrs. Ehtor acquired a right of way to complete the crossing of the intersection by reason of having entered it first. In the reasons for judgment no authorities are cited which hold that under circumstances similar to those existing in the instant case a motorist situated as was Mrs. Ehtor gained a right of way by making such entry into the intersection. 'Plaintiff relies heavily on Booth v. Columbia Casualty Co., 227 La. 932, 80 So.2d 869, 870, and what was said by the Supreme Court in that case probably inclined the trial judge to the view that the pre-emptive right of way belonged to Mrs. Ehtor. The Supreme Court found that the plaintiff in the cited case first entered the intersection traveling at the rate of about 7 miles an hour and was fully within the intersection when his car was struck by a garbage truck. The Court said:

“ * * * The plaintiff having preempted the intersection had the right to proceed and under the well-settled jurisprudence the automobile which ■first enters an intersection has the right of way over an approaching automobile and the driver who does not respect this legal right of the automobile which first entered the intersection to proceed through in safety, is negligent, even though the car thereafter entering the intersection is being driven on a right of way street. * * *

Decisions of the Supreme Court are to be accorded only a reasonable construction, and with this in mind we feel sure that the Supreme Court never intended that its holding in Booth v. Columbia Casualty Co., supra, would be applicable in a case such as the' one before us where the motorist claiming the pre-emptive rights entered a narrow intersecting street without looking and fully cognizant of the fact that to attempt a crossing would be equivalent to gambling with life" and limb. Lest it be forgotten, Mrs. Ehtor testified:

“ * * * Well, after you give your gas and start over, if you see anyone, you would certainly have to rush to get over, you understand, when you see something coming. * * * ”

We think that the jurisprudence applicable to the case is to be found in the many decisions, of the Courts of Appeal to the effect that the motorist, before he can successfully rely on pre-emption, must show that he made entry into the intersection at proper speed and sufficiently in advance of the car on the intersecting roadway to permit him to proceed on his way without requiring an emergency stop by the other vehicle. Th entry into the intersection just a fraction of a second ahead of the other vehicle does not create a pre-emption. Vernaci v. Columbia Cas. Co., La.App., 71 So.2d 417; Lafont v. Nola Cabs, Inc., La.App. 65 So.2d 918; Hooper v. Toye Bros. Yellow Cab Co., La.App., 50 So.2d 829; Aucoin v. Houston Fire & Casualty Co., La.App., 44 So.2d 127; Facio v. Bellone, La.App., 39 So.2d 448; Butler v. O’Neal, La.App., 26 So.2d 753.

We are not reversing the judgment on a question of fact for we do not differ with the trial court in his appreciation as to what the facts are, except that we do not agree that Parish was exceeding the speed limit. The reversal comes strictly as a resrtlt of the difference of opinion as to whether there was a lawful .pre-emption of the intersection by Mrs. Ehtor. We do not believe that there was.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that the suit of plaintiff1 be dismissed at plaintiff’s' cost in both courts.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Robert F. PARISH v. Civera EHTOR and Pacific Indemnity Company (Consolidated with No. 20,532).
    No. 20531.
    Court of Appeal of Louisiana. Orleans.
    Feb. 6, 1956.
    Rehearing Denied April 23, 1956.
    Christovich & Kearney, New Orleans, for plaintiff and appellant.
    Adams & Reese, Pat F. Bass, New Orleans, for defendants and appellees.
   McBride, judge.

This is the second of the consolidated suits which arose out of the automobile accident discussed in an opinion and decree handed down this day by this court in Ehtor v. Parish & Great American Indemnity Co., La.App., 86 So.2d 543. Parish is seeking to recover the amount of the damage to his automobile, $485.73, from Ehtor and his liability insurer in solido.

There is no dispute as to the amount of his loss and for the reasons assigned in the above-mentioned opinion and decree,

It is now ordered, adjudged and decreed that the judgment appealed from which dismisses plaintiffs suit be annulled, avoided and reversed; it is further ordered that there be judgment in favor of plaintiff, Robert F. Parish, and against defendants, Civera Ehtor and Pacific Indemnity Company, jointly and in solido, for the full sum of $485.73, with legal interest from judicial demand until paid and for the costs in both courts.

Reversed.


author: JANVIER, Judge.

text:
    NULITE, Inc. v. George J. MARIANO.
    No. 20544.
    Court of Appeal of Louisiana. Orleans.
    April 2, 1956.
    Rehearing Denied April 23, 1956.
    Thomas Barr, III, ‘New Orleans, for defendant-appellant.
    Frank V. Zacearía, New Orleans, for plaintiff-appellee.
   JANVIER, Judge.

Plaintiff, Nulite, Inc., is engaged in the sale of electrical equipment and fixtures. Defendant, George J. Mariano, is an electrical contractor. Mariano entered into a contract with Joseph Cerise for! the installation of electric wiring in a building which Cerise was having erected. The plans contemplated the installation of a large attic fan. The record does not show definitely whether that contract contemplated that the fan would be supplied by Mariano-, the contractor, or whether it would be paid for by the owner, Cerise.

Mariano had been making purchases from .plaintiff, having an open account with that corporation. He called at the establishment of plaintiff, selected an attic fan and ordered it delivered at the building which was being erected for Cerise and in which Mariano was doing the electrical work. The fan has not been paid for and plaintiff sued Mariano, the' contractor, for its purchase price.

Mariano denied liability, contending that when he purchased the fan he advised plaintiff that it was being purchased for Cerise and that he, Mariano, was merely acting as agent for Cerise.

Plaintiff corporation denies that Mariano said that he was acting as agent off Cerise and maintains that when Mariano purchased the fan he made río statement which would indicate that he was not purchasing it as contractor to be installed under a contract which he was executing.

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

Though counsel has been rather successful-in clouding the issue by the introduction of much totally irrelevant evidence, it is made' quite clear that Mariano at no time made any statement which would indicate that in purchasing the fan he was acting for Cerise. Cerise denies it categorically.

Electrical contractors who purchase equipment for installation obtain wholesale prices which are substantially less thárí the retail prices which are paid where the sales are made directly to the .owners of property in which the. work is being done, It is shown that this fan was sold at the wholesale price which would be the price made to the contractor; The record shows also that defendant has been billed for the fan on several occasions and at no time did, he protest, but that, on the contrary, one time he agreed to make payments at the rate of $10 per month which,he did not do. The judgment against him is obviously correct.

Accordirigly the judgment appealed from is' affirmed at the cost of appellant.

Affirmed.


text:
    Rayford BURRIS, Father, and Eva Burris, Mother, v. The CITY OF NEW ORLEANS and The Travelers Insurance Company.
    No. 20599.
    Court of Appeal of Louisiana. Orleans.
    April 2, 1956.
    Rehearing Denied April 23, 1956.
    Writ of Certiorari Denied June 11, 1956.

      A. P. Tureaud and A. M. Trudeau, Jr., New Orleans, for plaintiffs-appellants.
    Henry B. Curtis, City Atty. and Alvin J. Liska, Asst. City and Trial Atty., New Orleans, for City of New Orleans, defendant-appellee.
    F. C. Johnson, Jr., Porteous & Johnson, New Orleans, for Delta By-Products, Inc., defendant and appellee.
   JANVIER, Judge.

Plaintiffs, Rayford Burris and Eva Burris are the parents of Rayford Burris, Jr., who, according to the allegations of the original and supplemental petitions, was drowned in a pool of water which was allowed to exist in an area maintained by the City of New Orleans as a garbage dump.

Plaintiffs allege that their four year old son was attracted to the spot, which was easily accessible from his home, by the fact that in the pool there was “an abundant collection of sticks, timbers and small logs, and an uncountable number of seagulls incessantly lining its banks.” They charge that the City of New Orleans was negligent “in permitting an unnecessary and unused pond of water to exist in such manner and locality so as to readily attract the play-pursuing eyes of a child of little Rayford’s age.”

In their original petition- they pray for judgment against the City of New Orleans and against the Travelers Insurance Company in the sum of $25,000. Jn their supplemental petitions they allege that the Letellier-Phillips Paper Company is the vendee of the salvage privilege which was purchased from the City, and that, under that salvage contract, that company was sold the right “to salvage the aforementioned Agriculture Street Dump,” and they further allege that that company assigned its said salvage rights to Delta By-Products Incorporated, and they pray for solidary judgment in the sum of $25,000 .against the City of New Orleans, Letellier-Phillips Paper Company and Delta By-Products Incorporated.

All. of the defendants filed exceptions of no cause of action. These exceptions were maintained and there were judgments dismissing the suits as against all defendants. Plaintiffs appealed from the' judgments which dismissed the suits as against the City of New Orleans and as against the Delta By-Products Incorporated. There was no appeal from the judgment dismissing the suit as against Letellier-Phillips Paper Company.

When the exception filed by 'Delta ByProducts Incorporated was heard in the District Court, by joint agreement," there was offered in evidence a copy of the contract by which the City of New Orleans sold the salvage rights to Letellier-Phillips Paper Company.

There is not in any of the petitions any allegation, nor is there in the said salvage contract one word which would indicate that Letellier-Phillips Paper Company or its assignee, Delta By-Products In- ■ corporated, had or could have had any responsibility whatsoever for the condition of the said dump. According to the petition all that was granted in the said contract was the right to salvage “materials.” There is no charge that Delta By-Products Incorporated did or could have done anything which had the slightest causal connection with the unfortunate drowning of the son of plaintiffs. The exceptions filed by that company were properly maintained.

The exceptions filed by the City of New Orleans are based on the well established principle that a municipality cannot be held liable ex delicto for damages resulting from the exercise by it of a governmental function.' The principal upon which the City relies is stated in Manguno v. City of New Orleans, La.App., 155 So. 41. There, stating that the question presented was “ * * * whether or not the operation of the garbage incinerator plants and their auxiliaries by the city is a governmental or a proprietary function, * * * ”, we held that the collection and disposal of garbage by the City of New Orleans is a governmental function.

The latest expression of our Supreme Court on non-liability of a municipality for damages sustained as a result of the exercise by it of a governmental function may be found in Barber Laboratories, Inc., v. City of New Orleans, 227 La. 104, 78 So.2d 525.

Counsel for plaintiffs do not seriously contend that ordinarily, where there is no charge made for the operation of a garbage department, that operation is a gov-e.rnmental and not a proprietary function of the City government and that consequently there is usually no liability in the City for the results of negligence in the operation of such a department. But counsel say that that principle, which may ordinarily be applied where the City is engaged in the carrying out of a governmental function, has no application here for either or both of two reasons: First, they say that under certain statutes the City of New Orleans no longer has the right to operate a garbage dump, and that therefore it cannot be permitted to contend that in the operation of such a dump, which plaintiffs say is not permitted by law, the City is engaged in carrying out a governmental function; and second, they say that even if there is governmental immunity where a municipality is engaged in the exercise of a governmental function, that immunity is lost where the function is carried out in such a way as to create a nuisance and the nuisance itself causes damage. And counsel say that here a nuisance was created and hence the governmental immunity no longer existed.

The first of these contentions, that our state laws no longer permit the City of New Orleans to operate a garbage dump, is founded on the idea that, because of the provisions of LSA-R.S. 33:4168, such dumps are now prohibited within corporate limits. The first paragraph of that section reads as follows:

“A municipality of over three hundred thousand population which has established garbage plants or incinerators under the provisions of this Sub-part shall not maintain or allow within its corporate limits any garbage or refuse disposal dumps or maintain or allow any burning dumps or dump heaps.”

However, that section does not stand alone. It is to be found in Sec. 4161 et seq., in Sub-Part A of Part I of the cited LSA-Revised Statute which covers the “Ownership, Operation, and Financing” of Public Utilities. It is our opinion, and it was the opinion of the District Judge, that the prohibition against garbage dumps has application only where a municipality either has issued bonds for the construction of a garbage plant or incinerator, or makes a charge which is devoted to the establishment and operation of such a garbage department, that a municipality is then not permitted to operate a garbage dump which would be in competition with the incinerator or with the operation of the department for which a charge is made or for the establishment of which bonds were issued.

The other sections of this title of the Revised Statutes seem to us to contemplate this result. This is pointed out by the District Judge in his reasons:

“The Revised Statutes only prohibit the operation of open garbage dumps or fills when they are in competition with similar facilities for which the City makes a charge when such facilities have been financed by bonds to be serviced and funded from taxes imposed against owners of real estate.”

Counsel for plaintiffs criticize this conclusion of the District Judge, saying that the question of whether or not a function exercised by a municipality is governmental or proprietary should not be made to depend upon whether a charge is made therefor. This is quite true, but the District Judge did not hold, nor do we hold, that the collection of a charge or a tax for services should be the determining factor as to whether a function is or is not governmental. Neither we nor the District Judge pointed to the collection of a charge as the reason for holding that here the operation of the garbage dump should be held to be a governmental function. We point to the absence of a charge and to the fact that bonds were not issued merely for the purpose of showing that section 4168 of Title 33 of the LSA-Revised Statutes has no application here, since that section has application only where a charge is made or where bonds are issued. We see nothing which prohibits the City from operating such a dump, and consequently hold that in operating the dump it violated no statute and that it operated it as a governmental function.

When we come to consider the question of whether-there may-be liability in a municipality'which, in the exercise of a governmental function, creates a nuisance which nuisance causes damage, we find presented a most interesting question.

With the assistance of counsel there has been found in the jurisprudence of this State only one case in which this particular question is even remotely referred to. In Manguno v. City of New Orleans, supra, this Court, in reaching the conclusion that the operation of a garbage department is a governmental function, cited McQuillan on Municipal Corporations, Vol. 6, section 2840, from which we have already quoted. There, as we noted, the author, McQuillan, stated that the rule of governmental immunity "has often been applied to the removal of garbage”, but he followed this statement with a proviso that this immunity exists only if “in the discharge of such duty no nuisance is created.”

Counsel for plaintiffs point to the fact that we quoted that language, and they say that our inclusion of that proviso indicated our approval of that exception to the general rule of governmental immunity.

It should be noted at this time that nowhere in the pleadings here does there appear an express charge that, in operating the garbage dump, the city created a nuisance, and counsel for the City direct our attention to this absence, and they contend that, in the absence of such an express charge, plaintiffs cannot be heard to rely on the contention that a nuisance was created and that the loss resulted from this nuisance. We cannot fully agree with counsel for the City.

If the other allegations made by plaintiffs set forth facts from which it may be determined that, though there is no express use of the word “nuisance”, as a matter of fact a nuisance has been created and the facts alleged' may be construed as charging that such a nuisance has been created, then the mere fact that the word “nuisance” has not been used, would not justify the conclusion that there is no charge that a nuisance was created.

The question of whether a pool of water may be considered an attractive nuisance has been passed upon by courts in almost every jurisdiction in this country and probably elsewhere. Some have held that the attractive nuisance- doctrine should not be applied to ponds or other accumulations of water. A substantial majority, we think, have held that under certain conditions the doctrine should be applied. Certainly that question was put at rest in this State when, in Saxton v. Plum Orchards, Inc., 215 La. 378, 40 So.2d 791, 795, our Supreme Court applied it to a pool or accumulation of drainage water. The Court, stating that the question was “ ‘whether under the foregoing circumstances the turntable or attractive appliance doctrine is applicable’ ”, quoted with approval from its earlier decision in Fincher v. Chicago, R. I. & P. Ry. Co., 143 La. 164, 78 So. 433, in which it said:

“ ‡ a pool of water is attractive to children; but, for the application of said doctrine, it does not suffice that the thing from which the injury has resulted was in itself attractive or, in other words, was such that the instincts of children would prompt them to meddle, or play with or in it, but it must be so situated as to lure or attract children from the safe place where they have a right and are likely to be, and induce them to enter the premises where the attraction is in order to meddle or play with or in it, and the danger of its so alluring children must be so obvious that a due regard for the safety of the children would suggest to a man of ordinary prudence and necessity of taking precautions for their protection. * *

There are, as pointed out in Saxton v. Plum Orchards, Inc., many factors-which must be considered before a conclusion may be reached in any particular case; such as the age of the child and its ability to understand and avoid danger; whether there was reason to anticipate the presence of children; whether there was a strong likelihood of the accident; whether the danger was one other than those ordinarily encountered; and whether the precautions taken were those which would be taken by a reasonably prudent person under similar circumstances.

Our conclusion is that there is no doubt that in this State it is settled that a pond, under certain conditions, may be considered as an attractive nuisance.

We thus pass to the question of whether the doctrine under discussion is applicable to a municipality which is engaged in a governmental as distinguished from a proprietary function.

Although, as already ■ stated, we have found no case in our jurisprudence in which it has been expressly held that the usual governmental immunity is lost where the damage complained of results from a nuisance, there are some cases in other jurisdictions in which it has been so held. Cases are cited in Vol. 63 C.J.S., Municipal Corporations, § 770, p. 66, from which we quote the following:

“Where a municipal corporation creates, maintains, or permits a nuisance, it is liable for damages to any person suffering special injury therefrom, irrespective of negligence and notwithstanding the municipality is exercising governmental powers or functions; * *

On the other hand, in American Jurisprudence, Municipal Corporations, Vol. 38, p. 283, section S88, appears the following statement which is contradictory of that just above quoted from C.J.S.:

“The doctrine of attractive nuisance applies to municipal corporations in so far as it is applicable in those cases in which municipal corporations are held to be liable for negligence, but, of course, can have no application in cases in which the negligence occurred or the attractive condition was created in the exercise of a governmental function.”

As indicated by these divergent views, Courts of this country have divided themselves into two groups, one of which follows the thought that if a governmental function is involved, there is no liability for damage, even though it may result from the existence and maintenance of an attractive nuisance. Those in the other group feel that under certain circumstances a municipality may be held, even though it is engaged in the performance of a governmental function.

We shall not cite the numerous decisions to which we refer, but direct attention to 36 A.L.R. 34, 153; 45 A.L.R. 982, 989; 60 A.L.R. 1444, 1451; Hoffman v. City of Bristol, 113 Conn. 386, 155 A. 499, 75 A.L.R. 1191, 1196; 102 A.L.R. 656, 658; also the two citations already given, one in 38 Am. Jur., Municipal Corporations, and the other in 63 C.J.S., Municipal Corporations.

All of the authorities agree that, as stated in Vol. 63, C.J.S., Municipal Corporations, § 770, page 69:

“It is, of course, essential to the liability of a municipality for injuries resulting from an alleged nuisance that a nuisance shall have existed, * '* and that the injury incurred was the proximate result of the maintenance of the nuisance; * * *.”

And this requirement is interesting when we note that counsel for plaintiffs, in contending that, in the operation of the dump, the City created a nuisance, point to a report obtained by the City itself from a firm of consulting engineers, which report is on the subject of “Garbage Disposal Facilities and Practices in New Orleans.” In this report it is said that such a garbage dump “has been the source of innumerable complaints, because of dirt, stench, smoke, etc.; and has, due to the growth of the City, become a public nuisance.”

It thus appears that the nuisance which is expressly pointed to by plaintiffs results from stench, smoke, etc., and is not based on the fact that a pond or pool of water was allowed to accumulate. Nevertheless, the petitions of plaintiffs in which they charge that the pool was allowed to accumulate and to remain, contain allegations which, in our judgment, make the charges which are usually found where damage is alleged to result from the existence of an attractive nuisance. As already shown, it is charged that the pond was allowed to accumulate; that seagulls incessantly lined its banks, and that such conditions were calculated “to readily attract the play-pursuing eyes of -a' child of little Rayford’s age.”

Though the word “nuisance” does not appear in any of these charges, it is obvious that it was intended to charge that these conditions constituted an attractive nuisance and that the drowning of the little boy resulted from this nuisance.

We conclude that "the petition does charge that the City permitted the continued existence of an attractive nuisance and that’ the loss of petitioners’ son resulted from this nuisance. Just whether any particular conditions constitute an attractive nuisance in any particular case must be determined after an examination of all of the facts in each case. There must be taken into consideration the' age of the child, the accessibility of the nuisance, and whether the damage resulted from active negligence rather than from the existence of a nuisance. These and many other things must be considered.

When we used the term “active negligence” we mean to distinguish between a mere act of omission or commission of an individual employee and the continued ex. istence of a danger which is not chargeable to the negligence of any particular employee or group of employees but results from the failure to eliminate or to remove a danger which, through the passive negligence of many or all, has been permitted to continue.

The line of distinction is very faint and in many instances it may be very difficult to determine just where to draw the line. - For instance, we think that should the operator of a garbage truck through, negligence injure some one, the City, contending that the injury resulted from negligence, might, because of its governmental immunity, avoid liability, whereas, on the other hand, should an attractive vehicle for any substantial length of time be left unguarded where it might easily be tampered with by young children and should injury result from such acts of immature children, there might be liability as a result of the creation of an attractive nuisance. Westerfield v. Levis Bros., 43 La.Ann. 63, 9 So. 52.

After a study of the numerous authorities and a consideration of the facts which seem to be required if the doctrine is to be applied against a municipality, we conclude that possibly there may be circumstances under which the doctrine, should be applied even where a municipality is engaged in the performance of a governmental function, and we therefore deem it advisable to overrule the exception of no cause of action and to remand the matter to the District Court to the end that there may be presented, evidence showing all of the facts and circumstances surrounding the unfortunate occurrence. From all those facts it may then be determined whether there may be liability for the unfortunate loss of the plaintiffs’ son.

The exception of the City of New Orleans is overruled and the judgment, insofar as it dismisses the suit against the City of New Orleans, is annulled, avoided and reversed and the matter is now remanded to the Civil District Court for the Parish of Orleans for further .proceedings according to law and not inconsistent with the views herein expressed. The judgment, insofar as it dismisses the suit as against Delta By-Products Incorporated is affirmed at the cost of plaintiffs.

Reversed in part, affirmed in part.


author: McBRIDE, Judge. JANVIER, Judge

text:
    Roosevelt WILSON v. NEW AMSTERDAM CASUALTY COMPANY.
    No. 20644.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.
    Rehearing Denied April 23, 1956.
    Henriques & Mayo, New Orleans, for defendant-appellant.
    Frank S. Bruno, New Orleans, for plaintiff-appellee.
   McBRIDE, Judge.

This workmen’s compensation suit, which is directed against the workmen’s compensation liability insurer of the employer, is grounded on plaintiff’s claim that on March 3, 1954, while working as a laborer for Gervais F. Favrot Co., Inc., he met with an accident which rendered him totally and permanently disabled. He alleges that notwithstanding this the employer and the defendant insurance company refused to pay him compensation after April 23, 1954.

The defense chiefly relied upon is that if plaintiff met with an accident on the alleged date, he sustained only an injury to his right leg which was successfully treated by defendant’s physicians who medically discharged him on April 23, 1954, at which time no further medical attention was required as plaintiff was fully able and competent to resume the duties of his occupation.

Plaintiff recovered a judgment below for 400 weeks’ compensation (subject to a credit of 8 weeks’ compensation paid) at the rate of $30 per week. The judgment further awarded plaintiff “all medical expenses not to exceed One thousand ($1,000.00) Dollars” and also $100 as the expert witness’ fee of Dr. William Fisher who testified at the trial on plaintiff’s behalf. The defendant has appealed.

Roosevelt Wilson at the time of the trial was unable to return to the duties required of one engaged in hard manual labor. He has an umbilical hernia. The dispute is whether Wilson met with an accident on March 3, 1954, such as he described, and if so whether the hernia was caused thereby. Plaintiff maintains that there was an accident and he attributes his condition thereto; while, on the other hand, defendant’s position is that the hernia either existed before March 3, 1954, or was received subsequently and not as a result of any accident, if there was one, on the date in question.

From the witness stand Wilson said he was injured when a number of steel jacks or shores (weighing from 60 to 70 pounds each), which fell from a pile 8 feet high, struck him knocking him down with several of the jacks coming to rest on his stomach. Wilson is substantially corroborated by Melton, a fellow employee who says he was 25 feet away from Wilson and heard the jacks fall and went to the assistance of other workmen in removing the jacks off of Wilson.

It was not known to anyone connected with the case that Wilson had the hernia until March 18, 1954, some fifteen days after the accident. The discovery was made by Dr. William Fisher, a general practitioner upon whom plaintiff of his own volition had called. Wilson went to see Dr. Fisher on the mentioned date notwithstanding that he had been, was then, and would continue for some time to be the patient of Drs. Harrison, Lyons, Baker & Paine, who are employed by defendant. Wilsoii’s explanation as-'to why-'he sought the services of Dr. Fisher while being treatéd by the defendant’s physicians is that'the defendant’s physicians were “not doing anything for my stomach.”

Besides the umbilical hernia, Dr. Fisher found an acute contusion of the lower lumbar and lumbosacral region and a contusion of the lower third medial region of the right thigh. He advised surgery for correction of the hernia; however, he did treat the other conditions mentioned and he says the last time he saw Wilson, which was on April 11, his only complaint referred to the hernia.

On the day of the accident Wilson was sent by one of his superiors to the office of Drs. Flarrison, Lyons, Baker & Paine, who as has been said, are the physicians of the defendant, and Wilson was first seen there by Dr. Paine who treated him for an injury to the right knee. Dr. Paine saw Wilson on six occasions in all between the date of the accident and March 24 and he states that at no time did Wilson mention to him or complain of any injury to his back or abdomen,

Dr. Baker saw and treated plaintiff on five occasions between March 8 and April 10 and likewise testified to the effect also that Wilson made no complaints of any injury except to his knee.

On the March 29 visit to Drs. Harrison, Lyons, Baker & Paine for treatment, Wilson was seen by Dr. Lyons who stated that Wilson was complaining of pain in the stomach, and that thereupon he made an examination which revealed a slightly pendulous abdomen, a small umbilical hernia, and tenderness below and to the left of the navel. Dr. Lyons subsequently saw Wilson on April 12 and 19 and prescribed sedatives with the intention of alleviating the pain and discomfort.

Wilson maintains that his hernia resulted from the steel jacks falling upon him and none of the medical experts would say the hernia was sustained otherwise. The fact that tenderness was present is not helpful in making a determination of the age of the hernia as we are given to understand by the medical witnesses that tenderness at the site of a hernia is the usual thing in such cases.- The nearest thing to a statement emanating from any defense witness that plaintiff’s condition did not result from the fall of the jacks came from Dr. Lyons who stated that his impression was that the hernia “was not probably connected with his accident.” Dr. Lyons was neither asked to elaborate on that statement nor to give his reasons for making it, and he went no further.

Notwithstanding that there is no evidence in the record to support defendant’s contention that the hernia did not result from the accident, counsel hope to convince us that Wilson’s disability did not result from any steel jacks falling upon him by attacking the credibility not only of Wilson but also of Dr. Fisher. With reference to Dr. Fisher, they point out the circumstance that although his written report makes no mention that Wilson complained of abdominal injuries, Dr. Fisher testified to the effect that Wilson did claim‘he had an injury to his stomach. Counsel argue that there is what they believe to be a glaring variance as between the allegations of the petition and Wilson’s testimony as to how the accident' happened and they also call attention to the fact that in giving his case history to the physicians Wilson told conflicting tales as to how he sustained the injuries. We are also urged to find it as a fact that Wilson made no complaint of abdominal injuries to either Dr. Paine or Dr. Baker. Counsel also challenge the testimony of - Melton, who stated that he heard the steel jacks fall and rushed to Wilson’s assistance, as being inconsistent. It is also contended that Wilson knowingly concealed from the physicians the fact that in several prior accidents he had sustained various and sundry injuries.

Wilson throughout his testimony insisted that he told Dr. Paine and Dr. Baker about his injured abdomen, but he says the doctors would do nothing to remedy the condition and as a result of this he was forced to make the visit to Dr. Fisher, his own private physician, in order to get relief. Counsel take the position that Wilson was without doubt untruthful in testifying that he told the doctors about his abdomen because the doctors’ testimony is contrariwise.

We have read the pleadings and carefully analyzed all of the testimony, and frankly we do not think any of the circumstances alluded to by defendant’s counsel as being suspicious assume any grave importance. Certainly the circumstances alluded to are insufficient to warrant a reversal of the judgment for workmen’s compensation.

All questions of credibility and veracity raised before this court were resolved adversely to defendant below. After seeing and hearing the witnesses testify, the district judge found for the plaintiff, and we do not think it would be proper to hold that there is manifest error in the judgment and therefore we shall apply the long and well-established doctrine that the findings of the trial judge on questions of fact should not be disturbed unless there appears manifest error.

However, the trial judge fell into error in allowing “all medical expenses not to exceed One thousand ($1,000.00) Dollars.” While Dr. Fisher did treat plaintiff on several occasions, the value of his services does not appear in the record and no one could say how much of an expense plaintiff actually incurred. Apparently the $1,000 maximum was allowed to take care of whatever amount plaintiff might owe to Dr. Fisher, as well as such medical expenses as plaintiff might incur in the future. This allowance was improper for nowhere in the Workmen’s Compensation Statute is it provided that an allowance may be made to an injured workman for future medical expenses. Boykin v. We Hope Gas & Oil Co., Inc., La.App., 2 So.2d 528; Rosenquist v. New Amsterdam Casualty Company, La.App., 78 So.2d 225. We believe that the fair thing to do in the case is to reserve plaintiff’s right to assert his claim in the future for whatever amount he may owe Dr. Fisher for his treatment and for such other medical expenses as might be necessary in the treatment of the' umbilical hernia.

Our opinion is that the allowance of the $100 expert witness’ fee to Dr. Fisher was correct. While it is true Dr. Fisher was the attending physician and testified as to the results of his examination of the plaintiif and the course and nature of his treatments, still the doctor was on the witness stand for a considerable period of time and was asked many hypothetical medical questions by counsel for both parties which placed him in the category of an expert witness, and we believe that the allowance of the expert’s fee in said amount is entirely in order.

For the reasons assigned, that part of the judgment which allows plaintiff “all medical expenses not to exceed One thousand ($1,000.00) Dollars” is set aside and avoided and the judgment is now amended so as to reserve plaintiff’s right to claim in the future whatever medical expenses he might have incurred by reason of his treatment by Dr. Fisher and for such other medical expenses as he might hereinafter incur in the treatment of his umbilical hernia, and as thus amended and in all other respects the judgment is affirmed. Defendant is to pay the costs of this appeal.

Reversed in part.

Amended and affirmed in part.

JANVIER, Judge

(concurring).

While I do not disagree with anything said in the majority opinion, nevertheless I write this concurring opinion only to stress the fact that our conculsion is arrived at merely because we are unable to say that there is manifest error in the finding of the District Judge.

Were it not for this finding, the record would justify the conclusion that the hernia, which is now said to be the cause of the disability of plaintiff, was not sustained as a result of nor aggravated by the accident on which the suit is based, and that the plaintiff knowing that he had suffered from the hernia long before the accident, thought this an opportune time to base his claim for disability on the hernia, which in no way and to no extent resulted from this accident.-

Again, however, I state that, because of the finding below, I concur in the majority opinion and in the decree.


author: REGAN, Judge.

text:
    Ernest C. MAYFIELD v. Mrs. Ethel CARRIERE, wife of and Blaise Carriere and Travelers Indemnity Company.
    No. 20598.
    Court of Appeal of Louisiana. Orleans.
    March 19, 1956.
    Rehearing Denied April 23, 1956.

      Dodd, Hirsch & Barker, Harold J. Lamy, New Orleans, for plaintiff-appellant.
    May & Carrere, Ernest A. Carrere, Jr., New Orleans, for defendants-appellees.
   REGAN, Judge.

Plaintiff, Ernest C. Mayfield, a motorcycle patrolman, instituted this suit against the defendants, Mrs. Blaise Carriere, the operator of a Ford automobile, her husband, the owner thereof, and Travelers Indemnity Company, their insurer, endeavoring to recover the sum of $20,140 for the loss of present and future earnings and personal injuries incurred by him on January 9, 19S4, at 11:30 P.M. when, in order to avoid colliding with the defendants’ car, which executed an unexpected maneuver, he was compelled to swerve to the right thereof and into a parked vehicle owned by Malgram L. Carswell.

The defendants answered and generally denied that Mrs. Carriere was guilty of any negligence in the premises and, in the alternative, pleaded the contributory negligence of the plaintiff. In order to avoid the repetitious designation of parties defendant, we shall hereinafter refer to Mrs. Car-riere as the defendant.

Malgram L. Carswell intervened and prayed for judgment in solido, in the amount of $106.20, against both the plaintiff and defendants for property damage incurred by his parked vehicle.

The Board of Administrators of the Charity Hospital of Louisiana at New Orleans, intervened and requested that in the event of the rendition of judgment in favor of plaintiff, it have judgment in solido against the plaintiff and defendants in the amount of $359.20, together with attorney’s fees.

There was judgment in favor of the defendants dismissing plaintiff’s suit and the intervention of the Charity Hospital. There was an additional judgment in favor of Carswell, the intervenor, and against the plaintiff, in the sum of $106.20. From this judgment only the plaintiff has prosecuted an appeal.

The record reveals that the plaintiff was employed by the City of New Orleans, as a motorcycle traffic patrolman, whose “beat” encompassed S. Carrollton Avenue, between Washington and Claiborne Avenues. On the night of January 9, 1954, at 11:30 P.M., he observed defendant’s vehicle emerge from Walmsley Drive and enter the left traffic lane of S. Carrollton Avenue moving in the general direction of Washington Avenue at what he considered to be an excessive rate of speed. He “set” his speedometer at thirty miles per hour (the legal rate of speed at that time) in order to “clock” her rapidity of movement and then “tailed” defendant’s car until he had attained a position abreast of the right rear fender. As the two vehicles approached and crossed the railroad tracks which traverse S. Carrollton Avenue, they mutually decreased their speed which resulted in plaintiff moving about ten or twelve feet to the rear of defendant’s car. Thereafter plaintiff began to gain on defendant until he was once more abreast of the right rear fender of her car. At this moment the -defendant was confronted by an object about six feet long and about two feet high (which later was revealed to be an abandoned Christmas tree) lying in her path. She quickly looked into her rear view mirror to ascertain if there was any reason to prevent her from gradually turning to the 'right side of the roadway in order to avoid this obstacle and, as she executed this maneuver, she caused the plaintiff, who was riding his motorcycle abreast of her right rear fender, although she could not see him, to likewise turn to the right and collide with a car parked on a forty-five degree angle facing the sidewalk of S. Carrollton Avenue and adjacent to what has been designated as the'Colonial Bar & Restaurant. The injuries to the plaintiff and property damage incurred by the parked automobile owned by the intervenor are the subject matter of this litigation.

The plaintiff insists that the lower court erred in failing to conclude that the actions of the defendant constituted negligence which was the proximate cause of plaintiff’s injuries or, alternatively, that the defendant had the last clear chance to avoid the accident.

On the other hand, the defendant maintains that the sole cause of the accident was the negligence of the plaintiff in “tailing” the automobile of the defendant too closely and in failing to make his presence known.

The principal question posed for our consideration is one of fact and that is whether the actions of the defendant constituted negligence under the circumstances outlined hereinabove ?

The trial judge answered this question in the negative and our examination of the record fails to disclose any error in his conclusion. He was of the opinion that:

“* * * the action of Mrs. Carriere was not unreasonable under the circumstances. She was confronted, after coming over the rise of the railroad tracks, with an object in the roadway. She testified that she looked in her rear view mirror and saw nothing. Had she used a signal of the left hand, the officer could not have seen it because he was in a blind spot on the right of the car to the rear. She pulled from the left over to the right, to avoid hitting the object in the roadway. The officer did not run into the car driven by Mrs. Carriere, but he swerved to the right and ran into the parked car at a 45 degree angle on the curb, and injured himself.
“It is the opinion of the Court that the plaintiff in this case was driving his motorcycle in a position of peril and danger, and that through his own negligence/ he was injured, in following the car too closely to its rear, even though he was somewhat to its right, without making his presence known.”

The whole tenor of the record convinces -■ us that the plaintiff was exerting every effort to effectively conceal his presence to the immediate right rear of defendant’s car in anxious and zealous anticipation of what he erroneously believed to be an impending violation of the speed limit. The very nature of this surreptitious effort to conceal both his motorcycle and himself too close to the rear of defendant’s car was the proximate cause of his injuries.

However, even if we should assume arguendo, that both plaintiff and defendant were negligent, a view which plaintiff believes to be most favorable to his case, we are then of the opinion that the defendant did not possess the last clear chance to avoid injuring plaintiff since she was unable to. discover, by the exercise of due diligence, his. presence or position of peril because he had successfully concealed himself.

The intervenor, Carswell, has adequately proven the damages sustained by his car as a result of the collision.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


text:
    Alaska BOOTH v. STRACHAN SHIPPING COMPANY.
    No. 20754.
    Court of Appeal of Louisiana. Orleans.
    April 2, 1956.
    Rehearing Denied April 23, 1956.
    Wm. H. McClendon, Jr., New Orleans, for defendant-appellant.
    ■Herman M. Schroeder, New Orleans, for plaintiff-appellee. •
   REGAN, Judge.

Plaintiff, Alaska Booth, employed as a longshoreman, instituted this suit against the defendant, Strachan Shipping Company, his employer, endeavoring to recover workmen’s compensation at the rate of $30 per week for a period of four hundred weeks, together with penalties, medical expenses and attorney’s fees, for total and permanent disability, resulting from injuries incurred to both knees and his back caused by an accident which occurred on January 26,, 1954, when a “pile” of sacks of grain, approximately seven high, each weighing 150 pounds, inadvertently toppled upon him.

The defendant answered and admitted the occurrence of the accident and resulting injuries to plaintiff’s knees, but asserted that the plaintiff had fully recovered therefrom as of May 28th, 1954.

From a judgment awarding plaintiff compensation for total and permanent disability, $200 for medical expenses and $300 for expert fees, defendant has prosecuted this appeal.

Plaintiff related that he was fifty-three years of age and had engaged in the work of a longshoreman intermittently since the year of 1940. On January 26, 1954, at about 3:30 p. m., he and Herman Gardner, “his partner” were loading 150 pound sacks of grain, piled seven or eight high when, for some unexplained reason, about six sacks of grain fell from their “stacked” position upon the plaintiff; the sacks were removed from his body by Gardner and another employee; plaintiff was then taken to the offices of Dr. John Andrews, the defendant’s physician, where the initial examination of his injuries was made and treatment administered.

The only question posed for our consideration by virtue of the pleadings and the evidence is one of fact-and that is whether the plaintiff is able to resume his former occupation. The trial judge answered this question in the negative and our examination of the record and his written reasons for judgment which are quoted in part hereinafter disclose no error in his factual or legal conclusions:

“Plaintiff brings this suit under the Workmen’s Compensation Act for total disability. We have six orthopedists and one industrial surgeon as experts in the case. * * * Dr. Halsam, Dr. Salatich and Dr. Battalora called on behalf of the plaintiff, and Dr. All-dredge, Dr. Newport and Dr. Cahen, called on behalf of the defendant, all experts in the field of orthopedics; and, in addition, on behalf of the defendant, Dr. John Andrews, an industrial surgeon. There is conflict in the medical testimony. In addition to all this medical testimony we have the testimony of plaintiff together with numerous lay witnesses, * * *, his foreman and men who worked with him while he was on the job and others who have observed him since his accident. There is no question but that there was an accident. The plaintiff was injured. Dr. Halsam and Dr. Salatich * * *, as I understood their evidence, was to the effect that Booth cannot return to his former job as a longshoreman. Dr. Battalora testified * * * that he could return, subject, however, to'the fact that he could not climb, squat, or do prolonged standing. I examined Dr. Battalora in connection with that qualification and, as I understand his testimony, based on that examination Booth could not go back and do longshoreman work because he. would have to climb at times and he would have to stand, * * *. So, therefore, we have those three gentlemen aligned on behalf of - the plaintiff. * * * Dr. Battalora also examined the plaintiff on behalf of the defendant. * * * Now, as against that we have Dr. John Andrews, who is not an. orthopedist but who is an industrial surgeon, and he saw Booth immediately after the accident. He is the doctor that obtained the note from Booth’s foreman and which was to the effect that Booth could not do the work of a longshoreman. Dr. Andrews sent Booth to Dr. Alldredge, and it is significant to note that Dr. Andrews disagreed with Dr. Alldredge’s * * * diagnosis of Booth. Well, Dr. Alldredge has since explained that on the stand and it is unnecessary for me to go into that phase of it. Then we have Dr. All-dredge, who said that Booth could return to work, as well as Dr. Newport. Now, Dr. Cahen * * * testified that because of the atrophy which Booth had when he last examined him on September 27, 1955, it having increased since his prior examination * * * he has atrophy ‘which would not let him go back to extreme labor’; and .then I asked him if the longshoreman work was not in that category and of course he answered ‘yes.’ So it is very plain to see that we have a lot of conflict in the testimony of the- doctors. Some say it is only the atrophy and others say that there is some derange.ment in the knee, whether it be a liga-■pient or cartilage ***.*** then we go to the lay testimony. Now, Booth has been in court three or four days because this case has been tried piecemeal. I have had the opportunity to observe him, and in all these cases I do observe the plaintiff, and not only in the court room but wherever I might see him. I also had a good opportunity to observe him on the witness stand — because I endeavor in these types of cases to make my observation as keen as I possibly can. In ■order for me to say that Booth’s knee is not injured and that he is not suffering some disability in that knee as a result of the accident on January 26, 1954, I would have to say that Booth has given false testimony throughout this case, and that I cannot do. Then, I have to consider all the other lay testimony in the case; and when I take all that testimony — that is the lay testimony as well as the medical testimony —I can only come to the conclusion that Booth has suffered á disability which incapacitates him at this time from returning to his duties as a longshoreman’ and that, under the Workmen’s’ Cofnpensation Act, he should he put in the category of total permanent disability, which permits him to get compensation as provided under the act. I am going to quote from the opinion of Judge Viosca, which was adopted by the Court’ of Appeal in the case of Jones v. Atlantic & Gulf Stevedores, ([La.App.] 38 So.2d 653 [655]-1949) * * *: ‘In such a case’ — and I say this is such a case — ;<the Court must decide the case on the record as a whole, giving great weight to the lay testimony, and the facts and circumstances of the case, as well as considering the conflicting opinions of the medical experts^’ Now, I want to say that I have -considered the testimony of the medical experts and I have considered the lay testimony and I can only come to the conclusion that Booth is entitled to recover, and judgment will be rendered for total, permanent disability, subject to credit for compensation which has been heretofore paid as reflected by the petition. * *

After a comprehensive analysis of the record we believe that the plaintiff has sustained the burden of proof and has established with that certainty which the law requires his claim of total and permanent disability to perform the arduous duties of a longshoreman, which occupation, we believe, falls within the judicial category of skilled or, at least, semi-skilled labor.

For the reasons assigned the judgment appealed from is affirmed,

JANVIER, J., recused, takes no part.

Affirmed.


author: McBRIDE, Judge.

text:
    George BICKHAM v. LESTER J. DANNER, Inc., and Liberty Mutual Insurance Company.
    No. 20694.
    Court of Appeal of Louisiana. Orleans.
    March 19, 1956.
    Rehearing Denied April 23, 1956.
    Writ of Certiorari Denied June 11, 1956.

      Jones, Walker, Waechter, Dreux & Poi-tevent and John V. Baus, New Orleans, for defendants-appellants. :
    Edgar Corey, New Orleans, for plaintiff-appellee.
   McBRIDE, Judge.

This is a suit brought by plaintiff, George Bickman, by original and supplemental and amended petition against his former employer, Lester J. Danner, Inc., and Liberty Mutual Insurance Company, its workmen’s compensation liability insurer, to recover compensation for permanent total disability under paragraph 2 of LSA-R.S. 23:1221 for an injury which plaintiff contends produced permanent total disability to do work of any reasonable character. He claims compensation at the rate of $30 per week for a period of 400 weeks, beginning on or about March 19, 1954, less a credit of $900 for compensation for 30 weeks at the rate of $30 per week already paid, plus interest, costs, attorney’s fees and penalties in accordance with LSA-R.S. 22:658. In a supplemental petition plaintiff alleges that as a result of the accident he lost a portion of the distal phalanx of the thumb, the first and second phalanges of the index finger, the first phalanx and a portion of the second phalanx of theffhird finger and the tip of -the ring1 finger, all of the left hand, and that the stumps of the fingers' and thumb are sensitive and painful and because of this; and additionally because he is afraid to return to operating1 power saws, he is totally and permanently disabled from returning to the type of work he was doing at the time of the accident.

Lester J. Danner, Inc., is engaged in the business of packaging various machinery and other materials for export shipment. Plaintiff’s occupational duties involved unloading shipments received from boxcars, packaging freight in boxes, nailing up the boxes in which the freight is packed, disassembling machinery for packaging, cleaning up around the premises, etc. During the week of February 9, 1954, approximately one month prior to the accident out of which this suit arises, plaintiff was instructed in the use of an electrically-powered ripsaw and crosscut saw and he was sometimes called upon when the regular sawyer of the employer had too much work to handle himself to cut lumber to be used in making crates or boxes. On March 8, 1954, while operating the ripsaw, plaintiff permitted his hand to come in contact with the whirling saw blade causing injuries resulting in the amputations set forth in the supplemental petition. It appears from the evidence that the tip of plaintiff’s left thumb was also injured. Plaintiff was hospitalized for a few days and was under treatment by Dr. M. D. Paine, the insurer’s physician, almost daily through May 18, 1954, on which date Dr. Paine came to the conclusion that plaintiff was about ready to return to his job although he did not discharge him. Instead plaintiff was sent to see Dr. D. C. Riordan, an orthopedic specialist also employed by the insurer, who made an examination on May 27 and reported to the defendant insurance company that plaintiff had suffered a 20 per cent permanent disability of the left hand but, notwithstanding this, he thought he should be able to return to the same type of work that he was doing when injured. The plaintiff made no attempt to return to his employment. Plaintiff was paid compensation benefits (based on Dr. Riordan’s estimation that he had suffered a 20 per cent disability of the left hand) under LSA-R.S. 23:1221(4) (e, o). The payments aggregated $900 over a period of 30 weeks at $30 per week or until about October 8, 1954. This suit was instituted just a few days later.

The defendants admit the occurrence of the accident, the injuries to plaintiff’s left hand, the rate of pay, and the insurance coverage. The defense is that despite his injuries the plaintiff is fully competent to return to his former occupation and that the only compensation to which he is entitled is the 30 weeks which represented the 20 per cent loss of the hand, which has been paid in full.

About March 28, 1955, the defendants became apprised that Bickham had developed a painful neuroma on the end of the stump of the amputated middle finger and examinations made by Drs'. Paine and Rufus All-dredge confirmed the fact of the existence of a painful neuroma. The doctors, however, were of the opinion that this condition could be easily remedied and eliminated by a surgical procedure, which they termed minor, under local anesthetic. The defendants thereupon filed a supplemental and amended answer tendering to plaintiff an operation by a qualified orthopedic surgeon of his own selection and praying that in the event of his failure to submit to such surgery that the defendants be relieved from the payment of compensation benefits beyond the estimated period of convalescence. The plaintiff refused to submit to the surgery suggested.

After a trial on the merits on the issues presented by the pleadings, the judge a quo was of the opinion that plaintiff’s attitude in refusing to submit to the surgery was neither unreasonable nor arbitrary. The judge was of the further opinion that the plaintiff was but a common laborer who was only partially disabled and he .gave judgment in plaintiff’s favor for 65 per cent of the difference between $50 per week, which he earned with Lester J. Danner, Inc., and $33 per week,-his present wage as a porter for Mayer Israel’s Department Store in New Orleans, or the sum of $11.05 per week for a period of 270 weeks (credit being given for 30 weeks’ compensation previously paid). The expert witnesses’ fees of plaintiff’s three medical experts were fixed at the sum of $100 each and taxed as costs. The appeal, was answer.ed and appellee prays that he be declared totally and permanently disabled from doing work of any reasonable character and that the compensation be fixed accordingly, with penalties including a 20 per cent attorney’s fee .and an increase in the allowance of the expert witnesses’ fees and $1,000 for medical expenses.

It is unnecessary to pass on the trial judge’s ruling as to plaintiff’s refusal to submit himself to the surgery tendered, because we do- not believe that the suggested surgical procedure could ameliorate plaintiff’s condition to such an extent. that he would have the' capacity to return to the duties of his employment with Lester J. Danner, Inc. We. think that the injury, even without the painful neuroma, leaves him absolutely incapable of returning to the occupational duties. Of course, as is to be expected, whether plaintiff would be capable of returning to work after an operation is a question on which there is a diversity of opinion amongst the medical experts, but we are impressed by the testimony of plaintiff’s expert, Dr. Homer D. Kirgis, a neurosurgeon who is connected .with the Ochsner Clinic, whose opinion was that Bickham. is unable to return to his former occupation because of the loss of strength in the left hand which would create inability to feed lumber carefully into the electrical saws or to grasp objects easily and quickly. The saw which injured Bickham is a stationary table-type ripsaw with a 16r inch blade operated electrically, and Mr. Lester :J. Danner, testifying on behalf of the defendants, made it clear that the operator must exercise extreme caution, otherwise his fingers might come in contact with the teeth of the saw.' Andrew Hartley, a former employee of Lester J. Danner, Inc., .who operated'the "same electrical saws for more than two years, testified .■ that the sawyer must hold the wood as it is passed to the saw. fast to the platform so that it will not be caused to “kick up” and “buck” out of line by the violent motion of the saw, and that for this reason constant downward pressure must be kept on the board with' the tips of the thumbs and the fingers. Pictures of the saws in action reflect that skill and co-ordination of the eyes as, well as the hands and arms are necessary in the operation. We believe that to expect a workman handicapped to such an extent as Bickham to labor on the saws would be asking quite too much. For first and foremost it appears certain that Bickham’s return to the work would be-’fraught with danger as possibly, if not probably, he will suffer more extensive injuries. It is conceded by all of the physicians that Bickham has sustained a 20 to 25 per cent loss of the use of his left hand and there is uncontra-dicted evidence showing that his grip of the left hand measures only 70 pounds as compared with a normal 250-pound grip in the right hand. In addition to his duties as a sawyer, Bickham was called upon to lift various objects such as plows, automobile parts, pieces of metal weighing up to 200 pounds or more, etc., and that plaintiff stated that the use of both hands is required. Mr. Danner testified that when his company shipped tractors and automobiles they were usually

“ * * * sent to us as they come off the assembly line and set up, and in order to conserve cube we have to dismantle and pack them in the smallest container possible. The boys in the shop, including Bickham, help in that dismantling operation. That was like removing the wheels from tractors and the fenders and taking off the bolts dropping the undercarriage, and on automobiles we normally just remove the wheels, but we had one particular shipment where we had to dismantle them entirely. We took the bodies off the chassis and the motors and wheels and packed the bodies in one type box and the chassis and motors in separate box-

■ In an attempt to demonstrate that a person having a handicap similar to Bickman’s would be able to operate electrical saws, defendants produced as a witness John W. Werling, the proprietor of a small woodworking shop, who testified that he is able to operate electrical power machines such as ripsaws, cutoff saws, bandsaws, and joiners, notwithstanding that he had lost all of the fingers of one of his hands, except the thumb, in an accident which befell him .some time ago. The witness conceded, however, that it was most difficult to overcome the handicap and that only with the greatest of difficulty did he force himself to attempt the resumption of his duties. While we express the greatest admiration for Mr. Werling’s fortitude, we do not believe that any court would say that the witness has the same competency now that he had prior to the injuries to his hand. If the equipment that Mr. Werling says he is able to operate is of the same type as Bickham would be called upon to operate in the event of re-entering his former occupation, we refuse to believe that Mr. Werling can possibly carry on his duties with the same amount of competence and without an increase in the normal hazards of his occupation not only to himself but to others as well.

The nature of Bickham’s employment called not only for the operation of the electrically driven saws but also for the utilization of various tools, such as wrenches, in connection with the disassembling of tractors and automotive equipment. Mr. Dan-ner pointed out that on occasions it was necessary to entirely disassemble the bodies of the tractors or automobiles and to pack the various parts for shipment in separate boxes. Our firm opinion is that the permanent injuries to Bickham’s hand would inhibit his carrying out these particular functions of his former occupation.

Our brother below classified Bickham as a common laborer, but we believe that he was in error in resolving that the work plaintiff was performing at the time of the accident was unskilled manual labor. It strikes us forcibly that plaintiff’s status is on a much higher plane than an employee who performs ordinary manual labor for the reason ■ that it seems self-evident that one who is called upon to dismantle tractors and automotive equipment by the use of hand tools must possess some reasonable amount of skill.

In the recent case of Fruge v. Pacific Employers Ins. Co., La.App., 71 So.2d 625, 634, decided by our brothers of the First Circuit (writs refused except to review the assessment of penalties—226 La. 530, 76 So.2d 719), it was held that an oil well roughneck, a member of a drilling crew, was a skilled workman. In setting out the duties performed by the plaintiff in the cited case the court mentioned that among his duties was the using of various tools on the drilling rig, including wrenches to screw the joints of pipes together, and said:

“* * * Taking these duties as a whole we are unable to agree with the trial judge’s conclusion that this man' was ‘nothing more than a common laborer.’ ”

The fact of the defendant in the Fruge case applying for a writ of certiorari or review and the Supreme Court’s granting of the writ to review the judgment, but only insofar as it assesses penalties and attorney’s fees, had the effect of placing the Court’s - approval on those portions of the judgment which were not reviewed.

We perceive- an analogy between the character of duties performed by the roughneck and the plaintiff in the instant case in that their respective- duties required the use of wrenches and hand tools, and we must hold that the present plaintiff is not merely a common laborer but a skilled workman.

The question here is whether the plaintiff, a skilled workman, is disabled to the extent of not being physically competent to do work of any reasonable character within the meaning and intendment of the Workmen’s Compensation Statute. That is tó say, has he a disability to perform the work of the same or similar description, kind or character to that which he was accustomed to perform or was undertaking when the injury occurred? It may be true that the plaintiff might do some of the duties which - the nature of the employment requires, but it can hardly be said that he is able to do a substantial part of these. We are certain that his major functions were to operate the saws and disassemble the tractors and motor vehicles and we are just as certain that plaintiff, due to the damaged condition of his left hand, cannot perform them. We must, therefore-, find that he is totally and permanently disabled. Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695.

Plaintiff is entitled to recover compensation notwithstanding that the evidence shows that he is now in the employ of a department store doing light work as a porter. It is well settled in this state that the disability which prevents an employee skilled in a special trade from carrying on such trade or doing work of a similar character constitutes total disability to do work of any reasonable character even though it appears that the employee subsequently is able to perform the duties attached to other employment not requiring such skill or training. Wright v. National Surety Corp., supra; Ranatza v. Higgins Industries, Inc., 208 La. 198, 23 So.2d 45; Fruge v. Pacific Employers Ins. Co., supra.

The penalties of LSA-R.S. 22:658 should not be assessed against the Liberty Mutual Insurance Company because there was nothing capricious or arbitrary about the refusal to make payment of compensation beyond the thirty weeks or that the withholding of compensation was without probable cause. The evidence convinces us that the compensation insurer acted upon the advice and opinions of two competent and reputable medical experts each of whom thought that the plaintiff, notwithstanding the loss of a 20 to 25 per cent use of his hand, could return to the duties which his employment entailed. These experts on the trial of the case were sincere in stating what their conclusions were and the compensation insurer should not be penalized for basing its conduct on the opinions and findings of the medical experts. When the defendants learned of plaintiff’s neuroma, he was at that time receiving compensation and he continued to be paid compensation for several months thereafter, notwithstanding the refusal to submit to surgery, until thirty weeks were paid which defendants believed was the extent of their legal liability. Plaintiff filed this suit within a few days of the termination of the thirty-week period. LSA-R.S. 22:658, the source of which is Act 417 of 1952, in providing for the penalties in certain cases sets forth that they are due when there is a failure to pay but only “when such failure is found to be arbitrary, capricious, or without probable cause.”

In the answer to the appeal Bick-ham also prays for an allowance of $1,000 for medical expenses, but we see no predicate upon which such allowance should be made. It was not shown at the trial what, if any, medical expenses Bickham incurred in connection with his injuries, and if it was intended that the $1,000 is for medical expenses which plaintiff might be called upon to bear in the future, this would be improper for nowhere in the Workmen’s Compensation Statute is there any provision that an allowance may be made to an injured workman for future medical expenses. Boykin v. We Hope Gas & Oil Co., Inc., La.App., 2 So.2d 528; Rosenquist v. New Amsterdam Casualty Co., La.App., 78 So.2d 225; Wilson v. New Amsterdam Casualty Co., La.App., 86 So.2d 556. In this case the ends of justice would require that plaintiff’s right to assert his claim in the future for whatever amount he may now owe or be called upon in the future to incur be reserved unto him.

We do not see fit to increase the expert witnesses’ fees of the three doctors who testified on behalf of plaintiff. The lower court allowed them $100 each and we think this is just and it is in line with allowances made by us in many previous cases.

Our findings will require that the judgment appealed from be recast.

For the reasons assigned, it is ordered, adjudged and decreed that George Bick-ham, plaintiff, have judgment against the defendants, in solido, for workmen’s compensation at the rate of $30 per week not to exceed 400 weeks commencing March 15, 1954 (less a credit for 30 weeks’ compensation previously paid) with legal interest from judicial demand on all past due installments from the due date until paid and for all costs of this suit; it is further ordered that the fees of plaintiff’s expert witnesses, Dr. David A. Freedman, Dr. Homer D. Kirgis and Dr. Louis J. Gehbauer be and the same are hereby fixed at $100 each and assessed as costs herein; it is also ordered that plaintiff’s right to sue for such medical expenses as may have been incurred by him or which he may be called upon to bear in the future as a result of his injuries be reserved unto him; and as thus recast the judgment appealed from is affirmed at appellants’ cost in this cuort.

Amended and affirmed.


text:
    BLATTMANN SHEET METAL WORKS, Inc. v. Dr. Ernest E. ALLGEYER.
    No. 20565.
    Court of Appeal of Louisiana. Orleans.
    March 19, 1956.
    Rehearing Denied April 23, 1956.
    Writ of Certiorari Denied June 11, 1956.
    J. L. Warren Woodville, New Orleans, for defendant-appellant.
    Weiss & Weiss, New Orleans, for plaintiff-appellee.
   JANVIER, Judge.

Defendant appeals from á ■ judgment against him, complaining solely on the ground that a plea of prescription of three years should have been sustained with the resulting dismissal of the suit.

On September 29, 1951, plaintiff filed suit against defendant, praying for- judgment for $352.74, with interest and costs and alleging that it had “furnished and delivered to defendant the labor and material set forth on the annexed copies of invoices.”

, The petition itself does not show the dates on which the labor and materials shown in the two attached invoices were furnished.

The smaller invoice for $37.70 does show that the work represented therein was done from 8:00 P.M. through 11:00 P.M. on the night of September 30, 1948.

The larger invoice for $315.04 does not show any dates. It does show the details for which the charge is made, such as-“cleaning all gutters, replacing one section of gutter, repairs to overflow pipe, furnishing and fabricating two sections of roofing,” and many other similar items.

To this petition the defendant filed an exception of vagueness directed at the failure of petitioner to set forth the dates on which the labor and material represented .by the larger invoice were furnished. The exception of vagueness was maintained insofar as the larger item was concerned and plaintiff was ordered to amend its petition, and to set forth the period within which the work covered- by the said invoice was performed. In compliance with this order, plaintiff filed a supplemental petition in which it alleged “that the labor and materials covered by its invoice No. 8076” (the larger invoice) “were furnished in the period commencing September 2nd and ending September 9th, 1948.”

When this supplemental petition was filed, defendant filed a plea of prescription of three years, contending that under LSA-Civil Code Article 3538 prescription had accrued as to that part of the claim, When this plea of prescription was filed, plaintiff filed a supplemental petition in which it alleged that it “is a roofing contractor, and in the course of its normal operations fabricates roofing material, and furnishes the labor to install said roofing material on roof repair jobs it undertakes,” and that though “no fixed price was agreed upon by petitioner and defendant when defendant requested petitioner to repair his roof, * * * ■ the claim herein sued on consists of a fair and reasonable price for the labor arid materials contracted for by defendant and furnished by petitioner.”

The plea of prescription of three years was never expressly passed upon by the Court, 'but when the second supplemental petition was filed, defendant filed an exception thereto on the ground that this second supplemental and amended petition “changes and alters the cause of action as set forth in the original petition.”

This exception was overruled and defend-' ant was given ten days to answer and then filed answer denying all of the essential állegations of all three petitions.

After a trial there was judgment in favor of plaintiff for $315.04, the amount of the larger portion of the claim but rejecting the demand on the smaller portion of the claim which was for $37.70. From this judgment defendant has appealed.

Plaintiff, corporation having gone into liquidation, the liquidator, Ernest Blatt-mann, answered the appeal and prayed that the judgment be amended by the allowance of the additional amount of $37.70 and that, as thus amended, the judgment be affirmed.

So far as the larger item is concerned, the controversy hinges upon the question of whether the material and labor were furnished on contract or ' on open account, defendant exceptor maintaining that under the original petition it appears that-the labor'and material were furnished on open account and that therefore prescription of three years as provided by LSA-Civil Code Article 3538 is applicable. Plaintiff, on the other hand, maintains that wherever labor and material are furnished, they are furnished under contract and that accordingly the ten year prescription provided by LSA-Civil Code Article 3544 is applicable. Counsel for plaintiff maintain that even the original petition must be interpreted as alleging that there was a contract and they argue that in order that there be a contract it is not necessary that a purchase price be agreed upon and in support of this contention direct attention to the decision of our Supreme Court in Antoine v. Franichevich, 184 La. 612, 167 So. 98, 99. There the Court plainly said that where there is an agreement to furnish material and labor, there is a contract even though no price is agreed upon.

“A contractor to undertaker’s claim for perforrriing a job for which he furnished labor and material is prescribed by ten years, whether or not the price is agreed upon or the work executed under a written or verbal contract.”

Counsel for defendant concedes that the Court so held in that case, but says that it has no application here, contending that there was no meeting of the minds at all for the reason that the defendant was under the impre'ssion that the work on which the larger invoice is based was to-be done without any charge at all. He says that he attempted to prove that plaintiff had done the work on the roof of defendant’s building and had'been fully paid for that work and that later, when it was found that the work wa's defective and that the roof still leaked, plaintiff was called upon to comply with the guarantee which went' with the original contract and that' there was an understanding that no payment for doing that work would be required.

It is a little difficult to understand just what position counsel for defendant now takes for although he concedes that in the. present state of the record if the plea of prescription of three years cannot be maintained, the judgment must be affirmed, still he asserts that he should be permitted to show that, though the work was done at the request of defendant, it was his understanding that it was to be done under the guarantee. He does not contend that on the merits of the case this defense should be maintained, but merely that he should have been permitted to show that it was understood that no charge was to be made in order that he might point to this. to establish the fact that there was no contract. He bases his present argument on the contention that plaintiff should not have been permitted to change its position and that since, in the original petition, it alleged facts which, according to him, show an open account, in its second supplemental petition it changed the allegations so as to allege a contract.

We do not see that there has been a change in the position of plaintiff. In its first petition it alleges facts which we think must be interpreted as alleging a contract. It alleged that it had furnished labor and material ■ and, in the invoice, went into considerable detail as to what the labor and material consisted of. That was exactly what was done in Antoine v. Franichevich, supra, for there the Supreme Court said:

“Plaintiff ■ is a contractor or undertaker, who furnished the labor and materials in performing the jobs for the defendant under verbal agreements, without the prices . therefor being stated.”

The Court said:

“* * *■ under the circumstances, plaintiff cannot be said to be a mere furnisher of materials on open account, ' whose claim is prescribed by three years under article 3538, Rev.Civ. Code. * * *”

The Court, citing many cases, then said:

“ * * * The foregoing authorities definitely show that those who furnish labor and material in performing a job are undertakers or contractors and not laborers or material-men selling on open account.”

As we see the facts here, there is no doubt that defendant asked plaintiff to do the work represented by the larger invoice. There is no dispute over this. The dispute arises only over the question of whether the work was to be done without charge.

So far as the plea of prescription is concerned, and that is the only plea upon which defendant now depends, we see no distinction between the facts'which were alleged in the original petition and the facts which the Supreme Court found in the Antoine case. The only possible distinction between the two is that though the work was ordered, in the Antoine case no price was agreed upon, and in the instant case the defendant was under the impression that there would be no price at all.

The District Judge was correct in not maintaining the plea of prescription. He was also correct in rendering judgment in favor of plaintiff on the larger item sued on.

Since the record shows that the work represented by the smaller invoice was not ordered by the defendant but by his tenant and without his knowledge, the judgment, insofar as it dismisses the claim on that item, is correct.

Since the plaintiff corporation has gone into liquidation, the judgment in favor of the corporation in liquidation is correct.

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

Affirmed.