text:
    Henry T. ISGITT, Plaintiff-Appellant, v. W. O. JACKSON, Defendant-Appellee.
    No. 8453.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Rehearing Denied March 2, 1956.
    Pickett & Pickett, Many, for appellant.
    Godfrey & Edwards, Many, for appellee.
   HARDY, Judge.

This suit was instituted by plaintiff praying for judgment declaring a municipal election held in the Town of Converse, Sabine Parish, Louisiana, on the 14th day of June, 1955, to be null, void and invalid; alternatively, for a recount of the votes and appropriate judgment upon the basis thereof. Plaintiff further sought the issuance of an injunction prohibiting the promulgation of the returns and the issuance of a commission by the Secretary of State.

Plaintiff, who was Mayor of the Town of Converse, Sabine Parish, Louisiana, and a candidate for re-election to the said office, named as defendants his successful opponent for election to the office of Mayor, W. O. Jackson, and Wade O. Martin, Jr., Secretary of State. Plaintiff’s petition alleged that an election was held on the 14th day of June, 1955, for the purpose of electing municipal officers for the Town of Converse but that voting machines were not used in the said election, and, as a consequence, the same was null, void and invalid, being in violation of the provisions of the Constitution and laws of the State of Louisiana, particularly LSA-R.S. 18:-1165. Alternatively, plaintiff complained of certain irregularities with specific reference to the casting of votes by three participants in the election whom petitioner alleged to be disqualified upon the basis of facts set forth in his petition. The disal-lowance of these votes would have had the effect of changing the result, for the petition alleged that the votes as promulgated showed that 53 votes were cast for the defendant, W. O. Jackson, and 51 votes for plaintiff.

Defendant, Martin, Secretary of State, filed an exception to the jurisdiction ratione personae and ratione materiae and an exception of no right nor cause of action. Defendant, Jackson, filed exceptions of no cause and no right of action and a plea of estoppel. After hearing on the exceptions the same were sustained by the District Court and judgment rendered in favor of defendants dismissing plaintiff’s suit. From this judgment plaintiff has appealed.

There is no showing in the record as to the basis for the exceptions to the jurisdiction filed on behalf of the defendant, Martin, Secretary of State, but since there does not appear to be any contention on behalf of plaintiff against this particular ruling, it must be presumed that his prayer for relief in this respect has been abandoned and, accordingly, this point is excluded from our consideration.

Plaintiff contends that the failure to use voting machines in the election of June 14, 1955, was a violation of the mandatory provisions of LSA-R.S. 18:1165, and constituted a fatal defect rendering the purported election null, void and of no effect.

There is no question on the proposition that under Article VIII, § 7 of the Constitution of the State of Louisiana, as amended, LSA, the Legislature was duly authorized to provide for balloting in elections within the State by the use of voting machines. Nor is there any question as to the statutory enactment by the Legislature now set forth in LSA-R.S. 18:1165, the appropriate provisions reading as follows:

“On and after the date fixed by law for the holding of the first primary election in the year 1954 to nominate candidates of the political parties for members of the house of representatives of the congress of the United States voting machines shall be used throughottt the entire state of Louisiana in all elections provided by law * * (Emphasis supplied.)

If the above statutory regulation could be considered as merely advisory or directory in nature, there would be serious question as to the validity of plaintiff’s contention. However, reference to the above emphasized clause is convincing to the effect that the use of voting machines in all elections within the State, to be held after the date fixed, is mandatory and, therefore, is not susceptible to variation or exception.

Concededly the issue here presented is res nova, but we find a striking analogy in the holding of the Supreme Court in Hart v. Picou, 147 La. 1017, 86 So. 479. In the cited case the court interpreted a statutory provision with reference to the printing of ballots requiring numbered and detachable slips and held that the use of ballots which did not comply with the statutory provision rendered the entire election void, and that this conclusion did not depend upon proof of fraud. It is true that tire opinion of the court considered somewhat at length the purpose of the provision of the law, but, nonetheless, its conclusion was based upon the proposition that the statute providing for the printing of the ballot in accordance with specific directions constituted a mandatory provision.

It seems abundantly clear to us that the failure to use voting machines in the election of June 14, 1955, was a failure to follow the statutory requirement of law, which, as an inevitable consequence, involves the absolute nullity of the purported election. This is not a question of an unsubstantial irregularity but rather it is a fatal defect.

Learned counsel for defendant declares that:

“The law does not require them (voting machines) to be used in elections of this nature, and further if they are required by law, non-compliance with such a rule would be an irregularity only and would not in itself be grounds for rendering the election null and void.”

Counsel does not specify any authority for the position that voting machines are not required in “elections of this nature”, nor have we been able to perceive upon what grounds such a broad assertion can be predicated. When the Legislature provided “voting machines shall be used — in all elections provided by law,” we fail to understand how such an expression can be qualified by arbitrarily adding “except elections of a nature comparable to the municipal election in the Town of Converse.”

Nor, as we have above pointed out, can we be impressed with the assertion that non-conformance with the mandatory specification for the method of balloting should be considered as a mere irregularity.

It follows that, in our opinion, the exception of no right and no cause of action should have been overruled.

On behalf of defendant, however, it is further urged that this plaintiff is estopped from claiming relief by way of a judgment annulling the election inasmuch as he participated, in his capacity as Mayor of the Town of Converse and member of the Town Council, in the calling and holding of the election, thereby waiving any objections to its validity.

There is incorporated in the record what appears to be the minutes of a meeting of the Converse Town Council on April 8, 1955, in the course of which a resolution was adopted calling an ele'etion for the purpose of electing a Mayor, members of the Town Council and a Town Marshal, to be held on June 14, 1955. Careful examination of the resolution fails to disclose any reference to the manner of voting or to the preparation of the ballot itself. Nor is there any other evidence in the record which would justify sustaining the plea of estoppel as against plaintiff. However this may be as a factual proposition, we question whether the effect of such an estoppel could be construed as validating a proceeding which was completely null.

For the reasons assigned we are constrained to find that the District Court erred in sustaining the exceptions and pleas interposed on behalf of the defendant, W. O. Jackson, and it is now ordered, adjudged and decreed that the judgment appealed from be amended by overruling the exception of no cause of action, the exception of no right of action, and the plea of estoppel filed on behalf of defendant, W. O. Jackson.

It is further ordered that this case be, and it is, remanded to the Honorable the Eleventh Judicial District Court in and for Sabine Parish, Louisiana, for further proceedings consistent with this opinion.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    T. J. PAUL, Jr., Plaintiff-Appellant, v. J. E. GRAHAM et al., Defendant-Appellee.
    No. 8466.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Rehearing Denied March 2, 1956.
    Gordon B. Golsan, Jr., Mansfield, for appellant.
    Godfrey & Edwards, Many, for appellee.
   HARDY, Judge.

This is an action by an unsuccessful candidate for election to the office of Town Marshal of the Town of Converse, Sabine Parish, Louisiana; for judgment declaring the election for municipal officers for the said Town, which was held on June 14, 1955, to have been null, void and of no effect. Made defendants were J. E. Graham and C. A. Derrick, the other candidates for election to the office of Town Marshal, and Wade O. Martin, Jr., Secretary of State.

The instant case involves essentially the same facts and issues as the case of Isgitt v. Jackson, La.App., 85 So.2d 290, to the opinion of which reference is made.

In the instant case the record does not show any appearance by the defendant, Derrick. The defendant, Graham, filed exceptions of no right nor cause of action and exceptions to the jurisdiction ratione personae and ratione materiae, and exceptions of no right or cause of action were filed on behalf of the defendant, Martin. After hearing there was judgment sustaining the exceptions and dismissing plaintiff’s suit, from which he has appealed.

The issue in the instant case is restricted to the proposition that voting machines were not used in the conduct of the election, which, therefore, should be declared a nullity. No contentions of other irregularities enter into thi9 case.

For the reasons which we have assigned in our opinion in Isgitt v. Jackson, the judgment appealed from in the instant case is amended by overruling the exceptions of no cause and no right of action filed on behalf of defendant, Graham, and it is further ordered that this case be, and it is hereby, remanded to the Honorable the ' Eleventh Judicial District Court of Louisiana, in and for the Parish of Sabine, for further proceedings consistent with this opinion.


author: McBRIDE, Judge.

text:
    Frank L. WOLFF v. Matthew B. PICATACI.
    No. 20665.
    Court of Appeal of Louisiana. Orleans.
    Feb. 20, 1956.
    Boswell, Loeb & Livaudais, New Orleans, for plaintiff and appellant.
    Porteous & Johnson and Parnell J. Hy-land, New Orleans, for defendant and ap-pellee.
   McBRIDE, Judge.

This appeal involves only a question of fact. In the afternoon of April 16, 1954, plaintiff’s Plymouth station wagon came into collision with defendant’s Chevrolet pickup truck at the intersection of Audubon and Edinburgh Streets and sustained certain damage, both as a result of the collision and because the station wagon as a result of the impact ran into a parked vehicle. Plaintiff sued for his property damage in the amount of $162.11, and the suit was dismissed after a trial below. Plaintiff has appealed.

Plaintiff was driving on Edinburgh Street in the direction of Carrollton Avenue and the defendant was operating the truck on Edinburgh Street in the opposite direction. The plaintiff and his witness, Moore, who was standing at the corner, state that the truck attempted a sudden left turn into Audubon Street directly in the path of the station wagon, which was in close proximity, and that as a result the cars collided. It was the defendant’s intention to turn into Audubon Street. However, defendant inadvertently attempted to execute a right turn but, upon realizing his error, he says he straightened out the front wheels of his vehicle preparatory to turning left. Defendant’s statements are substantially corroborated by Williams who was riding in the truck. He denies he had started to negotiate a turn to the left. He explains the cause of the accident by saying that the station wagon came over and onto his side of the roadway as a result of its passing a vehicle parked to its right.

The trial judge undoubtedly believed what the defendant and Williams had to say. He, having seen and heard the witnesses testify, was in the superior position to weigh their testimony and to resolve the question of their veracity. We perceive no manifest error in his finding of facts or in the judgment.

The answer, in the alternative, alleges that the plaintiff was guilty of contributory negligence, one of the charges being that the station wagon was driven beyond the center of the roadway in an effort to pass the parked vehicle. Even if it could be said that the defendant was negligent, plaintiff himself was guilty of contributory negligence which would bar a recovery for his damage.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.


author: ELLIS, Judge.

text:
    Ervin B. WELDON v. SOUTHERN INDUSTRIES COMPANY.
    No. 4140.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.

      Gist, Murchison & Gist, Alexandria, for appellant.
    Wood & Jackson, Leesville, for appel-lee.
   ELLIS, Judge.

Ervin B. Weldon instituted suit for payment of a workmen’s compensation claim against the Southern Industries Company after that company discontinued his workmen’s compensation payments on July 8, 1954. Compensation for total and permanent disability is sought by plaintiff as a result of an injury sustained by him in his left knee while he was engaged in his employment by defendant company on September 24, 1951, subject to a credit for payments accrued.

It was alleged in plaintiff’s petition and admitted in the answer thereto that plaintiff has sustained an accident in the course and scope of his employment at a hazardous occupation for defendant company on or about September 24, 1951. Similarly, the proper compensation rate has been set at $30 per week and is not at issue. Neither is the amount of the compensation payments by the defendant company to the plaintiff in dispute, since it is agreed that compensation payments have been made from September 24, 1951 to July 8, 1954 (except for a short time during this period when plaintiff returned to work and received wages in lieu of compensation).

The defendant company contends that the injury to plaintiff’s knee is substantially cured and that plaintiff will regain the strength and use of his left leg if he will discard his crutch and return to light work. Alternatively, it contends that if plaintiff has any disability it results solely from plaintiff’s wilful refusal to cooperate with the attending physicians.

The trial court gave judgment for the plaintiff on April 5, 1955 and the defendant company has appealed suspensively and devolutively from same.

At the time of the accident, the plaintiff was employed as a bag machine operator. This employment, which involves moving rolls of paper up to six hundred pounds in weight, lifting and carrying a paste in a bucket from the container to the machines operated, lifting and carrying jugs of ink to the ink pans, pushing buggies loaded with the completed bags, and climbing fairly steep stairs to get boxes, may undoubtedly be classified as hard labor.

Upon sustaining the injury complained of, plaintiff reported to Dr. Charles L. Saint, who received' a monthly salary from defendant company and is in charge of the Elizabeth Hospital. Dr. Saint wrapped the injured knee with an ace bandage and instructed the plaintiff to keep off his feet. The plaintiff returned to the plant and the foreman instructed him to stay on and he would not have any heavy duties. After his return to work the plaintiff’s leg continued to pain and he again obtained permission to see Dr. Saint on October 4, 1951. At this time Dr. Saint immobilized plaintiff’s “left knee by the application of a plaster cast from his mid-thigh to his foot.” In approximately three weeks the cast was removed, but the condition had not improved and the plaintiff was referred to Dr. T. E. Banks of Alexandria, Louisiana, who specializes in orthopedic surgery. With plaintiff’s consent, Dr. Banks performed an operation which he deemed necessary under the circumstances, removing the lateral semilunar disc in the left knee, on November 9, 1951.

After a short post-operative rest, plaintiff returned to work on or about January 9, 1952 and worked, with lessened duties, until the first week in June. After repeated complaints he was sent to Dr. Banks on June 10, 1952, and surgery was again advised. It was postponed until June 27, 1952, due to severe respiratory infection, but at that time the medial miniscus, which was found to be torn transversely, was removed. Plaintiff acquiesced in this operation also.

From this time on, plaintiff felt the need of a crutch. For this reason, defendant company’s employees refused to let plaintiff return to work. It was proven on the trial of the case that plaintiff actually uses his crutch whenever he stands or walks, and its use is apparently not a ruse.

The plaintiff has constantly exercised his left leg by lifting weights of various sizes with it, by performing light chores around his home and farm, and by going hunting and fishing. These exercises are in line with the attending physician’s instructions and treatment, but it seems that they are unavailing. The concensus of the general practitioners and orthopedists called in as witnesses in this case is that there is considerable atrophy of the muscles in plaintiff’s left thigh and calf. In addition, an arthritic condition is present which originated with, or was aggravated by, the recent injury to the knee. It is generally conceded that there is some degree of crepitation under the patella and that both lateral and anterior instability of the knee joint are present. Dr. Saint, the company doctor, and Dr. Banks, who performed two operations to correct the injury in plaintiff’s knee, both admitted that plaintiff did have some disability. The third doctor called by defendant company, Dr. E. C. Campbell who is an orthopedist, estimated “an absolute minimum of twenty-five per cent disability of the left knee.” The four doctors called by the plaintiff all found disability to such a degree as would preclude plaintiff’s returning to his former employment which is classified as hard manual labor.

Many witnesses testified that the plaintiff was a hard, conscientious worker prior to his accident. In addition, most of the doctors considered that he was earnest in describing his subjective symptoms. It is apparent from the record that the plaintiff cooperated with the attending physicians to the best of his ability, consenting to two operations, returning to hard physical work after the first of these operations, exercising by lifting weights as directed and attempting to get as much exercise as possible under the circumstances. Only when he was ordered to walk without his crutch did he cease to cooperate. Considering the record as a whole, this refusal was merely due to the unreasonable degree of pain which he would suffer in so doing.

For the reasons assigned, the judgment appealed from is affirmed.


author: REGAN, Judge.

text:
    Louis J. COOK, Jr. v. Frank MIGLIORE.
    No. 20586.
    Court of Appeal of Louisiana. Orleans.
    Feb. 20, 1956.

      Morphy & Freeman, New Orleans, for defendant appellant.
    Eugene D. Brierre, New Orleans, for plaintiff appellee.
   REGAN, Judge.

Plaintiff, Louis J. Cook, Jr., the owner and operator of a Studebaker automobile, instituted this suit against the defendant, Frank Migliore, the owner and operator of a Chevrolet automobile, endeavoring to recover the sum of $220.93, representing damage incurred by his vehicle on August 23, 1954, at about 5 :15 P.M., as the result of an intersectional collision in Banks and South Scott Streets, in the City of New Orleans.

Defendant answered and denied that his negligence was the proximate cause of the accident and, in the alternative, pleaded the contributory negligence of the plaintiff.

From a judgment as prayed for, defendant has prosecuted this appeal.

The record reveals as usual two contradictory versions of the manner in which the accident occurred.

Banks Street is a thoroughfare having an ascending or riverbound and a descending or lakebound roadway separated by a neutral ground. South Scott Street is a paved “one way street” and extends from Tulane Avenue to Canal Street.

Plaintiff related that he was driving in the left lane of the lakebound roadway of Banks Street, moving about 25 or 30 miles per hour; when he was a short distance removed from South Scott Street he saw the defendant stop in South Scott Street where it intersects the riverbound roadway of Banks Street in obedience to a traffic sign. He then watched the defendant cross this roadway and enter the “neutral ground” area of Banks Street when he indicated the usual external manifestations of bringing his vehicle to a stop before entering the lakebound roadway of Banks Street; simultaneously and at the psychological moment, when plaintiff was satisfied that this roadway would remain clear and unobstructed, defendant drove in the path of his vehicle, causing the accident and resulting property damage to plaintiff’s automobile, which is the subject matter of this litigation.

Defendant testified that when his vehicle was in the neutral ground area of Banks Street he noticed plaintiff’s automobile approaching from his right about “a half block or so” removed from him. It was then that he decided to endeavor to cross the roadway. He then more pertinently related: “I thought I would go right on and then the first thing you know, somebody hit me in the back.”

The only question which was posed for both the trial court and our consideration is one of fact which the Judge below obviously resolved in favor of the plaintiff, and our examination of the record fails to disclose any error in his conclusion.

The accident occurred as the result of defendant leading the plaintiff to reasonably believe that he intended to stop in the “neutral ground” area of Banks Street; he changed his mind and decided to gamble on his ability to traverse the lakebound roadway at a moment when it was no longer within the realm of possibility for plaintiff to avoid the accident.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: GLADNEY, Judge.

text:
    John M. RUSHING, Plaintiff-Appellant, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellee.
    No. 8456.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Rehearing Denied March 2, 1956.
    John G. Gibbs, Natchitoches, James W. Gallman, Little Rock, Ark., for appellant.
    Theus, Grisham, Davis & Leigh, Monroe, for appellee.
   GLADNEY, Judge.

John M. Rushing, a resident of Natch-itoches Parish, Louisiana, has instituted this action for workmen’s compensation, and from a judgment rejecting his demands he has appealed.

The relief sought by plaintiff encompasses iniuries received in two separate accidents, the first of which occurred in the State of Arkansas and the second in Webster Parish, Louisiana, it being alleged that the second injury aggravated the pre-exist-ing one. Each of said accidents is.alleged to fall within the purview of workmen’s compensation coverage, and in each instance the respondent, Travelers Insurance Company, was the compensation carrier for the employer so involved.

On March 16, 1953, Rushing was employed in steel construction at Stamps, Arkansas, and while so engaged, he sustained an accidental injury to his back. The employee presented his claim to the Arkansas Workmen’s Compensation Commission and received compensation payments for twenty-eight weeks, covering the period from March 24, 1953 to September 30, 1953, at the rate of $25 per week, totaling $753.57, and medical expenses in -.the sum of $773.03. At the time of the accident plaintiff was employed by Ebasco Services, Inc., which company has never conducted any business within the State of Louisiana, and has no agent for the process of service designated in this state. Following his injury on March 16, 1953, plaintiff received medical treatment for relief of his back, from Dr. D. F. Overdyke, Jr., and examinations from other doctors. During the early part of 1955, Dr. Over-dyke performed an operation for a lumbo-sacral fusion for the purpose of correcting spondylolisthesis of the fifth lumbar vertebra, which although congenital in origin, was stated by Dr. Overdyke to have been aggravated by the accident of March 16, 1953.

On October 13, 1953, plaintiff sustained a second injury in Webster Parish, Louisiana, when, while employed by the American Surface Combustion Corporation, a heavy steel frame fell upon his foot. The employee reported to Dr. R. B. Van Horn of Minden on the date of the injury. This doctor bandaged the foot and testified that X-rays taken at the time disclosed no fractures. His diagnosis was a contusion of the foot. The patient was fully discharged as of October 28th as able to resume his work. On October 15, 1953 Rushing reported to Dr. Ford J. Macpherson, orthopedic surgeon of Shreveport, who examined the injured foot and made a diagnosis of “contusion with ecchymosis of the metatarsoph-alangeal region of the left foot.” His foot was dressed and the patient was advised to remain away from work until October 19, 1953, after which time the doctor anticipated no further disability. On November 11, 1953, Rushing reported to Dr. Thomas R. Simpson of Shreveport, relating to him a history of the foot injury on October 13, 1953. After an examination, Dr. Simpson found plaintiff to be suffering from epider-maphytosis or Athlete’s Foot, complicated by a secondary infection. During the treatment the patient was hospitalized for a period of five days and released on November 18, 1953, as fully recovered. According to the testimony of Drs. Van Horn, Macpher-son and Simpson, plaintiff did not complain to them that the injury of October 13th affected the back injury which occurred on March 16, 1953.

Counsel for appellant earnestly contends that the two injuries sustained by plaintiff are related in that the first injury was aggravated when plaintiff, in order to extract his foot from under the steel frame, pulled and jerked until the old injury in his back was “antagonized”. In support of this contention plaintiff relies upon the testimony of Drs. D. F. Overdyke, Jr. and W. H. Pierson, of Natchitoches, Louisiana. Dr. Overdyke testified:

“In conclusion, the only statement that I can make referable to this, is that if the accident to the foot resulted in the exertion of any unusual force through or to the lower extremity or any unusual sharp or awkward motion to the low back, it could have aggravated the already existing condition.”

Dr. Pierson, a general practitioner, admitted that his opinion was predicated' upon, a physical examination without X-rays, and was based largely upon the written report of Dr. Overdyke. Further pertinent evidence is revealed in the testimony of D'r. Overdyke with respect to X-ray pictures of plaintiff’s back taken September 22, 1953, by Dr. Overdyke and February 16, 1954, by Drs. Gray, Calhoun & Scruggs of Little Rock, Arkansas. Dr. Overdyke testified following examination and comparison that the two X-rays were identical and that no change was reflected in plaintiff s hack condition between the period of September 22,1953, and February 16, 1954.

Another factor which throws some light upon the question of relationship between the two injuries is the work record of plaintiff. By stipulation in the record it is shown Rushing was gainfully employed in construction work during the year preceding January 19, 1955, during which time he earned a total of $3,225.13.

In argument before this court, it is earnestly contended on behalf of appellant that recovery should be permitted as of permanent and total disability, commencing from October 13, 1953; secondly, in the alternative, that such compensation should begin on March 16, 1953, and compensation paid by reason of entitlement under the Louisiana statute; and, third, also in the alternative, that the trial court should have applied the Arkansas Workmen’s Compensation Law and awarded plaintiff compensation under and by virtue of said act for a period of 450 weeks, commencing on March 16, 1953, at the rate of $25 per week, the whole not to exceed $8,000.

A careful review of the evidence has convinced this court, as it did the trial judge, that plaintiff failed to make out his case through showing to a legal certainty that he sustained a compensable injury on October 13, 1953, or that said accidental injury aggravated or contributed in any wise to a pre-existing injury sustained in Arkansas on March 16, 1953.

Our rejection of counsel’s contention the accident of October 13, 1953 has produced a justiciable controversy customarily would dispose of this case, but we are impelled to elaborate somewhat on appellant’s alternative demands. The Louisiana Workmen’s Compensation Act, LSA-R.S. 23:1021 et seq., can in no wise be said to have any application to plaintiff’s employment accident in Arkansas on March 16, 1953. The testimony of certain union officials that they were requested to send a certain number of steel men to Stamps, Arkansas, for employment falls short of showing that the contract of employment between plaintiff and Ebasco Services, Inc. was consummated in Louisiana. Even though plaintiff was a citizen of Louisiana at the time of his employment in Arkansas all other factors clearly indicate the Arkansas Workmen’s Compensation Commission and the courts of Arkansas were vested with full and complete jurisdiction over the rights of plaintiff to assert compensation against Ebasco Services, Inc.

When this suit was instituted the defendant filed the following exceptions, all of which were directed at the court a' quo assuming jurisdiction of the rights of the plaintiff arising out of the injuries received in Arkansas on March 16, 1953; exception to the jurisdiction ratione personae; exception to the jurisdiction ratione materiae; exceptions of no cause or right of action; and exceptions of improper accumulation of actions and res judicata. The trial court obviously preferred to try the case on its merits, and in referring the exceptions to the merits, pointed out in its written reasons for judgment that all rights to the exceptions were reserved. The defendant before this court does not urgently insist upon the exceptions. Counsel for appellant contends that the exceptions have been waived.

There can be no question that the trial court was vested with jurisdiction to consider the question of the injury of October 13, 1953, which occurred in Webster Parish. Certainly also, action on said claim was properly brought against the insurer without the employer being made a party defendant. The State of Arkansas, however, does not have a direct action statute and consequently if suit on plaintiff’s accident of March 16, 1953, had been brought in the State of Arkansas an action would not lie against the insurer alone. Under the Louisiana Workmen’s Compensation Act and especially LSA-R.S. 23:1313, suits against the insurer are thusly restricted:

“Suits in which the insurer is a defendant which arise out of accidents that happened in the State of Louisiana may be filed at the domicile of the employer or in the parish where the accident occurred and at no other place, whether the action is direct against the insurer alone, or whether the employer is joined therein. Suits arising out of accidents which occurred in other states where the courts of Louisiana have jurisdiction may be filed against the insurer in the Parish of East Baton Rouge. The insurer shall in all things be bound by and shall be subject to the awards, judgments, or decrees rendered against the insured.”

We deem it unnecessary to examine whether or not there is merit to the exceptions, or if in fact, they have been abandoned. We are fully convinced from the evidence adduced in his case that the accident sustained by plaintiff on March 16, 1953, presents a separate and distinct claim wholly disconnected from the foot injury received October 13, 1953. It is also clear that full and complete jurisdiction under the Workmen’s Compensation Law of the State of Arkansas, Act 319 of the Acts of the General Assembly of 1939, as amended and revised by Act 4 of 1948, Ark.Stats. § -81 — 1301 et seq., rests with the Arkansas Workmen’s Compensation Commission and the courts of said state. It is further shown that plaintiff has already presented to and the Arkansas Workmen’s Compensation Commission has made an adjudication as to plaintiff’s claim. Under these circumstances it is manifestly unwise and unnecessary for this court to consider judicial issues which peculiarly fall within the jurisdiction of the Arkansas Commission and the courts of said state. See: Burton v. Lester, 1955, 227 La. 347, 79 So.2d 333; United States Fidelity & Guaranty Co. v. Savoy Grill, 1936, 51 Ohio App. 504, 1 N.E.2d 946; Maryland Casualty Co. v. Boyle Const. Co., 4 Cir., 1941, 123 F.2d 558 and Illinois Cent. R. Co. v. Bullock, 5 Cir., 1950, 181 F.2d 851, and Annotation 135 A.L.R. 934.

For the foregoing reasons it is our considered opinion that the judgment from which appealed is correct and it is hereby affirmed.


text:
    Ewell A. BAILEY, Plaintiff-Appellee, v. NATIONAL BANKERS LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 8468.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.

      George W. Fort, Minden, for appellant.
    Graydon K. Kitchens, Minden, for ap-pellee.
   HARDY, Judge.

This is a suit for benefits under a health and accident policy issued by defendant, and defendant appeals from a judgment in favor of plaintiff.

The particular claim which is here asserted comprehends expenses of hospitalization from date of August 31, 1954, to November 27, 1954, which expenses were incurred by reason of hospital and medical attention accorded the minor daughter of plaintiff. The defense is based upon a provision of the policy under “Limitations and Exclusions”, which reads in part as follows :

“Any loss or disability resulting wholly or partly in or from * * * cancer * * * shall be covered only if the cause thereof originates after this policy has been in continuous force for the preceding six months * *

The Chronological history of the illness and hospitalization of defendant’s daughter, Mary Ellen Bailey, with relation to the above noted provision of the policy may be set forth as follows:

1. Effective date of issuance of policy, December 14, 1953.

2. Accidental injury to arm incurred by Mary Ellen Bailey at school on March 15, 1954.

3. Consultations with doctors, with relation to the injury, March 30th, May 18th, 29th, and June 8, 1954.

4. Removal of tumor, June 15, 1954.

5. Report on biopsy, June 17, 1954.

6. Surgical operation for amputation of arm performed June 17, 1954.

7. Patient discharged from Schumpert Sanitarium, Shreveport, Louisiana, June 21, 1954.

8. Patient re-admitted to Schumpert Sanitarium August 23rd and discharged August 27, 1954, under diagnosis of and treatment for acute cystitis.

9. Patient re-admitted to Schumpert Sanitarium under diagnosis of poliomyelitis, August 31, 1954.

10. Condition of patient after laboratory tests diagnosed as cancer, September 13, 1954.

11. Treatment of patient for poliomyelitis discontinued and treatment for cancerous recurrence and metastasis undertaken September 14, 1954.

12. Patient transferred to Minden Sanitarium, Minden, Louisiana, from Schum-pert Sanitarium, Shreveport, Louisiana, on October 6, 1954.

13. Patient died November 27, 1954.

Plaintiff seeks to recover hospitalization and medical expenses incurred from date of August 31st to date of his daughter’s death, November 27, 1954.

In our opinion the facts involved have been preponderantly established, namely, that it was determined by the report of a bioscopic examination on June 17, 1954 that Mary Ellen Bailey was suffering from a sarcoma, which had developed at an indeterminate time, but one which clearly antedated the examination by a period of weeks or months.

It is also established that Mary Ellen Bailey was admitted to the Schumpert Sanitarium on August 31, 1954 under a diagnosis of poliomyelitis or post-polio complications, and was treated for this disease until September 14th, at which time a diagnosis of cancer, having beén established and confirmed, the treatments being inconsistent, the patient was relieved from further remedial polio treatments and subjected to treatment for her acute cancerous development.

Under these facts there can be no question but that the loss, that is, the in-currence of hospital and medical expenses for treatment of plaintiff’s decedent daughter resulted from cancer, which pre-existed the limitation of loss provisions under defendant’s policy as above quoted.

However, the facts of the instant case are complicated by reason of the hospitalization of Mary Ellen Bailey on August 31, 1954 under a diagnosis of poliomyelitis, which diagnosis, we think, has been established in the instant case. Therefore, it follows that the hospitalization and medical treatment of Mary Ellen Bailey from August 31st until September 13th was one which, under the terms of the policy, constituted a loss to the insured. After September 13th the record is equally conclusive on the point that Mary Ellen Bailey was treated for a cancerous condition which had its inception prior to the six months’ limitation period incorporated in the policy, and which, therefore, was not compensable by the insurer

It is true, as contended by zealous counsel for plaintiff, that defendant has not proven the definite date of inception of the cancer from which the decedent suffered, but we think it is indisputable that defendant has proved the existence of the cancer prior to the six months’ limitation date of ' the policy!

A considerable portion of the record in this case is devoted to the attempt to prove the bad faith of this defendant in the negotiations with, plaintiff with reference to this claim, but we are not impressed with this position. In fact, it is clear to us that defendant compensated plaintiff under the terms of the policy for hospitalization arising from the accidental injury of March 15th when there was at least a serious question as to its liability therefor. It follows that counsel’s sincere and insistent argument with respect to the liability of defendant for penalties in the instant case is without foundation.

In our opinion the consistent conclusion of the existence of cancer dates back beyond the effective date of the policy, June 14, 1954, and, if this contention constitutes plaintiff’s only claim for recovery, it should properly be rejected. However, the admission of Mary Ellen Bailey to the Schumpert Sanitarium on August 31, 1954, under the diagnosis of poliomyelitis, or post-polio complications, cannot be disregarded, and, from this date, until the conclusive finding of cancer as the cause of her condition on September 13, 1954, represents a period for which plaintiff should be compensated under the policy.

We have found some difficulty in the attempt to reconcile the statements of the Schumpert Sanitarium from date of August ■31, 1954 to September 13, 1954, inclusive, with the items, of recovery which are specifically permitted under the policy, but have reached the conclusion that the policy provisions limit plaintiff to recovery, under the statements incorporated in the record, to the total sum of $127.55.

We do not think, under the circumstances of the case, that plaintiff is entitled to any recovery aside from the period between August 31st and September 13, 1954.

For the reasons assigned the judgment appealed from is amended by reducing the amount awarded plaintiff against this defendant to the principal sum of $127.55, and as amended it is affirmed at appellant’s cost.


author: AYRES, Judge.

text:
    Shepherd HIMES, Sr., et ux., Plaintiffs-Appellees, v. Robert G. AVINGER, Encyclopedia Britannica, Inc., and Travelers Indemnity Company, Defendants-Appellants.
    No. 8472.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Rehearing Denied March 2, 1956.

      Blanchard, Goldstein, Walker & O’Quin, Shreveport, for appellants.
    Myers, Gatti & Egan, Shreveport, for appellees.
   AYRES, Judge.

.The plaintiffs, Shepherd Himes, Sr. and his wife, Tara Robinson Himes, as the parents of Shepherd Himes, Jr., a minor 15 years of age, seek recovery of damages as the result of their son’s wrongful death in an accident occurring April 29, 1954, about 11:45 P.M. on Hollywood Avenue near the outskirts of the City of Shreveport by being run into and knocked from a motor scooter, on which he was riding as a passenger, by an automobile owned and driven by Robert G. Avinger. The defendants are Avinger, Encyclopedia Britannica, Inc., Avinger’s alleged employer, and Travelers Indemnity Company, the employer’s liability insurance carrier.

The case was tried with intervention of a jury, which rendered a verdict in plaintiffs’ favor and against the defendants, in solido, for $10,000 for each of the plaintiffs, plus $337.50 for funeral expenses incurred in the interment of their deceased son, and $150 as damages sustained to the motor scooter.

Judgment was rendered and signed pursuant to said verdict, and the defendants, Encyclopedia Britannica, Inc. and Travelers Indemnity Company, have perfected appeals to this court. Avinger did not appeal.

That the proximate and sole cause of the accident and of the son’s death was the negligence of Avinger as the driver of the automobile striking the motor scooter upon which their son was riding as a passenger, is thoroughly established by a great preponderance of the evidence. In fact, the evidence does not admit of any doubt as to the circumstances of the accident and the liability of the defendant. On the occasion of the accident, Shepherd Himes, Jr., was returning with his brother, Sherman Himes, from work at a grocery store to his home on Tate Street. They were traveling in a westerly direction along Hollywood Avenue, which was the most direct and reasonable route from their employment to their destination. They were riding a Cushman motor scooter operated by Sherman Himes, on the rear of which scooter Shepherd Himes was seated and riding as a passenger. The vehicle was equipped with both head lamps and tail lights, both visible at the time. Avinger, in a Ford Victoria automobile, was likewise traveling in a westerly direction on Hollywood Avenue and approached the motor scooter from the boys’ rear. Although there were no other cars in the immediate vicinity and no obstruction to his view, Avinger continued forward, struck the motor scooter and inflicted injuries upon Shepherd Himes, Jr., rendering him unconscious, and from which he died within possibly one-half hour subsequent to the accident. Avinger was guilty of numerous acts of negligence, primarily that of operating a motor vehicle while he was in an intoxicated condition. No real effort was made by counsel for that defendant to avoid liability. In fact, defendants, which have appealed, in brief, state the negligence of Avinger in causing the death of the plaintiffs’ son is undisputed.

The sole issues presented for determination on this appeal are (1) whether Avinger wa9 an employee of Encyclopedia Britannica, Inc.; (2) if so, whether at the time of the accident he was performing duties within the course and scope of his employment, and (3) if so, whether the amounts awarded the plaintiffs by the jury and approved by the trial court are excessive.

Plaintiffs ■ have not answered the appeal.

From the record it is established that the Travelers Indemnity Company had issued to Encyclopedia Britannica, Inc., and which was at the time of the accident in effect, a public liability and property damage insurance policy covering and protecting it against any and all losses for which it may be responsible sustained by the operation of motor vehicles not owned by it, which policy is denominated “Employer’s Non-Ownership Liability” policy. This insurance coverage did not extend to Avinger himself or to the operation of his automobile except insofar as such liability may have extended to Encyclopedia Britannica, Inc. In other words, if that concern was liable, then the Travelers Indemnity Company is likewise responsible.

The issues enumerated hereinabove will now be considered in the order stated. We are convinced, however, from our examination of the record that the evidence preponderates in plaintiffs’ favor upon the two principal contentions. There is little room for doubt that it lias been established to that required degree of legal certainty that Avinger was a servant, agent and employee of Encyclopedia Britannica, Inc., and that at the time of the accident he was performing his duties .within the course and scope of his employment. The written contract itself, without the aid of the additional evidence, amply establishes the employer-employee relationship between Encyclopedia Britannica, Inc. and Avinger. By this contract, effective as of January 1, 1954, ■ the Encyclopedia Britannica, Inc., employed Robert G. Avinger as its district manager over a territory comprising eleven parishes in northwest Louisiana for the promotion of the sales of its publications. For his compensation he was to be paid a commission with additional compensation termed a “quality bonus” for sales made personally by him. Avinger was required by the terms of the contract to devote his entire time and attention to the performance of his duties as prescribed therein, and it was stipulated that he was to have no other employment of any kind. It was particularly recited that he “shall exercise and carry out his powers and duties subject to such directions and instructions as the Company may from time to time confer or impose upon him.” The Company reserved the right to enlarge or diminish the territory assigned to Avinger or to transfer him to another territory and to alter the rate of his commissions or compensation and to terminate his employment at its option on giving him notice. The Company agreed to finance the sales and sales promotion of its publications and to charge said expenses against Avinger’s commissions. Avinger was authorized as district manager to enter into contracts with other prospective agents, in accordance with forms provided by the Company and at such terms as it might stipulate, with the authority, however, that he might discharge such before they established a rating with the Company, otherwise such dismissals or the dismissal of representatives furnished him by the Company could only be with its consent. The manner in which Avinger might further conduct the business was further restricted and controlled by specific instructions and sales talks furnished by the Company. Any other method was apparently prohibited.

Additional evidence shows that the Encyclopedia Britannica, Inc., maintained an office at 4533 South Fairway in the City of Shreveport, of which Avinger was manager and in which office a telephone was installed on its order to the Southern Bell Telephone Company and which was listed in its name.

According to Avinger’s testimony, he was employed by a Mr. McSwain, divisional manager for Encyclopedia Britannica, Inc., and that, in accordance with the terms of the contract, his territory had been enlarged to extend from Marshall, Texas, to Jackson, Mississippi, and from Alexandria, Louisiana, to the Arkansas line. In the performance of his duties under his contract of employment, the use of an automobile was indispensable. From the nature of his work and the extent of his territory in. this modern day and time, this is self-evident. He testified, however, that the use of an automobile was very necessary to his work and that had he not had the use of a motor vehicle he could not have secured the job.

Encyclopedia Britannica, Inc., contends that Avinger was an independent contractor. In Coon v. Monroe Scrap Material Co., 191 So. 607, 610, this court, through the late Judge Taliaferro as the author of the opinion, in referring to a salesman who at the time of an accident was engaged in his employer’s business and performing duties he was employed to perform, the employer having a right to direct the salesman’s action, stated:

“It is fundamental to the existence of this relationship that there must be absolute independence of action on the part of the contractor in the execution of the work assumed by him. If the contractee has the power to interfere with or control the manner of execution or performance, then the contractor ceases to be independent. His status degenerates into that of an employee or servant. See Gallagher [Gallaher] v. Ricketts, La.App., 187 So. 351.
“In the present case, as touched upon supra, defendant unquestionably had the power to direct and control Ablon in the performance of the weightier phases of his duties. It will not do to say that one who supplies all the equipment needed in the performance of services of the character we are discussing, and who advances the cash money indispensable to the successful conduct of the work, has not the inherent power to wield a deciding and controlling influence upon the person doing the work. He is wholly dependent upon the will of his employer because, without the financial assistance and the free use of the equipment, the work could not be performed. See: Dinet v. Orleans Dredging Co., Inc., La.App., 149 So. 126; Goff v. Sinclair Refining Co., La.App., 162 So. 452.”

In Nesmith v. Reich Bros., La.App., 14 So.2d 325, 326, plaintiff sued for workmen’s compensation for injuries sustained as the result of a collision between a truck operated by him and that of another on a highway in Grant Parish. One defense was that plaintiff was an independent contractor and the relationship was not that of master and servant. Reich Brothers had a contract with an agency of the United States Government to haul and deliver limestone rock from a pit near Pollock to Camp Livingston for use in the construction of roads in the camp. The rock had to be transported by truck. An agreement was made with plaintiff to haul rock with his truck. Plaintiff engaged two helpers, who, with himself, drove the truck eight hours per day. While standing on the road side awaiting the arrival of his truck, a truck approached at a rapid speed, and on its approach suddenly swerved to its left and crossed the road, striking and injuring plaintiff and inflicting the damages of which he complained. Under the agreement plaintiff was not obligated to haul a specific quantity of gravel or rock; no term for the duration of the contract was fixed. Pie was subject to the orders of his employer and performed his duties as directed by its agents. He was required to operate his truck without cessation. He did have the right to select his own helpers, fix their rate of pay, and discharge them at will. After considering these facts, this court stated:

“The undisputed facts of the case negative the idea that plaintiff, in legal contemplation, was independent as regards his contractual relations with and duties to his employer. He was working for a specified recompense but not for a specified result, and was under the control of his principal as to the means and methods by which the work was to be accomplished. He enjoyed no power of discretion as to when the work should be done since he was required to work twenty-four hours of each day. His discharge was a matter entirely within the volition of his principal and could have been done without recourse of any character by him against his employer. The fact that plaintiff could hire and discharge his helpers, fix their rate of pay, and use his own truck in the performance of his duties, does not alter the true relations of the parties. An employee may employ another to assist him in the performance of work assumed by him and at the same time be and remain an employee quoad another.
“The case of Litton v. Natchitoches Oil Mill, Inc., La.App., 195 So. 638, 641, is practically on all-fours with the present case. We said therein: ‘When the facts of the instant case are considered in the light of the above cited authorities, it appears that R. L. Litton occupied the status of an employee; and compensation was correctly awarded for his death. There was no employment for a specific length of time or for the hauling of a definite quantity of seed. He was permitted to haul only such quantities and kinds of seeds and at such times as the Oil Mill officials directed, and his working from day to day depended entirely on their will. Existing, therefore, was the right to interfere with and have practical control and supervision over decedent, as referred to in the aforementioned cases.’ ”

In Jones v. Shehee Ford Wagon & Harness Co., Inc., La.App., 157 So. 309, it was held that the test of whether a driver of a truck was an independent contractor as respects the automobile owner’s liability for injuries caused by a driver’s negligence was not that owner did not exercise right of control or direction of driver but that the owner had the right under the contract of employment to exercise right of control or direction. This ruling was affirmed on the review of this case by the Supreme Court in 183 La. 293, 163 So. 129, 132, wherein it was stated:

“The evidence on the subject is conclusive and undisputed that the driver of the Ford car was employed as a salesman for the Shehee-Ford Company, at a regular salary, and not on a commission basis, and that in the rendering of his services he was under the direction and control of his employer, and was subject to discharge if he did not obey the directions of his employer. That means that he was not an independent contractor, but an employee.”

The case of McAllister v. Jackson Brewing Co., La.App., 6 So.2d 179, presents a factual situation very similar to the instant case. There it was held that the evidence established that a brewing company’s salesman was required to use his own’ automobile; that the company' paid the expense of the maintenance and operation of the automobile but carried liability insurance covering its operation, and that the salesman acted under orders from his superiors, showed that salesman was company’s employee even though he had some discretion concerning minor details in making calls, and that he was acting as a servant in the course of his employment at the time of an accident when driving to a sales meeting and, hence, that the company and its liability insurer were liable under the doctrine of respondeat superior for injuries sustained by another employee who was accompanying salesman. There, as here, the employee was required to use his automobile in the performance of his duties, and as a result of which the accident occurred.

Although we have stated that the tcrm9 of the contract are sufficient to show the relationship of employer and employee, or master and servant, yet the additional evidence adduced on the trial adds weight thereto. It should be borne in mind, however, that in cases of this nature, each must be determined upon its own particular facts, and that every circumstance considered by the court in formulating its opinion may’not of itself, if treated separately, be sufficient to indicate the true relationship of the parties. In such a situation, all the facts and surrounding circumstances should be weighed and considered, and when we consider all the facts and circumstances of this case, as shown by the evidence adduced on the trial, we are only strengthened in our conviction of the correctness of our interpretation of the written contract.

We are here reminded of a statement ■by Justice Spencer in Johnson v. Mayer, 30 La.Ann. 1203, 1206, made in referring to evidence from which decisive conclusions might be formed, which reads:

“These are small and apparently trifling circumstances, when weighed against the high-sounding -periods of an authentic act. But straws are better indicators of the course of the wind than are the marble columns of some imposing temple. It is at unguarded moments that truth eludes the vigilance of fraud and exposes it to detection. ‘Trifles light as air’ may become ‘confirmations strong as proofs of Holy Writ.’ ”

There is no question in our mind, after giving thorough consideration to all the facts and circumstances of this case, construed under the principles thoroughly established in the jurisprudence of this State, that no other conclusion could be reached than that Avinger was an agent and employee of Encyclopedia Britannica, Inc.

Next for consideration is the question of whether or not at the time of the accident Avinger was acting within the course and scope of his employment. Avinger was in the exclusive employment of the Encyclopedia Britannica, Inc. His employment extended to and covered twenty-four hours per day. He was prohibited from engaging in any other work or undertaking. From the record, we gather, that the most opportune time of the day for him to perform the services for which he was employed was during the early evening hours following the evening meal, when he could more nearly contact both husband and wife at their home in his endeavor to- sell his Company’s publications, particularly a set of Encyclopedia Britannica. On the date of this accident, he left his home and defendant’s office at about 6:30 P.M., drove to the homes of two or three ladies who were engaged by him in addressing cards or other literature to be mailed to prospective customers. On those occasions he picked up cards and literature already addressed and delivered other cards and literature to be similarly handled. In addition, he visited the home, between 9:00 and 11:00 of one of his salesmen, who was contemplating leaving his employment and taking work elsewhere. His purpose was to persuade this party to remain in his Company’s employ, or, if he was unable to do So, to pick up the Company’s property which this salesman had in his possession. This consisted of a salesman’s kit, various literature, documents and forms. Apparently Avinger was unsuccessful in prevailing upon this party hut he did obtain the salesman’s kit and other effects belonging to his Company. On leaving that residence Avinger began his return trip to the Company office, where he was to leave the Company literature and the addressed cards and literature, which he was to sort, package and mail the following day. It was while on this return trip that this unfortunate accident occurred in which a young boy lost his life.

Because of immaterial and unimportant discrepancies in Avinger’s testimony, particularly as to the exact time he visited the several places on the night of this accident and as to his return journey, defendants question the correctness of Avinger’s otherwise concise statements of the occurrence. We cannot attach the importance to this phase of his testimony that counsel does, as, to us, it does not serve to discredit the general chronology of his actions.

Counsel stresses the fact that Avin-ger stopped at a grocery store at about 8:00 o’clock and purchased some groceries, which act it is contended was a matter personal to him and a departure from his employment. That is a matter of no importance or consequence as Avinger was still engaged primarily about his employer’s business. It is conceivable that he might have also engaged in matters of personal interest along with that of his employer’s business, and, if he did, that would afford defendants no relief. Even so, it was after that time that Avinger visited the other employee, endeavored to obtain a promise that he would remain with his employer, and, on his failure to do so, obtained the company materials, which, together with the literature above referred to, he was transporting to the company office when the accident occurred. Avinger clearly had not departed from the duties of his employment, or, if it be conceded that he had, the evidence establishes that he had re-entered upon the duties of his employment and was performing same at the time the accident-occurred.

Defendants further complain that plaintiffs were permitted to call Avinger as a witness as on cross-examination and to utilize his testimony against the appellants. Litigants are permitted to call their opponents under cross-examination pursuant to the provisions of LSA-R.S. 13:3662-3664, without vouching to the court for the credibility of such witnesses. If it he conceded that this was an error under Section 3663, which is unnecessary for us to determine at this time, the error and irregularity complained of has ceased to carry any importance or significance. We do recognize, however, that the statute does not, in all cases, extend the right and privilege of a litigant to cross-examine one defendant as against his co-defendant. Edwards Bros. v. Berner, 154 La. 791, 98 So. 247; Driefus v. Levy, 140 So. 259.

In this case, the defendants were allowed' the -privilege of an unrestricted and thorough cross-examination of their co-defendant, where testimony as to the same facts was elicited. Moreover, Avinger’s counsel called him as a witness. The testimony of other witnesses corroborated Avin-ger’s testimony upon every essential point on which he testified, as to the visits made by him, as to the cards delivered for addressing and as to the literature picked up for mailing, except as to his visit to the home of the employee, Meyers, who had apparently removed from the City and was not available for service by either plaintiffs or defendants; but, as a physical fact at the time of the accident, Avinger’s car contained the materials and effects of the Company which Avinger testified he had procured from Meyers and the other literature which he returning to the office for processing and mailing.

As was stated in the Edwards case, supra, the ruling of the court was of no serious importance and it is entirely harmless to the defendants under the facts and circumstances detailed above. Even in the Driefus case, it was held that where the testimony elicited under cross-examination was not necessary to a decision of the case, only harmless error was committed.

The remaining qüestion is as to the quantum of the award. The jury awarded $10,000 to each of the -parents, together with an additional sum of $487.50 to the father representing the funeral expense for their minor son and damage for the loss of the motor scooter upon which he was riding at the time he was killed. A search of the record fails to disclose any evidence whatsoever as to these two items of 'damages. Accordingly, they have not been proved or established and will have to be rejected.

Plaintiffs were married in 1937 and their deceased son, their oldest child, was born in 1938. At the time of the accident he was fifteen years of age. He was a student at the Booker T. Washington High School. He was studious and diligent in his work and made excellent grades. Both he and his brother were engaged in -employment at grocery stores. His earnings, other than a small amount expended for his own personal use, were placed to his savings in anticipation of his attending Grambling College. According to the record, his conduct had always been exemplary and commendable, a matter of joy and happiness to his parents. As shown by his actions, he loved his parents and his home and they reciprocated his affection. His nights were spent at home other than a few with his grandparents across the street. That plaintiffs have suffered greatly in the loss of the love, affection and companionship of their son is apparent. His death was grievous to them, inflicting immeasurable pain, grief and suffering upon them. The deceased was evidently a lad of excellent character and above the average in intelligence and industry. There can be no question as to the justification for an award of substantial damages. After giving due consideration to the verdict of the jury and the facts and circumstances of this case and to the greatly increased costs of living and the depreciation of the value of currency, we are unable to conclude that the award is excessive.

Accordingly, for the reasons herein assigned, the judgment appealed is amended by reducing the award of Shepherd Himes, Sr., from $10,487.50 to $10,000, and, as thus amended, the judgment is affirmed at appellants’ cost.

Amended and affirmed.


text:
    Albert J. FRANSEN, doing business as Industrial Steel Company, v. Joseph RANZINO.
    No. 20639.
    Court of Appeal of Louisiana. Orleans.
    Feb. 20, 1956.

      Defendant-appellant unrepresented.
    James Thomas Connor, New Orleans, for plaintiff-appellee.
   REGAN, Judge.

Plaintiff, Albert J. Fransen, conducting his business under the trade name of Industrial Steel Company, instituted this suit against the defendant, Joseph Ranzino, endeavoring to recover the sum of $529.34 for furnishing and installing ornamental iron work in defendant’s residence during the months of December, 1952 and January, 1953.

Defendant answered and admitted the satisfactory performance of the foregoing work, but asserted that plaintiff had initially agreed to the installation thereof for the sum of $315, $125 of which has already been paid on account thereof, leaving only a balance due of $190.

From a judgment in favor of plaintiff “for $529.34 less a credit of $125.00,” defendant has prosecuted this appeal.

Plaintiff answered the appeal and requested that he be permitted to recover 10% of the amount of the judgment rendered herein as damages for a frivolous appeal.

Defendant is not represented by counsel, he made no appearance when this case was set for argument, nor has he filed a brief herein.

A careful examination of the record discloses that it amply sustained the judgment rendered by the lower court.. The appeal obviously was taken for delay and is, therefore, frivolous. The facts revealed herein warrant imposition of the penalty permitted by virtue of Article 907 of the Code of Practice. However, it is our opinion that a penalty of 5% is sufficient under the circumstances. Columbia Finance, Inc., v. Romaguera, La.App.1949, 40 So.2d 749.

For the reasons assigned the judgment appealed from is affirmed with 5% thereof additional as damages for a frivolous appeal.

Affirmed.


text:
    Ben F. REAGOR, Plaintiff-Appellant, v. FIRST NATIONAL LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 8421.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Rehearing Denied March 2, 1956.

      Comegys & Harrison, Shreveport, for appellant.
    Normann & Normann, New Orleans, Ferris & Achee, Shreveport, for appellee.
   HARDY, Judge.

This is a compensation suit in which, after trial on the merits, plaintiff’s demands were denied and he has appealed.

The original petition was filed November 19, 1945. Defendant’s exception of no right and no cause of action was sustained by the District Court and plaintiff’s suit dismissed. This judgment was affirmed by this court in Reagor v. First National Life Insurance Co., 28 So.2d 527. Writs were granted by the Supreme Court, which rendered judgment reserving plaintiff’s right to supplement his pleadings and remanding the case to the First Judicial District Court for further proceedings, 212 La. 789, 33 So.2d 521. Subsequent to the judgment of the Supreme Court plaintiff filed an amended and supplemental petition, and, again, defendant interposed an exception of no right and no cause of action, which was overruled. After answer by defendant the case was tried on the merits. Trial was begun on May 13, 1949, according to the minutes of the District Court which are incorporated in the record, and was concluded on May 17, 1949, the minute entry for said date reading:

“Trial resumed. Evidence further adduced, closed and case continued for argument.”

On May 21, 1954, counsel for defendant filed a motion to dismiss, the ground for which was set forth therein as follows:

“The plaintiff, before obtaining final judgment in this suit, has allowed five years to elapse without having taken any steps in the prosecution thereof and therefore has abandoned this suit.”

Pursuant to the above motion a rule to show cause, directed to plaintiff, was issued, in answer to which rule plaintiff denied the allegations thereof, and, further, specifically pleaded as follows:

“Further pleading, respondent in rule avers:
“(a) That the last step taken in the prosecution of this cause was taken on the 21 day of November, 1949, on or about which date plaintiff herein, respondent in rule, paid for and on which day he cause to be filed in the record of this cause the transcript of evidence taken on the trial of said case, which was a necessary and formal step taken in the furtherance of the prosecution of this cause to final judgment.
“(b) That although the taking of evidence in this case on its merits was concluded on or about the 17th day of May, 1949, the transcription of said testimony was not completed by the official court reporter of this Honorable Court until July 9, 1949.
“(c) That under the rules of this Honorable Court and under the universal practice of the bar before this Court, the transcription of and the filing of the transcript of evidence is a necessary step in the orderly conduct and functioning of the judicial process and, except in cases triable summarily and cases falling within one of the exceptions stated in Rule XVII of this Honorable Court, cases may be tendered for argument and submitted for decision on the merits only after briefs have been filed by the party tendering same for argument, which briefs as a practical matter cannot be intelligently and accurately composed without reference to the transcript of the evidence. (Rule XIV).”

A stipulation of counsel filed on trial of the rule contained the following recitals:

“1. Case heard on merits May 13 & 17, 1949, & continued for argument.
“2. Evidence transcribed & completed July 9, 1949, and Paid for by counsel for Plaintiff, & the evidence was filed with the Clerk of Court on Nov. 21-1949.
“3. Rules of Court filed in evidence.
“4. Minutes of Court in this Case filed in evidence.
“5. Last minute entry: May 17, 1949.”

The motion to dismiss was refused and plaintiff applied to the Supreme Court for writs of prohibition, certiorari and mandamus, which were refused on the ground that applicant possessed the remedy of appeal.

Before this Court counsel for defendant timely filed an answer to plaintiff’s appeal, which prayed for judgment dismissing plaintiff’s suit for lack of prosecution, and, alternatively, for the affirmance of the judgment of the District Court on the merits.

Ordinarily we would be disposed to consider and determine the instant case on the merits, but, in view of counsel’s insistence upon a pronouncement on the motion to dismiss, as evidenced by the answer to the appeal, we feel that defendant, having preserved and insisted upon this nature of relief, is entitled to a resolution of this point. Accordingly, we proceed to a discussion of the motion to dismiss.

The motion is predicated upon that provision of Article 3519 of the LSA-Civil Code which reads as follows:

“Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”

The facts relied upon in support of this codal provision, as substantiated by the minutes and filings, are that:

1. Trial of the case on the merits was completed and the case was continued for argument on May 17, 1949.

2. On May 21, 1954, the motion to dismiss for lack of prosecution was filed by counsel for defendant.

The defense, to what otherwise appears to be a clear showing of failure of prosecution for a period of more than five years, rests upon the stipulated fact that the transcript of the evidence taken on trial of the case was completed on July 9, 1949 and filed with the Clerk of Court on November 21, 1949.

The issue which is clearly set up in consideration of the above facts rests upon an interpretation of the final act of the completion of the transcript of evidence by the court reporter, the payment therefor by the plaintiff and the filing thereof with the Clerk of Court. The question is whether this proceeding constituted “a step” in the prosecution of plaintiff’s action.

A most able and comprehensive consideration of this point is set forth in the opinion of Mr. Justice Ponder in the case of Sliman v. Araguel, 196 La. 859, 200 So. 280, 281. In the course of the opinion the court declared:

“The ‘step’ in the prosecution requires a formal move before the court intended to hasten judgment. A situation arising outside the record cannot be considered as a step taken in the prosecution of the suit. A step in the prosecution of a suit means something done in court towards the progress of the suit in court. Lips v. Royal Ins. Co., 149 La. 359, 89 So. 213.” (Emphasis supplied.)

Prefatory to the above quoted declaration the opinion in the cited case also quoted from the holding in Augusta Sugar Co., Ltd. v. Haley, 163 La. 814, 112 So. 731, 732, as follows:

“We think that a step in the prosecution of a suit means something more than a mere passive effort to keep the suit on the docket of the court; it means some active measure taken by plaintiff, intended and calculated to hasten the suit to judgment. Otherwise we would have this absurd result, that every effort of a defendant to dismiss the suit would result merely in prolonging the delay within which the plaintiff must proceed with the prosecution thereof.” (Emphasis supplied.)

As will be observed from the recitals of defendant’s answer to the motion to dismiss, it is contended that the transcription and filing of the transcript of evidence is a “necessary step in the orderly conduct and functioning of the judicial process.” It is further urged in this connection, as a practical proposition, that the briefs cannot be intelligently and accurately composed without reference to the transcript of.evidence.

The above argument would be entitled to greater weight if the record disclosed any facts to indicate that the filing of the transcript had been designed to permit the preparation of briefs and the tendering of the case for setting. Since, obviously, no action was taken over a period of 4J4 years until defendant was forced to action by the filing of the motion here under consideration, it cannot be considered that the mere filing of the transcript of testimony was designed as a step in plaintiff’s prosecution of his case intended to hasten the suit to judgment.

Under the facts, we do not think the payment of the reporter’s fee and the consequent filing of the transcript of evidence fall within the definition of “steps” in the prosecution of plaintiff’s case under the interpretation of the Supreme Court, to which reference is made, supra.

For the reasons assigned, we think the District Court errdd in its failure to sustain defendant's motion to dismiss, and, accordingly, it is now ordered, adjudged and decreed that defendant’s motion to dismiss plaintiff’s suit for want of prosecution be, and it is hereby, sustained, and plaintiffs suit is dismissed at his cost.


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    Eugene B. WYNN, Plaintiff-Appellant, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, Defendant-Appellee.
    No. 8408.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Rehearing Denied March 2, 1956.

      Malcolm E. Lafargue, Shreveport, for appellant.
    Blanchard, Goldstein, Walker & O’Quin, Shreveport, for appellee.
   GLADNEY, Judge.

Plaintiff, Eugene B. Wynn, instituted this action to recover workmen’s compensation against the Fidelity and Casualty Company of New York, as the insurer of Southern Building Supply Company, a commercial partnership, composed of Jacob Greenberg and Nathan Meisel. From a judgment rejecting his demands plaintiff has perfected this appeal.

On March 13, 1954, pursuant to an understanding between Maxwell H. Glenn, a representative of the Southern Building Supply Company and W. T. Skains, Skains appeared and began the removal of a partition wall in the building of the Southern Building Supply Company and within a short time thereafter was joined by Eugene B. Wynn. Wynn had worked but a short time when a section of the partition, 40 feet in length and 8 feet high, fell upon him inflicting injuries admittedly of a permanent and total nature.

It is disclosed by the record that Glenn and Skains had reached an understanding or agreement whereby Skains would remove the partition in consideration of receiving the salvage material therefrom. Skains told Glenn it would be necessary for him to bring with him an additional man and Glenn tendered the service of several colored unskilled employees for use in the undertaking.

Southern Building Supply Company was at the time of the accident engaged in selling building materials and supplies and operated a lumber yard in connection with its business. It also participated in contracts involving the repair and remodeling of houses, although it maintains that the latter work was done exclusively through independent contractors, contending that its only connection with this type of business was soliciting the customers, furnishing lumber and materials, cost estimates, and financing service.

Counsel for appellee argues plaintiff should be denied recovery principally on two grounds: first, as Wynn was not an employee of either the insured or Skains, but a volunteer, and second, for the reason no contractual relationship existed between Wynn and the insured.

Although the evidence relating to the employment of Wynn by Skains is to a certain extent conflicting, both Wynn and Skains testified Wynn was employed by Skains at the regular union scale of $2.45 per hour and that Wynn customarily worked 40 hours per week with time and one-half overtime. Appellee’s position is based on a contradictory statement in writing made by Skains five days after the accident in which he declared he and Wynn desired to obtain the salvage material from the undertaking for the purpose of erecting a workshop on the premises of Skains for their joint use. Skains and Wynn testified actual wages were agreed upon but since both recognized Skains could not immediately pay Wynn, no definite time for payment for Wynn’s services was agreed upon. The preponderance of the evidence, we think, shows Wynn was employed by Skains at the union scale mentioned above.

The second point urged by appellee is that there was no contractual relationship between Wynn and Southern Building Supply Company and that in consequence thereof, workmen’s compensation is not due. This argument is predicated on the assumption that Skains was an independent contractor.

The facts unquestionably show that the business engaged in by Southern Building Supply Company falls within LSA-R.S. 23:1035 of the Workmen’s Compensation Act, which expressly provides the act shall apply to every person performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation, and enumerates as being of a hazardous nature employment in lumber yards, building material yards, woodworking establishments, and work in any of the building trades or in the erection, construction, extension, alteration, repair or demolition of any building or structural appurtenance. Therefore, because of its operations the business of the Southern Building Supply Company must be classified as hazardous and within the comprehension of the Employers’ Liability Statute.

Furthermore, under LSA-R.S. 23 :- 1061 of the Workmen’s Compensation Act where work is undertaken which is a part of the trade, business or occupation of the principal who contracts with a person for the execution thereof of the whole or any part of the work so undertaken, the principal is made liable for workmen’s compensation to any employee employed in the execution of the work. Consequently, if the business of the principal is the construction or repair of buildings he cannot let out his work by contract and avoid the responsibility for payment of compensation. According to Malone’s Louisiana Workmen’s Compensation Law & Practice, page 153, this would be true even though the defendant operated exclusively through contractors and engaged only indirectly in building work, since the purpose of the Act is to prevent evasion through resort to contractors when the business of defendant is the trafficking in work of this sort. Turner v. Oliphant Oil Corporation, La.App.1940, 200 So. 513. The Workmen’s Compensation Act, LSA-R.S. 23:1021, accords the words “independent contractor” the following comprehensible definition:

“ ‘Independent Contractor’ means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.”

Recently the Supreme Court in Speed v. Page, 1952, 222 La. 529, 62 So.2d 824, 828, had occasion to review a ruling of this court which presented for our consideration the pronouncements of the Supreme Court in the case of Shipp v. Bordelon, 1922, 152 La. 795, 94 So. 399, Caldwell v. George Sproull Company, Inc., 1936, 184 La. 951, 168 So. 112, as well as certain opinions by the courts of appeal of this state. In affirming the judgment of this court, Chief Justice Fournet held:

“It is our conclusion, therefore, that where the operator of an admittedly hazardous business, in the conduct of that business undertakes repair, whether it be of the building housing the same or the equipment therein, rather than have it done under contract, his employees come under the protection of the employers’ liability laws of this State.”

In Speed v. Page, the employer was engaged in a motion picture business which included certain operations admitted to be hazardous. The employee was engaged as a laborer to assist in the work of demolishing and reconstructing the theater owned by Page. The defendant denied that he was in the business of demolition or construction work and denied that plaintiff had to come in contact with the hazardous features of his own business, since the motion picture business was not in operation during plaintiff’s employment on the premises. Speed, it is true, was an employee of Page, whereas Wynn was not directly employed by Southern Building Supply Company. But, be this so or not, LSA-R.S. 23:1061, as pointed out above, erases the distinction sought to be drawn in favor of defendant’s insured, and Wynn must be considered entitled to be paid workmen’s compensation the same as if he had been employed directly by the insured. Had one of the insured’s colored employees been injured rather than Wynn, such accident would have brought about the same legal result determined in Speed v. Page. The analogy between the cited case and the instant case is apparent when we consider Southern Building Supply Company was engaged in a hazardous business and that plaintiff Wynn was injured while engaged in work which was essentially consistent with the type of business conducted by it.

Under the provisions of the Workmen’s Compensation Act above referred to, particularly LSA-R.S. 23:1021 and 1061, Southern Building Supply Company was as much responsible for the payment of workmen’s compensation to Wynn as if it had employed Wynn directly. See Belaire v. Elder, La.App.1950, 49 So.2d 508; Williams v. Consumers Ice Company, La.App.1953, 68 So.2d 246.

It is the finding of this court: (1) That plaintiff herein, Eugene B. Wynn, was at the time of his injuries an employee of Skains; (2) that Southern Building Supply Company was liable for workmen’s compensation to Wynn as an employee of Skains as the work being performed by Skains and Wynn was an integral part of the business in which Southern Building Supply Company was customarily engaged; (3) that the plaintiff was rendered totally and permanently disabled within the meaning of the Workmen’s Compensation Act, and (4) he is entitled to recover compensation predicated on wages of not less than $2.40 per hour or $19.40 per day.

Our attention is further directed to a petition of intervention filed on behalf of the Confederate Memorial Medical Center. Right to recovery is accorded under LSA-R.S. 46:11, 13 and 15 for the services rendered to plaintiff herein. The record indicates that the items which compose this claim have been adequately proven and judgment will be rendered as prayed for.

Counsel for plaintiff earnestly insist that petitioner is entitled to have invoked in this case the provisions of LSA-R.S. 22:658, imposing penalties in the nature of damages and attorneys’ fees due to failure of the defendant to make payments within sixty days after receipt of proof of demand. In our opinion, though in error in its assumption of non-liability, the failure of the defendant to pay plaintiff following demand, was not arbitrary, capricious or without probable cause, and, therefore, this claim in the nature of damages and attorneys’ fees will be denied.

It follows from our findings hereinabove set forth that the judgment from which appealed must be annulled, reversed and set aside, and judgment rendered in favor of plaintiff. It is, therefore, ordered, adjudged and decreed that there he judgment in favor of plaintiff, Eugene B. Wynn, and against the defendant, Fidelity and Casualty Company of New York, in the sum of $30 per week, beginning March 13, 1954, and continuing weekly thereafter during the period of his disability, not to exceed 400 weeks, and for the sum of $646.55 for medical expenses. It is further ordered that there be judgment in favor of Confederate Memorial Medical Center and against Fidelity and Casualty Company of New York in the sum of $203, together with legal interest thereon from September 18, 1954, until paid and 10% of the principal and interest as attorneys’ fees, which attorneys’ fees shall be taxable as costs to be paid by preference and priority out of the judgment herein rendered.

It is further ordered that all costs, including costs of this appeal, shall be taxed against appellee herein.


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    GLENN HUFF. Inc., Plaintiff-Appellant, v. Nick ZANOVICH, Defendant-Appellee.
    No. 8469.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Joseph R. Bethard, Shreveport, for appellant.
    Mecom, Scott & Despot, Shreveport, for appellee.
   HARDY, Judge.

This is an action by plaintiff to recover damages to one of its automobiles, allegedly resulting from the negligence of defendant. After trial there was judgment rejecting plaintiff’s demands, from which it prosecutes this appeal.

At or about 10:30 A.M. on December 19, 1953, Mrs. Glenn Huff, Jr. was driving a 1953 DeSoto Fordor Sedan, owned by plaintiff, south on Highland Avenue in the City of Shreveport at a speed of approximately 25 miles per hour, and was involved in a collision, at the intersection of said Highland Avenue with Stoner Avenue, with a 1950 Pontiac Sedan owned and driven by the defendant, Nick Zanovich, who was driving west on Stoner Avenue. The point of the collision is fixed as being approximately in the center of the street almost beneath the traffic control signal, and the impact was between the front of plaintiff’s car, which struck defendant’s automobile broadside, and the right front door of defendant’s car.

Plaintiff testified that she perceived the approach of the Zanovich car when she was at a distance of some 40 or 50 feet from the intersection, at which time the traffic signal showed the green light for traffic on Highland Avenue; that, realizing the other car was not going to stop, she immediately applied her brakes but was unable to stop in time to avoid the collision.

Defendant testified he was driving at a speed of approximately 25 miles per hour on Stoner Avenue; that, the traffic signal showed a green light for traffic on Stoner; that he entered the intersection and was struck by plaintiff’s car when about halfway across, and that he did not see the colliding automobile until at, or about, the moment of impact.

The above circumstances, as testified by the principals, comprehended practically the only material facts which are set forth in the transcript of evidence, with the exception of the stipulated circumstance that plaintiff’s automobile skidded 40 feet 7 inches from the time of application of brakes up to the point of impact. Additionally, there is some testimony with reference to a defective light bulb which prevented the showing of any signal whatsoever on Highland Avenue, but this testimony is not sufficiently certain to justify consideration.

Aside from the two named drivers of the respective vehicles the record contains no testimony by any other eye witness. The testimony of Colonel James B. Hippie, who was driving an automobile following the defendant’s car, was tendered by plaintiff, but, admittedly, Colonel Hippie did not see the actual collision nor, indeed, is his testimony of any material assistance on any other point.

The District Judge, for reasons set forth in a written opinion, found himself unable to make any pronouncement in view of the completely contradictory testimony of the two drivers, and therefore held, and we think properly, that plaintiff had failed to sustain the burden of proving negligence on the part of defendant.

In brief before this court counsel for appellant zealously contends that a number of deductions should be drawn from certain phases of the testimony, but we are unable to conclude that this would be justified even as being persuasive. Counsel further urges that Mrs. Huff testified that defendant had paid her for personal injuries received in the accident, which circumstance should be considered as an admission of negligence on the part of defendant Counsel is completely in error as to his premise. Reference to the transcript of the testimony of Mrs. Huff reveals the following question and answer which is the only portion of her testimony with reference to this particular point:

“Q. Mrs. Huff, did you receive injuries in this accident? A. Yes, sir, I did. I believe they have already settled with me for my injuries right after the accident happened.”

It is unnecessary to observe that the pronoun “they” is not susceptible of any identification with any of the parties in this record and may be concluded to have referred to either of the parties to this litigation, their insurer, or both.

Close examination of the record fails to reveal any fact or persuasion of fact which would justify any finding of manifest error. On the contrary, we think the conclusion reached by our learned brother of the District Court was the only reasonable and logical resolution.

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