author: JANVIER, Judge.

text:
    STATE ex rel. Estelle RODI, Wife of Theophile SOULET, v. CITY OF NEW ORLEANS et al.
    No. 20710.
    Court of Appeal of Louisiana. Orleans.
    Feb. 18, 1957.
    Rehearing Denied April 15, 1957.
    Writ of Certiorari Denied June 10, 1957.

      Sam M. Zelden, New Orleans, for plaintiff-appellant.
    Henry B. Curtis, City Atty. and John F. Connolly, Asst. City Atty., New Orleans, for the City of New Orleans, defendant-appellee.
   JANVIER, Judge.

This is the second attempt by Mrs. Estelle Rodi Soulet, widow of Theophile Soulet, to compel the City of New Orleans through its Bureau of Vital Statistics to change its registration of the death of her father, Steve Rodi, (sometimes referred to in this transcript as Steve Jr. and sometimes as Steve II) who died in New Orleans on February 19, 1953, so as to have that record show that her said father was a white man and not a Negro.

The result of the first attempt of relatrix to force this change may be ascertained by reading our decision in that matter. See State ex rel. Rodi v. City of New Orleans, La.App., 78 So.2d 855.

When Steve Rodi, Jr., the father of relatrix died, a death certificate was issued by the attending physician. In this certificate the race of Steve Rodi, Jr., was set forth as white. The undertaker who buried Rodi says that he does not perform such services for Negroes, The officials of the cemetery in which the body was. interred do not knowingly accept for interment bodies of Negroes. When the registration of Rodi’s death was made in the records of the Bureau of Vital Statistics in the City of New Orleans, the information given came from Patrick Den-ease, a member of the Rodi family, and, according to this information, the said Rodi was white. Accordingly, the death was registered as the death of a white man.

Several months later when some member of the Rodi family desired a copy of that death certificate, the officials in charge of the Bureau of Vital Statistics being familiar with the name Rodi, obtained evidence which .convinced them that Rodi was in fact a Negro and not white and, acting on that evidence, which they thought' conclusive, those official's changed the registration of the death of Rodi so as to show his race as colored. It was then that the relatrix brought her first mandamus proceeding to compel the City to delete this change in. the registration of the race of her father and to restore the original entry so as to show his race as white. In that first proceeding the' relatrix did not allege that her father had been a white man. She based her suit solely on the contention that the Bureau, having once made such an entry in its records, could not change that entry except after a judgment of a competent court ordering the change.

To that first petition the City filed an exception of no cause of action maintaining that unless the relatrix would allege that her father had actually been white, she could not force the City to change its records so as to show his race as white. The contention of the relatrix in that first proceeding, that the City did not have the legal right to make the change which it had made, was based on the fact that in an earlier case, Sunseri v. Cassagne, 195 La. 19, 196 So. 7, 8, the Supreme Court of Louisiana had said that such officials could not change entries once made, except upon judgment of a competent court. The Court said:

“ * * * The officer did not have the right to change or alter the certificates even though the information upon which he relied was correct. * * * »

At that time the applicable statute was Act 257 of 1918 which provides that:

“no certificate of birth or death, after its acceptance for registration by- the Local Registrar, and no other record made in pursuance of this Act, shall be altered, or changed in any respect otherwise than by judgment of court of competent jurisdiction.”

As we showed in our descision in that first proceeding, counsel for relatrix did not then know that after the decision in the Sunseri case the Legislature, in 1942, had enacted Act 181 which, in section 1, provides that such a change may be made on receipt of “sufficient documentary and/or sworn evidence acceptable as a basis of such change or alteration.”

In that first mandamus proceeding counsel for relatrix, not being aware of the act of 1942, LSA-R.S. 40:266, did not attack its constitutionality. This they do in the present suit, contending that the statute of 1942 is unconstitutional for three reasons: (1) That the statute is in violation of the Due Process clauses of the United States Constitution and of the Constitution of Louisiana of 1921; (2) That it is in violation of the Equal Protection clause of the Fourteenth Amendment of the United States Constitution; and (3) That it is an unconstitutional delegation of legislative authority.

Counsel for relatrix thus contend that, since the act is unconstitutional, there was no authority for the making of the change which was made by the registrar in this case and, in the alternative, that even if the statute is constitutional and does authorize such a change where the evidence justifies it, the evidence here shows that, as a matter of fact, Steve Rodi, Jr., the father of relatrix, was white and that, accordingly, the altered record should foe corrected so as to show that fact.

Relatrix attacks the statute of 1942,— which.we may say has now been amended by Act 237 of 1950 which amendment, however, does not affect in any way the matter which is before us,' — on three grounds: (1) That if it permits that such a change as was made here may be made without notice, it in effect denies to those at interest and particularly to relatrix here due process of law as guaranteed by both the Constitution of the United States and the Constitution of 1921 of the State of Louisiana; (2) That it is an unconstitutional delegation of legislative authority to a purely administrative body; and (3)' That it denies to those at interest the equal protection of the law.

The contention that the statute is an unconstitutional delegation of legislative authority is easily disposed of. If the statute authorized the registrar to make decisions as to what might or might not be best, then it would constitute an unconstitutional delegation of legislative authority, but the statute does not do that. It merely authorizes the registrar to reach a decision on questions of fact after securing evidence. Where a statute attempts to delegate authority to make fundamental decisions on what is best for the public welfare and there are no standards or uniform requirements, then there is an unconstitutional delegation. But where such a statute merely authorizes a registrar or a board to reach a conclusion on facts, that is not a delegation of legislative authority.

The distinction between unconstitutional delegation of legislative authority and the completely constitutional delegation of authority to determine facts and to enforce laws in accordance with those facts is set forth in American Jurisprudence, Volume 11, Constitutional Law, section 242, page 960:

“There are no constitutional objections arising out of the doctrine of the separation of the powers of government to the creation of administrative boards empowered within certain limits to adopt rules and regulations and authorized to see that the legislative will expressed in statutory form is carried out by the persons or corporations over whom such board may be given administrative power. Boards and commissions of this character do not exercise any of the powers delegated to the legislature. They do not make any laws. They merely find the existence of certain facts, and to these findings of fact the law enacted by the legislature is applied and enforced.”

In 16 C.J.S., Constitutional Law, § 133, p. 558, it is stated that:

“ * * * the legislature may make a law to delegate a power to determine some facts or state of things on which the law makes or intends to make its own action depend.”

Our conclusion is that the statute does not effect an unconstitutional delegation of legislative authority.

The contention that the statute denies to the relatrix or to other persons at interest the equal protection of the laws is without foundation. The statute operates in all cases where the evidence justifies action and is not limited to any particular case or to any particular person or to persons of any particular race. In City of New Orleans v. Pergament, 198 La. 852, 5 So.2d 129, 131, which was a Zoning case, the Supreme Court held that there is no denial of equal protection where a statute provides regulations “which all persons similarly situated should he obliged to comply with.”

The contention that the statute effects a denial of due process of law is not so easily disposed of. In support of this contention counsel for relatrix argues that if the statute is constitutional it would, in effect, give to a registrar the right to annul a marriage, and thus to destroy a community of acquets and gains which might have resulted from the marriage; that the persons interested have a property right in maintaining that marriage and in maintaining the community of acquets and gains, and that this right cannot be destroyed by the action of an administrative officer such as a registrar and, particularly, that this may not be done without notice and without a hearing.

Where there is no legal marriage because of the fact that one of the parties is a Negro and the other white and thus the marriage, because of our miscegnation laws, is an absolute nullity then the so-called marriage, from the time it was performed, was an absolute nullity and the parties are not deprived of any substantive rights by the action of the registrar.

Often an administrative officer or body may make decisions on facts without notice to interested parties. To do so does not result in a denial of due process for there always exists the right of appeal to the courts to set aside any such change as was effected here.

In 16A C.J.S., Constitutional Law, § 628, p. 849, in a Headnote, appears the following:

“Due process of law may be afforded by administrative as well as by judicial proceedings. While the requirements of due process of law ordinarily apply to administrative proceedings, there is - no denial of due process if notice and hearing are dispensed with in connection with purely preliminary matters, and the right to judicial review, where reserved, may cure any lack of due process in the original administrative proceedings,”

Also, in American Jurisprudence, Volume 11, section 242, page 962, appears the following:

“ * * * administrative boards need not be required to act on sworn evidence, nor are they bound to act only after a hearing or to give a hearing to those asking for one. * * * ”

This is especially true where the paramount public interest is involved.

We find interesting two statements in 16A C.J.S., Constitutional Law, § 602, one appearing at page 712 and reading as follows :

“It is not every interference with property rights that constitutes a deprivation of property without due process. While the general rule is that property rights shall be free of government interference, as discussed supra § 599, those rights are not absolute, since the rights of property are necessarily relative to those held by others under the same constitutional sanction; and equally fundamental with the private right is that of the public to regulate it in the common interest, for the protection of the safety, health, morals, or general welfare of the community, any loss resulting from such regulation being merely consequential.”

The other statement which we find interesting is found in § 628, on page 851, reading as follows:

“ * * * Procedural due process in administrative law is generally recognized to be a matter of greater flexibility than when dealing with strictly judicial tribunals, * * *.”

In the same volume and section of C. J. S., ■ at page 857, appears the following:

“Where there is due provision for appeal to a judicial tribunal, no notice or hearng before the administrative tribunal is essential to due process. So if a hearing is not included in the administrative process it may be adequately supplied by a judicial proceeding in which new evidence may be supplied and full opportunity afforded for exploration of the basis of the disputed administrative order. * * ”

While it is true that, in the statute with which we are concerned, there is no express provision for appeal to the courts, it has always been recognized that the parties interested in such a situation may, by mandamus, attempt to have records corrected in accordance with the true facts. Unfortunately, in this state there have been many such cases, notably, Sunseri v. Cassagne, supra, State ex rel. Treadaway v. Louisiana State Board of Health, La. App., 56 So.2d 249, and Green v. City of New Orleans, La.App., 88 So.2d 76.

The complete impracticability of requiring notice and a hearing in such cases is made apparent by the facts which are found here where it is shown that almost innumerable persons will be affected. What members of the family must be notified? What members must be present at a hearing? After the second or third generation innumerable children, grandchildren and great grandchildren may be interested. It would be completely impracticable to hold that a correction could not be made in the public record unless a notice and opportunity to be heard had been given to each person who, as a blood descendant, might be interested in the matter.

Our conclusion is that the statute in question does not effect a denial of due process of law and our conclusion on the whole question of constitutionality is that the statute is not unconstitutional.

When we come to consider the facts we find a controversy over the question of who should be required to prove the correctness or incorrectness of the record and just how much proof should be required.

On behalf of relatrix it is argued that we should first decide whether the Bureau was justified by the evidence which it obtained in making the change from white to colored and that until the Bureau has convinced the Court that it had sufficient evidence to make that change the relatrix is not called upon to prove that the change which was then made should be deleted and that the registration of the race of Rodi, Jr., as white should be reinstated.

Our attention is directed to the fact that in Sunseri v. Cassagne, supra, the Supreme Court laid down a rule that a change in such a registration should not be made unless the proof is so overwhelming as to justify the conclusion that there is practically no doubt at all. In other words, that neither a preponderance of evidence nor even proof beyond a reasonable doubt is sufficient to warrant such a change; that there must be such proof as will almost justify the conclusion that there is no doubt at all.

In the Sunseri case the Supreme Court said that the marriage of defendant which was attacked on the ground that she was a Negress “should not be annulled * * * unless [all] the evidence adduced leaves no room for doubt that such is the case.”

Following this, in State ex rel. Treadaway v. Louisiana State Board of Health, supra, [56 So.2d 250] we referred to the decision of the Supreme Court and said: “We feel that the language used by the Supreme Court means that there must be no doubt at all.”

It is conceded by counsel for the City that, before the act of 1942, such proof was necessary, but that, as a result of that act, the registrar, when he feels that there has been an error in such registration and obtains satisfactory evidence as to the correct race of the person on whom the registration is based, it may, on such evidence, make such change as is thereby justified, but that if a third person attempts to force the Bureau to make such a change, the proof produced must, as was held by the Supreme Court in the Sunseri case, and by us in the Treadaway case, be so convincing as to leave practically no doubt at all.

We feel that the City is correct and that, having obtained evidence which left no reasonable doubt in the minds of the officials as to the race of Rodi, Jr., it was justified in making the change which it made, and that it cannot be forced to make the alteration demanded by relatrix when the evidence leaves no room for doubt.

Let us consider what evidence was produced. The relatrix is the daughter of Steve Rodi, Jr., who, as stated, is sometimes referred to as Steve Rodi, II. He was the son of Steve Rodi, Sr., and Her-bertine or Huberine Dennise. It is conceded by the City that Steve Rodi, Sr., was white and it follows that unless the mother, Huberine Dennise, was colored, then relatrix is correct and the race of her deceased father, Steve Rodi, Jr., should be shown as white, for if it is shown conclusively that both parents of a person are of the white or Caucasian race then the inescapable conclusion is that that person is also white.

As already stated, the doctor who attended Rodi in his last illness and the undertaker who interred his remains, and the sexton of the cemetery all stated that they thought he was white, but no one of these persons knew the family at all. In addition to these witnesses, several members of the Rodi family testified that both the father, Steve Rodi, Sr., and the mother, Herbertine or Huberine Dennise, were white. However, insofar as Huberine Dennise is concerned there is annihilating testimony to the contrary.

Dr. J. T. Reeves, the Coroner of Plaque-mines Parish in which Rodi lived practically all of his life, stated that he was well acquainted with the Rodi family, that the members of that family were his patients, that they always used his colored waiting room and never attempted to use the white waiting room and that he had no doubt at all that they were colored. Dr. Reeves says that he knew Frank or Francois Rodi who was generally known to be a brother of Steve Rodi, Jr., and that at Frank’s death he, Dr. Reeves, executed the death certificate, and in the presence of Frank’s wife stated in the certificate that Frank was colored.

Some members of the Rodi family stated that they did not know who Frank Rodi was; that he was'not a brother of Steve Rodi, Jr., and they attempted to create the impression that Frank was probably an illegitimate son of Herbertine or Huberine Dennise by a colored father and not by Steve Rodi, Sr. However, the death certificate of Frank Rodi shows him to be colored and also shows that he was the son of Steve Rodi and Herbertine Dennis. If so, then he was the brother of Steve Rodi, Jr., and except for the testimony to which we have already referred, there is nothing in this record to show the contrary.

John C. deArmas, the Parish Engineer, says he was familiar with the Rodi family, all of whom lived near Buras; that he knew Steve’s mother and that she was a Negress and that Steve Rodi, Jr., was himself a Negro. He says none of the family claimed to be white and that their associates were always Negroes.

Among many of the vital statistics records offered in evidence are several which are most revealing. One shows the registration of the birth of a daughter, Huberine Ida Denise, to the parents, Francoise Mal-donata- Desmolle and Francois Rodi who, as the evidence seems to indicate, was a brother of Steve Rodi, and this certificate shows that the mother and the father were both colored. The midwife who assisted at this birth was Mrs. Francois Desmolle and the similarity of the names, both the given and the family name, indicate that, as other evidence shows, she was a member of the same family.

Another of these certificates shows the birth of a son, Albert Rodi, to Stephen Rodi and Henriette Demolle. The race of this child is not given but the race of both parents is given as colored and the midwife who registered the birth was Mrs. Lacoste Sylve.

Another certificate shows the birth of a daughter, Martha Rodi, to Stephen Rodi and Henriette Demolle, and here again the race of both parents is given as colored. Here again the midwife was Mrs. Lacoste Sylve.

Still another certificate shows the birth of a daughter, Etta Rodi, to Stephen Rodi and Henriette Demolle and again the certificate shows the race of the parents as colored and again the midwife was Mrs. Lacoste Sylve.

Mrs. Bettha North, another midwife of the Parish, said that she knew Steve Rodi, Jr. and that he was a Negro, and she said that the two midwives who had registered the births of the several children just mentioned were both colored and were both members of the Rodi family, and, as already stated, that seems to be indicated by the similarity of the names of one of the midwives, Mrs. Francois Desmolle.

Mrs. North stated that more than fifty years before she had known Huberine Dennesse and that she knew she was colored “because she said so.” This statement is attacked by counsel for relatrix who say that it is inconceivable that Mrs. North could have remembered such a statement for more than fifty years.

The fact that the two midwives were members of the family of the deceased husband of the relatrix and that they, in giving the information on which these certificates were prepared, stated that Steve Rodi was colored weighs heavily against the contention of relatrix.

Another witness who said that he had been a lifelong resident of the Parish, that he lived near the Rodi family, and that the brothers, Francois and Steve Rodi, Jr., were colored was Steve Mistich, and when asked “what color were they?” he' answered: “They were supposed to be negro on the mother’s side * * *.” He said that the Rodi children, Frank and Steve, and the sisters did not go to the places to which white people went.

The relatrix places great reliance on the fact that among the census records of the United States there are some which were made in 1850, in 1860 and in 1880 and that on these records are shown the names of various families which are in the background of the Rodi family and that nowhere in those records is it shown that any of them were colored. The names referred to are Rodi, Roddi, Demolle and Dennese. On these records there are columns for the entering of the race of the persons listed. On some of them, after each name appears the letter W, obviously meaning white, and in some there is no entry at all. In referring to the fact that he did not place too much reliance on those records for the purpose of determining the issue presented here, the District Judge very properly said:

“The Census report is nothing more than a record of information given by the subject interrogated to the Census taker for statistical purposes; the latter is not an investigator, and must accept information as given unless it is obviously, or personally known to him, to be incorrect. The subject being interviewed could be of negro blood, yet look Caucasian. These Census Exhibits are part of the whole picture, but are not conclusive in themselves.”

Mrs. Naomi M. Drake, Deputy Registrar of the Board of Health of the City and Recorder of the Bureau of Vital Statistics, stated that when it came to the attention of the Bureau that the record of thé death of Steve Rodi showed him to be white, the officials were surprised because they kept what is called a “flag' list” of certain families known to be colored, but who sometimes erroneously claimed to be white, and that on this list were the names De-Molle, Silve or Sylve, Encalade, Rodi and Dennese. She said that thereafter she personally went to Plaquemines Parish where the family of Steve Rodi had lived for years and spent several days making a thorough investigation, and that, as a result of this and because of the various certificates already referred to, the officials were convinced that there was no doubt at all that Steve Rodi whose death was recorded and whose race is involved here was colored. She said: “I made these trips to Pointe-a-la-Hache and I checked various records. I interviewed numerous people, some of whom did not want to be called as witnesses and some who volunteered to come as witnesses on another case.” She said that not only was it determined that Steve Rodi, Jr., should have been registered as colored but that obviously there had been an effort to confuse the issue by stating on the certificate that his wife was Henrietta Maxion whereas, as a matter of fact, his wife was Henrietta Demolle, a member of the Demolle family, which, according to the records of the Bureau, was known to be colored.

Anthony Ciaccio, State Registrar of Vital Statistics, gave testimony quite similar to that of Mrs. Drake. He says that he knew “pretty much all of the names of the negro families in the other parishes * * and * * * in the Parish of Orleans.” He said, too, that in the State Bureau there is maintained a “flag list” which seems to be similar to that maintained in the City Bureau and that on that list are the names Rodi, Demolle and Denesse. He said that he, too, made several trips to Pointe-a-la-Hache, interviewed numerous people and became absolutely convinced that Steve Rodi, whose death had been recorded was colored.

As pointed out by the District Judge, the record indicates that Steve Rodi, Sr., the father, and Steve Rodi, Jr., the son, lived in Buras, in Plaquemines Parish, in a settlement known as “Coon Town” and that, as is well known, the word “coon” used in that association is a colloquial expression meaning Negro. The witnesses said that only colored families lived in Coon Town.

Edward Pelas, placed on the stand on behalf of relatrix, said that the name Coon Town was not based on the race of the people who lived there, that that settlement was called Coon Town because many racoons were killed there by hunters.

It is true that it is conceded that the father, Steve Rodi, Sr., was white and from this it necessarily follows that if Steve Rodi, Jr., was colored, the colored blood came from the mother’s side, that is, from Huberine Dennise or Dennease, Denise, or Denis, as the name appears in different records. And it is true that there is some evidence to the effect that the children of Steve Rodi, Sr., were, by some persons, considered as white, for instance, this statement is made by the witness Pelas just referred to. However, the record shows that Pelas had not known the Rodi family for about fifty years.

Our examination of the record leads to the conclusion that there is no doubt at all that the contention of relatrix is not well founded and that her deceased father was actually colored and a more detailed discussion of the - already extensive reference to the evidence would serve no useful purpose.

We fully realize the extreme importance of reaching the proper conclusion on a matter of such supreme importance to those who are involved. We feel that nothing can possibly be of more importance than for a person to be absolutely certain as to his genealogy and particularly as to his race. We know that a white person has an absolute right to be known as white and a colored person has the same right to be known as colored, and we know that in this area nothing can cause greater distress and humiliation to those who believe themselves to be of one race and then to find that they have in their veins blood of another. Therefore, in such cases as this, and unfortunately there have been several, we do not reach a conclusion until we have studied every word in the record and have weighed the testimony most carefully. We have done so here and regret that we can reach but one conclusion, that is, that the Steve Rodi whose death was recorded was in fact of the Negro race. We think that is shown not only beyond a reasonable doubt but to the certainty which should be required in such cases. The District Judge so concluded also, for when, in the hearing on the application for rehearing, he was shown that in his original opinion he had used the words, “by a preponderance of the evidence” he stated that he realized that the proof must leave no doubt and, in his original opinion, inserted the words: ■“beyond any doubt.”

Since we conclude that the evidence leaves no doubt as to the race of Steve Rodi, the result would be the same even if we are in error in our conclusion that the statute of 1942 is constitutional.

Even without that statute, such a Bureau is authorized by a judicial decision to make such a change. That was the exact situation which was presented in the Sun-seri case. There the Bureau in issuing a copy of a certificate made a change to show the race as colored rather than as white and when a mandamus proceeding was brought to attempt to force the Bureau to alter the record so as to show the race as white, the Bureau resisted and produced evidence to show that the change which had been made was correct. The Supreme Court ultimately reached the conclusion that the change was correct. Therefore the decision in that case did not come from a proceeding brought by the Bureau but came as a result of a proceeding brought against the Bureau which is exactly what has been done in this case.

Our conclusion therefore is that even if the Bureau did not have the right to make the change originally, and we think that it did have that right, nevertheless since the change was made and since we conclude that it was properly made, the suit of the relatrix was properly dismissed.

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

Affirmed.


source: Caselaw Access Project

author: McBRIDE, Judge.

license: Public Domain

text:
    Ruth Juanita RAY, wife of Arvell G. CROSS v. F. H. MARQUEZ and Joseph Acosta.
    No. 20686.
    Court of Appeal of Louisiana, Orleans.
    March 25, 1957.
    Rehearing Denied April 15, 1957.
    Writ of Certiorari Denied June 10, 1957.
    See, also, 82 So.2d 786.

      Waverly A. Henning, Gretna, for defendants and appellants.
    Bienvenu & Culver and Kalford K. Mi-azza, New Orleans, H. F. Foster, III, and Kent Satterlee, Jr., New Orleans, of counsel, for plaintiffs and appellees.
   McBRIDE, Judge.

Early on the afternoon of September 18, 1951, two automotive vehicles, viz., a dump truck and a Chevrolet sedan, collided in the intersection formed by the outbound roadway of Jefferson Highway and Shrews-bury Road in Jefferson Parish. Said highway is a wide thoroughfare having two roadways for vehicular traffic, these being separated by a neutral ground fifteen feet wide. Each of the roadways accommodates two traffic lanes.

The dump truck was owned by F. H. Marquez and driven by Acosta, his employee. The sedan was owned and driven by Arvell G. Cross and riding therein as a passenger was Mrs. Ruth Juanita Ray Cross, his wife. This joint suit is brought by Mr. and Mrs. Cross against the owner and’ driver of the dump truck, in solido; Mrs. Cross claims damages for her physical injuries, while Cross is endeavoring to recover for the expenses of his wife’s medical treatment and also for property damage sustained by his car.

Defendants have appealed from a judgment in plaintiffs’ favor.

The movement of traffic at the intersection in question is controlled by the conventional semaphore light signal. The Marquez dump truck had been traveling on. the inbound roadway of Jefferson Highway in the lane next to the neutral ground, and closely following the dump truck were the: automobiles of Turnage and LaBarre, in> that order, the drivers of all three of these vehicles intending to make a left turn into Shrewsbury Road in order to go in the direction of Airline Highway. Such turn as-the drivers contemplated making is required by local ordinance to be executed only on a red signal light.

The Marquez truck first made the turn and was followed by the Turnage car which also negotiated the turning maneuver, La-Barre stopped his car at the intersection.

The truck passed across the neutral' ground area without incident, and after almost crossing the outbound roadway of Jefferson Highway, it was run into by the front end of the Cross car which came from the truck’s right. We conclude that the blow to the dump truck was about its right rear dual wheels, notwithstanding Cross’s, statement that the truck ran into his car.

Every eyewitness agrees that when Acosta turned left into Shrewsbury Road,, an automobile of which Counce was the operator was stopped on the opposite roadway of the highway at the intersection' waiting for a signal light change. This car was located in the lane next to the neutral ground. Cross drove past the stationary Counce vehicle on its right and then crashed into the truck as aforesaid.

Plaintiffs charge that the collision resulted from gross fault on1 Acosta’s part;, defendants, after a denial of any negligence which could be attributed to Acosta, make allegations of negligence against Cross. An examination of the reciprocal charges of negligence would serve no useful purpose-—suffice it to say each driver is said to. have proceeded forward on an unfavorable light signal and a determination of the case is to turn on this issue alone.

Cross admits he never saw the Marquez truck until a split second before the impact. Mrs. Cross was not looking and her testimony is not helpful, except she said: “We hit the truck.” Plaintiffs’ case rests solely on Counce’s testimony. He stated that he stopped at the intersection to await the appearance of a green light and that when this favorable signal showed, he started forward but then noticed the dump truck make the left turn. Counce brought his car to an abrupt stop after traveling a few feet and barely avoided an accident with the truck. He saw no other vehicle except the dump truck make the left turn. It was after Counce made the emergency stop to avoid running into the truck that the Cross car passed to his right and hit the truck.

Turnage and LaBarre, who testified for the defense, were unanimous in their statements that the light was red when Acosta turned into Shrewsbury Road and that this signal was proper for such movement.

Acosta testified he observed the light when his truck was one-half block before reaching the intersection. At first he said it was green, but subsequently corrected himself by stating the signal was red. He claims he negotiated the turn at six or seven miles per hour and went on to say he shifted his gears in the neutral ground area and continued forward into the outbound roadway where the crash occurred.

Turnage’s testimony is that his car had been following the truck about two and one-half car-lengths and that he also made the turn on a red light. He was forced to stop in the neutral ground area because of the accident, but otherwise he says he could have crossed the outbound lane on the proper light.

LaBarre was not able to make a turn because the light changed to amber; his statement is that the amber color showed just as he reached the intersection which necessitated his stopping.

The above embraces about all of the testimony which has any pertinency to the issue to be solved. As usual in cases of this kind, the eyewitnesses entertain different opinions as to what actually happened and besides the testimony is not free of inconsistencies. The transcript also reflects disputations concerning facts having no relevancy, such as whether the defense witnesses were able to or did see the Cross car before it emerged into the intersection and whether it was traveling with its wheels on the shoulder of the roadway.

The trial judge entertained the opinion that the evidence preponderated in plaintiffs’ favor and rendered judgment accordingly. We are well aware that the case involves only a factual issue and that in such circumstance, where the matter is decided in the court below upon conflicting evidence, great weight is accorded to the finding of the trial judge on the solid theory that he is in the superior position to determine the credibility of the witnesses and the weight to be placed on their statements.

Reviewing courts have always been extremely reluctant to reverse such factual findings and unless patent error appears will not do so. But occasionally it is easier for the appellate court to perceive fallacies and detect certain circumstances which might have escaped notice of the trial judge, and we believe this is particularly so in a case such as this where the matter is tried piecemeal. The first hearing was on January 23, 1953, when six witnesses testified, and then the trial was adjourned to a future date for the taking of further evidence. A period of twelve months elapsed before testimony of the witness Counce was taken.

We find serious and manifest error in the judgment. We could not be convinced otherwise from Counce’s testimony than that Acosta negotiated his left turn on a red signal. Had the unfavorable green signal been showing as Counce declares it was, it is a foregone conclusion that he, who was stopped at the intersection waiting for the same green light, would have immediately accelerated his car, and it is reasonable to suppose he would have cleared the intersection before Acosta could reach the outbound roadway, and it would have been necessary to stop to avoid an accident with the truck. Cross heedlessly darted from the rear and to the right of Counce’s car into the intersection and ran into the side of the truck. He thus explains his actions :

“ * * * I saw the other car pull out and I was only one car length away and I pulled over to the side of him and I saw a brake-light go on and I slapped my brakes on too.”

We fail to find that Acosta “ran” an unfavorable light or was otherwise negligent.

The judgment appealed from is reversed, and it is now ordered, adjudged and decreed that plaintiffs’ suit be dismissed at their cost in both courts.

Reversed.


author: McBRIDE, Judge. REGAN, Judge.

text:
    Corinne DUBROCA, Wife of and James R. MARSALIS, v. Shelby P. LA SALLE, d/b/a Second Street Food Store.
    No. 20676.
    Court of Appeal of Louisiana. Orleans.
    March 11, 1957.
    Rehearing Denied April 15, 1957.
    Writ of Certiorari Denied June 10, 1957.

      McDonald & Buchler and Roy L. Price, Metairie, for defendant-appellant.
    Claude F. Kammer and William V. Dunne, New Orleans, for plaintiffs-appel-lees.
   McBRIDE, Judge.

Plaintiffs bring this suit for damages against Shelby P. LaSalle, the defendant, as a result of Mrs. Marsalis’ having been bitten or scratched by a Siamese cat on January 12, 1953, in a store in Jefferson Parish, of which the defendant is proprietor, the occurrence having taken place while Mrs. Marsalis, who was accompanied by her husband, was shopping. The cat is the pet of defendant’s minor son. Mrs. Marsalis is asserting her claim for personal injuries and her husband is seeking reimbursement of the costs of the medical treatment of his wife. From a judgment in favor of plaintiffs, defendant appeals.

While the testimony on the point is in conflict, we believe that it preponderates to the effect that after Mrs. Marsalis sustained her injury, Marsalis requested defendant to keep the cat under observation for fourteen days until it could be determined whether the animal was rabid and what medical precautions Mrs. Marsalis should take against being infected by rabies. We quote Marsalis’words:

“Then I asked Mr. LaSalle to lock the cat up for 14 days, and we had a little discussion about the time element relative to keeping a cat up that had bitten someone to note its condition after that period of time, and I asked him to be sure and lock it up, because I didn’t want my wife to take rabies treatment because there were numerous cats in the neighborhood that were reported rabid in the Jefferson Herald and Times, and a number of the papers, and there was quite an incident—
'Jfi * ‡ ‡ *
“I asked him to keep the cat up, to lock it up, and he said he would. * * *»

The defendant denies there had been any such conversation regarding the restraining of the cat for the purpose of observation, and his testimony is that neither Mr. nor Mrs. Marsalis considered the injury dangerous. He quoted Mrs. Marsalis as having said:

“Oh, it is nothing; don’t worry about it.”

We do not doubt that the defendant and his wife, she having been present in the store when the incident occurred, well knew of the serious consequences that could arise from the bite of an animal, nor do we doubt that they agreed to be cooperative' in the matter by observing the state of health of the cat during the period of incubation of rabies. At one point we find Mrs. LaSalle let slip this significant statement:

“Well, I think my husband notified me not to let it out and I have got that much sense to know that if a cat ever scratches anybody — ”

According to her statement the cat stayed:

“ * * * indoors where we always kept it on the opposite side of the grocery, it’s a basement house, and part of the basement is the store and the opposite side is our domicile and that’s where he was. He was supposed to be at all times.”

At any rate, on the evening of the fourth or fifth day after the episode in the grocery-store the cat escaped and the only explanation given is by Mrs. LaSalle, who-testified that this occurred as she and some-friends were making their exit via the basement door. The cat was gone for about a month, and in the meantime its whereabouts was not known. Upon returning home the animal gave no evidence whatever of being infected.

Two days after she had sustained the injuries, Mrs. Marsalis sought advice from her friend and neighbor, Dr. Homer Kirgis, whose specialty is in the medical field of neurosurgery. He thought Mrs. Marsalis should first determine whether the cat had been inoculated and then con-•suit her family physican. When it was learned a few days later that the animal 'had strayed from defendant’s premises, Dr. Kirgis urged Mrs. Marsalis to see her family doctor and admonished her to contact the Pasteur Treatment Ward of the ■Charity Hospital in New Orleans. How•ever, Dr. Kirgis subsequently undertook to administer the Pasteur treatment himself at •his home, the first injection being made about January 23, 1953. This treatment •consists of a number of injections of a prophylactic vaccine for rabies and we are informed that some persons are extremely •allergic to the serum. Mrs. Marsalis was evidently in this category as she suffered a noxious reaction to the serum which •brought about some ill effects.

In his reasons for judgment the trial judge said:

“ * * * This cat had not previously bitten or scratched anyone and ordinarily was a gentle, well behaved pet. While the cat should have been under •observation to determine whether or not it had rabies it escaped from the •defendant’s home, the defendant’s explanation of said escape being that the cat got out one night while he and his wife and another couple were preparing to leave to go out to dinner. * * *
“The Court holds that the defendant is liable both as a result of the relationship to the plaintiffs as store-keeper •and customer and because of the even more proximate cause of the injuries which resulted from the defendant allowing the cat to escape. Obviously it was the defendant’s duty to use a high degree of precaution and care in order that the cat might be kept under observation and this he failed to do.”

It is uncontroverted that there is no liability in defendant merely because the cat bit or scratched Mrs. Marsalis. Never before had the animal exhibited any vicious traits or tendencies and it had been, as the ■court found, a gentle and well-behaved pet and defendant was guilty of no negligence in allowing it to frequent his premises.

The law applicable to the owning and harboring of domestic animals and the liability of the owner or harborer thereof is well settled to the effect that when such animal suddenly and without prior warning displays a vicious nature, the owner or harborer is not liable in damages. But if in the past there has been any occurrence which is sufficient to have given notice that the animal is vicious or dangerous, then there is liability in the owner or harborer for such damage as may be caused by the animal. Tillman v. Cook, La.App., 3 So. 2d 230; Thomas v. Pecoraro, La.App., 164 So. 435; Woulfe v. D’Antoni, La.App., 158 So. 394; Anderson v. D'Ingianni, 16 La. App. 560, 134 So. 412; White v. Sens, 13 La.App. 343, 127 So. 413.

In Mercer v. Marston, 3 La.App. 97, we said:

“ * * * it is clear that liability rests on two bases, namely:
“1. Injury by an animal; and
“2. Fault or negligence on the part of the owner.”

We stated in Perez-Sandi v. Berges, 12 La.App. 191, 125 So. 185, 186:

“ * * * previous knowledge of the vicious tendency of an animal was necessary to hold its owner answerable in damages. This is our appreciation of the present state of the law in Louisiana, * *

From the reasons for judgment it is evident that the trial court was of the opinion that this rule of law does not apply in the case of a storekeeper and that because the relationship of storekeeper and customer existed between the parties the defendant is liable. This was an erroneous conclusion. The keeping of a domestic animal per se in a place of business does not constitute negligence and is insufficient to render the proprietor liable in damages.

All the law exacts of a storekeeper is that he keep his premises in a reasonably safe condition and use ordinary care with respect to patrons and others lawfully in his place of business. The defendant not having had notice or knowledge that the animal possessed vicious tendencies or that persons entering his business establishment would be exposed to danger because of the animal’s presence, he is not liable.

The trial judge also concluded that there was liability in defendant for having failed “to use a high degree of precaution and care in order that the cat might be kept under observation.” This conclusion is the focal point in the case.

The general basis of the law of tort in Louisiana is found in LSA-C.C. art. 2315 which in part reads as follows:

“Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; * *

Under our jurisprudence negligence is actionable only when it is the violation or disregard of some legal duty. In Prescott v. Central Contracting Co., 162 La. 885, 111 So. 269, 270, the Court said:

“ * * * it is a well-recognized rule of law that negligence is the violation or disregard of some duty.”

The Supreme Court in P. Olivier & Sons, Inc., v. Board of Com’rs of Lake Charles Harbor and Terminal Dist., 181 La. 802, 160 So. 419, 420, made this observation:

“A tort is a private wrong, independent of contract. It is a breach of legal duty, * *

In Weadock v. Eagle Indemnity Co., 15 So.2d 132, 138, the Court of Appeal for the Second Circuit had this to say:

“Every tort action embraces three distinct elements, viz.:
“1. Existence of legal duty from defendant to plaintiff;
“2. Breach of that duty, and
“3. Damage as a proximate result.”

Unless a man is responsible for another person’s injury or distress, ordinarily he is under no legal duty or obligation of giving him aid, help or assistance, or to go to his relief.

It is a well-recognized principle of law that:

“One who sees another in peril, for which he is in no way responsible and which is entirely disconnected from any agency or instrumentality with whose control he is concerned, is not under any legal obligation to1 attempt to rescue such person, * * 65 C.J.S., Negligence, § 57, p. 550.

In Plutner v. Silver Associates, Inc., 186 Misc. 1025, 61 N.Y.S.2d 594, 595, it was said:

“Concededly, there is no legal duty to offer relief or assistance to one who is sick or injured. It is true that there may be a strong moral and humanitarian obligation to furnish such aid and assistance under ordinary circumstances, but from time immemorial our courts have held that there is no legal responsibility so to do.”

In Buch v. Amory Mfg. Co., 69 N.H. 257, 44 A. 809, 810, the Court made these interesting remarks:

“ * * * Actionable negligence is the neglect of a legal duty. The defendants are not liable unless they owed to the plaintiff a legal duty which they neglected to perform. With purely moral obligations the law does not deal. For example, the priest and Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might, and morally ought to have, prevented or relieved. Suppose A., stand- ■ ing close by a railroad, sees a two year old babe on the track, and a car approaching. He can easily rescue the child, with entire safety to himself, and the instincts of humanity require him to do so. If he does not, he may, perhaps, justly be styled a ruthless savage and a moral monster; but he is not liable in damages for the child’s injury, or indictable under the statute for its death. * * * ”

But there is a rule of law which is just as well recognized:

“ * * * that one who voluntarily undertakes to care for, or to afford relief or assistance to, an ill, injured, or helpless person is under a legal obligation to use reasonable care and prudence in what he does. In such case the measure of the duty assumed is to exercise ordinary or common humanity, or to exercise with reasonable care such competence and skill as he possesses, or to exercise such care in the treatment of the injured person as the circumstances will allow; and the person who undertakes the care is liable if the existing injuries are aggravated or other injuries are caused by a lack of this measure of care.” 65 C.J.S., Negligence, § 58, p. 551.

In Restatement of the Law of Torts, Vol. 2, p. 881, the rule is stated thus:

“One who gratuitously undertakes with another to do an act or to render services which he should recognize as necessary to the other’s bodily safety and thereby leads the other in reasonable reliance upon the performance of such undertaking
“(a) to refrain from himself taking the necessary steps to secure his safety or from securing the then available protective action by third persons, * * *
is subject to liability to the other for bodily harm resulting from the actor’s failure to exercise reasonable care to carry out his undertaking.
“Comment:
“a. The actor may undertake to do an act or to render services either by an express promise to do so or by a course of conduct which the actor should realize would lead the other into the reasonable belief that the act would be done or the services rendered. * * * ”

This principle has been given application by the courts of several jurisdictions in a variety of cases.

L. S. Ayres & Co. v. Hicks, Ind., 40 N.E. 2d 334, rehearing denied 220 Ind. 86, 41 N.E.2d 195, 356, a storekeeper who was not responsible for the initial injury failed to exercise reasonable care to avoid aggravation; Carey v. Davis, 190 Iowa 720, 180 N.W. 889, 12 A.L.R. 904, where defendants negligently moved a laborer unconscious from heat to another place where he was exposed to increased heat and then abandoned him; Owl Drug Co. v. Crandall, 52 Ariz. 322, 80 P.2d 952, 120 A.L.R. 1521, defendant in seeking to assist plaintiff who had fallen negligently allowed her to sustain a second fall; Dyche v. Vicksburg, S. & P. R. Co., 79 Miss. 361, 30 So. 711, defendant undertook to convey plaintiff to a hospital but was tardy in doing so; Silva v. Providence Hospital of Oakland, 14 Cal. 2d 762, 97 P.2d 798, a charity hospital was held liable to a person already injured but who fell and sustained further injury as a result of the negligence of a nurse; Gates v. Chesapeake & O. Ry. Co., 185 Ky. 24, 213 S.W. 564, 5 A.L.R. 507, an injured trespasser allowed recovery from railroad which volunteered help but negligently cared for him; Yazoo & M. V. R. Co. v. Leflar, 168 Miss. 255, 150 So. 220, a railroad was held to be negligent for failing to obtain prompt medical aid for person injured by train; Clark v. State, 195 Misc. 581, 89 N.Y.S.2d 132, unreasonable delay in securing medical attention for an injured person of whom defendant had taken charge.

Our belief is that the above-discussed rule with respect to the duties of one who voluntarily undertakes to care for or to afford relief or assistance to an injured or distressed person is broad enough to have full application to the instant case. Perhaps the defendant, LaSalle, initially owed no duty whatever to Mrs. Marsalis, but when he once agreed to restrain and keep the cat under observation, he was bound to use reasonable care and prudence in doing so and to assume and exercise reasonable care and common humanity. It may be that Mrs. Marsalis had open to her some other course by which she could have had the cat incarcerated and examined in order to determine if it was rabid, but she unquestionably and in good faith relied upon defendant to carry out the agreement which he voluntarily made, thus foregoing such other possible available protection. It was of extreme importance to know if the cat had rabies so she could regulate her course of conduct with reference to the injury. We do not doubt for one moment that both defendant and his wife were fully cognizant that such injuries could be quite serious and exceedingly dangerous in the event the offending animal was infected with rabies. In fact we feel sure of our ground in saying this because of the statement of Mrs. LaSalle: “I have got that much sense to know that if a cat ever scratches anybody — .”

LaSalle’s liability would then depend on whether he used reasonable care with reference to keeping the cat, for as it developed later the Pasteur treatment was entirely unnecessary and the escape of the cat was the direct and proximate cause of the necessity for the injections and the ill effects which Mrs. Marsalis suffered as a result thereof.

Neither defendant nor his wife took any especial steps or means to prevent the cat from straying from their premises. The cat, which was three years old, had always been kept in the basement and was allowed access to the yard from time to time. No change whatever in the animal’s usual routine was undertaken and we must hold that defendant failed to use ordinary or reasonable care to see to it that the animal was kept secure, and, hence, defendant is liable unto plaintiffs for whatever damages they sustained as a result of such lack of care.

Mrs. Marsalis tolerated the vaccine very well until the fifth or sixth injection when fever developed. Upon the thirteenth injection she claimed some additional discomfort, particularly a generalized aching. Dr. Kirgis states that when the fourteenth and last injection was administered, Mrs. Marsalis claimed to feel slightly worse although she did not appear to be seriously uncomfortable at the time. Shortly afterward Mrs. Marsalis developed nausea, headache and soreness of the neck and became somewhat disoriented. It was about this time that she consulted Dr. Walter Mattingly, her family physician, and was sent to a hospital on February 8, 1953-, and remained there for an initial period of three days, was readmitted about a week later and remained in the hospital for eight more days. The only medical attention Mrs. Marsalis received at the hospital was by Dr. Mattingly and his assistant, Dr. Dean. Dr. Kirgis states he called to see Mrs. Marsalis a few times while she was hospitalized, but it clearly appears that these visits were on a friendly and not a professional basis.

For some reason or other which is totally unexplained, plaintiffs saw fit not to call either Dr. Mattingly or his assistant as witnesses, notwithstanding the testimony of the two physicians was material insofar as the case for the plaintiffs was concerned. The trial judge even warned plaintiffs of this. At one point the judge asked counsel: “ * * * do you intend to call Dr. Mattingly as a witness?” and the reply was: “No, sir.” Later on during the trial the court said: “Let’s get over this. You want more on the hospitalization. You better get Dr. Mattingly and have him testify.”

Dr. Kirgis testified that prior to her first confinement in the hospital, one of the patient’s major complaints was of headaches and fever. He mentioned something about a spinal puncture being made in the hospital and stated that Mrs. Marsalis also had a paralytic ileus and paralysis of the intestines, this latter condition causing a distention of the abdomen. He also said her processes of elimination were affected.

But Dr. Kirgis could not with any degree of certainty or finality ascribe any of these symptoms to a reaction to the Pasteur injections. When asked to give his opinion, Dr. Kirgis said:

“Well, I don’t think anyone could say that it absolutely, unequivocally is a result of the Pasteur treatment.”

He was also asked if he would say the same for the abdomen and bladder condition and his answer to that was:

“Yes, I feel that it is, but I — there’s no way of definitely proving it.”

On his direct examination the doctor was asked the question whether he felt the Pasteur treatment was the direct cause of plaintiff’s condition and he gave this answer:

“Well, I wouldn’t just say dogmatically that it is, but I would say that it might be.”

In answer to a question by the trial judge as to whether an examination would reveal that the plaintiff’s complaints were not associated with the Pasteur treatment, Dr. Kirgis answered:

“No, I don’t think that it could be established that they are not associated with it. The point that I was making was that an examination, I think, would definitely establish objective evidence of disfunction of the bladder and of the intestines. Now, what could not be definitely established would be whether or not it absolutely was the result of those injections.”

Dr. Mattingly and his assistant, Dr. Dean, as the attending physicians, we believe, were the proper and only witnesses who could testify as to Mrs. Marsalis’ complaints and the course of treatment given her, and their testimony would have shed much light on this as well as her previous medical history. It is not at all unreasonable to assume that such a disclosure as might have been made by Dr. Mattingly and his assistant would have facilitated in the determination of whether there was a causal connection between the Pasteur treatment and the alleged results complained of. There is embedded in the jurisprudence of this state a doctrine that the failure of a litigant to call a material witness creates a strong presumption that his testimony would not have aided the litigant’s cause, but rather would have been detrimental to it. Certainly in the face of this presumption of law and the admitted uncertainty of Dr. Kirgis as to whether there was a causal connection between the Pasteur treatment and Mrs. Marsalis’ complaints, we do not believe that this court could possibly hold that the plaintiffs have established that all of the complaints alleged by Mrs. Marsalis were the direct result of the injections administered by Dr. Kirgis.

However, Dr. Kirgis’ testimony is sufficient to show that Mrs. Marsalis reacted unfavorably during the course of the injections, and it appears that she suffered headaches, fever, disorientation and nausea, and, of course, she is entitled to recover damages from the defendant, not only because she was compelled to submit to the fourteen injections, but also because of the effects of her reaction. The trial judge set her recovery at $3,000, but we believe that this award is excessive in view of the failure of Mrs. Marsalis to prove that her hospital stays and the attention rendered her by Dr. Mattingly were a result of the administration of the Pasteur injections.

In the case of Serio v. American Brewing Company, 141 La. 290, 74 So. 998, L.R.A. 1917E, 516, the Supreme Court allowed a plaintiff who had been bitten by a dog the sum of $1,000 in compensation for his suffering from the protracted effect of the Pasteur treatment upon his nervous system. Using that case as a guide, we believe that an award of $1,500 to Mrs. Marsalis in the instant case would be doing substantial justice.

Marsalis recovered judgment for the sum of $355.95, which consisted of $72.30 for drugs, hospital expenses $259.65, and for the fees of professional nurses $24. We believe his recovery should be limited solely to the amount expended for drugs, $72.30, as there is no proof that the hospital expenses or the nurses’ fees were incidental to the reaction to the Pasteur treatment. Only Dr. Mattingly and his assistant, Dr. Dean, could have enlightened the court with reference thereto. There is no evidence whatever showing what amounts, if any, were expended for doctor bills.

Therefore, the judgment appealed from is amended so as to reduce the award to Mrs. Marsalis to the sum of $1,500 and reducing the award to James R. Marsalis to the sum of $72.30, and as thus amended and in all other respects, the judgment is affirmed; the costs of appeal to be paid by plaintiffs.

Amended and affirmed.

REGAN, Judge.

I respectfully concur. In my opinion the record amply supports the award made by the trial judge, and therefore it should not have been disturbed by this court. Dr. Kirgis, a specialist in diseases of the central nervous system, and rabies being an infectious disease of the central nervous system, in my opinion was eminently qualified to evaluate the damages incurred by plaintiff by virture of the deleterious effects resulting from the injection of rabies vaccine.


text:
    Bertha CAUSEY v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Inc., et al.
    No. 20786.
    Court of Appeal of Louisiana. Orleans.
    March 25, 1957.
    Rehearing Denied April 15, 1957.
    Writ of Certiorari Denied May 7, 1957.
    Adams & Reese, Donald P. Conlay, New Orleans, for plaintiff-appellee and appellant.
    Doyle & Hughes, Robert G. Hughes, New Orleans, for defendants and appellants-appellees.
   JANVIER, Judge.

This is indeed a most remarkable case. Plaintiff, a woman 53 years of age, a passenger in a taxicab which was backed into by another car which was in front of it while the cab was standing stationary, claims to have been so seriously injured that she is now a hopeless and permanent invalid, must remain constantly in bed, and suffers torture at all times. Yet the contact between the two vehicles was unquestionably of extremely slight force, in fact so slight that one of the passengers in the car which backed into the cab did not even realize that there had been contact between the two vehicles.

Plaintiff brought this suit against Joseph Catalanotto, the driver of the cab, Checker Cab Company of New Orleans, Inc., owner of the cab, John Gray who owned and drove the other car, and Hartford Accident and Indemnity Company, the liability insurer of Gray. She prayed for solidary judgment against all defendants in the sum of $31,-456.68. She later abandoned her suit insofar as it was against Catalanotto and the taxicab company, and the matter is now before us on appeal by Gray and Plartford Accident and Indemnity Company from a judgment against them in the sum of $8,-731.68.

Her list of injuries is so voluminous that we shall not at this point take the space necessary to quote it from her petition. She alleges that before the accident she had a “regular work record,” and that she “was a very vigorous person and enjoyed good health.”

The evidence was taken before a Commissioner appointed by the Judge of the Civil District Court under authority of LSA-R.S. 13:1171. Judgment was rendered in accordance with the report and recommendation of the Commissioner.

When the report of the Commissioner was filed defendants objected to it, but plaintiff filed no objection, though, on her behalf, it is now contended that the amount of the award is too low and' should be very substantially increased. Furthermore, plaintiff has not perfected her appeal, nor has she answered the appeal of defendants. She did file a motion for appeal and obtained an order granting her an appeal, but did not file a transcript, nor did she ask that the transcript which was filed by plaintiffs be considered the transcript in her appeal.

Because of her failure to object to the report of the Commissioner and because of her alleged failure to perfect her independent appeal, it is contended on behalf of defendants that under no circumstances may the judgment be increased in her favor. Whether, by failing to object to the report of the Commissioner and by failing to do more than obtain an order granting her appeal, she has lost her right to demand an increase in the amount awarded, is a question which we are not called upon to determine since we have reached the conclusion that the judgment in her favor must be reversed entirely and her suit dismissed.

We have said that this is a most remarkable case and we base this statement on the fact already referred to that the record leaves no doubt at all that the contact between the two vehicles was of such slight violence, if the word violence is appropriate at all, that the statement of Mrs. Causey that she was “barrelled” and “dashed” around in the rear seat of the taxicab is a manifest exaggeration. In fact, we consider it a masterpiece of understatement to refer to her statement as an exaggeration. Note the statement of her injuries as they appear in her petition:

1. marked limping protecting right knee, which is bandaged.
2. thoracolumbar kyphosis T1 through LI.
3. thoracolumbar scoliosis, convexity to right.
4. left paravertebral muscle spasm on erect posture, relaxes on left lateral tilt of spine.
5. tenderness of all vertebral spines in lumbar region, much more marked at 5th lumbar.
6. marked limitation of lumbar spine movements in all directions.
7. exquisite tenderness cervical spines C2, C3, and C4, merely touching skin.
8. limitation of neck extension and flexion.
9. 30% of normal grip of hand on right side.
10. 30% of normal most hand and forearm muscles, right side.
11. 50% of normal arm muscles, right side.
12. 10% of normal right foot and leg muscles.
13. 70% of normal, right thigh muscles.
14. variable vibration and position sensation, right side of body.
15. variable diffust sensory changes, right upper and right lower extremity.
16. mild peroneus longus atrophy, right leg.
17. moderate swelling, right ankle.

In addition to these claims, plaintiff states that she was required to submit to an operation for hernia, that she lost several front teeth, that because of headaches she has been compelled to use a twelve pound weight in a traction arrangement on her neck, and that she is now a permanent, hopeless invalid and will never again be able to work, even if she is able to leave her bed for more than short intervals and in extreme emergencies.

Defendants admit that they would have been liable for any injuries Mrs. Causey might have sustained, but they deny that she sustained any injury, and maintain that she had suffered all her life with congenital deformities and ailments, and that for many years she had been an extreme and confirmed hypochondriac. That she had been a hypochondriac for a long time is made very evident by the reports from the hospital where her own doctors stated that she was suffering from “hypochondriasis”.

Let us now discuss the facts of the accident. The Gray car, on its way in Canal Street toward the Mississippi River, stopped at the corner of St. Charles Street because a red traffic light faced Gray. Just behind his car was the taxicab in question which was also stopped. To the rear of the taxicab and alongside both cars were many other vehicles. At that corner the street cars which are permitted to turn right off the neutral ground of Canal into St. Chaides Street, do so on a red light. A street car which should have turned could not do so because the Gray automobile had stopped partially on the curved street car track. Realizing this, Gray backed his car off the street car tracks and the taxicab also backed a few feet. As Gray backed, he removed his foot from the brake and the car rolled a very short distance farther back than he intended it should and it struck the front grill of the taxicab. Its rear bumper slipped over the front bumper of the cab in which plaintiff was a passenger.

There is no doubt at all that the impact had no semblance of violence. Mrs. Causey herself could not say just what happened. When asked: “Do you know anything about how the accident happened?” she answered: “It happened so suddenly, so quickly, I could not say and tell the truth.” She then said: “The only thing that I know that I can tell you is that I just got the worst end of the deal, that’s all.” She was asked whether she remembered “any blow of any kind to the Checker Cab,” and she answered: “All I remember was me dashing around in the back seat.” A little later, when asked whether she remembered what happened, she said: “No. All I know I was pushed around and flopped around.” And, finally, to the question: “Can you tell me whether the cab was jarred hard or easy?” she answered: “That, I Can’t answer.”

When the driver of the cab asked Mrs. Causey whether she had been hurt she answered that she had not and she said: . “What is the matter with that damn fool ? He can’t drive?” Nor is it denied that when the driver asked her: “Are you all right?” she answered: “There ain’t nothing wrong with me.”

As to the force of the impact, Gray, the driver of the car which backed into the taxicab, said: “I backed up just a little bit probably two or three feet, maybe four, I really don’t think three feet at the most. I bumped the car behind me a little bit. * * * The impact was slight. It did not throw me forward at all.”

The mother of Gray who was in the car with him said that she did not feel any jolt. She added: “I did not even know we hit anything.”

Catalanotto, the driver of the cab, when asked whether he felt any impact, answered: “No, sir. There was no jolt at all, I would say.”

Joseph L’Hoste, the Safety Director of the cab company, when asked what damage had been done to the cab, said:

“Apparently none, until the driver came to the garage later in the evening and made out his accident report. Then we noticed a slight dent in the front bumper of the cab.”

He identified a photograph showing the front bumper and an examination of that photograph shows plainly that the injury to the taxicab amounted to practically nothing.

On the first examination by her own physician, Dr. Frank C. Hava, he was asked what he found and, although he said that he did find that the hernia from which she had previously suffered, was enlarged, he said: “What I found, the only thing, she complained of pain”. Arid, in spite of the fact that she claimed that several teeth had been ^o badly damaged that she had them removed later and that her mouth was full of blood at that time, Dr. Hava said: “I didn’t look into her mouth. I am not a dentist.”

Dr. Philip P. Lanasa, who examined her on the next day, says that the only thing that he found was the hernia, but that she had the associated scars, referring to the numerous scars from various operations. He was asked: “Was it your opinion that those were conditions caused by the accident?” and he answered: “No.” He was asked:

“ * * * did you detect any bruises, contusions, cuts, abrasions, brushburns, broken skin or any external evidence of injury whatsoever on Mrs. Causey’s body at the time you examined her ?”

And he answered: “No, I did not.”

There are several features about the matter which appear to us extremely significant. In the first place, Mrs. Causey would have us believe that, as alleged, before the accident she was in perfect health and had a splendid work record and had no knowledge of any physical infirmities. The truth of the matter is that there can be no doubt at all that she had congenital curvature of the spine, that she had had operations too numerous to classify — defendants say 13 and our check of the record indicates at least 11 — and that her work record was extremely spotty. Her operations had included herniotomy, hysterectomy and necrosis. We understand necrosis to be a sloughing off of the tissues which, in this case, were between the wall of the stomach and the skin. And it is shown that the necrosis in this case resulted from the fact that after one of her operations alcohol had been injected with the unfortunate result mentioned. She had had gallstones, spondy-lolisthesis and arthritis, and apparently for many years had been almost constantly under the care of surgeons and physicians. Spondylolisthesis, we are informed, and we find from Webster’s New International Dictionary, Second Edition, means: “Forward displacement of a lumbar vertebra, esp. on the sacrum.” In Gray’s Attorney’s Textbook of Medicine, at page 635, spondy-lolisthesis is referred to as a condition “wherein the fifth lumbar vertebra is thrown forward upon the sacrum.”

In fact, when, as a result of the slight accident, she remained on the scene for sometime, she volunteered the statement that her doctor had instructed her to telephone him as soon as she reached home. Of course, that message had nothing to do with the accident, for, at that time, the doctor had no knowledge whatever that she was to be in an accident.

Although she says that her work record had been splendid, it was actually shown that, as a matter of fact, during the three years and three months which preceded the accident, she had worked only a fractional part of the time. In 1949, she worked ten full weeks and 23 odd days intermittently. This would mean that she worked 83 days out of 365. In 1950, she worked four full weeks and 78 odd days intermittently which would mean that in 1950 she worked 102 days of the 365. In 1951, she did not work at all, probably because of operations, and in the three months which preceded the accident on March 29th, 1952, she worked eight weeks.

It is true too that some of her doctors thought that some of her present ailments might have been due to the accident in question, but with one exception all based their conclusions almost entirely on the history which she gave them of an extremely severe crash between the two cars. She no doubt told them what she has told the Court, that she was “barrelled” and “dashed” around in the rear of the car which we have concluded is in no sense true.

Plaintiff’s statement as to her teeth is entirely unbelievable. She admits that she said nothing to the driver of the cab about injury to her mouth, nor in fact about any other injuries, and yet she says that when she reached her home she found that there was much blood in her mouth which she had not noticed earlier, and that, as a result, her dentist found it necessary to extract several of her front teeth. The dentist was not produced as a witness.

In June, which was about three months after the accident, she was again forced to submit to another operation for hernia. The surgeon who performed the operation says that before the accident she had a small hernia which was about three-quarters to an inch in length, and that this had increased in size to about twelve inches.

Another surgeon who examined her one day after the accident found no such enlarged hernia and further said that he found no undue tenderness at that spot and that whenever a hernia is either caused or enlarged by trauma there is necessarily considerable local pain. This surgeon also said that the hernia which he found was apparently not of recent origin. And he said that it was his opinion that the hernia had not been caused or increased in size by the accident.

Another surgeon, Dr. M. L. Michel, Jr., stated that trauma is not the cause of hernia to the abdominal wall and that this particular hernia was the result of many previous operations and was due to a very weak abdominal wall structure and not to this accident. Dr. Howard H. Karr was of the same opinion.

A host of expert surgeons, neurologists and orthopedists testified both for plaintiff and defendants, and we find that all of those who testified for defendants were of the opinion that the accident had had nothing to do with the deplorable, pitiable condition of plaintiff, and as we read the testimony of those who testified for plaintiff, we feel that they were of the opinion that there had been a very severe trauma and that it is on this belief that they base their respective opinions that the accident had had some causal connection with plaintiff’s present condition.

Although Mrs. Causey stated that she was required to remain almost constantly in bed, all of the surgeons, with one exception, that is Dr. Blaise Salatich, expressed the opinion that she would have been in much better condition if she could have been persuaded to abandon her bed and to resume a more normal life. The Commissioner expressed the opinion that she should not have remained in bed.

Another thing that we find it hard to believe is that she was required to wear some kind of a traction collar with a twelve pound weight attached to it and that this afforded relief from her constant headaches. Dr. Howard Karr, admittedly a qualified expert neurosurgeon, said that he saw no reason for the application of this traction and when asked whether he found the condition which was said to have made the traction necessary, he said that he had found no such condition.

Dr. Karr was asked:

“Did you consider this patient gave you a fair statement of her complaints, or that she exaggerated her complaints or she underestimated her complaints?”

He answered:

“I would say that there was no correlation between this patient’s complaints and her objective findings, * * *»

and he added:

“I might add that obtaining her cooperation to get her out of bed even to be examined was carried out with a great deal of reluctance on her part, but it was accomplished.”

Dr. Robert M. Rose, another expert, expressed grave doubt as to whether Mrs. Causey had constantly been subjected to the head traction already referred to, saying:

“ * * * regarding her head, there was nothing abnormal on orthopedic examination and there was no reddening of the skin under the chin or thickening of the skin about the chin such as results from head traction even for very short periods of time.”

He was asked whether, when a patient continues in said traction, there is not some visible mark, and he answered that there undoubtedly would have been some such mark and that he found no evidences thereof. He said also that plaintiff needed; neither the head traction nor the body ■brace. Note his statement on this subject:

“ * * * it was obvious while she was at the hospital and while she was-being examined that she didn’t need the head traction that she claimed she couldn’t get along without. And when we got her up and moved her around the room in the course of the examination, it was obvious that she could move around without the body brace which she was lying in. And since there were no evident pathological changes to sustain her contention, I thought it was equally obvious that she could get around just about as well as she wanted to in relation to the way she was able to get around previous to her injury.”

Dr. O. L. Pollingue, on the question of whether or not there was necessity for traction, said that he found no necessity therefor.

It is true that there are lay witnesses who testified that prior to the accident plaintiff was in good health and that since the accident she has been able to do absolutely nothing. One of the witnesses, Mrs. Hebert, had known Mrs. Causey only during the few weeks preceding the accident. Another witness, Mrs. Keller, had seen her only a few times between the date of the accident and the trial, twenty-two months later. And although a third witness, Mrs. Boden, testified that she had worked at Dailey’s Clothing Store and at that establishment had known Mrs. Causey for the four years preceding the accident, as already shown, the record indicates that during that entire period Mrs. Causey had worked only thirty-three weeks.

Another witness, Mrs. Scanlon, stated that Mrs. Causey had been employed'for twelve months each year, hut an examination of her testimony shows that she herself was only a part-time employee, and it may well he that on each occasion on which she worked at the establishment, Mrs. Causey was also there.

Reverend Miller, who stated that whenever he visited Mrs. Causey he found her in bed, no doubt was telling the truth as he knew it, but he saw her only rarely and on each of those occasions no doubt she was in bed.

One thing is certain, as we have already said, she had suffered for many years with almost every ailment to which human flesh is heir'.

It is interesting to note that the various experts expressed opinions as to the effect of pre-existing conditions from which plaintiff had suffered. For instance, Dr. Jose Garcia Oiler, one of plaintiff’s physicians, found that spondylolisthesis had existed long before the accident and that the arthritis from which plaintiff suffered was not the result of trauma. Dr. Robert M. Rose also found that the spondylolisthesis had not been caused or aggravated by the accident, and Dr. Pollingue and Dr. Oiler, and even Dr. Salatich said that both the spondylo-.lithesis and the arthritis could cause many of the complaints of plaintiff without the intervention of trauma.

It is regrettable that a plaintiff in such a condition should not be permitted to recover, but we feel that the accident on which this suit is based had nothing whatever to do with plaintiff’s present condition.

The question of whether an unsuccessful pauper plaintiff must be condemned to pay costs was considered and determined by us in an opinion handed down today on application for rehearing in Coulon v. Anthony Hamlin, Inc., La.App., 93 So.2d 557.

The judgment appealed from is annulled, avoided and reversed and plaintiff’s suit is dismissed at her cost.

Reversed.


author: TATE, Judge.

text:
    Elga Joseph GUILLORY, Plaintiff-Appellee, v. REIMERS-SCHNEIDER COMPANY, Inc., Defendants-Appellants.
    No. 4383.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.

      Ponder & Ponder, Amite, Reid & Reid, Hammond, for appellants.
    C. Paul Phelps, Ponchatoula, for appel-lee.
   TATE, Judge.

This appeal is from the award of workmen’s compensation benefits to plaintiff Guillory for total and permanent disability.

The accident of January 1, 1954 and the initial disability resultant are not denied. Defendant employer paid compensation to plaintiff for 81 weeks, but resists further liability, allegedly because: (a) the disability from the initial lumbosacral back strain has ceased; (b) even if plaintiff is still disabled, it is due to his failure to lose approximately 50 pounds, since his obesity and poor posture rather than the initial accident are the cause of any residual disability.

Plaintiff had been employed as a gang saw operator in defendant’s sawmill for some time before the accident. His duties required the regular performance of heavy lifting.

Dr. Scarborough, general practitioner testifying for plaintiff; Dr. Thames, general practitioner testifying for defendant; and Dr. Bannerman, orthepedic specialist testifying for defendant; all agreed that at time of trial, Guillory was indefinitely disabled for the performance of such heavy duties by chronic lumbar or sacroiliac strain, or by muscular weakness resulting from this original strain, aggravated by-Guillory’s obesity (“a pendulous abdomen”) and his poor posture. The District Court rightly found that the great preponderance of the medical evidence supports a judgment entitling Guillory to workmen’s compensation benefits for total and permanent disability.

The period of disability resulting from the initial back strain has been greatly prolonged by plaintiff Guillory’s preexisting and continuing obesity and by his poor posture. This is immaterial as regards liability for workmen’s compensation payments during continued disability. “The courts have firmly established the principle that the employer must take the worker as he finds him. The worker who is abnormally susceptible to disability from an accident is entitled to the full protection of the compensation statute,” Malone, Louisiana Workmen’s Compensation (1951) 278. The employee’s disability is fully compensable when precipitated by the industrial accident, even though caused also-by a contributing pre-existing or previously dormant physical condition or predisposition, Hemphill v. Tremont Lumber Co., 209 La. 885, 25 So.2d 625; Behan v. John B. Honor Co., 143 La. 348, 78 So. 589, L.R.A.1918F, 862; Michel v. Maryland Casualty Co., La.App. 1 Cir., 81 So. 2d 36.

The record reflects that Guillory has weighed approximately 255 pounds all his adult life, he now being 55 years of age. He claims to have lost 15 pounds over a year as a result of dieting pursuant to doctors’ instructions, although the latter wished for him to lose 40-50 pounds and felt he should have lost more. In effect, the defense is that plaintiff’s present disability results from his non-cooperation with the medical treatment rather than from the industrial accident.

The burden is upon the employer to prove the defense that the employee’s willful failure to cooperate with medical treatment, or his willful misconduct, is the cause of the continued disability, Edwards v. Shreveport Creosoting Co., 207 La. 699, 21 So.2d 878, and the proof to sustain this defense must be “clear, convincing and conclusive,” Williams v. Texsun Supply Corporation, La.App. 1 Cir., 47 So.2d 93, 99.

There is a complete absence of proof herein as to any willful failure to cooperate with medical treatment. The inference attempted to be drawn from the employee’s failure to lose weight is not only contradicted by the employee’s heroic loss of some weight from his lifelong-norm despite a much more sedentary life, but also by common observation that the Lord Who created some of mankind fat and some lean, also created men with unequal abilities to gain or lose weight, through different metabolisms, degrees of will-power, practical opportunities to follow different diets, etc. Certainly the mere failure to- lose weight in accordance with a glib medical recommendation cannot in the light of ordinary observation be characterized as proof of willful failure to cooperate with medical treatment.

By answer to- the appeal plaintiff requests allowance of attorneys’ fees under LSA-R.S. 22:658 for arbitrary and capricious non-payment of workmen’s compensation benefits. This statutory penalty applies only to insurer defendants. The alleged excess insurer of defendant is not a party to this suit, and the relief requested will therefore be denied.

Further, plaintiff prayed for a 10% penalty for frivolous appeal under Article 907, C.P. We do not think the appeal herein so frivolous and totally without merit as to justify such penalty.

Finally, plaintiff-appellee in his answer to the appeal urges that this appeal should be dismissed insofar as it is suspensive, because the defendant-appellant’s bond is insufficient. The District Court fixed the bond for the suspensive appeal at $4,500, whereas plaintiff-appellee urges with considerable force that there is no statutory authority for the Court to authorize, a' sus-pensive appeal save upon the appellant’s furnishing a supersedeas bond in accordance with the literal terms of Code of Practice, Article 575 in an amount equal to one-and-one-half the amount of the judgment (or herein, in the amount of $8,-810.70, which is the amount of the weekly compensation for the remaining 319 weeks maximum of total disability, multiplied by one and one-half).

In the first place, “When the appellant gives bond for the amount fixed by the court, the appeal can not be dismissed” on the ground that the bond is insufficient in amount, Elder v. City of New Orleans, 31 La.Ann. 500, at page 501; Succession of Baumgarden, 35 La.Ann. 127. LSA-R.S. 13:4579 provides: ‘‘No appeal shall be dismissed * * * on account of any error in the amount of the bond * * * until the party furnishing such bond shall have failed to correct the error, inaccuracy or omission, or to have furnished a supplemental or additional bond, or surety or sureties, as provided in R.S. 13:4570 through 13 :4580.”

Pertinently in the statutory provisions referred to, LSA-R.S. 13:4573 provides that after the deficiency is called to the attention of the person providing the bond, such person has four days within which to furnish a new or supplemental bond. (In the present instance, by rule and notice the appellee notified appellant of its contention that the bond furnished per court order was insufficient to sustain a sus-pensive appeal; the District Court denied the appellee’s motion for a greater bond.) The statute continues that if the party called upon to furnish greater bond “fails to furnish same, the case shall then proceed without any diminuation of the right of the adverse party, or other party in interest, to test the sufficiency of the bond furnished”, LSA-R.S.'13:4573,

Plaintiff-appellee urges that Upon seeking an increase in the amount of the suspensive appeal bond in the District Court, which motion was denied, he nevertheless has retained his right to question the sufficiency of the bond in this court under the last-quoted statutory provision. This contention is apparently correct, although the subsequent statute provision also seems to be applicable, if this court were to declare the bond insufficient: “Should any bond be declared invalid for any reason whatsoever, the party furnishing such bond, may within four judicial days thereafter, furnish a new bond.” Pittman v. Lilly, 197 La. 233, 1 So.2d 88; State v. Comus Cleaners, La.App.Orl., 141 So. 393. See also: Article 898, C.P.,; LSA-R.S. 13:4433; Hays v. Mayer, 117 La. 1067, 42 So. 505; Lerner v. Bischof, La.App.Orl., 189 So. 142.

However, while an answer to the appeal requesting “reversal of any part” of the judgment or greater “damages against the appellant” may be filed any time prior to argument of the case in the Court of Appeal, Article 890, Code of Practice, Michel v. Maryland Casualty Co., La.App. 1 Cir., 81 So.2d 36, a motion to dismiss an appeal “on account of any defect, error, or irregularity in the order of appeal, or in the appeal bond, which is not jurisdictional and which does not strike at the foundation of the right of appeal, must be filed within three days after the return day”, Pool v. Gaudin, 207 La. 403, 21 So.2d 424, at page 425; Articles 886, 590, Code of Practice; Port Barre Lumber Industries, Inc., v. Dixie Construction Co., 231 La. 494, 91 So.2d 769; Bannister v. Chisesi & Longo, La.App.Orl., 5 So.2d 145; Stovall v. Thomas Lumber Co., La.App. 2 Cir., 189 So. 379; Richard v. Horecky, 1 Cir., 13 La.App. 507, 128 So. 177; Powell Motor Co. v. A. Christina & Bros., Orl., 8 La.App. 174.

The return date of this appeal was December 3, 1956. The answer to the appeal (including the motion to dismiss the sus- . pensive appeal) was not filed until January 23, 1957, prior to argument, and on the first day of the January 1957 session at Amite, but more than three days after ’the return date of the appeal.

While the total failure to file a bond timely is jurisdictional in nature and may be raised by motion to dismiss after the three days, see e. g., Bannister case above cited (and in fact the Court may dismiss the appeal on such ground on its own motion, Lafayette v. Farr, 162 La. 385, 110 So. 624), our Supreme Court through Mr. (now Chief) Justice Fournet held in Esparros v. Vicknair, 191 La. 193, 184 So. 745, that the error of the trial court in setting a suspensive appeal bond at only $100, and not being attributable to the appellant, was not jurisdictional and is “such a defect or error that the appellee will be presumed to have waived unless such error or irregularity is urged by him in a motion to dismiss the appeal timely filed, within three days” after the final return date of the appeal, 184 So. 746. Therefore, we cannot consider the contention that the suspensive appeal bond was insufficient, since not timely raised by motion to dismiss filed within three days of the return date.

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

Affirmed.

      . Unless the appellant has been put in default by proceedings in the trial court, the appellee’s motion to dismiss the appeal for alleged insufficiency or irregularity of the appeal bond will not be considered by the appellate court, see authorities cited, Governor Claiborne Apartments v. Attaldo, 227 La. 39, 78 So.2d 502, Smith v. Crescent Chevrolet Co., La.App. 1 Cir., 1 So.2d 421.

      . Providing it be filed “within the first three days of the actual sittings of any regular session” at any division point, Article' 890, C.P.

      . In this Esparros case, as in the present instance, appellee had unsuccessfully sought by motion to require a greater bond to be set by the trial court than that originally fixed, and the Supreme Court noted that from the judgment of the District Court denying this motion “the plaintiff neither appealed nor applied to this court for writs.” Although counsel in brief states that an appeal was taken from the order denying the increased bail, the minutes do not reflect such appeal. The statute does not contemplate suspensive appeals from such judgments, LSA-R.S. 13:4580. In view of the holding herein that this defect— not being jurisdictional — must be raised by motion to dismiss filed within three • days after the return date of the appeal, ■this point is immaterial; .although presumably .supervisory writs were available to appellee in the event of substantial prejudice.