text:
    Dalton J. THIBODEAUX, Plaintiff-Appellee, v. PACIFIC MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 4406.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.
    Rehearing Denied June 4, 1957.
    Dubuisson & Dubuisson, Opelousas, for appellant.
    J. Minos Simon, Lafayette, for appellee,
   TATE, Judge.

Our Supreme Court dismissed the appeal in this case on the ground that the order of the trial court authorized appeal to the Court of Appeal, First Circuit, rather than to the high court. 231 La. 617, 92 So.2d 385. The transcript of the appeal was then filed in this Court. The Supreme Court had specifically refused to transfer the appeal to the present appellate tribunal under LSA-R.S. 13 :4441 on the ground that, in the complete absence of an order of appeal to that tribunal, there was no appeal properly brought or pending before it.

Counsel for plaintiff-appellee argues most persuasively that this court also should dismiss this appeal, which was not filed in this court until January 24, 1957 (immediately after the Supreme Court denied rehearing of its judgment dismissing the appeal therefrom), although the return date provided by the order of appeal to this court was June 20, 1955, and although on June 15, 1955, by written notice the counsel for the defendant-appellant was informed by the Clerk of the Supreme Court that the appeal had been filed and docketed therein.

The minutes of the trial court reflect that on April 28, 1955, by oral motion and order, an appeal was granted returnable to the Court of Appeal, First Circuit, on or before June 20, 1955. Requisite appeal bond per the order was filed on May 3, 1955.

As will shortly be seen, the Supreme Court rather than the present clearly had appellate jurisdiction of the matter, and both counsel frankly admit that until the case was called for argument before the high tribunal on November 14, 1956, they were under the impression that the appeal had been taken returnable to that court. It was at that time that diligent counsel for appellee, in reviewing the record to prepare his argument, discovered the minute entry indicating that the motion and order of appeal had been noted as to the present reviewing body rather than to the Supreme Court.

There is a complete lack of any showing as to whether the notation of appeal to the wrong court results from a “slip of the tongue” on the part of counsel for appellant or a “slip of the pen” on the part of the deputy clerk who made the notation for the minutes.

The law is well settled. The clerk of the trial court, and not the appellant, has the duty of filing the transcript of appeal in the courts of appeal; if the clerk fails to do so before the return date, the return date is automatically extended and the appeal will not be dismissed, Osborne v. Mossler Acceptance Corporation, 210 La. 1048, 29 So.2d 58, 59, Sirone v. Distefano, La.App. 1 Cir., 67 So.2d 150, Johnson v. Wyble, La.App. 1 Cir., 55 So.2d 711, “in the absence of some showing to the effect that a failure to file the transcript in timé-is due to some fault on the part of the appellant or his attorney ” Succession of Bickham, La.App. 1 Cir., 197 So. 924, 925. (Italics ours.)

The above italicized proviso is quoted with approval in Hotel Donaldson Co. v. Anderson Hotels, La.App. 1 Cir., 75 So.2d 884, 887, and in Vaughn v. American Bank & Trust Co., La.App. 1 Cir., 71 So.2d 644. In the Vaughn case, upon which appellee relies, the appeal was dismissed upon a showing that it was the incorrect motion of counsel for appellant (subsequent to the perfected appeal order) which had caused the appeal to be lodged initially in the Supreme Court and thus to be filed in this court long after the return day per the valid order or appeal.

The legal question before us is whether the appellant should be charged with fault and penalized by dismissal of his appeal for the failure to file his appeal herein until 18 months after the return date thereof, in the circumstances above outlined, and especially when he had received notice on June 15, 1955, that the appeal was filed in the Supreme Court (i. e., in the incorrect appellate tribunal as reflected by the minute entry of April 28, 1955).

Taking a realistic view of the circumstances of this case, it is apparent that the notification by the Clerk of the Supremé Court that the transcript was filed in that court before the return date of June 20, 1955, would not have put the appellant on notice that the appeal was filed in the wrong court, if the minute entry was the result of error on the part of the minute clerk in noting the wrong court when the counsel for appellant orally moved for appeal to the Supreme Court; in fact, such notification from the Clerk of the Supreme Court would instead reassure counsel that the appeal had been properly filed therein per counsel’s oral motion and the oral order, and before the return date.

Now whether the error reflected by the minute entry was the result of an inad-vertence by counsel for the appellant or in■stead by the minute clerk, the record does -not show; and, in the apparent absence of .anyone’s memory as to the event, such allocation of fault is impossible to make.

We think that the repeated enunciation ■of the rule that there must be some "showing1'’ that the failure to file the transcript timely is due to the appellant’s fault before the case will be dismissed, see Bickham and other cases cited supra, indicates that an appeal will not be dismissed unless there is a positive showing that the delay is .attributable to fault on the appellant’s part. For instance, in Cotter v. Figaro, La.App. 1 Cir., 36 So.2d 291, the appeal bond was -marked by the deputy clerk of court as filed on two different dates, one before and one after the delay expired for perfecting ■the appeal. There was no showing as to which filing date was correct. Pointing out that appeals are favored, we sustained the appeal.

“In the present case, on the face of the record it is not evident that appellant should be charged with the tardy filing of the transcript. In such circumstances, this ■court has frequently held that the return ■day is automatically extended until the record does reach here,” Carter v. Chambers, La.App. 2 Cir., 5 So.2d 46, at page 48.

Being unable to say from the present -record whether the delay was due to inadvertence on the part of counsel or of the ■deputy clerk, we are unable to say that a -showing has been made that the error was •due to counsel for appellant so as to justify the harsh penalty of dismissal of this appeal. The record does not reflect why the .appeal was not filed in accordance with the order of appeal as noted; in a sense, counsel could reasonably expect that the appeal had been forwarded in accordance with the order of appeal as entered in the minutes ■and was not called upon to question its lodgment in the Supreme Court when he received notice thereof, especially under the •circumstances of this case.

As to the merits:

We are at once met with the situation that the amount in dispute clearly exceeds our jurisdictional limit of $2,000, Article 7, Section 29, Louisiana Constitution, LSA. The prayer is for monthly disability payments under an insurance contract of $200 per month for the rest of petitioner’s life, or so long as disabled, plus penalties- and attorneys’ fees, and at the time of judgment in April, 1955, the unpaid monthly installments alone to that date amounted to $7,200.

Even though there is some question as to appellate jurisdiction, the Supreme Court’s order remanding an appeal to a court of appeal is final, and the court of appeal in question must accept jurisdiction of the appeal. Beene v. Pardue, 226 La. 606, 76 So.2d 902, Ilardo v. Agurs, 226 La. 613, 76 So.2d 904. But the Supreme Court specifically refused to transfer the present appeal to this court. 231 La. 617, 92 So.2d 385. We apprehend the high court’s decision to be grounded upon the holding that in the absence of a perfected appeal to that court, it had no jurisdiction to consider the appeal, either to transfer it to this court under LSA-R.S. 13:4441 or (presumably) to enter an order fully dismissing the appeal also as to the court vested with initial appellate jurisdiction by a valid order of appeal duly perfected ,by the filing of bond.

Being unable to say that the delay and confusion in the appellate process arising in this case was due to fault on the part of counsel for appellant, and in deference to the long-established policy that appeals are favored in law, we will exercise our discretion under LSA-R.S. 13 :- 4441 to transfer this appeal to the court of proper appellate jurisdiction, the Supreme Court. We do this because we feel we are absolutely without constitutional authority to consider this appeal on the merits, although we fully sympathize with the urgent plea of the plaintiff-appellee, a disabled farmer, that by this action we are further delaying a final determination of the judgment awarding him disability payments, the execution of which has already been suspended over eighteen months through no fault of plaintiff-appellee. But we cannot render judgment on the merits, and should we exercise our discretion and dismiss the appeal to avoid further temporary hardship to the plaintiff, we would deprive appellant of its day in court to question this award of $200 per month to the 33-year-old appellee for the rest of his life, when likewise the delays and confusion are not shown to be the fault of defendant-appellant.

For the foregoing reasons the appeal is ordered transferred to the Honorable the Supreme Court of Louisiana, and defendant-appellant is allowed 30 days from the date of finality of this judgment in which to perfect the appeal by filing proper transcript in said court; otherwise the appeal shall be considered as dismissed. Defendant-appellant to pay the cost of this appeal.


source: Caselaw Access Project

author: TATE, Judge.

license: Public Domain

text:
    Mrs. Elizabeth Joplin GILLIS et al., Plaintiffs-Appellees, v. The GREAT ATLANTIC and PACIFIC TEA COMPANY, Defendant-Appellant.
    No. 4413.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.
    Rehearing Denied June 4, 1957.

      A. Deutsche O’Neal, Houma, for appellant.
    Claude B. Duval, Houma, for appellees.
   TATE, Judge.

This is a suit for personal injuries sustained by the customer of a supermarket when a heavily loaded “grocery buggy” fell upon her on the morning of October 8, 1953, outside the store. The defendant supermarket appeals from the award of the resulting damages in favor of the customer, Mrs. Gillis, and her husband. Plaintiffs seek increase of the award by answer to the appeal.

The uncontradicted facts show:

Mrs. Gillis and a friend, Mrs. Falgout, had each bought large quantities of groceries at defendant’s store prior to the accident. These purchases were bagged at the cashier’s desk and placed on two “grocery buggies”. The latter were steel, double-decked (i. e., two baskets, one on top of the other), hand-pushed vehicles used to transport the groceries bought, and were admittedly at the time heavily loaded with the ladies’ purchases.

Detiveaux, the only “bag boy” on duty that morning to take the bags of groceries sold from the store to the customers’ cars, pushed the two buggies along the sidewalk in front of the store towards the street east of the supermarket, across which Mrs. Gillis’ automobile was parked. He was preceded by Mrs. Gillis. Arriving at the curb of the sidewalk, he pulled one buggy down off the curb onto an inclined concrete slab (for parking purposes) which for 20 feet sloped downward until it met the street proper. Detiveaux turned back to pull the other buggy down off the curb, but before he could so do he heard Mrs. Gillis scream. He turned back and saw her on the ground with the heavily loaded buggy across her legs.

It is at this point that some conflict develops in the testimony.

Detiveaux’ version was that the other lady had also gone on ahead of him and was in front of Mrs. Gillis and himself, whereas both ladies insist that Mrs. Falgout was following Detiveaux while Mrs. Gillis preceded him. Further, Detiveaux testified that when he turned after Mrs. Gillis’ scream, she was lying at the very end of the concrete parking slab, partly in the street, that is approximately 20 feet from where he stood at the sidewalk. The chief importance of such latter testimony, if accepted, is that it would tend to support defendant’s factual theory that the accident probably resulted from Mrs. Gillis’ impatient effort to expedite her departure by herself carelessly pulling the loaded grocery-buggy towards her car so as to cause it to fall upon her.

Contrariwise, both ladies testified positively that immediately after the accident, Mrs. Gillis lay as she had fallen approximately midway down the concrete slab. Both ladies further testified positively that Mrs. Gillis, ahead of Detiveaux, had stepped off the curb and was walking without pushing a buggy towards the car with her back toward Detiveaux while Detiveaux was pulling the buggies from off the sidewalk curbing onto the inclined slab in order to continue pushing same toward Mrs. Gillis’ car.

The District Court accepted the testimony of these ladies. It further found that Mrs. Gillis lay midway on, rather than at the end of, the parking slab immediately after the accident. The very swiftness within which Mrs. Gillis was struck following Detiveaux’ pulling the first loaded grocery buggy onto the sloping concrete slab, and the fact that Mrs. Gillis was a one-armed lady, are somewhat corroborative of the correctness of her version of the accident, as against defendant’s suppositions.

Having accepted as true the testimony that the accident occurred while Mrs. Gillis was walking down the incline with her back toward Detiveaux and the grocery buggies in his charge, when she was suddenly struck by one of these buggies, the District Court applied the doctrine of res ipsa loquitur and held that the defendant, not having exculpated itself from negligence, was liable in the premises.

Professor Wex Malone’s authoritative article, “Res Ipsa Loquitur and Proof by Inference — A Discussion of the Louisiana Cases”, 4 La.Law Review 70, summarizes the applicability of res ipsa loquitur as follows:

“It is commonly stated that two conditions must be met before the doctrine can apply. First, the accident must be one that ordinarily would not occur in the absence of negligence,” 4 La.Law Review 76. “A second requirement * * * is commonly said that res. ipsa loquitur is not available unless it is shown that the defendant was in exclusive control of the agency that caused the injury.” 4 La.Law Review 80.

When the inference of negligence-on the part of the defendant arises by reason of application of the doctrine of res-ipsa loquitur to a case, “the burden is then on the defendant to show absence of negligence on his- part.” Northwestern Mutual Fire Association v. Allain, 226 La. 788, 77 So.2d 395 at pages 396-397, or “to exculpate himself from negligence,” Saunders v. Walker, 229 La. 426, 86 So.2d 89, at page 93; Watkins v. Gulf Refining Company, 206 La. 942, 20 So.2d 273.

The very evidence by which defendant attempted to show that such loaded grocery buggies, properly placed on the slope in a locking position, or even unlocked if in good working order, could not have rolled so as to strike Mrs. Gillis, tends to show that the buggy would not have rolled down the incline and have struck Mrs. Gillis if it had been properly placed in locking position, or if it was in proper non-rolling condition.

The District Court properly found that the buggies were under the sole control of defendant’s employee immediately prior to the collision.

While Detiveaux did not see the buggy roll, nor did Mrs. Falgout who from her own position in back of Detiveaux saw Mrs. Gillis walking away from the latter down the slope one instant and the next instant heard Mrs. Gillis scream and saw her already knocked to the ground with the-buggy on top of her; nor did Mrs. Gillis, who had her back toward the buggy; we think that in the absence of exculpatory explanation defendant is liable under the doctrine of res ipsa loquitur: for without negligence in handling or mechanism, the grocery buggy would not under the circumstances herein ordinarily roll down the slope and strike Mrs. Gillis. Defendant has not rebutted the inference or presumption of negligence raised by the facts as accepted by the District Court. See Spurlock v. Boyce-Harvey Machine, Inc., La.App. 1 Cir., 90 So.2d 417; Washington v. T. Smith & Son, La.App. Orleans, 68 So.2d 337.

Defendant urges that application of the doctrine of res ipsa loquitur should be unavailable to plaintiffs because the latters’ petition alleged certain negligent acts and omissions on the part of defendant, alternatively to an allegation invoking the aforesaid doctrine. The “doctrine” of res ipsa loquitur furnishes a rule of evidence, the applicability of which is to be determined at the conclusion of the trial. Plunkett v. United Electric Service, 214 La. 145, 36 So.2d 704, 3 A.L.R.2d 1437; Gerald v. Standard Oil Co., 204 La. 690, 16 So.2d 233. This being so, very often the “doctrine” is pleaded in conjunction with allegations of specific negligence in the event that the proof at the trial does not admit of application of this doctrine, although nevertheless demonstrating the negligence of the defendant, see, e. g. the Gerald and Washington cases above cited.

Defendant’s further argument that proof that Mrs. Gillis fell at a different spot than that alleged in her petition was inadmissible is equally without merit. “Where the defendant is amply protected against ■ being surprised or misled, a variance between pleadings and proof, not affecting the gist of the action, is immaterial,” Fidelity & Deposit Co. v. Rednour, La.App. Orleans, 44 So.2d 215, 217. See Chapman-Storm Lumber Co., Inc. v. Board of Com’rs, 196 La. 1039, 200 So. 455. In tort suits, not being the substance of the cause of action but merely descriptive thereof, the correct date, Swedman v. Standard Oil, 12 La.App. 359, 125 So. 481, or spot, Johnson v. Canal and C. R. R. Co., 27 La.Ann. 53, of the accident may be proved despite variance with the allegations of the petition. (Of course, such variance may sometimes be significant in the trial court’s evaluation of the credibility of the witness.)

The District Court awarded $7,500 to Mrs. Gillis for her personal injuries and $901.63 to her husband for special damages suffered by the community as a result of the accident. Both parties want this award to be changed in their respective favors.

As a result of the blow to her leg, Mrs. Gillis suffered an injury to the peroneal nerve resulting in causalgia, a disability and injury described as most intense, painful and severe by her physicians. She described her pain as follows, Tr-84r “There was a burning, just a severe pain. It felt like when you burn your hand on the stove. There was a terrific pain day and' night, and I couldn’t get any relief from it.” Her physician described it as a severe and continuous burning pain, day and night, increasing in intensity and producing “very obvious changes in her appearance, as in any- person with pain, a drawn face, very tense, and exhausted, like someone who has not slept well,” Tr-142.

This pain persisted, with but temporary alleviations due to nerve blocks and drugs,, until finally on September 22, 1954, conservative treatment having failed, Mrs. Gillis underwent major surgery in the form' of a lumbar sympathetomy whereby the trunk of nerves to the affected leg and foot were cut after an incision was made on the right side of the spine in the back, covering one-third of the circumference of the body and requiring 22 exterior stitches. Following the operation, there was immediate relief from pain, although as a result thereof there will be a permanent and somewhat discomfortable numbness in the foot; Mrs. Gillis only suffers occasional pain now, mostly upon pressure upon or prolonged usage of the affected member-Mrs. Gillis is also much more nervous now than before the accident.

We think the District Court’s award for pain and suffering and the apprehension connected with the situation, including the operation, to be neither manifestly excessive nor manifestly insufficient. See Druilhet v. Labiche, La.App. Orleans, 88 So.2d 60; Merchant v. Montgomery Ward & Company, Inc., La.App. 1 Cir., 83 So.2d 920; Wainwright v. Globe Indemnity Company, La.App. 2 Cir., 75 So.2d 554.

Defendant does not contest the special damages of $901.03 awarded Mr. Gillis for medical expenses, etc. Plaintiffs seek to have the awarded medical fee for the operating physician raised to the $1,000 which the evidence shows to be the actual cost thereof; however, the District Court restricted it to the $500 requested by plaintiff’s petition. Nor do we find erroneous the District Court’s disallowance of the alleged expenses of the trips for the medical treatments to New Orleans in view of the vague and uncorroborated proof thereof.

Defendant urges that the $350 for the medical expert witness fee awarded Dr. Cenac should be reduced. However, the evidence shows that this busy physician was required not only to testify at length during the trial of the matter, but was subjected to a lengthy discovery deposition taken under cross-examination by the defendant, and in view of the exceptional amount of time and preparation given to serve the court and the parties as an expert witness, we are unable to hold that the District Court abused its discretion in fixing the fee. Succession of Moody, 229 La. 30, 85 So.2d 20. See Recreation and Park Commission, etc. v. Perkins, 231 La. 869, 93 So.2d 198.

For the above and foregoing reasons, the judgment appealed from is affirmed.

Affirmed.


text:
    Mrs. Louis J. PIERCE et al., Plalntlffs-Appellants, v. Silas GRIFFIN, Defendant-Appellee.
    No. 4421.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.
    Rehearing Denied June 4, 1957.

      Guzzetta & LeBlanc, Thibodaux, for appellants.
    Numa F. Montet, Thibodaux, for ap-pellee.
   TATE, Judge.

Plaintiffs, the widow and the daughter of the late L. J. Pierce, appeal from dismissal of their petitory action claiming ownership of Lot 4 of Square 12 of the Pierce Addition to the Town of Golden Meadow in Lafourche Parish. The action was filed in October of 1952.

The uncontradicted facts show: L. J. Pierce acquired a tract including the lot in question in 1925. Defendant Griffin went into possession of said Lot 4 in March of 1936, with the consent of Pierce. Immediately afterwards, Griffin built his home thereupon, in which he has resided since that date. L. J. Pierce died in 1940. No conveyance of the property in question from L. J. Pierce or his surviving spouse and heir to defendant Griffin has ever been recorded.

Plaintiffs-appellants rely upon Articles 2275 and 2240 of the LSA-Civil Code, which provide that every transfer of immovable property must be in writing, and that oral sales of such property are null, even as between the parties concerned (unless the vendor confesses the sale when under oath after actual delivery of the property thus sold).

Defendant Griffin claims there was a sale of Lot 4 in writing, relying upon the following evidence: An admittedly authentic receipt signed by both L. J. Pierce and defendant Griffin, dated February 22, 1936, showing that Pierce owed Griffin $100 which was to be paid upon a lot subsequently to be sold by Pierce to defendant; his own testimony, corroborated by that of Gustave Guidry who was present, that subsequently an oral agreement was reached between Pierce and the defendant that Pierce would sell defendant the lot in question for the balance of $100 due; and his own testimony that immediately thereafter Pierce pointed out the corners of Lot 4 to him, immediately following which he commenced building his residence thereupon, during which time Pierce prepared four wooden stakes, writing in Pierce’s own hand upon each of such stakes, the following :

“In 1936 this Lot 4 sold to Silas Griffin by L. J. Pierce.”

These stakes were placed at the four ■corners of the lot sold, which Griffin stated was 44' x 10CK in dimensions, thus omitting a S-foot strip along the canal to the south of Lot 4 as a passage for pedestrians. Malbrough, a carpenter working ■on the home at the time, corroborated Pierce’s testimony. Malbrough had furnished the pencil and the stakes upon which Pierce wrote, and further testified that although he could not read or write, he remembered very plainly Pierce reading from such stakes to the effect that he, Pierce, was selling the property so staked to defendant Griffin.

Able counsel for plaintiffs-appellants does not cite us to any authority that the writing required for a valid sale of immovable property must be upon paper or parchment. As between the parties, there does not seem to be any substantial reason why it should be sacramental that the writing must be upon such material, providing that the writing is adequately proved. That the writing in question was adequate, if sufficiently proved, to convey title as explained by the corroborative evidence, seems to be well established by the jurisprudence. Guice v. Mason, 156 La. 201, 100 So. 397, Saunders v. Bolden, 155 La. 136, 98 So. 867; cf. also Lemoine v. Lacour, 213 La. 109, 34 So.2d 392, and Walker v. Ferchaud, 210 La. 283, 26 So.2d 746.

The stakes themselves have been destroyed, to which we will advert below. While the weight of the parole evidence as to the writing of almost 20 years before raises a substantial question of credibility, we cannot say the District Court committed manifest error in accepting it, in view of the corroborative testimony of a disinterested person, and the strong corroborating circumstances of the delivery and possession, the construction of a home thereupon by the purchaser, and the unpro-tested possession thereof and residence thereon by the purchaser for the 18 years prior to the present suit.

Defendant Griffin testified that the reason the sale was not formally executed on paper was that it was deferred several times, and that Pierce died suddenly before completing execution of a copy to be recorded. (There were no lawyers in Golden Meadow at the time, and it was necessary to go to Thibodaux for such service.)

Pierce’s widow, the coplaintiff herein, testified that the sale had not been completed because defendant Griffin had not paid the balance of the purchase price, apparently referring to a system of operations whereby the formal sale was not executed and recorded until after the entire purchase price had been paid. She testified that her husband had several times requested payment of the balance from Griffin, and she further testified that after her husband’s death in 1940, she went to defendant, and

“A. I asked Mr. Griffin if he wants to pay what he owed. He say that I am not going to pay you and nobody can make me get out of here. Better you go out of here and he was very dirty.
“Q. You asked him to pay for the lot or the rent? A. What he owed Mr. Pierce. He owed on the lot and on the house.
“Q. You mean what he owed on the lot? A. On the lot and house. There was only $100.00 deposit on the lot.” (Tr.p. 12.)

This testimony can be construed to being an admission under oath by the vendor’s successor that the verbal sale had indeed taken place as testified to by defendant, which is sufficient to convey title under Article 2275, LSA-C.C., although the defendant had never completed payment of the purchase price. (The pleadings simply requested recognition of plaintiffs’ ownership of the property, and we are therefore not concerned herein with the validity at this date of any claim by plaintiffs for any alleged balance due.)

Plaintiffs further urge that, even accepting that the written instrument conveying title has been adequately proven, parole evidence is only admissible to enforce its contents when said writing “has been lost or destroyed, by accident or force,” Article 2279.

Defendant Griffin testified that following construction of the house, he erected a fence along the lines shown by the stakes, in consequence thereof removing the stakes, which were subsequently burned along with the other debris remaining from the construction. Plaintiffs urge most ably that this intentional destruction is not such a destruction “by accident” as would satisfy the requirements of the codal article.

The codal article’s intent is to admit of proof of the contents of a writing conveying title when such writing has been unintentionally lost or destroyed. We do not think it means that the party relying thereupon is barred from proving the contents of such a writing thrown away or burned without realizing the effect of such action. The word “accident” in the codal article is used, in our opinion, as contradis-tinguished from knowingly and intentionally destroying what one knows to be instrument in writing upon which one relies to prove one’s rights. It should no more bar defendant’s proof of the lost writing herein than that of a person seeking to prove the contents of a deed which fell by mistake into a trash barrel, and which the person intentionally burned without knowing he was burning an instrument of title.

Plaintiffs finally urge that since defendant Griffin admitted that he bought only a lot of the dimensions of 44' x 10(7, and since Lot 4 per the plat of survey has the dimensions of 49' x 10(7, that the District Court judgment should be amended so as to recognize plaintiffs’ ownership of the remaining 5 feet of said lot. However, the evidence accepted by the District Court indicates that the entire Lot 4 was sold to defendant by Pierce, and the end of Lot 4 along Poche (Marshland) Street not included within the fence and the stakes was that reserved as a passageway or sidewalk for pedestrians along the ditch and street (Tr. 5, 10, 29, 30, 34, 52); and we believe like the District Court that although a servitude for public passage was reserved south of defendant’s fence line, that subject thereto title to the entire Lot 4 passed to defendant by the transaction in question.

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

Affirmed.


author: ELLIS, Judge.

text:
    Howard BLANCHARD v. The EMPLOYERS’ LIABILITY ASSURANCE CORPORATION, Ltd.
    No. 4408.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.
    Rehearing Denied June 4, 1957.
    Mouton, Champagne & Colomb, LaFay-ette, for appellant.
    Helm, Simon & Gordy, New Iberia, for appellee.
   ELLIS, Judge.

This is an action for workmen’s compensation filed by the plaintiff in forma pauperis in the District Court alleging thaffi

On or about April 29, 1955 while working for Teche Oil Company which was insured by defendant for workmen’s compensation, plaintiff was unloading a truck of 100 pound sacks of fertilizer. While unloading this truck he sustained an injury to his back, the injury having occurred during the course and scope of his employment. Plaintiff alleged that he continued working until approximately May 24, 1955 when because of increased and unbearable pain it became necessary that he discontinue working and receive medical attention. Further, that the pain and suffering caused by the injury has prevented his performing his usual work or work of any character, specifically alleging that he is unable to do the type of labor that he was doing at the time of his injury.

Defendant answered admitting plaintiff’s employment, denying the injury on the date alleged but admitting plaintiff advised Teche Oil Co. of the alleged injury. Defendant further alleged that plaintiff was paid $26 per week from May 24, 1955 to November 22, 1955, stating that plaintiff was not and is not entitled to any compensation beyond said date since he has been since November 22, 1955 and is now fully able to perform the same type of work and labor as that performed by him prior to his alleged injury of April 29, 1955. Defendants base the failure to pay further compensation on the advice of competent and reliable physicians and specialists, no objective symptoms being found, and allege that any disability claimed results purely from plaintiff’s own subjective statements and attitude.

Trial was had in the District Court on June 19, 1956, judgment being rendered in favor of defendant on January 21, 1957 rejecting plaintiff’s demands for written reasons assigned on January 2, 1957; from this judgment plaintiff has appealed.

There were several lay witnesses appearing for plaintiff, his only medical witness being Dr. George P. Schneider, of Lake Charles, whose testimony was elicited by deposition on April 6, 1956.

After a careful study of the record the proven facts disclosed are substantially as follows:

Plaintiff was in the employ of Teche Oil Co., whose workmen’s compensation insurance carrier was defendant herein. On April 29, 1955 as alleged, plaintiff suffered an injury to his back which he withheld from the manager of his employer until May 24, 1955 on which date he was forced to quit his work during the day, necessitating a friend’s driving him home and his wife turning over his accounts to plaintiff’s supervisor.

It is this court’s opinion that plaintiff amply proved that he suffered an accident. He testified that he had never suffered any disability prior to April 29, 1955. On that date while unloading fertilizer he felt a sharp pain in his back which forced him to stop unloading the truck, and the person to whom the fertilizer was being delivered, Isaac Dwyer, finished unloading the truck. Dwyer testified to the fact that the plaintiff was unable to unload the truck because he hurt his back. Dr. Fournet corroborated that fact that the plaintiff’s back was injured by finding an injury to plaintiff’s back in his examination on May 24, 1955. Plaintiff’s wife also corroborated plaintiff’s testimony as well as a Mr. Theriot who drove plaintiff home on May 24, 1955, the day he was unable to work any longer. Defendant has not seriously urged on appeal that plaintiff did not suffer an accident and injury.

The only question remaining to be answered is whether plaintiff is presently disabled or was disabled from returning to his employment on November 22, 1955, the date defendant discontinued compensation payments.

In order to determine this a review of the medical testimony is necessary. Plaintiff was examined on May 24, 1955 by Dr. Kenneth Fournet whose examination revealed that plaintiff had a strain of his back. (See pages 117 and 118 Transcript) His examination also revealed that plaintiff had a curvature of the spine, the scientific terminology being thoracic and lumbo scoliosis. Plaintiff could not localize the tenderness or the pain in his back to any specific area.

This doctor further testified, in effect, that the condition of plaintiff’s scoliosis lessened his capabilities of performing heavy manual labor. This was explained by the fact that a person with scoliosis is predisposed to injuries if doing heavy work. The doctor stated that plaintiff was not capable of heavy work prior to his injury and that he was as capable of working in July of 1955 as he was prior to the accident of April 29, 1955.

The essence of his testimony is that the plaintiff should never have been engaged in heavy work; the plaintiff did engage in heavy work and did suffer injury, the injury being in his lower thoracic area with muscle spasms, but this had subsided during plaintiff’s visits to Dr. Fournet.

Plaintiff was referred to an orthopedic specialist by Defendant after his final examination by Dr. Fournet. The orthopedic specialist was Dr. Meuleman and his testimony was to the effect that plaintiff’s only indication of disability was in the nature of subjective complaints. His examination of September 12, 1955 revealed that there was no muscle spasm present. Plaintiff could not localize the pain or tenderness to any specific area. Had there been any tear of the trapezius muscle as claimed by plaintiff, then some muscle spasm would have been present, thus corroborating- Dr. Fournet who testified that the muscle spasm had subsided and was no longer present. He further testified that a muscle spasm is caused by a tear or irritation to a muscle and that exercise will irritate the muscle causing the muscle spasm. To quote directly from the doctor’s testimony:

“Q. Well, what other objective signs would be present with reference to a tear of the trapezius muscle? A. Well, in this particular instance here, the trapezius function is such — the position of the trapezius muscle is such that the only way that you could get that thing completely at rest would be absolutely flat on your back with your arms in this position that I’m indicating, away from the body and at rest there if you relaxed it. (The doctor indicates by placing his arm away from the body and slightly raised with the elbow bent.) That would relax it completely. Now, each and everyone of us sitting right here, that movement you just did right there, you put your trapezius in tension. You can’t beat it. As long as you’re us you’ve got to be using it. If you’re not using it, your shoulder would drop off or something like that.
“The other evidence that you would use in examination is when you attempt to use your back such as bending forward or twisting, both of them, the trapezius attaches on to those bones in the back and if I am bending forward or twisting, I’m pulling something that’s hurting on stretch. You can’t beat it. You can’t get around it. And so if two minutes before that muscle is nice and soft, the minute I put that baby on a stretch, it’s going to sing out and tighten up. So, those to my mind would be the other signs that you’d consider.
“Q. That would indicate pain. It would cause pain. A. Definitely, yes.
“Q. But it wouldn’t change the general outline of the back? A. It would precipitate some involuntary tightness of that muscle to protect itself.
“Q. Invariably? A. If you’ve got something big enough to be hurting, I’d say not invariably, I’d say definitely, for sure.”

Opposed to this we have lay testimony on plaintiff’s behalf that he is completely unable to work, this evidence being given by plaintiff’s wife and his brother.

The plaintiff also introduced into the record the deposition of Dr. Schneider, an orthopedic specialist, from Lake Charles, La., who examined him on December 6, 1955, seven and one-half months after the injury. His testimony is based on subjective symptoms alone, those being that his examination of plaintiff showed findings “commensurate with a partial tear of the origin of the left trapezius muscle”. The plaintiff had complained of “marked local tenderness at the level of the eighth dorsal vertebra in the mid-lme, quite marked to the left and moderate to right.”

On cross examination Dr. Schneider stated in answer to question:

“Q. Now Doctor, the record will show that on May 24, 1955 he went to Dr. Fournet, whom I mentioned above, and made no complaint of any definite point of acute tenderness, and I ask you if that is consistent with the complaint that he made to you with reference to the tenderness? A. It would appear to me that it would be inconsistent that he would be able to delineate his area of tenderness as accurately as at a later date as he should have been able to at an earlier date when the previously mentioned physician examined the patient.
* $ $ * * *
“Q. * * *, is it not correct that he would have been able to delineate that area of pain better and more specifically on May 24, 1955, when he quit working? A. I feel that he should have been able to.”

The doctor also testified that there was no specific objective findings as muscle spasms or x-ray finding to substantiate plaintiff’s complaint of pain . and disability. The strongest testimony on behalf of plaintiff was that a person could be suffering pain and there would be no objective signs or reasons for it.

It is a well settled rule that a plaintiff in workmen’s compensation suits must bear the burden of proof. In discharging the burden of proof the plaintiff must do so by a preponderance of evidence and with that degree of legal certainty as required by law. Green v. A. C. Campbell Construction Co., La.App., 78 So.2d 54. In order to establish his claim in a workman’s compensation suit plaintiff may not base his action on conjecture and probability. Davis v. Swift & Co., La.App., 68 So.2d 670.

In applying these rules set forth in the cases cited above to the case at bar we find that two doctors, one an orthopedic specialist, have testified based on several examinations over an extended period of time at great length on defendant’s behalf to the effect that the plaintiff was not suffering any disability after November 22, 1955. In fact, Dr. Fournet stated that in his opinion the plaintiff was able to return to work in July of 1955. The plaintiff has met this positive testimony with the impression of Dr. Schneider, based on one examination only and chiefly upon subjective symptoms furnished by the plaintiff; which impression is somewhat contradicted by the earlier medical history connected with the accident.

Since the findings of fact made by a trial court are not to be disturbed on appeal unless manifestly erroneous, Heintz v. Heintz, 231 La. 535, 91 So.2d 784; Holmes Co. v. Foret, 229 La. 360, 86 So.2d 66; Allison v. Pick, 229 La. 524, 86 So.2d 179, the judgment of the district court is hereby affirmed.


text:
    Oledaus GUILLORY, Jr., v. Armogene FRANK.
    No. 4402.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.
    Rehearing Denied June 4, 1957.

      Guillory & Guillory, Eunice, for appellant.
    Fusilier & Vidrine, Ville Platte, for ap-pellee.
   ELLIS, Judge.

This damage suit was brought as a result of an intersectional collision involving a 1953 Chevrolet automobile owned and driven by the plaintiff Oledaus Guillory, Jr. and a 1949 Chevrolet automobile owned by Eugene Frank and driven by Armogene Frank. The accident occurred at an intersection of the paved highway 26 and a gravel street in the town of Mamou at approximately 8:30 A.M. on August 21, 1954. The defendant entered a general denial. Thereafter the defendant and Eugene Frank, owner of the 1949 Chevrolet automobile, filed a suit entitled Rev. Armogene Frank et al. v. Oledaus Guillory, Jr. and his liability insurer, Marquette Casualty Co., et al. for physical injuries and damages to the automobile. These companion cases were consolidated for trial on the merits and for hearing on this suspensive appeal which was perfected by defendant-appellants herein when judgment was rendered for plaintiff by the trial court.

The plaintiff was driving his automobile along Louisiana State Highway 26 at about 8:30 o’clock A.M. on the date of the accident in a 45 miles per hour speed zone. He turned a right angle corner and proceeded in a southerly direction toward the next intersection, the northeast corner of which was substantially blocked by a house and shrubs. When about 25 feet from the intersection, he and his companion, Ludger Miller, both noticed the defendant’s automobile had entered the intersection. Plaintiff immediately applied his brakes and swerved to the left in a vain attempt to avoid the ensuing collision.

There is some conflict in the testimony-regarding the length of the skid marks which were made after Guillory applied his brakes. Guillory, Miller and the mechanic, J. C. Perron, testified to the effect that the skid marks were about 25 feet long. Eugene Frank testified that he measured the skid marks in the presence of the police officer and they were about 96 feet in length, however, the police officer did not testify.

The record reveals that Frank’s automobile continued to travel in a westerly direction from the point of impact for approximately 100 feet through a ditch one and one half feet deep, through a picket fence until it crashed against a pecan tree. The point of impact was on the gravel street on the very edge of the paved highway. The automobiles apparently collided lengthwise and Guillory’s vehicle came to rest at or near the point of impact.

Armogene Frank testified to the effect that he stopped at a point about 30 steps from the intersection to talk with two of his church members and this testimony was substantiated by two witnesses. According to the defendant he then proceeded to the intersection, stopped, looked both ways at the stop signs and entered the intersection. When he was about half way across he saw the Guillory car come around the curve to the north of him which was approximately a block away, traveling south at a high rate of speed and he, therefore, tried to speed up to clear the highway and was through the intersection and off the concrete slab when he was hit.

It is established that the Guillory car pulled to its right after the application of the brakes in an effort to avoid the collision, however, the right front fender of the Frank car came into contact with the left front fender of the Guillory car, causing the two cars to crash into each other lengthways.

The learned judge of the lower court in a written opinion concluded that Frank failed to bring his automobile to a stop at the stop sign before entering the highway right of way 26, upon which the plaintiff was traveling, and turned into the intersection in front of the plaintiff and that the latter could not be held liable under the doctrine of last clear chance, for upon observing the danger or discovering the peril he immediately applied his brakes and swerved to his right. The trial court cited as authority for his conclusion the following cases: Dowden v. Houston Fire & Cas. Ins. Co., Inc., La.App., 81 So.2d 103; Breland v. Forbes, La.App., 81 So.2d 441; Robbins v. Mydland, La.App., 81 So.2d 561; Gautreaux v. Southern Farm Bureau Cas. Co., La.App., 83 So.2d 667; Bahry v. Folse, La.App., 83 So.2d 912, 913; Folse v. Bahry, La.App., 83 So.2d 914. Counsel for Frank, relies upon the following authorities, viz.: Gauthier v. Fogleman, La.App., 50 So.2d 321; Booth v. Columbia Cas. Co., 227 La. 932, 80 So.2d 869; Thomas v. Checker Cab Co., 229 La. 1079, 87 So.2d 605; Miller v. Abshire, La.App., 68 So.2d 143; Blashfield, Section 991.

However, we are of the opinion that the cases cited by defendant are not controlling under the facts of this case. Counsel for Frank contends that he had preempted this intersection. This contention is fully answered by the jurisprudence in such cases. In Bahry v. Folse, 83 So.2d 913, we reaffirmed and restated the law as follows: '

“ * * * But pre-emption requires not only the first entrance into the intersection, but that such intersection be entered with the reasonable opportunity and expectation of clearing same without obstruction to the crossing theréof by other vehicles, see Harris v. Travelers Indemnity Co. of Hartford, Conn., La.App., 70 So.2d 235; 'The right of pre-emption is not accorded the driver who blindly enters a favored street, without regard to oncoming traffic, and then attempts to absolve himself of liability because of the mere fact that he was there first’, Sonnier v. United States Fidelity & Guaranty Co., La.App. 1 Cir., 79 So.2d 635, at page 638.”

Applying the rule to the facts of this case we feci as did the trial judge that although Frank stopped and conversed some distance back from the intersection prior to entering he did not really stop and look for he would most assuredly have seen the Guillory automobile approaching the intersection and at such a distance that he could not enter with an expectation of clearing same without expecting the crossing thereof by the Guillory car. The most that can be said for Frank is that he was there first, but by a split second. Neither do we put much credence in his testimony that when about the middle of the intersection he observed the Guillory car turning the fight angle curve some % to a block away. Counsel for Frank makes the further contention that on the basis of the length of the skid marks made by the Guil-lory car the latter was traveling at a speed of 50 miles per hour. He cites Blashfield’s table, Vol. 9, Sec. 6237, Pg. 706 for his authority. An examination of this table would indicate that if the skid marks were 96 feet long, the automobile in question was traveling approximately 45 miles per hour which was the speed limit on the highway in the vicinity of the collision.

In addition to the authorities relied upon by the lower court, we very recently in the case of Commercial Credit Co. v. Serpas, La.App., 94 So.2d 83, restated the law with regard to an intersectional collision in which two vehicles approached or entered an intersection at approximately the same time to be that the vehicle on the favored street has the right of way and liability rests upon the other vehicle on the unfavored street unless the vehicle upon the favored street saw or should have seen the other vehicle entering the intersection with no intention of stopping in time to stop and avoid the collision. In other words, unless the vehicle on the favored street is liable under the doctrine of last clear chance liability still rests upon the vehicle negligently entering from the unfavored street.

In the present case Guillory was traveling on the highway and enjoyed the right of way and had a right to assume that those entering from an unfavored street would observe the law. This Frank failed to do and his sudden entrance into the intersection at a time when the Guillory vehicle was too close for its driver to avoid the collision renders Frank liable.

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


text:
    Rev. Armogene FRANK et al. v. MARQUETTE CASUALTY CO. et al.
    No. 4401.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.
    Rehearing Denied June 4, 1957.
    Guillory & Guillory, Eunice, for appellants.
    Dubuisson & Dubuisson, Opelousas, for appellees.
   ELLIS, Judge.

In this case counsel for plaintiffs contends that Eugene Frank, owner of the vehicle should recover from the defendants herein, for the reason that the joint negligence of tort-feasors has no effect on a third party damaged. However, since there was no negligence found on the part of Oledaus Guillory, Jr. the judgment of the trial court will be affirmed for the reasons assigned in the companion case of Guillory v. Frank, La.App., 95 So.2d 197.


text:
    Terra GUILLORY, Plaintiff-Appellee, v. COAL OPERATORS CASUALTY COMPANY, Defendant-Appellant.
    No. 4403.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.
    Rehearing Denied June 4, 1957.

      Gravel, '■ Humphries, Sheffield & Man-sour, Alexandria, for appellant.
    Paul C. Tate, Mamou, for appellee.
   TATE, Judge.

Defendant insurer appeals from a judgment awarding plaintiff workmen’s compensation for total and permanent disability, medical expenses, and also penalties and attorney’s fees for the arbitrary and capricious nonpayment of compensation due. Plaintiff-appellee answers the appeal requesting an increase in the weekly compensation rate.

At 7:30 P.M. on June 23, 1954, plaintiff Miss Guillory suffered a tear of the medial meniscus or cartilage of her right knee when she stepped into a ditch en route to put out a fire in the “heater-treater” equipment of her employer, The Sunnyland Contracting Company, Inc. As a result of this condition, she suffers pain when walking or climbing, both necessary incidents of her employment, and her knee occasionally locks. It is a progressively worsening condition. There is no serious dispute that at time of trial plaintiff was permanently and totally disabled under our jurisprudence from performing duties of occupations similar to that in which engaged at the time of the accident. See, e. g., Bean v. Higgins, Inc., 230 La. 211, 88 So.2d 30.

At the time of the injury, Miss Guillory was employed at a salary of $75 per month as “pumper” to check and gauge the production of two oil wells situated on her father’s property, upon which she resided with her parents and also to “treat” the produced oil for pipeline shipment once or twice a month, when sufficient production had accumulated.

The regular daily duties of gauging the oil accumulating in the storage tanks by the wells took approximately one hour, including about five minutes to record the production findings on a daily report form.

The monthly or semi-monthly regularly recurrent duty of “treating” the oil, which was regarded as the main work of the job (Tr-68), involved lighting the heater of the “heater-treater”, which was a large (6y x 8’) firebox or furnace, lit by sticking a burning rag therein to light the pilot flame, and then turning the main burner on. (Tr-60.) The oil was then circulated from the well storage tanks through the “treater” tank, where it was heated to 180° to remove the impurities, and then recirculated back to the well storage tanks for shipment in its more purified and fluid state. This process of “treating” the oil took plaintiff from eight to ten hours each time.

Plaintiff further reported any difficulties or disorder in the equipment under her charge to her employers’ main office at Rayne. She was in fact at the time of her injury endeavoring to investigate and to extinguish a fire in her employer’s equipment situated about 600' from her home.

The District Court correctly found that plaintiff’s employer was engaged in one of the trades, businesses, or occupations specifically classified as hazardous by our compensation act. LSA-R.S. 23:1035 specifies among the hazardous businesses: “The operation * * * maintenance * * of * * * oil, gas, sulphur, salt or other wells * * *. The * * * operation of boilers, furnaces, engines and other forms of machinery.” Plaintiff’s employer was clearly engaged in the operation of oil and gas wells, and the duties of plaintiff clearly included the regular operation of a boiler and/or furnace, namely the “heater-treat-er”.

Plaintiffs’ duties are among those within the principal physical operations of a business specifically designated as hazardous by the act so as to entitle her to compensation when injured in the course of these duties. Malone, Louisiana Workmen’s Compensation Law, Section 98 et seq., p. 116. When the Legislature has specifically declared a business to be hazardous, “it is not open to the courts to question this classification, or to attempt to segregate the ordinary work involved in such operation into hazardous and nonhazardous duties, and then affirm the coverage of the act as to one and deny it to the other.” Fontenot v. Myers, La.App. 1 Cir., 93 So.2d 245, at page 247.

Even were this not a business specifically denominated as hazardous by the act, plaintiff’s duties included the regular performance of hazardous work in connection at least with the operation of the “heater-treater”, so as to entitle her to coverage of the act when injured whether performing hazardous or nonhazardous duties. Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303. Further, actually plaintiff’s injury was sustained in connection with her responsibilities pertaining to the hazardous “heater-treater”, as she was on her way to investigate and to put out a fire in this apparatus when she fell, causing the injuries which resulted in her present disability. These observations are pertinent chiefly in relation to defendant’s efforts to exculpate itself from liability for penalties arising from non-payment of compensation to a disabled employee which the District Court found to be arbitrary and capricious and without probable cause.

In its defense that the employee’s duties were non-hazardous so as not to be within the coverage of the compensation statute, defendant-appellee in a very able brief relies upon such factually inapposite cases as Dewey v. Lutcher Moore Lumber Co., 151 La. 672, 92 So. 273, where the employee was not engaged in the principal physical operations of a business specifically designated as hazardous by the compensation act, and Rayburn v. De Moss, 194 La. 175, 193 So. 579, which the Supreme Court characterized as based upon a finding “as a fact that the defendant’s business was not hazardous within the meaning and contemplation of the act ‘since he was engaged in farming and dairying and not in the repairing or construction business’ ”, Speed v. Page, 222 La. 529, 62 So.2d 824, at page 825.

Computing the compensation rate, the learned District Court divided the annual salary at the time of the accident of $900 ($75 per month) by the 52 weeks of the year, arriving at $17.31 as the weekly wage, 65% of which provided a weekly compensation rate of $11.25.

Defendant insurer urges that it should be given credit against this compensation liability for the continued payment of monthly wages of $75 per month, subsequently reduced to $50 per month (when one of the wells on plaintiff’s father’s tract of land was closed down). In the first place, defendant is clearly not entitled to any credit whatsoever for payment of wages after December 1, 1954, when the firm of Hicks and LeBlanc bought the lease from plaintiff’s employer and defendant’s insured, Sunnyland, Hicks and LeBlanc having operated these wells since that date. Although the employer responsible for workmen’s compensation may sometime receive credit by payment of wages against such compensation liability, the wages received from other employers are never available for such purposes. Malone, Louisiana Workmen’s Compensation, Section 402, p. 517 (footnote 7); Gautreau v. Maryland Casualty Co., La.App. 1 Cir., 28 So.2d 96; cf., Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695.

Further, as to the wages paid by plaintiff’s employer between June 23, 1954 (date of injury) and December 1, 1954 (date of her transfer of employment), the uncon-tradicted facts reveal that plaintiff’s father performed the duties of her job following the date of the disabling accident and up through the trial, due to plaintiff’s physical inability to perform same; plaintiff simply completing the daily report forms, due to her father’s inability to read and write, which took about five minutes per day. She and her father divided the wage payment, which continued to come by check in her name. Under such circumstances, as the District Court noted, in effect the employer paid a third person (plaintiff’s father) to perform the duties and received the full benefit of any money so paid.

The reason that wage payments made to an admittedly disabled employee are sometimes credited against compensation liability as payments made in lieu of compensation, is that under these circumstances such payments constitute a joint recognition by the employer and the employee of the latter’s “industrial disability, and an implied, agreement to pay and to receive these wage payments in lieu of . compensation”, since such “wages paid a disabled employee are more than commensurate with the services rendered and the employee is not actually earning all of his pay,” Scalise v. Liberty Mutual Insurance Co., La.App. 1 Cir., 84 So.2d 88, at page 93. The facts of the present case do not indicate that the employee continued to receive full pay for the performance of lighter duties through joint acquiescence and mutual recognition of disability, but that a third person was paid to perform such duties, although the check was made out in the employee’s name, and although the employee received from this third person a portion of the wages so paid for her nominal assistance for about five minutes per day in transcribing the reports.

Chiefly on the ground that because of these continued wage payments defendant may have reasonably felt entitled to withhold payment of weekly compensation, the defendant vigorously assails the award of the District Court of 12% penalties and attorney’s fees under LSA-R.S. 22:658 for the arbitrary and capricious failure to pay compensation due a disabled employee without probable cause. As was remarked above, whatever the merits of such defense were we concerned solely with alleged credit due by wages paid directly by defendant’s insured, the employer liable for workmen’s compensation benefits, there is absolutely no merit to such claim for credit from the successor employer who paid plaintiff’s wages after December 1, 1954.

As above remarked also, the very able brief and argument of counsel for defendant designed to establish that plaintiff’s employment was not covered by the compensation act does not convert into a serious dispute questions well settled by prior jurisprudence.

However, we do feel to be meritorious the defendant’s plea to reduce the attorney fees awarded as penalties to $1,000, the maximum recoverable in compensation cases under LSA-R.S. 23:1141, and under Gloston v. Coal Operators Cas. Co., La.App. 1 Cir., 85 So.2d 100, 105, for penalties in such cases under LSA-R.S. 22:658. The District Court had awarded $1,500 penalties for the attorney’s fee in procuring payment of weekly compensation, and an additional $269.25 attorney’s fee for the services in procuring the judgment for unpaid medical expenses in the amount of $807.75.

Defendant-appellant alternatively argues that the attorney’s fees should be reduced to $900, which is 20% of the $4,500 (400 weeks at $11.25 per week), of total weekly compensation payments allowed herein. LSA-R.S. 23:1141 simply limits the fees of an attorney “who renders services for an employee coming under the provisions of this Chapter” to “twenty per centum of the amount of the award, provided that the maximum fee shall in no case exceed one thousand dollars”, and does not prohibit the charge of the statutory attorneys’ fee upon unpaid interest for delinquent installments nor (although customarily this charge is perhaps not made) upon recovery of medical expenses (which in this case amounted to $807.75 which the defendant refused to pay), recovery of both of which by the employee is enabled by the attorney’s services to the latter. See Anderson v. International Creosoting & Constr. Co., La.App. 2 Cir., 41 So.2d 688, 689, awarding as attorney’s fee “twenty per cent of all amounts collected under this judgment, not exceeding however a total of $1,000”, 41 So. 2d 692, which judgment specifically awarded in addition to compensation the amount of $139 for medical expenses.

Thus collectible under the present judgment, exclusive of penalties and attorney’s fees, is more than $5,000, including compensation and medical expenses and interest thereupon. Therefore the attorneys could recover the statutory maximum of $1,000, which penalty the Gloston case approved.

By answer to the appeal, plaintiff-appellee raises a very serious question in urging increase of the weekly compensation rate from $11.25 to $30 per week.

Counsel for plaintiff argues that her monthly compensation of $75 was paid for approximately 50 hours work per month (one hour per day in checking and gauging the daily oil production, plus 10-20 hours of “treating” the oil for shipment), or at the rate of approximately $1.50 per hour. It is firmly established that the purpose of the compensation act is to insure the employee against the loss of earning capacity, and that therefore the rate of weekly compensation should be based upon the rate of weekly earnings, based upon the employee being paid an hourly wage for a 48-hour week, 1. e., six days per week, 8 hours per day. Carrington v. Consolidated Underwriters, 230 La. 939, 89 So.2d 399, Troquille v. Lacaze’s Estate, 222 La. 611, 63 So.2d 139, Jarrell v. Travelers Ins. Co., 218 La. 531, 50 So.2d 22, 23. In the latter case, the Supreme Court very forcefully stated that the award of compensation should be based, not on the actual wage, but on “the person’s ability to work at full time employment in the future”.

But despite plaintiff’s very forceful argument, we think the present case involves a factually distinguishable situation.

While plaintiff worked a limited and varying number of hours per month, the record indicates that a factor in her pay was her availability if trouble should arise in the work premises immediately adjacent to her home. Thus her daily wage was not based upon the actual or varying number of hours worked monthly for $75, but upon her availability during the major portion of the hours of each day and night.

Plaintiff educed some extremely impressive testimony from her present employer, Hicks, who had purchased the interest of Sunnyland, to the effect that she is paid simply for the actual hours worked. However, Hicks’ testimony indicates he was cognizant of the possible implication of testi.mony that plaintiff was on duty 24 hours each day, 7 days per week, with relation to application of the federal Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., providing for minimum wages of $1 per hour and for overtime pay after 40 hours per week. And reading his testimony as a whole, and in conjunction with the other testimony in the record, we find nothing which requires a conclusion contradictory to that expressed above. '

We therefore agree with the District Court that the just solution under the rather individual facts and circumstances of the present case is to award compensation at the rate of $11.25 per week, based upon the premise that the plaintiff’s daily rate of pay was not only for hours actually worked but for her availability during the entire day.

Through inadvertence the 12% penalties under LSA-R.S. 22:658 were based upon the entire award, which might be interpreted so as to include future compensation to accrue, whereas under Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695, and the subsequent jurisprudence, the 12% penalty has only been assessed against payments delinquent at the time of judgment. The decree will be amended accordingly.

For the above and foregoing reasons, the judgment in favor of plaintiff is amended by reducing the total attorney’s fee awarded as penalty to $1,000, and by limiting the 12% penalty to the medical expenses and compensation payments now due, with a like penalty on all such payments which might become 60 days overdue in the future; and as thus amended, it is affirmed in all other respects. Defendant to pay the costs of these proceedings.

Amended and affirmed.

      . In the writer’s personal opinion, the attorneys’ fee allowed as penalty in compensation cases shall never exceed $1,-000 under the Gloston ruling, but is not limited to 20% of the total award in cases where the maximum recoverable under the award is under $5,000. But this question, upon which the court as a whole disagrees, is not presented to us by the facts of this appeal.

      . Cf. her testimony, Tr-32-33: “Q. Do you take general care of the lease the whole day? A. Whenever there is something to do I do it, it don’t matter what time it was, sometime at 10:00 at night to take the test. Q. If anything came up during the day or night it was your job to see it was taken care of? A. It was my duty, but usually nothing would happen, until the first time the treater went bad, that is the only trouble I had.” And at Tr-37: “Q. Suppose the fire broke out at 1:00, A.M. was it your duty to go see about it? A. Yes. Q. At any time? A. At any time; when I did not have work to do I could go just anywheres.”

      . Thus her daily wage, upon which the compensation rate must be based, should be calculated by dividing the $900 annual wages, by the 365 days per year, rather than by dividing the $75 by the actual number of hours worked per month. Since an employee is not limited to a . forty-eight week when actually working in excess thereof, see Troquille case above cited, 63 So.2d 139, the District Court properly computed plaintiff’s weekly wage rate as based upon a 7-day week, arriving at the same result by dividing the annual wage by the 52 weeks of the year; as by dividing the annual rate by the number of days of the year, then multiplying by 7.

      . Cf., Tr-65: “A. The advantages I guess I saw is that they were landowners, although their work only required! very little time each day. I am certain, she goes and comes as she pleases; by the same token, living there, I would expect if her father were there and. something went wrong she would hear about it more than somebody going therefor thirty (30) minutes.” Cf. Tr-70: “Q. Your testimony is not I presume that you always want the land-owner to be your pumper? A. No, that is. very seldom that I have heard of that, really, I thought the only reason we-bought that lease is because that situation was as such, because the production was not enough to pay somebody;: I don’t know what they usually pay a pumper, but I imagine they make Two-Hundred ($200.00) Dollars or Two Hundred and Fifty and No/100 ($250.00) Dollars a month, we only pay her Fifty and1 No/100 ($50.00) Dollars; we could not do it if she had to drive to her work and! drive back.”


author: LOTTINGER, Judge.

text:
    DREXLER MOTOR COMPANY v. Octave BRUCE.
    No. 4422.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.
    Rehearing Denied June 4, 1957.
    Guzzetta & LeBlanc, Thibodaux, Sanders, Miller, Downing, Rubin & Kean, Baton Rouge, for appellant.
    Wollen J. Falgout, Thibodaux, for appel-lee.
   LOTTINGER, Judge.

This is a suit by Drexler Motor Company against Octave Bruce on an open account representing repairs to a damaged truck which is owned by the defendant. The defendant called in his collision insurer, the Audubon Insurance Company, under the third party act statute, LSA-R.S. 13:3381. The lower court awarded judgment in favor of petitioner and against the defendant, and also awarded judgment in favor of the defendant and against the third-party defendant. The third-party defendant has taken this appeal.

The record shows that on February 13, 1954, the defendant purchased a new 1953 Ford truck, cab and chassis from the Lock-port Sales and Service Company, Lockport, Louisiana. The purchase price of the new truck was in the sum of $2,800, and defendant received a credit of $1,100 on a trade-in, leaving a balance to be financed in the amount of $1,700. The balance owing was financed through Commercial Securities Company, Inc. of Baton Rouge, Louisiana, and insurance was secured by Commercial Securities Company, Inc. with the Audubon Insurance Company. In the master policy, Commercial Securities Company, Inc. is the named insured, however, the defendant was issued a certificate as evidence of insurance of his interest in the vehicle. The insurance policy was a $100 deductible collision policy for the actual cash value of the vehicle which, according to the certificate of insurance, had a value of $2,800, the purchase price thereof.

Subsequent to the purchase of the cab and chassis, and to the issuance of the insurance policy, the defendant transferred a panel body from his old truck to the new one. Of course, this body was permanently attached to the cab and chassis.

On August 24, 1955, the defendant was involved in a one-vehicle upset accident with the insured vehicle, and which caused considerable damage thereto. The defendant went to Drexler Motor Company in Thibodaux and requested an estimate of the damages. The total estimate was in the sum of $1,078.23, of which figure the sum of $678.23 represented damages to the cab and chassis and the sum of $400 represented damages to the body. The insurance Company refused to pay the damages to the body, they contending that the body was not insured under their policy. Audubon Insurance Company paid $578.23 on the damages to the cab and chassis, however, they refused to pay the damages to the body and Bruce paid the $100 deductible to Drexler. Drexler Motor Company filed suit against the defendant for the sum of $400, and the defendant has called in the Audubon Insurance Company under the third party practice act. ' The lower court held that the body was permanently attached to the cab and chassis and was covered by the insurance policy issued to the defendant. The lower court accordingly rendered judgment in favor of petitioner against the defendant and in favor of defendant against the third-party insurer. The third party has appealed.

All of the above mentioned facts are agreed upon by and between the parties hereto. It is further agreed that this appeal shall in no way affect the judgment of petitioner, Drexler Motor Company, which is not a party to this appeal. The only question before us on appeal is whether or not the trial court erred in finding that the panel body of the 1953 Ford truck was covered by the insurance policy issued to the defendant by the third party. The question is res novo in our jurisdiction.

The insurance policy provides, under the definition of automobile, as follows:

“Wherever used in this policy the word ‘Automobile’ means the motor vehicle, trailer or semi-trailer described herein, its automotive equipment and also other equipment permanently attached thereto.”

The question, therefore, resolves itself to whether the coverage includes equipment which is permanently attached to the vehicle subsequent to the issuance of the insurance policy. The third party maintained that it would not be equitable to hold that the policy included subsequently attached equipment because the rate of premium on a collision policy is dependent upon the value of property being insured. Therefore, had the body been attached prior to the issuance of the policy, the rate of premium would have been greater. Although there are no cases in our jurisdiction on the question, the third-party defendant has cited to us Blash-field on Automobile Law, in which a footnote to Paragraph 3523 cites Moore v. American Insurance Co. of City of Newark, N. J., 81 Ga.App. 219, 58 S.E.2d 197. The said footnote states as follows:

“Under an automobile collision policy insuring a ‘new’ automobile truck chassis valued at $5,782.30 and ‘its equipment and other equipment permanently attached thereto’ for a two-year period for a premium of $110 the latter quoted phrase meant equipment permanently attached at the time of the issuance of the policy and did not cover a concrete mixer of the value of $4,000-installed upon the chassis shortly after issuance of the policy. Moore v. American Insurance Co. of City of Newark, N. J., 81 Ga.App. 219, 58 S.E.2d 197.”

This same case is cited in 43 A.L.R. 336; American Jurisprudence 5A, Automobile Insurance 162; 14A Words and Phrases, page 550. Third party has also cited Boston Insurance Co. v. Wade, 203 Miss. 469, 35 So.2d 523, as holdings for their contention that the coverage would not include subsequently attached property.

Of course, the above cases are foreign to our jurisdiction, and we are in no way bound to follow them. Notwithstanding this fact, we feel that the .only reasonable and equitable interpretation which we could give to this policy of insurance is to hold that it includes only equipment permanently attached to the vehicle at the time of the issuance of the policy. Were not the insurance premium based upon the value of the property, we would possibly hold otherwise.

The defendant maintains that the law of our State is to the effect that insurance contracts should be construed strictly against the insurer and liberally in favor of the insured. He is correct in this statement but we must still construe and interpret the contract in accordance with the intent of the contracting parties at the time of the issuance of the policy. The defendant also maintained that the third party, by its own evidence, has paid for damages to radios, heaters, and other like equipment which had been permanently attached to the vehicle subsequent to the issuance of the insurance policy. On this score, we have only to say that the addition of a radio, heater, or other like equipment does not change the cash value of the vehicle, or the rate of premium thereof, insofar as insurance coverage is concerned. We feel that it was incumbent upon the defendant to notify his insurance company of the addition of the body to the cab and chassis. By his failure to secure additional coverage therefor, we feel that he must be liable. We feel that the 'equity of the situation justifies us in holding that a body permanently attached to the vehicle subsequent to the issuance of the policy is not covered by a policy which covers only the cab and chassis, particularly so when the premium for said policy was calculated on the value of the cab and chassis only.

For the reasons assigned, the judgment of the lower court, insofar only as the defendant and the third-party defendant are concerned, is reversed, and there is judgment herein in favor of third-party defendant and against the defendant, dismissing the third-party action. All cost of this appeal to be paid by the defendant. The judgment on the main demand is affirmed.

Judgment amended and as amended affirmed.


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    Charlie A. BLADES et al. v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY.
    No. 4378.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.
    Rehearing Denied June 4, 1957.

      Grover L. Covington, Kentwood, for appellants.
    Adams & Reese, New Orleans, H. H. Richardson, Bogalusa, for appellee.
   LOTTINGER, Judge.

This is a suit by Charlie A. Blades, individually and on behalf of his minor children, Rex Blades and Juan Blades, and by Tink Oliver, individually and on behalf of his minor child, Sammy Oliver, for physical and property damages resulting from an accident on or about March 22, 1955, between the Blades automobile and an automobile insured by the Southern Farm Bureau Casualty Insurance Company. The defendants filed exceptions of res adjudicata, estoppel and no right or cause of action. Said exceptions were based on alleged releases executed by the petitioners. The Lower Court rendered judgment maintaining the exceptions and dismissing the petitioners’ suit.

The facts show that the accident occurred on March 22, 1955. On April 1, 1955, the petitioners executed acts of final release in settlement of claim. Shortly after signing said releases, the petitioners were paid drafts in the following amounts:

Rex Blades $ 10.00
Juan Blades 75.00
Sammy Oliver 10.00
Charlie A. Blades, Mrs. Charlie A. Blades and Tink Oliver 250.00

The said drafts were dated April 1, 1955 and were cashed by the petitioners on April 5, 1955. On the reverse side of said drafts is the following wording:

“Release and Endorsement
Read before Signing”

Following said wording is more wording to the effect that endorsement of said drafts shall constitute a full and complete release from any injuries or damages resulting from the accident. Of course, the release form executed by the petitioners is a full and complete release of any damages and injuries which resulted from the said accident.

The evidence discloses that both petitioners are able to read and write. In spite of this fact, however, the petitioners claim that the releases were obtained through error and fraud, they basing their contention on their claim that the insurance adjuster told them that the releases were only for property damages and for travel expenses to and from the doctor’s office. They claim that the adjuster specifically told them that even though they signed the releases, they would still have their right of action for personal injuries.

The Lower Court awarded judgment in favor of the defendant and dismissed petitioners’ action. The decision of the Lower Court was based on the decision of this Court in Thompson v. Kivett & Reel, Inc., 25 So.2d 124, wherein, under a similar situation, we held that a party who was able to read and write is charged with having read that which he could easily have read, and in which case we upheld the act of release.

We see no substantial difference between the present case and the Thompson case which would justify us in making a different decision. Assuming that the adjuster did tell the petitioners that they were not releasing their rights for personal injuries, we feel that the petitioners should have read what they were signing, and not merely rely upon the assurance of a total stranger. We do not mean to say that the adjuster did make such assurances, as the evidence is very conflicting on this score, and the Lower Court evidently believed the adjuster’s side of the story.

Article 3078 of the LSA-Civil Code provides that voluntary compromise agreements, lawfully consummated have the force of a definitive judgment in such transactions, however, may be upset by vices of consent consisting of error, fraud, violence and threats, as are set forth in LSA-Civil Code, Article 1819 et seq. We do not believe that any of the said vices of consent are apparent in this case. Some four day period elapsed between the signing of the release and the cashing of the draft, which we believe was sufficient time for the petitioners to seek further into the matter had they so desired. Contracts mutually entered into between parties having capacity to contract are binding obligations and must not be upset merely at the whim of one party or the other.

However, we do not feel that the above would apply to the releases signed on behalf of the minors involved. Articles 353 and 3072 of the LSA-Civil Code provides:

“Art. 353. The tutor can not borrow for the minor, purchase for him immovable (immovables) or compromise respecting his rights, without an authority from the judge, granted on the advice of a family meeting.”
“Art. 3072. A man to transact must have the capacity to dispose of the things included in the transaction.
“The tutor of a minor or the curator of a person interdicted or absent can not make a transaction without being authorized thereto by the judge.”

The releases were given in compromise of the damages to the minors involved in the accident. The compromise entered into between petitioners and defendant was a private transaction between the said parties and was without the authorization as required by Articles 353 and 3072.

These codal articles have been upheld in Succession of Calloway, 49 La.Ann. 968, 22 So. 225; Burney’s Heirs v. Ludeling, 47 La.Ann. 73, 16 So. 507; Chambers v. Chambers, 41 La.Ann. 443, 6 So. 659; Metcalfe v. Alter, 31 La.Ann. 389; and Succession of Flower, 3 La.Ann. 292 and Chesneau’s Heirs v. Sadler, 10 Mart, O.S., 726.

Title 9, Section 651 et seq. of the LSA-Revised Statutes of 1950 dispensed with the necessity of a family meeting but set up a new procedure for the handling of transactions which involve minors and interdicts. Under the said procedure, Court authority is still necessary, and it is our opinion that the compromise of a minor’s rights entered into without such authority is an absolute nullity.

It appears that all the damages claimed on behalf of the minors were personal. There were no medical bills or other expenses for which the father could recover. We feel that these personal damages of the minors could not be compromised without following the procedures as set forth by law.

For the reasons hereinabove assigned, the judgment of the Lower Court is affirmed insofar as it pertains to the compromise entered into by Charlie Blades and Tink Oliver, but is reversed insofar as it pertains to the compromise entered into for and on behalf of the minors, Rex Blades, Juan Blades and Sammy Oliver. The costs of this appeal to be paid by defendant and the case remanded to the Lower Court to be disposed of according to law.

Affirmed in part — reversed in part.


text:
    Delson FONTENOT v. Ulysse FONTENOT.
    No. 4404.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.
    Rehearing Denied June 4, 1957.
    Guillory & Guillory, Eunice, for appellant..
    Tate & Tate, Mamou, for appellee.
   LOTTINGER, Judge.

This case presents the perplexing question of the applicability of the provisions of our Workmen’s Compensation Statute to the operations of the small farmer.

There appears to be no dispute but that the plaintiff, Delson Fontenot, while in the employ of the defendant, Ulysse Fontenot, was injured on November 21, 1956 when a steel fragment flew from the sledge hammer or wedge he was using to split fence posts and lodged in his left eye. As a result of the accident the injured eye had to be re.moved and, as his right eye was already “blind” to all intents and purposes, the plaintiff is obviously totally and permanently disabled within the meaning of our compensation statute. The only question to be decided, therefore, is whether in view of the nature of the employer’s business and the duties of the employee the disability suffered is compensable.

The trial judge concluded that the defendant was not engaged in a hazardous business within the contemplation of LSA-R.S. 23:1035 and the matter is now before us on an appeal taken by the plaintiff from a judgment dismissing his suit.

In the course of his written reasons for judgment the trial judge found certain factual situations to exist with which findings we find no manifest error and which, accordingly, we herewith set forth:

“Defendant, Ulysse Fontenot, is a small farmer who owns twenty (20) acres of land in Evangeline Parish. His father, Relis Fontenot, and grandmother, Mrs. Ozema Fontenot, also own land in the same vicinity and defendant, in addition to planting his land, rents approximately sixty (60) acres of their land. The land not rented by defendant is rented to small tenants, some of whom have been on the' land for forty years, and some of whom are the children of tenants who stayed with the land after they became grown. There appears to have been from three to five such tenants over the years.
“Defendant plants about fifty (50) acres of rice, and about nine (9) acres of cotton. For his convenience in cultivating and growing the rice, plaintiff owns one tractor. All mechanical harvesting is done by machines owned by larger and more prosperous farmers who furnish the machines and labor and charge defendant $1.00 per barrel ■of rice harvested. Defendant also uses his tractor on a relief pump to lift water into a ditch to irrigate his rice during the growing season. It is common knowledge that a farm the size of defendant’s is a very small farm; it being not unusual for farmers in the area to grow several hundred or even thousands of acres. * * *
“Plaintiff entered into an agreement with defendant whereby plaintiff would do the work around the barn yard and residence premises on the farm for the wage of $35.00 per month plus his room, board and laundry. Defendant pointed out to plaintiff that his taking the job opened other opportunities to plaintiff: namely, plaintiff could obtain from defendant’s mother some land on which to grow a crop on a one-fifth share basis, the share to be paid to the landowner. Further, plaintiff could choose a plot to plant a garden. The agreement •was made in July or August and contemplated farming the following year. It was understood that defendant might need to hire men to help with the harvest of his crop and that plaintiff could work and would be paid extra for harvesting. The only such harvesting done by plaintiff was, as he testified, picking cotton.
“It is customary during the fall for the tenants to get together and split posts to repair existing fences and to make new fences setting off from defendant’s rice land the acreage they will plant in cotton, corn or potatoes. On the day of the accident, plaintiff and other tenants went to the forest land for the purpose of splitting posts pursuant to this custom. None of the men were being paid by defendant for this work although he always paid the tenants extra when they worked for him or on his crops.
“It is observed that plaintiff did not testify that he used the tractor prior to the accident. He testified that he used the automobile to go get ‘whiskey’ but apparently does not contend that he used same in connection with the duties of his employment. The only use of the tractor being after the accident and for plaintiff’s convenience in cultivating approximately one acre of land and cutting cotton stalks on land which plaintiff, still on the farm, intended to plant for himself. * * *
“The plaintiff may or may not have been a sharecropper, but although not required to drive the defendant’s tractor and truck, did so, and was to be permitted to farm approximately three or four acres of land for himself if he so desired. * * *
“Plaintiff could use the machinery for his convenience as could the other tenants: the employment did not require its use; its use was not a necessary incident of the employment. * * * t)

This is a field in our compensation law, we believe, where there is an obvious need for legislative pronouncement; in the absence of same, however, we can only be guided by the jurisprudence, and an examination of the decisions of this and other courts convinces us that the observations made by us in the case of Allen v. Yantis, La.App., 196 So. 530, 533, are applicable and controlling here.

In that case we said:

“While we are in full accord with the tendency of extending the protection to laborers under the compensation law by making a liberal construction of it in embracing just as many employees thereunder as will be justified by a liberal interpretation, yet we feel that there is quite a difference in extending the law to cover the driver or operator of a gasoline engine as was done by the Supreme Court in the Haddad case and as the law itself implies, and in extending the law to cover those who have nothing to do zvith the installation, repair, removal or operation of these gasoline engines, but only work in close proximity to them or come in frequent contact with them. It seems to us that if the Legislature had intended to include those who work in close proximity to engines and machinery, or come in contact with them, where the employer’s business, trade or occupation is not declared to be hazardous, words would have been used to indicate that intention, rather than using only the words installation, repair, erection, removal or operation of engines and other forms of machinery. * * *
“But we conceive it to be quite different where the employer’s primary business is nonhazardous, such as farming, for in that case in order for the employee to come under the compensation law, he must, as a part of his regular duties, be performing services that arise out of some regular feature of his employer’s business which is hazardous. So that the farmer who regularly uses a motor truck in his farming operations may be said to be engaged in a hazardous business only as to the driver or operator of the truck, and not as to those who load and unload that truck with cotton, corn, potatoes and other farm produce. If all the farm hands who sometime' during the year are required to load and unload farm produce on the truck, or ride on it occasionally for that purpose, are protected by the compensation law, it would be tantamount to holding that practically every farmer, large or small, would come under the act and should protect himself by compensation insurance. We seriously doubt if the Legislature in passing the law ever intended such a result. We are not saying that farm hands should not be protected by the compensation law, but we do feel that if the Legislature intended for them to be protected by the law, it could have easily included farming as one of the trades and businesses covered therein.”' (Emphasis supplied.)

As was said by the Supreme Court in the case of Brownfield v. Southern Amusement Co., 196 La. 73, 198 So. 656, and quoted with approval by us in the case of Goodman v. National Casualty Co., La.App., 15 So.2d 173, and likewise quoted with approval by the Orleans Court of Appeal in the case of Luce v. New Hotel Monteleone, 92 So.2d 730, 733:

“Where an employee is injured in a business or occupation not specifically mentioned in the law as hazardous, the inquiry is whether or not the duties of the employee required him to perform services of a hazardous nature incidental to his employment and directly associated with his employer’s business.”

The evidence in this case fails to convince us that the plaintiff either drove or operated a truck or tractor pursuant to his ■duties, but, moreover, we are convinced •that his use of same was for his own enjoyment or convenience. This being the case, we do not believe that the cases cited by ■counsel for plaintiff are applicable. Nor do we find any conflict in our holding here with what we said in Pierre v. Farm Development Corporation, La.App., 39 So.2d 154 (where the plaintiff was employed as a tractor driver and was so engaged when injured) or in Martel v. Seale, La.App., 93 So.2d 257 (where the minor was employed as a tractor driver and was injured while hitching a plow to the tractor).

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

Judgment affirmed.