author: ELLIS, Judge. LOTTINGER, Judge

text:
    Alex Baxter McMORRIS v. HOME INDEMNITY COMPANY.
    No. 4364.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    Rehearing Denied May 2, 1957.
    Writ of Certiorari Granted June 10,1957.
    Ashton L. Stewart, Baton Rouge, for appellant.
    Percy & Macmurdo, Baton Rouge, for appellee.
   ELLIS, Judge.

Plaintiff has appealed from the judgment of the lower court denying him compensation as for total and permanent disability as the result of an accident and injury admittedly occurring to him on the 13th of November, 1954 while employed by his son as a carpenter in the construction of the former’s home.

There is no dispute as to the facts in the case, which in the main show that Vernon D. McMorris, hereinafter referred to as the employer, was a longtime employee of the Farmers Home Administration, in the capacity of the director for St. Helena Parish. The duties of his employment required that he act in a supervisory capacity in the construction of dwellings and other farm buildings throughout St. Helena Parish. It is shown that during the previous four or five years he had supervised the construction of approximately thirty dwellings and fifteen to twenty dairy barns and the same number of large dry sheds for the farmers of St. Helena Parish. This work also included the knowledge of plans as they were subject to his approval before a loan could be made. Such plans included the working up of the entire cost estimate, in other words, he was thoroughly familiar with the construction of homes, barns, and large dry sheds. The employer in the case at bar had an accumulated leave over a period of about four years and decided to build a home for himself. He applied first to the Bank of Greensburg for a loan which later was financed through the Veterans’ Administration, and taking advantage of the accumulated leave of absence from his regular duties with the F.H.A. he employed, during the construction of the house, some seven to nine workmen, among whom was the present plaintiff who was a carpenter by trade and was paid by the employer $2.50 per hour. It took some nine or ten weeks to construct the residence and it was during the building of the breezeway that the plaintiff fell and injured his left shoulder.

When the employer applied to the bank for the loan, he stated in the application that he was building it himself and he listed himself as a contractor and also took out workmen’s compensation, public liability, fire, storm, theft “and the ordinary insurances * * *. For my protection and the banks.” There is no dispute that the employer in this case did the work of an architect in planning his house, did his own work in connection with the securing of the loan, performed the same duties as a contractor, foreman and also did a large portion of the actual carpentry work.

It is further shown that the plaintiff was paid compensation from the date of the accident on Nov. 13, 1954, to August 13, 1955, at which time it was discontinued and hence the plaintiff is claiming penalties and attorney fecs.

The question to 'be decided in this case arises under that portion of our compensation law embodied in LSA-R.S. 23 :- 1035:

“The provisions of this Chapter shall apply to every person performing services arising out of and incidental to his employment in the course of his • employer’s trade, business, or occupation in the following hazardous trades, businesses and occupations: * * * )>

There is no dispute but that the plaintiff was injured while performing services incidental to his employment but defendant strenuously argues that they did not arise “in the course of his employer’s trade, business, or occupation * *

The defendant argues that the regular business of the employer was with the Farmers Home Administration and that the plaintiff’s work was not, therefore, part of the employer’s regular business. Defendant also argues that the employer was not in the construction business or the business of building houses, and paraphrases language used in the case of Prater v. Sun Indemnity Company, La.App., 38 So.2d 663, by posing the question: “Was the employer in this case engaged in the construction business ‘as a trade, business or occupation so that the statute might apply.’ ?” In arguing 'the question posed, counsel for defendant correctly states that payment of compensation by the Home Indemnity Company in this case did not constitute a legal waiver or estoppel, citing LSA-R.S. 23:-1204 and the following cases: Fields v. General Casualty Co., 216 La. 940, 45 So. 2d 85; Cannon v. Michigan Mut. Liability Co., La.App., 66 So.2d 534; Smith v. Crossett Lumber Co., La.App., 72 So. 2d 895; Franz v. Sun Indemnity Co. of N. Y., La.App., 7 So.2d 636; Benjamin v. Standard Accident Ins. Co., 152 La. 874, 94 So. 428; Rutland v. General Accident Fire & Life Assurance Corp., La.App., 200 So. 486; Prater v. Sun Indemnity Co., La.App., 38 So.2d 663; Landry v. Fuselier, La.App., 78 So.2d 442.

Defendant in his brief further argues:

“There can be no liability on the Employer’s part in the present case because the Employer was not engaged in contracting or construction of houses as a trade, business or occupation. In Prater v. Sun Indemnity Co. of N. Y. [La.App.], 38 So.2d 663, 666, the Court again quoted with approval the language used in Shipp v. Bordelon [152 La. 795], 94 So. 399, 400, as follows:

“ ‘ * * * it is not enough that the employee shall be performing work of the character falling within the designated trade, business or occupations, but it must be done “in the course of the employer’s trade,” etc. in certain trades, businesses, etc. In other words, the work must be of that character, and the employer must be engaged in that line of work as a trade, business, or occupation in order that the act may apply.’

“The assured in the present case was constructing his first and only house at the time Plaintiff was injured. Also this house was to be and is now the assured’s personal residence. The house was never built for sale on the market or to make a profit. The assured’s sole intention and purpose was to provide himself and his family a 'better house in which to live. The insured had never made or lost a penny building or constructing houses. He was not in business of building or constructing houses. He was an employee of the Federal Government, had been for some time past and occupied the same status at the time of the trial. The mere fact that his work with the government made him familiar with the construction business does not change matters. A lawyer, a banker, an official in a building and loan association, a government official, a plant worker, a carpenter or many other persons, including a Judge might gain intimate knowledge of the construction business while following their own professions or occupations, yet it cannot be said that they thereby automatically become a contractor or have their own construction business when they undertake with help to repair, to make additions to, or to build their own personal residence.

“The Caldwell case [168 So. 112], held that an employer engaged in the manufacture and wholesale and retail sale of paint was not liable in compensation to an injured workman especially employed to do paper hanging in its retail store because the employer was not engaged in the paper hanging business.

“The Speed case, in an opinion written by Chief Justice Fournet, declared the holding in the Caldwell case was much to narrow and did not consider the fundamental principles and the historical basis of the Louisiana Workmen’s Compensation Act. At page 827 of 62 So.2d of the Speed case, we find the following language which was also used in the landmark case of Puchner v. Employers Liability Assurance Corp., 198 La. 921, 5 So. 2d 288:

“ ‘ “By that system the loss incurred as a result of the employee’s injury is recognized ‘as an element of the cost of production to be charged to the industry rather than to the individual employer, and liquidated in the steps ending with consumption, so that the burden is finally borne by the community in general. * * *
“ ‘Clearly the cost of the maintenance of the theater building and equipment, including its repairs, is an operating or production cost of Page’s business or occupation. [Theater owner] * * * This forms an element of the cost of the operation of the theater that will be finally borne by the patrons.’ (Emphasis supplied.)

Professor Malone in his Louisiana Workmen’s Compensation Law and Practice sets forth the same sound reasoning as employed above. We quote from page 132:

“ ‘This special requirement expresses a part of the underlying philosophy of the compensation principle. The business of the employer is expected to bear the cost of the risk of injury to those who serve the business. Therefore, only so long as the work of the employee is a part of the business of the employer is the application of compensation justifiable. At times this is obvious. Although a factory operator may be required to satisfy the claims of those workers who are injured in his plant, it does not follow that he should be made liable without reference to fault for accidents that befall the yardman who uses a power mower at his home. Neither must he pay compensation to the handyman who repairs or remodels his house. In all such cases the work of the employee may be fairly characterized as hazardous, and the same is true of the business of the employer. The fact remains, however, that the employment is not a part of the business and for that reason alone compensation is not appropriate.’

“ * * * Paraphrasing the above basic principles, how can the element of cost of building one’s own home be passed on to the consuming public? How can this burden be finally borne by the community in general? How can this cost of production be liquidated in the steps ending with consumption?

“The employer in this case is not in business of building houses. His residence is not for sale. His house was not built with candies, cookies, and goodies and we have no Hansel or Gretal to take the part of the consuming public. Many persons of moderate means remodel, repair, renovate, or build their own houses, carports, barns without giving a thought to compensation insurance. If while doing the above these persons are held to> be in the construction business are in the business of repairing, painting, renovating, etc., then all these persons could have substantial judgments rendered against them in compensation.

“In the present case it is only where a person is engaged in the business of construction and building houses that he can be classed as a contractor or a person engaged in the construction business. * * *

“Since plaintiff’s attorney argues so strenuously that the employer was engaged in building houses, we can only state again that this was the first, last and only house that the employer ever built, that it was being built for his own personal residence, that he never intended to sell it and had never offered to sell it and had never intended to make a profit off of it.”

Let us consider defendant’s arguments. The case of Prater v. Sun Indemnity Co. of N. Y., supra [38 So.2d 666], is not controlling for the facts in that case and the one under consideration are much too different. In the Prater case a doctor had employed the plaintiff to make repairs to his residence, and the Court found as a fact that there was nothing in the record “to show that he had ever conducted repairs to other properties other than the several homes he had owned in the past.” The court further commented:

“It would be indeed a disastrous doctrine which would hold that a homeowner, who undertakes to repair his own home and employs a workman or a skilled craftsman to do his work, may be liable in compensation for injuries sustained by such an employee. If the homeowner finds a slate loose or some other minor repair to be necessary and he attempts to have those repairs made by his own employee, if then it will be necessary that he secure compensation insurance and the result will be that he can make the repairs only at prohibitive cost. The framers of the statute contemplated no such result.
“Obviously the facts render this case inapposite.”

The fact that the employer in the present case was constructing his first and only house is immaterial; also immaterial is the fact that the house was to be his personal residence and was not built for sale on the market or to make a profit, and that the employer’s sole intention and purpose was to provide himself and his family with a better house in which to live, and the fact that he had never made or lost a penny building or constructing houses.

In the very recent case of Meyers v. Southwest Region Conf. Ass’n of Seventh Day Adv., 230 La. 310, 88 So.2d 381, 384, the Supreme Court of Louisiana had occasion to consider the meaning of “ ‘trade, business or occupation’,” as well as to comment upon the argument of a business for profit. It stated:

“The primary question to be resolved in the case is whether or not a church corporation, being a charitable and non-profit organization, is a trade, business or occupation within the meaning of our workmen’s compensation law.

“The Court of Appeal (79 So.2d [595], 597), was of the opinion that ‘trade, business or occupation’ does not comprehend a charitable or religious organization, since the purpose of the Act is to place the economic burden of employee injury initially on industry and ultimately upon the consumer. From this premise, it reasoned that non-profitable enterprises were not intended to be covered by the Act. Comments by Professor Wex S. Malone, in his able treatise on Louisiana Workmen’s Compensation Law and Practice, and cases from New York, California and South Carolina are said to fortify this conclusion.

“The comment of Professor Malone (found on page 34 of his work) is merely a statement of the economic principle upon which workmen’s compensation laws rest, i. e., the shifting of the burden of accidental injuries incident to employment from the injured employee onto the public through the employer. But this principle affords no ground for concluding that the compensation law does not apply to employers who do not engage in a trade, business or occupation for profit. The Act, unlike the laws of some other states (e. g., New York Workmen’s Compensation Law prior to its 1928 amendment), does not, either in letter or spirit, limit its scope to businesses conducted for profit. On the contrary, its comprehensive provisions would seem to encompass an unrestricted field of operation. For example, [LSA-] R.S. 23:1034 includes within the scope of the statute all public employees in the service of the State or other political subdivisions, incorporated public boards, etc. This, alone, manifests that it was never intended by the Legislature that the Act was to be confined to individuals and corporations engaged only in trades or businesses operated for profit.

“The Workmen’s Compensation Act, as we have many times said, is paternal legislation and is to be given a liberal construction by the Courts. Hence, in determining whether a particular calling is within the purview of the law, the meaning of the language ‘trade, business or occupation’ shoud be considered in its broadest aspect so as to include all types of pursuits and we must assume that, if the Legislature intended to exclude any particular enterprise, it would have especially excepted it.

“The term ‘business’ has no definite or legal meaning. See Black’s Law Dictionary, 4th Ed., Page 248. It is a general term with widely variegated meanings, and has been defined as ‘that which busies, or engages time, attention, or labor, as a principal serious concern or interest’. Webster’s New International Dictionary, 2d Ed.

“Thus we see that, by giving the term 'trade, business, or occupation’ the comprehensive meaning to which it is entitled, no difficulty is encountered in reaching the conclusion that the defendant church corporation is conducting a business. * * * ”

Although we see by the Supreme Court’s language in the above quoted Meyers case that the compensation act is not limited in its scope to businesses conducted for profit, it is obvious under the facts in the present case that the employer fully intended to make a profit in the nature of a saving of architect fees, cost of a contractor and/or foreman as well as a first class carpenter. Also it is well recognized that an employer may have a dozen trades, businesses or occupations. In the present case the employer may be said to have had two regular businesses. Although on leave he still would be considered as an employee of the Farmers Home Administration, and, secondly, the construction business. He was doing that which the Supreme Court in the Meyers case, supra, said constituted a business: “that which busies, or engages time, attention or labor, as a principal serious concern or interest.” The employer in the case at bar was personally busy, engaging his time, attention and labor at a principal serious concern or interest in the construction of a house which is specifically designated as a hazardous occupation. By every test he was engaged in the construction business and under the liberal interpretation and terms of the compensation act he would not be excluded from its provisions merely because the house was being built for his own use. Whether one intends to construct a house for rent, for sale or for personal use, when he actually does what the employer did in this case, acts as architect, contractor or foreman, and actual carpenter, and employs seven to nine other carpenters to assist him and devotes his entire time and attention to the building of the house which took nine to ten weeks, it constituted “a trade, business or occupation” within the meaning of the compensation act. The employer in this case did exactly what one engaged exclusively in building houses for profit would have done, such as a general contractor in the construction business.

The arguments of both plaintiff and defendants before this Court have been somewhat altered in the case as compared to those in the lower court. For example, plaintiff cited Speed v. Page, 222 La. 529, 62 So.2d 824, and Landry v. Fuselier, La. App., 78 So.2d 442, Id., 230 La. 271, 88 So. 2d 218. While the general discussion of the law in Speed v. Page, supra, would be applicable in some respects, on the whole the case is inapposite, for there the court was concerned with the operator of an admittedly hazardous business in the conduct of that business undertaking repairs, which is not the case under consideration. However, the court did state in that case that whether the repairs were being made to the building housing the business or the equipment therein, when done by the person operating the hazardous business rather than having it done under contract, the employees came under the protection of the employer’s liability laws of the State. The same might be said of the present case, that where one engaged in the contract business, although it be for the purpose of building his own home as shown by the facts in the case at bar, rather than employing a general contractor, then his employees came under the protection of the employer’s liability law.

In Landry v. Fuselier, supra [230 La. 271, 88 So.2d 221], the Supreme Court reversed the judgment of the lower court as well as the majority of this court, based upon its finding that the Lower Court as well as the majority of this court had, in effect, committed manifest error in the facts upon which our judgment had been based. The Supreme Court, based upon the facts as found by it, held that one operating a hazardous business who demolishes a building to repair the building housing such a business, is liable in compensation to an employee injured in the demolishing process. A close reading of this decision would also show that the Supreme Court, in addition, held defendant liable on another ground. It adopted the minority opinion of this court in which it was stated:

“ ‘Thus the construction activities of Fuselier involved in repairs and construction of his business premises were a regular part of his economic activities. These construction activities, hazardous per se under LSA-R.S. 23:1035 when engaged in as a business, were no less a part of the employer’s trade, business, or occupation because used as a means of making money by the regular and recurrent repairs and additions to his own business properties, than if used as a means of making money by repairs for a price to the property of another.’ ”

Upon the facts found by the minority of this court and the Supreme Court, its holding was eminently correct. The same thought contained in the above quoted paragraph approved by the Supreme Court could be applied in the present case, viz., that the construction of the house in the present case which was hazardous per se under the law when engaged in as a business, was no less a part of the employer’s trade, business or occupation because used as a means of making money by saving money (expenses of a contractor, superintendent, foreman and architect) than if used as a means of making money by constructing a house for a price for another.

Generally speaking, however, the two cited cases are inapposite as well as other cases quoted in briefs to the Lower Court and this court, such as Shipp v. Bordelon, 152 La. 795, 94 So. 399; Caldwell v. George Sproull Company, 184 La. 951, 168 So. 112 (both in effect now overruled by the Supreme Court in Speed v. Page, supra); Puchner v. Employers Liability Insurance Company, 198 La. 921, 5 So.2d 288; Cannon v. Michigan Mutual Liability Company, La.App., 66 So.2d 534 (inapposite because of the facts); Brooks v. Smith, La.App., 41 So.2d 800; Jarrell v. Ewing, 7 La.App. 502.

For the above and foregoing reasons we are of the opinion that the employer, Vernon D. McDaniel, was engaged in the trade, business or occupation of constructing a house and his employees were entitled to come under the protection of our compensation law.

There does not seem to be any serious dispute but that the evidence conclusively shows that the plaintiff is totally and permanently disabled as the result of the fall and injury to his left shoulder. In fact counsel for defendant does not argue to the contrary. A detailed discussion of the testimony on this point will serve no useful purpose.

Plaintiff is also claiming 12% of the total amount of the claim together with reasonable attorney fees as a penalty against Home Idemnity Company. Under the facts in this case we do not believe that the imposition of penalties would be justifiable.

For the above and foregoing reasons it is ordered that the judgment of the Lower 'Court be reversed, annulled and avoided and it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff Alex Baxter McMorris and against the defendant Home Idemnity Company, awarding compensation to the plaintiff for total and permanent disability in the full sum of $30 per week payable weekly beginning Nov. 13, 1954, for a period not to exceed 400 weeks, less compensation previously paid together with interest from the maturity date of each such payment and all costs, reserving to plaintiff his rights to claim additional medical expenses within the legal limits when and if needed.

LOTTINGER, Judge

(dissenting).

I am of the opinion that the judgment of the Lower Court is correct and should be affirmed. I subscribe to and adopt that portion of defendant’s brief which is quoted in the majority opinion as well as a list of cases cited therein. I therefore respectfully dissent from the majority.

       “[LSA-] R.S. 23:1035 provides, in part, that: ‘The provisions of this Chapter shall also apply to every person performing services arising out of and incidental to his employment in the course of his employer’s trade, ’business, or occupation in the following hazardous trades, businesses and occupations. * * * ’ (Emphasis ours.)”

      . “Nor can it be said that it would be vio-lative of the economic principle of workmen’s compensation to hold that the law applies to charitable and religious organizations as well as to businesses conducted for profit. In both cases, the costs of the injuries are ultimately passed on to the public — specifically, to those supporting the charity or religious institutions in the first instance, and those who purchase the goods or services, in the latter.”

      . “For our most recent expression see Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522.”

      . “ ‘Business’ is also specifically defined in Webster’s Dictionary as ‘(a) Oonstant employment; regular occupation; work; as, the business of living; business before pleasure, (b) Any particular occupation or employment habitually engaged in, especially for livelihood or gain, (c) A particular subject of labor or attention; a temporary or special occupation or concern. ‘Wist ye not that I must be about my Father’s business?’ Luke ii, 49.’ ”


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Lucille M. SEALS v. The CITY OF BATON ROUGE.
    No. 4366.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    Rehearing Denied May 2, 1957.
    Writ of Certiorari Denied June 28, 1957.

      R. Gordon Kean, Jr., John V. Parker, Baton Rouge, for appellant.
    L. C. Parker, H. D. Copenhaver, Jr., Baton Rouge, for appellee.
   LOTTINGER, Judge.

This matter is before us on an appeal taken by the City of Baton Rouge from a judgment rendered against it in the Court below. The trial judge rendered written reasons for judgment which we herewith set out in full:

“Plaintiff brings this suit against the City of Baton Rouge, seeking to recover under the Workmen’s Compensation Law for the death of her husband, Ernest Seals, a captain on the police force of the City at the date of his death, January 21, 1955. Recovery is sought for plaintiff as surviving spouse of decedent and for two sons, issue of her marriage to decedent, both under the age of eighteen years on the date of the death of Captain Seals. Plaintiff alleges that her husband died of coronary thrombosis following the aggravation of a pre-existing heart condition caused by the demands of the officials of the police department in their efforts to compel him to retire.
“Exceptions of no cause and no right of action were filed by defendant and by the court overruled. These exceptions are here renewed.
“The only testimony heard by the court was that of Dr. Howard B. Witter, decedent’s family physician since 1932, called as a witness for plaintiff. The deposition of plaintiff, taken a few days before the trial, was offered in evidence by agreement of the parties. The other evidence was offered by joint stipulation of the parties, and consists largely of documentary evidence.
“Captain Seals became a member of the City Police force on July 1, 1934, and except for the period from October 1, 1937 to May 14, 1938, he served therein until his death. On October 1, 1951, he suffered an attack of coronary thrombosis and was under the care of Dr. Witter who discharged him as able to resume his active duties as a police captain on August 1, 1952. So far as the record shows Captain Seals performed these active duties without interruption for almost two and one-half years, or until he suffered an attack of anginal pains on January 17, 1955, followed by a second and fatal attack of coronary thrombosis on January 21, 1955.
“Dr. Witter was the decedent’s personal physician for a period of about twenty-three years, commencing some two years prior to decedent’s becoming a member of the City Policy Force. He was intimately acquainted with decedent, saw him frequently, and gave him such medical attention as was required. The doctor testified that throughout these years Captain Seals had no serious illness other than the heart attacks mentioned. He further testified that when he discharged Captain Seals as able to resume his duties on August 1, 1952, the captain had made a normal recovery from his heart attack on October 1, 1951 and was fully able to perform his duties in directing and supervising the work of the police officers under his command. As already stated, there is nothing in the record which shows the doctor was mistaken in this opinion. He did testify, as would be expected, that he ordered Captain Seals to avoid strenuous physical activities.
“Three or four days prior to January 17, 1955, Dr. Witter learned of the demands being made on Captain Seals that he retire. His first information on this question came from Mrs. Seals. Following this, Captain Seals discussed the matter with the doctor. Dr. Witter testified that on this occasion Captain Seals was greatly upset and was obviously undergoing severe mental agitation and worry. He insisted that Captain Seals get away from his work and the local surroundings for a time and endeavor to cease worrying, or the results would be serious. Three or four days later on January 17, 1955, after Captain Seals had begun a short vacation from his active duties, he had this attack of anginal pains for which Dr. Witter treated him and from which he made a good recovery. It appears that between January 17 and January 21, 1955, Captain Seals visited his father in Franklinton, leaving Baton Rouge on the morning of the 18th and returning on the evening of the 20th. He suffered the fatal attack at his home on January 21, 1955, and died enroute to the hospital.
“Without further review of Dr. Witter’s testimony it suffices to say he testified positively and unequivocally that mental agitation and worry over the probability of his forced retirement was the sole cause of Captain Seals’ fatal heart attack. His testimony on that point is not contradicted to the slightest extent, and there does not appear to be any dispute about the matter.
“Dr. Witter’s qualifications as a medical expert, his integrity, and his professional standing and reputation are unquestioned. This Court accepts his testimony as conclusive.
“The facts relative to the probable forced retirement of Captain Seals are reflected by certain documents filed in evidence in connection with the joint stipulations of the parties.
“For the year 1954 the city budgeted $3,000 to the police department for ‘Physical Capacities Analysis.’ This work was under the direction of Dr. Charles McVea, an eminent physical and surgeon of Baton Rouge. Prior to October 15, 1954, physical examinations were made by Dr. McVea or under his direction of a large number, possibly all, of the members of the police department, including Captain Seals. The actual physical examination of Captain Seals was made by Dr. Louis Mayer, an associate of Dr. McVea’s and likewise an eminent physician and surgeon. Based on Dr. Mayer’s examination, Dr. McVea reported to Shirley S. Arrigiii, Chief of Police, that ‘Captain Ernest Seals had a coronary thrombosis 3 years ago and was referred to Dr. Eugene Toups for investigation. He is not fit for duty except to do desk work.1 This report with recommendations, along with reports and recommendations relative to various other members of the police department, was embodied in a letter of the Chief of Police to the mayor and city council under date of October 15, 1954. The chief called attention to the fact that Captain Seals had just completed twenty years of service and was eligible for retirement. He recommended that Captain Seals be given a disability pension.
“It is stipulated that Captain Seals was receiving a salary of $400 per month, and that his retirement benefits or disability pension, whichever it might be called, would be $200 per month.
“It is stipulated by the parties that if Chief Arrighi had been called as a witness he would have testified that he did not single Captain Seals out with demands for retirement. However, plaintiff declined to admit the correctness of such testimony.
“At a meeting of the City Council on December 29, 1954, the question of the admitted actuarial unsoundness of the police pension system was discussed and steps were outlined looking toward some remedy for this situation. The minutes of this meeting indicate that the members of the police department were aware of the unsoundness of their pension system, and since Captain Seals was one of the high ranking officers of the department, it is reasonable to assume he was aware of it.
“At the council meeting of December 29, 1954, a resolution was offered to provide funds to defray the additional cost of disability retirements recommended by the chief in his letter of October 15, 1954. This resolution was laid over for action on January 12, 1955.
“Under date of December 30, 1954, the police civil service board forwarded a letter to Captain Seals which shows that he fell short of having twenty years service with the police department.
“At this state of the proceedings, under date of January 3, 1955, the Chief of Police forwarded to Captain Seals a letter reading as follows:
“ ‘In connection with your physical examination performed under the Physical Capacities Analysis program, it has been recommended that you be allowed to request your disability pension in accordance with the regulations of the Municipal Fire and Police Civil Service Board and the policy of the City of Baton Rouge. All personnel in the Police Department shall be physically fit at all times to perform the duties assigned them.
“ ‘If a request for disability pension is not received within a reasonable length of time, that is by January 15, 1955, it will be my duty to call your disability to the attention of the Civil Service Board for action.’
“On January 12, 1955, the city council adopted the resolution introduced on December 29, 1954, wherein it assured the trustees of the police pension fund that it would make available, as required, additional funds to defray the cost of the disability retirements in question.
“In my opinion this court is not called upon to determine whether the city authorities had the legal right to force Captain Seals to retire, nor to determine whether he was physically able to perform the duties of a police captain. Since the cause of his death has been established, it is necessary to determine whether this cause of his death was an accident arising out of and in the course of his employment.
“From the evidence it readily appears that the one single occurrence which was the direct cause of decedent’s fatal heart attack was his receipt of the letter addressed to him by the chief of police under date of January 3, 195S, which letter is quoted in full hereinabove. The other related occurrences formed the background for the letter, but it was the letter itself which carried the tone of finality. If we have an accident here in the contemplation of the statute it is decedent’s receipt of this letter on or about January 3, 1955, and not his heart attack of January 21, 1955. The heart attack was the fatal result of the alleged accident. See Kraemer v. Jahncke Services, La.App., Orleans, 83 So.2d 916.
“Although compensation was denied in the cited case, the Court there reviewed the jurisprudence dealing with heart attacks in compensation cases, and, after listing the well recognized causes of compensable heart attacks, such as the aggravation of a pre-exist-ing heart condition by the employee’s work, excessive heat, intense hard labor, sudden fright or attack, added:
“ ‘or any other stress that might aggravate such condition and cause disability or death would be compensable under the Workmen’s Compensation Law.’
“ ‘Later in the opinion the Court refers more than once to mental as well as physical stress and strain.
“ ‘In view of these authorities and the conclusive testimony of Dr. Witter, it is my opinion the evidence here shows the occurrence of an accident in the comtemplation of the statute.
“ ‘As to whether the accident arose out of and in the course of decedent’s employment, we find in Professor Malone’s work, Section 162, the following:
“ ‘As indicated previously, the terms arising out of, and in the course of are not synonymous. The former suggests an inquiry into the character or origin of the risk, while the latter brings into focus the time and place relationship between the risk and the employment.’
“The section then follows with clear examples falling under the two phrases, but none of these examples is particularly helpful here. Although the jurisprudence clearly shows there are two separate questions involved, it is difficult to entirely separate them for purposes of consideration in the instant case. However, if the two questions are separated, it appears beyond dispute that the accident here arose in the course of decedent’s employment. Regardless of the hour at which decedent received the chief’s letter, and regardless of whether he was actually on duty at the time, the letter was an official communication from a superior officer to one of his subordinates, dealing directly with the latter’s employment. He received it as an employee, and its receipt was not something which occurred while he was engaged in his private affairs or for his personal pleasure.
“There are numerous cases in our jurisprudence dealing with the question of whether the accident on which the claim is based arose out of the claimant’s employment. The writer has examined many of these cases but has failed to find any expression in them which may be satisfactorily applied to the facts in the instant case.
“It goes without saying that it was the duty of decedent as a member of the police department to receive orders, instructions, and other communications from his superior officers. These communications no doubt dealt principally with decedent’s routine duties as a police captain. Others dealt with special assignments. Some were doubtless given in writing, and some were given orally. Some were given to decedent individually, and some were general in their nature, that is, they were directed to all police captains or to all officers in the department. If, as a result of one of these orders or communications, decedent had suffered a fatal heart attack, the fact that the accident arose out of his employment could not be questioned. The communication here involved is admittedly not one of the usual orders referred to above. However, the conclusion is inescapable that the forwarding of the letter by the chief of police and its receipt by decedent arose out of decedent’s employment. The letter sought to terminate the employment, and except for the employment no such letter would have come into existence.
“The extremely difficult question that might have arisen in this case did not arise. That is the question as to the cause of decedent’s fatal heart attack. Similar cases in our jurisprudence have almost without exception been decided on that point. Since the evidence in this case is conclusive on that point the chief difficulty usually facing the court does not appear.
“I am satisfied from the evidence that plaintiff is entitled to recover compensation for the death of her husband.
“Plaintiff has proved medical expenses in the amount of $10. From the evidence she is clearly entitled to recover the $250 maximum for burial expenses and, in my opinion, the additional $50 for contingent expenses in connection therewith.
“For the reasons assigned there is judgment for plaintiff awarding compensation at the rate of $30 per week for 300 weeks, commencing January 21, 1955, with 5% per annum interest on past due payments; and in the further sum of $310 for medical and burial expenses.
“The expert witness fee of Dr. Howard B. Witter is fixed at $50 and taxed as costs.”

A reading of the record discloses that the findings of fact above set forth are amply substantiated; however, we cannot agree with the legal conclusions reached by the Lower Court.

Another factor which we think should be taken into consideration in the mental disturbance and unrest of Captain Seals and which was not mentioned by the Lower Court is the following testimony given by Dr. Witter.

“When a man comes into your office, a man you have known for a period of twenty some years — I have seen him with his face battered up when he has arrested somebody, I have seen him when he was hurt, something of that kind came up, but I never saw Captain Seals the way he was the night he came into my office (this was some three nights before January 17, 1955) he walked in, sat down in a chair, he was shaking like that and crying, and that is the first time in my life I have ever seen Captain Seals cry. And he just sat there and cried like a baby when he told me about this retirement. And what he went on to tell me was, T have these boys, I want to get them through school.’ He said, ‘If they retire me, that is all.’ And that was when I told him if he didn’t stop worrying about it, if he didn’t do something else, it would kill him. I also talked to Dr. McVea about the same thing after that letter was written. I told Dr. McVea at The Lady of the Lake that it was going to kill Seals.
“Q. Let me ask you this one further question. If Captain Seals had been able to take your advice and had been able to put aside this matter which was worrying him, as I understand it, it would be your feeling from a medical standpoint that he might have avoided this fatal attack? A. Exactly, and that he might have lived a good many years.”

There is no question in the court’s opinion after studying Dr. Witter’s testimony that it was Captain Seals’ worry over the possibility of being forced to retire from the police force the thing that resulted in his fatal heart attack.

The mere fact that a workman develops heart disease or coronary thrombosis while employed by another does not necessarily entitle him to compensation. The employer is not the insurer of his employees. There must be an accident to furnish the basis of any such claim, that is to say, something sudden, undesigned or unexpected and that accident must either cause or aggravate the disease which is the cause of the disability and, further, that accident must be caused by or as a result or have some causal connection with the employee performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation. There is no question that the benefit or retirement disability that Captain Seals was entitled to resulted from his employment by the City of Baton Rouge, but we are of the impression that his retirement or disability benefit was something that was personal to the Captain and that the notice of forced retirement or acceptance of disability benefits and resulting thrombosis had nothing whatsoever to do with the services being performed or to be performed, which he was employed to do, for his employer. It is our impression from the record that the letter herein-above quoted in full had nothing whatsoever to do with services to be performed by Captain Seals for and on behalf of the "City of Baton Rouge, but only had something to do with his retirement and had no connection whatsoever with work to be performed. We are of the opinion that the accident must have some causal connection with the employment, that is to say, with .the service being performed or to be performed in the furtherance of the work of the employment or growing out of said employment. It may be well to note in the testimony of Dr- Witter as hereinabove quoted that Captain Seals was very much concerned about the education of his boys and that was in our opinion his chief worry because if they retired him according to his own words, “That is all.” Captain Seals wasn’t worried about the execution of any work he was doing or order of work to be done, but merely worried about his boys if he was forced to retire. It may be well to note that Captain Seals was on duty in the police department for the City of Baton Rouge for the last time on Friday January 14, 1955. He was on vacation with pay effective Saturday January 15, 1955 and remained on vacation to the date of his death on January 21, 1955. On Monday January 17, 1955 while on vacation Captain Seals had a minor attack and was visited by Dr. Witter. He was again advised to take things easy, not to get excited and remain quiet. Thereafter on January 18, 1955 he went by automobile to Franklinton, Louisiana to visit his father and returned to Baton Rouge on the night of Thursday January 20, 1955 for the avowed purpose of attending a citizens meeting on the night of Friday January 21, 1955 at which a number of citizens were to protest the retirement of Captain Seals and other members of the police department. On Friday January 21, 1955, while still on vacation at his home, Captain Seals suffered a severe coronary attack and was taken to the hospital and there died.

We note according to LSA-R.S. 23:1034 that, “The provisions of this Chapter shall apply to every person in the service of the state or political subdivision thereof, * * This section was amended by Act No. 412 of 1950 to cover members of the police department of a municipality who are not elected officials. There is no evidence in this record that Captain Seals was an elected official. We note further according to LSA-R.S. 23:1035, that:

“The provisions of this Chapter shall also apply to every person performing services arising out of and incidental to his employment in the course of his employer’s trade, business, or occupation * * *

As stated by Professor Malone in his work (Louisiana Workmen’s Compensation Law and Practice, Section 161) :

“The task of deciding which risk shall be included within the act and which shall be excluded is one which must be undertaken by the courts with only a minimum -of legislative assistance. Only the spare phrases, arising out of the employment, and, in the course of the employment, have been provided in the act. The substance must be filled in from the courts on notions of fair play between employer and employee.”

A discussion of the various cases cited by counsel for plaintiff would serve no useful purpose for, suffice it to say, none of them present a situation where the relationship of time, place and manner of occurrence of the accident and death and the employment are so remote as in the case at bar. It is our impression and opinion nevertheless in view of LSA-R.S. 23:1034, 23:-1035 for the plaintiff here to be entitled to compensation that the accident must have occurred while the employee was performing some form of service arising out of and incidental to his employment as well as in the course of his employer’s business or occupation. We do not mean to say that it is absolutely necessary that the employee be engaged at the time of the injury in activity of benefit to his employer, but we are of the opinion that the accident and resulting disability or death must have some causal connection with the services arising out of and incidental to the employment. We are of the opinion that this is absent in the instant case. We are not unmindful of the humanitarian aims behind our Compensation Statute and the liberal manner in which it should be construed. To allow recovery in this case, however, would, we believe, stretch the meaning of the phrases “performing services, arising out of and incidental to his employment in the course of his employer’s trade, business or occupation” far beyond the intent with which they were enacted. This case presents, as we see it, merely a situation where a person was being retired in accordance with normal practices. We do not think that death caused from agitation over retirement and occurring while on vacation either arises from performing services out of and incidental to his employment or in the course of his employer’s trade, business or occupation. If we followed plaintiff’s contention and theory in this case, every employer in this state would be in a quandry and stalemate as to the discharge or forced retirement of any of its employees who it may know or not know of having coronary complications. If the employer was forced to discharge an employee due to economic reasons, said discharge may cause mental worry and agitation, and as a result, cause coronary thrombosis. The same is likewise true with reference to informing an employee of his forced retirement or for his disability retirement. In either event, if, as a result of the discharge or notice to the employee of forced retirement or disability retirement (such as what took place in the case at bar), the employee develops a thrombosis and dies as a result, the employer would be liable for compensation. We do not believe the legislature ever intended that situation to exist.

For the reasons assigned the judgment appealed from is reversed and plaintiff’s suit dismissed at her costs.

Judgment reversed.


author: TATE, Judge.

text:
    Lee Major SANDERS, Plaintiff-Appellant, v. Raymond O. HISAW et al., Defendants-Appellees.
    No. 4371.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    Rehearing Denied May 2, 1957.
    Writ of Certiorari Denied June 10, 1957.
    Dodd, Hirsch & Barker, Wm. T. Wise, Baton Rouge, for appellant.
    Huckabay & Wall, Percy & Macmurdo, Baton Rouge, for appellees.
   TATE, Judge.

Plaintiff Sanders was riding as a passenger in defendant Hisaw’s automobile when it was involved in a collision with a car owned by Edward Marshall and driven by his daughter. Sanders brought suit against Hisaw, Marshall, and their respective liability insurers. After trial, his claim against Marshall and his liability insurer was compromised.

Plaintiff appeals from judgment of the District Court dismissing his suit against Hisaw and the latter’s insurer upon a holding that the sole proximate cause of the accident was the negligence of Miss Marshall in turning left suddenly across Hi saw’s path.

The accident occurred at mid-morning on May 3, 19S3 on the Air Line Highway on the approaches to the city of Baton Rouge. The southern two lanes of this four-lane highway are reserved for east-bound traffic. Both the Hisaw and Marshall vehicles were proceeding easterly, the former on the inside lane next to the neutral ground in the middle of the highway, and the latter on the outside lane. Prior to the accident, the Hisaw vehicle at a speed of 55 mph was overtaking the Marshall vehicle, which was going less than 25 mph.

It is not disputed that Miss Marshall turned suddenly left to the other highway from the outside lane across the path of the Hisaw vehicle in which plaintiff was riding so that Hisaw was unable to avoid colliding with her. But it is urged, and this presents the sole question of this appeal, that Hisaw failed to sound his horn as he was overtaking Miss Marshall to pass her; and that this violation of 'his statutory duty, LSA-R.S. 32:233, subd. B, was a contributory proximate cause of this accident, so that Hisaw and his insurer are liable to Hisaw’s passenger (the plaintiff) injured as a result thereof.

LRS-R.S. 32:233, subd. B provides: “The driver of an overtaking vehicle shall give audible and sufficient warning of his intention before overtaking, passing or attempting to pass a vehicle proceeding in the same direction.”

We do not believe this statutory provision to be applicable to the present situation. The accident occurred on a four-lane highway; two lanes were reserved for each direction’s traffic. If applicable to multiple-laned highways, motor . vehicles would be required to sound the horn when passing any vehicle going in the same direction whether to their right or left and no matter how many lanes distant they might be. On our crowded eight-lane and four-lane highways designed to facilitate the passage of congested traffic there would be a never-ending cacophony of constantly blowing horns, an intolerable burden both on the ears of the public and on the batteries of the vehicles involved in the crowded traffic. We do not believe the legislature intended the statute to apply in such circumstances or that the legislative provision contemplated application thereof to multiple-lane highways.

In Mooney v. American Automobile Ins. Co., La.App. 1 Cir., 81 So.2d 625, we recently had occasion to consider a companion statutory provision, LSA-R.S. 32:-233, subd. A, which provides that overtaking vehicles must pass to the left in passing other vehicles proceeding in the same direction. Likewise, considering the effect the application thereof might have as burdening rather than facilitating traffic in such situations, we concluded that the legislative intention did not contemplate application of the provision to multiple-laned highways.

In effect, the Mooney case holds that the burden of signalling his intention on a multiple-laned highway is upon the driver who intends to shift into another lane reserved for traffic going in the same direction, rather than upon the driver who intends to pass in his own lane other traffic proceeding in the same direction in other lanes.

Further, although in many jurisdictions the statutory requirement that the horn should be sounded has been construed as being for the purpose of warning the forward vehicle so that it will not turn left into the overtaking vehicle’s path, cf. 2 Blashfield, Cyclopedia of Automobile Law 133, Section 938; in Louisiana, “the purpose of the law in requiring the giving of an audible warning by the overtaking vehicle, as we view it, is to favor its driver to the extent that his normal progress on the highway will not be unnecessarily impeded by the driver of the car preceding him in not leaving or giving him sufficient clearance in which to pass ahead,” De La Vergne v. Employers Liab. Assur. Corp., La.App. 1 Cir., 4 So.2d 66, at page 69, certiorari denied, Noted, 16 Tul.L.Rev. 283.

This distinction as to the statutory purpose is important, since the violation of a statute or ordinance does not constitute actionable negligence unless the statute is designed to control the situation at the time of the accident and to protect the class of person who seeks to invoke its protection, 38 Am.Jur. 834, “Negligence” Section 163. Thus, in Louisiana the overtaking motorist is under no duty to sound his horn when the forward vehicle is proceeding in its own lane leaving sufficient clearance for passing, and his failure to sound his horn in such circumstances will not be a proximate cause of an accident resulting when the forward vehicle suddenly turns across his path since the purpose of sounding the horn is not to warn tire forward vehicle not to turn left, De La Vergne v. Employers Liab. Assur. Corp., above cited.

The facts in the De La Vergne case were almost identical to those of the present, and the driver of the overtaking automobile thereon was held to be free from actionable negligence barring his recovery in failing to sound his horn. A vigorous and well-reasoned dissent by our late learned brother, Judge Ott, was based upon the legal proposition that the failure to sound the horn was contributory negligence barring recovery because of a statutory purpose of warning the driver ahead of the intended passing so he would not turn left, citing Blashfield’s treatise. Writs of cer-tiorari and review were denied despite this able dissent which pin-pointed the legal question involved with clarity and precision.

We have followed the De La Vergne case consistently in holding that the sole proximate cause of an overtaking-left turn accident is the failure of the driver turning suddenly left across the path of the overtaking vehicle, despite the latter’s failure to sound his horn, when the forward vehicle is proceeding properly in the lane ahead without previous indication of the left-turn intent, Sonnier v. Broussard, La. App. 1 Cir., 44 So.2d 339, Great American Ins. Co. v. New Amsterdam Cas. Co., La. App. 1 Cir., 15 So.2d 241. See Martin v. Globe Indemnity Co., La.App. Orl., 64 So.2d 257, Cantrell v. H. G. Hill Stores, Inc., La. App. Orl., 193 So. 389, giving a similar construction to a municipal ordinance similar to the statutory provision in question.

Plaintiff-appellant cites Nichols v. Everist, La.App. 2 Cir., 80 So.2d 199, Callia v. Rambin, La.App. 2 Cir., 78 So.2d 44, and Sandoz v. Beridon, La.App. 1 Cir., 150 So. 25. The latter case was overruled by the De La Vergne case, as the dissent therein indicates. The former two cases without extensive discussion indicated that the defendants therein were contributorily negligent so as to bar recovery upon their respective reconventional demands because of a lack of lookout and the failure to sound the horn. Insofar as distinguishable, the facts therein may be said to have been such as to indicate to the overtaking drivers that the forward drivers intended to undertake such maneuver as to require a slowing by or a warning from the overtaking drivers before attempting to pass, had the overtaking drivers been sufficiently watchful and alert.

The District Court did not err in holding that the sole proximate cause of the accident herein was the negligence of the forward driver in turning suddenly across the path of defendants’ vehicle in which plaintiff was a passenger. The District Court therefore correctly absolved defendants of liability and dismissed plaintiff’s suit against them.

Affirmed.


text:
    Mrs. Lula Wales SHELTON, Plaintiff-Appellee, v. BARBER BROTHERS COMPANY, Defendant-Appellee (J. C. Borskey, Defendant in Warranty and Appellant).
    No. 4374.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    Rehearing Denied May 2, 1957.
    Jos A. Gladney, Baton Rouge, for appellant.
    Hynes, Mathews & Lane, Baton Rouge, for appellee.
   TATE, Judge.

The sole remaining question on appeal is whether the District Court correctly required J. C. Borskey, defendant in warranty and sole appellant, to indemnify Barber Brothers, the original defendant and now appellee, for workmen’s compensation benefits awarded the dependents of Albert Otis Shelton. Borskey was held to be a subcontractor of Barber Brothers; and as such properly called in warranty to indemnify his principal contractor for its compensation liability resulting from accidental injury to Borskey’s employee in the course of fulfilling the contract, LSA-R.S. 23:1061, 23:1063.

While working on October 18, 1954, Shelton fell from a high tree and was killed. He had been employed by Borskey for approximately a year in the latter’s “tree service” business. A week or so before the tragic accident Borskey and Barber Brothers, a construction firm, had entered into an agreement whereby Borskey was to “top” or delimb three large trees which it was necessary for Barber to remove in connection with construction of a storm sewerage system. The agreed price was $150 per tree, or $450 in all. Borskey furnished his employees (2-4) and equipment (trucks, saws, axes, and ropes). There was apparently no specific time limit set for completion of the project, although it was contemplated by both parties that work should start at once. Shelton was killed while Borskey’s crew was working on the third, or last, large tree.

As stated, the sole question before us is: was Borskey an independent contractor, or was he an employee of Barber Brothers? Of course, if the latter, he is not called upon to indemnify Barber Brothers for the compensation liability resulting from Shelton’s death.

As contrasted to an employee, an independent contractor is one independent in business who contracts to perform a specified piece of work for another for a specified price, without being subject in the performance of the contract to the control and direction of his employer except as to the result contracted for; which contract is not subject to termination or discontinuance at the will of either party without a corresponding liability for its breach. Amyx v. Henry & Hall, 227 La. 364, 79 So. 2d 483. In the cited case’s comprehensive summary of the distinction between the relationships, our Supreme Court through Mr. Justice Simon remarked that “the most important test * * * is the control over the work which is reserved by the employer”, 79 So.2d 486; concluding that the right of control, rather than the actual control exercised, was the important criterion.

Able counsel for Borskey correctly points out that the relationship may be that of employer-employee even though the employee furnishes the truck and other equipment, hires and pays sub-employees of his crew, and is paid on a piecework basis (which are more often indicia of the principal-contractor relationship), relying upon Amyx v. Henry & Hall, 227 La. 364, 79 So.2d 483, Herbert v. Gates, La.App. 1 Cir., 50 So.2d 859, Deason v. Coal Operators Cas. Co., La.App. 2 Cir., 43 So.2d 630, Collins v. Smith, La.App. 2 Cir., 13 So.2d 72; providing that the right to control is retained by the employer. ■ But these cases relied upon are distinguishable from the present, for in them the employees were retained, to haul gravel at so much per yard or to cut wood at so much per cord or per tie, for no' specified period or for no specified amount of work; and the opinions remarked the degree of supervision of the employees in their performance of the contract and the legal right of the employer to terminate the relationship at his will at any time, the latter an important indicium of the right of control.

As these cases show, the indicia that point to the independence of the subcontractor and the indicia that point to the control over the employee are often intermingled as to a given practical relationship. Often, the relationship was confected by laymen informally and orally, without regard to its legal classification as that of principal-contractor or as that of employer-employee. Sometimes for business reasons one party or the other with intention aforethought has attempted to disguise by documents or actions what actually is one of the relationships as the other. When subsequently it becomes legally consequential whether the given relationship is that of principal-contractor or that of employer-employee, the courts are required to piece from all the indicia — sometimes to pierce some dissembling data to obtain — the total picture of the practical working relationship, and to deduce therefrom the ultimate conclusion of either the true independence of the subcontractor or the actual control over the employee.

In the present case, however, most of the indicia point to the independence of Bor-skey as a subcontractor, and the District Court correctly held him to be such. Borskey contracted to delimb three trees and to cut and haul the limbs away for $450. He used his own regular force, equipment, and his own working methods. In our opinion, neither he nor Barber Brothers had the legal right to terminate the legal relationship at will.

The Barber Brothers’ superintendent with whom Borskey had confected the contract had initially shown Borskey the approximate height to which each tree was to be cut, following which he and Borskey reached agreement as to the price of $450. (After the tree was topped and delimbed, then Barber Brothers removed by bulldozer the remainder of the trunk and the roots.) After each of the large trees was cut during execution of the contract, in Borskey’s words, the superintendent “had to accept it as being cut down to at the point that he wanted it,” Tr-187. Under the circumstances of this case, this was not (as argued) supervision during the performance of the contract, but simply a final inspection, before acceptance as the result contracted for.

Likewise we are unable to accede to the arguments of counsel for Borskey that supervision and control are indicated by the actions of the Barber Brothers’ superintendent : in persuading the power company to remove a power line passing through one of the trees to be delimbed; ' in showing Borskey’s employees at the outset where they should dump all the limbs Borskey had contracted to cut and haul away; and in placing out traffic barriers to protect passing traffic while Borskey’s employees were cutting down the trees. These actions are perfectly consistent with the concern of a principal contractor to assist, not to supervise, his subcontractor; and Borskey himself testified that removal of the power lines was supposed to be done through Barber, and was not part of the work he contracted to have done.

The deceased employee was killed just after work had commenced on the third and last tree. When Borskey and his crew returned a few days later to complete the contract, he and his employees testified that the Barber Brothers superintendent told them he didn’t want them to finish topping the last tree; and they left. The superintendent controverts this testimony, stating that the contract was terminated by mutual consent. (A day later Borskey did accept $25 in full payment for the work performed in partially delimbing the last tree.)

But assuming the most favorable view possible to Borskey’s case, the evidence simply indicates that Barber Brothers terminated the contract, not that it had a legal right to do so. (Barber’s reluctance to continue with Borskey’s services can be explained from the record as based upon its discovery — despite its contrary impression —that Borskey did not carry compensation insurance.)

Borskey himself could have terminated the contract by stopping work after cutting the first tree; but this would not prove his legal right to do so. The legal right to terminate at will may be a significant indication of the right of .ultimate control; an illegal termination actionable for breach, or a termination by mutual consent, of a truly binding- contract lias no such significance.

There being no error, the judgment of the District Court is affirmed.

Affirmed.


text:
    Mrs. Dannie T. BROCK, Plaintiff-Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al., Defendants-Appellees.
    No. 4380.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    Rehearing Denied May 2, 1957.
    Writ of Certiorari Denied June 28, 1957.

      Ponder & Ponder, Amite, for appellant.
    Porteous & Johnson, Adams & Reese, New Orleans, H. H. Richardson, Bogalusa, for appellees.
   TATE, Judge.

This personal injury suit was tried before a jury. Plaintiff appeals from verdict and judgment dismissing her suit.

At approximately 4:30 p. m. on July 22, 1954, a 1954 Cadillac automobile being driven by plaintiff, Mrs. Dannie T. Brock, in an easterly direction on Louisiana Highway 71 collided with a motor truck driven by Willie J. Brumfield, which was proceeding in a westerly direction, almost in front of the Williams’ home.

Prior to the accident, a Ford automobile driven by Hugh Douglas Cutrer was stopped in the westbound traffic lane in front of the Williams’ home to give Rufus Williams a ride into Kentwood.

Made co-defendants herein were: James B. Sumrall and the Southern Farm Bureau Casualty Insurance Company, the owner and liability insurer respectively of the pulpwood truck driven by Brumfield, Sum-rail’s employee; and Hugh Douglas Cutrer and the State Farm Mutual Automobile Insurance Company, owner and liability insurer respectively of the stopped Ford car.

Highway 71 was blacktopped and 18' in width at the place of the accident. The weather was dry and visibility was clear.

In broad outline, the physical facts of the accident are relatively uncontroverted:

The Cutrer car, stopped to pick up Williams, was parked at least partly in its (the westbound) traffic lane of the highway. The Brock Cadillac was proceeding towards the east at a speed of 35-45 mph. It had just crossed a bridge 300 feet west of the scene of the accident when Cutrer stopped. The large pulpwood truck, westbound like Cutrer, was approaching from Cutrer’s rear.

At a point approximately 100' to the rear of the Cutrer automobile, the truck brakes were suddenly applied (causing a screeching sound and skid marks 90' in length) ; the truck skidded straight down its own lane for approximately 60 feet then veered gradually into the other traffic lane, upon which Mrs. Brock was approaching from the opposite direction.

The point of impact was east of the Williams’ driveway, i. e., to the rear of the Cutrer car; the distance being from 2'-20' east thereof according to the varying testimony. The collision between the left fronts of the truck and of Mrs. Brock’s Cadillac definitely occurred in her lane of traffic, the estimates of the point of impact varying from two to six feet within same and north of the center line. Mrs. Brock’s Cadillac had veered partly onto the shoulder, Mrs. Brock testifying that upon seeing the truck skidding she attempted to get off the highway. Upon the impact, her car was deflected further into the ditch, causing certain personal injuries to the two ladies riding therein.

The theory upon which Mrs. Brock brought suit was that the accident was caused through the concurrent negligence of Cutrer, the driver of the Ford, in suddenly shipping upon the travelled portion of the roadway in the truck’s path; and of Brum-field, the driver of the pulpwood truck, in proceeding at such excessive speed and lacking such control of his vehicle as to be unable to avoid invading the lane of the highway reserved for opposing traffic (such as plaintiff.

We do not think the evidence can be construed to hold that the stopping of the Cutrer car was either the sole or a contributory proximate cause of the accident. The preponderant evidence is that Cutrer had stopped in front of the Williams’ driveway just before the truck turned a slight curve approximately 300' east of the driveway. The hitchhiker had had time to take several steps toward the car, when Cutrer noted in his mirror what he felt to be the excessive speed of the truck about 200' behind him and yelled to Williams to watch out and started his car forward.

This testimony of Cutrer is corroborated by that of his passenger and the hitchhiker and by that of plaintiff and her passenger. The point of impact was east of or behind the point where the rear of the Cutrer car was parked. The only testimony of a sudden stop such as might import liability to Cutrer and his insurance carrier, see e. g., Reeves v. Caillouet, La.App., 1 Cir., 46 So.2d 373, was that of the truck driver and one of his passengers. (The other truck passengers were not called to testify.) In our opinion both the preponderant contrary testimony and the physical facts justify the non-acceptance of the conclusion that a sudden stop precipitated the accident.

In our opinion, the driver of the pulpwood truck was just as clearly negligent, accepting the preponderant testimony that Cutrer did not stop suddenly.

The collision definitely occurred on plaintiff’s side of the road. “The fact that a collision occurs while a vehicle is being driven on the wrong side of the road places the burden on the driver of such vehicle to show that the accident was not caused by his negligence in driving his vehicle on the wrong side of the highway,” Miller v. Hayes, La.App. 1 Cir., 29 So.2d 396, at page 398.

The probable reconstruction of the cause of the accident, based upon the testimony and the physical evidence, is that the truck driver did not perceive plaintiff’s oncoming Cadillac until too late, perhaps due to inattention or to the slight curve he was on immediately before the straight stretch; that he suddenly applied his brakes and was unable to avoid veering into the plaintiff’s lane of traffic.

Both plaintiff and Cutrer testified as to the apparently very excessive speed of pulpwood truck; and in corroboration point to the great damage done (even after the application of four-wheel brakes causing skid marks 90' in length) by the impact to plaintiff’s automobile. The truck driver, however, testified to a speed of approximately 40 mph, coming to a complete stop immediately before the Cadillac struck him.

And although we think the physical facts, including the damage done and the deflection of plaintiff’s car from its course, may tend to corroborate the version of excessive speed, we do not believe necessary a resolution of this conflict. In either event, plaintiff at a speed of 35-45 mph (i. e., 51.1' to 65.7' per second) did not have a duty under the circumstances of this case to anticipate that the oncoming truck would be so negligent in lookout and control as to be unable to avoid striking the Cutrer car without crossing over into plaintiff’s lane of traffic. The truck, proceeding at the least at a similar speed, did not apply its brakes until it was 90' in the rear of the Cutrer car. At a speed of 35-45 mph plaintiff was less than two seconds away; nor did the driver actually lose control of the truck until the skid had proceeded about 60' of the total brake-marks. If the truck was proceeding at an excessive speed, the time available to plaintiff to evaluate the truck’s inability to stop was slight if at all existent prior to the application of the brakes; the accident would occur before the normally prudent driver could evaluate the danger and act accordingly: for example, at a speed of 60 mph (87.6' per second) the truck would have turned the curve east of the scene of the accident and hit plaintiff 300' away in less than four seconds. At a lessor speed of the truck, there was less duty upon plaintiff to anticipate the truck driver’s subsequent failure to slacken his speed and maintain control in default of his legal duty.

The jury found for defendants, dismissing plaintiff’s suit. We do not believe the evidence, however construed, could support a finding that the accident was not caused through the negligence of either one defendant or the other, or both. We must therefore assume that the jury found plaintiff guilty of such contributory negligence as to defeat recovery.

The theory upon which plaintiff might be held contributorily negligent is stated in “Special Charge No. 4” given at the instance of co-defendants Sumrall and Southern Farm Bureau Casualty. This charge was:

“if you find that the plaintiff, Mrs. Dannie T. Brock, could have prevented collision after discovering the peril when the Cutrer automobile suddenly stopped and was being followed by the Sumrall true [sic], then judgment should be rendered for defendants, rejecting the demands of plaintiff at her cost.” (Italics ours.)

This charge refers to the duty by reason of which a reasonably prudent motorist may be held negligent if he has the reasonable opportunity to observe cars or people in his path (through their own negligence or otherwise) and to evaluate the danger of the situation, and if he has the reasonable opportunity through use of ordinary care to avoid an accident and fails to do so. Brooks v. State Farm Mutual Automobile Insurance Company, La.App. 2 Cir., 91 So.2d 403.

It can be seen, among other objections, that the charge states that Mrs. Brock’s recovery must be denied if she “could have prevented the collision” after discovering the peril. The legal barrier as to this phrase should have been qualified in that the recovery should be denied only if by the exercise of ordinary care plaintiff could have prevented the collision. Very probably the accident could have been avoided had Mrs. Brock veered to her right more sharply or slightly quicker; but the legal question is not whether physically she might possibly have been able to skin by without a collision, but whether her failure to do so violated a legal duty so as to constitute contributory negligence upon her part. Of course, Mrs. Brock’s misjudgment in the face of a sudden emergency created a second or so before through the negligence of the truck driver does not constitute contributory negligence, see e. g., Chouest v. Remont, La.App. 1 Cir., 81 So. 2d 568.

Were this a jurisdiction within which the jury verdict must be accepted if supported by a scintilla of evidence, we would be impelled to affirm the denial of recovery, even though feeling that the clear preponderance of evidence shows that the sole proximate cause of the accident was the negligence of the truck driver. For Mrs. Brock testified at one point that she heard the noise of the truck indicating its great speed before it rounded the curve about 30T east of the point of the accident, which reasonable men might possibly think gave rise in conjunction with observing the parked car to a duty on her part to take further precautions, even though the accident was just 3-4 seconds distant in time. But she is contradicted by every other witness in the record, including her own passenger ; her windows were up and her air-conditioning was on, which as one of the witnesses noted made even less possible such testimony; and this testimony must be regarded as impossible, mistakenly given perhaps due to the kaleidoscopic, jumble of sensations bursting upon her within less than two seconds of sudden great danger and near tragedy, and the subsequent emotional shock.

Our present constitutional duty is to review all appeals “both upon the law and the facts”, Article 7, Section 29, La.Constitution, LSA. We would be abdicating our constitutional function were we to sustain the judgment below solely on the basis of evidence we find clearly and manifestly erroneous. We therefore find that the sole proximate cause of this accident is the negligence of Brumfield, driver of the truck owned by defendant Sumrall and the operation of which was insured by defendant, Southern Farm Bureau Casualty Insurance Company. See Todd v. Kirspel, La.App. 2 Cir., 41 So.2d 714, Hardy v. National Mut. Cas. Co., La.App. 2 Cir., 9 So. 2d 346, resting upon similar situations.

Quantum.

Mrs. Brock’s personal injuries consisted of a whiplash injury of the neck and right brachial plexus (the nerve network leading to the right arm), a contusion of the knee, and severe nervous shock. She is a lady sixty-two years of age. The whiplash injury caused severe pain at first, moderating in degree over a period of six months; and aching pain in the arm and shoulder severe enough to require the use of sedatives to attain sleep, for at least part of this time. The preponderance of the testimony was that there is slight if any residual at the time of trial two years later. Because of the shock sustained in the accident, Mrs. Brock claims to be extremely nervous now when driving. The proof offered is somewhat weakened by the failure to produce any medical specialists who had examined Mrs. Brock, and is mostly supported by that of her husband and son, both general practitioners.

We think the injuries are a little more serious than those in Attaya v. Zimmerie, La.App. 1 Cir., 83 So.2d 676, for which we awarded $2,500, and less serious than those in Baker v. U. S. Fire Ins. Co., La.App. 1 Cir., 89 So.2d 405, wherein $5,600 was awarded (including $633.31 upon a subrogation intervention for compensation and medical expenses paid by the employer.) Our award therefore will be in the amount of $3,500 for personal injuries.

Plaintiff’s Cadillac car, was severely damaged in the accident. It is undisputed that the cost of repairing same was $2,515.-88. Defendants raise the question that plaintiff’s husband, not herself, was the proper party to sue for damage to property bought during the marriage.

The evidence is not contradicted that the automobile was given to plaintiff as a birthday present two days before the accident. The automobile was therefore the wife’s separate property, Article 1746, LSA-C.C., Succession of Williams, 171 La. 151, 129 So. 801 (syllabus 5), Succession of Dupre, 2 Orleans App. 441, and she was a proper party to bring suit for damage thereto either under Mississippi law (plaintiff residing in Mississippi where marriage does not import the community property relationship), cf. Lewis v. American Brewing Co., La.App. Orleans, 32 So.2d 109, or under Louisiana law, Spencer v. Crain, La. App. 1 Cir., 53 So.2d 416.

Plaintiff produced proof that, even before repaired several months later, the car was traded in for another brand-new Cadillac at a net loss of $1,250; she demands recovery therefor, also, in accordance with her prayer. Although plaintiff did prove that her car was traded in for such differential, there is no testimony to support the conclusion that such differential was a result of a loss in value occurring by reason of accident; no testimony of the difference in trade-in or other value between her car as repaired, and her car before wrecked at all. That is, so far as the record shows, plaintiff may have been forced to pay such a differential to obtain another brand-new Cadillac, whether or not her two-day old car as repaired had ever been involved in a wreck.

For the above and foregoing reasons, the judgment is affirmed insofar as it dismisses plaintiff’s claim against Hugh Douglas Cutrer and his liability insurer, the State Farm Mutual Automobile Insurance Company; but it is reversed insofar as it dismissed plaintiff’s suit against James B. Sumrall and his liability insurer, Southern Farm Bureau Casualty Insurance Company, and judgment is herewith rendered in favor of plaintiff and against the latter two defendants holding them liable in solido to plaintiff in the full amount of Six Thousand Fifteen and 88/100 Dollars ($6,015.88), together with legal interest thereupon from date of judicial demand until paid, and for all costs of these proceedings.

Affirmed in part; reversed in part.

      . It is clear that the only prior noise made by the track heard by this passenger is the brake-screeching almost instantaneously with the impact, Tr. 39, 49, 51.


text:
    Mrs. Viola Jones WHITE et al. v. N. R. KINCHEM.
    No. 4381.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    Rehearing Denied May 2, 1957.

      Ben R. Tucker, Hammond, for appellant.
    Ponder & Ponder, Amite, for appellee.
   LOTTINGER, Judge.

This is a suit wherein the plaintiffs, owners of camp sites on the south bank of the Amite River in the locality known as Magnolia Bluff in the Parish of Livingston, seek an injunction directed at the defendant’s interference with their rights of ingress and egress to their respective camp sites and, particularly, the obstruction by defendant of a roadway, alleged to be public in character. The defendant first filed exceptions of no right and no cause of action and then an answer in which he denied that the road in question was public in nature. The case is now before us on an appeal taken by the defendant from a judgment of the Lower Court which overruled his exceptions and granted to plaintiffs the relief sought.

While the petition sets out various alternative grounds on which the road in question should be declared public, the only question presented by the case, as we ■ see it, is whether the same has been “ * * * kept up, maintained or worked for a period of three years by authority of any parish governing authority * * * ” as provided by LSA-R.S. 48:491.

Various witnesses were called to testify with respect to the road, its location, dimension, and the manner in which it had been kept up, and their testimony is substantially as follows:

Sullivan Mays, one of the plaintiffs, testified that he purchased a lot on Magnolia Bluff and that he had been using the road leading from the Maurepas-Clio Highway to his camp from 1946 to 1952, when he sold his camp to Dr. Brock. He then used the road after he had bought another lot from a Mr. Williams in April of 1956. About the 7th or 8th of April, 1956, the defendant, N. R. Kinchen placed a sign near the road stating, “Notice, Posted. Property of N. R. Kinchen. Private Camp. Trespassers will be Prosecuted.” He stated that he had been going to Magnolia Bluff since 1946 and that to his knowledge, the road had been worked by a public grader, which belonged to the Parish of Livingston and that he had seen it there “frequently.”

On cross examination, this witness testified as follows:

He repeated that he saw the parish grader inside of the cattle gap and estimated the width of the road as between 25 and 30 feet. He described the road as having gravel and shells on the top of it. 'He stated that he had seen the grader in there “numerous times pulled by a tractor.” He stated that he did not know of his own knowledge who had put the shells on the road nor did he know the name of the man who operated the Parish grader on same. He said that the ditches on either side of the road were not over one foot deep as he had driven over them with his automobile. He estimated the length of the roadway from its starting point on the river front to the gap as between 150 and 200 yards.

Mr. Guy Forbes, called on behalf of the plaintiff, testified as follows: He stated that he had been familiar with the Magnolia Landing for about 40 years and that in 194S he was appointed timekeeper to build a road from the Amite River to the Maurepas-Clio Highway. He stated further that he was to secure the rights of way and that they had a 40 foot roadway from the main highway to the river. He stated that the W.P.A. was the agency instrumental in building the road and that it was built “with a shovel and put oyster shells on it from the bluff out. Some bridges were built and the Police Jury hauled stuff in there and labor in and out.” He stated positively that he secured a right of way from the Amite River to the Highway and that the “Government” paid for both labor and the shells that were put on the road. He stated that for the past 40 years there was a public road from the old boat landing on the Magnolia Bluff to’ the Maurepas-Clio Highway and that during that time he had never heard of anybody trying to stop the public from using it. He stated that since its construction, the police jury had maintained the road, furnishing all labor and material to build bridges, etc.

On cross examination, the witness testified as follows:

The road was actually there before the W.P.A. took over and that they just “repaired and rebuilt it.” When questioned about the right of way agreement he repeated that one had been signed but “I wouldn’t know if it was recorded.” He stated that he had seen the road recently as often as five times per week but that he had not seen the Parish grader inside the cattle gap towards the river. He repeated that “I don’t know how far the grader went in, I know how far we built the road which went to the river.” When the road was built, it measured 48 feet from ditchbank to ditchbank. He stated that he had not been inside the cattle gap towards the river within the past six months and that he did not remember the last time he had been on the property.

Mr. Fred Frank, called on behalf of the plaintiff, testified as follows: He stated that he had known of the roadway leading from the main Maurepas-Clio Highway to the Magnolia landing for 34 years during which time it had been used by the public as a public roadway and during which period no one had ever tried to fence it. When asked whether anyone had improved or graded the road, he said that it had been the first time for the state ,and later it was turned over to the Police Jury. Specifically, he stated that back in 1937 the State had allowed their equipment to be used to grade the road because the Parish had no equipment. Later, after the Parish did have equipment, he went in and graded it for the Parish for 4 years. That, he explained, was about 4 years prior to 1946. He repeated that it was a roadway prior to 1937 when he graded it and that he graded it until 1946 with a grader for the State and Parish. Since that time, he stated, he knew it had been graded by a Mr. Watts and then a Mr. Womack.

On cross examination, his testimony was as follows:

He stated that he graded the roadway leading to the Magnolia Bluff “every time I graded the road,” and that, generally speaking, he would average working with the road “as the others in his territory,” on an approximate average of once per month. He stated that Parish gravel or shells were put on the road and that he would spread this material after the truck had dumped it. This, he stated, was in the period 1944, 1945, 1946 and 1947. He gave also the following testimony:

“Q. Do you have any interest in the outcome of this lawsuit? A. No, sir, not a bit in the world.
“Q. How close do you live to Magnolia Bluff? A. About 2 miles.
“Q. How long have you known Dr. L. W. Brock? A. Approximately 37 years.
“Q. Do you know whether or not Dr. L. W. Brock put any shells on that road? A. As far as I know, he has not.
“Q. You are sure that the Parish grader graded the road, you are also sure that the Parish furnished gravel and shells? A. I am positive of it, during the time I was working.”

Mr. J. W. Smith, called by the plaintiff, testified as follows:

That he is 76 years old and has known Magnolia Bluff for over 51 years. He stated that the road has been used for a public road from the boat landing back to the highway. He stated that in the old days the Magnolia Bluff was a boat landing and was used by various small boats and steamers as a regular stop, the roadway in question being the only mode of ingress and egress to the boat landing. He had visited the roadway for the last time approximately 3 to 4 years before the trial at which time he found the road gave some appearances of having been worked by a grader, but not recently, the road appearing to be in a neglected condition. He estimated the roadbed as being “pretty wide, 25 feet or so.” He found shells on the surface of the road and what he thought looked like clay gravel.

Mr. Joseph Picou, called on behalf of the plaintiff, testified as follows:

He is the Police Juror for the Fifth Ward of Livingston Parish (the ward in which the road is situated) and had held that position for a period of two years and 2 months. He was familiar with the roadway leading to Magnolia Bluff and stated that same had been used by the public for over 58 years. He recalled Mr. Frank operating the grader in 1947, during which time he graded the road as a public road. "le stated that during his term of office, he had continually maintained the road.

On cross examination, the witness testified as follows:

He said that the defendant had never objected to having the grader on his property nor to his knowledge had he ever instructed any of the parish employees not to bring the grader on his property. When asked the direct question if, within the past 2i/£ years, the grader had been inside the cattle gap, the witness stated “I don’t know, I don’t follow it up, I reckon they have.”

Mr. Joseph Fortune Fontenot, called on behalf of the plaintiff, when questioned as to whether the road had been graded by public machinery, said that it had and that he remembered when it had been rebuilt by the W.P.A.

On cross examination, he stated that from the cattle gap to the river the road is covered with shells and that since Mr. Kinchen, the defendant, had moved there approximately 2 years and 4 months previous to trial, the graders were not allowed on the property. On re-direct examination, he explained that the cattle gap had been there for only about six months.

On re-cross examination he estimated the road width from ditchbank to ditchbank as being about 40 feet. Several witnesses were asked who had seen the grader on the road inside the cattle gap and answering in the affirmative were Bryant Smith, Mr. and Mrs. Sullivan Mays, Mr. Joe Fontenot and Mr. C. M. White.

Mr. Bryant Smith, called on behalf of the plaintiff, testified that he was at the landing quite a bit when employed by the Wildlife and Fisheries Division of the State of Louisiana and that on one occasion he heard Mr. Strain ask Mr. Watts to grade the road to the river. Fie stated further that the road had been used as a public road ever since 1915, but admitted on cross examination that he had actually seen the grader there on only the one occasion.

Mrs. Sullivan Mays, called on behalf of the plaintiff, stated that to her knowledge, the road had been opened and used by the public since 1946 and that between the years ’47 and ’50, she had seen the grader in there on two occasions, and further, that the road had always been passable, in all kinds of weather.

On cross examination, she stated that she could see the grader on the road between the cattle gap and the river by looking from her bedroom window.

Mr. Clyde M. White, called on behalf of the plaintiff, testified that he had known the road to be a public one for some 13 or 14 years and that during that period he had seen the public grader work the road some 3 or 4 times.

Mr. Joseph J. Farell, called on behalf of the defendant, testified that he lived a mile and a half from Magnolia Bluff and had known the property since about 1930. He stated that he had known Mr. Strain (the defendant’s predecessor in title) and that during the time he owned the property, it had been worked by Parish machinery “But I haven’t seen the machine in there.” He stated that he had worked for Mr. Strain for 2 years and that the machine had not gone on the road while he was there. The roadway leading up to where the cattle gap' is presently situated was worked on the average of once a month, and he estimated the width of the road inside the cattle gap at from 27 to 30 feet and possibly more.

On cross examination, he stated that he had known the road since about 1930 and that it had been a public road since he could remember.

On re-direct examination the witness stated that he had not worked there for two years but only for two summers, and that while he had never seen the Parish grader on the road, he saw where the road had actually been graded.

The defendant, testifying in his own behalf, stated that he had bought approximately 27 acres of land including Magnolia Bluff from a Mr. Strain in the year 1953. When asked whether during the period of time that he had owned the property, had any parish grading machinery been in there, he stated that it had not been. He testified that the road up to his property is well kept up and graded as often as every other week at times. He estimated the width of the road inside the gap as being about 22 feet or not enough for two cars to pass abreast.

In response to a question by the court, the witness stated that the road was there when he bought the place and that he had built the cattle gap.

From the above and foregoing we think the case falls within the holding of the Supreme Court in Porter v. Huckabay, 221 La. 120, 58 So.2d 731, as well as the holdings of this court in Fontenot v. Veillon, La. App., 72 So.2d 587. We believe that the testimony adduced by the plaintiffs’ witnesses shows without a doubt that the road was kept up by the Police Jury for a period in excess of three years and the testimony of the defendant’s witnesses does not controvert this testimony. The fact that the road had not been worked since the defendant acquired the property in 1953 is immaterial.

The defendant relies on the case of Bordelon v. Heard, La.App., 33 So.2d 88, 92. That case is inapposite, however, as is clear from the following language contained in the decision:

“ * * * The most that can be said to have been done on the remainder of the road leading to the rear, was an occasional brushing up which we don’t believe amounted to a keeping-up of the road as required under the statute, and which, moreover, has not been done for so long a time that the road, if it ever could have been said to be public, has been abandoned as such, with the result that the fee title to the roadbed reverted to the owner of the property * * * ”

Counsel for defendant next contends that if the road were at one time public, “in the absence of a dedication making the roadway public, the Parish, by failure to grade and work the road for a period of ten years would result in a clearcut abandonment of same,” citing Goree v. Midstates Oil Corporation, 205 La. 988, 18 So.2d 591. This argument is not sound for the simple reason that the record does not affirmatively show that there was a failure to work and grade the road during a period of ten years.

Finding no manifest error in the judgment appealed from the same is hereby affirmed.

Judgment affirmed.