author: McBRIDE, Judge.

text:
    Mrs. Lilly Mae AYO, Wife of George F. BARTHOLOMAUS and George F. Bartholomaus, v. H. G. HILL STORES, Inc.
    No. 20897.
    Court of Appeal of Louisiana. Orleans.
    June 24, 1957.
    Rehearing Denied Oct. 10, 1957.

      Wilmer Glauner Hinrichs, New Orleans, for plaintiffs and appellees.
    Adams & Reese, New Orleans, for defendant and appellant.
   McBRIDE, Judge.

This appeal presents for review a judgment rendered in favor of plaintiffs in their suit for damages growing out of a collision between two automobiles, one a 1947 Studebaker passenger car and the other a 1941 Ford truck, the accident having occurred in the intersection formed by the downtown traffic roadway of South Broad Street and the outbound traffic roadway on Tulane Avenue a few minutes after noon on November 27, 1954. South Broad Street and Tulane Avenue intersect each other at a right angle and each has two traffic driveways separated by a neutral ground. A semaphore signal light at the corner controls the movement of traffic

Alleging that the accident was caused by virtue of the negligence of the truck driver, one of the charges being that he attempted to cross the intersection on a red traffic light, this suit is brought by plaintiffs against the owner of the truck for damages. Mrs. Bartholomaus claims some $30,000 for her personal injuries allegedly sustained and her husband seeks recovery of nearly $37,000 for his damages, to-wit: the cost of repairs to his automobile, physicians’ fees and medical expenses, loss of earnings of his wife, loss of her future earning power, and the cost of employing domestic help during his wife’s incapacity. The defendant denies that its employee was negligent and alleges, in the alternative, that Mrs. Bartholomaus was guilty of contributory negligence in several particulars, one of which is that she failed to keep a proper lookout ahead.

Mrs. Bartholomaus recovered judgment for $6,000 and her husband was awarded $490.57, and defendant appealed. Appel-lees answered the appeal praying for an increase in the awards.

Mrs. Bartholomaus was driving her husband’s Studebaker automobile out Tulane Avenue in the general direction of the lake, and the Ford truck, owned by the defendant, H. G. Hill Stores, Inc., was being driven by its servant, Jackson, during the scope and course of his employment, on South Broad Street in a downtown direction. The vehicles came into collision in the aforementioned intersection, and a disagreement exists as to whether the Studebaker car struck the truck or vice versa. The weight of the evidence shows that the left front portion of the Studebaker hit the truck on its right side just to the rear of the cab and became wedged underneath the foody of the truck. After all, it makes no difference which vehicle struck the other, for the pivotal questions in the case are whether the truck was negligently driven into the intersection in the face of a red light and, alternatively, whether Mrs. Bar-tholomaus was guilty of contributory negligence in failing to observe the truck crossing Tulane Avenue.

There is no dispute that when defendant’s truck reached the opposite or inbound traffic roadway of Tulane Avenue a red light confronted the driver, and it is also undisputed that he stopped in obedience to that unfavorable light. An automobile driven by a Mrs. Oxmann, in which a Mrs. Barbier was riding, was in the same traffic lane as the truck and Mrs. Oxmann stopped her vehicle to the rear of the truck. Both ladies say that the truck suddenly started off while the light was still showing red, crossed the inbound roadway of Tulane Avenue, the neutral ground, and then entered the outbound roadway of Tulane Avenue and collided with the Studebaker. Mrs. Barbier mentioned that other cars were stopped for the same red light but that none of these cars moved forward; she claims the truck made only a momentary stop before the ill-timed movement out into the intersection was undertaken. Mrs. Oxmann could not say for how long a period the truck had been stopped, but she states that when it moved forward she thought the light had changed to green, so she also started her car forward, and then noticing that the light was still red, she stopped and assumed the position that the truck had been in. The truck, according to Mrs. Oxmann, had attained a speed of from 25 to 30 miles per hour at the time of the collision.

Mrs. Bartholomaus testified she was proceeding out Tulane Avenue at a rate of speed of 25 miles per hour, which she reduced to 15 or 20 miles per hour on nearing Broad Street, her explanation for this reduction in speed being that she wanted to have her car under control in the event the green light which showed in her direction should change before she reached Broad Street. She states that her car was moving in the middle traffic lane and there were no vehicles in front of her or to her left or right; that the light was still green when she was about two car-lengths before reaching Broad Street. She maintains that at this point she looked toward the left and noticed automobiles stopped on the far side of Broad Street at the inbound roadway of Tulane Avenue, but there were no vehicles in the intersection. She then proceeded to make the crossing when the defendant’s truck suddenly came across the neutral ground and loomed up to her left. She swerved toward the right in attempting to avoid a crash with the truck, but this maneuver on her part proved all in vain.

This testimony of Mrs. Bartholomaus coincides almost perfectly with the statements of the two ladies who were in the automobile which had been following the truck. They were emphatic that the truck made its crossing of the intersection on a red light and that the Bartholomaus automobile reached the intersection just as the truck was clearing the neutral ground.

On the other hand, the truck driver, Jackson, and his helper, Griffin, claim that the light was green when they started across the intersection. Jackson went on to say that when his truck reached the neutral ground, he realized the dangerous potentialities of the situation and attempted to warn other vehicles, which he says were following the truck, by extending his hand out of the cab. Jackson and Griffin declared, also, that there were other automobiles on Tulane Avenue facing the same direction in which Mrs. Bartholomaus was traveling, but that these other cars were stopped because of a red light. They claim that Mrs. Bartholomaus was driving in the extreme right-hand lane and passed the stopped cars.

In contending that Jackson did not start out into the intersection on an unfavorable light, counsel for defendant argue that •whereas Jackson was an experienced and prudent driver who had been employed by defendant for many years, it would be unreasonable to assume or suppose that after stopping for a red light, he would then, before the light changed, start forward on the very same red light. All we ■can say in answer is that perhaps Jackson is as good a chauffeur as counsel say he is, but two reputable witnesses testified that •he did attempt the negotiation of the intersection notwithstanding that a red light was facing him. Counsel also advance the argument that it would have been impossible for the thirteen-year-old truck to have attained such a speed as 25 to 30 miles an hour in so short a distance, and in that connection our attention is called to Jackson’s testimony to the effect that he made a test •of the vehicle and determined that after starting it from a stationary position, the truck could only be accelerated to a maximum speed of about 8 miles per hour within a distance of 80 feet. However, Jackson’s experiment was conducted long after the happening of the accident, but at any rate here again we must say that a reputable witness stated that the truck did attain such a speed and we are unwilling to say that the witness was telling an untruth.

We have accorded especial attention to the testimony of Mrs. Bartholomaus, and except for one thing no discrepancies or inconsistencies appear therein. It is true that Mrs. Bartholomaus did state in her deposition on discovery that there were streetcar tracks on Tulane Avenue and further that she saw a streetcar pass behind defendant’s truck as it cleared the neutral ground. In truth and in fact there were no car tracks on Tulane Avenue on the date of the accident, and, of course, Mrs. Bar-tholomaus’ statement as to the passing streetcar is indeed odd and she made no explanation as to why she so testified. The evidence shows that the New Orleans Public Service, Inc., had removed its streetcar tracks from Tulane Avenue some four years before the date the accident happened. However, even taking all this into consideration, we do not think that Mrs. Bartholomaus should be branded as a perjured witness or that her other statements, i. e., as to the events leading up to the accident, should be disregarded in view of the fact she is fully corroborated by two witnesses whose veracity cannot be successfully challenged.

It is quite evident that the statements of Jackson and Griffin made no impression on the trial judge and they make none on us. The judge believed Mrs. Bartholomaus and her two witnesses, and in his reasons for judgment is found the observation that “the court is of the opinion that the evidence preponderates to the effect that the truck crossed on the red light.” We have carefully sifted the testimony of the plaintiff witnesses as to the truck driver’s behavior, and we can see no reason whatever for disagreeing with our brother below in his finding that Jackson negligently attempted to cross the intersection in the teeth of a red light, and we concur therein.

This leaves for consideration and discussion the alternative defense that Mrs. Bartholomaus was guilty of negligence contributing to the accident in not having kept a proper lookout and in failing to observe the truck as it was crossing Tulane Avenue.

Counsel contend that in any event a prudent driver situated as was Mrs. Bartholomaus should have seen the truck crossing Tulane Avenue. It is pointed out that the intersection is wide open and without the slightest obstruction to a motorist’s view and we agree that such is the condition there. It is also pointed out that the truck was painted red and obviously could have been very readily seen had Mrs. Bartholomaus been attentive. Counsel seek to impress upon us that even if it be accepted as a fact that the truck crossed on the red light, there was no reason why Mrs. Bartholomaus should not have seen it and, therefore, she was guilty of the contributory negligence charged against her. We agree with counsel that it is not to be disputed that a motorist who recklessly and without exercising some degree of caution drives into the intersecting street on a favorable light is not to be held blameless if he collides with another vehicle which enters an intersection on an unfavorable light. We also agree that the jurisprudence is to the effect that a motorist cannot in the face of imminent danger rely on the right of way accorded him by a favorable light, but as stated in Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292-294:

“ * * * it also can not be disputed that under the traffic light system a motorist, who is proceeding on a proper signal, should not be held to the same degree of care and vigilance as if no such system prevailed. He has the right to assume that the signals are understood and will be observed and he is not required to anticipate that pedestrians or other motorists will, in violation of law, enter a crossing on a wrong signal. The danger at such crossing is less than if there were no such signals and therefore less care is exacted. * * * ”

The Kientz case, which was decided by us, was reviewed on writs by the Supreme Court which reversed our judgment. In that case, defendant’s driver was proceeding on a favorable light and had entered the intersection after looking and seeing no approaching vehicles on the intersecting roadway. He did not look again before negotiating the crossing and his vehicle collided with another which had entered the intersection. The contention was made that he was guilty of negligence in not seeing the approaching automobile, but the Supreme Court held that the defendant’s driver was not negligent as he was not bound to look again as he was traveling on a green light and was not under the duty of anticipating that another vehicle from the intersecting roadway would attempt a crossing. The Court quo,ted what Judge McCaleb, then a member of this court, had written in dissenting from our majority opinion in the case:

“* * * ‘We are living in an advanced stage of the motor age. Heavy and congested vehicular traffic on the streets and highways is a daily rule rather than an exception. In these circumstances, it is vital to the public interest that the traffic rules and regulations be adhered to strictly (particularly with reference to the traffic semaphore system) as the motorist is, to a large extent, compelled to operate his car in the belief that the law will be obeyed by others. Hence, in gauging the fault which is attributed to one, who was operating his car in obedience to positive law, the courts should be convinced that the dereliction was most substantial and that it was such a direct factor that, without it, the accident would not have occurred.’ ”

Thus Mrs. Bartholomaus, proceeding on a favorable light, after looking to the left when about to enter Broad Street and seeing no vehicles approaching, drove into the intersection. She was not required either to look again to her left or to anticipate or foresee that Jackson would come into the intersection in the face of the red light. She was in the precise position as the defendant’s driver in the Kientz case and must be held free of negligence.

Mrs. Bartholomaus was taken to the Charity Hospital for first aid treatment and remained there about three hours. Her injuries may be placed in three general classifications, to-wit: bruises and contusions, a whiplash injury to the cervical spine, and a sequela of occipital nerve neuralgia. She was treated by her private physician, Dr. James T. Nix, and was examined by Dr. Samuel A. Romano, on behalf of defendant, on January 3, 1955; she was also examined by Dr. James L. Lenoir at the behest of her own attorney on May 27, 1956, while the trial was in progress.

The bruises and contusions healed without incident, and it appears that the whiplash injury and the nerve neuralgia caused the patient considerable suffering and mental anguish. We understand that “whiplash injury” is in reality a layman’s term used with reference to neck injuries; the term is descriptive of the mechanism causing the injury and is not the pathological term. The injury is sustained as a result of a sudden unanticipated flexion and then hyper-extension of the neck. A whiplash injury may result in several types of pathological findings, such as sprain, fracture, dislocation and so forth. The consensus of the medical testimony is that the plaintiff sustained a sprain type of injury. The physicians differed as to the recovery time for such injuries and their estimates range from a few weeks to as high as eighteen months.

Dr. Nix, who is a general surgeon, testified that he treated Mrs. Bartholomaus on about fifty visits, since November 29, 1954, his treatment consisting primarily of diathermy and traction applied in his office during the first weeks and thereafter at the patient’s home. It also appears that violet ray and traction treatments were administered to plaintiff by her husband and some were also self-administered.

It also appears that Mrs. Bartholomaus at first had her back strapped with tape for several weeks, and then was required to wear a lumbosacral support for several months and has worn it for symtomatic relief from pain in the lumbosacral region as late as August of 1955. Three types of cervical collars also were prescribed and worn by her almost continuously, except when eating or while in bed. Dr. Nix identified these as a felt collar, a foam rubber collar, and a steel frame cervical brace.

Dr. Nix on his last examination found that the only evidence of a residue of the sprained neck was muscle spasm, and he considered plaintiff to have about a one-tenth residual condition with sporadic pain from the lumbosacral strain.

■ Dr. Romano, also a general surgeon,, states that his examination disclosed that the patient had made satisfactory recovery but he admitted she was likely to have symptoms related to the back. He thought Mrs. Bartholomaus had practically recovered from the neck injuries and there was no residual.

Dr. Lenoir was the only orthopedic surgeon to examine Mrs. Bartholomaus and all he found was the presence of muscle spasm to a slight degree which he attributed to the wearing of the neck brace rather than to any residual from the injuries. He could see no evidence of a dislocation, and that while active motion in the neck was restricted about fifty percent, recovery should take place in from nine to eighteen months. He emphasized the fact that the complaints of Mrs. Bartholomaus are out of proportion to his physical findings, or, in other words, her complaints are magnified. There was no evidence to warrant immobilization of the neck, and he believed it would be beneficial to her condition if Mrs. Bartholomaus would make some attempt to use the neck.

We believe that the testimony of Dr. Lenoir should be accorded great weight for two reasons: first, he was called upon to examine Mrs. Bartholomaus by her own attorney and, second, he was the only orthopedic specialist to examine the patient.

We do not think that there are any permanent injuries and the discomfort which Mrs. Bartholomaus was experiencing at the time the case was tried in the lower court should disappear in a reasonable time. She was allowed $6,000 for her injuries and we believe that such award does substantial justice in the matter. In Attaya v. Zimmerle, La.App., 83 So.2d 676, the plaintiff was awarded $2,500 for an injury to the neck similar to that sustained by Mrs. Bartholomaus, but it is clear from the medical testimony the claimant in the instant case was injured more severely than the plaintiff in the cited case.

George F. Bartholomaus was awarded a judgment for $490.57, and our calculation shows that this includes $156.33 for the damages sustained by his Studebaker automobile in the accident, $292.24 representing medical expenses in connection with his wife’s injuries, and the sum of $42 which he expended for domestic help during his wife’s incapacity. There is no basis for increasing the amount.

The trial court refused to allow a recovery for the loss of Mrs. Bartholo-maus’ earnings or impairment of her future earning capacity and we see no error in such refusal. Mrs. Bartholomaus is a beauty operator and the record makes it abundantly clear that she was in no manner regularly employed. She did not work at all during the first part of 1954 because her husband had been assigned to a government position in Alaska. She worked thereafter only for a comparatively short period of time quitting her job in September. She claims during the years 1950, 1951 and 1952 she was self-employed, but it was not shown what her earnings were, if any, during those years and she could not submit copies of her income tax returns. In addition to all of this, Dr. Lenoir, the orthopedic surgeon, testified that there was no reason he could see why she could not perform the duties of a beauty operator. Under these circumstances, to fix any loss of wages would require that we delve into the realm of conjecture and speculation which we are unwilling to do. Dr. Lenoir makes it certain that Mrs. Bartholomaus’ future earning capacity has not in the least been impaired.

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

Affirmed.


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    Frank J. ALBRECHT v. Herman GAETHE and All State Insurance Company.
    No. 20882.
    Court of Appeal of Louisiana. Orleans.
    June 24, 1957.
    Rehearing Denied Oct. 10, 1957.
    Writ of Certiorari Denied Nov. 12, 1957.

      Parnell J. Hyland, Porteous & Johnson, New Orleans, for defendants-appellants.
    Henry C. Vosbeiri, Vosbein & Gruber, New Orleans, for plaintiff-appellee.
   JANVIER, Judge.

This is an action in tort. The little finger ■of the right hand of plaintiff was mashed when defendant, Herman Gaethe, shut the left rear door of his automobile as plaintiff, with his right hand, was holding the center post on which the door was hinged.

Alleging that defendant, Herman Gaethe, was negligent in shutting the door while his Rand was clasping the door post, plaintiff, Frank J. Albrecht, brought this suit against 'Gaethe, and his liability insurance carrier, All State Insurance Company, praying for solidary judgment against them in the sum ■of $4,897.81 made up of a claim for $4,500 for physical and mental pain, suffering, shock, etc., and the balance, to-wit $397.81, made up of medical expenses, loss of earnings, etc.

While .defendants admitted the occurrence of the accident, they denied that defendant Gaethe was negligent in closing the •door, and, in the alternative, they alleged that the proximate cause of the accident was the contributory negligence of Al-brecht himself in placing his hand in the •dangerous position in which it was, although he knew or should have known that .all of the contents of the car having been taken out, the doors would be shut by the •owner of the car.

Defendants, also in the alternative, averred that under the circumstances shown the plaintiff Albrecht was a borrowed employee of the defendant Gaethe and that, therefore, if there exists in plaintiff any right to recover, it is under our Workmen’s Compensation Law (LSA-R.S. 23:1021 et seq.) and not in tort under LSA-Civil Code, Article 2315.

Defendants further averred that in any event there exists in plaintiff no right to claim reimbursement for medical expenses since the defendant All State Insurance Company, because of a “medical coverage” clause in the policy of liability insurance, has already paid all medical expenses for which plaintiff was or could be liable.

In the Civil District Court for the Parish of Orleans there was judgment in favor of plaintiff solidarily against both defendants in the sum of $1,200, and there was further judgment fixing and taxing as part of the costs a fee of $50 for a medical expert. Defendants have appealed suspen-sively.

If plaintiff was a borrowed employee of the defendant Gaethe, and, as such, was engaged in work furthering a hazardous feature of the business of defendant, then there is no cause of action in tort since, in such cases, the recovery is exclusively under the compensation statute. Let us then determine just what the facts were.

Plaintiff Albrecht was manager of a retail clothing store operated on St. Charles Street, in downtown New Orleans, by Kar-no Brothers. Gaethe operated a somewhat similar establishment in another area in the business section of New Orleans, and it frequently happened that Gaethe would secure from Karno Brothers, through Al-brecht the manager, clothing to be put on sale in Gaethe’s establishment, and it also frequently happened that this merchandise, if unsold by Gaethe for any considerable •length of time, would be returned to Karno Brothers.

Gaethe owned a 4-door sedan automobile and used this car in transporting merchandise back and forth between his own establishment and that of Karno Brothers.

On the occasion of the occurrence of this accident Gaethe was returning merchandise from his establishment to Karno Brothers and had parked his automobile with its left side along the river side curb of St. Charles Street opposite the St. Charles Hotel and in front of the Karno establishment. Both of the left side doors of the car were allowed to swing open as Gaethe and Al-brecht unloaded the merchandise from the car, taking it into the Karno establishment. Apparently the unloading had been completed so far as the rear of the car was concerned, Albrecht himself conceding that he “presumed” that the rear portion of the car had been completely unloaded asserting, however, that there remained on the front seat alongside Mrs. Gaethe, who was seated on the right front seat, a small package and that he was attempting to remove the package when the accident occurred.

He can give no description whatever of the package nor of its size nor of what it contained, and whether there was any such package is doubtful. He says that he put his right knee on the front seat of the car, reached in with his left hand to pick up the package and then put his right hand around the center post of the automobile, the left rear door being at that time open, and that when Gaethe, having completed the unloading of the rear portion of the car, closed the rear door, his right little finger was caught in the crack on the hinge side of the rear door and was mashed so that one joint of his finger was broken. He says that he put his right hand from the outside of the car into this crack.

We are well convinced that Al-brecht did not become a borrowed employee of Gaethe. He was interested in unloading the goods because he was manager of the Karno establishment, and it was in the conduct of his work for Karno Brothers that he was hurt. Therefore, if he has a cause of action against Gaethe, it is in tort and not in workmen’s compensation.

We thus pass to a consideration of the question of whose negligence caused the accident. Was it negligence of Gaethe in closing the rear door without making certain that Albrecht’s hand was not between the door and the post or was it the negligence of Albrecht himself in placing his hand in that dangerous position?

When a suit is based on a charge of negligence and the defense is a denial of negligence and an alternative plea of contributory negligence, it is sometimes advisable to first consider the plea of contributory negligence, for if the facts lead to the conclusion that there was contributory negligence without which the accident would not have occurred, it is unnecessary to determine whether there was primary negligence in the defendant.

In Smith v. Illinois Cent. R. Co., 10 La.App. 342, 120 So. 405, appears the following:

“Before discussing the actions of defendant’s employees, it seems to us advisable to determine whether Smith himself was free from fault, because, whatever may have been the negligence of defendant’s employees, plaintiff cannot recover if Smith was guilty of any negligence which contributed proxi-niately to the accident.”

In Lehon v. New Orleans Public Service, Inc., 10 La.App. 715, 123 So. 172, 174, we said:

“Since we are of the opinion that the proximate cause of the accident was the negligence of the driver of plaintiff’s car, it will serve no good purpose to discuss the question of whether or not there was negligence on the part of the defendant, as the law is well settled that, where an accident is caused by the contributing negligence of a person injured, he cannot recover, notwithstanding the fact that tile other party may also have been at fault. Gibbens v. New Orleans Terminal Co., 159 La. 347, 105 So. 367; Townsend v. Missouri Pacific R. Co., 6 La.App. 303; Brown v. [Texas & P.] Railroad Co., 42 La.Ann. 350, 7 So 682, 21 Am.St. Rep. 374.”

Also note the following in Woodall v. Southern Scrap Material Co., La.App., 40 So.2d 495, 496:

“ * * * it sometimes happens that evidence tending to show contributory-negligence seems to stand out predominantly, and in such cases it may be better to consider that evidence first because, if it appears that the true cause of the accident was the negligence or contributory negligence of the person injured or killed, then there can be no recovery regardless of whether there was or was not primary negligence chargeable to the defendant.”

It may have been negligence on the part of Gaethe to close the door when he did without looking to see whether Albrecht’s hand was in that dangerous position. We do not determine this. If Gaethe was negligent in slamming the door, his negligence, insofar as the proximate cause of the accident is concerned, played a part of infinitesimal importance when compared to the more causally connected negligence of Albrecht who unnecessarily placed his hand in a most dangerous position.

Gaethe’s closing of the door was the spontaneous act which almost anyone would have committed under the same circumstances. He had completed the unloading of the rear of the car and was stepping away from it with clothing in his right hand. As he left the car he turned to his right and, realizing that the open door must be shut, with his left hand he instinctively closed it. As we have already said, this was the natural instinctive act of anyone. If it was fault, it was not the proximate cause which, as we have stated, was the negligence of Albrecht himself.

Gaethe himself tells the story of the occurrence in the following words: “I went into the car to get the clothing out. My back was turned towards him (Albrecht) so when I went to move my clothes out I had to turn to the right, and getting away from the door with my left hand I closed the door.”

Albrecht says that he knew or presumed that the rear portion of the car had been unloaded and that he put his hand into the crack between the door and the post from the outside of the car. Albrecht should have realized that, since the doors of the car where hung out over the sidewalk of a busy business street, it was proper that they should be closed as soon as the unloading could be completed. Thus he should have realized that Gaethe would close the rear door. There was no necessity whatever for him to put his hand in the extremely dangerous position in which he placed it and we think that in doing so he was guilty of contributory negligence.

A diligent search by counsel of the jurisprudence of this State has brought to our attention only one case, the facts of which, to some extent, resemble those found here, Herbert v. White Top Cabs, Inc., La.App., 8 So.2d 158, 159. There two passengers alighted from a taxicab. One of them partially closed the door when the fingers of one hand of one of the passengers (plaintiff) extended over the top of a door between it and the top of the cab. It was alleged that, while plaintiff’s fingers were in that position, the driver of the taxicab completed the closing of the door, with the result that plaintiff’s fingers were injured. The suit was brought against the taxicab company and we held that, under the facts shown there, even if plaintiff’s story that the driver of the cab had completed the closing of the door was correct, there would have been no liability in the taxicab company. We said, as to plaintiff:

“she was contributorily negligent in extending her little finger into the very small opening left between the partially closed door and the body of the car.”

There the defendant was a taxicab company and, as a carrier, admittedly owed to the plaintiff the highest degree of care.

Our conclusion is that the proximate cause of this accident was the negligence of plaintiff himself and that, as a result thereof, he should not he permitted to recover.

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

Reversed.


author: REGAN, Judge.

text:
    MARQUETTE CASUALTY COMPANY v. Chester BROWN.
    No. 20863.
    Court of Appeal of Louisiana. Orleans.
    June 24, 1957.
    Rehearing Denied Oct. 10, 1957.
    James J. Morrison, Morrison & -Newell,. New Orleans, for plaintiff-appellant.
    Herman & Herman, New Orleans, for defendant-appellee.
   REGAN, Judge.

Plaintiff, Marquette Casualty Company,, the compensation insurer of Parettii Pontiac Co. Inc., instituted this suit on: November IS, 1955, against the defendant,. Chester Brown, endeavoring to recover as-indemnification the sum of $672.63, representing workmen’s compensation and medical expenses which it paid to Cleotha. Thomas an employee of its insured for injuries incurred on July 15, 1954, in the intersection of Dryades and Girod Streets, when Brown, the operator of a Chevrolet, automobile collided with a motor-cycle operated by Thomas.

The defendant pleaded the prescription-, of one year, and in explanation thereof asserted that Thomas incurred the injuries-which are the subject matter of this litigation on July 15, 1954, and that suit was not. instituted by the plaintiff until November 15,. 1955, or one year and four months after the-occurrence of the accident.

From a judgment in favor of defendant,, maintaining the plea of prescription, plaintiff has prosecuted this appeal.

The plaintiff’s petition which was filed on November 15, 1955, alleges that on July 15, 1954, Thomas, an employee of Paretti Pontiac Co. Inc., was operating a three-wheeled motor-cycle in the intersection of Dryades and Girod Streets when he was injured by Brown, who was negligently operating his automotive vehicle in the same intersection; as the result of the injuries incurred by Thomas, plaintiff, as compensation insurer of the employer Paretti Pontiac Co. Inc., was required to pay to Thomas, the sum of $672.63, therefore, plaintiff insists that it is entitled to recover the above sum as indemnification in conformity with the provisions of LSA-R.S. 23:1101, the last paragraph of which reads:

“Any employer having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent.”

Plaintiff contends that it did not know the full extent of its liability to Thomas until November 21, 1954, the date that the last compensation payment was made, therefore, the prescriptive period of one year did not begin to run until that date.

Plaintiff, in order to prove the rationale of the foregoing assertion principally relies upon the jurisprudence enunciated in the following cases, to wit: Foster & Glassell Co., Limited, v. Knight Bros., 1922, 152 La. 596, 93 So. 913; Appalachian Corporation, Inc., v. Brooklyn Cooperage Co. Inc., 1922, 151 La. 41, 91 So. 539.

Defendant, in order to sustain its plea that the prescriptive period of one year begins to run from the date of the injury incurred by the employee, exclusively relies upon the reasoning emanating from the case of Massachusetts Bonding & Ins. Co. v. Nelson, La.App., 1945, 22 So.2d 863,. wherein the following decisions are cited! and discussed by the author of the opinion. Chauvin v. Louisiana Power & Light Co. 1933, 177 La. 193, 148 So. 23; Metropolitan Casualty Ins. Co. of New York v. Bowden,. 1935, 181 La. 295, 159 So. 394; Reeves v. Globe Indemnity Co. of New York, 1935, 182 La. 905, 162 So. 724; Aetna Life Ins. Co. v. DeJean, 1935, 183 La. 529, 164 So. 331.

The only question which the plea of prescription has posed for our consideration is one of law and that is whether the employer or insurer’s action for indemnification against the third party tort-feasor for compensation paid to an employee is prescribed within one year of the injury incurred by the employee or within at least one year after the employer or the insurer’s liability for compensation has become determined, fixed and crystallized.

It is our opinion that plaintiff’s action was not prescribed until at least one year after its liability became fixed and crystallized.

We believe that this case is encompassed by the ratio decidendi of Appalachian Corporation, Inc., v. Brooklyn Cooperage Co., Inc., 1922, 151 La. 41, 91 So. 539, 543. Therein the employer instituted its action for indemnification against the third person who pleaded the prescription of one year. In reversing the lower court which sustained the plea, the organ of the court reasoned:

“It is stated in Corpus Juris, vol. 13, p. 833, that the limitation applicable to an action for contribution is that fixed for an implied contract. As the right to enforce contribution is not complete and enforceable until payment or discharge in whole or in part of the common obligation, the statute of limitations does not begin to run against a claim for contribution until plaintiff has discharged the common debt. The plaintiff’s right of action did not arise until it had paid the judgment, and that payment was made within the year following the finality of the judgment, and the suit was filed before the lapse of a year from either the finality of the judgment or its payment. In South Arkansas Lumber Co. v. Tremont Lumber Co., 146 La. [61] 62, 83 So. 378, it was held that a person cannot bring suit until his cause of action has accrued, and until a cause of action has accrued prescription cannot run against it, citing Jones v. Texas & P. Ry. Co., 125 La. 542, 51 So. 582, 136 Am.St.Rep. 339. * * * ”

In this case, the plaintiff did not know until November 21, 1954, the full extent of its liability.

The principle that an employer could sue for indemnification within one year after his liability was definitely fixed, was again reiterated in the case of Foster & Glassell Co., Limited v. Knight Bros., 1922, 152 La. 596, 93 So. 913, wherein the organ of the court reasoned:

“On the other hand, when, at the end of the litigation, the employer paid the employe the sums which it was compelled to under the statute, at that time, and not until then, a cause of action arose in its favor, independent ■of the statute, as on an implied contract for indemnification at the hands of the defendant, if the injury was caused by the latter’s negligence. * * But, as said in Appalachian Corporation v. Brooklyn Cooperage Co., the prescription governing this latter cause of action is not that applicable to actions ex delicto.”

Defendant’s counsel argues that there is a sharp conflict in the decisions relied upon by him, and those relied upon by the plaintiff, all of which are cited hereinabove. A careful analysis thereof will reveal that all of these cases are reconcilable when the distinction is appreciated of the instances in which the employer or insurer sues in tort on behalf of himself and/or the employee as opposed to those in which the employer or insurer is exercisng his independent action of indemnification to recover compensation paid to the employee. Thus in Foster & Glassell Co., Limited, v. Knight Bros., supra, the organ of the court asserted:

“It is said by defendant that the action is one ex delicto, and that plaintiff can have no greater rights than those of Pink Morris against defendant, a third person, through whose fault the injury is alleged to have occurred. This is undoubtedly true, in so far as the claim is for and on behalf of Morris; but plaintiff had two causes of action under the law, the one for and on behalf of Morris, and the other for indemnification, as upon an implied or quasi contract to be reimbursed for money which it was compelled to pay on account of the fault of defendant, for which, under the allegations of the petition, it was in no wise responsible. Appalachian Corporation, Inc., v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539. If plaintiff, without or before having paid Morris, had sued defendant for the full extent of the latter’s injuries, it could have been said that the action rested solely upon the right of sub-rogation under Act 20 of 1914, as amended, known as the Employers’ Liability Law or Workman’s Compensation Act. However, in view of the contest which it made of Morris’ claim for compensation, it could not have sued the defendants in this case without waiving the defenses which it made in that case, until the issues were finally settled; hence it waited until the sum which it had been condemned for had been paid, and brought this suit for indemnification or reimbursement. * * * ”

This court has on at least two occasions endeavored to emphasize the foregoing distinction. In the case of Smith v. McDonough, La.App., 1947, 29 So.2d 818, 822 the organ of the court stated:

“We have said that the cause of action given the employee and that given the employer are not the same. A consideration of the statute indicates that the injured workman may sue the third person, ex delicto, in an action sounding in damages, whereas the action conferred upon the employer is one of indemnification for the expense to which it has been put because of the negligence of the third person. In the one case, that of the employee, his recovery is limited to and based upon the unliquidated damages which he has suffered, whereas in the other case, that of the employer, it is for a fixed amount which, as the Supreme Court of Florida says, though based upon the same transaction is quite a different thing.”

In the relatively recent case of Todd-Johnson Dry Docks, Inc. v. City of New Orleans, La.App.1951, 55 So.2d 650, 655, we endeavored to clarify the distinction emphasized in the foregoing case by remarking :

“The decision of this court in Smith v. McDonough, La.App., 29 So.2d 818, cannot be interpreted as authority for the view that, when an employee is injured by the tort of a third person, there come into existence two separate claims against the tort-feasor which may be asserted in two separate actions. All that we intended to hold was that, under such situation, there comes into existence a claim for damages in favor of the injured employee,, and that in this claim there may be asserted any item of damage or loss sustained, and that there i-s also given to-the employer the right to obtain out of the claim of the employee the-amount for which he, the employer,, may have become liable in compensation. The claim of the employer against the tort-feasor is limited by the amount to which the employee may be entitled in damages. * * * ”

As paradoxical as it may appear, even-the author of the opinion in the case of Massachusetts Bonding & Ins. Co. v. Nelson, La.App., 1945, 22 So.2d 863, 865, upon which defendant relies almost exclusively to sustain his plea of prescription, not only recognizes with approval the distinction hereinabove referred- to, but asserted', therein that the insurer or employer simply succeeds to the rights of the injured' person and such rights, "unless judicially asserted within twelve months after the-measure of liability of the employer or insurer is determined, are barred by the-prescription of one year.”

In conclusion, we interpret the existing jurisprudence to mean, that the employer' or insurer’s action for indemnification-against the third party tort-feasor for' compensation paid to the employee is prescribed within at least one year after the employer or insurer’s liability has become-fixed and crystallized.

On the other hand, if the employer or the insurer who has paid compensation to-the injured employee institutes a suit either in the name of the employer, insurer or employee against the third party tort-feasor-both for compensation paid and' also for the full extent of the injury to the employee, that cause of action is prescribed within one year from the date of the injury.

The rule of law enunciated hereinabove, with respect to the employer or insurer’s action for indemnification offends our prescriptive sensibilities in view of the fact that 400 or more weeks may elapse between the date of injury to the employee and the action by the employer or insurer for indemnification against the third party tort-feasor.

However, in our judicial system the Court of Appeal, in its relation to the Supreme Court,. occupies the status of an inferior court, therefore, we do not enjoy the prerogative individually or collectively of either criticizing of reversing a decision of that court, even if it should be obviously erroneous.

Our position is analogous to that in which the late Judge Westerfield found himself in Cusimano v. New Orleans Public Service, 12 La.App. 586, 122 So. 903, 905, wherein a concurring opinion, he so colorfully elucidated upon the status of an inferior tribunal.

“My position is like that of the participants in a certain renowned military exploit, who, though ‘stormed at with shot and shell,’ yet ‘boldly they rode and well,’ because, having heard the voice of authority, it was ‘Theirs not to make reply, theirs not to reason why.’ ”

For the reasons assigned the judgment appealed from is annulled, avoided and reversed, and the plea of prescription is overruled and this case is remanded to the Civil District Court for further proceedings not inconsistent with the views herein expressed. The defendant shall pay the cost of this appeal, all other costs are to await final judgment.

Reversed and remanded.

      . We have used the phrase “at least” advisedly because of the inference of a ten year prescriptive period created by the organ of the court in Foster & Glassed Co., Limited, v. Knight Bros., supra [152 La. 596, 93 So. 914], wherein he stated, the employer “upon paying for the injury so inflicted, may recover of the tort-feasor as indemnity the sum so paid as upon an implied or quasi contract. * * * But, as said in Appalachian Corporation, Inc., v. Brooklyn Cooperage Co., Inc., the prescription governing this latter cause of action is not that applicable to actions ex delicto.”

      . One year and four months after the occurrence of the injury.

      . Including Massachusetts Bonding & Ins. Co. v. Nelson, supra, upon which defendant relies to sustain his plea of prescription.

      . See also Board of Com’rs of Port of New Orleans v. City of New Orleans, 1953, 223 La. 199, 210, 65 So.2d 313, 317 (1953); also 14 L.L.B. 718.

      . It will be noted tliat this phase of the matter was not posed in this case for our consideration.


text:
    Mrs. Mary ABADIE, Wife of Frank FUGETTA, Sr., Frank Fugetta, Sr., Mrs. Mary Louise Le Sage, Wife of Leo Le Sage and Leo Le Sage, v. M. G. LOUBAT, Doing Business as M. G. Loubat Truck Service and New Amsterdam Casualty Company, et al.
    No. 20867.
    Court of Appeal of Louisiana. Orleans.
    June 24, 1957.
    Rehearing Denied Oct. 10, 1957.

      Joseph Rosenberg, New Orleans, for plaintiffs-appellants.
    H. Martin Hunley, Jr., and Lemle & Kelleher, New Orleans, for M. G. Loubat and New Amsterdam Casualty Co.
    M. C. Scharff and A. J. Marciante, New Orleans, for Checker Cab Co. of New Orleans.
   JANVIER, Judge.

Mrs. Mary Abadie, wife of Frank Fu-getta, and her daughter, Mrs. Mary Louise LeSage, while passengers in a taxicab of defendant, Checker Cab Company, sustained physical injuries at about 2:45 o’clock on the afternoon of October 6, 1955, when the cab, on its way down Bourbon Street, in New Orleans, was run into at the corner of Bienville Street by a large truck of M. G. Loubat, who does business as M. G. Loubat Truck Service, the truck being on its way out Bienville Street.

Mrs. LeSage at the time was almost eight months pregnant, and she and her mother were on their way home from a visit which Mrs. LeSage had made to her obstetrical specialist.

This suit was filed by Mr. and Mrs. Le-Sage and Mr. and Mrs. Frank Fugetta, Sr., originally only against M. G. Loubat, the owner of the truck, and his liability insurer, New Amsterdam Casualty Company. Three days after the filing of the original petition, a supplemental petition was filed and Checker Cab Company was added as a defendant.

Mrs. Fugetta prayed for solidary judgment against all three defendants in the sum of $15,000. Mr. Fugetta, because of the medical and hospital expenses made necessary by the injuries of Mrs. Fugetta, prayed for solidary judgment against all defendants in the sum of $1,937.81. Mrs. Le-Sage prayed for solidary judgment against all defendants in the sum of $5,000, and Mr. LeSage, because of medical expenses alleged to have been made necessary by the injuries of Mrs. LeSage, prayed for solidary judgment in the sum of $145. All defendants prayed for and obtained trial by jury.

They alleged that the driver of the Loubat truck had been at fault in failing to stop at a traffic stop sign which faced him as he neared the intersection of Bourbon Street; in that he “failed to maintain a sharp lookout and they also charged that there was negligence in defendant Loubat in that the •brakes on his truck were not in working condition.

Although, in their original petition, plaintiffs made no allegation of negligence as against the operator of the Checker Cab Company, in their supplemental petition they charged that he “failed to maintain a sharp lookout;” that he was negligent in operating the cab at a speed of 25 miles per hour; that “by the exercise of care and caution he could have anticipated and seen the Loubat truck, applied his brakes, and could have avoided the said impact.” They also alleged that the brakes of the taxicab were defective.

Loubat and his insurer, New Amsterdam Casualty Company, denied that the driver of the truck had been in any way at fault and averred that the “sole cause of the accident was the negligence of the driver of the Checker Cab in failing to keep a proper lookout and in failing to keep control over his vehicle * * Loubat and his insurer also averred that, in the alternative that it appear that there was any negligence on the part of the driver of the truck, Mrs. Fugetta and Mrs. LeSage were guilty of contributory negligence “in failing to protest the reckless driving of the driver of the Checker Cab.”

The Checker Cab Company denied that the driver of the cab had been in any way at fault, and averred that the accident had been caused solely by negligence of the operator of the Loubat truck “in failing to stop for the stop sign * * *,” in “failing to yield the right of way * * *,” and “in operating a vehicle with defective brakes.”

The verdict of the jury dismissed the suit as against Checker Cab Company, but was against M. G. Loubat' and New Amsterdam Casualty Company in solido; in favor of Mrs. Frank Fugetta in the amount of $2,500; in favor of Frank Fugetta in the amount of $1,170; in favor of Mrs. Leo LeSage in the amount of $1,000, and against Leo LeSage dismissing his claim for medical expenses.

The verdict was unanimous insofar as the several amounts awarded were concerned, but so far as the Checker Cab Company was concerned it was ten to two in favor of the dismissal of the suit as against that company.

There was judgment in accordance with the verdict and all plaintiffs have appealed. The defendants cast did not appeal independently and did not answer the several appeals of plaintiffs.

There is no doubt whatever as to the negligence of the driver of the Loubat truck and no real controversy over this question. In fact, since there have been no appeals by Loubat or his insurer, it is evident that liability is conceded. It is definitely shown that the truck did not stop for the stop sign before entering the intersection and that the brakes of the truck were completely defective and would have been almost of no effect at all had they been applied.

As he neared the corner of Bourbon Street, Wilmer Cooley, the driver of the Loubat truck, was faced by a stop sign and at the opening of the trial the following concession was made by counsel for Loubat and New Amsterdam Casualty Company:

“ * * * it is stipulated and agreed that Bourbon is the right of way street, because there is a stop sign at Bourbon, on Bienville, arresting traffic on Bienville Street, which means before any vehicle can enter Bourbon Street it must come to a stop and then proceed.”

Since plaintiffs have appealed from the judgment not only on the ground that" the amounts awarded are too small, but also on the ground that the Checker Cab Company should not have been held not liable, the Loubat Company and New Amsterdam Casualty Company are interested in attempting to have the judgment in favor of the other defendant, Checker Cab Company, reversed for the reason that if it should be ultimately held that there is solidary liability in all of the defendants, any one of them might demand pro tanto contribution from the others. It is well settled that where joint tort-feasors are held solidarily liable, though any one of them may be required by the plaintiff to pay the entire judgment, that one may compel the others to contribute on a pro tanto basis. Quatray v. Wicker, 178 La. 289, 151 So. 208. Therefore, because of this and since plaintiffs have appealed in an effort to have the Checker Cab . Company held solidarily liable, it becomes necessary that we analyze the evidence as to whether there was fault on the part of the driver of the cab.

There is, however, in the record nothing which, to any serious extent, contradicts the testimony of the driver of the cab which is to the effect that, as he approached the corner at a speed of 20 miles per hour, he reduced his speed and “rolled” up to the corner at about 15 miles per hour; that he saw the truck and knew that it was “still back far enough that he (the truck driver) could have stopped * * *.”

Mrs. Fugetta says that the cab “was not going very fast * * * about 18 miles per hour.” And Mrs. LeSage says that the driver of the cab “was not going fast.”

The cab driver had the right of way; he knew that the truck should stop, and he knew that its speed was such that it could stop before it reached the intersection. Certainly he was justified in assuming that it would stop, and since he had the right of way there was no reason why he should not have proceeded as he did at moderate speed into the intersection. As a matter of fact, he had almost completed the intersection when the truck, unable to stop because of the condition of its brakes, rolled into the right rear of the cab.

In Brown v. Gonzales, La.App., 77 So.2d 887, we held that the driver of the taxicab on a favored street, traveling at reasonable speed, was not negligent in not anticipating that a vehicle on the less favored street would violate a stop sign and enter the intersection and crash into the taxicab which was on the favored street. We cited Gross v. Teche Lines, Inc., 207 La. 354, 21 So.2d 378, stating that in that case the Supreme Court “affirmed the rule that it is not negligent not to discern that another will suddenly and without warning violate the traffic law * * * ” [77 So.2d 891.]

In Thomas v. Checker Cab Company, 229 La. 1079, 87 So.2d 605, 607, the Supreme Court held that the driver of a vehicle on a favored street “was not called upon to anticipate that a vehicle approaching from his right would be operated at an unlawful rate of speed and in an improper manner.” We paraphrase this statement by saying that the taxicab on the favored street here was not called upon to anticipate that a vehicle approaching from his right would violate a stop sign and crash into the vehicle on the favored street. If the truck had been approaching at a speed which would indicate that it could not stop, the situation would have been quite different, but since its speed was reasonable and since it could have been stopped, the driver of the taxicab was not at fault in entering the intersection at reasonable speed.

Since there was no fault in the driver of the taxicab, there remains only the question of whether the amounts awarded to the several plaintiffs are correct.

Though the plaintiff, Leo LeSage, appealed and complains that he should have been awarded $145 as the cost of medical attention to Mrs. LeSage, the record does not show that he actually paid or became liable for any amount for medical expenses. It is true that the evidence shows that, in all probability, Mrs. LeSage at some time in the future may require minor surgery, and Dr. Battalora, when asked what would be the amount of the “hospital bill and all,” answered: “Probably around $250.00.” Counsel for plaintiffs conceded that no claim for future medical expenses had been made and that therefore there could be no recovery based on this particular item.

There is no complaint about the amount of $1,170 awarded to Mr. Fugetta for medical and hospital bills, and counsel for plaintiffs also concedes that this amount is correct.

When we come to consider the injuries sustained by Mrs. LeSage, we find that they were fortunately not particularly serious. She sustained “a large bruise with an underlying blood clot” on the left thigh, and the doctor who first treated her merely said that she was emotionally upset and required “sedation” and that there was a swelling on the “lateral aspect of the upper third of her left thigh.” However, at the time of the trial that condition had not been completely eliminated. There was some fear that she might lose the child which was about to be born, but this did not happen.

Realizing that there was no doubt considerable anxiety concerning the possibility that there might be a miscarriage or that the unborn child might have sustained injury, and noting also that at the time of the trial there still remained a condition that might, in the indefinite future require minor surgery, we feel that the amount awarded to Mrs. LeSage is slightly inadequate and that it should be increased to $1,500.

The injuries to Mrs. Fugetta were considerably more serious. She was first taken to Charity Hospital and on that evening removed, apparently at the request of a doctor of the defendant, to the Mon-telepre Hospital where she remained for three days, she then was taken to her home and later at her own request, was taken to Baptist Hospital where she remained from November 7, 1955 until December 2, 1955, a period of 45 days. She was still under treatment at the time of the trial, the principal complaint being “a swelling at the left knee” and the orthopedic surgeons all agreed that in the left knee there were “small horn like projections” and a “small loose piece of cartilage.” The doctors agreed that recovery from that condition would require at least an additional year. In view of all of these circumstances we think that the award of $2,500 is inadequate and should be increased to $4,000.

In his brief counsel for plaintiffs asks that the fees of the two doctors be taxed as costs and that the fee of each be fixed at $200.

Insofar as the taxing of the fee of the experts is concerned, we merely remark that both of the doctors mentioned had treated either Mrs. Fugetta or Mrs. LeSage or both and that most of their testimony concerned the treatments rather than the rendering of expert opinions. We believe that under the circumstances all that should be done here is that all costs should be taxed against defendants, M. G. Loubat, doing business as M. G. Loubat Truck Service, and New Amsterdam Casualty Company, and that whether or not these fees should be taxed as costs should be determined on a rule to tax costs in the district court.

Accordingly, the judgment appealed from, insofar as it awarded to Mrs. Le-Sage $1,000, is amended by the increase of that award to $1,500, and insofar as it awards $2,500 to Mrs. Fugetta, it is amended by the increase of that award to $4,000. In all other respects the judgment appealed from is affirmed at the cost of defendants, M. G. Loubat, doing business as M. G. Loubat Truck Service, and New Amsterdam Casualty Company, in solido.

. Amended and affirmed.


author: THOMAS, Justice.

text:
    STATE of Florida, Appellant, v. Frank DIEZ, Appellee (two cases).
    Supreme Court of Florida.
    Sept. 18, 1957.
    Rehearing Denied Oct. 17, 1957.
    •Richard W. Ervin, Atty. Gen., Jos. P. Manners and Richard J. Brooks, Asst. Attys. Gen., for appellant.
    William C. Pierce and Manuel M. Garcia, Tampa, for appellee.
   THOMAS, Justice.

Two informations were filed in the Criminal Court of Record of Hillsborough County charging Frank Diez with perjury. In one it was alleged that the defendant being “required by law to take an oath in a non-judicial proceeding and * * * being under oath then and there * * * administered to him by one Ralph Fernandez who was duly authorized to take acknowledgment of instruments for public record * * *, did wilfully, knowingly, intentionally, corruptly and falsely swear * * * ‘I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party,’ ” but to the contrary the defendant had “lent his aid, support, advice, counsel or influence to the Communist Party * * It was averred that the statement was material because the oath containing it was a prerequisite to the employment of the defendant by the Florida State Racing Commission, and that the defendant knew the statement was false when he made it.

The second information is identical with the first except that the statement set out was alleged to have been made about a year later.

The defendant moved to quash both in-formations on twenty-three grounds and his motions were granted. The state then appealed so the defendant is now appellee.

Under one ground it was argued by appellee, apparently with success, that by federal law the field of sedition legislation had been preempted by the federal government and, therefore, the statutes relied on were no longer valid. Secs. 876.05 through 876.10, Florida Statutes 1953, and F.S.A.

We have commented that the appellee argued this particular point with apparent success because the orders entered by the judge simply granted the motions to quash without specifying what grounds of the twenty-three presented by the movant were considered to have been well taken. However, this point is argued here both by appellant and appellee so we consider that it is one which we should properly decide.

The Attorney General contends that a loyalty oath such as appellee was required to take does not fall in the same category as sedition, one being a matter of allegiance to the government, the other a matter of commission of the crime of treason, or sedition.

We are immediately concerned with the first of the statutes, Sec. 876.05, supra, which provides, in brief, that all persons in the service of the state, as well as all candidates for public office, shall subscribe to a certain oath, the contents of which relevant to this controversy are: That the affiant is not “a member of the Communist Party,” and “[has] not and will not lend * * * aid, support, advice, counsel or influence to the Communist Party * *

In the last of the cited statutes, Sec. 876.10, supra, it is provided that a person “guilty” of making a false statement in the oath shall be “guilty” of perjury. This is the statute upon which the present prosecutions are based. Sec. 837.01, Florida Statutes 1953, and F.S.A.

The appellee asserts that it is only with the part of the oath: “I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party” that this court need now be concerned, and he contends that aside from the unconstitutionality of the particular statute, the legislature never intended that it should have a retroactive effect. Also, he represents that the state concedes these to be the only questions to be resolved by this court and he takes the position that an affirmative answer to either must result in an affirmance.

As we understand the record, the ruling constituted a decision that Sec. 876.05, supra, was unconstitutional. We proceed to an examination of the briefs of the Attorney General and the appellee dealing with (1) the preemption of the field by the federal government, (2) the intention of the legislature with reference to the retrospective effect of the act, and (3) the invalidity of the law because of the absence of any requirement of a statement in the oath that the affiant consciously gave aid, support, advice, counsel or influence to the Communist Party.

Appellee argues that by federal law the government of the United States has nullified “sedition legislation by the States, including the instant Act,” to quote from appellee’s brief. Chapter 25046, Laws of Florida, Acts of 1949, F.S.A. § 876.05 et seq.

At the outset the appellee draws the attention of this court to three federal laws having to do with the general subjects of sedition and communism. One of these is the so-called Smith Act originally passed in 1940 and amended in 1948, 18 U.S.C.A. § 2385. Under this law anyone who abets the overthrow of the government of the United States of any state by violence may be fined $10,000 or imprisoned for not more than 10 years, or both, and shall be ineligible for employment by the United States for five years following his conviction.

In 1950 the Internal Security Act was passed, 50 U.S.C.A. § 781 et seq. It carried a preface about the world-wide communist movement calculated to accomplish, by treachery and infiltration into government and other groups, a communist totalitarian dictatorship. This is a comprehensive law designed to curb the insidious communistic canker.-

In 1954 the Congress enacted the Communist Control Act, 50 U.S.C.A. § 841 et seq. In it the Congress declared that although the Communist Party was ostensibly a political party, it was in truth an instrumentality designed to work the overthrow of the United States Government and to deny the liberties guaranteed by the Constitution and that the Communist Party should be outlawed.

Two state laws have been passed dealing with the general subject of communism and one with loyalty to the government as a qualification for employment by the state. The earliest of these was Chapter 20216, Laws of Florida, Acts of 1941, F.S.A. § 876.01 et seq., outlawing in the State of Florida the Communist Party, the Bund, and all groups, organizations . or individuals seeking to overthrow the government of the United States by force. Such was the title, and in the body of the act there is reference to the assassination of officials of the state as well as the federal government. In this act criminal anarchy, criminal communism, criminal nazi-ism and criminal fascism were denounced.

Then followed the enactment of Chapter 25046, supra, one section of which, now 876.05, supra, we are now considering.

Afterward the legislature passed Chapter 28221, Laws of Florida, Acts of 1953, F. S.A. § 876.22 et seq., condemning communism and its kind and all their works. Incidentally, it was provided in this act, that it should be felonious “knowingly and willfully” to engage in subversive activities. The significance of the language we quote will become apparent when we presently discuss the averments of the in-formations filed against the appellee.

The pertinent and existing parts of these three acts are now found in Chapter 876, Florida Statutes 1955, and F.S.A.

Reverting to appellee’s argument, he claims the issue here is whether or not supersession has resulted from the federal enactments, that is, whether or not the state laws have become ineffectual because federal acts now exclusively govern. To support the position, the appellee refers to the decision of the Supreme Court of the United States in Commonwealth of Pennsylvania v. Nelson, 1956, 350 U.S. 497, 76 S.Ct. 477, 483, 100 L.Ed. 640, in which it was held that the National Congress by the three federal acts we have mentioned showed a purpose of taking over entirely the field of sedition legislation, and that a state sedition statute had been superseded even though it purported to supplement federal law.

It was the theory of the opinion that subversive activities should be viewed from a central 'point so that in each instance it might be considered whether or not the activity was part of a pattern that could only be dealt with successfully by an agency that could gather all the information and treat of it as a problem affecting the security of the whole country. There was reference to the number and diversity of state statutes and to the ineffectiveness of attacking a local problem that might well have a kinship with subversive activity elsewhere in the United States. In the opinion is the significant statement: “And our attention has not been called, to any case where the prosecution has been successfully directed against an attempt to destroy state or local government.” It is important to note here that in the case of Commonwealth of Pennsylvania v. Nelson, supra, the Supreme Court of the United States was reviewing the prosecution in a state court of a person charged with sedition against the government of the United States. The law alleged to have been violated is substantially the same as Chapter 28221, supra.

It seems to this court that when the reasoning in the opinion is borne in mind and the mischief -that that court thought would result from numerous and varied prosecutions for sedition in many states under dissimilar statutes is considered, there is no occasion to strike down the only section of the statutes with which, as appellee contends, we are concerned. If all the statutes of the state we have cited are considered as a whole it might logically be argued that the legislature attempted to deal with the general subject of sedition but the legislature was also dealing with loyalty to the state government as a prerequisite to state employment, and we must remember that we are not passing upon any prosecution for sedition, or any violation that should be left to the federal government which could conceivably handle it more effectively and more intelligently because of accumulated information or evidence of other acts of sedition in other places in the domain.

The appellee was required, in order to serve the state and be compensated for his services, to execute an oath of loyalty not only to the government of the United •States but also the government of the State of Florida. Under the Constitution of the State of Florida every officer of the state must, before entering upon his duties, swear that he will support, protect, and defend not only the constitution and government of the state but also the constitution and government of the United States. Sec. 2, Art. XVI, Constitution of the State of Florida, F.S.A. Certainly no one could say that this obligation to remain loyal to both governments transgressed upon the power exercised by the federal government to take over the control and suppression of sedition in the United States.

■So far as the prospective effect of the oath is concerned, we are unable to put in different categories the oath of officers and the oath of an employee that he will not lend aid, support, advice;- counsel, or influence to an organization that has been condemned by. both governments. And we cannot understand how the making of such an oath a condition precedent to state service would interfere in the slightest degree with the operation of the federal government against those who become so disloyal as to engage in sedition. It could be more logically argued that by keeping out of state government those persons who might prove disloyal, the federal government would be advantaged.

Apropos of this thought we quote from the opinion in Garner v. Board of Public Works of City of Los Angeles, infra:

“We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitablity for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust. Both are commonly inquired into in determining fitness for high and low positions in private industry and are not less relevant in public employment.” [341 U.S. 716, 71 S.Ct. 912.]

Up to this point we have treated of the question whether or'not the statutes requiring loyalty oaths have become ineffectual because of the opinion of the Supreme Court of the United States in Commonwealth of Pennsylvania v. Nelson, supra. We think they have not.

We now turn to the contention of the appellee that Sec. 876.05, supra, was not intended to have any retrospective effect. As we understand his position, he asserts that this is discernible from an examination of the journals of the House of Representatives and the Senate where the progress of the bill was recorded and he says that such lack of intent is reflected in the finished product which is ungrammatical as a result of careless amending in an effort to eliminate language which would give the law a retrospective application. We cannot accept this interpretation. We have carefully studied the brief of appellee and we have been unable to trace the history of the legislation to the conclusion that by inaccurate amendment the legislature gave the law a retrospective effect that was not intended.

We think the pertinent clause, despite its ungrammatical construction was meant to apply retrospectively and that it should be read as if it had been written “I have not lent and will not lend” comfort to communism. We decide that the legislature did not purpose to require only that the employee swear that he would not, thereafter, consort with communists.

The appellee insists that if it be determined that the law was intended to operate retrospectively, it is then unconstitutional because no limitation is placed on the period, extending backward, during which the affiant may have aided the communist cause. We do not consider this position sound. The purpose of the oath is not only to secure loyalty in the future, but to furnish information to the employer, the state, about the applicant’s background, experience and former connections in order better to determine his fitness for the position he seeks, and certainly past disloyal conduct of a prospective employee, or want of it, would shed light on the probability of his remaining steadfast in his loyalty to the government. We think the question asked was proper and relevant, and the information sought was material. The answer being material, the affiant became subject to prosecution for perjury if he answered falsely.

We are immediately concerned neither with the right of the appellee to the position despite any contribution to communism in the remote past, nor the right of the state to decline employment because of the refusal of an applicant to take the oath, but only with the truth or falsity of the representation the appellee made. We conclude that he was properly asked about former relationship with the Communist Party and that when he answered, he was bound to answer truthfully.

We go to the last point we consider it necessary to discuss and resolve. Under informations framed like the ones here under attack, it would be quite possible for a person unknowingly to assist the Communist Party, to desist when he found he was doing so, to take the oath innocently, thinking he had corrected his mistake, and then to face prosecution on the bare facts that he swore he had not assisted the party and that actually, albeit unknowingly, he had given such advice, counsel and so on. It should be remembered that this part of the oath does not relate to membership in the party, but to support given the party by one who may or may not have been a member. A preceding clause in the oath consists of the plain statement: “I am not a member of the Communist Party.” (Italics supplied.) Considering the two clauses in their order, an employee may swear that he is not a member of the outlaw organization and follow it with the statement he has never lent aid to it and later face prosecution because the latter statement was untrue even though he may have entertained no intention to give such support and withdrew it when he discovered his error.

In Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 218, 97 L.Ed. 216, the Supreme Court passed upon the validity of a similar oath required by the laws of the State of Oklahoma. In the opinion, the court considered the question whether or not actual membership by a person in the Communist Party, regardless of the knowledge of the party’s true character, would by the fact of membership alone exclude the person from employment because of his disloyalty. The court made this comment which is relevant here: “* * * membership may be innocent. A state servant may have joined a proscribed organization unaware of its activities and purposes.” In this case the Supreme Court of the United States reversed a decision of the Supreme Court of Oklahoma, Agricultural Colleges v. Updegraff, Board of Regents of Oklahoma 205 Old. 301, 237 P.2d 131, in effect, that the ignorance or awareness of the affiant that he had aided the Communist Party was immaterial.

In the present case the reason for application of this principle is even stronger because, to repeat, appellee was not charged with having sworn falsely he had not been a member of the Communist Party, but only with having sworn falsely that he had not lent assistance to the party. Certainly it would be easier ignorantly to lend aid to the party than to belong to it while ignorant of its objectives.

It should be remembered that the oath did not contain a statement that the affiant had not been a member of the Communist Party but that he was not at the time of taking the oath. So an anomalous situation arises. The affiant must say he has not supported the party but need not say that he has not been a member.

We are impelled to the decision that the appellee would, if these prosecutions were allowed to continue, be denied the due process of law to which he is entitled under the Constitution for if all material allegations of the informations were proved by the state, he could be convicted of perjury regardless of lack of knowledge on his part when he had at some time or other subscribed in some way or other to some movement or other that was later found to be communistic in design or purpose, despite any retraction by him when he discovered he had been misinformed or misled. This, in our view would amount to subordinating the constitutional rights of the individual to the interest of the state, however worthy, in maintaining the loyalty of its servants if, in fact, it would not amount to suppressing the individual’s rights.

This conclusion does not lead us to a decision declaring the act unconstitutional because we think it is inherent in the law that when one takes the oath that he has not lent aid, advice, counsel and the like to the Communist Party, he is representing under oath that he has not done so knowingly. Garner v. Board of Public Works of City of Los Angeles, 1951, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Adler v. Board of Education, 1952, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; Gerende v. Board of Supervisors, 1951, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745.

This takes us back to the informa-tions and the particular grounds of the motions challenging the sufficiency of the allegations setting out the elements of the: crime. We have already referred to the bare averments that the appellee swore he had given no aid to the Communist Party, when he had. Though we think that it is implicit in the law that he must have been conscious of his aid to the Communist Party when he gave it, there can be no inference that he was aware of what he was doing as a substitute for a direct charge to that effect in the informations. This point was specifically made in the motions to quash and the ruling of the judge was abundantly justified by the lack of direct allegations that the appellee had knowingly lent aid, support, advice, counsel or influence to the Communist Party. Wieman v. Updegraff, supra.

In fine, we think a loyalty oath may be required without interfering with the federal government’s operations against sedition; we think the pertinent law does not offend against the Constitution; we think the act was intended to have a retrospective effect; and we think the informa-tions in this case were fatally defective for want of averments that the affiant had formerly wilfully given aid, support, advice, counsel, or influence to the Communist Party.

The orders of the Judge of the Criminal Court of Record must be upheld.

Affirmed.

TERRELL, C. J., and HOBSON, ROBERTS, DREW, THORNAL and O’CON-NELL, JJ., concur.

HOBSON, J., agrees to conclusion.


author: PER CURIAM.

text:
    In re The ESTATE of Melvin WHITTAKER, Deceased. Amelia GUNSBY, Appellant, v. Robert Melvin WHITTAKER, Jr., Appellee.
    Supreme Court of Florida.
    July 31, 1957.
    Rehearing Denied Oct. 14, 1957.
    Harry Goodmark, West Palm Beach, and Jim L. Dye of Heaton & Dye, Tallahassee, for appellant.
    George B. Mehlman, West Palm Beach, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to Rule 38 of the Rules of this Court, 31 F.S.A., and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly Ordered, Adjudged and Decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted and the judgment is

Affirmed.

HOBSON, Acting C. J., and DREW, THORNAL and O’CONNELL, JJ., and CARROLL, District Judge, concur.


author: WIGGINTON, District Judge.

text:
    The UNIVERSITY OF MIAMI, Inc., and Aetna Casualty and Surety Company, Petitioners, v. Henry MATTHEWS and The Florida Industrial Commission, Respondents.
    Supreme Court of Florida.
    Sept. 13, 1957.
    Rehearing Denied Oct. 15, 1957.

      Blackwell, Walker & Gray, W. L. Gray, Jr., and Clemen J. Ehrlich, Miami, for petitioners.
    Nichols, Gaither, Green, Frates & Beck-ham, Brigham, Black, Niles & Wright, Miami, Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondent.
   WIGGINTON, District Judge.

This case arose under the Workmen’s Compensation. Act, F.S.A. § 440.01 et seq. The Deputy Commissioner found for the claimant, respondent here, and awarded compensation for temporary total disability and medical benefits.

Petitioners seek by certiorari á review of the order entered by the Full Commission affirming the award by the Deputy Commissioner.

Among the points urged for reversal is one dealing with the statute of limitations which was interposed as a defense and vigorously asserted throughout the proceedings. It is this question alone we will treat in this opinion. Other points urged are found to be without merit.

The claimant, Henry Matthews, had been employed by the petitioner, University of Miami, for a number of years prior to the date of the accident which resulted in the subject injury. He was assigned to duty at an experimental farm where he became adept in the propagation of various plants and other horticultural activities. On October 18, 1951, while engaged in the performance of his duties, he accidentally suffered a back injury which totally disabled him for approximately one month. During this period he received his regular wages from his employer. Following the filing of a claim for compensation he received two checks from the insurance carrier which were endorsed by him and delivered over to the University. At the end of one month following his injury medical treatments were discontinued, and-he then returned to his job, afterward performing what has been characterized as-light work, but which included operating a farm tractor, lifting field boxes of avocados, as well as the grafting, budding and potting of plants. He continued performing these duties until his services were terminated in the Spring of 1956. No requests were ever made by the claimant to his employer for medical benefits subsequent to November 1951. The claimant, however, experienced pain and discomfort attributable to his injury throughout the period of his employment. In addition to this, he suffered sporadically from ulcers, asthma, toothaches and other ailments. As a result of of all such physical infirmities, he was from time to time absent from work for periods usually lasting only one or two days. Holding him in high regard as an efficient employee, and knowing the size of his family and its need for continual financial support, the University followed a policy of paying his regular wages without deduction for the times he failed to report for work. Two important facts are clearly established by the evidence, and specifically found by the Deputy Commissioner: at no time did the University have knowledge that the claimant’s absences were caused by disability arising out of the back injury he received in October 1951; and the University had no knowledge that its act in continuing to pay him regular wages, despite his periodic absences from work, constituted payment of compensation for disability relating to the 1951 injury.

In October 1955 he suffered a recurrence of the original injury, requiring hospitalization and medical attention. In March 1956, he filed claim' for compensation, stating that his condition resulted from a recent injury caused by lifting heavy avocado crates. His claim was recognized by the insurance carrier and compensation payments commenced. Following investigation by the carrier, this claim was amended so as to eliminate any reference to an injury occurring in 1955, but basing it squarely upon the original injury suffered four and one-half years previously in 1951.

The applicable statute of limitations requires that such claims be filed within three years from the time of injury, provided that if payment of compensation is made without an award, the claim may be filed within three years after the date of the last payment.

The date of the last payment of compensation due to the 1951 injury was in November 1951. The claim in this case was filed in March 1956, and petitioner contends that it is barred by the statute.

Claimant insists that since he was paid regular wages during his absences from work from the date of his original injury to the date of the filing of his present claim, such wages constitute the “payment of compensation” within the contemplation of the statute. If this be true, -the last payment to him was well within the three-year limitation period. In support of this position he relies on the Townsley case recently decided by this Court, in which the rule of law was established that payment of regular wages to a disabled employee during absence from work because of the disability will be deemed to be payment of compensation within the intent of the statute of limitations. This is on the theory that the employee is not required to file a claim for compensation .so long as his employer has knowledge of and admits liability for the injury, and continues to pay his regular salary during ihis absence from work in lieu of compensation payments under the Act. The rule in the Townsley case must be considered in light of the facts on which it is based. There the employer knew that each absence of the employee from work was for the purpose of receiving medical treatments for the injury suffered by him, which absences were directly related to the disability claimed. The rationale of the Townsley case is that in order to effectuate a tolling of the statute of limitations, the employee must not only have received his regular salary during his absences from work, but it must also be shown that such absences were due to the compensable injury from which he was suffering, and the employer must have had full knowledge of these facts. Without such knowledge by the employer, either express or implied, the period of limitation for filing claims would not be tolled and the provisions of the statute would control.

The case now before the Court is distinguished from the Townsley case in that here the claimant was periodically absent from work from the date of his injury in 1951 until the filing- of his claim in 1956, and during such absences he received his regular -wages. Some of the absences resulted from the injury suffered in 1951, but many did not. Although petitioner knew of such absences, it had no knowledge that they were related directly or indirectly to the injuries suffered by the employee in 1951. All outward appearances indicated the claimant’s disability had ceased. No demand was made upon petitioner during that period for the payment of medical benefits. Claimant did nothing to preserve whatever rights he had under the Workmen’s Compensation Act as he could have done by simply notifying his employer of the continuance of his disability. Here the claimant had no right to regard the payment of his regular wages during his absences from work as having been made under the Act. Many of such absences were due to other ailments wholly unrelated to his injury of 1951.

The Deputy Commissioner held that the Townsley case was not authority for the claimant’s position in this case, but found it “most persuasive in ascertaining the trend of thought by our Florida Supreme Court with respect to this problem.” He reached this conclusion, although he recognized in his order that the majority of jurisdictions in this country do not consider the statute to be tolled unless the employer knew or should have known that such payment of wages was payment of compensation for the disability suffered by the employee. On review of this matter by the Full Commission, it concluded as a matter of law that the issue here presented is controlled by the decision in the Townsley case, and held without qualification that the limitation period was tolled during the period when the employee was paid his regular wages while absent from work on account of disability. The Commission concluded it was not necessary for the employer to have known the reasons why the claimant was absent from work, or that such absences were due to his disability. It held that it was the duty of the employer to ascertain the reasons for the claimant’s absences, and inferentially held that by its failure to do so it was estopped to assert that the statute of limitations was not tolled.

With this conclusion we cannot agree. To follow the rule advocated by the Commission would be unfair to employers and employees alike. In any large business organization the cost of maintaining a staff of sufficient size to investigate and record the cause of absences by each employee who had suffered a known previous on the job injury in the recent or distant past would be unduly burdensome. To avoid this expense the careful employer of necessity would be required to make deductions from his employees’ wages for each absence from work in order to protect against claims which might be filed after the period of limitation has run. The law should not be construed so as to render impracticable the desirable employer-employee relationship which encourages an employer to pay his employee regular wages even though there have been infrequent absences from work, and on the assumption that the absences were for good cause not necessarily related to any compensable injury.

The Workmen’s Compensation Act is intended to be a two-way street, requiring both the employer and employee to surrender certain common law rights, but in turn conferring certain offsetting benefits. Each owes a responsibility and obligation to the other. An injured employee who is paid regular wages during an absence from work due to a compensable injury should either put his employer on notice that such absence is due to a continuance of the disability, or such absence should be under circumstances that the employer is presumed to know that this is the case. Such knowledge by the employer of the reason for the employee’s absence from work is necessary to excuse the employee for not timely filing a claim for benefits as the statute requires. If, as in this case, an employee can wait four and one-half years from the date of his injury to assert a claim for disability benefits without his employer ever having known or having had reason to know that he continued to suffer disability, or that his absences from work were a direct result thereof, then he could wait for any longer period of time that might suit his convenience. Such a situation would defeat the purpose which the statute of limitations is intended to serve.

For the reasons above stated, it is the judgment of the Court that the writ issue, and the order appealed from is accordingly quashed.

TERRELL, C. J., and HOBSON, DREW, THORNAL and O’CONNELL, JJ., concur.

      . Section 440.19, R.S.A.

      . Townsley v. Miami Roofing and Sheet Metal Company, Fla.1955, 79 So.2d 785.

      . Larson, Workmen’s Compensation Law, Vol. 2, page 272, 144 A.L.R. 610; Pittman v. Glencliff Dairy Products Co., 154 Kan. 516, 119 P.2d 470, 144 A.L.R. 600.


text:
    NORTH MIAMI ASSEMBLY OF GOD CHURCH, an unincorporated association, and South Florida District Council of the Assemblies of God, Inc., a Florida nonprofit corporation, Appellants, v. Albert M. ZIMMERMAN and Blanche M. Zimmerman, his wife, and Malbourne J. Ellington and Dorothy W. Ellington, his wife, Appellees.
    Supreme Court of Florida.
    Sept. 27, 1957.
    J. Hardin Peterson, Lakeland, for appellants.
    Glenn Bludworth, Miami, for appellees.
   PER CURIAM.

Affirmed on authority of the opinion in Wahrendorff v. Moore, Fla.1957, 93 So.2d 720, and cases therein cited.

THOMAS, Acting Chief Justice, and ROBERTS, DREW, THORNAL and O’CONNELL, JJ., concur.