text:
    Edmond WHITE, Jr., Plaintiff-Appellee, v. The TRAVELERS INSURANCE COMPANY et al., Defendant-Appellant, Fidelity & Casualty Company of New York, Intervenor.
    No. 8644.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.
    Rehearing Denied April 26, 1957.
    Theus, Grisham, Davis & Leigh, Monroe, for appellant.
    Blanchard, Goldstein, Walker & O’Quin, Shreveport, for intervenor.
    Jackson & Reynolds, Homer, for appellee.
   AYRES, Judge.

This is an action ex delicto wherein plaintiff seeks to recover damages for personal injuries sustained in an intersectional collision occurring in the Town of Haynesville, Louisiana, between a Chevrolet pick-up truck driven and operated by plaintiff at the time for his employer, a wholesale oil and gasoline distributor, and another pick-up truck of Galloway-Carson Construction Company, operated at the time by Johnnie Lyons, its agent and employee.

The Fidelity & Casualty Company of New York, plaintiff’s employer’s workmen’s compensation insurer, intervened and sought reimbursement of the compensation paid plaintiff and the medical expenses incurred as a result of his injuries, aggregating $474.

From a judgment awarding plaintiff damages in the sum of $3,500 and directing that the intervenor be reimbursed therefrom the aforesaid compensation and medical expenses, together with an attorney’s fee in the sum of $50, both plaintiff and defendants appealed. Plaintiff contends the award is inadequate and should be increased to $5,063. Defendants contend, if there is any liability, the award is excessive and should be reduced to $1,121.

On the question of liability there is only involved defendants’ plea of contributory negligence as it is conceded that the evidence sustains the finding of the trial court of negligence on the part of defendant’s driver constituting a proximate cause of the accident.

The facts as to the occurrence of this accident may be briefly stated. The accident occurred at the intersection of U. S. Highway 79 and McDonald Street in the aforesaid municipality. Traffic at this intersection is controlled by the usual traffic signal lights. According to the testimony of those who witnessed the accident, defendant’s driver was proceeding on Highway 79 at a speed of approximately 50 miles per hour as he approached the aforesaid intersection and that, although he had an unfavorable or red light, he made no effort to check his speed and slow down but proceeded forward into the intersection, despite the fact that plaintiff, proceeding on McDonald Street, had entered the intersection on a favorable or green signal. When plaintiff was some 20 to 30 feet from the intersection he saw defendant’s truck approaching at some distance away at a speed estimated by him at 50 miles per hour, but, being of the opinion the driver would obey the traffic signal, slow down and stop, plaintiff proceeded into the intersection, and, on reaching a point approximately midway thereof, his truck was struck by defendant’s truck. Following the accident, plaintiff’s truck came to rest on the west side of the highway, defendant’s on the east side.

There is no showing after plaintiff saw and realized, or after he should have seen and realized that defendant’s truck was not going to stop at the intersection so as to comply with the red signal light, he had time and opportunity to make an effort to do anything effective, such as applying his brakes, swerving his vehicle and taking another course in order to prevent the accident. Under the traffic light system a motorist proceeding on a proper signal should not be held to the same degree of care as if no such system prevailed but he is entitled to assume that the signals are understood and will be observed, and he is not required to anticipate that other motorists or pedestrians will, in violation of law, enter an intersection on an unfavorable signal. This principle is predicated on the proposition that the danger at such intersections is less than if there were no such signals and, there being less danger, less care is exacted.

Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292; Niagara Fire Ins. Co. v. Schouest, La.App., 58 So. 2d 739; Clark v. De Beer, La.App., 188 So. 517, 520; Roll Osborne & Sons, Inc. v. Howatt, La.App., 167 So. 466, 469; Buckley v. Featherstone Garage, Inc., 11 La.App. 564, 123 So. 446, 450.

Under the circumstances of this case, plaintiff, therefore, was not bound to anticipate the negligence of defendant’s driver in proceeding into the intersection against an unfavorable signal light. The impor--tance of the observance by motorists of the, rules and regulations pertaining to motor vehicular traffic in the interest of safety was emphasized by the Supreme Court in Kientz v. Charles Dennery, Inc., supra, in quoting from a dissenting opinion of the Court of Appeal in the same case, where it was stated:

“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.” 17 So.2d 506-513-514.

We are not convinced from the record as made up that plaintiff was guilty of such a dereliction of duty, or, in fact, any dereliction of duty at all that, without it, the accident would not have happened. We find no merit, therefore, in defendant’s plea of contributory negligence.

Our consideration is next directed to the principal issue presented for determination, that is, the question of the quantum of award. Plaintiff is a 55 year old negro man, of good reputation and with a good work record. As the result of the accident he sustained a cerebral concussion and a fracture of the 8th and 9th ribs on his left side, together with assorted bruises and contusions. Plaintiff, immediately following the accident, was rendered unconscious for a period of approximately four hours, was hospitalized for about seven days, and was totally disabled for the performance of his work for at least 14 weeks, during which time he was paid compensation.

The accident occurred September 20, 1955, and the trial was had June 15, 1956, at which time plaintiff continued to complain of pain and a resulting disability to perform manual labor. Plaintiff was hospitalized in the Haynesville hospital and was there examined and treated by Dr. C. O. Wolf. A report from the hospital filed in evidence showed a diagnosis of cerebral concussion, mild contusions of the left lower chest, lower anterior.

Dr. Wolf was the only physician who examined and treated plaintiff from the date of the accident until November 22, 1955, when, at the request of plaintiff’s employer’s compensation insurer, he was examined by Dr. Gene D. Caldwell, who, later, on February 11, 1956, made a second examination of plaintiff at the request of his attorneys, and subsequently, on May 29, 1956, at the request of defendant’s counsel, he made a third examination of plaintiff. Dr. S. A. Tatum examined plaintiff May 18, 1956, and continued treatment of him from that date until the date of trial.

Dr. Wolf was not called as a witness on plaintiff’s behalf notwithstanding that, pursuant to interrogatories directed to plaintiff and answered by one of his counsel, it was stated he would be called. Under this state of facts, defendant strenuously urges that plaintiff’s failure to call Dr. Wolf as a witness, or to take his testimony, be construed against him and that we invoke the presumption of law that such testimony, if taken, would have been adverse to plaintiff’s interest. This principle of law was recognized and given effect by us in Walker v. Monroe, La.App., 62 So.2d 676, 678, where we stated:

“Because of plaintiff’s failure to secure the testimony of the five physicians who examined him at his own request, and in the absence of some explanation for their non-appearance at the trial, it must be presumed that such testimony would be adverse to plaintiff. Law v. Kansas City Bridge Co., Inc., La.App.1940, 199 So. 155; Miller v. Anderson-Post Hardwood Lumber Co., Inc., La.App.1941, 3 So.2d 196; Thomas v. Maryland Casualty Co., La. App.1947, 32 So.2d 472; May v. Cooperative Cab Co., La.App.1951, 52 So. 2d 74.”

In oral argument, plaintiff’s counsel, evidently aware of the aforesaid presumption, explained the failure to secure the doctor’s testimony because his testimony would have made no substantial addition to the facts as otherwise established by the record, particularly in that it was stated the doctor did not find upon his examination that plaintiff had sustained the fractured ribs. In view of this fact, and in view of the further fact that the testimony of Dr. Gene D. Caldwell, who examined plaintiff first on behalf of the intervenor, then on plaintiff’s own behalf, and, lastly, on behalf of the defendant, is contained in the record, we deem it unnecessary to remand the case for the purpose of taking the testimony of Dr. Wolf. It is, therefore, observed that Dr. Caldwell’s testimony was relied upon by all parties at interest in this cause.

Dr. Caldwell, who qualifies as an orthopedic surgeon, on his first examination found that plaintiff had sustained fractures of the 8th and 9th ribs on his left side, healing of which was incomplete at that time. No permanent disability was anticipated but it was thought that within four to six weeks thereafter plaintiff’s recovery would be complete. Fractures of ribs were said by the doctor to produce severe pain, and on the occasion of his first examination pressure applied to the affected areas produced pain. On the second examination the fractures were found to be healed and plaintiff’s recovery complete, except as to plaintiff’s complaint of pain, for which the doctor could find no basis. On the third examination the doctor again found no objective symptoms of any injuries or residual disability, and, from tests made, concluded that plaintiff was neither suffering pain nor disability.

Dr. S. A. Tatum was of the opinion, based on his examinations and information gained through treatment of plaintiff over a period of a few months, that in the healing of the fractures the nerves adjacent to the fractures may have become imbedded in the callus formations surrounding the fractures, which he said could have produced the. pain from which plaintiff continued to complain. The doctor did not state that such was a fact; it was a matter of conjecture. Therefore, we do not consider this theory of the case was established by any degree of preponderance of evidence. We have reached the same conclusion as to the doctor’s opinion that plaintiff suffered 20 percent impairment of the hearing in one ear. The doctor, by his own statement, is not a specialist in this field of medical practice, and, according to his own admission, the tests made by him were inconclusive. The doctor indicated if he could continue to treat plaintiff he would refer him to a specialist. Neither was it established, if such a disability existed in plaintiff’s ear, that such was caused by the accident.

In our consideration of all the evidence appertaining to plaintiff’s injuries and the pain and suffering as a consequence thereof, we have come to the conclusion that the award as made by the trial court is excessive and out of proportion with awards for comparable injuries. We think, for the injuries sustained by plaintiff and for the pain and suffering as a result thereof, $1,-500 would be an adequate award, and for the loss of wages during 14 weeks at $30 per week, or a total of $420, would sufficiently cover that item. In addition, an allowance should be made of the medical expenses incurred, which we calculate from the record to be $298.

For the reasons herein assigned, the judgment appealed is amended by reducing the award to $2,218 and, as thus amended, the judgment is affirmed, plaintiff to pay the cost of appeal; all other costs to be paid by defendants.

Amended and affirmed.


source: Caselaw Access Project

author: . AYRES, Judge. .

license: Public Domain

text:
    Mrs. Mary MATRANGA, Plaintiff-Appellee, v. Epes B. HILMAN, Defendant-Appellant.
    No. 8649.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.
    Rehearing Denied April 26, 1957.
    Louis Lyons, Bossier City, for appellant.
    Jackson, Smith, Mayer & Kennedy, Shreveport, for appellee.
   . AYRES, Judge. .

This is an action in tort wherein plaintiff seeks to recover damages for personal injuries sustained November 13, 1954, while descending a flight of stairs at the premises located at 3064 Hollywood Avenue in the City of Shreveport, Louisiana, when she fell through a defective step of the stairs.

Made defendants were Porter v. Webb, who was alleged to have been the lessor, and Epes B. Hilman, the owner of said premises. An exception of no cause of action was urged on behalf of Webb and sustained. No appeal was taken from that judgment.

The trial court, however, after trial on the merits, found that Hilman was liable as owner in damages for the injuries sustained by plaintiff. Accordingly, there was judgment in plaintiff’s favor for $250 for the personal injuries sustained and for $46.50 for medical expenses incurred on account of such injuries. ' From this judgment defendant Hilman appealed and plaintiff has answered the appeal, praying that the award be increased to $1,000.

The facts are not in dispute and may be briefly stated. On November 13, 1954, plaintiff visited her son’s upstairs apartment on the aforesaid premises, access to which was by means of outside stairs, having a width of 38 inches, and the supports of which were constructed of timbers of the size of 2" by 12". Each of the treads of the stairs was constructed of three 2" x 4" yellow pine lumber. In descending the stairs with her son’s baby on her right arm and while holding to the stair railing with her left hand, on stepping on one of the treads, the middle 2x4 broke under her weight, producing a space or resulting in a hole between the two remaining 2 x 4’s, such hole or space having a width variously estimated at from 5Yz to 7 inches, through which plaintiff’s right leg slipped. The stairs were painted, concealing a knot in the middle 2x4, which knot weakened the timber to such an extent as to break under a weight when plaintiff stepped on it. As a result, plaintiff sustained painful bruises to her right leg, both below and above her knee.

These additional facts are undisputed: That defendant Hilman was the owner of the premises when the accident occurred; that plaintiff was rightfully on the premises, and that the tread in question was defective.

Plaintiff predicates her claim upon the provisions of LSA-C.C. Arts. 670 and 2322, which read as follows:

“Art. 670. Everyone is bound to keep his buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passengers, under the penalty of all losses and damages, which may result from the neglect of the owner in that respect.”
“Art. 2322. The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.” ■

By virtue of these articles an owner of a building is obligated to respond in damages to any person rightfully on the premises, who is injured by an accident resulting either from the owner’s negligence to make repairs or from a vice or defect in the original construction of the building. Klein v. Young, 163 La. 59, 111 So. 495; Heath v. Suburban Building & Loan Association, La.App., 163 So. 546; Byrd v. Spiro, La. App., 170 So. 384; Tesoro v. Abate, La. App., 173 So. 196; Morris v. Hava, La. App., 180 So. 216; Hughes v. Abate, La. App., 2 So.2d 68; Robinson v. Fossett, La. App., 33 So.2d 546.

Particularly appropriate here is the expression of the Supreme Court in Klein v. Young, supra [163 La. 59, 111 So. 497], relative to the aforesaid Codal provisions; wherein it was stated:

“Article 670 makes every owner of a building liable in damages to any neighbor or passer-by who is injured by the fall of any part of the building, through negligence on the part of the owner to keep his building in repair. Article 2322 makes every owner of a building answerable in damages to any person who is injured—either while rightfully inside or while outside of the building—by an accident resulting either from the owner’s neglect to repair the building or from a vice or defect in its original construction.”

Defendant contends, however, he had no notice or knowledge of the defect in the stairs, the breaking of one of the treads of which precipitated plaintiff’s fall. This is not available as a defense to plaintiff’s action under the well established jurisprudence that the owner of the building is liable to one legally on the premises for damages caused by a defective condition of the building, even though it is occupied by tenants and the owner has no knowledge of the defects. Byrd v. Spiro, supra; Roppolo v. Pick, La.App., 4 So.2d 839; Thiel v. Kern, La.App., 34 So.2d 296; Champagne v. Hearty, La.App., 76 So.2d 453, and Green v. Billa, La.App., 86 So.2d 578.

Neither is it available as a defense by the owner of a building that the defects are latent. Such was the holding in Thiel v. Kern, supra [34 So.2d 298]. There the court stated:

“But we consider it a matter of no importance whether Miss Thiel is to be classified as the lessee or as a third person, or whether the landlords had or had not notice or knowledge of the defectiveness of the premises, for the law is well settled that the owner of property is liable to a tenant or to a third person rightfully on the premises, being without fault, injured as a result of an accident caused by defects in the building, whether the defects are latent or not.”

See also: Heath v. Suburban Building & Loan Association, supra; Staes v. Terranova, La.App., 4 So.2d 453.

In Hanover v. Brady, La.App., 148 So. 267, 268, we find this expression:

* * * the liability of the house owner to a licensee or passerby is made to depend upon negligence, the mere fact that the building is defective is in itself proof of that negligence, and this, whether the defect is apparent and easily discoverable, or is such as would not be noticed except upon careful inspection.”

It was likewise held in Barnes v. Beirne, 38 La.Ann. 280, that neither ignorance of the condition of the building nor the circumstance that the defect could not be easily detected can be successfully urged as a defense by the owner in an action wherein damages are sought in accordance with the provisions of LSA-C.C. Arts. 670' and 2322.

Finally for consideration is the matter of plaintiff’s injuries and the determination of an award to adequately compensate her therefor. On the third day following the accident, plaintiff called at the office of Dr. Albert I. Clark of the City of Shreveport for examination and treatment. The doctor found on his examination that plaintiff had suffered contusions and abrasions in the vicinity of the right thigh extending over an area approximately six inches in diameter. The outer surface of the affected parts was described as one big mass of bruised area. The patient was seen by the doctor again on November 30, 1954,. December 3rd and 14th, 1954, when improvements were noted, especially on the latter date, when she showed considerable improvement.

The evidence is that plaintiff suffered ncc unusual or excessive pain as a result of this accidental injury nor for any, prolonged! period of time. From an examination of February 4, 1954, made by Dr. S. W. Boyce at the request of defendant’s counsel, he testified that plaintiff had attained complete recovery from her aforesaid injuries. There was no showing of any permanent injury or disability involved.

We do think, however, that the award made by the trial court is inadequate as compensation for the injuries, pain and suffering sustained by the plaintiff and that an award of $500 would more nearly meet the ends of justice and is not excessive.

Accordingly, the judgment appealed from is amended 'by increasing the award to $546.50, and as thus amended the judgment is affirmed at appellant’s cost.

Amended and affirmed.


author: HARDY, Judge.

text:
    Edgar W. NAVE, Plaintiff-Appellee, v. J. A. CONVILLE, Defendant-Appellant.
    No. 8658.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.
    Rehearing Denied April 26, 1957.
    Campbell & Campbell, Minden, for appellant.
    McConnell & McConnell, Springhill, for appellee.
   HARDY, Judge.

This is a suit for damages sustained by plaintiff’s automobile as the result of a collision with a horse owned by defendant, who was alleged to be guilty of negligence in permitting the animal to roam at large in violation of an ordinance of the Town of Springhill, Webster Parish, Louisiana, and in further violation of LSA-R.S. 3:2851. From a judgment in favor of plaintiff in the principal sum of $140 the defendant has appealed.

There is little dispute with reference to the facts surrounding the collision and we think they have been clearly established. The accident occurred early in the afternoon of October 5, 1953, on West Main Street in the Town of Springhill, at which time plaintiff was driving his automobile west at a moderate rate of speed. A pick-up truck driven by defendant’s wife, who was accompanied by her father, I. I. Caswell, was proceeding east on Main Street. In the rear of the truck sat a Negro man holding the lead rope of a horse belonging to Mr. Caswell, and following the truck and the led horse was the offending animal, the property of defendant. Frightened by traffic defendant’s horse ran into the path of plaintiff’s automobile, reared up on the car and upon disentangling himself gave vent to one of the now rare expressions of contempt in which all horseflesh unquestionably holds the representatives of the motor age by soundly kicking the offensive vehicle. As the result of this collision and the contemptuous maneuver of defendant’s horse, plaintiff’s automobile sustained damages to the left front light, the windshield and the body amounting to the sum of $140.

Defendant resists plaintiff’s demands by denying negligence in connection with defendant’s ownership ,of the animal or with respect to its actions and, alternatively, by pleading contributory negligence on the part of plaintiff.

We dismiss the plea of contributory negligence without the necessity for discussion, being of the firm opinion that the testimony overwhelmingly exonerates plaintiff from any act of negligence in connection with the accident.

Nor do we think there is any substantial support for the contention that no fault or negligence attributable to defendant was established in connection with the fact that his horse at the time was running loose. The facts bearing upon this defense are un-contradicted. Defendant’s horse, together with the horse owned by his father-in-law, was kept in the pasture of Mr. J. W. Burns, the grandfather of defendant’s wife. Sometime during the night before the accident the horses escaped from the enclosure in which they were confined. We point out in this connection that no negligence attributable to defendant is shown. Early on the morning of October 5th Mrs. Conville’s grandmother, Mrs. Burns, called her and notified her of the animals’ escape. Defendant being absent from home at the time in connection with his business, Mrs. Conville and her father, Mr. Caswell, proceeded, in the pick-up truck, to search for the horses, and found the animals put up in an enclosure on the property of a Mr. Boyt (or Boyett). Enlisting the services of a Negro man, Neil Ellison, Mr. Caswell succeeded in catching his horse but was unable to catch and tether the Conville horse. It was decided that Mrs. Conville would drive the truck on home, the Caswell horse, held by a lead rope, following the truck, in the hope that the Conville animal would follow. This arrangement worked most successfully until the occurrence of the incident above described.

Counsel for defendant argues that under the circumstances defendant’s horse was not being negligently permitted to run at large and that any fault was merely an error of judgment in the course of an emergent operation. We might be constrained to look with more favor upon this contention were it not for the fact that the evidence discloses beyond question, that the animals were safely confined when located by Mrs. Conville and Mr. Caswell. There is not the slightest showing of any necessity for their immediate removal from the enclosure in which they had been put up, and, under this circumstance, it follows that the attempt to toll a loose horse through the streets of the Town of Springhill was an unnecessary and negligent act. This being so, we are at a loss to ascertain any ground upon which the liability for such negligence can be avoided.

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


text:
    Louis BROWN, Plaintiff-Appellee, v. YELLOW CAB COMPANY OF SHREVEPORT, Inc., Defendant-Appellant.
    No. 8642.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.
    Love & Rigby, Shreveport, for appellant.
    Wilkinson, Lewis, Wilkinson & Madison, Shreveport, for appellee.
   HARDY, Judge.

This is a suit for personal injuries sustained by plaintiff while a passenger in a cab of defendant. Liability was admitted by the latter and the only question which was presented to the trial court and is under consideration on this appeal is the quantum of damages. Upon opening of trial defendant tendered the sum of $500, which tender was refused by plaintiff. After trial there was judgment in favor of plaintiff in the sum of $1,000, from which defendant has appealed. Plaintiff has answered the appeal, seeking an increase in the amount of the judgment to $5,000.

Plaintiff, Louis Brown, a resident of Kansas City, Missouri, employed by the Kansas City Southern Railway as a dining car chef, while a passenger in one of defendant’s cabs on the evening of December 27, 1953, sustained physical injuries as the result of a collision in which the cab was involved. The principal injuries as alleged and contended by plaintiff consisted of damage to the ligaments of the xiphoid process of the sternum, a painful lumbo-sacral strain and aggravation of a preexisting arthritic condition of the lumbo-sacral spine.

Plaintiff’s claims of damage comprehended loss of wages, pain and suffering ■ and a resulting permanent partial disability.

The record contains the testimony, by deposition, of Dr. Alexander Lichtor of Kansas City, for plaintiff, and the written report of an examination by Dr. Paul D. Abramson of Shreveport, which was introduced by defendant.

Counsel for defendant-appellant urges the reduction of the award on the ground that same was excessive and insists that the tender of $500 was not only adequate but generous, under the circumstances. Counsel for plaintiff urges the inadequacy of the award.

Before proceeding to a consideration of the factual issues, we find it necessary to dispose of an objection, interposed by counsel for defendant, to the admission and consideration of the deposition of Dr. Lichtor on the ground that the record does not - disclose the fact that the witness is licensed to practice medicine in the State of Louisiana, and, as a result, his testimony as a medical expert should not have been received. Counsel’s objection is based upon the provision of LSA-R.S. 37:1284 relative to certain restrictions with respect to unlicensed physicians, the pertinent portion of which section of the revised statute reads as follows:

“Unlicensed physicians shall not * * * be allowed to testify as a [sic] medical or surgical expert in any court * * *1’

So far as we can determine, the question is res nova, although it has been touched upon in two cases in the jurisprudence of the State, namely, State v. Howard, 120 La. 311, 45 So. 260, and Cascio v. Standard Oil Company of New Jersey, La.App., 32 So.2d 66.

The Howard case involved a question as to the admissibility of the expert testimony of a Dr. Kearney, a resident of Powhatan, Louisiana, who admittedly had not passed the State Board of Medical Examiners and did not possess a certificate recorded in any parish of this State as required by Act 49 of 1894. A similar objection to the admissibility of the testimony of medical witnesses in the Cascio case was disposed by the court on the ground that the doctors involved were not testifying as experts.

In the instant case the deposition of Dr. Lichtor, which is sought to be excluded by the objection, discloses that he is a resident of Johnson County, Kansas; received the degrees of Bachelor of Arts from the University of Missouri in 1939, Bachelor of Science from the same institution in 1940, Doctor of Medicine from the University of Chicago in 1942; served an internship, 1942 to 1943, in Michael Reese Hospital in Chicago; was in the service of the United States Army Medical Corps, 1943 to 1946; studied in the Graduate School of the University of Wisconsin from June to December, 1946; spent the year 1947 in England at the Royal National and the Robert Jones Orthopedic Hospitals; was with the Massachusetts General Hospital in Boston from January to June of 1948, and the Michael Reese Hospital, Chicago, from July, 1948 to June, 1950; began practice in Kansas City in 1950; was a member of the Jackson County Medical Society, the Missouri State Medical Association, the American Medical Association, the Southern Medical Association, a Diplómate of the American Board of Orthopedic Surgery, and a Fellow of the International College of Surgeons. At the time of giving his deposition the witness maintained offices in Kansas City and was a member of the staffs of the Menorah Hospital and the Research Hospital.

In the face of the above representation of education, training, experience and professional qualification we are truly disposed to feel that the objection, at best, constitutes a super-technical contention which is scarcely deserving of consideration. However, in deference to counsel who has seriously urged the objection and in view of the fact, as above observed, that the point does not seem to have been disposed by our courts, we proceed to further consideration thereof.

The source of LSA-R.S. 37:1284 is found in Section 17 of Act 56 of 1914. With due respect to the distinguished redactors of the Revised Statutes we feel that the appropriate section of the original act, being clearer, more comprehensive and more exactly worded, provides a better guide for an interpretation of its intent and purpose. We therefore quote the entire section as follows:

“Section 17. Be it further enacted, etc., That any practitioner of medicine, in any of its departments, failing to comply with the requirements of this act, shall not be exempt from jury or military duty, nor be permitted to collect any fees or charges for services rendered, nor be allowed to testify as a medical or surgical expert in any court in this State, nor execute any certificates as a physician or surgeon, nor to hold any medical office, nor to be recognized by the State or parish or municipal corporation as a physician or surgeon; nor shall he be entitled to enjoy any of the privileges, rights or exemptions granted to physicians or surgeons by the laws of this State.”

It is further pertinent to observe that the title of Act 56 of 1914 specifically defines its general purpose:

“To regulate the practice of medicine, surgery and midwifery, in the State of Louisiana; * * (Emphasis supplied.)

Clearly, if the witness in this case, Dr. Alexander Lichtor, the admissibility of whose testimony was brought into question by the objection, had been a resident of the State of Louisiana at the time and had not been qualified under the laws of this state to practice medicine, as evidenced by a proper certificate, the objection would be valid. But to say that a member of the medical profession, duly qualified under the laws of his own state, who has treated a litigant, also a non-resident, is disqualified from testifying in the courts of the State of Louisiana would be to extend extra-territorial implications to a law which is clearly defined and intended to regulate the practice of medicine within the State. We find nothing in the statutes which indicates that this was an intended purpose, nor that it should be accorded an unintended application. It follows that the trial judge quite properly considered the testimony and thus, by implication, overruled the objection.

Proceeding to a consideration of the merits of the case, it is established that plaintiff was not examined nor treated by a physician until after his return to Kansas City. The injury occurred on December 27th, the private car upon which plaintiff was employed left Shreveport on December 29th and arrived in Kansas City on the morning of December 30th. On December 31st plaintiff consulted Dr. Lichtor and again on January 4th. The doctor’s examination disclosed tenderness indicating a soft tissue injury to the xiphoid process of the sternum, and a soft tissue injury in the low back area. Another examination was made by the same physician on June 6, 1955, at which time he did not find any serious change in plaintiff’s condition. X-rays of plaintiff taken on the occasion of these several examinations were essentially negative with the exception of what appeared to be an indication of hypertrophic changes of the lateral edges of the lumbar vertebrae. The treatment prescribed consisted of medication and a steel support for the abdomen and back, which support plaintiff testified he was still wearing at the time of the trial, almost two years subsequent to the accident.

Sometime during the summer of 1954, at the direction of his counsel, plaintiff was examined by Dr. T. M. Oxford of Shreveport, a specialist in orthopedic surgery, and plaintiff testified that Dr. Oxford gave him a thorough examination and made x-rays. Dr. Oxford was not called as a witness on behalf of plaintiff, and, as counsel for defendant correctly contends, it must be presumed that his testimony, if adduced, would have been adverse to plaintiff’s contention of disability. This presumption was noted by the trial judge in his written .opinion.

The report .of Dr. Abramson, based upon an examination of plaintiff in February, 1954, indicates little objective evidence of back injury and indicates only the possibility of traumatic aggravation of his preexisting arthritic condition.

The lay testimony by plaintiff and two of his co-workers adds little, if anything, to the general picture.

Summarizing all the testimony of both medical and lay witnesses, we conclude plaintiff has established a certain degree of injury to the soft tissues in the area of the sternum and to the lumbar area of the back. But we further determine that these have not been established as being, in any sense, permanent or disabling. Payroll records of plaintiff’s employer, the Kansas City Southern Railway, reflect plaintiff’s steady employment since the date of the accident. In this connection we note that plaintiff has completely failed to establish any claim for loss of wages attributable to his injuries.

In short, we find plaintiff is entitled to be compensated only for some temporary pain and suffering, of short duration, which was not serious in nature or degree, and for a period of inconvenience, discomfort, and a minimum of pain attendant upon the performance of his ordinary duties in the course of his employment over a period of some two years. We have not been impressed overmuch by plaintiff’s claims as the record clearly indicates that they have been grossly exaggerated.

Taking into consideration all the facts of the case we cannot conclude that the award of $1,000 is either inadequate or excessive. It follows that the judgment appealed from should be, and it is hereby, affirmed at appellant’s cost.


author: GLADNEY, Judge.

text:
    Earley BAILEY, Plaintiff-Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Defendant-Appellee.
    No. 8641.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.

      Lawrence L. May, Jr., John Paul Wood-ley, Shreveport, for appellant.
    Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for appellee.
   GLADNEY, Judge.

Earley Bailey sues for workmen’s compensation as a result of an injury to his back, sustained on June 28, 1955, while employed by the J. A. Jones Construction Company as a brick tender. Made defendant is the Aetna Casualty & Surety Company, the workmen’s compensation insurer. After trial, where the only issue presented was as to the duration and extent of the injury received, there was judgment awarding compensation for a period of fifteen weeks. From this judgment, plaintiff has appealed seeking an award for four hundred weeks’ disability and the defendant has answered the appeal, asking that plaintiff’s demands be rejected in toto.

At the time of injury Earley Bailey was twenty-six years of age and weighed in excess of two hundred pounds. On the date of the accident while plaintiff was standing inside an upper floor of Selber Brothers Department Store, then being erected in Shreveport, Louisiana, and lifting bricks over the outside wall of the building, a cinder block on which he was standing turned under him as he lifted a load of brick in his brick tongs, and he fell to his knees and experienced severe pain in his back.

The employee was examined for diagnostic purposes by three physicians, two orthopedists and two neurosurgeons, during which examinations several sets of X-ray pictures were taken. These examinations were made between June 28, 1955, and June 6, 1956. The opinions and findings of the medical examiners were without any substantial differences, and with striking uniformity disclosed there was nothing clinically wrong with Bailey other than a lumbosacral sprain from which there was a normal recovery. Dr. J. S. Sanders alone testified to the existence of muscle spasm after July 26, 1955, but he did not find it present after September 12, 1955. The X-ray pictures showed the existence of asymmetrical articular facets which are of congenital origin and were described as “little side joints between the fifth lumbar vertebra and the top of the sacrum.” There was some testimony that these asymmetrical facets could create an unstable condition of the back with possibility of a more frequent recurrence of back sprain, but none of the medical witnesses testified the congenital condition of plaintiff’s back was in anywise affected by the accident, although it was testified the condition possibly could prolong disability from the sprain. Dr. Ford Macpherson was of the opinion on July 9, 1955, Bailey presented a case of hysteria and suggested psychiatric treatment. Plaintiff, in fact, received some observation and attention for this neurosis from a neurosurgeon, Dr. Heinz K. Faludi. On a later examination Dr. Macpherson thought the hysteria had disappeared. This condition, however, is not an issue in the case. The preponderance of the medical evidence was to the effect that a lumbosacral sprain normally should clear up in from three to six-weeks. Dr. T. R. Simpson concluded on July 26, 1955, that plaintiff had fully recovered and released Bailey so that he could return to work. Compensation payments were made up to this date for a period of four weeks.

Plaintiff testified that following- his discharge by Dr. Simpson, he reported back to work with his employer on three different occasions, but each time he worked only for short periods and finding that he was unable to perform the duties required of him without substantial pain, he left his employment. Thereafter he performed no further work until October 11, 1955, at which time he applied to the Coastal Plains Supply Company where he had previously worked, and received a job driving a cement mixing truck and performing other duties involving manual labor. Occasionally his work required him to unload sacks of cement weighing ninety-four pounds each. Plaintiff was so employed constantly for a period of seven months until found to be suffering from a venereal disease, whereupon he was discharged in accordance with a policy of his employer in such cases.

In addition to the medical evidence the record contains the testimony of several co-workers and some of his neighbors, and that of his wife. The effect of this testimony is that plaintiff was still complaining of his back at the time the case was tried and was unable to perform the same kind of work he could do prior to the accident.

Counsel for plaintiff argues the evidence as a whole indicates that although plaintiff can and does perform the same kind of work as that which he was performing at the time of the accident, that such work is accompanied by substantial pain, and, therefore, he is entitled to workmen’s compensation as for total and permanent disability. The defendant, on the other hand, contends that the testimony of plaintiff is unreliable; that his complaints were exaggerated; that there were discrepancies in the history given to some of the examining doctors; and that he gave false answers in an employment questionnaire when he applied for work with the Coastal Plains Supply Company. The defendant presented also the testimony of Edward Mauldin, who was Bailey’s foreman or superintendent, that at no time did the employee complain of back pain while working as a truck driver or laborer during his employment. Defendant also points out that compensation was paid to July 26, 1955, at which time, according to Dr. Simpson, plaintiff was fully able to return to his work with the J. A. Jones Construction Company. Further, it is argued the medical testimony substantially shows there were no objective symptoms to indicate anything was wrong with plaintiff’s back, other than the sprain.

The judge a quo, noting the testimony that a lumbosacral sprain of a normal back should clear up in from three to six weeks, but that in a case of an individual with asymmetrical facets the recovery period may be extended, awarded compensation to October 11, 1955. This date was fifteen weeks after June 28, 1955, the date the accident occurred. The court’s conclusion that the employee had fully recovered as of October 11, 1955, is predicated to a considerable extent on the fact that Bailey worked steadily and without any complaint to his new employer for a period of seven months, before being released because of a venereal infection. It is also pointed out by the court that Dr. C. S. Holt, who examined plaintiff on October 11, 1955, found no clinical evidence of any back injury and no complaint to the doctor was made by plaintiff of any such injury. Bailey testified he gave Dr. Holt false answers relating to his accident and resulting injury because he was determined to secure a job.

It is argued seriously by counsel for plaintiff that the medical testimony supports the contention that the sprain which plaintiff sustained in the accident aggravated the asymmetrical facets in plaintiff’s spine. However, we conclude, as did the trial judge, that none of the medical witness’es went so far as to say that the congenital condition was affected by the accident, but some indicated that the presence of such a condition might prolong the period of recovery from a back sprain. This factor was taken into due consideration by the judge a quo in the judgment which allowed plaintiff compensation to October 11, 19SS.

It as well recognized that the burden of proof to establish his claim in a workmen’s compensation suit rests upon plaintiff, and probability, conjecture and possibility may not serve as a basis for judgment in such a case. Davis v. Swift & Company, La.App.1953, 68 So.2d 670; Roberts v. M. S. Carroll Company, Inc., La.App., 1953, 68 So.2d 689; Green v. A. C. Campbell Construction Company, Inc., La.App., 1955, 78 So.2d 54. It is equally well settled that the Louisiana Workmen’s Compensation Law does not disqualify from its benefits a worker who is unable to perform the regular and usual duties of his previous occupation without hardship, pain and discomfort, and such a worker is classified as totally disabled within the purview of the statute. Estilette v. United States Fidelity & Guaranty Company, La. App., 1 Cir., 1953, 64 So.2d 878; Reed v. Calcasieu Paper Company, Inc., La.App., 1 Cir., 1955, 80 So.2d 588; Williams v. Southern Advance Bag & Paper Company, Inc., La.App., 2 Cir., 1956, 87 So.2d 165. Also settled by our jurisprudence is the principle that a plaintiff is considered totally disabled within the Louisiana Workmen’s Compensation Act if he is unable to perform heavy physical labor similar to that in which he was engaged when injured, even though he might be able to perform light work without discomfort. Brown v. International Paper Company, La.App., 1 Cir., 1952, 58 So.2d 557; Johnson v. Cabot Carbon Company, Inc., La.App., 2 Cir., 1955, 84 So.2d 639; Nubles v. Texas Gas Transmission Corporation, La.App., 2 Cir., 1954, 72 So.2d 565; Cummings v. Albert, La.App., 1 Cir., 1956, 86 So.2d 727.

Plaintiff received no medical treatment after October 11, 1955, the date on which he met the physical requirements for employment with Coastal Plains Supply Company. On that date Dr. C. S. Holt gave him an examination for the purpose of determining his fitness for the contemplated employment. According to plaintiff’s own statements he was not suffering from any injury and his answers to his employer’s questionnaire negatived any complaints relating to his back. Plaintiff then worked without interruption for a period of seven months prior to the trial of this case. The job involved manual labor of a sort as difficult as that of a brick tender. Although fellow employees testified plaintiff complained of his back during this period, this testimony was refuted by Bailey’s immediate supervisor who testified Bailey never complained of his back during the seven months period.

In awarding compensation to October 11, 1955, we are of the opinion that the District Court was liberal in the award and accorded ample weight to the testimony, both medical and lay, tendered in support of plaintiff’s disability. We agree in the conclusions reached.

For the foregoing reasons the judgment from which appealed, is affirmed.


author: AYRES, Judge.

text:
    Tom HUNTER et al., Plaintiffs-Appellants, v. Autrey F. JAMES et al., Defendants-Appellees.
    No. 8646.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.
    Goode & Mayo, Shreveport, for appellants. '
    Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for appellees.
   AYRES, Judge.

This is an action in tort occasioned by a collision between a truck and a Pontiac automobile at the intersection of Louisiana Highways 1 and 2 in Caddo Parish, Louisiana, occurring about 7:00 o’clock, p. m. October 2, 19SS. The truck owned by James, insured by the National Surety Corporation, was driven and operated at the time by Robert R. Dickey, James’ employee. All three were made defendants. The Pontiac was owned and driven by Leonard Hunter, one of plaintiffs. His sister, Gracie Hunter, while a guest in his car, sustained injuries in the accident from which she died. Her father, Tom Hunter, the other plaintiff, sued for damages on account of her death. Leonard Hunter sought to recover for the damages sustained to his automobile. Defendant James reconvened for damages sustained by his truck.

From a judgment rejecting their demands and awarding defendant James judgment on his reconventional demands against the plaintiff, Leonard Hunter, both plaintiffs have appealed.

The accident, as aforesaid, occurred at the intersection of State Highways 1 and 2. The former runs in a general north and south course and the latter in a course generally east and west, and from the west intersects the former at a 90 degree angle, forming a dead-end or “T” intersection. The truck, loaded with clay tile pipes, was traveling south on Highway 1 and the Pontiac north on the highway following a Buick automobile.

Defendant Dickey was charged with negligence in driving at an excessive rate of speed, failing to keep a proper lookout, or to apply his brakes or to sound his horn or to give any other warning signal, and in driving on the wrong side of the highway. These charges of negligence were denied by defendants. Counter-charges of negligence in the identical specifications were made against Leonard Hunter, in addition to which Hunter was charged with negligence in operating a motor vehicle while he was under the influence of intoxicating liquor and in driving at an excessive rate of speed, which were alleged to constitute the sole and proximate cause of the accident, or, in the alternative, that such negligence constituted contributory negligence on the part of Hunter barring and precluding recovery by him.

Independent and contributory negligence was charged to Gracie Hunter, the deceased, in that she allegedly voluntarily entered the car a few minutes before the collision occurred, knowing that the driver was intoxicated and, therefore, unfit and incapable of driving the automobile with safety.

More specifically, plaintiff, Leonard Hunter, was charged with negligence in attempting a sudden left-hand turn across the path of defendant’s truck, without giving any signal of his intention to do so, when defendant’s truck was in full view, approaching the intersection on its side of the road and when Hunter suddenly swerved his vehicle to the left in front of the truck.

There is presented here primarily a question of fact. In our review of the record, we not only failed to find any manifest error in the judgment appealed but are convinced that it is eminently correct. These facts are either conceded or were established by the evidence as to obviate any serious dispute. On the Sunday afternoon of this accident plaintiff, Leonard Hunter, and his deceased sister, accompanied by six others, riding in two cars, four to the car, drove from Shreveport to Oil City, where they consumed intoxicating liquor. One of the party had obtained in Gas Center, Texas, that morning, bootleg liquor. The party decided, on leaving Oil City, upon a trip to Texas for a similar purpose. Whereupon they left, the Buick convertible being driven by Robert Green, followed by the Pontiac driven as aforesaid by Leonard Hunter. As they approached the intersection with Highway 2 leading to their destination, Green testified of slowing down and giving a signal of his intention to make a left turn, but, seeing the near approach of defendant’s truck, followed by one or two automobiles, he either further slowed down or stopped, whereupon Leonard Hunter swerved his Pontiac to the left and into his left-hand lane of traffic and headed head-on into defendant’s truck as he attempted a left-hand turn in front of the truck. The point of impact was south of the center of the intersection and in the truck’s lane of travel.

There was no evidence substantiating any of the charges of negligence made against the defendant, Dickey. On the contrary, it is established that when Hunter drove out in front of the truck, the truck was barely 50 feet away, which afforded him neither time, space nor opportunity to do anything effective to avoid the accident.

Particularly applicable is that general rule laid down in LSA-R.S. 32:236, which provides, in part, that:

“The driver of any vehicle upon a highway of this state, before starting, stopping or turning from a direct line shall first see that such movement can be made in safety * *

That left turns are particularly dangerous and hazardous maneuvers and should be made with extraordinary care is a proposition well established by an impressive array of cases, citation of which is usually unnecessary due to the general acceptation of this principle. Autenreath v. Southern Mercantile Co., 81 So.2d 168.

See also Sullivan v. Locke, La.App., 73 So.2d 616, 623, where it was stated:

“The jurisprudence is replete with authorities that the operators of motor vehicles who desire to make left turns carry the responsibility of being certain that the movement can be made in safety and, therefore, without danger to normal overtaking or oncoming traffic. See McBroom v. Chavis, La. App., 62 So.2d 177, and the authorities therein cited.”

The situation here was such as to require the defendant, Leonard Hunter, to exercise the utmost caution. He saw, or should have seen, the Buick ahead of him, which he knew to be headed for State Highway 2, the same as he, slow down and/or stop before attempting a left-hand turn. He knew, or should have known, there was some reason.or basis therefor, for which he should have been placed on notice and on guard. On the contrary, however, without using any precaution seemingly whatsoever, he drove to the left of the Buick automobile into his left lane of traffic apparently without looking or maintaining a proper lookout for oncoming or approaching traffic in that lane or, at least, heedless and reckless in that regard. No conclusion appears logical from the record other than that the accident was due solely to the fault and negligence of the plaintiff, Leonard Hunter. Neither is there any serious question of doubt as to Leonard Hunter’s state of intoxication, which evidently was a factor to be reckoned with in his failure to keep and maintain a proper lookout before attempting a left-hand turn when the condition of traffic made it highly dangerous and unsafe for him to do so.

In reaching the conclusion that Leonard Hunter was solely at fault and that in the occurrence of the accident defendant Dickey was free from negligence, it becomes unnecessary that we determine the charge of contributory negligence made against the deceased party, Gracie Hunter.

The extent of the damage done to defendant’s truck was stipulated by the parties. From the conclusions reached herein, defendant James should recover judgment therefor. We find no error in the judgment appealed and it will, therefore, be affirmed.

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

Affirmed.


text:
    John G. GIBBS, Plaintiff-Appellant, v. Mrs. Mattie W. Booth STANFILL et al., Defendant-Appellee.
    No. 8651.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.

      John G. Gibbs, Natchitoches, for appellant.
    Henry W. Bethard, III, Coushatta, W. Peyton Cunningham, Natchitoches, for ap-pellee.
   HARDY, Judge.

This is an action for damages, allegedly resulting from the wrongful acts of defendants, instituted in the Tenth Judicial District Court in and for Natchitoches Parish, Louisiana. An exception to the jurisdiction ratione personae was filed on behalf of the defendants, based upon the representation that all defendants were nonresidents of the Parish of Natchitoches. The exception was sustained and there was judgment dismissing plaintiff’s suit, from which he has appealed.

Plaintiff’s petition alleges him to be the sub-lessee of a certain described ten acre tract of land located in Natchitoches Parish, Louisiana, under a lease originally executed by the defendant, Mrs. Mattie W. Booth Stanfill as lessor.

For the purpose of considering the merits of the plea to the jurisdiction it is pertinent to note that plaintiff’s petition charges the defendants with dispossessing plaintiff and with “conniving” with his tenant; with interference with his possession; the taking of possession of the leased property, and participation in a conspiracy between defendants and plaintiff’s tenant which has resulted in difficulty in the collection of rentals.

The petition further alleged that the property is located, the breach of the lease contract occurred, and the defendants took possession of the property in Natchitoches Parish.

The only issue tendered in the instant case involves an interpretation as to the applicability, vel non, of the exception to the general rule of jurisdiction or venue providing that a defendant must be sued at his domicile, which exception is found in Article 165(9) of the Code of Practice, reading as follows:

“Trespass. In all cases where any person, firm or domestic or foreign corporation shall permit trespass, or do anything for which an action for damage lies or where any domestic or foreign corporation shall fail to do anything for which an action for damage lies, such person, firm or corporation may be sued in the parish where such damage is done or trespass committed or at the domicile of such person, firm or corporation.”

It must be conceded, upon the basis of well established jurisprudence, that the exceptions provided by law which permit institution of suits in places other than that of a defendant’s domicile are in derogation of common rights and must be strictly construed. It follows that unless plaintiff in the instant case, through the allegations of his petition, has clearly brought himself within the provisions of the exception, defendants are not properly subjected to the jurisdiction of the district court of Natchi-toches Parish.

Counsel for defendants contend that plaintiff’s itemized statement of damages as set forth in his petition are obviously based upon a claim for breach of contract. The alleged claims, to which reference is made, as incorporated in plaintiff’s petition, read as follows:

“Rent uncollectible or nearly so $ 375.00
“Arbitrary breach of contract 1,000.00
“Slander, libel and unnecessary work 500.00”

We do not regard the manner in which plaintiff has phrased his itemized claims as being controlling in the face of the affirmative allegations of his petition to which we have above referred.

The interpretation of the word “trespass”, as used in the ninth paragraph of Article 165, was clearly set forth in the opinion of the Supreme Court in Tripani v. Meraux, 184 La. 66, 165 So. 453, 456, which specifically declared that the word is used in the broad sense “of committing any wrongful act that injures another, and not in the technical sense of committing a trespass upon the property of another.”

The interpretation is supported by numerous pronouncements in cases which have arisen both before and since the Tripani case, and has been recently reiterated in the opinion of the Supreme Court in White v. Lockhart, 229 La. 611, 86 So.2d 397.

Under the broad construction of the term “trespass” we think plaintiff’s petition in the instant case has clearly alleged the commission of wrongful acts which would bring the question of jurisdiction within the explicit terms of the exception to the general rule.

Another distinction which has been sometimes considered deals with the question as to whether the injurious act has been an act of commission or omission. In the instant case we believe the representations of plaintiff’s petition clearly denominate the acts of defendants as being those of commission and therefore there is no necessity for consideration of this somewhat tenuous differentiation.

Where the acts complained of give rise to an action for damages it seems quite clear to us that the responsible parties may be sued in the parish where such damage is done. Under the allegations of the petition we think the observation of Mr. Chief Justice Fournet in his succinct dissenting opinion in the Tripani case, supra, is completely appropriate:

“The provisions of the article are very explicit and unambiguous and the strictest construction thereof possible cannot change the meaning of the most clear provisions of the article.”

For the reasons assigned the judgment appealed from is annulled, set aside and reversed; defendant’s plea to the jurisdiction is overruled, and the case is remanded to the Honorable Tenth Judicial District Court of Louisiana, in and for the Parish of Natchitoches, for further proceedings. Costs of this appeal are taxed against defendants-appellees, and it is ordered that the fixing of all other costs await final determination hereof.


text:
    Claude Daniel McCULLIN, Plaintiff-Appellant, v. STATE of Louisiana, Defendant-Appellee.
    No. 8656.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.
    Charles O. Hardey, Shreveport, Mecom, Scott & Despot, Shreveport, for appellant.
    Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, W. C. Pegues, Jr., Philip K. Jones, Baton Rouge, for appellee.
   AYRES, Judge.

This is an action for damages for personal injuries allegedly sustained by plaintiff and directed against the State of Louisiana through its Department of Highways under authorization of Act 110 of the Legislature of Louisiana for the regular session of 1954.

Plaintiff’s action arises from an accident which allegedly occurred on the afternoon of June 8, 1952, on a State graveled highway in Caddo Parish, Louisiana, bearing State number C-2025 and locally known as the Caddo Lake Dam Road, between the towns of Dixie and Mooringsport, Louisiana, when plaintiff, accompanied by his wife, two minor children and E. J. Landry, while driving a Plymouth automobile at an estimated speed of not more than 25 miles per hour, struck a sink or depression in the highway above a culvert and a double series of depressions, holes or ruts, varying in length from three to eight feet, with depths extending to as much as eight inches and having various widths to as much as three feet, on the sides of which were mounds of earth approximately five to six inches high, and as a result of which plaintiff was thrown violently against the left door, his head behind the left ear striking the door, rendering him unconscious and eventually throwing him from the car, which thereafter overturned.

In the aforesaid accident, plaintiff allegedly suffered a broken back, a severance of the tenth thoracic vertebra, severance of the spinal cord, permanently paralyzing him from his waist down.

In this action, the State filed a plea of vagueness, which was sustained, with leave to amend, which was accomplished by a supplemental petition. Thereafter, defendant filed an exception of no cause or right of action, which was likewise sustained, with leave to amend. Pursuant to this action of the court, plaintiff filed other supplemental and amended petitions. In fact, an examination of the pleadings reveals that, in all, four supplemental petitions were filed, two of which were responsive to the plea of vagueness and two in an effort to satisfy the objections raised in the exceptions of no cause or right of action. Eventually and finally, the exception of no cause and of no right of action was sustained and plaintiff’s suit dismissed. From that judgment plaintiff has appealed.

Defendant’s exceptions are predicated on two premises, (1) that no negligence is alleged, that is, the allegations of the condition of the road do not set forth any facts evidencing a condition constituting negligence, and (2) there is no showing of actual or constructive notice on the part of the State of such alleged defects in the highway. Additionally, defendant urges there is an affirmative showing of contributory negligence on plaintiff’s part barring and precluding his recovery.

Defendant’s first contention, we think, is clearly untenable. In addition to the detailed and minute description of the defects allegedly existing in the highway, as briefly summarized hereinabove, the very fact that plaintiff, who was driving over said highway at a very moderate rate of speed, was so shaken up as to be rendered unconscious and eventually thrown from the car, which thereafter overturned, lends considerable support to the allegations of plaintiff’s petition there were some radical defects in the highway at that point. Plaintiff has alleged, as aforesaid, defects in detail in the highway of such magnitude and character and of such severity as to and did, allegedly, cause the accident.

While highways need not be maintained in a perfect condition of repair, there is a duty upon the officers and employees of the Department of Highways to use ordinary and reasonable care as to inspection and repair so as to keep them in a reasonably safe condition. Moreover, the Department of Highways is under an obligation to the traveling public in the construction and maintenance of highways to maintain an efficient system of inspection so that they will be kept in a reasonably safe condition at all times. Hogg v. Department of Highways of State of Louisiana, La.App., 80 So.2d 182.

The defects in the bridge in the case of Preuett v. State, through Department of Highways, La.App., 62 So.2d 686, were no more dangerous than the defects alleged to exist in the instant case. ■ There the flooring of the bridge was constructed of creosoted timbers laid with cracks between, and on being covered with gravel, the gravel sifted through, leaving ridges on top of each of the timbers, the whole constituting a corrugated surface, the ridges of which were only four to six inches high. That condition of the bridge caused the driver to lose control of the steering wheel of his truck and as the result of which the accident occurred.

From plaintiff’s allegations in the instant case, no other conclusion appears plausible than that the section of the highway complained about was not maintained in a reasonable and safe condition for public use. Whether this condition was due to a failure to maintain an adequate inspection system or to a failure to properly maintain the highway or to make necessary repairs, the result is the same- — there would be a dereliction in duty in someone charged with the responsibility. This could only be placed on the officers and/or employees of the Department of Highways.

As we understand and appreciate the allegations made by plaintiff, he alleged that the aforesaid dangerous conditions in the highway were permitted to exist for as long a period as 60 to 90 days, or even as long as six months, notwithstanding there was a weekly inspection made of the road and that it was dragged regularly every two weeks. We do not attach the importance to the allegations pertaining to the dragging of this road as did defendant’s counsel and the trial court, who interpreted the allegations to mean that plaintiff, by so alleging, alleged the fortnightly repair of the highway. Nowhere does plaintiff allege that the dragging of the road constituted the repair of the defects complained of. In the absence of such an allegation, we are unable to presume or conclude that the allegations had that effect.

It is strenuously and forcibly urged that plaintiff’s petitions do not sufficiently charge the Department of Highways or its officers and employees of either actual or constructive knowledge of the alleged dangerous conditions in the highway. A study of the pleadings fails, in our opinion, to support such a conclusion. For instance, it is alleged, as explained hereinabove, that the defects constituting a dangerous and hazardous condition in the highway actually existed; that such conditions were permitted for a period of time ranging from 60 days to six months prior to the accident, and that no repairs were made over a period of said six months, notwithstanding weekly inspections and fortnightly dragging of the road. These allegations are allegations of fact and, from a reasonable construction, no other conclusion could be reached other than that the alleged facts showed the officers and employees of the Department of Highways had actual knowledge of the allegedly existing defects. This, with the general allegation that the defendant had actual and constructive notice of the dangerous condition of the road, affords the defendant no reasonable ground for complaint that plaintiff’s petitions failed to allege knowledge of the conditions in the Department of Highways through its officers and agents.

Neither do we find any merit in, defendant’s contention that plaintiff affirmatively alleged a state of facts showing that he was guilty of contributory negligence constituting a proximate cause of the-accident. The contention is seemingly based on plaintiff’s failure to allege he applied his brakes after seeing the depressions in the highway, although alleging he removed his foot from the accelerator. The allegations of the petitions do not make it clear that he should have applied his brakes or that it was necessary that he do so. For this contention to be sustained under an exception of no cause of action, the allegations must clearly and unmistakably allege facts from which it must, or could only be, concluded that plaintiff's own negligence contributed as a proximate cause to the occurrence of the accident.

The Supreme Court, in Gibbs v. Illinois Cent. R. Co., 169 La. 450, 125 So. 445, laid down a general rule with respect to the sufficiency of petitions in actions ex delicto where allegations are made which inferentially disclose contributory negligence on the part of plaintiff. In giving this rule effect, the Court of Appeal for the Parish of Orleans, in Burmaster v. Texas Pacific-Missouri Pacific Terminal R. R. of New Orleans, 174 So. 135, 139, stated:

“We understand that doctrine to mean that an exception of no1 cause of action can never be meritoriously pleaded to a petition sounding in damages for personal injury or death on the ground of contributory negligence of the plaintiff, unless its charges are such as to exclude every other reasonable hypothesis other than that the sole and proximate cause of the accident was due to the contributing fault of the plaintiff.”

This rule has been followed in subsequent cases, among which arc: Dodge v. Bituminous Casualty Corporation, 214 La. 1031, 39 So.2d 720; West v. Ray, 210 La. 25, 26 So.2d 221; Hardtner v. Aetna Casualty & Surety Co., La.App., 189 So. 365; Cuneo v. Waddell, La.App., 189 So. 619.

Where the allegations of a petition relied upon to sustain an affirmative defense were susceptible of a conclusion other than that of contributory negligence, the courts have resolved this doubt in favor of the plaintiff and have overruled the exceptions. West v. Ray, supra; Gibbs v. Illinois Cent. R. Co., supra; Gerald v. Standard Oil Co. of Louisiana, 204 La. 690, 16 So.2d 233.

From these authorities it could only be concluded that an affirmative defense presented through exceptions or motions, triable only on the face of the petition, should not be sustained unless the allegations exclude every reasonable hypothesis other than the premise upon which the defense is predicated. In the instant case, the affirmative defense presented does not meet this test.

We are not concerned at this instant whether plaintiff may or may not sustain by proof the allegations upon which he bases his claim. We are rather only concerned as to whether his allegations are sufficient to state a cause of action in support of which he may be permitted to offer proof. We think the allegations are sufficient to meet the objections urged.

Accordingly, the judgment appealed is annulled, avoided, reversed and set aside, and it is now ordered, adjudged and decreed that the exception of no cause and of no right of action be and the same is hereby overruled and, accordingly, this cause is remanded to the Honorable the First Judicial District Court in and for Caddo Parish, Louisiana, for further proceedings in accordance with law and consistent with the views herein expressed.

Reversed and remanded.


author: TERRELL, Chief Justice. DREW, Justice

text:
    Nellie Cocowitch POWELL and Clifford J. Cocowitch, Appellants, v. Susie May COCOWITCH, Clyde C. Long, The Commercial Bank and Trust Company of Ocala, Edna Cocowitch Merriken, Ida Cocowitch Treadwell, Harry C. Cocowitch, and Mamie Cocowitch Young, Appellees.
    Supreme Court of Florida, En Banc.
    March 13, 1957.
    Rehearing Denied May 13, 1957.
    Ervin & Buford, Tallahassee, for appellants.
    Greene, Ayres & Greene, Ocala, for ap-pellees.
   TERRELL, Chief Justice.

John Franklin Cocowitch, citizen of Marion County, died testate in January 1944. He left surviving his widow, Susie May Cocowitch, and six children, Nellie Cocowitch Powell, Clifford J. Cocowitch, Edna Cocowitch Merriken, Ida Cocowitch Treadwell, Harry C. Cocowitch and Mamie Cocowitch Young. In his will, probated a few days after his death, disposing of a valuable estate John Franklin Cocowitch named his widow and Clyde C. Long, vice-president, trust officer and stockholder of Commercial Bank and Trust Company of Ocala, Florida, as executors of his estate. The will directed the executors and trustees to convert into cash “as soon as may be feasible and desirable” all of the property of the estate, pay all costs of administration and other expenses, then distribute the income and principal in equal shares among the widow and children and pay to the widow at monthly or quarterly intervals “during the period of preliminary administration of my estate” moneys for her support, such amounts not to be charged to her one-seventh share. The will clothed the trustees with broad powers to sell, invest and reinvest at their discretion but not to unduly prolong the administration and final distribution of the estate.

This suit was brought by Nellie Coco-witch Powell and Clifford J. Cocowitch against the widow, the other four children, Clyde C. Long and the Commercial Bank and Trust Company as defendants. The complaint, later amended, prayed that the present trustees of the estate be removed and that others be appointed in their stead, direct the trustees to pay into the corpus of the estate all unauthorized and misappropriated amounts, naming them, direct the new trustees to forthwith declare a substantial dividend from cash on hand, reserving only such funds as may be essential to pay incidental expenses, enter a judgment in favor of the new trustees against Susie May Cocowitch, Clyde C. Long and the Commercial Bank and Trust Company for all sums found to be due from them to the corpus of the estate, allow a reasonable attorneys’ fee from the corpus of the estate for plaintiffs’ attorneys and for other relief.

In their answer defendants denied the material allegations of the complaint as amended and moved to dismiss. The cause was set for final hearing and disposition on plaintiffs’ motion for summary final judgment, including all pending motions which had reference to allegations and admissions in the amended complaint, including concessions, waivers or admissions made by plaintiffs at the hearing.

On consideration the chancellor made the following findings:

“That Plaintiffs’ counsel took occasion during his argument to withdraw specifically and finally any and all charges of intentional wrongdoing or bad faith on the part of the defendant trustees.”

By letter dated December 7, counsel for plaintiffs made the following waivers :

“I wish to waive or amend plaintiffs’ prayer for relief contained in their Amended Bill of Complaint in the following respects:
“1. Plaintiffs waive relief prayed for in paragraphs (b) (1) and (b) (3).
“2. Plaintiffs amend or reduce the sum stated in paragraph (b) (2) from $8,056.41 and interest to $7,340.81 and interest, and they do waive relief prayed for in said paragraph in excess of the figure last above stated, together with interest.
“3. Plaintiffs waive any claim for relief against the defendant The Commercial Bank and Trust Company of Ocala and consent to an order dismissing said defendant as a party.
“4. Plaintiffs waive their prayer for the actual removal of defendants Susie May Cocowitch and Clyde C. Long as trustees but do not waive any claim for relief prayed against said defendants except and unless herein otherwise specifically stated.
“5. Provided this matter is concluded on plaintiffs’ Motion for Summary Final Decree plaintiffs waive the relief prayed for in paragraph (i), but not otherwise.”

We think as did the chancellor that waivers removed much of the substance of the prayer for relief. Under the will the trustees had broad discretion in handling all the affairs of the estate, paragraph 4 being as follows:

“It being my desire, instruction and direction that they shall not be forced or required to dispose of any of the properties belonging to my estate except at such time or times as in their sole discretion may seem advantageous and wise so to do. My said executors and/or trustees are hereby fully authorized and empowered by me to carry on after my death, at the risk of my estate and not at their risk, any and all business or businesses, enterprises, undertakings or pursuits that I may be engaged in at my death until such time as in their sole discretion the same may be advantageously disposed of.”

Other provisions of the will released the executors or trustees from any liability for loss that may be occasioned by any act or acts done pursuant to the provisions of the will including misfeasance or nonfeasance not amounting to bad faith or wilful wrongdoing. There is no charge of bad faith or wilful wrongdoing that we can find support for in the record. In fact, for all the record shows it looks as if the trustees made an earnest attempt to administer the estate faithfully. The original and the amended complaint were accordingly dismissed and this appeal was prosecuted.

Appellants contend (1) that their amended complaint as modified by letter of attorney dated December 7 stated a cause of action and that the chancellor committed error in granting the motion to dismiss; (2) plaintiffs’ motion for summary final decree should have been granted in its entirety or in part since the affidavits, pleadings, interrogatories and answers on file showed a genuine issue of material fact; (3) the chancellor committed error in awarding attorneys’ fees to counsel for defendants.

In our view a study of the complaint, waiver of intentional wrongdoing and intentional bad faith removed most of the material questions from the picture. Even in the absence of waiver, the language of the will could have compelled this conclusion of the chancellor as to most material questions. This conclusion is fortified by a study of the manner in which the trustees handled the estate. The testator expressed great confidence in those he designated to administer his estate and nothing is pointed out to indicate maladministration, extravagance or bad management. It is true that the estate had been in the hands of the trustees, sometimes called executors, for about eleven years but in view of the duties imposed on them and the manner in which it was done, we find nothing to show a want of diligence or bad faith.

As to the charge of unwarranted expenditures on the homestead remaining after the waivers made by the plaintiffs detailed supra, they represented payments for eradication of termites in August 1950 in the amount of $482.50, repairs to the homestead in December 1950 in the amount of $2,073.31, and further repairs and remodeling in June 1953 in the amount of $4,785. It appears that these improvements were made by the trustees in the exercise of a reasonable discretion vested in them by the will. We think tire will, paragraph five showing the testator’s concern for the widow or life tenant, warranted making the improvements. It is shown that the widow surrendered her dower rights which redounded to the benefit of the children who inherited the homestead subject to the widow’s life estate. It was not a case in which a life tenant made improvements on the estate and charged them to the remainder-men. In this case the improvements were made from trust funds in the hands of the trustees, which they had a discretion to use for that purpose. They imposed no charge on the interest of the remaindermen. In this case all remaindermen were on knowledge of the improvements and objected to none of them until 1953 after all of the work had been completed. It is further pointed out that the homestead was included in the original appraisal of the assets of the estate for tax purposes even though it was not an asset for purposes of administration and that for convenience the subsequent returns continued to list the homestead, its value being increased in 1953 to the extent of $4,785 represented by the last expenditure for remodeling. No extravagance or mismanagement is charged and the interest of the life tenant and that of the remaindermen required that the improvements be made. The point does not appear to have been previously litigated in this state but the following authorities support this view: 2 Thompson on Real Property, Perm.Ed. Section 804; In re Schummers’ Will, 210 App.Div. 296, 206 N.Y.S. 113, affirmed 243 N.Y. 548, 154 N.E. 600; In re Hoyt’s Estate, 236 Pa. 433, 84 A. 835; Bond v. Hill, 37 Tex. 626; Hooker v. Goodwin, 91 Conn. 463, 99 A. 1059.

As to the objection to payment of attorneys’ fees to defendants’ attorneys, it is not charged that the amount awarded was unreasonable. The objection to them is not well taken. We also are of the view that the amount awarded was modest for the services rendered and whether or not there was a prayer for them is not material, though we think the better practice is to ask for them in the complaint. McCaskill Co. v. Dekle, 88 Fla. 285, 102 So. 252; Baruch v. Giblen, 122 Fla. 59, 164 So. 831; Saliba v. James, 143 Fla. 404, 196 So. 832. These cases point the rule that fixing attorneys’ fees is largely in the discretion of the court, that evidence as to amount of a reasonable fee may be considered but that it is not conclusive and that the court may under proper circumstances reduce the amount allowed.

In this case defendants were executing a trust imposed in them; they were involuntarily in court and no wrongdoing has been shown. We think the fees awarded were warranted by law so the judgment appealed from is affirmed. We have not indulged in a discussion of other questions raised because it would require a lengthy opinion that would serve no useful purpose.

Affirmed.

HOBSON, THORNAL and O’CON-NELL, JJ., concur. ■

DREW, J., dissents.

THOMAS and ROBERTS, JJ., not participating.

DREW, Justice

(dissenting).

1. I don’t think the trustees had any authority to spend any portion of the corpus for making capital investments on the homestead without the express consent of the' ultimate beneficiaries.

2. I cannot agree that the exculpatory clause in the will relieved the trustees of liability for expenditures of the corpus or capital improvements to the homestead nor for losses arising out of unduly prolonging the administration.

3. I find no basis in the pleadings for the award of attorneys’ fees nor any evidence in the record concerning what would constitute a reasonable fee even if one were authorized.

4. I think there were material issues of fact properly raised by a beneficiary who was entitled to raise them and that the cause should proceed to the taking of testimony.


author: CHARLES A. LUCKIE, Associate Justice. THOMAS, Justice

text:
    Nellie Dregne FLAGLER, Appellant, v. Harold G. FLAGLER, Appellee.
    Supreme Court of Florida, En Banc.
    April 17, 1957.

      Miller, Hewitt & Cone, West Palm Beach, for appellant.
    Burns, Middleton, Rogers & Farrell, West Palm Beach, for appellee.
   CHARLES A. LUCKIE, Associate Justice.

Harold Flagler secured a divorce from Nellie Flagler in January, 1949, obtaining service on her 'by publication. At the time of the divorce Nellie Flagler was alleged to be a resident of Wisconsin. Also, at the time, she was pregnant and was delivered of a female child on September 4, 1949. On November 19, 1949, Harold Flagler executed his will in which he made no reference to the minor child or to his former wife, but left the bulk of his estate to his then wife, Juanita Flagler. In January of 1950 Nellie Flagler petitioned the court to have the divorce decree set aside and to compel Harold Flagler to support the child. In the latter proceeding Harold denied the paternity of the child and objected to any allowance for the child’s support. The court denied Nellie’s petition to set aside the divorce, but held that Harold did not overcome the legal presumption that he was the father of the child. Harold was ordered to pay $300.00 per month for the support of the child. He made all payments until his death on January 6, 1955. Juanita Flagler has been duly appointed as administratrix of Harold’s estate in Illinois and is now the ancillary executrix in Florida of Harold’s last will and testament and of his estate, which is valued in excess of $400,000.00.

Thereafter, Nellie Flagler, claiming that neither she nor the minor child have any funds whatever, petitioned the lower court to substitute Juanita Flagler, as ancillary executrix, for Harold Flagler as the ob-ligor under the support decree, and for a decree requiring the ancillary executrix to continue to make payments for the support of the child until the child reaches her majority. The lower court ruled against Nellie Flagler and followed an earlier decision of this court in the case of Guinta v. Lo Re, 159 Fla. 488, 31 So.2d 704, holding that the obligation of the father to support the minor child terminated upon the death of the father.

Nellie Flagler has appealed, asserting that helpless minor children should be given the full protection of equity courts and that, to hold otherwise in this instance, would create manifest social injustice and cast the child upon public charity rather than requiring the estate of the father to support the child. Appellant also urges that the case of Guinta v. Lo Re, supra, turned largely on a procedural point and that such case should be either distinguished or overruled.

We readily agree that minors in divorce cases are wards of the court and should receive every protection consistent with the law. But we cannot agree that courts of equity have any right or power under the law of Florida to issue such order it considers to be in the best interest of “social justice” at the particular moment without regard to established law. This court has no authority to change the law simply because the law seems to us to be inadequate in some particular case. The right of a parent to disinherit his children seems to be firmly rooted in our law, subject only to the provisions of the Rrobate Act or such other laws as the legislature may enact.

This court does not necessarily prefer to protect the father’s power of testamentary disposition rather than the welfare of the child, but the court does feel that only the legislature has the authority to enact laws dealing with this problem. It is significant that at the next session of the legislature following our decision in Guinta v. Lo Re, supra, Section 733.20, Florida Statutes, was amended to provide for the support of any dependent minor child from the estate of a parent dying testate, when there is no legally responsible surviving natural or adoptive parent, such amendment being “designed to afford reasonable protection to any dependent minor child who has been excluded from the provisions of the parents’ will under circumstances which deprive it of an effective legal substitute for the continuing obligation of the parent, while living, for support and maintenance during the period of its minority.” Chapter 25274, Laws of Florida, Acts of 1949, § 733.20(j), Florida Statutes 1955, F.S.A. Apparently it was not the intention of the legislature to place a dependent minor child in whose favor a support decree was in existence at the time of a parent’s death in a preferred position over a dependent minor child not having the benefit of a support decree.

Lacking authority of law to hold that the ancillary executrix may be compelled to carry out the terms of the support decree under the facts and circumstances hereinabove outlined, we can do nothing but affirm the lower court.

Affirmed.

HOBSON, and ROBERTS and THOR-NAL, JJ., concur.

TERRELL, C. J., and THOMAS and O’CONNELL, JJ., dissent.

THOMAS, Justice

(dissenting).

In 1949 Harold G. Flagler and Nellie Dregne Flagler were divorced and subsequently, in 1952, a decree was entered by which Harold G. Flagler was required to pay his former wife $300 each month for the support of the infant daughter of the parties. About six years after the divorce the father died leaving a large estate. Meanwhile he had married Juanita Flag-ler who is now ancillary executrix. Neither the mother nor the child was a beneficiary and it is claimed that both are without funds.

The appellant undertook to have the ancillary executrix substituted for the father as obligor under the support decree and her effort was unavailing. Upon her petition for such relief the chancellor issued an order commanding the ancillary executrix to show cause why the substitution should not be made, hut upon reconsidering the matter on the answer containing a motion to quash the rule was discharged.

The motion was based on the ground that the claim on behalf of the child terminated with the father’s death; it was granted on the ground that the question was resolved by the decision in Guinta v. Lo Re, 159 Fla. 448, 31 So.2d 704.

The problem is the propriety of the ruling that the ancillary executrix could not be made amenable to the decree against the testator.

Before considering the immediate question, a brief chronology of the relevant events and proceedings ending in the order under review should he given. The appellant and the testator were divorced 20 April 1949. At that time the appellant was pregnant and her child was born 4 September 1949. No provision was made in the divorce decree for the support of the child. On 19 November 1949 the testator executed a will in which the child was not mentioned. In a subsequent proceeding, initiated 31 January 1950, the appellant unsuccessfully undertook to have the decree of divorce set aside and in that suit the issue of the paternity of the child was presented. The court held that the defendant, the testator, had not overcome the presumption that he fathered the child, specifically declared him the father and ordered him thenceforth to pay the support money to which we referred at the outset. The testator obeyed the order until he died 6 January 1955.

It is time now to consider the lone question already stated and the conclusiveness of the opinion in Guinta v. Lo Re, supra.

In that case the court dealt with a claim against an estate for support payments that were in arrears at the time of the ob-ligor-testator’s death and for such payments that would accrue until each of the children reached her majority. An attempt was made to secure an adjudication of the amounts due and to become due.. The chancellor held that claim to future-payments was uncollectible; that matured installments could be recovered but only in an action at law so he transferred the-cause to the law side of the court for determination of that part of the demand.

In the appeal only the validity of the claim for future payments was adjudicated. The court, with two members dissenting, tersely ruled: “Upon death the obligation under this decree ended.” The remainder of the opinion treated of procedure but in it the court intimated that the proper way to present the matter was to have the executrix substituted as a party in the original proceeding, as was done in the instant case, instead of instituting a new-suit, as was done in that one.

The decision, and the underlying principles which are emphasized by the present, facts should be examined carefully. A woman has the care of a seven-year-old; daughter and both of them are penniless. The father recognized and obeyed the or--der to pay a certain amount monthly and; only death halted the payments. The care-of the child was his responsibility and the-intervention of death did not terminate-the need for sustenance that was likely to. continue for another fourteen years. The-only alternatives are to put the burden on someone not obligated to bear it, or on-, the public. The estate, valued at $400,000,. would go to those who doubtless are sensible of no responsibility for the care of the child, legal or sentimental.

It is impossible for me to agree, despite my deference to former colleagues who concurred in the opinion in the cited case, that although it is the duty of courts of equity to protect infants and to regard them as wards of the court, we should doggedly adhere to the common law rule that a father’s death terminates his liability to support his minor children.

The dissimilarity between the law of England and the law of Florida in respect of the responsibility of the father for the sustenance of his minor child relieves this court of any hesitancy in departing from the holding in Guinta v. Lo Re, supra. In England apparently the father even in his lifetime was not legally bound to support his minor children. The obligation was only moral. Edelman v. Edelman, 65 Wyo. 271, 199 P.2d 840, 203 P.2d 952. Besides the general duty of courts of equity, to which I just referred, power is expressly reposed in the courts to make orders relative to the care and maintenance of children in adjudicating suits for divorce, Sec. 65.14, Florida Statutes 1951, and F.S.A., and by statutory law a man who deserts his children or withholds from them means of support may be punished by fine or imprisonment in the state prison, Sec. 856.-04, Florida Statutes 1951, and F.S.A. Moreover, to show the furtherance of this principle, the legislature in 1955 enacted the “uniform reciprocal enforcement of support law” to “improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto,” Chapter 88, Florida Statutes 1955, F.S.A. In the act “ ‘[djuty of support’ includes any duty of support imposed or imposable by law, or by any court order,” Sec. 88.031(6), Florida Statutes 1955, F.S.A., and the law was designed to reach obligors outside of the state who become obligated in the state and to promote reciprocity in such respect between this state and each of the others.

It seems to me illogical to hold that as the father under English law is not’ legally bound to support his minor children and his estate is not accountable after his death, still the English law is' applicable after the death of the father although in this state he is legally bound to support his minor children before his'death. •

We should in my opinion, depart from the holding in Guinta v. Lo Re, supra, and align this court with the Supreme Courts of California, Taylor v. George, 34 Cal. 2d 552, 212 P.2d 505; Michigan, Creyts v. Creyts, 143 Mich. 375, 106 N.W. 1111; and Wyoming, Edelman v. Edelman, supra, rehearing denied 65 Wyo. 295, 203 P.2d 952. See also 18 A.L.R.2d 1126.

Obviously, the necessity in a case such as this does- not cease at the time of death; the period during which a child seven years of age will require food and shelter is not coextensive with the father’s earthly existence.

I find it necessary to register an unqualified dissent.

TERRELL, C. J„ and O’CONNELL, J., concur.


author: PER CURIAM.

text:
    HOLLYWOOD, Inc., a Florida Corporation, et al., Appellants, v. L. O. HANSEN, Tax Assessor for Broward County, et al., Appellees.
    Supreme Court of Florida, Division B.
    March 27, 1957.
    Rehearing Denied April 24, 1957.
   PER CURIAM.

Affirmed.