author: TATE, Judge.

text:
    Elza FONTENOT, Plaintiff-Appellant, v. R. L. MYERS, d/b/a Myers Garage, Defendant-Appellee.
    No. 4320.
    Court of Appeal of Louisiana First Circuit.
    Jan. 2, 1957.
    Rehearing Denied March 25, 1957.

      Tate & Tate, Mamou, for appellant.
    Guillory & Guillory, Eunice, for appellee.
   TATE, Judge.

While roping cattle at work for defendant Myers on April IS, 1955, plaintiff Fontenot allegedly sustained a rope burn on his left hand which due to subsequent complications, remains disabling. Plaintiff appeals from judgment dismissing his suit for workmen’s compensation benefits.

The District Court’s reasons for judgment, in full, are:

“The evidence shows that if, as a matter of fact, the plaintiff was injured while in the employ of the defendant, the injury was received while engaged in working with cattle which were owned by the defendant and kept at a place separate from that of defendant’s main business, an automobile wrecking and junk yard.
“The plaintiff was employed to sell parts from wrecked automobiles which had been purchased by the defendant and placed on his junk yard. The plaintiff’s salary was $5.00 a day or $30.00 a week and a house to live in.
“It is the Court’s impression from the testimony that the cattle operation was separate and distinct from the junk yard and the plaintiff’s connection therewith was under a separate agreement under which the plaintiff was to milk and look after the cattle, for which he received half of the milk.
“Consequently, the Court is of the opinion that there should be judgment in favor of the defendant and dismissing plaintiff’s suit.”

The uncontradicted facts reveal that plaintiff was employed by Myers, the defendant, at a daily wage of $5 a day. He worked a 10-hour day, from two to three hours on a farm belonging to the defendant, and approximately seven hours a day in a junk yard, operated and owned by the defendant. In addition to the cash wage, plaintiff received free housing at the junk yard site and retained approximately three quarts of milk per day from the defendant’s cows.

Plaintiff’s employment in the junk yard consisted of selling parts from wrecked automobiles, some of which he would remove with small hand tools from the junked cars. In the morning and in the late afternoon, plaintiff went to defendant’s farm, which was approximately a mile or two away from the junk yard, to milk 1-2 cows belonging to the defendant, and to feed approximately 60 other cattle.

Whether defendant’s affirmative answer on Tr-16 to a long question lumping all of plaintiff’s alleged duties indicates an intentional response admitting plaintiff’s performance of such undoubtedly hazardous duties at the junk yard as operating defendant’s wrecker, delivering parts, etc., is disputed by counsel (but of Tr-132, where defendant Myers admitted plaintiff had the use of defendant’s truck around the junkyard) ; but is in our view immaterial, since LSA-R.S. 23:1035 specifically provides that the Louisiana workmen’s compensation act “shall also apply to every person performing services arising out of and incidental to his employment in the course of his employer’s trade, business, or occupation in the following hazardous trades, businesses and occupations: The operation, construction, repairs, removal, maintenance and demolition of * * * junk yards * * * (Italics ours.)

Whether comparatively hazardous or not, the work of selling and dismantling junked parts is “a part of the principal physical operations of a business which the act specifically designates as hazardous” so as to entitle an employee injured in the course of these duties to compensation, Malone, Louisiana Workmen’s Compensation Law, Section 98 et seq., quoted p. 116. The Legislature has specifically declared •that the business of operating a junk yard ■is hazardous and that the employees engaged therein are protected by the compensation act. It is not open to the courts to ■question this classification, or to attempt to segregate the ordinary work involved in such operation into hazardous and non-hazardous duties, and then affirm the coverage of the act as to one and deny it to the other.

But the employee in the present case was not injured in the performance of the duties which can be attributed specifically to operation of the junk yard.

We cannot agree that the cases cited can be relied upon to support the District Court’s legal conclusion and the defendant’s astutely argued contention that because the cattle operations of the defendant were separate and distinct from the business of the junk yard, plaintiff ipso facto cannot recover compensation for injuries sustained in the cattle operations.

Mitcham v. Urania Lumber Company, La.App. 2 Cir., 185 So. 707, and Caldwell v. George Sproull Co., La.App. 2 Cir., 164 So. 651, affirmed 184 La. 951, 168 So. 112, are simply authority for the proposition that when an employer maintains two businesses, one hazardous and the other nonhazardous, an employee engaged to perform duties solely in the non-hazardous business and injured at said work cannot recover compensation simply because his employer maintains other and separate operations covered by the act. Brownfield v. Southern Amusement Company, 196 La. 73, 198 So. 656, simply holds that occasional performance of hazardous duties by one employed in a non-hazardous business does not render compensable an accident sustained in the performance of non-hazardous duties.

Thus, in the present case, if Fontenot had been employed solely to perform duties in connection with the cattle business, an accident while at work thereat would not have been compensable just because the employer also maintained the hazardous business of the junk yard or just because Fontenot occasionally had performed duties in connection with this other and hazardous business.

As stated in the Brownfield case, 198 So. 660, “It is well settled in this State that where an employee is engaged in both hazardous and nonhazardous work in the same employment, his injury is compensable though it may occur in the performance of a nonhazardous portion of his work Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303.”

A comprehensive discussion of the question is contained in the decision of this Court in Harrington v. Franklin’s Stores Corporation, 55 So.2d 647, 649, wherein after remarking that “the nature of the employer’s business and not the particular work done by the employee is the determinative factor” in deciding whether a given employment is covered by the compensation act, we summarized the Byas case as holding as to a “partially hazardous employment” that “where an employee is required to discharge both hazardous and nonhazardous duties it is immaterial that the injury occurred while he was engaged in nonhazardous work.” We distinguished that situation, wherein compensation is allowed even where the injury occurs while performing non-hazardous duties, from the Brownfield situation, “when the employee performs only occasionally acts that can be regarded as hazardous, and is injured in the course of his normal nonhazardous work”, wherein compensation is not allowed.

We cannot construe the record to support a finding that plaintiff enjoyed two separate employments with defendant, one in the hazardous junk business, and one in the non-hazardous cattle business. Plaintiff was paid but one wage, $5 per day, plus his house, and the major portion of his duties was in the junk business, although he was required to spend two or three hours per day attending defendant’s cattle. We do not feel that the evidence supports a finding that the plaintiff milked defendant’s cows and fed his cattle for 2-3 hours per day, for the obviously inadequate compensation of three quarts of raw milk a day; we feel, rather, the employee’s cattle duties were incidental to those of his major employment at the junk yard at $5 per day. Plaintiff had started working for defendant in 19S2 as a car salesman, and had then been transferred to the junk yard as defendant went out of the used car business; the bulk of the cattle were bought 5-6 months before the alleged accident, in a fattening or feeder operation, and they were sold in June of 1955, a month or so after the accident.

The situation is similar to that in Dobson v. Standard Accident Insurance Company, 228 La. 837, 84 So.2d 210, where an employee engaged in an admittedly hazardous business was sent by his employer to perform repairs at the employer’s residence. The Supreme Court rejected the contention that such personal services were not incidental to the covered employment, quoting from Kern v. Southport Mill, 174 La. 432, 141 So. 19, 20, and holding, 84 So.2d 212:

“ * * * whenever the employer calls upon the employee to render any particular service, he, at least (that is to say, the employer himself), is in no position any longer to deny that the services thus requested arise out of and are incidental to the employment. Otherwise, by what right has the employee been called upon to perform them?”

Studious and ingenious counsel for defendant also relies upon cases such as Dewey v. Lutcher-Moore Lumber Company, 151 La. 672, 92 So. 273, Gray v. Tremont Lumber Company, La.App. 2 Cir., 185 So. 314, and Hinton v. Louisiana Central Lumber Company, La.App. 2 Cir., 148 So. 478, which held that non-hazardous employments (such as janitor or scavenger) incidental to logging operations (specified as hazardous by the compensation act) were not covered. These cases are distinguishable because the employee’s duties therein consisted solely of non-hazardous duties which were not part of the principal physical work of logging — whereas in the present situation, the employee’s duties were part of the principal physical operations of operating a junk yard which operations themselves the legislature has declared to be hazardous. Further, there is some question as to the validity of the holdings of these cited cases, in view of the later jurisprudence: Cf. Speed v. Page, 222 La. 529, 62 So.2d 824, which awarded compensation to an employee of an admittedly hazardous business, although employed to perform and engaged in activities merely incidental thereto at the time of the accident; Rigsby v. John W. Clark Lumber Company, La.App. 1 Cir., 28 So.2d 346, certiorari denied, where a sawmill clerical worker was held covered by the compensation act.

We therefore find that plaintiff’s employment was subject to the Louisiana workmen’s compensation act as containing partly hazardous and partly non-hazardous features, so that an injury received in performance of either type of duties is. compensable under the Byas v. Hotel Bentley rule.

However, defendant very seriously disputes the occurrence of an accident, and also that plaintiff is presently disabled by reason of same.

The plaintiff positively testified that he received a rope burn or blister on his left ring finger while roping cattle at about 10 o’clock in the morning. (On the morning of the accident, defendant had taken about six employees to his farm to spray and de-horn his cattle.) He testified that defendant -furnished some disinfecting alcohol for the injury. Defendant denies such testimony with equal positivity.

Four co-employees testified, one called by defendant, and three by plaintiff. Although all four denied having seen the actual accident, three of them admitted that either the following day or two or three days later plaintiff commenced to complain of and to show his swollen and infected hand. One explained as a misunderstanding an earlier statement he had signed indicating that he had heard plaintiff complain immediately after the accident, as against his testimony on the stand that it was not until the following day that he heard plaintiff start to complain. Plaintiff’s wife corroborated his complaints of the rope burn immediately upon his return home that night. Plaintiff gave the same version of the accident to the general practitioner to whom plaintiff was taken by defendant about a month after the accident, and to the two specialists, as that to which he testified.

We note that the District Court specifically did not make a contrary factual finding in the resolution of this factual issue, which would have disposed of the suit, but instead based its conclusion upon a legal question which we have resolved adversely to the contentions of defendant.

Under all the circumstances of this suit, and in the absence of a contrary finding by the District Court, we feel that the plaintiff has proved that an accident has occurred by a preponderance of the evidence, taking into consideration also his prior uninterrupted employment with defendant and lack of disability and his testimony as corroborated by surrounding circumstances and subsequent undoubted disability. Fee v. Calcasieu Paper Company, Inc., La.App. 1 Cir., 89 So.2d 434; Turner v. Southern Industries Company, La.App. 1 Cir., 88 So.2d 238, certiorari denied; Zito v. Standard Accident Insurance Company, La.App. 1 Cir., 76 So.2d 25.

There remains the question of the duration and extent of disability.

Trial was held on May 31, 1956. Plaintiff complained at this date of stiffness, and loss of use and strength in the ring and little fingers of his left hand, producing total disability to use the small tools of his occupation as junk-dismantler. That the trivial injury of the rope burn produced such serious complaints seems to have been due, in part, to a predisposition on the part of plaintiff to skin infections (see testimony of Dr. Stagg, Tr — 118-119) and to possible complications and disuse following the infection and lancing of the infected area.

The testimony of Dr. Charles Hatchette, orthopedic specialist, was taken by defendant on February 1, 1956. He had examined plaintiff once, on October 4, 1955. The substance of his findings is as follows:

“ * * * The examination was confined principally to the left hand and this showed mild swelling of the third, fourth, and fifth fingers with most of the swelling in the fourth finger. The distal end of the fourth finger was markedly atrophied * *. Motion of the third, fourth and fifth fingers were limited about 50% and he could not make a fist or flex the fingers completely. He was unable to grasp small objects with the left hand. The glistening appearance of the distal portion of the fourth finger and atrophy indicated that there had been some nerve involvement possibly at the site of the old infection * * *. It was my impression that this man had received some nerve injury to the fourth finger which was responsible for his inability to move it. There is considerable atrophy beyond the proximal joint indicating there has been nerve involvement. This was possibly due to the infection which was present in the finger. It was my recommendation to Mr. Fontenot that he use a ball in order to rehabilitate the fingers. There was considerable numbness of the fourth finger beyond the proximal joint which bore out the impression that there was some nerve injury through the infection. Approximately four to six months was estimated as a requirement for this man to flex the fingers completely and return to his usual duties.” (Tr-104— 105.)

Dr. Hatchette further stated that this loss of flexion “might be total disability if this handyman had to grasp small objects.” (Tr-105.)

Dr. George Briel, orthopedic specialist, testified on behalf of plaintiff by deposition taken January 31, 1956. He had examined plaintiff June 27, November 1, November 22, and December 12,1955.

Dr. Briel found at his final examination, after improvement from earlier occasions, that the ring finger was approximately 75% disabled and the little finger 30% disabled by reason of stiffness and loss of flexion — the left hand as a whole about 15 to 20% disabled. He further stated, Tr-91, “I felt the man was entirely disabled from doing — as a matter of fact any type of work with the left hand.” The cause he felt was either a cutting of the nerve or a “basal motive disturbance.” However, he frankly stated: “I think purely the stiffness of his fingers was due to inactivity” (Tr-89), and “I felt the man was not doing anything to help himself in the way of rehabilitating the hand, either because the hand hurt him or because he just didn’t know how to do it.” (Tr-88.)

As to the duration of disability, Dr. Briel stated, Tr-92:

“I don’t believe the man will ever have a completely normal hand, I don’t think he will ever recover all the lost motion in those fingers. I think he will probably have a certain amount of limitation especially in his ring and little finger. I believe that if this man would begin to do ordinary things and try to forg-et about his hand I think the mental block would disappear and he would use this hand well enough to do the type of work which he had been doing. I do not know how long it will take him.”

Dr. J. J. Stagg, general practitioner, treated plaintiff at the instance of defendant on May 11, 1955, when he incised and' drained the pus from the infected and swollen ring finger of the left hand, and saw him again on May 14th, 21st, June 2nd, and June 14th of 1955, on which latter date the finger was healed, although he only had' “25 per cent flexion in the finger.” He saw him on February 1, 1956, and found the same loss of flexion in the ring finger, and also in the little finger. He stated he could force closure of the ring finger with a little pressure, and from this fact believed that “possibly with exercise he might be able to flex the finger more than he is saying” ; and also he could find nothing physically to keep from moving those fingers. (Tr-115.) He admitted he couldn’t say plaintiff was faking since “It may be lack of exercise that has got his finger in that position.” (Tr-115.) As to percentage disability, he deferred to the opinion of orthopedic specialists, but opined that plaintiff was not totally disabled from performing common labor since “it is not necessary that you have those two fingers to do labor with. A man with those two fingers absent can still carry on a laboring job.” (Tr-116.) He thought plaintiff should be able to use a shovel and a crescent wrench or a mop, but that the chief loss was the ability to grasp, the amount of loss in which “would depend on how much strength he would develop in the fingers he is able to use.” Tr-117. He further stated, “I would say from the standpoint of disability, he does have a certain amount of disability in his hand as far as his regular work goes.” Tr-114.

Plaintiff also introduced the testimony of Leonce Bellow, an experienced garageman, as expert testimony that the two affected fingers are needed in the operation of the small tools necessary for plaintiff to use in the performance of the duties of his occupation as junk dismantler and salesman. Bellow of course did not testify as to the extent plaintiff had lost the use of these two fingers — simply that their use is needed to operate small tools.

We think the testimony of both orthopedic specialists, testifying on behalf of both plaintiff and defendant, proves that plaintiff was totally disabled at least through December 12, 1955, from performance of the duties of his occupation; that the condition of his fingers was improving, although several months continued disability was indicated, at least four to six months from October 4, 1955; and that with reasonable effort on the part of plaintiff to rehabilitate himself, the condition was temporary, and in fact stemmed from disuse as much as from physical cause. The prognosis was either a relief from all disability, or a cure to minor partial disability of the fingers or hand, such as in Blanchard v. Pittsburg-Des Moines Steel Company, 223 La. 577, 66 So.2d 342. The findings of the general practitioner’s examination on February 1, 1956, are corroborative of some disability and some improvement.

We are faced with this situation: The original injury was undoubtedly trivial. The prolongation of disability is partially due to disuse on the part of plaintiff. With reasonable effort toward rehabilitation, the disability should according to the uncon-tradicted testimony of the physicians disappear or be greatly minimized, within a relatively short period which in fact should have expired by the time of the trial.

If plaintiff is entitled to further disability payments under a partial disability of the finger or hand under LSA-R.S. 23:-1221(4), the statute provides that from these minimal amounts owing must be deducted amounts previously paid under the permanent or temporary total disability provisions, LSA-R.S. 23:1223.

Usually in cases of temporary total disability, the preferable decree is to award compensation during disability, not to exceed 300 weeks, LSA-R.S. 23:1221 (1), Newman v. Zurich General Accident & Liability Insurance Company, La.App. 1 Cir., 87 So.2d 230. But such a decree herein may force defendant to pay compensation long beyond the persistence of this disability originating from trivial injury, even if we reserve to defendant the right to reopen these proceedings immediately rather than waiting for the statutory period of six months from finality of this judgment, which may be done in exceptional cases, see Newman opinion on first hearing. For in the ordinary course of events, with rehearings and applications for certi-orari, this opinion will probably not be final sooner than three or four months from now, or about a year beyond the probable duration of total disability.

Therefore, under the very peculiar facts of this particular case, and with very great hesitation, our decree herein will award plaintiff compensation for temporary total compensation disability from April 15, 1955, the date of the accident, through April 4, 1956 (six months from October 4, 1955); reserving to both parties the right to reopen these proceedings at once to prove duration or extent of continuing disability beyond said date.

Plaintiff was paid wages of $30 per week, and furnished free use of a house worth $40 per month rent. The yearly rental of this house therefore is $480, which divided by 52 weeks is a weekly rental of $9.23. There is no evidence as to the value of two or three quarts of raw milk which plaintiff retained daily for his personal use. Plaintiff’s weekly wages therefore are computed as $39.23, 65% of which is a weekly compensation rate of $25.50 per week.

For the above and toregomg reasons, the judgment of the District Court herein is reversed, and judgment is rendered in favor of plaintiff, Elza Fontenot, and against defendant, R. L. Myers, awarding plaintiff compensation at the rate of $25.50 per week from April 15, 1955, through April 4, 1956, together with legal interest upon each unpaid installment from date of delinquency until paid; reserving the right to both parties to reopen the proceedings in District Court herein at once to establish any further duration or extent of disability. All costs to be paid 'by defendant-appellee.

Reversed and rendered.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    CITY OF LAKE CHARLES v. Mrs. Evelyn Shirley FUNGAY.
    No. 4349.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 4, 1957.
    Rehearing Denied March 25, 1957.

      Carmouche & Martin, Ernest G. Lafleur, Jr., Lake Charles, for appellant.
    James R. St. Dizier, Lake Charles, tor intervenors Oliver P. Stockwell, and others.
    George W. Liskow, City Atty., Lake Charles, for appellee.
   LOTTINGER, Judge.

This is a suit which was instituted by the City of Lake Charles against Mrs. Evelyn Shirley Fungay in which it is alleged that the defendant had violated certain zoning ordinances and in which it was prayed that the plaintiff be awarded injunctive relief. A number of property owners intervened in the suit, adopting as their own the allegations of the plaintiff and praying for the same relief.

The defendant first filed an exception of vagueness, which was overruled. She then filed a plea of prescription, exceptions of no cause and no right of action and an answer, which was in the nature of a general denial and which further attacked the constitutionality of Ordinances 707 and 806 which had been alleged to have been violated.

Following trial on the merits in the Court below, judgment was rendered in favor of the plaintiff and intervenors as prayed for. Following rendition of this judgment, the defendant appealed to the Supreme Court. That tribunal, however, found that the record did not affirmatively show that it had appellate jurisdiction and transferred the matter to us. See judgment of the Supreme Court in the entitled matter handed down June 11, 1956.

The petition alleges, specifically, that the defendant’s property is located in what is referred to in both of the ordinances previously referred to as “A” Residential District and that therein buildings could be used for only one or more of the following purposes:

“(1) One family dwelling
“(2) Two family dwelling
“(3) Churches
“(4) Public and denominational schools, elementary and high.”

Certified copies of Ordinances 707 and 806 were introduced into evidence and they contain the above quoted provisions. The defendant testified on cross examination that a single residence was erected on the premises between thirty and thirty-two years previous to the date of trial. A small house was moved on the property in 1943 or 1944, which was situated in the rear of the property and which consisted of two-rooms and a bath. A four unit apartment building, consisting of two apartments downstairs and two upstairs, was erected in-1948. In 1940 or 1941, the original single residence was converted into three units, one of which at the time of trial was occupied by defendant, one of which was rented and one of which was for rent. The little building in the rear was rented and three apartments of the four unit structure were rented with the fourth available for rent. The defendant admitted that she had been charged in the City Court of Lake Charles with violation of the city ordinances relative to her buildings in 1952 and found guilty. Introduced in the record as “P-8” is a certified copy of the judgment referred to in which it was specifically held that the defendant had violated the provisions of Ordinance No. 707.

Clearly, from the above and foregoing, the defendant has violated the provisions of the appropriate ordinances, and,, unless one of the defenses urged by defendant is valid, the judgment appealed from will have to be affirmed. One of the most strenuously urged of these defenses is that the record does not affirmatively prove that the defendant’s property is in “A” Residential District — Ordinance 707, in defining the boundaries of the various districts, refers to a map; however, neither the original nor a copy of the map was introduced into evidence. In spite of this, though, a Miss Mary Propes, Clerk of the Inspection Department of the City of Lake Charles, testified, without objection by counsel for defendant, as follows:

“Q. Mrs. Propes, you are familiar with the zoned areas of the City of Lake Charles? A. Yes, Sir.
“Q. It is part of your job? A. Yes, Sir.
“Q. What zone is this property in, ‘A’ ? A. Iam sorry, I didn’t bring the zoning map. I believe it is in ‘A.’
“Q. It is not ‘B’ or ‘C’? A. No. It would definitely be in ‘A’ or ‘A-l.’ To the best of my knowledge, I believe it is in ‘A.’ ”

The trial judge evidently believed that the above and foregoing was sufficient to establish the location of the property and we cannot find where he committed error in so holding.'

The defendant’s plea of prescription is based on the provisions of LSA-R.S. 9:5622. The record clearly shows that all construction by defendant was completed over two years previous to the filing of suit and if the statute relied on is applicable the plea would necessarily have to be maintained. LSA-R.S. 9:5622 provides as follows:

“Actions to enjoin or to obtain damages for the commission or continuance of a violation of restrictions contained in the title to land are prescribed by two years, reckoning from the commission of the violation. When this prescription shall have accrued, the particular parcel of land shall be forever free from the restriction which has been violated.”

We do not believe the cited statute ap-. plicable to the case at bar. Clearly, it relates only to those restrictions in the title itself and there is no mention of any such restriction as we are faced with here, i. e., those imposed by a governmental body.

The plea of unconstitutionality of the ordinances is based upon the proposition that they were not enacted in accordance with the provisions of LSA-R.S. 33:4726, which provides, for a public hearing by the zoning commission and notice of the time and place thereof at least three times in the official journal. The only testimony introduced on this point was that of the City Clerk, Florence M. Moore, and, without going into unnecessary detail, we can safely state that her testimony fell far short of that required to overcome the presumption of the validity of the ordinances.

For the reasons assigned the judgment appealed from is affirmed.

Judgment affirmed.


author: ELLIS, Judge.

text:
    Louella Deville FONTENOT v. NATIONAL TRANSFER COMPANY, Inc., et al.
    No. 4316.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 2, 1957.
    Rehearing Denied March 25, 1957.

      Fusilier & Vidrine, Ville Platte, Tate & Tate, Mamou, for appellant.
    Lewis & Lewis, Opelousas, Davidson, Meaux, Onebane & Nehrbass, Lafayette, for appellees.
   ELLIS, Judge.

Plaintiff brought this suit for $200,367.50 damages resulting from the death of her husband, occurring when an oil derrick fell and crushed him. The defendant, National Transfer Company, Inc., its insurer the American Fidelity and Casualty Company, and the American Steel and Wire Company as well as the deceased’s former employer, The Atlas Drilling Company were alleged to be jointly at fault and therefore the proximate cause of plaintiff’s husband’s death.

An exception of no cause'or right of action was filed by the defendant American Steel and Wire Company, which was sustained by the lower court, dismissing said defendant from this proceeding.

On May 8, 1956, plaintiff perfected a devolutive appeal to this court. Defendant has filed a motion to dismiss the appeal contending that the trial of the case against the other defendants, National Transfer Company, Inc., and its insurer, constitutes a full acquiescence in the judgment of the District Court dismissing ap-pellee from the original proceedings. The position of appellee is not well taken. In order to take away the right of appeal there must be an unconditional, voluntary and absolute acquiescence in the judgment on the part of the appellant. Sanderson v. Frost, 198 La. 295, 3 So.2d 626. It cannot be said that plaintiff-appellants have unconditionally and voluntarily acquiesced in the judgment, especially in view of the fact that on the same date the lower court overruled their motion for rehearing plaintiff filed motion to appeal. For this reason the motion to dismiss is overruled.

On the merits, plaintiff contends that the District Court erred in concluding that defendants-appellees were without fault since joint and concurrent acts of negligence were alleged.

Plaintiff admits that had they alleged that the accident would have occurred regardless of the breaking of the cable, defendants’ position would have been correct. They further contend that they never alleged or intended to allege that the derrick would have fallen regardless of the breaking of the cable. Defendants rest their exception of no cause or right of action primarily on the allegations in Article 16 of plaintiff’s petition which reads as follows:

“The Derrick would not have fallen had the said tandem truck remained stationary on the ramp where it was situated.”

The plaintiff’s petition also sets forth certain other well-pleaded allegations of fact which are admitted as true in the exception of no cause of action. Ward v. Leche, 189 La. 113, 179 So. 52. These are:

“Article 5. The operations being conducted at the said rig at the time of decedent’s death were complex and technical, and no good purpose could be served by encumbering this petition with the allegations of evidentiary facts necessary to describe the said operation.
“Article 6. The derrick which crushed plaintiff’s husband to death fell as a proximate consequence of several acts of negligence hereinafter described and the breakage of a cable designated in the trade of oil and gas well drilling as a ‘snub’ or ‘sling’ line.
* * íjí * *
“Article 10. When the said cable broke, it was being ttsed in the ordinary and reasonable manner in which such cables are offered for use by manufacturers; it was being subjected to no unusual or extra-ordinary stress or strain.
i’fi * * * * *
“Article 13. After the cable broke, the derrick was pulled down by the weight of a loaded tandem truck which rolled down a ramp.
“Article 14. To the said tandem truck or to heavy equipment situated on the said truck was attached one end of another cable, the other end of which was attached to the derrick.
“Article 15. The said tandem truck was owned by and its movements controlled solely by employees of the defendant, National Transfer Company, Incorporated.
“Article 16. The derrick would not have fallen had the said tandem truck remained stationary on the ramp where it was situated.
“Article 17. Petitioner is informed, believes, and therefore alleges that the brakes of the said truck were in good repair and entirely adequate to prevent the said tandem truck from rolling down the same ramp if applied, as in fact they were — momentarily—■ applied.
“Article 18. Those employees of the National Transfer Company, Incorporated, who controlled the movements of the said truck were in a position to observe, as any reasonable man would have observed, that the derrick would not fall if the tandem truck were prevented by the continued application of its brakes from rolling down the aforesaid ramp.
“Article 19. The said employees were also in a position to direct the application of, apply, and continue to apply the brakes of the said truck and thereby to prevent the accident, which they negligently failed to do.”

An analysis of the facts alleged show that plaintiff has charged that the decedent was crushed to death by a falling derrick; that said derrick was being held in place by a cable designated in the trade of oil and gas well drilling as a “snub” or “sling” line, which had been manufactured and placed on the general market by the defendant, American Steel and Wire Company; plaintiff then alleged facts which, if true, would convict the defendant, American Steel and Wire Company, of having placed on the market a defective cable which broke because of said defects; that when the cable broke,' a tandem truck to which was attached another cable which was also attached to the derrick, started to roll, was momentarily stopped by the application of the brakes on the truck by the employees of the defendant, National Transfer Company, Inc.; that the employees of the defendant, National Transfer Company, Inc., negligently failed to continue the application of the brakes which would have prevented the accident.

Plaintiff has, therefore, alleged that the accident was caused by the breaking of the defective cable manufactured by the defendant, American Steel and Wire Company, and the failure of the employees of the defendant, National Transfer Company, Inc., to apply the brakes on the tandem truck which was also being used in the operation.

We believe that the petition contains a cause of action against both defendants and, therefore, the judgment of the District Court is reversed, the exception of no cause or right of action overruled, and the case remanded to the District Court for trial on the merits.


text:
    Edward MARTEL, Administrator of the Estate of his minor son, Eward Martel, v. L. G. SEALE and Alton Fontenot.
    No. 4357.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 4, 1957.
    Rehearing Denied March 25, 1957.
    Jacque B. Pucheu, Eunice, for appellant.
    J. Nilas Young, Eunice, P. J. Chappuis, III, Crowley, for appellees.
   LOTTINGER, Judge.

This is a suit for workmen’s compensation resulting in an alleged accident sustained while the minor son of petitioner was working on a farm operated by the defendants. The Lower Court awarded judgment for $19.50 per week beginning March 25, 1953, for the duration of the disability not to exceed 400 weeks, plus interest and doctor bills. The defendants have appealed.

The facts show that the alleged accident occurred on March 25, 1953 while petitioner’s minor son was employed as a farm laborer by the partnership of defendants. The petitioner alleges that while operating a tractor on defendants’ farm it was necessary for the minor to pick up a levee plow, hitch the plow to the tractor and move the plow to a different section of the field. The evidence shows that the plow weighed approximately seventeen hundred pounds. The petitioner claims that while his son was lifting the tongue of the plow, he received an injury which has been diagnosed as a partial avulsion of the hamstring muscle origin at the posteromedial aspect of the left thigh with secondary weakness of the posterior compartment of the left thigh, resulting in a partial loss of the support of these muscles in their function of maintaining stability of the posterior aspect of the left knee. Petitioner claims permanent and total disability and seeks judgment as awarded by the Lower Court.

The defendants filed an exception of no cause or right of action claiming that they are not in a hazardous occupation and therefore do not come under the Louisiana Compensation Law, LSA-R.S. 23:1021 et seq. The exception was referred to the merits. The defendants also filed answer, which in effect is a general denial. The Lower Court awarded judgment in favor of petitioner. The defendants filed motion for rehearing, which was denied by the Lower Court.

The evidence shows that the defendants operated a farm equipment store in the town of Eunice, Louisiana. The store was incorporated and was evidently the principal business venture of both defendants. As a sideline, they owned, in indivisión, a tract of land consisting of some 500 acres in the Parish of Acadia. The vast majority of this tract was leased to a tenant, however, the defendants did raise cattle on approximately 35 acres of this tract. The petitioner’s son was employed by the defendants to plow this 35 acres, preparatory to the planting of grazing crops. The defendants owned a tractor which was used for the purpose of plowing the 35 acre tract, and it was while in. the venture of plowing the tract that the minor attempted to lift the heavy levee plow and sustained the injury.

The facts show that although Mr. Seale, one of the defendants, was only some 15 feet away from the minor at the time of the alleged accident, the minor did not at that time complain to Mr. Seale of his injury. As a matter of fact, the minor continued working that day, worked the following day, and worked half day the next day which was Saturday. The occurrence of the injury was mentioned to the minor’s parents the day of the accident at dinner time, and he also complained to a neighbor who was visiting in his parent’s home at the time. Mr. Seale contends that he was. not notified of any injury to the minor until the following Monday, at which time the minor called and told him that he was. unable to go to work because of pain in his. side. Mr. Seale picked up the minor at his. home and drove him to the doctor’s office. Mr. Seale contends that even then he did not know that the injury had occurred within the course of the minor’s employment with him. The minor contends that he mentioned the injury to Mr. Seale on the afternoon of the accident and again on Saturday morning. However, we feel that the evidence casts doubt on this contention.

The minor apparently thought that he had sustained a hernia and had Dr. Reed examine him for such an injury. Dr. Reed examined him on March 30, 1953 and found no hernia. Dr. Reed stated that the boy did not complain of any leg- or knee injury on that date. The boy returned to Dr. Reed on April 4, 1953 complaining of an injury to the left knee. The examination showed a tender place in the inner aspect of the head of the tibia, and the diagnosis was a strained ligament. The boy went to Dr. Reed’s office on 4 occasions during a period of approximately 3 weeks when Dr. Reed told the boy that his knee should be well in a period of approximately 2 weeks. The boy was examined by 3 doctors in the interim and on September 11, 1953, was examined by Dr. George P. Schneider, Jr., an orthopedic surgeon. Dr. Schneider gave the boy extensive treatment, and- claimed total disability at the time of the trial. Dr. Schneider testified, by deposition, that the •disability could be relieved by surgical procedures.

The first complaint of the-defendants is to the effect that they are not engaged in a hazardous trade under the provisions of the Louisiana Workmen’s Compensation Law. We feel that the holding of the Lower Court was correct in holding them within the scope of said law. The facts show that the operation of a tractor was an integral part of their farming. We feel that the act does apply to the situation presented in this case. See Pierre v. Farm Development Corp., La.App., 39 So.2d 154. The defendants further claim that the petitioner has failed to prove an accident to his son while working for the defendants. The Lower Court felt that the accident was sufficiently proven by the fact that the minor had mentioned the occurrence of the accident to his family and a neighbor, and by the further fact that the evidence shows several parties to have been appraised of the fact that the son limped after the occurrence of the alleged accident where he had not limped prior to that time.

The defendants further complained that the petitioner has failed to prove any disability. The testimony of Dr. Schneider indicated that it is possible for a person suffering from this particular injury to work under pain. His testimony indicates that certain parties might attempt to work under pain while others would not attempt to do so; for pain would affect some individuals more than others. It is true that the minor continued working for defendants for a period of approximately 2 days after the accident. He also worked for other individuals for a total period of approximately a week after the accident. However, the minor did testify that this labor was done in pain and that he thought the injury would improve in time.

We feel that the petitioner’s son did wait an extremely long time before consulting with a specialist- about his- injury. He claims that the reason he waited so long was because he believed that the injury would cure itself in time and that the. accompanying pain would subside.

The testimony of Dr. Schneider shows that an injury of this nature would first be felt in the groin, and that later, a secondary symptom would develop in the knee. This is exactly the symptoms suffered by young Martel, which would probably account for his first believing that he had suffered a hernia. '

We have read the entire record and have failed to find an obvious error on the part of the Lower Court. The jurispm-, dence of this State is to the effect that the Lower Court will not be reversed on question of fact unless the findings of the Lower Court have been manifestly erroneous. For the reasons hereinabove assigned, the judgment of the. Lower Court will be affirmed, all costs of this appeal to be paid by defendants.

Judgment affirmed.


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    Acy DEMEREST, Individually, and as Tutor, etc., Plaintiff-Appellant, v. The TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees.
    No. 4356.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 4, 1957.
    Rehearing Denied March 25, 1957.

      Edwards & Edwards, Crowley, Herschel N. Knight, Jennings, for appellant.
    King, Anderson & Swift, R. W. Farrar Jr., Lawes, Cavanaugh, Hickman & Brame, Wm. W. Bell Jr., Lake Charles, for ap-pellees.
   TATE, Judge.

This is an action by the husband and minor children of Mrs. Zona Demerest for damages occasioned by her accidental death. Appeal is taken from judgment dismissing the suit after trial.

The accident giving rise to this lawsuit occurred on March 13, 1954, at about 5:15 a. m. Mrs. Demerest was killed almost instantly when, driving her Chevrolet, she attempted to cross from her cafe and bar south of U. S. Highway 90 to her home on the north side thereof, just within the eastern corporate limits of the town of Mer-mentau in Acadia Parish.

Her car was struck by a 1952 Pontiac driven by M. L. Blackwell, its operation insured by defendant liability companies.

U. S. Highway 90 is a main traffic thoroughfare, was concrete-surfaced at the time of the accident, and 18-22' in width. At the time of the accident, visibility was very poor, not only due to the early hour, but also to a heavy fog.

Blackwell testified that the speed of his Pontiac automobile was not more than 50 m. p. h.; he is somewhat corroborated by his nephews, the other occupants of his car. Some witnesses testified on behalf of plaintiff that subsequent to the accident Blackwell admitted in public conversation to a speed between 70 and 80 m. p. h.

The District Court, without specifically resolving this conflict as to credibility of the witnesses, simply held that Blackwell’s speed was excessive at the time and place of the accident, but denied recovery to plaintiffs because of their decedent’s contributory negligence in apparently entering the highway from the shoulder into Blackwell’s lane inattentively and without proper observation and regard to his superior right of way.

The legal question thus posed for our resolution is (a) whether assuming excessive speed on the part of Blackwell, nevertheless Mrs. Demerest entered the highway so close to his onset as to have caused the accident, even if Blackwell had been proceeding at a less negligent speed, see, e. g., Robbins v. Mydland, La.App. 1 Cir., 81 So.2d 561; or, on the other hand, (b) whether Mrs. Demerest was justified in entering the highway, as being entitled to anticipate, had she observed Blackwell’s approaching car, that it was approaching at a reasonable speed at which her own transit across the highway could have been safely completed — that is, that she was under no duty to anticipate a negligent or unlawful speed, because of which factor alone she couldn’t safely complete the crossing of the highway, see, e. g., Gauthier v. Fogleman, La.App. 1 Cir., 50 So.2d 321. (To be more precise, the legal question before this appellate body is whether the District Court’s decision that the present factual setting affords an opportunity for application of the former doctrine— (a) — is manifestly erroneous.)

It is undenied that, due to the dark and the heavy fog, it was most difficult by the headlights alone to judge the speed of an approaching car; and of course, the motorist “was not required to wait before attempting to cross until there was no vehicle in sight on the right of way street”, Gauthier v. Fogleman, supra cit. at 50 So. 2d 324, being ordinarily entitled to rely upon the reasonably prudent operation of oncoming cars, Wilson v. Williams, La. App. 1 Cir., 82 So.2d 71, Gauthier case.

At the outset, we are met with appellant’s forceful and ably urged argument that since the lawful speed within the corporate limits of the Town of Mermentau was not more than 25 m. p. h., then Mrs. Demerest was entitled to rely upon Blackwell’s approach at this lawful speed. If so, it is urged, she should recover, whether Blackwell’s speed was 50 or 75 m. p. h.; because, having before the impact crossed half the highway under Blackwell’s actual speed, she could certainly have crossed on to the other half in safety had Blackwell been approaching at the lawful speed, that is, at Lá or i/$ of his actual speed, or at least, Blackwell would have had the last clear chance to have avoided the accident.

The factual setting is that Blackwell was proceeding east towards Crowley from Jennings, somewhat late for work due to an earlier car breakdown. Mrs. Demerest, who had worked at her bar until early in the morning (and also had several “Coke highballs”, it being her birthday), drove her car from the east (or far) end of her bar and out-building, northwesterly across the highway toward her home on the other . side thereof.

According to Amy Romero, her 'waitress who was a passenger in the car, she was struck almost as soon as she entered the highway; Miss Romero had seen the lights of the approaching car, but assumed it was distant enough to permit the car to cross the highway in safety, apparently misjudging its speed. (Almost all witnesses agree that oncoming lights, obscured by fog, seemed small and distant.)

Blackwell and the occupants of the car testified that decedent’s Chevrolet shot out from behind the east end of the Demerest Bar immediately in their path; in the fraction of the second before the accident, he swerved leftward. Miss Romero’s testimony as to the decedent’s speed was that it was very slow.

The physical facts showed that the impact occurred at approximately the center of the highway, between the right front of the Blackwell vehicle and the left side (about at the front wheel and door) of the Demerest vehicle. Both vehicles ended on the north side of the highway, the Blackwell Pontiac 60-75 feet from the impact, and the Demerest Chevrolet' about 225 feet from the point of impact. (One of defendants’ passengers saw the Chevrolet backing or rolling slowly after the impact, which defendants urge as the reason — rather than, any tremendous blow— for the Chevrolet’s distance afterwards from the point of impact.) The Pontiac made skidmarks showing application of the brakes 4' before the point of impact, and 9' afterwards (until they left the pavement) .

The Demerest cafe and bar was set 21 feet from the south edge of the highway, by measurement of defendants’ adjuster, corroborated by photographs showing the relative width of a parked automobile. (Another witness, Landry, admitted that his estimate of a SO-foot parking space between the cafe building and the highway was not based on measurement and was just a guess, Tr. 92, 97.)

Translated into time elapsed, Mrs. Dem-erest was struck less than a second after she entered the highway. Even at a speed of 10 m. p. h. (14.6' per second), as estimated by her counsel based on her passenger’s testimony of very slow speed, approximately from six-tenths to three-quarters of a second elapsed for her to come to the center line of this 18-22 foot highway. Thus, if Blackwell was approaching at a speed of SO m. p. h. (74' per second), the Demerest car entered the highway when Blackwell was from 45.6' (%oth of 74') to 55' Q4th of 74') away; or if he was speeding 70 m. p. h. (103' per second), the other car entered the highway when he was from 62' to 77' distant therefrom.

Thus, at the approximate distance Blackwell actually was from Mrs. Demerest (assuming her speed to be only 10 m. p. h.) when she entered the highway — i. e., from 45.6' to 77' — ; had she observed him and assumed his approach at the statutory maximum speed of 25 m. p. h. (36.5' per second) ; nevertheless she entered the highway when, even approaching at the legal speed, Blackwell would have been only from 1.3 to 2.1 seconds distant therefrom. While perhaps under the most favorable calculations her car would have cleared the path of the Blackwell car on the highway before it arrived, such sudden obstruction of the path could without manifest error be found to be a contributory proximate cause of any damages sustained through such sudden entry or the sudden energency created thereby.

While wc are not prepared to say that, had the District Court found existing the extreme limits favoring plaintiff of the respective speeds, its factual determination that defendants’ excessive speed was the sole proximate cause of the accident would have been manifestly erroneous; we certainly do not believe its determination manifestly erroneous that Mrs. Dem-erest’s entry onto the main highway, so close in time and space in front of defendants’ vehicle, was a contributing proximate cause of this tragic occurrence.

For instance, the above discussion has assumed a speed of 10 m. p. h. on decedent’s part, discounting defendants’ witnesses testimony that she shot out from behind the cafe building, which latter testimony would indicate her entry into Blackwell’s immediate path when he was even closer to her. The heavy fog, while decreasing her ability to judge the speed of approaching traffic, may have increased her duty of lookout before entering the highway, in order to comply with her statutory duty to “yield the right of way to all vehicles approaching on the public highway” before she entered it from her private driveway, LSA-R.S. 32:237, subd. E. The lower speed of 50 m. p. h. on the part of Blackwell, per the testimony of the occupants of his car, would indicate an entry by Mrs. Demerest closer to his onset than the speed of 70 m. p. h. he allegedly admitted to bystanders (although the State police report based on his statement to them at the same time shows a lower speed). Determinations by the District Court unfavorable to the plaintiff on such questions find much support in the record so as not to be manifestly erroneous (although neither would its contrary determinations thereupon).

The truth of the matter is that the speeds of the vehicles, the point of impact, the distances the motorists were therefrom at various split-seconds before the accident, can never be known with mathematical precision. Courts’ deductions are based on the testimony of witnesses who can, being human, only imperfectly perceive and imperfectly recollect the events surrounding a split-second of tragedy when, as here, one living human being, a hard-working lady and mother, was dashed to her death, and the chief witnesses themselves were in grave danger of mangling. And yet determination of the relative rights and duties of the parties depends to some extent upon determinations translated in the last analysis, within limits, into seconds and feet distant. The trial court, seeing and hearing the witnesses, is in a better position than his appellate brethren (who can only read the typewritten record) to judge which witnesses are more apt to be more accurate in their testimony; and for this reason, his determination on factual matters based upon witnesses who have testified before him, must be accepted on appellate review unless such determinations are manifestly erroneous. And thus, while we believe that the record could probably as plaintiff ably urges be construed to support a recovery in favor of plaintiff, we cannot hold that the District Court committed manifest error by holding to the contrary.

Plaintiff’s alternative argument that Blackwell had the last clear chance to avoid the accident is based upon an assumption that Blackwell had the duty and the opportunity to observe Mrs. Demer-est’s approach towards and onto the highway across the 21-foot parking strip in front of her cafe. Had he observed her before her actual entry onto the highway, the lower her speed the more reasonable his assumption that she would stop before entering the highway and yield to his superior right of way, the faster her speed the less opportunity he had to observe or to take preventive action. We do not think this argument to be realistic viewed in the context of the second or so within which the alleged negligent acts of both parties occurred.

For the above and foregoing reasons, the judgment of the District Court dismissing plaintiff’s suit is affirmed.

Affirmed.


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    Charleston REED, Plaintiff-Appellee, v. CALCASIEU PAPER COMPANY, Inc., Defendant-Appellant.
    No. 4348.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 4, 1957.
    Rehearing Denied March 25, 1957.

      Gist, Murchison & Gist, Alexandria, for appellant.
    Robt. F. Dejean, Opelousas, for appellee.
   TATE, Judge.

On a previous appearance before this Court, we overruled an exception of no cause of action directed at petitioner’s claim to disability resulting from pain in the performance of manual labor, and we remanded this suit for trial on the merits, La.App., 80 So.2d 588. Defendant employer appeals from judgment on the merits awarding plaintiff workmen’s compensation benefits for total and permanent disability.

In our summary of the jurisprudence on this subject in our earlier opinion, we reiterated that “ ‘An employee is totally disabled if he suffers any substantial amount of pain while performing work of the same character as that in which he was engaged at the time of his injury. * * * Nor is a claimant prejudiced by the fact that the necessity for attempting to support his family by working, even under penalty of pain, requires him to make the effort’ ”, 80 So.2d 591, quoting from Anders v. Employers Liability Assur. Corp. Ltd., La.App. 2 Cir., 50 So.2d 87, 90.

The residual disability allegedly results from an operation performed upon plaintiff to repair a hernia sustained in the course of his employment on December 12, 1952. The hernia was successfully repaired; but as all four doctors testifying herein admit, due to the formation of scar tissue, the repair tightened about the sper-matic cord supporting the right testicle, as a result of which the right testicle has almost completely atrophied, and there is some atrophy of the right cord.

The doctors, while disagreeing as to the severity of the pain, agree that due to the fixation of the cord by the tightened surrounding tissues, the performance of heavy labor such as lifting could reasonably cause pain by tugging or pulling of the cord and placing pressure on the nerve supply along the cord, the amount of which pain is somewhat subjective according to the threshold of pain of the person undergoing same.

Plaintiff testified that when he strains heavily, the pain is ‘‘just like your finger was in a crack and you are pulling on it. It seems like something is pulling in the bottom part of my stomach on the right side.” With the medical testimony and the corroboration of the claimant’s complaints by the testimony of his wife, and of a former employer for a period of two years following the accident that plaintiff complained of pain at work on this latter job and gave indications of suffering, we certainly cannot hold that the District Court committed error. The District Court evaluated the testimony before it in accordance with the earlier decision in this same case directed at the identical point. and by awarding judgment for total disability accepted plaintiff’s testimony, corroborated by the medical and lay witnesses, of substantial pain in the attempted performance of heavy duties, such as lifting.

We do not find persuasive defendant’s argument as to plaintiff’s complete lack of, or else only partial, disability based upon his satisfactory performance of the duties of a filling station attendant over a period of two years following the accident. First of all, the heavier portion of these duties were performed with pain, and “no one is called on to perform work while suffering pain,” Rigsby v. John W. Clark Lumber Company, La.App. 1 Cir., 28 So.2d 346, at page 350. Secondly, the evidence indisputably establishes that at the time of his injury in defendant’s employ, plaintifl had worked for 16 months as a wood-thrower in defendant’s pulpwood unloading department, which work required the continuous lifting and handling of heavy pieces of wood, from 40 to 300 lbs. in weight and was admittedly heavy duty. Whereas the record shows that the work of a filling station attendant, while occasionally involving heavy work or lifting, is of a much lighter and more intermittent nature.

Pain even of moderate degree that is continuous because of the continuous performance of heavy manual labor, is certainly substantial enough to be disabling. The employee’s performance of lighter duties, non-lifting and not causing strain, would subject him to no pain. The performance of such lighter (and far less remunerative) work by this father with four small children to feed and clothe does not require us to disbelieve his testimony of substantial pain upon lifting or doing heavy work. And the inability to do heavy work requiring lifting or straining without pain, constitutes total disability for a laborer, Bean v. Higgins, Inc., 230 La. 211, 88 So.2d 30. “Such cases as Wright v. National Surety Corp., 221 La. 486, 59 So. 2d 695; Fruge v. Pacific Employers Ins. Co., La.App. 1 Cir., 71 So.2d 625, affirmed 226 La. 530, 76 So.2d 719; Strother v. Standard Accident Ins. Co., La.App. 1 Cir., 63 So.2d 484; Fontenot v. Goldenstern Pipe & Supply Co., La.App. 1 Cir., 50 So.2d 484; Scott v. Fulton Bag & Cotton Mills, La.App., 65 So.2d 397, hold that where an employee due to the accidental injury is unable to perform substantially the duties formerly performed by him during the employment in which injured, he is totally disabled, despite his ability to earn a living doing other and lighter or less laborious, or less (or more) skilled duties.” Cummings v. Albert, La.App. 1 Cir., 86 So.2d 727, at page 729.

As to defendant’s final argument that plaintiff should be denied compensation because he refused to submit to amputation of his right testicle and a portion of his right spermatic cord, the evidence indicates this to be major surgery, preferably done under a general anesthetic, similar to (although not quite as serious as) the original hernioplasty. We do not think the employee’s refusal to undergo such an operation any more unreasonable than a refusal to undergo repair of a hernia, which refusal upon an employee’s part has been repeatedly held not to be so unreasonable as to subject him to the penalty of loss of workmen’s compensation benefits, Johnson v. United States F. & G. Co., La.App. 2 Cir., 58 So.2d 261.

We think this employee, who had previously undergone without objection major surgery which resulted in his present disability, was not required again to subject himself to major surgery, even though the medical prognostications were as favorable as they undoubtedly had been before the first operation that such surgery would relieve him of the disability to perform heavy work without substantial pain, which disability we feel has been well proved in the record.

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

Affirmed.


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    Wheeler FUSELIER v. Sam HUDSON.

      No. 4346.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 4, 1957.
    Rebearing Denied March 25, 1957.
    C. W. Berry, Jr., Oakdale, for appellant.
    Alva Jones, Oakdale, for appellee
   LOTTINGER, Judge.

The trial judge rendered written reasons for judgment in this matter which we .herewith set out in full:

“This is a suit by Wheeler Fuselier against Sam Hudson for $400.00, the par value of 16 shares of preferred nonvoting stock in the Oakdale co-operative Dairies, Inc. of Oakdale, Louisiana. The defendant purchased the assets of the corporation by deed dated January 22, 1952 and recorded May 20, 1952, which deed was executed by a liquidator of the corporation. The deed which is in evidence as Exhibit P-3 states that the sale was made and accepted in consideration of $14,850.00 the balance due on two mortgages which were assumed by Sam Hudson.
“Practically all the testimony was introduced for the apparent purpose of showing that the defendant had agreed to pay the preferred shareholders as a part of the consideration for the assets of the corporation. Defendant objected to the introduction of any evidence to alter the terms of the contract of sale above referred to and all of the testimony was introduced over his objection. This constitutes one of the defendant’s primary defenses, his argument being that the deed was given by a liquidator of the corporation; that there is no allegation nor was there any proof that the liquidator intended to have the preferred stockholders paid for their stock. The court concluded that the parol evidence was admissible under the rule cited by plaintiff’s counsel which holds that a parol agreement which does not contradict the writing, but merely covers an additional and collateral undertaking is admissible. Dwight v. Linton, 3 Rob. 57; New Orleans & Carrollton Railroad Co. v. Darms, 39 [La.] Ann. 766, 2 So. 230; McConnell v. Harris Chevrolet Co., Inc. [La.App.], 147 So. 827; and Brandin Slate Co. v. Fornea [La. App.], 183 So. [572], 573. There is also a rule of law providing that the real and true consideration for a sale may always be shown where a consideration is expressed, even though the consideration may be different from that expressed in the deed. Morris v. Monroe Sand & Gravel Co., 166 La. [656], 659, 117 So. 763; Queensborough Land Co. v. Cazeau [x], 136 La. [724], 734, 67 So. 641; Ruston Brick Works v. Heard [La.App.], 177 So. 494; Dartez v. Meaux [La.App.], 44 So.2d 146, [147].
“Defense counsel further urged that [LSA-] Revised Civil Code Article 2278 which prohibits parol evidence for the purpose of providing any promise to pay the debt of a third person is here applicable. However, this article is inapplicable where the promisor has a material interest in making the promise, and receives consideration therefor. In such an instance the promisor binds himself to pay the debt, making his own obligation the primary obligation. Coreil v. Vidrine, 188 La. 343, 177 So. 233; Collier v. Brown, 19 La. App. 567, 141 So. 405; Wallenburg v. Kerry, 16 La.App. 221, 133 So. 823.
“At the time when the defendant was negotiating for the purchase of the corporation’s assets the corporation was facing liquidation. It could not obtain enough business to pay its overhead and certainly was unable to take care of the mortgage notes on its indebtedness which totaled approximately $15,000.00. However, the corporation had valuable assets as is revealed by the testimony of its president that it had received an offer of $25,000.00 from a large dairy concern in another city.
“Under these circumstances on November 10, 1951, the Board of Directors of the Corporation leased the plant and facilities to the defendant with the plan that a sale would be consummated within six months. At 7:30 P.M. on December 10, 1951, a meeting was held in a restaurant in the City of Oakdale to which all the preferred stockholders were invited.
“Mr. Hudson, the defendant, Mr. C. W. Berry, Jr., Mr. Alex L. Stevens, Mr. J. M. Johnson, Mr. Sullivan Aguillard, Mr. J. J. Brooks, Jr. and other preferred stockholders attended this December 10, 1951 meeting which was presided over by Mr. Wesley Dyer, president of the Co-op. The plaintiff, Mr. Wheeler Fuselier, did not attend, however, he talked to the defendant immediately following the meeting as defendant was leaving the restaurant.
“Mr. Sam Hudson, the defendant, testified that it is his recollection that at this meeting he offered to pay the preferred stockholders 500 on the dollar if they would present their certificates to him within one year from the date of the meeting. If the preferred stockholders were willing to let Mr. Hudson have the use of their money he would pay them 100%' of their investment plus 2%' interest after both mortgages were retired and only in the event that the business was "making money. In other words, it was Mr. Hudson’s position that the preferred stockholders could take 50%' cash or if they elected to gamble on the success or failure of the business, they would receive 100%' of their investment plus 2%' interest if the business was successful and nothing if the business was a failure. Mr. Hudson’s position is that the business was a failure; that the plaintiff did not submit his stock certificates. for cancellation at 500 on the dollar on or before December 10, 1952; that, therefore, defendant is not indebted to the plaintiff.
“Mr. Alex L. Stevens testifying on behalf of the plaintiff, stated that he owned some of the corporation’s preferred stock; that he had never been paid for said shares; that he made some memorandums during the meeting of December 10, 1951; that it was his impression that if the stockholders did not desire to accept 500 on the dollar in full payment for their certificates, that the stockholder would receive 100%' of his investment plus 2% interest within two or three years after the outstanding mortgages were retired; that this amount would be due regardless of the success or failure of the business.
“Mr. Wheeler Fuselier testified that he talked to the defendant immediately following the meeting of December 10, 1951; that at that time plaintiff told defendant that he would not sell his stock at 500 on the dollar; that Mr. Hudson told him that he would receive an interest bearing note for the stock; that he has never offered to surrender his stock at 500 on the dollar.
“Mr. Wesley Dyer testifying on behalf of plaintiff, stated that, he was president of the corporation and presided over the meeting of December 10, 1951; that
“ ‘Mr. Hudson agreed to pay fifty cents on the dollar then for stock — for these certificates, or if the people that held these certificates or the bidders then or who ever it was held them— held these certificates wanted to let him continue using their money, that he would give them a note and pay them two percent interest until he could pay them for their stock.
“ ‘Q. And was the note to be the fifty percent of the stock or the face value? A. No, it was to be for the face value.’
“That he received cattle from defendant in payment for his $1100.00 worth of preferred stock; that in his opinion the cattle were worth $1100.00. When being cross-examined by counsel for defendant, Mr. Dyer testified as follow:;:
“ ‘Q. Now, think back, Mr. Dyer, if you can to the night of that meeting and see if you can’t recall that in the deal where the stockholders were to be paid one hundred percent that it was strictly a gamble with them, but they would go along with the dairy and if the dairy operated and made it they would be paid after the conventional mortgages were paid? A. Well, we made them the offer and they wanted to accept it and they’d made a gamble on it, it was a gamble.
“‘Q. No, but wasn’t that the deal? A. State the Question again?
“ ‘Q. Wasn’t it the deal that they would be paid fifty cents on the dollar if they wanted to cash out at that time ? A. At that time.
“ ‘Q. Or if they wanted to take a gamble on getting all the money, go along with the operation of the dairy, they would be paid in full at sometime after the dairy was able to retire the mortgages that were against it? A. Well, the thing that were interested in would they give a note for our stock certificates in full value.
“‘Q. But wasn’t that the deal? You haven’t answered my question. Wasn’t it the deal that the business was to go along and retire these conventional mortgages and if it did they would be paid in full ? A. The man said that if they’d,let him use their money he’d pay them in full.
“ ‘Q. Wasn’t it on the basis, though, if the business would make a go of it he would retire those first mortgages that had to be paid ? A. No, it wasn’t on that basis.
“ ‘Q. It wasn’t on that basis ? A. It was on the basis of what seemed to us a guarantee.
“ ‘Q. Well, when did he say he’d take up that stock? A. He said that he’d give notes bearing two percent.
“ ‘Q. When were those notes — ? A. Renewable every year.
“ ‘Q. When were the notes to be paid? A. As he could, or if the people wanted to continue letting him use their money he would retire them as he could.
“‘Q. As he could? A. Yes, sir.
“ ‘Q. Now, did he say “as he could or as the business could?” A. Well, he said, “I’ll retire them as I can.”
“ ‘Q. Then there was a condition placed on whether he could pay those notes or not, if they would wait and get their money? A. If they would wait to get their money they could.
“ ‘Q. But you don’t recall it being conditional on the business being able to retire these conventional mortgages ? A. Well, it wasn’t based on the business.’
“Mr. J. M. (Jim) Johnson testified as a witness on behalf of the plaintiff that he attended a part of the stockholders meeting; that the meeting was held in his cafe; that he understood that the defendant would pay the face amount of the stock; that the defendant at one time offered him some cattle in payment for his preferred stock but when he went to get the cattle defendant told him he was too late. Since this witness was not present for the entire meeting, his testimony is considered of little value as to the issue to be decided.
“Mr. Sullivan Aguillard testified as a witness on behalf of the plaintiff and impressed this court a great deal with his sincerity. He testified that it was his recollection that a stockholder ‘could get the full value of his money out by trading for cattle and otherwise he could get 50$ on the dollar cash and, thirdly, if I remember right, he could get by waiting — I don’t know the length of time — just by waiting, he could get the value of his money plus 2%' interest.’
“Mr. Aguillard received cattle in payment of his preferred stock and he was satisfied that he received full value for his stock. It might be argued that Mr. Aguillard’s testimony is weakened by his recollection that the offer to take cattle in payment for stock was made at the meeting of December 10, 1951, when, in fact, this court is satisfied that there was no such offer discussed at that meeting. However, a thorough reading of this witness’ testimony will show that he made every effort to fairly and truthfully present the facts to the best of his knowledge.
“Mr. J. J. Brooks, Jr. testified that he attended the meeting of December 10, 1951; that he traded in his shares of stock for 50{S on the dollar some two or three months after the meeting; that it was his impression that any stockholder who elected to retain his stock with the hope of recovering 100%' of his investment would be paid only if the money was earned.
“Mr. C. W. Berry, Jr. testified that he attended the meeting of December 10, 1951; that there was no agreement voted on by the preferred stockholders at that meeting; that there was a great deal of discussion on several different propositions, but none of the propositions were either accepted or rejected.
“Mrs. Tracy Penny, liquidator of the corporation, was not called on to testify in this case. Neither counsel saw fit to present evidence as to the details of how the corporation was liquidated. For instance, the instrument by which the stockholders agreed to dissolve the corporation was not introduced. Neither counsel has furnished this court with any citation as to the corporation law applicable to-the dissolution of this type of corporation.
“It is apparent that the meeting of December 10, 1951 was the only attempt Mr. Hudson made to get an agreement from the preferred stockholders or that the preferred stockholders attempted to get an agreement from Mr. Hudson. It is also' apparent to this court that from the date of the meeting of December 10, 1951, the preferred stockholders had no further interest in the administration of the affairs of the corporation, and that Mr. Hudson did not expect them to have any further interest. This court has concluded that both the preferred shareholders on the one hand and Mr. Hudson on the other came to this same conclusion for the reason that it was well understood that the preferred shareholders were selling their respective shares of preferred nonvoting stock to Mr. Hudson. Therefore there was no reason to refer to Mr. Hudson’s agreement to purchase the preferred stock in the deed from the liquidator to Mr. Hudson. The agreement by which Mr. Hudson-undertook to pay the preferred shareholders was an entirely separate transaction from that by which Mr. Hudson acquired the assets of the corporation. After the preferred stockholders made their agreement to sell their shares of stock to Mr. Hudson there was no reason for them to be concerned with what happened to the assets of the corporation. Mr. Hudson does not deny that he agreed to buy the stock from the shareholders, he only contends that this agreement was extinguished when the business did not succeed.
“The weight of the evidence in this, case favors the plaintiff. Mr. Stevens who took notes at the meeting; Mr. Dyer who was chairman of the meeting ; Mr. • Aguillard who was on the-Board of Directors, were explicit m their testimony that defendant’s obligation to pay was not conditioned on the success or failure of his business. Mr. Johnson’s testimony indicates the same. As against this testimony, Mr. Brooks stated that it was his impression that defendant’s obligation to pay was conditioned on the money being •earned. Mr. Berry concluded that there was no agreement made at the meeting of December 10, 1951. However, the record shows that Mr. Berry was the attorney who prepared the •deed transferring the corporation’s assets. The fact that he did not make any attempt to have the preferred stockholders reach a further agreement with Mr. Hudson evidences his understanding that the other preferred stockholders had no further interest in the corporation. This was true be•cause the preferred stockholders had sold their shares of preferred stock to Mr. Hudson.
“From the weight of the evidence this court has concluded that the agreement between the preferred shareholders on the one hand and Mr. Hudson on the other was identical to that stated by the defendant, Mr. Hudson, in his testimony as summarized above, with the exception that his obligation to pay was not conditioned • on the success or failure of his business, i. e. that the preferred shareholders who chose not to sell their stock to defendant within one year from December 10, 1951 were entitled to $25.00 per share, together with 2% per annum interest thereon due ■one year after the date the mortgages were either paid or settled by foreclosure proceedings. The out-standing indebtedness secured by the mortgages was paid in full in the month of September, 1954.
“Defendant argues that if this be the holding of the court plaintiff’s cause of action could not arise until after the month of September, 1955, for the reason that the debt did not mature until that date. Although the amount under this court’s holding was not due until September, 1955, the suit was not premature for the reason that plaintiff was seeking to have the debt recognized, a matter which defendant resisted on the grounds that there was nothing due.
“Plaintiff is now entitled to judgment against defendant in the sum of $400.00, together with interest at the rate of 2% per annum from December 12, 1956, until paid and for all costs of court.”

A reading of the record shows that the factual findings of the Court below are amply substantiated. Likewise, we find no error in his legal .conclusions and the judgment appealed from is, therefore, affirmed.

Judgment affirmed.