author: AYRES, Judge.

text:
    Roberta T. KEENER, Plaintiff-Appellant, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, Defendant-Appellee.
    No. 8664.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.

      Charles L. Barnett, Shreveport, for appellant.
    Blanchard, Goldstein, Walker & O’Quin, Wilton H. Williams, Jr., Shreveport, for ■appellee.
   AYRES, Judge.

Mrs. Roberta T. Keener instituted this action against the Fidelity & Casualty ■Company of New York, workmen’s compensation insurer of the Arkansas-Louisiana •Gas Company, seeking to recover the maximum death benefits provided under the Louisiana Workmen’s Compensation Act, LSA-R.S. 23:1021 et seq., on account of the death, on June 12, 1954, of her husband, George Washington Keener, an employee of the Arkansas-Louisiana Gas Company.

Keener, who was sixty-eight years of age at the time of his death, was plant superintendent for his employer at its Mills Compressor Station at Rodessa, Louisiana, in which capacity he had been employed for approximately thirty-two years. In various capacities, he was in the employ of this employer for a total of forty-three years.

While so employed as plant superintendent on September 11, 1953, and while making repairs to a gas engine, his left hand was accidently caught in the gears of the engine and the two middle fingers, together with the index finger of that hand, were badly mangled, crushed and ground from their tips to near the wrist. Immediately thereafter he was conveyed to, and admitted for hospital treatment, in the P. & S. Hospital, Shreveport, Louisiana, where his injured fingers, or the fragments thereof, were amputated. After five days he returned home and two days later resumed his employment, the duties of which he continued to perform thereafter until his death, excepting the times he was hospitalized.

Due to infection developing in the injured hand Keener was again admitted to the hospital October 2, 1953, where he remained again for five days, and was readmitted December 22, 1953, where he was again hospitalized for a period of two days because of a painful shoulder which the attending physician characterized as a “frozen” shoulder due to an arthritic condition. He was further hospitalized from March 24th to March 31, 1954, and from May 26th to May 31,1954, when corrective operations were performed on his hand by Dr. J. M. Gosslee. After the last of these operations he returned to work on June 1, 1954 and continued to work until the date of his death.

On June 11, 1954, Keener worked his usual shift ending at 3:00 o’clock, p. m. Mrs. Keener returned home about an hour later, found her husband sitting in a chair in the back yard and, upon her inquiry, he complained of feeling terrible, but after eating the evening meal he retired to bed about 8:00 o’clock. About 11:15 o’clock, p. m. Mrs. Keener was called by her husband who informed her he was sick, unable to get his breath and was dying, whereupon Mrs. Keener, accompanied by a daughter and son-in-law, placed him in a car and started to a hospital in Shreveport. He died en route before reaching Vivian.

The immediate cause of death was alleged to have been due to heart failure or coronary thrombosis or coronary occlusion, which condition was allegedly brought on or superinduced by the accidental injuries suffered by Keener to his hand, from the infection developing therein, the stress, strain and worry and emotional disturbance over his condition, and the various operations performed, as well as from the excruciating pain suffered as the result of said injuries, together with lack of sleep and rest, and, finally, from the breaking down of his heart on account of stress and strain of climbing a hill about the plant in connection with his work, and particularly during his day’s work of June 8, 1954.

The contention of the defendant is that decedent died of natural causes in no way related to his employment and not from the accidental injuries sustained on September 11, 1953, or from any cause superinduced thereby or from any stress or strain of his work.

From a judgment rejecting plaintiff’s demands she has appealed.

The issue presented for determination is one of causal connection between the accidental injuries sustained in the course and scope of decedent’s employment and his death. More specifically the questions are:

(1). Was the immediate cause of the employee’s death heart or coronary failure, and,

(2). If so, was the fatal heart or coronary attack caused or contributed to by either the accidental injury which he sustained to his hand or the stress and strain undergone in the performance of his duties as superintendent of his employer’s compressor station.

Applicable to these issues are the following well settled principles of law:

1. The plaintiff in a workmen’s compensation case bears the burden of proof and is required to establish his or her claim to a legal certainty by a reasonable preponderance of the evidence; establishment of a claim to the extent only of possibility or probability is not sufficient.

2. 'Conjecture and probability may not serve as a basis for a judgment in workmen’s compensation cases.

The foregoing rules are so well established that citation of authorities seems unnecessary. However, some of the more recent cases enunciating these rules are:

Green v. Heard Motor Co., Inc., 224 La. 1078, 71 So.2d 849; Hogan v. Stovall Drilling Co., La.App., 55 So.2d 284; Roberts v. M. S. Carroll Co., La.App., 68 So.2d 689; Driggers v. Coal Operators Cas. Co., La.App., 73 So.2d 602; Smith v. International Paper Co., La.App., 73 So.2d 652; Robbins v. Chicago Mill Lbr. Co., La.App., 76 So.2d 635; Henderson v. New Amsterdam Cas. Co., La.App., 80 So.2d 438; Kraemer v. Jahncke Services, Inc., La.App., 83 So.2d 916; Braziel v. Pope, La.App., 86 So.2d 717; Fourchea v. Maloney Trucking and Storage, Inc., La.App., 88 So.2d 82; Davis v. Reynolds, La.App., 96 So.2d 368.

Considering the questions in the order enumerated, our review of the record leads to the conclusion that by reasonable preponderance of the evidence it has been satisfactorily established that the immediate-cause of the employee’s death was coronary thrombosis or coronary occlusion, and that,, accordingly, the first of these questions-should be answered in the affirmative.. When awakening on the night of her husband’s death plaintiff observed her husband’s-condition, and, in testifying, detailed the-signs and symptoms experienced by him only a short time prior to his death. These consisted of severe pain in the chest, shortness of breath, smothering, weakness, paleness, nausea, vomiting and profuse perspiration.

After Keener’s collapse en route from his residence and before reaching Vivian, services of an ambulance were sought in a funeral home there for the purpose of completing the trip to the hospital. While at the funeral home Dr. Wayne Shepherd, a local physician, was called and, on his arrival, attempted to revive Keener by the administration of drugs, but his efforts were of no avail. From his examination and history given him at the time, as well as from his observation of the process of embalming conducted by the undertaker, the doctor was of the opinion that death was caused by some cardiac disturbance— a coronary thrombosis or occlusion. It was particularly noted by him that an abnormal amount of coagulated or clotted blood was taken from the right side of the heart through the femoral vein which was consistent with his conclusion. The doctor’s testimony was corroborated in this respect by other medical testimony contained in the record.

Nevertheless, defendant contends that plaintiff has failed to discharge her burden of proof by establishing, through a preponderance of evidence, that either the accident originally sustained or the stress and strain of the employee’s work at the station had any causal connection with his death.

Testifying for plaintiff, in addition to Dr. Sheperd, were Drs. Frank T. Dienst, Jr. and S. W. Boyce. Dr. T. J. Smith, who attended the employee and performed the operation following the injury of September 11, 1953, was not called by plaintiff but by defendant. Dr. J. M. Gosslee, who performed the subsequent corrective operation at the Highland Sanitarium, was not called as a witness, nor was his testimony obtained by deposition. No reason has been advanced why his testimony was not obtained.

The principle is well established in the jurisprudence of this state that upon plaintiff’s failure to secure the testimony of a physician who, at his own request, has examined and/or treated him, in the absence of some explanation for his nonappearance at the trial, it must be presumed that such testimony would be adverse to plaintiff.

White v. Travelers Insurance Co., La.App., 94 So.2d 564; Walker v. Monroe, La.App., 62 So.2d 676; and the authorities therein cited.

Therefore, it could only be concluded that Dr. Gosslee’s testimony would not have supported plaintiff’s contention.

Neither was the hospital records and charts properly authenticated as a prerequisite to their introduction and filing in evidence. The records were never filed. Likewise, no reason has been advanced for the failure to make the necessary preliminary proof for the admission of these documents in evidence.

Of the doctors testifying only Dr. Shepherd saw Keener, and he saw him one time and that at the funeral home some 20 to 30 minutes following his death. Obviously, therefore, the opinions which they expressed were predicated upon information not of their own personal knowledge but information gained from other sources. Even with some personal knowledge Dr. Shepherd was unable to express an opinion supporting plaintiff’s contention of causal connection between the employee’s accidental injuries and/or his employment with his death. For example, in an excerpt from his testimony, and in answer to hypothetical questions, it was stated:

“Q. Doctor, would you assume that on September 11th, 1953, Mr. George Keener, a man who was sixty-seven years old, got his left hand caught in some gears and three fingers and the middle part of his hand up nearly to the wrist was ground off in the gear, and he suffered severe pain and shock to the extent that he turned white as a sheet and later developed symptoms of heart trouble, would you say that such a shock would be sufficient to precipitate coronary occlusion or coronary thrombosis or heart trouble? A. I think the added stress may have contributed something to it, but the way I understand it was, I believe the accident was some time in September, since you mentioned it — I didn’t remember the period of months — and when his death was, was severál months later. Now, if he had any latent cardiac trouble or arteriosclerosis, the added stress at that time may have had something to do with it. I wouldn’t say. I am not sure about that, whether it would or not.
“Q. But, shock does frequently precipitate such an occurrence ? A. Added stress from any cause, traumatic injuries, but what part it played sever al months later I don’t know, because I don’t knoiv anything about his history in the past, whether he had latent or possible heart disease or not.
“Q. Would you assume that this man suffered pain in his hand and shoulder continuously from the time he was injured up until June 8th, 1954, and during that time he underwent two corrective operations on his hand and lost considerable weight and on June 8th he climbed a hill in the performance of his duties, immediately after which he suffered shortness of breath and blueness around his neck and suffered severe pain in his chest, what would be your opinion as to whether or not such activity could cause or contribute to a man’s death three days later from coronary insufficiency ? A. I think at the time of the exertion, he climbed this hill, it is very possible he may have at that time had either a pulmonary embolism or a thrombus. Of course, embolism is nothing more than a fragment or a blood clot or thrombus that becomes detached and through circulation gets into the lung, and if there was actually blueness of the skin, cyanosis, it is pretty obvious there was a circulatory disturbance of the system involving the cervical area and the neck and it would either be in the lung or certain of the vessels. I would say possibly a pulmonary. And, if he had severe pain, either one would explain chest pain, and maybe pallor and weakness and may have had a cough, I don’t know, but that sometimes goes along with it, and if there is an embolus in the lung usually there is some bloody sputum made. Certainly, shortness of breath and chest pain and weakness are symptoms of both and are precipitated usually by exertion or following exertion.
“Q. Assuming then that from this incident on June 8th that he suffered continually with pain in his chest and shortness of breath, what would be your opinion as to whether or not he had heart trouble at the time of this exertion ? A. Well, that would be difficult to say. It would be difficult to say. You could have it either active or latent. If it was latent or inactive and if a person did a physical examination of him you could not detect anything organically or clinically wrong with the heart, but then again it would have been brought about by the exertion, but that is possible, and not knowing about his condition or never having examined him before or no history from any doctors that saw him before that, I don’t know.” (Emphasis supplied.)

Dr. Dienst was of the opinion the employee may have suffered some sort of coronary catastrophe at the time of the injury to his hand which contributed to his death. Dr. Boyce testified it was his opinion that Keener suffered a coronary attack at the time of the injury to his hand and that such an attack was the cause of his subsequent death. These opinions, as the witnesses so stated, were based upon the hospital records, charts, the allegations of plaintiff’s petition and the death certificate.

As heretofore noted, the hospital records were never filed in evidence, and do not constitute a part of the record. But, from the information obtained from them, Dr. Dienst concluded that Keener developed a shoulder-hand syndrome about three months following the accident, which he believed to be an indication of heart damage at the time of the accident. From the same source of information Dr. Boyce drew and expressed the same conclusion. Defendant objected to the testimony of these physicians and questioned the basis upon which their opinions were predicated. For instance, preliminary to pressing these questions Dr. Dienst was asked:

“Doctor, I will ask you if you have had occasion to read and study and analyze the hospital records and the medical record of Mr. George Washington Keener?”

To which he replied:

“I have, yes, sir.”

To Dr. Boyce a similar question was propounded and a like answer was given. Since these hospital records were not in evidence it is impossible to ascertain what information they gleaned therefrom which caused them to form their opinions. In propounding the hypothetical questions the witnesses were asked to assume as true certain facts contained in these documents. The truth or correctness of their recitals was not established by either Keener's physicians, Dr. T. J. Smith and Dr. J. M. Gosslee,, or by the nurses or other representatives of the hospital, or by any one who may have been able to have attested to the correctness of the information contained in such records. Notwithstanding that the record reflects that attention was directed by the trial judge to the importance and necessity of securing the necessary testimony for establishing these documents, no witness was called for that purpose. Under these circumstances the documents relied upon were hearsay and inadmissible. Accordingly, the opinion of the doctors based thereon is without probative value as neither opposing counsel nor the trial court were afforded an opportunity to determine the correctness of the information upon which the opinions were based.

In a similar situation with reference, to records of a charity hospital in an action arising prior to the enactment of Act 90 of 1938, now LSA-R.S. 13 :3714, as amended by Act 519 of 1952, such records were held inadmissible and the testimony of the medical experts based thereon was likewise held inadmissible. This act, however, has no application other than to records of charity hospitals.

In Gaines v. Acme Industrial Life Ins. Co., La.App., 155 So. 276, it was stated:

“The record of the Charity Hospital, which included a detailed statement of the treatment administered and a post mortem autopsy, were admitted in evidence over the objection of plaintiff’s counsel, and, if the action of the court in allowing this evidence had been correct, it would doubtless have been an important factor in our consideration of the case, but under repeated rulings of this court the records of the Charity Hospital, when objected to, are inadmissible because they are hearsay; and the testimony of the defendant’s medical expert based upon these records is, for the same reason, also objectionable and cannot be considered. Dolan v. Metropolitan Life Ins. Co., 11 La.App. 276, 123 So. 379; William v. Locicero (La.App.) 142 So. 856; Ayo v. Holzenthal, 19 La.App. 561, 141 So. 92.”

To the same tenor is an expression contained in 58 American Jurisprudence, page 869, verbo “Workmen’s Compensation”, Section 451, reading:

“As in other cases, however, the value of the opinion of an expert witness is dependent on and is no stronger than the facts upon which it is predicated, and it has no probative force unless the premises upon which it is based are shown to be true.”

One of the bases upon which Drs. Dienst and Boyce predicated their opinion was an assumption that the pain in Keener’s shoulder, of which he complained when admitted to the hospital by Dr. Smith on December 22, 1953, was referred pain from a damaged heart to the shoulder. According to Dr. Smith, this assumption was erroneous. He testified Keener at the time did not have referred pain but actual pain originating in his shoulder and hand from an arthritic condition described as a “frozen” shoulder, and in his hand, from the injury.

Likewise, in several instances there was no proof of the allegations of plaintiff’s petition which plaintiff’s witnesses may have taken into consideration in arriving at their conclusions, or, in some instances, such allegations were disproved. For instance, is is alleged that following the, original accident plaintiff’s hand became infected and from that he developed gangrene resulting in blood poisoning or septicemia. The attending physician testified to the contrary and denied that such condition existed and stated that, while Keener had a low grade infection, tests were run showing that no blood stream infection ever developed.

Neither was Dr. Gosslee nor his nurse called to substantiate plaintiff’s allegations that in the performance of a second of a series of corrective operations the time consumed in such operation aggravated three hours and twenty minutes, or that during and immediately following Keener turned blue and cyanosed about the neck and face and suffered shortness of breath.

Neither does the proof substantiate plaintiff’s allegations as to the length and grade of the hill upon which the compressor station was located and over which it is alleged the employee walked to reach meters and pressure gauges. The proof shows that instead of a distance of 600 to 800 feet, in reality, it was approximately one-third that distance. And, instead of a grade of 35 to 40 degrees, there was only a moderate slope, over which the photographer testified he walked several times, in taking pictures which were offered in evidence, apparently without exertion. Nevertheless, this was the same plant and the same grounds at which and over which the der ceased had worked and walked for some thirty-two years. There was no unusual or out of the ordinary labor, tension or exertion or undue effort on deceased’s part on June 8, 1954 when it was alleged he suffered with an ailment of his heart.

As to the employee’s complaint of pain in the pit of his stomach, Dr, Charles Holt, from his examinations and treatments in December, 1952 and during • September, 1953, gives a probable account thereof in explaining that the decedent had a duodenal ulcer in that area of his stomach.

It is a cardinal rule that for an expert opinion to be of value the reality of the state of facts upon which such an opinion is predicated must be shown to exist. An opinoin based on assumed facts, varying materially from the actual facts, is without probative value and is insufficient to sustain a judgment. Neither is a medical opinion entitled to weight which is predicated upon an incorrect assumption of facts. Bayless v. Jefferson Standard Life Ins. Co., La.App. 148 So. 465; Grober v. Grace Logging Co., 18 La.App. 185, 137 So. 613; 32 C.J.S., verbo Evidence, paragraphs c and d, § 569, pp. 396-401.

Therefore, the opinions of Drs. Dienst and Boyce are insufficient to establish a causal connection between the employee’s accidental injury or any stress or strain of his employment with his death. Should their testimony be otherwise admissible there would be only a showing of a mere possibility, or not more than a probability, of such causal relationship, and such proof is insufficient.

However, to the contrary is the opinion of Dr. T. J. Smith, who attended the employee for approximately six months following the original accident, who testified that during that period Keener had no symptoms of any heart disturbance or coronary trouble, nor did he complain of shortness of breath. A similar opinion was expressed by Dr. M. D. Hargrove, a heart specialist, the purport of which is that there was no relationship between the accidental injuries sustained by the employee on September 11, 1953, or to any stress or strain in his work on June 8, 1954, and his death four days later.

The heart attack of which Keener died is shown to have first manifested itself about 11:15 o’clock p. m., June 11, 1954, approximately eight hours after he had completed his day’s work, several hours after he had eaten his evening meal, and about three hours after he had gone to bed.

Our most painstaking review of the record has led us to the conclusion that the record does not establish by that preponderance of evidence, and to that degree of certainty, any causal relationship between Keener’s employment and his accidental injuries and his death that would warrant a judgment holding his death resulted in the course and scope of his employment or from causes arising within his employment.

We fail to find any error in the judgment appealed and, accordingly, it is affirmed at appellant’s cost.

Affirmed.


source: Caselaw Access Project

author: GLADNEY, Judge. PER CURIAM.

license: Public Domain

text:
    George M. LYNCH and Faye Stewart Lynch, Plaintiffs-Appellees, v. Paul CULPEPPER et al., Defendant-Appellant.
    No. 8673.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25, 1957.
    Writ of Certiorari Denied Oct. 8, 1957.
    Malcolm Lafargue, Shreveport, for appellant.
    Wellborn Jack, Shreveport, for appellee.
   GLADNEY, Judge.

This action was brought by George M. Lynch and Faye Stewart Lynch against Paul Culpepper and other defendants for the recovery of damages occasioned by personal injuries received by Mrs. Lynch, loss of wages during the period of disability, and medical expenses incurred by the community. Following a trial on the merits, judgment was rendered in favor of George M. Lynch for a total of $820 as loss of wages, $681.95 for medical expenses incurred, and the sum of $2,000 was awarded to Mrs. Lynch for personal injuries.

The petition filed herein names as defendants Paul Culpepper, City Drug Store and/or Culpepper’s Drug Store, a commercial partnership composed of Paul Culpep-per and Jacob Segura, Sr., Jacob Segura, Sr., and James W. Burr, Sr., individually and in his representative capacity as father of the unemancipated minor, Roy Burr. The judgment rendered below cast Paul Culpepper individually and James W. Burr, Sr., individually, and in his representative capacity. Jacob Segura, Sr., individually, and the named partnership composed of Paul Culpepper and Jacob Segura, Sr., were exonerated and the demands against these parties were rejected. An appeal has been perfected only on behalf of Paul Culpepper, individually, and consequently the judgment is definitive as to the other named defendants. Plaintiffs have answered the appeal, asking that the judgment be increased by this court.

For a cause of action Mrs. Lynch alleges that on August 26, 1953, at about 5:40 o’clock p. m., at which time the weather was clear and the streets dry, she was walking across Washington Street in the Town of Mansfield, Louisiana, when she was struck by a bicycle being ridden by Roy W. Burr, and as a result of the impact she was knocked to the pavement and sustained severe injuries to her left leg and hip, which resulted in operative procedure and extended confinement. Plaintiffs allege that at the time of.the accident Roy W. Burr, a minor, was employed as a bicycle delivery boy by Paul Culpepper and a partnership composed of Paul Culpepper and Jacob Segura, Sr., known as City Drug Store, and that said employee was acting within the scope of his employment at the time his bicycle struck Mrs. Lynch. Negligence is attributed to Burr in that he was riding his bicycle south on Washington Street when the signal light for him was red; that he was riding his bicycle on the left side of Washington Street; that his bicycle was equipped with defective and faulty brakes; and that he failed to keep a proper lookout in time to see plaintiff, Mrs. Lynch, and avoid striking her. Petitioners invoke also the last clear chance doctrine.

In defense of the action brought against them, defendants uniformly assert in their respective' pleadings that the existence of a partnership between Culpepper and Segura was restricted to the handling of prescriptions under the trade name of City Drug Store; that Segura is the manager and druggist thereof which is owned by Paul Culpepper and Jacob Segura, Sr., as equal partners; and that another portion of the drug establishment is solely owned by Paul Culpepper. It is further averred by respondents that Roy Burr was employed solely by the partnership and had no connection with the fountain or sundry departments of the store; that on October 26, 1953, Roy Burr was not making a delivery for the prescription department but was making an unauthorized delivery of a malted milk from the fountain department, and in making said delivery carried no articles of merchandise from the prescription department; and that his salary of $15 per week was paid entirely by the prescription department.

Further answering, the defendants alleged that at the time of the accident Roy Burr was riding a bicycle owned by him, in good working condition, and as he headed south on Washington Street for the purpose of making the aforesaid delivery he stopped for a red light at the intersection of Polk Street; that when the green light came on he waited on traffic to see if any vehicles were making a left turn before proceeding down Washington Street; that Mrs. Lynch started across Washington Street, going east in the face of a red light and in doing so walked out from behind traffic traveling north and south on Washington Street with the green light, and stepped in front of the bicycle being ridden by Roy Burr

It is charged that the accident was caused by the negligence of Mrs. Lynch in: attempting to cross the street in the face of a red light; leaving a place of safety and placing herself in a position of danger; walking directly in front of the bicycle being ridden by Roy Burr; and in failing to see the approach of the bicycle, or if seen, in failing to heed its approach and walking in front of it. Contributory negligence is especially pleaded, and the last clear chance doctrine is invoked. An exception of no cause or right of action filed on behalf of defendants was referred to the merits and disposed of by the trial judge in a written opinion which recorded his decision upon the merits of the case.

We think it proper that it be first determined whether Roy W. Burr was guilty of any act of negligence constituting a proximate cause of the accident. Testimony in behalf of plaintiffs was given by Mrs. Lynch, Gordon Golsan, a motorist who was proceeding westerly on the same light and in the same direction as was Mrs. Rynch, and Miss Earl Cooley, who was driving a motor vehicle north on Washington Street and stopped for a red light at the same time Mrs. Lynch was crossing the street directly in front of her. Evidence was tendered in support of defendant’s position in the testimony of Roy W. Burr, James William Dorman and John Floyd Johnson.

After carefully reviewing the testimony and weighing the credibility of the witnesses involved, the trial court accepted the testimony on behalf of plaintiff and rejected that given by the defendant’s witnesses. After our review of the record it leaves this court in complete agreement with the trial judge in his findings on the issue of negligence.

At the scene of the accident, the intersection of Polk Street and Washington Street, Polk Street enters from the east but does not cross Washington Street, thus forming a “T” intersection. Polk Street runs east and west and Washington Street north and south. The intersection is governed by a traffic signal light reflecting red, yellow and green at intervals. Polk Street is forty-six feet in width and Washington Street is forty-eight feet in width.

Mrs. Lynch testified that after observing the signal light had flashed green toward the east or traffic entering Washington Street from Polk Street, she appraised Washington Street for traffic approaching from the south, and observed the automobile of Miss Earl Cooley stop near the southeast corner of the intersection and she thereupon undertook to walk across Washington Street. After she had taken about three steps, according to her testimony, she was struck by the bicycle which she did not see, and fell to the street, thus sustaining the injuries she has received.

Mr. Gordon Golsan, an attorney of Mansfield, had entered his car which was parked on the north side of Polk Street about twenty-five feet from the intersection with Washington Street, and drove his automobile to the intersection for the purpose of making a south or left turn on Washington Street, and there waited for the light until it gave a green signal. At that time he observed Mrs. Lynch was waiting. He testified he entered the intersection upon the proper signal light as did Mrs. Lynch and he began his left turn, slowing his vehicle so that Mrs. Lynch could safely cross in front of his car. It was at about this time that Roy Burr, riding his bicycle southward along Washington Street, passed the Golsan vehicle from the rear and struck Mrs. Lynch when she was approximately seven feet from the east curb of Washington Street.

The testimony of Miss Earl Cooley is not particularly important except for her statement that when Mrs. Lynch started from the southeast corner of the intersection in front of her car, she was stopped at that point because of a red light toward her. Her testimony, therefore, is corroborative of that of Mrs. Lynch and Golsan that Mrs. Lynch was walking with a green light across Washington Street.

Roy W. Burr testified that he stopped at the northeast corner of the intersection for a red light and proceeded southerly on a green light along the south side of Washington Street. He stated there was nothing to obstruct his view of Mrs. Lynch, who, he declares was walking across Washington Street against a red light. Apparently, Roy W. Burr was watching the automobiles in the intersection and did not see Mrs. Lynch until the moment of impact.

The testimony of Dorman amounts to nothing more than he observed Roy Burr approach the intersection and stop on a red light. He stated also he saw Mr. Golsan cross the street. The inference from his testimony is that Golsan was entering the intersection on a red light and, therefore, Mrs. Lynch was likewise crossing Washington Street upon the wrong signal light.

The judge a quo stated that he was not impressed with the testimony of John Floyd Johnson who testified he saw the accident but also seemed to argue the fault of Mrs. Lynch. Upon cross examination it was shown this witness repeatedly conferred with each of the defendants prior to trial and refused to impart any knowledge to plaintiffs’ counsel. As we read his testimony, the effect of it is to indicate that Mrs. Lynch sought to cross Washington Street on an improper signal. If accepted as true, this testimony would not exonerate Roy W. Burr, who himself admits to negligence by reason of his failure to observe Mrs. Lynch although there was nothing to obscure his view.

Even though it be conceded, arguendo, that Mrs. Lynch was crossing on an improper signal, in our opinion the proximate cause of the accident was the failure of Burr to maintain a proper lookout for the safety of pedestrians. We are, however, convinced there is no error in the finding by the trial court Mrs. Lynch was crossing Washington Street on a green light. The facts fully support the decision from which appealed and we have no hesitancy in finding that the sole and only cause of the accident was the negligence of Roy W. Burr.

The foregoing resolution makes it unnecessary to belabor the question of negligence charged against Mrs. Lynch. Our examination of the record demonstrates no fault on her part and in consequence of this finding the pleas of contributory negligence and last clear chance urged by appellant have no application herein.

The more difficult issue which arises is the relationship between Paul Culpepper, the appellant, and Roy W. Burr. The liability of Culpepper is predicated upon the doctrine of respondeat superior, reflected in Article 2320 of the LSA-Civil Code, which declares that masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed. In the instant case it is contended that Roy W. Burr was not an employee of Paul Culpepper and at the time of Mrs. Lynch’s injury Burr was making a delivery which had not been authorized. The trial court concluded from the evidence that at the time of the delivery, Burr was performing no function in behalf of the partnership, and, in fact, was acting beyond the scope of his employment, and, therefore, there was no liability on the part of the partnership, and its individual members.

It is, we think, conclusively established that Burr was employed originally by Mr. Segura and paid entirely by the partnership, that is to say, he received no other remuneration for his work. There can be no doubt that at the time of the accident Burr was delivering1 a malted milk to Robert Hargett, who was then a patient at the Curtis Clinic. .Without contradiction it was testified by-Hargett that he did not ordar a malted milk, but it was ordered and sent to him gratuitously by Mrs. Carl Talbert, an employee of the Tax Assessor’s office. Miss Shirley Billingsley testified she was an employee of Mr. Culpepper in the sundry department of the drug store, that she received the order over the telephone and directed Roy Burr to make the delivery. She also stated that neither Paul Culpepper nor Jacob Segura was present at the store at the time. Mrs. Culpepper, her superior, was present somewhere in the store when the instructions were given to Burr. It is also clear that Burr had no package or prescription to by delivered from the prescription department of the drug store at the time he undertook his journey.

Miss Billingsley and Roy Burr both testified that they had on numerous occasions, ranging from one to several times per week, participated in receiving orders and making deliveries on behalf of Mr. Culpepper’s store, to the clinic or the hospital. This was done on occasions when prescriptions were being delivered and on occasions when only articles from the sundry department of the drug store were being delivered. A practice was established not to refuse to make deliveries to patients in the clinic or the local hospital. However, Mr. Segura, Mr. Culpepper, Miss Billingsley and Roy Burr testified that they were supposed to secure the permission of Mr. Segura before deliveries other than those from the prescription department were to be made. Upon repeated cross examination it was established that such deliveries were not refused.

The foregoing facts squarely raise the question as to whether Roy W. Burr was acting as an employee of Paul Culpepper on the occasion of the accident. In determining this question it is well to consider that as a partner in the prescription department Roy W. Burr was presumed to have recognized Paul Culpepper as his boss. Furthermore, it must be noted that Burr received no compensation for deliveries when he was not acting within the scope of his employment with the prescription department. Certainly, his employment with the partnership did not require him to make deliveries for Culpepper’s individual business unless there was some understanding that Burr would do so when requested. We recognize, of course, the definition of a partnership and its implications as to the responsibility of its individual members as reflected in the case of Trappey v. Lumbermen’s Mutual Casualty Company, 1956, 229 La. 632, 86 So.2d 515. Nonetheless, the relationship between the prescription department or the partnership and the individual business of Paul Cul-pepper was so close that undoubtedly his power and right to control Roy Burr was not questioned, irrespective of his fuctions, by Mr. Segura, the employees, or Roy Burr.

It is well settled that a contract of hiring may be implied from the circumstances. In Standard Oil Company v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 254, 53 L.Ed. 480, the Supreme Court of the United States had for consideration whether Anderson was an employee of the Standard Oil Company or of a master stevedore. The court, after recording the reasons of the rule for a master’s responsibility, had this to say:

“It sometimes happens that one wishes a certain work to be done for his benefit, and neither has persons in his employ who can do it nor is willing to take such persons into his general service. He may then enter into an agreement with another. If that other furnishes him with men to do the work, and places them under his exclusive control in the performance of it, those men become pro hac vice the servants of him to whom they are furnished. But, on the other hand, one may prefer to enter into an agreement with another that that other, for a consideration, shall himself perform the work through servants of his own selection, retaining the direction and control of them. In the first case, he to whom the workmen are furnished is responsible for their negligence in the conduct of the work, because the work is his work, and they are, for the time, his workmen. In the second case, he who agrees to furnish the completed work through servants over whom he retains control is responsible for their negligence in the, conduct of it, because, though it is done for the ultimate benefit of the other, it is still, in its doing, his own work. To determine whether a given case falls within the one class or the other we must inquire whose is the work being performed, — a question which is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work. Here we must carefully distinguish between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking.”

In the instant case there can hardly be any question when all of the circumstances as reflected in the instant record are considered, that Paul Culpepper in his individual business had the authoritative right to control the actions of Roy Burr when he was on an exclusive mission in the interest of Culpepper’s business. Culpepper stoutly contends that the delivery of the malted milk to Hargett was unauthorized, but this contention does not seem to be supported by the record. In fact, the testimony of Miss Billingsley and Roy W. Burr, indicates very clearly that Culpepper had long before given a general assent and approval for deliveries to the clinic by Burr from his individual business. Certainly, we think it should be noted that the mission was not a personal one for and on behalf of Burr, and it can be assumed that Miss Billingsley simply acted in behalf of her employers. The statement of law as; set forth in the Standard Oil Company v. Anderson decision has been fully approved in this state in Benoit v. Hunt Tool Company, 1951, 219 La. 380, 53 So.2d 137.

We resolve, as did the trial judge, that at the time of the accident the relationship of master and servant existed between Paul Culpepper and Roy W. Burr, and that the latter was acting within the scope of his authority in delivering the malted milk from Culpepper’s business to the clinic. In view of our holding as hereinabove set forth, we must also agree with the conclusion of the trial judge that the exception of no cause or right of action, or exception of want of interest was properly overruled. •

Our further consideration is directed to an examination as to quantum. Plaintiffs object to the award in that it is too small and appellant seriously contends that it is too large.

The record reveals that Mrs. Lynch sustained a complete break of the left thigh, that is an intracapsular fracture of the neck of the left femur. She was removed from the hospital at Mansfield after X-rays had disclosed the nature of her injury to the North Louisiana Sanitarium in Shreveport, Louisiana, where on October 27, 1953, Dr. D. F. Overdyke, Jr., orthopedist, performed an open reduction of the fracture and affixed a Smith-Petterson nail. She remained in the hospital until October 29, 1953, when she returned home and remained in a hospital bed there for a period of six weeks. . She then used a wheel chair for another eight weeks. On April 6, 1954, the patient was walking with one crutch apparently without pain. When observed by Dr. Overdyke on August 9, 1954, Mrs. Lynch was able to walk without the aid of a crutch or cane and had returned to normal activity. In order to assist Mrs. Lynch in securing employment, Dr. Overdyke on May 7, 1954, wrote a letter to her former employer advising that Mrs. Lynch was able to return to full time employment. Dr. Overdyke explained that at the time this letter was written, Mrs. Lynch was suffering from fatigue, with a hit of swelling, and some stiffness and pain upon maximum motion. Mrs. Lynch testified she was able to do some work prior to October, 1954, since which time she has been receiving a weekly wage of $30.

Dr. Overdyke, from an examination of Mrs. Lynch on November 28, 1954, concluded that because of generalized discomfort and fatigability about the hip, a partial permanent disability of from ten to fifteen per cent of the body as a whole, was estimated. Mrs. Lynch was forty-six years of age when injured. She testified as a result of the injury to her left thigh the added weight placed on her right foot caused the arch of her right foot to break down, thus occasioning pain which necessitated prescriptions for sedation. She complained of residual pain at the time of trial, more than two years after the accident. Dr. Overdyke said she will continue to have fatigue and weakness as a result of the hip injury. We accordingly believe that the judgment in favor of Mrs. Lynch in the sum of Two Thousand ($2,-000) Dollars is inadequate and should be increased to Four Thousand ($4,000) Dollars.

Counsel for George W. Lynch argues on the appeal that the allowance by the trial court for the loss of earnings by Mrs. Lynch in the sum of Eight Hundred Twenty ($820.00) Dollars should be increased. The petition limits the entitlement of the earnings to One Hundred Twenty-Five ($125.00) Dollars per month, alleged therein to be the monthly earning before injury. Evidence presented through the income tax return of Mr. Lynch indicates that Mrs. Lynch earned during the year 1953 an average monthly wage of One Hundred Forty-One and 26/100 ($141.26) Dollars. However, because of pleadings any award to be made, must, in our opinion, be limited by the pleadings. Although Dr. Overdyke wrote a letter to Mrs. Lynch’s former employer that she was able to return to work as of May 7, 1954, his testimony indicates that actually she could not perform her duties without pain and discomfort. Mrs. Lynch testified that she was not able to really resume her full duties until October or at least four months subsequent to the date of Dr. Overdyke’s letter. We think Mr. Lynch is entitled to recover for loss of earnings from August 26, 1953, until September 26, 1954, or for a thirteen month period, the effect of which allowance Í9 to increase the award therefor to a total of One Thousand Six Hundred Twenty-Five and No/lOO ($1,625) Dollars. We approve of, as being correct, the finding of the trial judge as to the medical expenses and find no occasion to alter the amount.

For the foregoing reasons the judgment from which appealed is amended by increasing the award in favor of Mrs. Lynch to the sum of Four Thousand ($4,000) Dollars and by increasing the amount in favor of George W. Lynch to the sum of One Thousand Six Hundred Twenty-Five and No/100 ($1,625) Dollars.

As so amended, the judgment is affirmed at appellant’s cost.

PER CURIAM.

Motion to correct the opinion and decree of this court rendered June 28, 1957, has been filed by counsel for plaintiffs-appellees. After consideration of the matters set forth in said motion the same is allowed and, accordingly, the opinion and decree are corrected to the extent hereinafter set forth.

The allowance to plaintiff, George M. Lynch, for his wife’s loss of earnings should be based upon a period of eleven months beginning with the date of the accident, October 26, 1953, and running until September 26, 1954, at the rate of $125 per month, aggregating the sum of $1,375.

Accordingly, it is ordered, adjudged and decreed that the judgment from which appealed be and it is hereby amended by increasing the award in favor of plaintiff, Faye Stewart Lynch, to the principal sum of $4,000, and by increasing the amount of the judgment awarded in favor of plaintiff, George M. Lynch, to the principal sum of $2,056.95.

As amended the judgment is affirmed at appellant’s cost.

Appellant’s application for rehearing is denied.


author: HARDY, Judge.

text:
    CENTRAL LOUISIANA ELECTRIC COMPANY, Inc., Plaintiff-Appellee, v. Oren LaMar PUGH, Jr., et al., Defendants-Appellants.
    No. 8690.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25, 1957.

      Robert G. Pugh, Shreveport, for appellant.
    Bethard & Bethard, Coushatta, for appel-lees.
   HARDY, Judge.

This action was instituted by plaintiff for the expropriation of a right-of-way across lands owned by defendants located in Red River Parish, Louisiana. The case was tried on the merits but, before conclusion of the trial, defendants filed an exception of no right and no cause of action. The exception was overruled, and there was judgment for plaintiff, from which defendants have appealed.

Plaintiff, after failing to negotiate a private agreement with defendants for the acquisition of a right-of-way across the property described brought this suit to expropriate a right-of-way one hundred feet in width for the purpose of erecting thereupon a 138 KV line for the transmission of electricity from a point approximately four miles north of Coushatta in Red River Parish to a point in or near the Town of Mansfield in De Soto Parish, where an electric substation was under construction.

The exception of no cause or right of action which was filed on behalf of defendants is based upon the following contention as set forth by counsel for defendants in brief before this court:

“ * * * plaintiff had founded its right to exercise eminent domain and to expropriate a right of way over defendant’s (sic) land on the fact that it was created for the purpose of developing and transmitting electricity for power, lightening (sic), heating and other uses, when the charter as filed in the record failed to authorize this right to develope (sic) and transmit electricity for power, lightening (sic), heating and other uses, and further because the charter authorized the plaintiff to engage in business which was purely private in nature and that, therefore, it was not authorized to expropriate land for its uses.”

The charter of plaintiff corporation, which was introduced in evidence on trial of the case, sets forth the following pertinent provisions with reference to the objects and purposes, inter alia, for which the corporation was organized, as follows:

“To construct * * * maintain and operate * * * electric light and power plants and systems * * *.
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“ * * * to produce, manufacture, own, sell or otherwise dispose of, furnish, deal in and supply, * * * electricity, * *

The argument advanced by learned counsel for defendant that the articles of incorporation failed to “include any provision for the development and transmission of electricity for power, lighting, heating and such other uses, * * * ” is completely untenable in view of the quoted extracts from the charter provisions. Such a construction would lead to the absurd and ridiculous conclusion that a corporation organized for the purpose of selling and dealing in electricity is not authorized to transmit such commodity. The above quoted extracts from the charter in themselves serve to dispose of this argument adversely to defendant’s contention.

Next it is urged on behalf of defendants-exceptors that the corporation does not possess the right of expropriation because it is organized for the purpose of carrying on private business. The burden of counsel’s argument on this proposition appears to be that plaintiff corporation is a business entity which was organized for multifarious purposes and because its activities are not restricted to a single purpose charged with the public service, it is therefore precluded from the exercise of the rights of expropriation. Counsel relies upon and quotes extensively from Louisiana Navigation & Fisheries Co. v. Doullut, 114 La. 906, 38 So. 613, 615.

Reference to the cited case convinces us that it cannot be considered as authority for the proposition submitted, and, indeed, we do not think it is authority for any legal principle. The pronouncements of the court to which counsel refers were developed in the opinion of the court on original rehearing. A rehearing was granted and in the course of the opinion on rehearing Mr. Justice Land made this observation:

“Certain expressions in our former opinion relative to multifarious corporations seem to have aroused the fears of such institutions throughout the state as to their legal status. These expressions were used arguendo, and should not be considered as authoritative.”

On rehearing the case was remanded to permit the consideration of questions with reference to the legal effect and constitutionality of Act 120 of 1904, having for its purpose the confirmation and validation of charters, acts and contracts of corporations organized for the purpose of carrying on several branches of business, etc. The act in question had been passed by the legislature after trial of the case but before final action by the Supreme Court on the appeal.

The constitutional authority for the exercise of the right of expropriation is found in Article 1, Section 2 of the Constitution of 1921, which provides that:

“ * * * private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.”

LSA-R.S. 19:2 (9) specifically authorizes the expropriation of needed property by

“Any domestic or foreign corporation created for the purpose of developing and transmitting electricity for power, lighting, heating, or other such uses.”

The General Business Corporations Act, as set forth in LSA-R.S. 12:1 et seq., clearly authorized the organization of corporations for multifarious purposes.

There is nothing inconsistent in the organization and operation of a corporation for private profit which comprehends in its purposes both purely private enterprises and engagements and other operations which are chargeable with a public interest, a public service and, consequently, a public use. In other words, we consider that the right of expropriation is dependent not upon the public character and nature of the corporation but upon the public purposes and public interests which are served by such corporation. These purposes and interests may result as well from the very nature and use of the products handled by the corporation as from any other source. It scarcely needs observation that the production, manufacture, transmission and sale of electricity or gas or any other source of power designed for use by the general public, is a legitimate function and purpose of a private business corporation. The fact that such a corporation engages in other activities such as the manufacture, and sale of ice, the sale of coal, refrigerators, stoves, heating and cooling equipment, etc., is entirely beside the point. In our opinion this issue was directly passed upon and resolved by the Supreme Court in Calcasieu & S. Ry. Co. v. Bel, 224 La. 269, 69 So.2d 40.

It follows that the exception was properly overruled.

On the merits counsel for defendants complains of error with respect to the judgment below in that plaintiff was allowed an extension of the servitude across lands which were not incorporated in the description of the property sought to be expropriated and, further, counsel asserts error in that the judgment did not make allowance in favor of defendants for alleged severance damages caused by the expropriation.

The first contention is based upon the proposition that plaintiff’s petition sought the expropriation of a right-of-way or servitude 100 feet in width over and across the lands of defendants for a total distance of 1,223 feet, whereas the judgment decreed the expropriation of the property extending 50 feet on each side of a center line described as running over and across the lands of defendants for a total distance of 1,283 feet.

The discrepancy of 60 feet developed on trial of the case when it was discovered that plaintiff’s engineers had failed to extend the line of the proposed right-of-way to the center of Honey Bayou which marked the western-most bound of defendants’ property. This error resulted in a 60 foot gap between the 1,223 foot distance, specifically described in plaintiff’s petition by metes and bounds, and the requisite 1,283 foot distance that would have carried the line to the boundary of defendants’ lands. The trial judge noted in his memorandum of reasons for judgment that the additional 60 feet was included under the allegations of Article 5 of plaintiff’s petition and under the prayer thereof for general relief. We think this conclusion was correct. Reference to Article 5 discloses that plaintiff alleged the need of crossing property described as

W Yz of SW 54 of Section 6, Township 12 North, Range 10 West, Louisiana Meridian, and situated in Red River Parish, Louisiana.

The fact that the location of the proposed KV line was exactly set forth in the following article of plaintiff’s petition for a distance of 1,223 feet does not detract from the necessity of crossing the property described by government subdivision in the preceding article to which we have referred. In the light of the allegations of Article 5 we think the prayer for general relief clearly justified the allowance of the extension of the right-of-way. We cannot conceive of any prejudice to defendants, nor has any been asserted. The only possible effect of an amendment of the judgment by disallowing the 60 feet extension would be to necessitate the bringing of another suit of the same nature and character, which could not possibly involve any issues of fact or law not comprehended and disposed in the instant case. To our minds, this would be the nature of super-technical legalism which is reprobated by modern principles of procedure.

With respect to the allowance of severance damages, it is noted that the district judge fixed the compensation to be paid for the land actually taken for the use of the right-of-way, amounting to slightly less than three acres, upon the basis of $150 per acre, and additionally awarded the sum of $80 representing loss of timber along the strip to be cleared for the right-of-way.

Under the testimony in the instant case we think these allowances were most generous, but it is true that no consideration appears to have been given to defendants’ claim for damages resulting from the severance of their lands by the granting of the right-of-way and the erection of the high voltage lines across the same. We think defendants’ claims have some merit on this point, although we are convinced that such damages as are fixed should be nominal. The testimony shows that the use of the right-of-way for the construction of the high line would only necessitate the erection on defendant’s property of two sets of two poles, each of which would be approximately 65 feet in height and 18 inches in diameter at the base. According to the testimony of plaintiff’s engineer the wires would be strung on cross arms located about 6 feet below the tops of the poles. It is evident that the structures would occupy little of the surface of the land, and the record does not indicate that the construction would cause any substantial damage to the use of the property. The land in question is located some four or five miles from the nearest highway and is, as we appreciate the facts, well removed from any nature of development which would indicate the possibility of damage by reason of the alleged severance effect of the use of the right-of-way for the purposes intended. Due to the failure to establish any real probability of damage which might result from such severance in the foreseeable future, we think an allowance of $250 would be not only adequate but generous under the circumstances.

For the reasons assigned the judgment appealed from is amended by increasing the principal sum to be paid to the defendants by the plaintiffs to the amount of $780, and as amended the judgment appealed from is affirmed, at plaintiff’s cost.


text:
    Clint B. CAIN, Plaintiff-Appellee, v. EMPLOYERS CASUALTY COMPANY, Defendant-Appellant.
    No. 8699.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25, 1957.
    Writ of Certiorari Granted Oct. 8, 1957.

      Simon & Carroll, Shreveport, for appellant.
    Booth, Lockard, Jack & Pleasant, Shreveport, Bryne A. Bowman, Oklahoma City, Okl., for appellee.
   AYRES, Judge.

By this action plaintiff seeks to recover of his employer’s compensation insurer under the Workmen’s Compensation Statute, LSA-R.S. 23:1021 et seq., the maximum statutory benefits provided for total and permanent disability, and under the Insurance Code, LSA-R.S. 22:658, penalties, including a reasonable attorneys’ fee, less compensation of $450 paid prior to the institution of this suit and covering a period of fifteen weeks, for accidental injuries sustained April 16, 1956.

The facts as to plaintiff’s employment, accidental injuries, and rate of compensation, as well as that defendant is the employer’s compensation insurer, were admitted. It was contended, however, in defendant’s answer that plaintiff sustained only a back sprain from which he had sufficiently recovered to return to work on August 2, 1956, and to that date it was alleged compensation had been paid. However, only two days prior to trial, plaintiff was examined for the first time at the instance of defendant or its counsel, and then by Dr. T. M. Oxford, an orthopedist, who on the following day made a report of his examination to defendant’s counsel. The purport of the report was that plaintiff was suffering from a herniated disc of the lumbar region of the spine and was totally disabled. Accordingly, prior to trial, defendant conceded its liability for compensation as claimed by plaintiff and paid all compensation in arrears to the date of the trial. Defendant further agreed that payment of compensation would be continued during plaintiff’s disability, but not, however, in excess of four hundred weeks from the date of the accident.

Defendant, through counsel, stated its position to the court:

“Until two days ago, it was believed by the defendant that there was a serious dispute as to the question of the alleged disability of Mr. Cain. On the basis of medical reports which were rendered on examinations made on Tuesday, the 26th of February, and which were received in my office, as attorney for the defendant, on yesterday, it appears that Mr. Cain is, at this time, totally disabled. We have, therefore, tendered to the plaintiff, and he has accepted, payment of compensation through this date, with an agreement that compensation will be paid in weekly payments of thirty dollars ($30.00) per week.
“ * * * * * *
“The sole question, then, is the question of plaintiff’s claims for penalties and attorneys’ fees, in addition to his prayer and claim in his petition for a judgment for estimated future medical expenses. It is the position of the defendant that he is limited to one thousand dollars ($1,000.00) under the Act. He has alleged that there is a ten thousand dollar ($10,000.00) extra medical coverage in the policy of insurance. Our position, of course, is that except insofar as additional medical may be incurred and proved on the trial of the case, we are not liable in any amount above the one thousand dollars ($1,000.-00) provided by the Workmen’s Compensation Act.”

The issues presented to the trial court were accordingly restricted to plaintiff’s claims for penalties, including a reasonable attorneys’ fee and for future medical expenses. After trial there was judgment in plaintiff’s favor, awarding him compensation at Thirty ($30) Dollars per week during the period of his disability, however, not exceeding four hundred weeks from the date of his accidental injuries, less compensation paid for a period aggregating forty-five weeks, for penalties at the rate of twelve per cent (12%) on the thirty weeks compensation, which was in arrears immediately preceding the trial, or for the sum of $108, and for attorneys’ fees of $2,-000, as well as for legal interest on said sums, from judicial demand until paid, and all costs. The judgment further reserved unto plaintiff his right to sue for additional medical expenses not to exceed $3,360, subject to a credit of $485.45, as allowed in the aforesaid judgment.

The defendant applied for and obtained an appeal only from that portion of the judgment awarding penalties, including attorneys’ fees. Plaintiff has answered the appeal and prayed for a reservation of his rights to sue for future medical expenses limited only to the extent of $10,000, as provided in the policy of insurance, less the amount allowed in the aforesaid judgment.

The issues for determination on this appeal are: (1) Whether the action of the defendant in discontinuing the weekly payments of compensation on August 2, 1956, was so arbitrary, capricious or without probable cause as to justify the imposition of penalties, including a reasonable attorneys’ fee, and (2) Whether the award of $2,000 for attorneys’ fees is reasonable in the event it is held that the facts justify the imposition of penalties against the defendant; and (3) Whether the right should be reserved to plaintiff in the judgment rendered to sue for future medical benefits and expenses in excess of the then statutory limit of $1,000.

Plaintiff’s claims for penalties for defendant’s alleged arbitrary refusal to pay compensation after August 2, 1956, are predicated upon the provisions of the Insurance Code, LSA-R.S. 22:658, the pertinent provisions of which, read as follows:

“All insurers issuing any type of contract other than those specified in R. S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss. sjc ;¡í iji )>

For a proper understanding of the primary question to be resolved, a resume of the facts appears necessary. Immediately following plaintiff’s injuries defendant’s tool pusher, plaintiff’s foreman or superior, carried plaintiff to the State Line Clinic at Waskom, Texas, where he was hospitalized by Dr. T. R. Fowler over a period of three days. Plaintiff then returned to his home in Oklahomo, near Gainesville, Texas, where April 22, 1956, on his own volition, he secured the services of Dr. William F. Powell to treat him for his injuries. Dr. Powell caused plaintiff to be hospitalized and placed him in traction until April 26, 1956, after which treatments were continued as an out-patient. In a first report to defendant, dated May 12, 1956, and received by it two days later, Dr. Powell stated:

“The above man was injured April 22, 1956, when he slipped on a piece of two inch water pipe and fell some eight feet off a truck bed. He was seen initially at the Medical and Surgical Hospital where he was given emergency treatment and hospitalized for a period of five days.
“Since being dismissed from the hospital, he has received daily ultrasonic massage to his lumbar area. When seen May 7, 1956, he was doing well and was continued on Telegesios.
“Diagnosis: Acute low back strain.
“This man will need medical care and observation of approximately four to six weeks.”

In a second report on June 15, 1956, the ■doctor again wrote defendant:

“I am writing regarding the above patient who was injured while working as a trucker in Louisiana. He jumped some ten feet or fell off of a truck bed .and in so landing twisted his back. This resulted in low back pain, and he ■was first seen April 22, 1956, at the Medical and Surgical Hospital, where he was hardly able to walk. He was found to have an acute lumbo-sacral sprain. Physical examination revealed that the patient was not able to bend ■more than ten degrees in any direction. He also had marked muscle spasm in •the lumbo-sacral muscles bilaterally. There was tenderness over L4 and 5, and straight leg raising was positive at .about fifty degrees bilaterally. The patient was hospitalized from April 22, 1956, to April 26, 1956, at which time he was given relief and traction.
“He was seen in the clinic first on April 27, 1956, and given a series of ultrasonic therapy. On 5-15-56, he was started on Williams exercises and later on diathermy. He was told on 6-8-56', that he would be given one more week of rest and Williams exercises, after which time he would be evaluated, and it is hoped that he will be able to return to work at the end of this time. He should have no permanent disability, but will have a partial disability of some twenty-five per cent for the next three months in that he will be unable to do any heavy lifting which might be required in his occupation as a trucker.” (Emphasis supplied).

The doctor made a third report to defendant on July 16, 1956, after having again, only three days before, examined plaintiff. There the doctor stated:

“Mr. Clint B. Cain reported to my office July 13, 1956, and he was still complaining of some pain. Physical examination revealed no limit of motion, however. He was told to continue his present routine of treatment.
“He was told that he could return to light work and to return to this office for a check in two weeks.” (Emphasis supplied).

It was upon the basis of this last report, together with an alleged telephone conversation with the doctor, that defendant relies for justification of its action in stopping plaintiff’s compensation. The letter does not support the position taken by defendant. Plaintiff had been merely told, according to the report, that he could return to light work but that he should report for a check-up in two weeks. In his deposition, the doctor explained that when he said plaintiff could return to light work, he meant that plaintiff could not return to heavy work and that had a representative of the defendant called upon him, by telephone or otherwise, as claimed by its adjuster and as to which the doctor had no independent recollection, he would have so advised defendant or its representative. The doctor testified that plaintiff on July 16, 1956, was physically unable to do heavy oil field work such as he was doing at the time of his injury. In fact, as late as October 26, 1956, his opinion was that plaintiff had a 25% disability. Moreover, the claims adjuster for defendant admits in his testimony that Dr. Powell told him in a telephone conversation on August 2, 1956, that plaintiff was still coming to his office for treatment and that plaintiff contended he was unable to do even light work. When plaintiff was advised that he might do light work he endeavored to do so; he tried without success to do farm work such as hoeing, and sought re-employment with his employer, but was refused, notwithstanding his counsel’s most urgent and earnest pleadings that he be given light work.

The inter-office communications of defendant on and after July 12, 1956, reveal a scheme to return plaintiff to work under the mistaken belief that regardless of his injuries his claim for compensation would thereby be extinguished. It was there advised :

“This would be an excellent method of disposing of this claim if it can be arranged to have him return to work for the insured on the same job at the same rate of pay..
* * * * * *
“We hope that in this case the claimant will be able to return to work for our insured at the same rate of pay and, therefore, he would not be entitled to any settlement.”

The defendant, however, made no independent effort to determine for itself plaintiff’s true condition and the extent of his disability. No opinion or report was ever requested from Dr. Fowler to whom plaintiff was carried by the employer’s foreman immediately following the accident. Neither did defendant have plaintiff examined by any doctor of its choice until just prior to trial. Accordingly, when defendant stopped plaintiff’s compensation payments, and refused to make further payments, it was not in possession of information warranting the position taken by it. Moreover,, the payments were discontinued without the making of an investigation of any kind or character to justify the merits of its position. Failure in this respect evidences lack of good faith and warrants the imposition of penalties. Campasi v. Mutual Benefit Health & Accident Association, 1945, 207 La. 758, 22 So.2d 55; Bankson v. Mutual Benefit Health & Accident Association, 1945, 208 La. 1008, 24 So.2d 59; Phelps v. Southern National Insurance Company La.App., 1955, 83 So.2d 463.

Since the institution of this action defendant has continuously persisted in its refusal to make payments of compensation or to cause an examination to be made of plaintiff as to his physical condition to determine the true facts as to the nature and extent of plaintiff’s injuries and disability until, as aforesaid, only two days before trial. This course of conduct was pursued notwithstanding plaintiff was examined by other doctors, including an orthopedist, copies of whose reports showing that plaintiff had suffered most grievous injuries, were furnished defendant.

One of these who examined plaintiff and made a report was Dr. Gene D. Caldwell, an orthopedist of Shreveport, Louisiana, who examined plaintiff on October 8, 1956, and, who, on the following day made his report, a copy of which was received by defendant October 15, 1956. In this report the doctor concluded:

“This patient presents positive objective findings of a protruded disc •at the lower lumbar level. It is advisable that this man be hospitalized for a period of bed rest, pelvic traction, et cetera, followed by the application of a brace. The prognosis must remain guarded pending outcome of the conservative therapy.”

However, on September 24, 1956, at his own request, plaintiff had been examined by Dr. Don J. Wilson, a general practitioner of Marietta, Oklahoma. Dr. Wilson diagnosed plaintiff’s condition as a severe sacroiliac sprain with a possible ruptured disc. After receipt of a copy of Dr. Caldwell’s report, Dr. Wilson placed plaintiff in the hospital and carried out Dr. Caldwell’s recommendations as to treatment. Dr. Wilson referred plaintiff to Dr. O’Donoghue, an orthopedist of Oklahoma City, who examined plaintiff on October 30, 1956. Although plaintiff was referred to Dr. O’Don-oghue by Dr. Wilson to have a brace fitted, Dr. O’Donoghue immediately reported to defendant the fact of and the result of his examination of plaintiff. In his conclusion, the doctor stated:

“This patient has complaint of his back which has some of the symptoms of nerve root pressure. However, these are not borne out by objective findings. * * * While it may be that he has some root irritation, this seems to be very low grade and I think he should be rehabilitated as soon as possible.”

Notwithstanding that Dr. Powell had testified as aforesaid by deposition on December 17, 1956, and that on the same date Dr. Wilson, likewise by deposition, concurred in Dr. Caldwell’s diagnosis of a protruding disc. The defendant persisted in its refusal to recognize plaintiff’s rights to compensation or to make any independent investigation concerning the same. From the facts thus established, it could not be but concluded that defendant’s failure to continue the weekly compensation payments was in bad faith. Under similar facts in the •case of Nomey v. Pacific Mutual Life Insurance Company, 1948, 212 La. 820, 33 So.2d 531, 534, 1 A.L.R.2d 946, the Supreme Court stated:

“The trial judge imposed the statutory penalties on the ground, as reflected by the reasons he gave for his judgment, that the defendant made no showing whatsoever that any effort was made by it to ascertain the truthfulness of the plaintiff’s claim from the time the claim was first made until the suit was filed, and for the further reason that the defendant continued to oppose the plaintiff’s claim after having received the information of the plaintiff’s condition from Dr. Riggs, who had examined the plaintiff at the defendant’s request. * * * ”

Accordingly, an award of penalties, including reasonable attorney’s fee, was affirmed. To the same effect and for similar reasons, is the holding of this court in Phelps v. Southern National Insurance Company, supra.

While, as we have stated, there was no basis for any justification for the discontinuance of plaintiff’s compensation payments, conceding for the purpose that Dr. Powell’s reports correctly reflected his opinion and diagnosis of plaintiff’s injuries and disabilities, contemporaneous and subsequent events of which the defendant had full knowledge, preclude defendant from a good faith reliance upon such reports. The record discloses a most flagrant violation of the time honored principles governing the relationship normally existing between a physician and his patient. According to Dr. Powell’s own testimony he treated plaintiff from start to finish solely and exclusively at plaintiff’s request and not at the instance of defendant insurer. To quote the doctor, his first and only loyalty was to his patient, the plaintiff. Yet the doctor, without permission from his patient, addressed and mailed every report he ever wrote directly to the insurance company, and, although he had in his possession a written request from one of plaintiff’s counsel, authorized in writing by the plaintiff himself, the doctor refused to furnish either his patient or his patient’s attorney with a report or even a copy of the unauthorized reports he had sent to the insurance company unless he could first obtain the insurance company’s permission. The doctor sought permission but was refused. Therefore, he declined to furnish the information requested.

In these reports, contrary to facts well established in the record, statements were made to the effect that plaintiff did not return to work, even lighter work, and that he, the doctor, had been unable to get plaintiff to return to work, thereby insinuating that plaintiff was a malingerer, and that plaintiff would be disabled with “com-pensationitis” as long as he was paid compensation. The record is replete with evidence that plaintiff was anxious and desirous of work, that he attempted lighter work on a farm and that he sought lighter work from his employer, but was refused. The aforesaid inter-office communication from L. R. Reese, Jr., District Claim Manager in the Shreveport office, to defendant’s Sherman, Texas, office, of July 12, 1956, in view of the doctor’s attitude toward his patient apparently explains the doctor’s strenuous efforts in endeavoring to get plaintiff to return to work. The expressed purpose was to place the patient in such a position that he would not, in their opinion, be entitled to any settlement whatsoever.

This doctor’s incredible explanation is that whenever the insurance company is paying the bills, he will not furnish his patient or his patient’s attorneys with a report unless the insurance company gives him permission to do so. The record reveals, however, the doctor only had a hope at the time that his bills would be paid.

There is no question, in view of the reports of Drs. Caldwell and Oxford, eminent orthopedists and surgeons of Shreveport, but that Dr. Powell was incorrect in his diagnosis. From the doctor’s evident betrayal of the doctor-patient relationship and from his obvious bias toward the defendant, it could only be concluded, at the most, that his testimony would be entitled to only scant consideration as it pertains to plaintiff’s injuries and the extent and duration of his disability.

The conduct, practice and attitude of Dr. O’Donoghue is similar to that of plaintiff’s Dr. Powell. Plaintiff’s family doctor, Dr. Wilson of Marietta, Oklahoma, referred plaintiff to Dr. O’Donoghue for the purpose of having him fitted with a brace as recommended by Dr. Caldwell. The defendant insurer had nothing whatsoever to do with plaintiff going to Dr. O’Donoghue. Despite that fact and despite the fact that he had no authority from his patient to do so, this doctor on the very day he saw plaintiff, wrote the defendant a detailed report of the patient’s narrative of the accident and of the doctor’s physical examination, as well as of an X-ray examination. His conclusions were stated thusly:

“This patient has complaint of his back which has some of the symptoms of nerve root pressure. However, these are not borne out by objective findings. There is no atrophy, no reflex change. The sensory complaint is of stocking type rather than radic-ular. Straight leg raising is only very slightly restricted. X-ray remains negative. While it may be that he has some root irritation, this seems to be very low grade and I think he should be rehabilitated as soon as possible. I would suggest putting him in a corset, increasing his activities. I have, accordingly, prescribed a back support, put him on medication, and suggested that he step up his activities somewhat and return to work. I think he will have to be persistent at working since he undoubtedly will have some discomfort when he first returns to work no matter how long he puts it off. I see little reason to anticipate any partial permanent disability here.”

The doctor’s appraisal of plaintiff’s physical condition was as erroneous as was that of Dr. Powell, which was conceded by defendant on the day of trial by the acceptance of Dr. Oxford’s report. Again, the doctor had only a hope. He sent his bills for examinations and back brace to the insurance company, payment of which was declined, but the defendant kept the doctor’s report. Subsequently, the doctor recanted for a purpose; he sent plaintiff’s counsel a copy of the report with a request that his hills he collected.

Taking into consideration all the facts and circumstances established by the record, as well as the devious maneuvers of defendant’s agents and the connivance with plaintiff’s doctors, it could only be concluded that defendant acted not only without probable cause, but in utter bad faith in discontinuing and in persisting in its refusal to renew plaintiff’s compensation payments. Such conduct makes it mandatory under the statute that penalities be inflicted. Daigle v. Great American Indemnity Company, La.App.1954, 70 So.2d 697, 705; Crowell v. New Hampshire Fire Insurance Company, La.App.1933, 147 So. 762, 767, and cases therein cited.

Where failure to pay compensation is arbitrary, a penalty of 12% of the amount due an employee is provided by the statute and was properly allowed here.

Next for consideration is the question of the fixing and the allowance of the attorneys’ fees. Defendant contends that the allowance and fixing of the fees are governed by the Workman’s Compensation Statute, LSA-R.S. 23:1141, wherein it is prescribed that the maximum fee shall in no case exceed $1,000. Plaintiff contends that the fee should be fixed and assessed as a penalty under the provisions of the Insurance Code, LSA-R.S. 22:658, as amended by Act 417 of 1952, which provides for the fixing of a reasonable attorneys’ fee as a penalty for the prosecution and collection of losses under insurance contracts or for the collection of compensation due employees under the Workmen’s Compensation Statute. Defendant cites in support of its contention the case of Gloston v. Coal Operators Casualty Company, La. App.1955, 85 So.2d 100, wherein our brethren of the First Circuit without a discussion of reasons therefor held that the-provisions of the Compensation Statute applied, and reduced an attorney’s fee to» $1,000. We are not in accord with that ruling.

The penalty provision is found in the-aforesaid provisions of the Insurance Code. This provision specifically applies to all forms of insurance, including workmen’s compensation insurance. The provisions-for the fixing of attorneys’ fees in the compensation statute are, in our opinion,, clearly intended as a protection to the employee, in that the statute limits recovery of attorneys’ fees which are payable out of the employee’s award. In the-case of the incurring of penalties, including attorneys’ fees, by the employer’s insurer there is no necessity for the protection of the employee as such penalties-are not payable out of his award. The statute providing for the infliction of penalties in certain cases, including workmen’s compensation cases, prescribes no-statutory maximum, other than that the attorneys’ fee must be reasonable, that is,, commensurate with and based on the reasonable value of the services rendered.

Defendant’s contention, if followed' to its logical conclusion, would lead to results clearly not intended by the statute. If the provisions of the Workmen’s Compensation Statute limiting the weekly benefits are to be followed then an employee-drawing compensation at the maximum! rate would be deprived of the penalties-under the Insurance Code because if he-were awarded such penalties his compensation would increase beyond the maximum! rate specified in the Compensation Statute. Obviously, that was not the intent of the-statute. It is perfectly clear, therefore, that the penalty provisions of the Insurance Code are to apply notwithstanding the-provisions of the Workmen’s Compensation Act prescribe maximum benefits out of which a maximum attorneys’ fee may be-fixed.

As a matter of equitable consideration is may be pointed out that over the years the maximum rate of the compensation has increased from $20 to $35 per week and the allowance for medical expenses has increased from $250 to $2,500, but no change has been effected in the maximum attorneys’ fees.

There is no provision in the compensation statute requiring the employer’s insurer to pay an attorneys’ fee. The provision for such fees as penalties is contained in the Insurance Code where the only limitation is that the fee must be reasonable. Therefore, the fee should be fixed without regard to the provisions of the Workmen’s Compensation Law, which is wholly and entirely inapplicable.

The application of the provisions of the Insurance Code, as to penalties, including attorneys’ fees, was recognized in Wright v. National Surety Corporation, 1952, 221 La. 486, 59 So.2d 695, where an attorney’s fee was fixed and assessed against the employer’s insurer pursuant to such statute. That the fee allowed was only $750 could in no wise be construed as a fixing under the provisions of the Workmen’s Compensation Law, which as stated, makes no provision for the assessment of any attorney’s fee against the employer’s insurance carrier.

In a case of this kind it has been held there is no necessity for proof to be offered as to the value of the services of an attorney ; that the court can best fix the fees. Daigle v. Great American Indemnity Company, supra; Crowell v. New Hampshire Fire Insurance Company, supra; Brooks v. Liverpool & London & Globe Insurance Company, La.App.1932, 144 So. 788; Hunt v. Hill, 1916, 138 La. 583, 70 So. 522. The judge who tried the case and who was familiar with all the work done by plaintiff’s attorneys, including all of its details, fixed and awarded a fee of $2,000. From a review of the record and our appreciation of the work done and the issues involved, the fee fixed is, in our opinion, reasonable and adequate and not excessive.

Next for consideration is the question as to the disposition of the attorneys’ fee, that is, whether the attorneys or the client is entitled to the fee. A resolution of this question is implied in the statute itself. LSA-R.S. 22:658 provides in part:

“Failure to make such payment * * * shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss * * (Emphasis supplied.)

Indicative of the above phraseology is that the twelve per cent damages as penalties are payable to the plaintiff and the attorneys’ fees to the attorneys. This construction clearly preserves the ethical prohibition against the division or splitting of fees and fulfills every requirement of justice, equity and ethics, particularly in view of the fact that the fee is fixed and determined upon the basis of the attorney’s skill and the amount of work performed by him in the prosecution and collection of the total claim. Therefore, inasmuch as the fee is so predicated, its fixing and determination is in lieu of any fee as may have been contracted upon the statutory basis of twenty per cent of the recovery, not, however, exceeding the maximum of $1,000. The intent of the penalty provisions of the Insurance Code is primarily designed to benefit an unjustly treated employee, who would benefit by having his attorneys’ fees paid from penalties assessed against the insurance carrier instead of out of his compensation award. No one should unjustly enrich himself at the expense of another; therefore, the client would not be entitled to the amount of a fee earned by his attorneys; nor would an attorney be entitled to an additional fee to be paid out of the compensation award.

The conclusion reached is that that portion of the penalties allowed as attorneys’ fees is due to plaintiff’s attorneys of record, but, in view of the privilege accorded attorneys for their professional fees on judgments obtained by them, as provided in LSA-R.S. 9:5001, the decree in plaintiff’s favor for the recovery of such fee inures to their use and benefit.

Last, for consideration is the matter of the reservation of plaintiff’s rights to bring an action for future medical expenses. Defendant contends that such reservation should not be for an amount exceeding the difference between the then statutory maximum of $1,000 and the $485.-45 as allowed in the judgment appealed, whereas plaintiff contends the reservation should be limited only by the maximum provided in the employer’s insurance contract of $10,000 less the amount awarded in the aforesaid judgment. Defendant further contends that, if the provisions of the insurance policy are held to apply, then that the reservation should not go beyond the allegations of plaintiff’s petition and prayer wherein judgment for medical expenses was sought in the sum of $3,360. The policy provides for additional medical expenses with a limitation of $10,000 to any one person.

It is our opinion that the injured employee may recover medical expenses incurred by him in excess of the statutory maximum, in view of the aforesaid provisions in the compensation insurance policy and in view of the fact that such an endorsement constitutes a stipulation in favor of a third person. It was so held in Cummings v. Albert, La.App.1956, 86 So.2d 727. We are of the opinion, however, that plaintiff’s rights to a reservation should be limited by the allegations of his pleadings and his prayer. There was no showing that reasonable future medical expenses would exceed the amount for which he prayed judgment.

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

Affirmed.


author: HOBSON, Justice.

text:
    Domingo VILLANUEVA, Appellant, v. SHAYNE, Inc., a Florida corporation, and Elva I. Schweida, Appellee.
    Supreme Court of Florida.
    July 31, 1957.
    Kelner & Lewis, Miami Beach, for appellant.
    Michael Tobin, Miami, for Shayne, Inc.
    Brown, Dean, Adams & Fischer, Miami, for Elva I. Schweida.
   HOBSON, Justice.

Elva I. Schweida, who was one of the defendants in the circuit court, moves this court to dismiss the appeal from the judgment of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, entered January 29, 1957, taken by the plaintiff by Joinder in Appeal filed March 28, 1957. Shayne, Inc., a Florida corporation, which was one of the defendants in the circuit court, initiated this appeal. Villanueva, in his Joinder in Appeal which was filed March 28, 1957, states that “the plaintiff appeals from a judgment entered in favor of the defendant, Elva I. Schweida, bearing date January 30, 1957 * * * «

The record before us establishes that costs were taxed against the plaintiff Villa-nueva and in favor of movant by the circuit court on February 27, 1957, and that up to and including July 3, 1957, the said Villanueva had failed to pay the costs. The record further shows that the plaintiff Villanueva did not assign as error the taxation of costs against him nor did he supersede their taxation.

Under such circumstances we are of the opinion that the cause should be dismissed, for we feel that no plaintiff should be permitted to file a Joinder in Appeal after the entry of appeal by one of two or more defendants under the facts disclosed by this record and thus accomplish indirectly that which could not have been accomplished by said plaintiff directly.

At first blush it would appear that our holding herein is contrary to our opinion in the case of Thomas Awning Co. v. Morgan, Fla., 57 So.2d 427. However, a careful examination of that opinion establishes the fact that the plaintiff in that suit who had filed a Joinder in Appeal had no costs taxed or assessed against her. It is clear, therefore, that Sec. 59.09, as amended in 1945, F.S.A., was not applicable and all other statements made in that opinion are merely obiter dicta. It is apparent that the opinion in the Thomas Awning Co. case should not be considered stare decisis with reference to the question presented in the instant suit. For the sake of clarity, we hereby expressly recede from any inferences in the Thomas Awning Co. case which may be construed to be in conflict with our opinion and judgment herein.

The motion to dismiss the Joinder in Appeal filed by the plaintiff Villanueva should be, and it is hereby granted.

It is so ordered.

DREW, THORNAL and O’CONNELL, JJ., and WIGGINTON, District Judge, concur.


author: PER CURIAM.

text:
    Florence MILLER, Appellant, v. George Joseph MILLER, Appellee.
    Supreme Court of Florida.
    July 31, 1957.
    William S. Shorenstein and Gerald S. Berkell, Miami Beach, for appellant.
    Boyce F. Ezell, Jr., Miami, and Daniel Sepler, Hialeah, for appellee.
   PER CURIAM.

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

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

Affirmed.

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