text:
    DICKINSON v. LONG SPRINGS LUMBER CO., Inc., et al.
    No. 7132.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    Campbell & Campbell and David W. Thomas, all of Minden, for appellants.
    Drew & Drew, of Minden, for appellee.
   TALIAFERRO, Judge.

This is a tort action in which plaintiff seeks to recover of the defendant a large amount in damages allegedly sustained by him as a result of an accident wherein was involved plaintiff’s automobile and a truck of the defendant, Long Springs Lumber Company, Inc. The accident occurred on what is known as the Dorcheat State Highway, a few miles north of Minden in Webster Parish, at a point where a gravel road leading to defendant’s saw mill intersects said highway on the east side at a right angle. The gravel road does not extend westerly beyond said highway. It there comes to a dead end.

Plaintiff was driving his own car on the highway, going north, while the truck was being driven by defendant’s employee, a Negro named Louis Sheppard. It had been driven from the mill site, not very far east of the intersection, and was destined to go south after getting on the highway. Besides Sheppard there were two other men in the truck, to-wit: H. L. Aubrey and Martin J. Morris, employees of the lumber company.

The highway is surfaced with what is referred to as black-top, and at the time of the accident a light rain was falling and the surface was slick.

In addition to the lumber company, its insurer, Maryland Casualty Company, is impleaded as a defendant but herein, when defendant is used, reference is made to the lumber company.

On the east side of and adjoining the highway, and immediately below the intersecting gravel road, at the time of the accident, there was a small “shotgun” house that obscured the view of motorists going north on the highway, and likewise affected the vision south of those who traveled westerly on the gravel road.

The accident occurred at about ten o’clock A. M., September 27, 1946. Plaintiff was injured and his car badly damaged when he lost control of it, after contacting the truck, and ran into a ditch on the east side of the highway and north of the gravel ro.ad. Neither the truck or either of its occupants was injured to any extent.

Plaintiff alleged that he was driving at a moderate rate of speed and immediately before entering the intersection the truck of the defendant “came out of the gravel road onto the highway directly in front of petitioner’s car, and too close for petitioner to have time to stop”; that he, in attempting to avoid the impending accident, pulled his car as far as possible to his right and tried to pass the rear end of the truck, but failed in the effort. He further alleged that the driver of the truck gave no signal of his approach, did not stop and look for traffic before entering the intersection, and was driving at an excessive rate of speed under the then existing circumstances and conditions.

Defendants, in opposition to the cause of action alleged against them, deny the charge that the accident happened from or because of negligence of the truck driver, whose freedom therefrom is affirmatively pleaded. In amplification of these allegations, defendants aver that the driver of the truck did stop before entering the intersection and looked each way for traffic and saw plaintiff’s car to his left, nearly a quarter of a mile south, coming at a rapid rate of speed, but he felt certain he could negotiate the intersection and gain the west side of the road before the car could get there, and undertook to do so; that he succeeded in the effort and had progressed south on his side of the road seventy-two feet before plaintiff’s car collided with the truck; that plaintiff’s high rate of speed and the condition of the surface of the road caused his car to wobble across the road and finally to contact the truck’s rear end, which caused him to lose control of it and run into the ditch.

Alternatively, the defendants invoke the negligence of the plaintiff in the respects above mentioned, in bar of his effort to recover in this suit.

There was judgment for plaintiff against the defendants in solido for Three Thousand Three Hundred Seventy-Nine and 43/100 ($3,379.43) Dollars, made up of the following items:

Pain and suffering $1,000.00

Partial disability 1,000.00

Loss of time 1,000.00

Damage to automobile 246.43

Doctor’s bill 133.00

Defendants appealed and argue that if there is liability at all herein to plaintiff, the award of damages against them is excessive. Plaintiff answered the appeal and prays that the judgment be increased to the full amount for which he sued.

It is difficult to conceive of a case in which the testimony of the two sides could be more at variance. The irreconcilable character of the testimony is complete. The trial judge, in written reasons for judgment, recognized this situation and resolved the factual issues in plaintiff's favor because of some physical facts and also because plaintiff’s theory of the case, he believed, to be the more reasonable one.

Plaintiff’s car enjoyed right of way over traffic on the side road that led to the mill. It was the legal duty of drivers of motor vehicles on the side road to stop and look for traffic in each direction on the highway before undertaking to cross it, and not to enter thereon unless and until traffic conditions clearly warranted such action. This duty is imposed with emphasis upon all motorists who purpose to make a left turn from one road or street across an intersection. However, because plaintiff had the right of way did not excuse him from the exercise of reasonable diligence as he approached the intersection, to avert an accident made possible by the negligence of one emerging from the side road.

The driver of the truck testified that he did stop at the east side of the intersection and looked both ways before proceeding farther; that he saw plaintiff’s car down the road near the top of a rise therein, which the testimony shows to be a distance of approximately four hundred yards; that he believed he had ample time to cross the intersection and gain the west side of the highway without danger of a collision with the car; that he succeeded in his effort in this respect and had traveled seventy-two feet, on his side of the road, below the intersection, when the collision occurred.

Mr. Aubrey’s testimony corroborates that given by Sheppard, the truck driver, and he added that the right wheels of the truck were off of the hard surface, and he was certain that plaintiff’s car, while going very fast, did not wobble until after passing the truck.

The witness, Morris, also an occupant of the truck, was uncertain whether the truck was stopped prior to entering the intersection, but was sure it was slowed down to some extent. He corroborates the testimony of Aubrey and Sheppard as regards plaintiff’s position when the truck was driven into and across the intersection and the truck’s position when struck, but fixes its distance from the intersection at thirty-seven steps or about one hundred eleven feet He also stated, on direct examination, that he stepped this distance the day of the accident, but on cross examination, admitted he only did so on the day of the trial.

Amos Calton, occupant of the “shotgun” house, testified that he was on its front porch and saw the accident; that the truck had straightened out on its right side of the highway and was below the house when the accident occurred.

A truck driven by Gilbert McDowell, preceding that driven by Sheppard, met plaintiff eighty-four yards from the intersection. McDowell did not see the accident nor hear the noise of the impact, but, according to his testimony, immediately thereafter he looked back northerly and saw the other truck had stopped seventy-two feet from the intersection. Other witnesses say it was this distance from the intersection when the collision occurred. Surely it must have traveled some distance before being stopped.

Plaintiff testified that he was driving at forty-five miles per hour as he approached the intersection; that as he was meeting the truck driven by McDowell about one hundred feet from the intersection, he slightly applied his brakes and released same after passing him, and when approximately thirty-five feet from the intersection the other truck appeared before him, going at a moderate rate of speed; that he applied the ■ brakes and locked all four wheels, and veered his car to its right as far as possible without running into a culvert at the road side; that both right wheels were off of the black-top when the accident occurred and that the truck had not completed the turn prior thereto; that the left rear corner of its fiat bed extended so far easterly across the road that he was unable to pass same without colliding with it; that the corner of the flat truck bed scraped his car from about the center of its left side back to the rear end thereof, and he lost control of it. He is positive that after the collision the truck rested diagonally across the road on the south side of the intersection, but was pulled up a few feet by its driver to allow traffic to pass^ He is positive the truck did not stop before entering the intersection, and says he. did not see it until it reached the intersection; that had he not suddenly pulled his car to its right side, the collision would have been much more serious in its consequences.

A minute or two after the accident occurred, Mr. C. L. Sales, accompanied by Mr. W. F. Waldron, drove up to the scene of the accident. Plaintiff was then getting out of his car. Mr. Sales testified that at that time the truck was resting diagonally across the highway with part of its rear end above the south line of the intersection. There was then room for traffic to pass on the east side of the truck. He observed skid marks on the black-top and on the shoulder going in the direction of plaintiff’s car, which began about the point below the intersection that plaintiff says he was, when he first saw the truck coming from the gravel road and applied the brakes.

Mr. Waldron’s testimony as to the location of the truck when he and Mr. Sales arrived on the scene, is practically the same as that of Mr. Sales. Two other witnesses introduced by plaintiff, who were near the scene of the accident, corroborated his testimony as to the location of the truck when hit by the car, and that the truck did not come to a stop before entering the intersection.

The foregoing summary of the testimony introduced by both sides reflects clearly the irreconcilable character of the evidence in this case. Concerning this situation we adopt what the lower court had to say, to-wit:

“In this situation, being unable to reconcile the testimony, the only thing that can be done is to take the most reasonable version, which to me, appears to be that of plaintiff. Whether the accident occurred 72 feet south of the intersection or in or nearer to it, loses its importance when all the facts and physical surroundings are considered. I have been familiar with the Dorcheat road for some 40 years, and lately have driven over it many times. From the top of the hill 3/10 of a mile south of the intersection there is visible the house referred to in the testimony, and some mail boxes in front of and beyond the house, but the road is not logged for a side road, and the road is not visible (though plaintiff knew the road was there), and it is not possible to see traffic from the side road until it is right up to the edge of the Dorcheat road. Likewise, it is not possible for drivers of vehicles leaving the side road to see traffic approaching from the south until the vehicles are very near the edge of the Dorcheat road.
“In such case, it is negligence for a. driver to enter the intersection in the face1 of oncoming traffic. The truck driver saw plaintiff’s car approaching at a. rather fast rate of speed, estimated by defendants’ witnesses to be SO or 60 miles per hour. He says he had plenty of time to get into the-highway, and on to his right side, and that he did, before he met plaintiff, but it is passing strange that if his truck was entirely straight on the road, that plaintiff’s car passed by the front part of the truck, and struck only the left rear corner of it. The only reasonable conclusion that can be reached is that the truck had not straightened out on the road, and that its back end was still occupying a part of the east side of the road, and if this is so, it is immaterial whether the accident occurred at the intersection or 72 feet south of it, as defendants’ witnesses say. The truck driver was mistaken in his conclusion that he could safely clear the road before the approaching car would be passing him, and his negligence was the proximate cause of the accident and resulting damage.”

It is also of no little significance that the skid marks of plaintiff’s car began about the spot where plaintiff says he applied his. brakes when he realized a collision was almost inevitable.

We have no difficulty in reaching' the conclusion that Sheppard did not stop-his truck before undertaking to cross the intersection. However, accepting his contrary contention, his negligence is just a& great because, if, as he says, he did stop,, he thereafter attempted to cross the intersection in the face of an oncoming car, enjoying right of way, that was seen by him before making the attempt. If he erred in estimating the speed of the car and the distance it was away, the blame must rest upon him. It was daylight and he should have been able to determine definitely whether it was safe to undertake negotiating the intersection.

Plaintiff was not driving at an unlawful rate of speed as he approached the. intersection. He knew the location of this settlement road but was not required to reduce his speed, as he approached it, since there appeared no circumstance or condition to require that he do so. He had the right to assume, as doubtless he did, that motorists coming- out of the side road would stop before entering the highway and see that which was to be seen, and govern themselves accordingly. But, even though it be conceded, arguendo, that plaintiff’s speed, in view of the road’s surface condition, was unreasonable and excessive, his negligence in this respect was not the or a proximate cause of the accident. Driving the truck into the intersection under the pending circumstances and conditions was the proximate cause thereof.

Plaintiff suffered what is known as an acromioclavicular of the right shoulder, which means a separation of the wing bone of the shoulder from the collar bone and shoulder blade. It is a very painful injury. The ligaments and tissues about this joint were torn. He was placed in a figure eight cast that was designed to hold the bones in place. This cast goes around the injured shoulder and across the other one and is quite uncomfortable. It was kept in place for three weeks and was then removed to ascertain how much union had taken place.

Plaintiff’s attending physician suggested to him that he return to work on November first, which was thirty-five days after being injured. This was advised in order to determine if the tissues would hold. The experiment was not successful, and the doctors advised him to not work for three or four more weeks, during which time heat treatments were administered and he rested. He was seen by the doctor about December first and at that time pain from the injury was sufficient to prevent him from working. The doctor last saw him in February. There was then some looseness of the joint, accompanied by pain, especially when he pressed down with his hand. The doctor thought he could then do some character of work but that there would continue pain in certain movements for possibly a year.

Plaintiff testified at date of trial on May 9, 1947, that he still has pain in his right shoulder and arm, which at times prevents him from doing his work as well as he should, and that he cannot sleep on his right side. He has to favor the right shoulder in performing any sort of heavy work, as there still exists danger of tearing loose the healed ligaments and tissues.

Plaintiff was an able-bodied man, an oil field worker, prior to being hurt. He earned large wages which he lost for many weeks. His total incapacity to do regular work was followed by partial disability of an undetermined duration.

We think the various awards of damages given by the trial judge in this case were not excessive nor inadequate. Our appreciation of the record, as a whole, very well sustains his conclusion with respect thereto. And, for the reasons herein assigned, the judgment appealed from is affirmed with costs.

KENNON, J., absent.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    IDOM v. MOSS et al.
    No. 7084.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.

      Morgan, Baker & Slceels, of Shreveport, for appellant.
    Lonnie G. Plardy, of Vivian, for appel-lee.
   HARDY, Judge.

Plaintiff brought this suit to recover the sum of $291.21 representing the value of gasoline, oil and other materials sold to and used by the defendant in drilling operations on certain property known as the Arthur Gray Lease in Caddo Parish, Louisiana. Plaintiff claimed a lien and privilege on a steam drilling rig and appliances appurtenant thereto as particularly described in his petition, and sued out a writ of provisional seizure.

Judgment by default was rendered in favor of plaintiff, which judgment recognized the lien and privilege, maintained the writ of provisional seizure, and ordered the sale of the property seized thereunder to effect payment of the judgment out of the proceeds thereof by preference over the claims of all other creditors of the defendant.

Pursuant to the above judgment the property in question was advertised by the Sheriff of Caddo Parish to be sold on December 11, 1946. On the date of, but prior to the holding of the sheriff’s sale, a petition of third opposition was filed by Caddo Monarch Gas Company, Inc. under which a temporary restraining order and rule to show cause why a preliminary injunction should not issue were obtained This application was not contested, the rule was made absolute, and an order issued, temporarily restraining the Sheriff from proceeding with the sale.

An exception of no cause or right of action directed to the petition of third opposition was filed by plaintiff, which exception was sustained by the district court after hearing thereon, and there was. judgment dismissing the opposition, from which third opponent prosecutes this appeal.

The well pleaded pertinent allegations of the petition of third opposition, which must be accepted under the exception, are to the effect that third opponent purchased the drilling rig and its appliances in question from the defendant, O. C. Moss, which purchase was evidenced by a bill of sale in the form of an authentic act dated July 24, 1946. On and prior to July 24, 1946, third opponent removed the purchased equipment from its location on the Arthur Gray Lease in Section 34, Township 22 North, Range 16 West, Caddo Parish, Louisiana, to third opponent’s Logan Lease in Section 26, Township 21 North, Range 15 West, Caddo Parish, Louisiana. On September 12, 1946, plaintiff filed a lien against defendant, in the amount of his claim, which was duly recorded in Mortgage Book 321, page 807 of the Mortgage Records of Caddo Parish, Louisiana.

It is evident from the above facts that, although the lien was filed within the period provided by law as particularly set forth in Act No. 68 of 1942, the filing, nevertheless, took place almost two months after .the property had been sold to the third opponent and removed by him from the lease against which plaintiff’s lien was effective.

The sole issue raised by the exception filed on behalf of plaintiff is whether or not plaintiff’s lien and privilege was enforceable against the drilling rig and appliances which had been removed, prior to the recordation of the lien, from the lease where the lien accrued.

In a written opinion assigning reasons for his judgment maintaining the exception the District Judge predicated his holding upon the proposition that plaintiff’s lien was recorded within the period provided by law and that it therefore affected third persons even during the period in which it was not recorded, under the provisions of Section 19 of Article 19 of the Constitution of 1921. In support of the doctrine that such a lien affects property even in the hands of third persons who acquire the same prior to the actual recordation of the lien the following cases were cited: Gleissner v. Hughes, 153 La. 133, 95 So. 529; Capital Building & Loan Ass’n v. Carter, 164 La. 388, 113 So. 886; Central Lumber Co. v. Schroeder, 164 La. 759, 114 So. 644; Greater N. O. Homestead Ass’n v. Korner, La.App., 144 So. 507; Union Homestead Ass’n v. Montegut, 168 La. 369, 122 So. 68.

The contentions which plaintiff advances in support of his exception may be briefly summarized as follows:

(A). Plaintiff, as the furnisher of supplies and materials used in the drilling of a well, under the provisions of Section 1 of Act No. 68 of 1942, Dart’s Statutes § 5101.6, was accorded a lien and privilege on the lease where the well was located and on property situated thereon.

(B). Plaintiff timely filed for record a notice of his lien in accordance with and within the period provided in Section 2 of the Act above referred to, Dart’s Statutes, § 5101.7.

(C). That under the provisions of Section 4 of the same Act, ’Dart’s Statutes, § '5101.11, plaintiff was accorded the right to enforce his lien upon the property involved in this suit by provisional seizure and sale thereof.

There can be no reasonable ground for argument as to the correctness of the principles on which plaintiff’s claims are predicated as summarized under (A) and (B) above. But it is with reference to plaintiff’s rights as to the enforcement of his lien and privilege that brings into question the correctness of his position under (C) above.

In other words, it is to be readily perceived, in a consideration of this matter, that plaintiff’s right to a lien and privilege accrued with the furnishing of the materials during the months of June and July of 1946, and thereupon attached to and became effective against the lease and the property situated thereon under the plain provisions of the Act.

The only question left fo.r determination is whether the Act authorizes the enforcement of plaintiff’s lien and privilege against property that had been removed from the leased premises prior to the recordation of notice of the lien.

It is obvious, and the point is conceded by counsel for third opponent, that the question of ownership as affecting plaintiff’s rights herein, is not at issue, since the change in ownership of itself could have no effect upon plaintiff’s rights.

Determination of the issue presented must be governed solely by a construction of the provisions of Act No. 68 of 1942 to which reference has been made above.

This lien statute, being in derogation of common rights, is stricti juris, and, accordingly, its provisions must be strictly construed. The authority for this provision is abundant and we mention only a few of the cases which support this principle : Southport Petroleum Co. v. Fithian, 203 La. 49, 13 So.2d 382; Robin v. J. Thomas Driscoll, Inc., La.App., 197 So. 307; Sklar v. Lilly-Thompson Drilling Co., D.C., 45 F.Supp. 470, 472; Rester v. Moody & Stewart, 172 La. 510, 134 So. 690.

Since, as we have above noted, the resolution of the question presented by this matter turns not upon the attachment of the lien but upon the provisions for the enforcement thereof, we refer to that portion of the Act, Section 4; Dart’s Statutes, § 5101.11, which governs the enforcement of the lien and privilege. The section in its entirety reads as follows: “Enforcement by seizure — No bond required. — Any person, firm, corporation or association of persons having a lien and privilege, as provided herein, suing for wages, or any other amount due for such labor or service, or any person, firm, corporation or association of persons having a lien and privilege, as provided herein, for trucking, towing, barging, repairing or furnishing fuel, drilling rigs, standard rigs, material or supplies, shall have the right to enforce said lien and privilege by provisionally seizing the oil, the lease and well or wells, drilling rigs, standard rigs, machinery, equipment, appurtenances, appliances, buildings, tanks and all other structures situated thereon for the drilling equipment and operation of same, on which he has a lien and privilege, by making oath to the amount due, and such person, firm, corporation or association of persons performing service, such furnisher of fuel, material or supplies, and such person, firm, corporation or association of persons doing or performing such trucking, towing, barging, or repairing, as herein provided, shall not be required to furnish any bond in order to obtain the issuance of the writ of provisional seizure.”

For purposes of emphasis and clarity we summarize that portion of the wording of the section above set forth in full which is applicable under the facts of this case, as follows: “ * * * any person * * * having a lien and privilege, as provided herein, for * * * furnishing fuel, * * * material or supplies, shall have the right to enforce said lien and privilege by provisionally seizing * * * the lease, * * * drilling rigs, * * * machinery, equipment, appurtenances, appliances, * * * situated thereon for the drilling equipment and operation of same, on which he has a lien and privilege * ⅝ * »

The language used by the Legislature appears to be clear and unambiguous. If the intent had been to give the right of enforcement, regardless of location or change in location of the properties affected, such a purpose could have been easily and readily effected by a very slight change in the wording of this portion of the statute. But, inasmuch as the Legislature did not provide for the enforcement of the lien against all properties that had been located thereon at the time of the accrual of the lien and privilege, it seems reasonable to conclude that it was the intent to limit the enforcement of the lien and privilege to the lease and such properties as remained located thereupon.

It seems clear to us, being bound to a strict construction of the provisions of the Act, that plaintiff had the right to the enforcement of his lien and privilege through the means of provisional seizure against the property in question in this suit only so long as such property remained situated upon the lease.

The corollary to this proposition is that by permitting the removal of property from the lease on which the lien had accrued, before filing notice of his lien, plaintiff lost his right to the enforcement thereof against and upon such property.

We point out that the facts herein readily distinguish this case from the facts in the cases cited in the opinion of our learned brother of the District Court, as referred to supra. The cases cited by the trial Judge all involved mechanics’ liens established and enforceable under the provisions of an act which created such liens upon the property and the buildings and improvements thereon. There was no question in any of these cases, and by reason of the characteristics of permanence and immovability of the property involved there could not have been any question, as to the right of the lienors to follow and to assert and enforce a privilege upon property removed from the premises where the same had accrued.

Nor do we discern the applicability of that provision of Section 19 of Article 19 of the Constitution of 1921 to the effect that “Privileges on movable property shall exist without registration of same except in such cases as may be prescribed by law” since the remedy of the lienor in this instance is indisputably governed by the provisions of the special act which dearly falls within the exception set forth in the above quoted extract of the constitutional proviso.

For these reasons we are of the opinion that the exception was improperly maintained, and, accordingly,

It is ordered, adjudged and decreed that the judgment appealed from be and it is hereby reversed and set aside, and there is now judgment overruling the exception of no cause or right of action filed by plaintiff.

There is further judgment remanding this case to the lower Court to be proceeded with in accordance with law and in conformity with the opinions expressed herein.

All costs of this appeal shall be borne by plaintiff-exceptor.

KENNON, J., absent.


author: McBRIDE, Judge.

text:
    SAVICH v. RUIZ.

      No. 18775.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1947.
    Rehearing Denied Dec. 1, 1947.
    L. W. Cockfield, of New Orleans, for plaintiff-appellee.
    Leon J. Jarreau and J. Stanley Wagner, both of New Orleans, for defendant-appellant.
   McBRIDE, Judge.

Plaintiff, Joseph M. Savich, “listed” for sale with Charles A. Bourgeois, a real estate broker, his property which is a double cottage bearing the municipal numbers 4604-06 South Carrollton Avenue, this city.

On August 22, 1945, Savich signed an offer to sell the property for the price of $6,200, of which $2,200 was to be paid in cash and the balance of $4,000 to be obtained by the purchaser from a homestead association or other lending institution. The defendant, John E. Ruiz, accepted the plaintiff’s offer to sell the next day.

The offer and acceptance, among other stipulations, contained the following:

“* * * This sale is conditioned upon the ability of the purchaser to borrow upon this property as surety the sum of $4000.00 either by a Homestead loan from any Homestead on the usual Homestead terms, or by a mortgage loan from some other source at a rate of interest not to exceed 5% per annum and for a period not less than 14 years, which loan the purchaser obligates himself to obtain if procurable. Either loan to be secured by purchaser or agent 15 days from acceptance hereof.
“ * * * If this offer is accepted purchaser will deposit with Vendor’s Agent immediately in cash, six hundred twenty dollars and 00/100 ($620.00) Dollars.
“ * * * In the event that purchaser fails to comply with this agreement within the time specified, the vendor shall have the right either to declare the deposit, ipso facto, forfeited, without formality and without placing purchaser in default, time being the essence of this contract; or the vendor may demand specific performance. In the event that the deposit is forfeited, the commission of the agent shall be paid out of this deposit, reserving to the vendor the right to proceed against purchaser for the recovery of the amount of the commission. In the event that the vendor does not comply with this agreement to sell within the time specified, purchaser shall have the right either to demand the return of double the deposit, or specific performance. The commission is earned on the signing of the agreement and shall not be affected by any subsequent agreement of the parties hereto, or by annulment of contract by any court.”

On September 6, 1945, Bourgeois, the real estate agent, advised Ruiz by letter that the Home Building & Loan Association had approved a loan of $4,000 on the property as stipulated in the agreement, and requested that the purchaser appear at the office of the loan association to sign the proper application, and also to forward to Bourgeois a check for $620 representing 10% of the purchase price, as stipulated in the agreement.

On the same day Ruiz sent a letter to Bourgeois advising him that Ruiz, in accepting the offer of sale, had not acted individually but was representing a client named Peter Jackson, and that “Mr. Jackson finds it impossible to carry out the purchase of the property, and desires me to have the sale cancelled.” Ruiz refused to deposit with Bourgeois the 10% of the purchase price, and took no further steps in the transaction.

Savich now brings this suit against Ruiz for $620, on the theory that under the terms of the contract he has the right to declare the amount of the deposit forfeited. Savich claims the further sum of $200 as the fee of his attorney for bringing the suit. The petition contains the further allegation: “And now appears the said Charles A. Bourgeois, of full age and residing in the Parish of Orleans, a duly licensed realtor, and duly appointed agent of the said petition(er), J. M. Savich, who joins in this petition, and under the terms and conditions set out (in) the said contract herein referred to demands of the said defendant the sum of One Hundred Fifty five Dollars, ($155.00) being his share of the commission as provided in said agreement.”

In the prayer, Bourgeois prayed for judgment in his favor for $155.

The matter was tried on its merits in the court below and plaintiff was granted a judgment against defendant for $620. The judgment did not allow plaintiff to recover the $200 for attorney’s fees. The court made no allowance to Bourgeois, but reserved his right to sue for the commission of $155. From this judgment defendant has appealed.

The petition alleges that in accordance with the conditions of the agreement a loan had been approved for the sum of $4,000 by the Home Building & Loan Association, and that the defendant had been informed thereof in due course. It is also alleged that the defendant, in refusing to complete the sale by taking title, violated his contract, and that plaintiff, who was ready and willing at all times to carry o-ut his part thereof, is entitled to have the amount of the deposit, $620, forfeited to him.

Ruiz has defended the suit on the ground that (1) in accepting the offer of sale he had not acted in his individual capacity but was acting as agent for Peter S. Jackson, whose identity had been previously disclosed to the plaintiff, and also to the plaintiff’s agent, and (2) the loan of $4,000 contemplated by the agreement could not be secured, and as the condition upon which the offer was accepted was never fulfilled, no valid contract ever came into being.

We find it unnecessary to pass upon the question of whether Ruiz acted individually or as the agent for his alleged principal, Peter S. Jackson, because we find that the case can be disposed of on the other defense raised, i.e., whether the suspensive condition respecting the defendant’s ability to borrow $4,000 on the property was fulfilled.

Ruiz testified that he contacted several lending institutions and was unable to find one which would lend him $4,000 on the property. His testimony to that effect stands alone and is uncontradicted.

Shortly after, the offer and acceptance of sale was executed, Bourgeois, the agent for plaintiff, made an application with the Home Building & Loan Association in order that the homestead might have an appraisal of the property made by the Central Appraisal Bureau which could serve as a basis for a loan on the property. Under the rules which prevail amongst the local homesteads they will lend up to 80% of the appraisal made by the Central Appraisal Bureau on any particular propertjr, and we understand from counsel that under the rules of the State Banking Department no loan exceeding 80% of its appraised value may be made on any property.

Upon being advised by Bourgeois that the Home Building & Loan Association had made a commitment to lend $4,000 on the property, Ruiz contacted the secretary of the loan association who informed him that it could not lend $4,000 on the property as the Central Appraisal Bureau had appraised it at $4,750, and that the maximum amount (80%) which could be loaned with only the property as security would be $3,800. The homestead official stated to Ruiz that if some one would pledge $250 of the capital stock of the Home Building & Loan Association as additional security, the amount of the loan could be increased to $4,000.

The plaintiff admits that the property alone was not acceptable as security. Bourgeois testified that he was willing to pledge the $250 of stock to the homestead, and that it would not have been necessary for the defendant to obligate himself therefor in any way, and that as a result defendant would have secured the full $4,000 loan, merely giving as security the property which he was to purchase from plaintiff.

Agreements legally entered into have the same effect as laws on those who have formed them. C.C. art. 1901. See also American Cotton Cooperative Ass’n, v. New Orleans and Vicksburg Packet Co., 180 La. 836, 157 So. 733, and Howard v. Faciane, 3 La.App. 593.

The agreement stipulated that the sale is conditioned upon the ability of the purchaser to borrow “upon this property as surety” the sum of $4,000. The undisputed evidence shows that the Home Building & Loan Association would not lend $4,000 with only the property as security. It required that $250 of its stock be pledged in addition to the property. Therefore, the 'condition upon which the sale was predicated was never met and we must conclude that the defendant was at liberty to recede from the contract. Decker v. Renaudin, 10 La.App. 725, 122 So. 600.

The testimony shows that the purchaser was interested in learning whether the appraisal bureau would place a $5,000 valuation on the property, in order that he might know that he was getting value received for his money. It seems to us that when a purchaser agrees to buy property under the conditions as contained in the agreement here, he does so for two reasons, (1) to learn what appraisement would be placed on the property by the appraisers to reassure himself as to his bargain, and (2) so that he can secure sufficient finances to consummate the purchase of the property. The purchaser was disappointed, according to his statements, that the appraisers had placed a valuation of only $4,750 on the property, and as a result lost interest in the bargain.

The purchaser seems to have been in good faith. His uncontradicted testimony shows that he made several attempts to secure a $4,000 loan from other institutions, but his efforts met with no success. The condition required that the loan be secured by “purchaser or agent” within 15 days. A loan of the proper amount with the property as security could not be obtained either by the purchaser or agent within the term stipulated, and under the law the condition must be considered as broken and the agreement thereby rendered unenforceable.

Article 2038 of the Civil Code provides: “When an obligation has been contracted on condition that an event shall happen within a limited time, the condition is considered as broken, when the time has expired without the event having taken place. ‡ *

For the reasons assigned, the judgment appealed from is reversed and the demands of Joseph M. Savich and Charles A. Bourgeois are dismissed at their costs.

Reversed.


author: JANVIER, Judge.

text:
    PAGLIN et al. v. FAZZIO et al.
    No. 18740.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1947.
    W. F, Marcus, of New Orleans, for plaintiffs-appellees.
    Bernard J. Bagert and George S. Hesni, both of New Orleans, for defendants-appellants.
   JANVIER, Judge.

Plaintiffs are the owners of a commercial building located on the upper lake side corner of Baronne and Poydras Streets in New Orleans. At about 4 o’clock in the morning on December 22, 1946, this building was slightly damaged when it was crashed into by an automobile owned and driven by Joseph Fazzio. The crash resulted from a collision which had just previously taken place in the intersection, in which collision there were involved the said automobile of Fazzio and another car, a Pontiac, driven by Lee Cannata.

Alleging that the collision and the ensuing crash of the Fazzio car into their building had resulted from negligence on the part of both drivers, plaintiffs brought this suit, seeking solidary judgment against both in the sum of $109.96, alleging that to be the cost of repairing the building. It is charged that both cars were operated at excessive speeds and that neither driver maintained a proper lookout for cars on the other street.

Cannata did not answer but Fazzio filed answer denying all negligence on his part and averring that the accident had been caused by the fact that Cannata had operated his car at an excessive rate of speed and that as a result the Cannata car crashed into the Fazzio car, causing Faz-zio to strike his head on the windshield, which in turn caused him to temporarily lose control of the car “whereupon it ran into the property” of the plaintiffs.

There was judgment below as prayed for for $109.96 solidarily against both' defendants. Fazzio alone has appealed.

The Fazzio car was on its way up Bar-onne Street. It was being driven by Faz-zio and in it were his two daughters, one of whom testified on his behalf. The other daughter was not produced as a witness.

The Cannata car was going out Poydras Street in the direction of Lake Pontchartrain. It was being driven by Cannata and in it, in addition to Cannata, were J. C. Childress and Junius Breaux. Of these three only Cannata was placed on the witness stand.

Though there was a traffic semaphore at the corner, it had been set in the caution position, showing the amber color in both directions.

It is well settled that when an automobile leaves its correct place on the paved portion of a street and crashes over the sidewalk, and does damage, the burden rests heavily upon the driver to show that there was no negligence on his part.

In an article entitled Res Ipsa Loquitur, Vol. IV, Louisiana Law Review 70, at page 101 appears the following: “In only one type of automobile accident has res ipsa loquitur been applied with appreciable consistency. Where a vehicle leaves the highway and strikes a pedestrian on the sidewalk or crashes into property adjoining the road, the courts quite properly are prepared to draw an inference of negligence from the occurrence. In such cases the place where the injury happened suggests strongly that the plaintiff was not at fault himself. Furthermore, although collisions upon the highway frequently occur without the driver’s fault, the same is not likely to be true where the car leaves its allotted channel and passes onto a place reserved for pedestrians. The dramatic element in situations of this type is conspicuous, and the occurrence suggests either that the vehicle was being operated at a high speed or that the driver had lost control of his machine.”

See Bailey v. Fisher, 1929, 11 La.App. 187, 123 So. 166; Scott v. Checker Cab Co., 1930, 12 La.App. 598, 126 So. 241; Tymon v. Toye Bros. Yellow Cab Co., La.App. 1938, 180 So. 839; Antoine v. Louisiana Highway Commission, La.App., 1939, 188 So. 443; Armstrong v. New Orleans Public Service, Inc., La.App., 1939, 188 So. 189; B. & B. Cut Stone Co. v. Uhler, La.App. 1941, 1 So.2d 149; Tarleton-Gaspard v. Malochee, 1931, 16 La.App. 527, 133 So. 409. Cf. Barrett v. Caddo Transfer & Warehouse Co., 1928, 165 La. 1075, 116 So. 563, 58 A.L.R. 261; Deimel v. Etheridge, La.App. 1940, 198 So. 537.

The burden therefore rested upon Fazzio to show that there was no negligence on his part. It will not suffice for him to show that some one else was at fault — he must absolve himself entirely or remain solidarily liable with the other tort feasor.

It seems probable that the Fazzio car had proceeded well into the intersection when it was struck, or that at least it had entered the intersection and had preempted it. But the fact that it proceeded entirely across the street and then mounted the sidewalk and crashed into the building, on the far corner, indicates excessive speed on its part. We do not think that the record warrants the conclusion that this was caused by the fact that Fazzio lost consciousness. The traffic light, as we have said, was set in the caution position and, even if it be conceded that Fazzio had the right of way, and that he had preempted the intersection, it was negligence on his part to enter it and to proceed at such a speed as is indicated by the facts set forth in the record. It is evident that the judge a quo must have felt as we do because he resolved this question of fact against Fazzio, and this in spite of the fact that Cannata did not answer nor in any way put at issue the question of his own negligence.

If the trial judge had found in favor of Fazzio, it might well be that we would have felt that the record would not warrant a reversal but since he did find against Fazzio, we are certain that it cannot be said that the record shows manifest error.

Counsel for Fazzio calls to our attention the opinion rendered by us in Pittman v. Hunter, 6 So.2d 786 and he contends that there were facts identical with those found here. He points out that there we held that the driver of the car which mounted the sidewalk and struck the plaintiff was not at fault. In that case, however, we found that the Hunter car, which had struck plaintiff on the sidewalk, had practically-crossed the street when it was struck from the rear by the other car. We found, too, that the plaintiff, though standing on the sidewalk, was near the curb so that the Hunter car did not mount the curb at a speed sufficiently great to cause it to completely cross the sidewalk and crash into a building. Furthermore, in the Pittman case, the trial court found in favor of the defendant, Hunter, whereas here the finding was against the defendant, Fazzio.

Since the extent of Cannata’s liability is not at issue, there having been no answer by him to the petition and no appeal by him from the judgment against him, the solidary judgment against both defendants must be affirmed. The amount awarded is not in dispute.

The judgment appealed from is affirmed at the cost of appellants.


author: LE BLANC, Judge.

text:
    DECUIR v. BOZEMAN et al.
    No. 2947.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.
    Rehearing Denied Dec. 30, 1947.
    Writ of Certiorari Denied Feb. 10, 1948.
    Kermit B. Guidroz, of Baton Rouge, for appellant.
    James D. Womack, of Baton Rouge, for appellees.
   LE BLANC, Judge.

This is a suit brought by a father on his own behalf and also on behalf of his minor son, twelve years old, to recover damages arising out of an accident which caused injuries to his son and which he claims happened through the gross negligence and carelessness of T. L. Bozeman, Sr., one of the defendants.

He sued T. L. Bozeman, Sr., and T. L. Bozeman, Jr., individually and as members of a partnership. In his petition he alleged that he was not certain who was the owner of the truck that ran into his child, that is, whether it belonged to T. L. Boze-man, Sr., or T. L. Bozeman, Jr., or to both operating a business under the name of Bozeman Concrete Company. We believe however that the testimony shows that the truck belonged to T. L. Bozeman, Sr., at the time of the accident and that the business was his. T. L. Bozeman, Jr., was then in the service of the armed forces of the United States and it was not until his return home that his father turned the business over to him.

The judgment of the trial court rejected the demands of the plaintiff, whereupon he was granted and has perfected this devolu-tive appeal.

According to the allegations of the plaintiff’s petition which are not seriously disputed by the parties made defendant except with regard to the direct act of negligence charged against T. L. Bozeman, Sr., driver of the truck, the accident happened on July 19, 1944, at the corner of North Street, in the city of Baton Rouge, where that street is joined by Margaretta Street which runs south from that point. The boy was riding a bicycle, going east on North Street and was to turn south into Margaretta Street to go to his uncle’s home for dinner. He worked for this uncle, who was a cobbler, running errands for him and shining shoes in his shop. As he reached the corner of Margaretta Street just about at the same time a-s the truck did, the accident occurred either by the truck having struck the bicycle or by the boy having run into the truck. He was injured rather seriously and his father asks for damages in the sum of $3500 on his behalf and for the sum of $1796.10 for himself which he claims are expenses he had to incur incidental to the injuries his son sustained.

The defense is practically that this boy heedlessly ran into the rear or side of the truck after it had started to make the turn into Margaretta Street and that the accident was caused solely by his negligence in that manner.

The only issue in the case is on the point presented by the defense in the answer filed and on which of course there is a conflict of testimony. Plaintiff produced several witnesses to show that the boy was riding his bicycle ahead of the truck and that although the truck was travelling at a very moderate rate of speed, anywhere from ten to fifteen miles an hour, in making the turn into Margaretta Street it crowded the boy next to a large ditch and it was a question of his bicycle falling into the ditch or his trying to hold to the street along the side of the truck. Pie tried to maintain his position on the street but nevertheless the truck struck his bicycle and threw him into the ditch, injuring him as he has claimed. The plaintiff and all of his witnesses are negroes and apparently the trial judge did not believe their testimony or at least he did not accept it in preference to that of Mr. Boze-man and a negro witness who was on the itruclc with him at that time.

There are reasons to doubt the testi■mony of some of the witnesses for plaintiff. The first one of these, for instance, a man by the name of William Johnson, testified that as well as he remembered, the .accident occurred about July, 1942, when .as a matter of fact it took place in July, 1944. True he corrected this when he was recalled to the witness stand after a court recess but if he was mistaken by two years as to the time it took place it seems likely that he could not have been as positive as he was about other details as to what happened. He states that the boy was riding ahead of the truck on his bicycle when he saw them both travelling east on North Street. He did not see the actual .collision as either the truck or a car parked on the south side of North Street obstructed his view. He says that he could not see them at the moment but “Mr. Bozeman must have been turning when he hit him.” Then when asked to locate the truck 'after the accident he states that it was twenty five yards down Margaretta Street. He is the only witness who places it there as all the others say that it was just at the corner and some recall it as having its rear end extending into North Street.

Another witness, Carey Dixon by name, testified that he saw the accident; that he had first seen both the boy on the bicycle and the truck going east on the right hand side of North Street; that the boy was in front of the truck and as he turned into Margaretta Street the truck did likewise and “that made him hit the truck.” He was pressed closely on this point on cross-examination and was a bit evasive. However, in answer to the specific question; “Didn’t the boy ride his bicycle into the side of the truck, just like you stated when you testified at first? Isn’t that the way it happened?”, he says “Yes, sir.”

The third of plaintiff’s witnesses, Edward Baxter, says that he was coming along North Street behind Mr. Bozman’s truck. The truck was then about twenty feet from the corner of Margaretta Street and the boy was about ten feet ahead of it. He is not definite in this but seems to state that the truck hit the bicycle and threw the boy in the ditch just as they were both to make the turn into Margar-etta. As a matter of fact, he appears rather positive that the bicycle was thrown in the ditch along the south side of North Street and apparently is the only witness who fixes tire place of impact at that point.

It was most probably because of these discrepencies that the trial judge rejected the testimony of these witnesses.

Mr. Bozeman testified that the boy was not in front of him and had he been, he certainly would have seen him. He is positive in his assertion that he did not see him until he got out of his truck and picked him up. He says that the colored boy who was riding with him, seated next to him on the driver’s seat, yelled “Look out, boy,” and as he did, he heard the impact of the bicycle against the back wheel of the truck. He wasn’t going much faster than ten miles an hour and was able to stop almost instantly.

The boy Elvey Lewis who was on the driver’s seat with Mr. Bozeman, states that he saw the boy when he was so close to the truck that he just had time to throw out his hand and he then hit the back wheel. He did not see where he came from and all that he had time to do after he did see him was to hold out his hand and call to him to watch out.

Every witness for the plaintiff who testified about the damage done to the bicycle stated that it was only the front wheel that was bent. That, it seems to us, is a physical fact strongly corroborative of the testimony of the defendant and his witness that it was the bicycle that ran into the truck and not the truck that hit the bicycle.

Much is said in argument about the high degree of care a motorist must exercise when he is driving near children who are riding bicycles on the street. He is no doubt charged with the responsibility of being very cautious and of keeping his vehicle under control so as to avoid running into them. The rule however contemplates that he must have had the opportunity of seeing them or that they were in a place where he should have seen them and he then could reasonably anticipate an unexpected movement on their part. The proof in this case does not show that Mr. Bozeman had such opportunity and consequently the rule does not apply.

Finding no manifest error in the judgment appealed from it will stand affirmed.

Judgment affirmed at the costs of the plaintiff, appellant.


author: McBride, judge.

text:
    RYAN v. BARTHELMY.
    No. 18723.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1947.
    Rehearing Denied Dec. 1,1947.
    James P. Vial, of Hahnville, for plaintiff and appellee.
    A. P. Tureaud, of New Orleans, for defendant and appellant.
   McBride, judge.

Helen Ryan, plaintiff, on October 7, 1946,. by authentic act, bought from Tony Rice the property known as a portion of Lot 5-of the Gilbert Darensbourg’s Place at Kil-lona, St. Charles Parish. In the act Tony Rice, the vendor, declared his marital status to be: * * * married but once,, and then to Azelia Berthehny, from whom he was divorced by a judgment of the 24¾. Judicial District Court.”

Helen Ryan, the purchaser, invoking the provisions of Act No. 298 of 1938, known .as the Share Croppers Act, brought this action seeking the eviction of Azelia Bar-thelmy, the defendant, from the property, alleging that she is occupying it without the consent or permission of plaintiff, and that there is no agreement existing between them for occupancy, and that Azelia Bar-thelmy had failed to comply with the written demand to vacate, delivered to her in .accordance with the requirements of the act. A rule was issued and served upon the defendant ordering her to show cause why she should not be condemned to vacate the property.

The sole grounds of defense are that the property has been the residence of defendant for more than 28 years and that before the sale to Helen Ryan, defendant, who •styled herself as the wife of Tony Rice, ■caused to be recorded in the mortgage records of St. Charles Parish on February 28, 1937, a declaration under the provisions •of Act No. 35 of 1921, Ex.Sess., to the effect that the property is “a family home,” and that, therefore, the sale by Tony Rice to Helen Ryan on October 7, 1946, in which she did not join, is null and void.

After a trial of the rule on its merits judgment was rendered condemning Azelia Barthclmy to dispossess herself of the property within 24 hours. She has appealed from the judgment.

Counsel for appellant first contends that she has been in the actual, physical and peaceful possession of the premises for more than 28 years under her recorded homestead declaration, and argues that whatever rights Helen Ryan has in the property should be tested in a petitory action and not determined on a rule for possession.

Act No. 298 of 1938, Sec. 1, provides:

“ * * * That when any share-cropper, half hand, day laborer, or any occupant of land-holding through the accommodation •of the owner, or any other occupant other than a tenant or lessee, shall be in possession of any house, building or landed estate, after the purpose of such occupancy and possession shall have ceased and terminated, whether for reason of breach or termination of contract, or otherwise, and the owner of such house, building or landed estate so occupied and possessed, or his agent, shall be desirous of obtaining possession of said premises, he shall demand and require in writing such occupant or possessor to remove from and leave the same, allowing him five calendar days from the day such notice is delivered.” (Italics ours.)'

The operation of the act is limited to matters where the occupant sought to be ejected is in illegal possession (Brown v. Weldon, La.App., 199 So. 620) and it is the intendment of the act to spare a land owner the vexation of bringing a petitory) action to eject an illegal possessor. Duvic v. Home Finance Service, La.App., 23 So.2d 790, 791.

The record herein contains no transcription of the, testimony of the witnesses given upon the trial of the rule, nor does it contain a note of evidence or a statement of facts prepared in accordance with the provisions of Code Prac. arts. 6Ó2 and 603. With the record in such condition a strong presumption arises that the court had received competent and adequate evidence such as would serve as a basis for the judgment rendered. Stout v. Henderson, 157 La. 169, 102 So. 193; Ansley v. Stuart, 123 La. 330, 48 So. 953; Succession of Chas. M. Pilcher, 39 La.Ann. 362, 1 So. 929; Donaldson v. Sheridan, 11 La.App. 498, 124 So. 193; W. T. Rawleigh Co. v. Freeland et al., La.App., 16 So.2d 489.

In his reasons for judgment the trial judge declared:

“ * * * The Court is convinced that the defendant herein is of the colored or negro race, and that her said husband, Tony Rice, who acquired the property during the supposed marriage and sold same without her concurrence, is of the white or Caucasian race, * * * ”

There is nothing which even remotely indicates that there is error in this conclusion.

The legal question poses itself whether a community of acquets and gains prevailed between Azelia Barthelmy and Tony Rice, for if such did exist the property involved-here would have been an asset thereof, and by virtue of her declaration recorded in the mortgage records of St. Charles Parish, Tony Rice would not have had the right or capacity, without her concurrence, to sell the property to Helen Ryan.

Counsel for the defendant, both in his brief and in oral argument, adopts the position that the marriage between Tony Rice and Azelia Barthelmy cannot be collaterally attacked in this proceeding, and that until it is dissolved in a direct action of nullity Azelia Barthelmy is to be considered the wife of Tony Rice, and argues that we should recognize her community rights in the property.

With this contention we do not agree. Civil Code, art. 94, provides in part:

“ * * * Marriage between white persons and persons of color is prohibited, and the celebration of all such marriages is forbidden and such celebration carries with it no effect and is null and void.”

Civil Code 1825, art. 95, which contained provisions prohibiting miscegenous marriages, was discussed t)y the Supreme Court in Succession of Minvielle, 15 La.Ann. 342. The Court there said:

“The prohibition contained in this article is one eminently affecting the public order. Hence the nullity declared by the same is absolute, and cannot be cured by ratification. The law is of that rigorous nature that it will not permit a marriage to exist between persons of two different races for a moment. No suit is needed to declare the nullity of such a union. Either party may disregard it, and neither can pretend to derive from it any of the consequences of a lawful marriage. Hence the defendant was at liberty to show the absolute nullity of the pretended marriage whenever it was opposed to her, without the necessity of having previously brought an action to annul that which our law declares can have no existence.”

The last expression of the Supreme Court on the matter under consideration is to be found in the case of Carter v. Veith et al, 139 La. 534, 71 So. 792, where the Court observed in the syllabus:

“Marriage between persons of the white •and colored races is prohibited in this state, as a matter of public order and policy, and such a contract is absolutely null, requires no direct action to set it aside, and may be attacked by the party to whom it is opposed by way of exception or defense, whenever and wherever it is set up.”

The union of Rice and Azelia Barthelmy was contracted in the teeth of the prohibition forbidding such, and it is null • and void and can be the subject of an attack in any manner by any person whenever his interest requires that an attack on it be made. The marital community never existed between the parties; no legal effects whatever can flow from the purported marriage.

Rice purchased the property in his own name and under the facts found by the trial court, and the law, the family home declaration filed by Azelia Barthelmy is without effect and it is our conclusion that she is unlawfully occupying the property.

The judgment appealed from is affirmed.

Affirmed.


author: OTT, Judge.

text:
    MARSHALL v. CITY OF BATON ROUGE.
    No. 2948.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.

      Roland C. Kizer, City Atty., of Baton Rouge, for appellant.
    Greene & Womack, of Baton Rouge, for appellee.
   OTT, Judge.

The plaintiff brought this suit to recover the sum of $452.37 on account of damage to his automobile, loss of its use, and personal injuries sustained in an accident which occurred on June 14, 1946, about 10:00 o’clock, P. M. in the City of Baton Rouge. He alleges in his petition that he was driving south on South 13th Street on his way home when the -front part of his car ran into a large hole in the street, which hole was not lighted nor any warnings placed thereat. His claim is based on the alleged negligence of the City in permitting this unlighted a-nd unmarked hole to exist in the street. He charges the City with the actual or constructive knowledge of the existence of this hole in the street.

The City denied any negligence on its part, and denied any knowledge, actual or constructive, of any defect in the street. In the alternative, the City pleaded contributory negligence on the part of plaintiff in that he failed to keep a proper lookout and that he was driving in a careless and negligent manner.

After a trial, the court below rendered a judgment in favor of plaintiff in the sum of $242.34. The City has appealed.

The testimony clearly indicates that there was a hole slightly to the west of the center of South 13th Street. This hole, according to the preponderance of the evidence, was about two feet wide across the street, six to eight feet long lengthwise the street, and some 3 feet deep.

The plaintiff testified that he was driving south on this street around 10:00 o’clock on the night of the accident traveling from twelve to fifteen miles per hour, and that when he was about fifty feet from the hole in the street he saw what appeared to be a black spot in the street. He made no effort to slow down or to stop his car. He says: “I didn’t see it until I got right on it, and I was going too fast to stop, and I put on my brakes and I was right in the-, hole.”

Plaintiff further testified that this hole was about four feet wide cross-wise the street and about two and one half feet long, and about three feet deep. He says there-was a log or stump in this hole about two and one half feet in diameter, and sticking up about one and one half feet above the street.

There is some discrepancy in the first part of plaintiff’s testimony regarding the position of the hole in the street. He first attempted to make it appear that the hole-was longest across the street, but he later changed his testimony and admitted that the hole was longest up and down the street. Practically all the other evidence-shows that this hole was about the size-indicated above and ran up and down the-street. Most of the evidence shows that, there was a log or stump in the hole stick--ing up about one and one half feet above the surface of the street.

The evidence is not clear as to how long this hole had been in the street. Two or three colored men who lived in the neighborhood testified that this hole had been in the street for about two weeks, one of them stating that he could hear the cars bumping over the depression in the street. The Superintendent of Streets for the City testified that he went over all the streets of the City at least once a week; that he passed over South 13th street about three o’clock in the afternoon of the day on which the accident occurred at ten o’clock that night, and at that time he saw no hole in the street at the point of the accident. Taking all the evidence into consideration, it is our opinion that this hole had existed in the street for several days. It might not have been as large and as deep at the time the Superintendent passed over this Street . as it was when the accident occurred that night. In view of the fact that several other holes had developed in this street during a period of a few months previously, ■it is reasonable to conclude that the City employees had either actual or constructive .notice of the defect in the street.

While the defendant contends that , plaintiff has failed to prove that his car ■fell into a hole in the street and that his -car was damaged and he received a shock iby reason of the accident, yet, in our opinion, the preponderance of the evidence shows to a reasonable certainty that plaintiff did drive his car into a hole in the street, and that his car was damaged and ■he received a severe shock in the accident.

A City is bound to keep its streets in a reasonably safe condition for pedes.trian and vehicular traffic, and is liable for defects in a street sufficiently dangerous to cause an accident and an injury to a person using the street in a reasonably prudent manner, if the municipality has actual or constructive notice of the defect. S Blash-field, Cyclopedia of Automobile Law and Practice, § 3208.

While there was a defect in the . street, and the evidence shows that the City .had either actual .or constructive knowledge of the defect, yet the plaintiff by his own testimony is shown to have been guilty of such contributory negligence as to bar his recovery. There was a street light forty-five feet from this hole, and the street at that point could not have been very dark. This was a rather long and wide hole, and besides there was a stump in it and sticking up about a foot and half from the top of the street. Plaintiff admits that he saw this hole when he was fifty feet from it, and we fail to understand why he could not see the stump above the surface of the street. While a motorist has a right to assume that a street is in a safe condition for travel, yet he can not close his eyes and fail to observe dangers in front of him. Plaintiff says he was going only twelve to fifteen miles per hour and he should have been able to stop his car within a very few feet.

In the case of Arceneaux v. Louisiana Highway Commission, La.App., 15 So.2d 638, the court held a plaintiff guilty of contributory negligence who failed to see a hole in the road eighteen inches wide and fourteen inches deep, while driving thirty five miles per hour.

In the present case, there might have been some reason for the failure of plaintiff to stop his car before driving into the hole had there not been a stump sticking up above the surface in the street. It can be readily understood why a motorist could not see a hole in the street which is level with the surface, but where an object stands up as much as one and one half feet above the surface of the street and this object is two feet in diameter, there would seem to be no excuse for a person not to see it and stop while driving at a low rate of speed.

We are not unmindful of the holding of the Supreme Court in the case of Kirk v. United Gas Public Service Company, 185 La. 580, 170 So. 1, where it was held that the driver of a car on a paved highway at night was not guilty of contributory negligence in failing to see a dead yearling on the road. .We think the facts in this case are different from the facts in that case. Here the accident occurred on a city street only a short distance from a street light. Plaintiff admits that he saw something in the street when he was about fifty feet from it, yet he made no effort to slow down or stop, although he was going only 12 to IS miles per hour and could have stopped within a few feet. His lights and brakes were in good order.

While plaintiff says that a taxicab was coming from the opposite direction, he does not claim that its lights blinded him except at the very moment the cab passed him. On being asked if the taxicab had passed him when he got to the hole, he replied:

“No, sir. I imagine his car lights were out of my face when it hit the hole. By his lights being so bright, that is what made me see it so .quick. That helped me to see it before I did drop in it, but I was right on it and I couldn’t stop.”

Our conclusion is that plaintiff was guilty of such contributory negligence as to bar his recovery.

For the reasons assigned, the judgment appealed from is hereby reversed and set aside, and the suit of plaintiff is dismissed at his costs in both courts.


author: DORE, Judge.

text:
    THOMAS v. MARYLAND CASUALTY CO.
    No. 2955.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.
    Rehearing Denied Dec. 30,1947.
    Writ of Certiorari Denied Feb. 16,1948.
    Samuel M. Robertson, of Baton Rouge, for appellant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellee.
   DORE, Judge.

This is a compensation suit brought by the plaintiff against the defendant Maryland Casualty Co., the compensation insurer of Armco Drainage and Metal Products Company, plaintiff’s employer.

Plaintiff alleges that on Saturday, March 16, 1946, while in the employ of Armco Drainage and Metal Products Company, he was engaged with other employees in digging a pit in which to install a concrete slab and, while so doing, he slipped and fell into the pit, fracturing his left hip bone and straining both sacro-iliac joints and causing or aggravating a hypertrophic arthritis in the lumbar spine, all of which injuries are painful and causing stiffness in his back, which disabilities are permanent; that he has not been paid any compensation; that his rate of pay was in excess of $30 a week.

He prays for judgment decreeing him to be totally and permanently disabled and for compensation at the rate of $20 per week for a period not exceeding 400 weeks, beginning March 16, 1946, together with interest on all unpaid past due instalments and for $500 medical expenses.

Defendant, for answer, denies all of plaintiff’s allegations, save that it admits that it has not paid plaintiff any compensation.

The trial of the case resulted in a judgment in favor of defendant dismissing plaintiff’s suit, the trial judge holding, with written reasons, that plaintiff had failed to prove his case by a preponderance of the evidence. Plaintiff has appealed.

In this court there are only two questions presented: First, since it is now admitted by the defendant that the plaintiff suffered an accident in the course and scope of his employment, the principal question is whether or not the plaintiff was disabled and has been disabled ever since from performing hard manual labor. It is the contention of the defendant that the accident was slight and did not result in any disabling injury to the plaintiff. Second, if compensation is due, the weekly wage of plaintiff is in contest. These questions will be discussed in their respective order.

The record discloses that plaintiff was engaged in leveling a pit of 12 by 14 feet and four or five inches deep which was to be filled with a concrete slab. A slow drizzle rain was falling and the ground was slick and just soft “enough to mess you up.” The plaintiff’s feet slipped from beneath him and plaintiff fell backward in a split to the ground on his bottom and left hip; his body from the waist down came in contact with the ground. The accident happened on Saturday afternoon at about 2:30, March 26, 1946. The plaintiff completed the remainder of the work day, did not work on Sunday, reported to and did work on Monday, Tuesday, Friday, Saturday and Sunday, and was paid therefor. On Monday, April 4, he was referred to Dr. Godfrey, the company and the insurer physician. He reported to Dr. Godfrey on April 5.

According to plaintiff, he “got up limping in his left side,” and continued to work in pain for the remainder of the day. He attempted to continue working in pain until he could not “make it no further.” He then reported his condition to the superintendent, who sent him to Doctor Godfrey. He went to Doctor Godfrey’s office and Doctor Godfrey treated him once. Dr. Godfrey gave him a slip to go to Doctor Williams’ office to have his back X-rayed. He did not report to Dr. Williams. He has not worked or attempted to work because he was suffering with so much pain.

The record discloses, according to Dr. Godfrey’s report, that plaintiff was examined by Dr. Butler, a colored doctor, on April 4, 1946. We have no report or testimony as to the findings of this doctor. Thereafter, plaintiff was examined by Dr. Godfrey, defendant’s doctor, on April 5, 1946. Comment will be made further in this opinion as to Dr. Godfrey’s testimony and findings.

Plaintiff was next examined by Dr. Kuehnle on April 8, 1946. Dr. Kuehnle testified that “on the first examination the pertinent physical findings were as follows : There was tenderness over both sacroiliacs and a moderate amount of spasm to the paravertebral muscles. While lying on his back he was unable to raise actively the extended left leg higher than about ten inches, and even with this he complained of considerable pain in the left side of the back.” At that time, the doctor made a tentative diagnosis of sacroiliac sprain. He requested X-rays, which were made on April 9, 1946, by the office of Dr. Williams.

The X-ray examination of plaintiff was made by Dr. Arthur S. Alexander, an associate of Dr. Williams, on April 9, 1946. The report of that examination is as follows: “Examination of the entire pelvis including both hip joints and a localized projection of the left hip reveals a questionable cortical fracture 4 mms. in projected length involving the most superior margin of the greater trochanter. If this short area of translucency represents a fracture line, the fragments are in perfect position and alignment.”

On the basis of this X-ray report and his physical examination of plaintiff, on April 9, 1946, Dr. Kuehnle’s diagnosis was “Sacroiliac sprain and possible incomplete fracture of the cortex of the greater tro-chanter of the left femur.” Following this, plaintiff was given sixteen diathermy treatments, the first on April 9, 1946, and the last on May 1, 1946.

According to Dr. Kuehnle’s testimony and report, the plaintiff had made good progress towards recovery on May 2, 1946; and was able to resume light work on May 13, 1946, the plaintiff being able to walk with almost normal posture, although he did give the impression of a slight splinting of the lower back. With regard to the fracture of the greater trochanter of the left hip, he stated that the prognosis was good. As of date of May 12, the doctor said that “the injury appears to have recovered.”

The plaintiff was again referred to Dr. ICuehnle on December 5, 1946. The result of that examination, according to the doctor’s testimony, “revealed pain in the sacroiliac on extreme flexion of the extended leg. Test for sciatic nerve injury was negative. That was about the extent of the positive findings at that examination.” In a letter to plaintiff’s attorney, of date of December 10, 1946, relative to the examination of December 5, 1946, the doctor wrote: “The patient complains of continuous pain in the lower back, radiating down the back of the legs and pain in the left hip. X-ray examination on repeated occasions have revealed no evidence of bone or joint injury. Patient complains of tenderness over the lower back, however, no muscle spasm could be detected. On pinching the skin the patient complained of more severe pain than when pressure was applied to the muscles of the back. Straight leg raising test produced pain only on extreme flexion * * *. It is my opinion that although this man may have pain in the lower back as a result of this accident, the symptoms are far in excess of the amount of pain indicated as a result of these tests. I think that this man is exaggerating his symptoms and that he is actually able to return to work.”

I-Ie was shown an X-ray report of May 21, 1946, and was questioned as to any hypertrophic arthritis in the lumbar spine of plaintiff. He read, “except for minimal hypertrophic osteoarthrosis of the lumbar spine, the vertebrae are normal in size, contour and texture.” He would not venture an opinion as to whether the fall caused plaintiff’s arthritic condition nor whether it aggravated a previous existing arthritis in the back, merely stating that it was possible and that the present complaints of plaintiff fit in with the picture-of an aggravated arthritis.

Regardless of his previous reports and' testimony, the witness, on the date of trial,, expressed the opinion that the plaintiff was-still suffering pain and had not entirely recovered. This opinion is based solely upon a test conducted in open court by the witness and Dr. Cosby, which test is shown as the “Robertson’s Sign.” With reference to this test, the witness stated that was the only objective evidence of pain he found on the day of trial. We shall further comment on this test later on in this opinion.

Upon being interrogated as to plaintiff’s ability to do the work he was accustomed to do prior to the accident, the witness would not commit himself further than that he had recommended to plaintiff that he attempt to work and that it all depends whether plaintiff is willing to try to work. He added that “with the psychological factor he has there, I do not know if he will ever admit that he is not hurting as bad as he says he is.” The witness further expressed the opinion that a compensation settlement would greatly benefit plaintiff’s back. However, the doctor would not classify plaintiff as a malingerer.

The plaintiff next offered the testimony of Dr. J. A. Thom, a general practitioner of medicine, of Baton Rouge. He testified as follows: .. i

“I saw him first on May 3, 1946. At that time there was rigidity of the lower spinal muscles, both on the right side and the left, but more definitely on the left, and he complained of an area of tenderness most noticeable over the left sacroiliac region. It was not well defined, but it extended up the lumbar spine and over into the right side. , . .......,
“In testing out these leg tests to determine where the trouble was, when you extended the leg on that straight leg test, the leg on the left side, when it was flexed up at right angles, extended slightly beyond, it threw the left lower lumbar muscle into a spasm. The same was not true on the right side, at least was not as noticeable on the right side. I detected no sciatic pain.
“On several different occasions I made those tests on him to see how he was progressing. The treatment I used was to immobilize him with Zeo plaster. As we went along, I made several tests on him, and this rigidity of the spinal muscles became less. The last time I checked him over was today. On palpation of the back there was no definite rigidity of those back muscles, although there was more tone to the left dorsal muscle, lower spinal muscle, more tone to it, and it appeared a little larger. On flexing the leg on the leg test, these spinal muscles on the left side were not thrown into a spasm when the leg was over-flexed, not a definite spasm. It caused some rigidity of it, but not a definite spasm.” Further in his testimony, he considers the X-ray findings of arthritis as fitting into the picture of the back pathology he, the witness, developed. He expressed the opinion that the plaintiff’s injury had incapacited .him from heavy work, but had urged him to try to do light work. “He (plaintiff) said that he knew he was not able to do a day’s work for a man and that nobody would hire him.” He, witness, was not of the opinion that plaintiff was a malingerer, but he considered “like we have to consider all these cases, that they (claimants) make the most they can out of the ailments they have.” He had seen the plaintiff professionally at least 12 or 15 times, maybe more, the first time being on May 3 and the last time in September.

On being questioned by the Court to state in plain English what was his diagnosis, the doctor states: “I think he has a minimum of arthritis. I would have made that diagnosis without the X-ray verifying it. I felt that he had strained his back and had a minimum degree of arthritis, and I also felt that the tendons around there were involved in it, that the tendons were strained.” He was of the opinion that probably the minimum of arthritis was existing prior to the injury, but that the injury aggravated the arthritic condition of his back.

It appears that Dr. Thom had plaintiff X-rayed in May, 1946, and in September, 1946, by the associate of or by Dr. Lester J. Williams.

The report of Dr. Alexander, on May 21, 1946, is as follows:

“Examination of the lumbo sacral spine including the entire pelvis and both hip joints reveals no disalignment. Except for minimal hypertrophis osteoarthrosis of the lumbar spine, the vertebrae are normal in size, contour and texture. The inter-vertebral discs are of normal height. The lumbo-sacral and sacro-iliac articulations reveals no changes.
“The pelvis is symmetrical. Both hip joints are of equal and normal width and their articular corticies are smooth and regular.
“A detail projection on re-examination of the left hip reveals practically complete healing of the suspected fracture at the tip of the greater trochanter. The fragments are in perfect position and alignment.”

The report of Dr. Williams of date of September 30, 1946, is as follows:

“X-ray examination of the left pelvis including the hip joint and the proximal half of the left femur is negative for any present evidence of fracture, nor is there any evidence of unabsorbed callus near the superior margin of the greater trochanter.”

The report of Dr. Williams of date of September 30, 1946, is as follows:

“X-ray examination of the lumbar spine and pelvis by means of antero-posterior and lateral projections is negative for present fracture or dislocation. There is no evidence of unabsorved callus near the superior margin of the greater trochanter of the left femur. The lumbar spine is normal in size, contour and texture. There is a slight hypertrophic arthritis of the entire lumbar spine. There has been no increase in the amount of hypertrophic arthritis shown since 5/14/46, as shown by a careful comparison of the films at that date and the present. The intervertebral discs are of normal height. The lumbo-sacral and sacro-iliac articulations exhibit no pathology.”

The defendant offered the testimony of Mr. M. E. Hughes, the timekeeper of plaintiff’s employer. According to this witness, the witness was about two feet from the plaintiff when plaintiff fell. Plaintiff got up, kind of smiled and looked around to see if anyone was looking at him. Plaintiff did not complain of being hurt. Plaintiff continued to work the rest of the day. The following day, plaintiff did not work. The following morning, plaintiff reported for work and complained of hurting. He, the witness, told him if he, plaintiff, didn’t get any. better, he should go to a doctor. Plaintiff kept on working for five days; he kept on complaining, and finally the witness gave him an order to the doctor. After he gave him the order, that was the last he saw of plaintiff. He denies that at any time after the accident plaintiff limped.

Dr. J. R. Godfrey, called by the defendant, testified that he first saw plaintiff on April 5, 1946,' and that plaintiff at that time gave him a history of having slipped and fallen backwards on March 26, 1946, and that the pain resulting from the fall increased in the days that followed, and on April 4th he consulted a colored physician and received some treatments; that the plaintiff complained of pain over the general area of the lumbo-sacral joint, all the way around the left to the inguinal region. The doctor testified further that he found no objective symptoms as a result of physical examination of the plaintiff, and that he diagnosed his condition as muscle sprain of the lower back, “giving him the benefit of all doubt.” Dr. Godfrey states that the attitude of plaintiff was that of a malingerer in that he grossly exaggerated his symptoms, and even stated that he knew his condition was hopeless and that no amount of treatment would do him any good. He was re-examined by Dr. Godfrey on December 10, 1946, at which time he again exaggerated his symptoms, stating that he had been in extreme pain since the accident and had been unable to work, and on this particular visit the doctor states: “Plaintiff hobbled on a cane carried in his right hand, when, as a matter of fact, his pain was supposed to be on his left side.” The sum and substance of Dr. Godfrey’s testimony is to the effect that plaintiff suffered some minor strain on March 26, 1946, but that he was not seriously or permanently injured, and is now capable of returning to his former work of performing manual labor.

The defendant offered the testimony of Dr. Frank Brostrom, an orthopedic specialist, of New Orleans; the doctor examined the plaintiff, on request of defendant, on October 23, 1946. His testimony was taken out of court. After thoroughly going into plaintiff’s complaints, and after making a thorough examination of plaintiff, lasting about two hours, to determine his physical condition, the witness, in his report, states r

“I do not doubt that the claimant sustained a strain of the lower back from the fall on March 26, 1946, for which he received treatment. The continued complaint of pain over the crest of the left ilium that radiates over the front of the abdomen into the right hip and into the back is too absurd for the examiner to put much faith in the claimant’s statements. A minor cortical fracture of the greater trochanter that has healed so perfectly, could not give rise to symptoms seven months after the accident. The range of motion of the lumbar spine, considering the man’s age and obesity is in my opinion within normal limits and in view of the negative clinical findings, I see no reason why the claimant should not resume his former occupation.”

In his examination and report on the plaintiff, Dr. Brostrum was questioned about X-rays taken by Dr. Teitelbaum, in charge of the Department of Radiology at Touro Infirmary, and referred to the report of ■ this doctor. Dr. Teitelbaum’s report is as follows:

“Examination of the lumbar spine reveals no disalignment. The vertebrae are of average size, contour and texture and except for minor osteoarthrosis, exhibit no evidence of injury. The inter-vertebral discs are of normal height. The lumbo-sacral and sacro-iliac articulations shows no changes. An antero-posterior projection of the entire pelvis including both hips and the proximal femurs and a supplementary lateral film of the left hip show the component bones to be normal in contour, texture and density. The hip joint spaces are of equal arid average width and the articular cortex is smooth. - No evidence of disease or injury is demonstrated.”

Dr. Teitelbaum, in his examination, states that such minor degenerative changes as shown by the X-rays are commensurate with a patient of middle age; but there was no evidence of injury or disease other than these. Plaintiff was 42 years of age when the X-rays were taken by him.

At the beginning of the trial, the plaintiff offered the joint testimony of Dr. Kuehnle and Dr. O. W. Cosby, an eye specialist. Dr. Kuehnle read from a book written by Dr. Otto Steinbrocker the definition' of “Robertson’s Sign” as “Dilation of pupils produced by pressure upon any painful area resulting from an organic lesion. In the malingerer or neurasthenic, when an alleged pain is complained of, pressure over the area fails to produce reaction.” Dr. Cosby testified that the “Robertson’s Sign” is the same as found in Volume I., Textbook of Ophthalmology, by Duke-Elder, an outstanding book in ophthalmology. He read from this book, under the heading of “The Phycho-Sensory Reflex”: “The stimulation of any sensory nerve results in a dilation of the pupils. The dilation does not depend directly upon the physical intensity of the stimulus, but is a function also of the state of receptivity of the higher centers or after ablation of the cerebral entex. The stimulation of any sensory.” The doctor states that, in short, it “simply means that if a painful stimulus occurs there is a resultant dilation of the pupil. Dr. Cosby and Dr. Kuehnle applied the test to plaintiff and to Mr. Middleton, associate counsel for defendant. Dr. Cosby testified that there were dilation of the plaintiff’s pupil when Dr. Kuehnle applied pressure upon the left sacro-iliac, the lum-brosacral area of the back, and the right sacral iliac and the anterosuperior area spine of plaintiff and there were no dilation of the pupil when pressure was applied at these areas of Mr. Middleton. There was a dilation of Mr. Middleton’s pupil when a painful stimulus was produced by flexion of a finger. He has only applied this test on three occasions, first in the Trimble case, second in this case, and third upon himself. He states that any stimulus to the sensory nervous system will cause dilation of the-pupil, such as fear, excitement, possible extremes of temperature or emotional disturbances.

Dr. J. S. Anderson, an eye, ear, nose and throat specialist, was offered by the defendant. This doctor testified that he had no information about the “Robertson’s Sign”; that prior to three or four days to the trial of the case. As to the Duke-Elder book, he states that any stimulation, either mind or the body, be it psychic or physical stimulation, will cause a dilation of the pupil. He states that the test is not an accurate test of whether a man is suffering pain. In that he is corroborated by Dr. Godfrey.-

Anent the “Robertson’s Sign” test conducted in open Court and the testimony offered pro and con, relative to proof of pain by the dilation of the pupils of the eye, the preponderance of the evidence shows that the doctors do not think much of this test in that it is-shown that fear or other emotions will cause the pupils to, dilate and that there is no way to tell the degree of pain by the dilation of the pupils. We do not attach any probative value to the test in the determination of this case.

A,s to the lay testimony, we have only the testimony of plaintiff’s wife, of Mr. J. L. Winfree and of plaintiff.

His wife testified that although plaintiff was a hard working man supporting himself and her, since the accident plaintiff has been unable to work; plaintiff does not rest at night; sometimes she has to get up during the night and rub plaintiff with alcohol; he sleeps on a hard matress, on boards. On account of the plaintiff’s condition she had to seek work and that they live on her earnings and help from her employer. Plaintiff never leaves the home and has not earned any money since the accident.

Mr. Winfree, an employee of the Gulf Refining Co., testified that plaintiff’s wife is in his employ as a domestic servant and occasionally keeps the children at night for him and his wife. He knows nothing of plaintiff’s ailments; he frequently takes plaintiff’s wife home and on these occasions, he, during the afternoon, invariably found plaintiff sitting on the porch complaining .of pain and with apparent difficulty in walking from the porch to the car; plaintiff would walk with a limp and with a cane. At night, plaintiff would be up and would open the door to let his wife in. He would not see plaintiff. Witness’ wife would give food and clothes to plaintiff’s wife.

Plaintiff has testified that ever since he ■quit his employment with the Armco Drainage and Metal Work, he has not worked ■and cannot work on account of pain. He is corroborated by the doctors who testified in the case in that his hands are those of one who appears not to have worked. He states that none of the treatment he has received had done any good, save to give him temporary relief.

It is indeed hard to understand this case. All the doctors, save Dr. Godfrey, will not classify the plaintiff as a malingerer. However, Dr. Kuehnle was of the opinion that plaintiff was able to return to work on December 5, 1946. Dr. Thom was of the opinion that in September, 1946, plaintiff should try to work, and Dr. Brostrum was of the opinion that plaintiff could return to work in October, 1946. The only reason we can see for plaintiff not returning to work is his status of mind. He has a slight case of arthritis, and which is common for his age. We believe that he has and is exaggerating his condition. We are therefore of the opinion that the preponderance of the medical testimony shows that plaintiff was fully able to return to work by December 5, 1946, and compensation will be granted unto him beginning from April 4, 1946, to December 5, 1946.

During the trial of the case, plaintiff sought to introduce reports of Dr. Moss M. Brannerman’s, an orthopedic surgeon of Baton Rouge, he having examined plaintiff at plaintiff’s own request. The offerings were promptly objected to by defendant unless Dr. Brannerman was ottered as a witness and would identify the reports. Plaintiff refused to call the doctor as a witness. The objection was sustained. In this court, plaintiff complains of the ruling of the lower court. We find no error in the lower court’s ruling. These reports are ex-parte reports of Dr. Branner-man and not properly identified. Defendant was entitled to have Dr. Brannerman in court and be cross-examined, if it desired,

After the case was closed defendant then filed a motion to have the case reopened for the purpose of taking Dr. Bran-nerman’s testimony. Plaintiff objected and stated that he would object to having Dr. Brannerman give testimony for the reason that Dr. Brannerman was his own doctor and therefore his findings would be privileged. For that reason, the district judge denied defendant’s motion. Dr. Branner-man did not testify. The testimony of Dr. Brannerman must-then be presumed to have .been adverse to plaintiff’s case. However, the presumption does not alter our conclusion.

Anent plaintiff’s wages, we find that the evidence clearly establishes that plaintiff was employed and was receiving at the time of the accident, pay at the rate of 55¡é per hour, eight-hour day, for five days a week, making his weekly wage $22, 65% of which is $14.30.

The following medical expenses have been proven: Dr. J. A. Thom, $35; Dr. Lester J. Williams, $30; Dr. Moss M. Bran-nerman, $25; totalling $90, and which will be allowed.

For these reasons assigned, the judgment appealed from is hereby annulled, reversed and set aside. It is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff and against the defendant granting compensation to plaintiff in the full sum of $14.30 per week commencing April 4, 1946, and ending December 5, 1946, with legal interest on the said weekly instalments from the date each was due until paid.

It is further ordered that plaintiff do have and recover judgment against the defendant in the sum of $90, with legal interest from judicial demand until paid.

It is further ordered that the expert medical fees of Doctors O. W. Cosby and J. A. Thom be fixed at $25 each and that of Dr. G. R. Kuehnle be fixed at $50.

The defendant is ordered to pay all costs.