author: ELLIS, Judge. DORE, Judge

text:
    STEWART et ux. v. HERRIN TRANSP. CO. et al.
    No. 3014.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.
    Rehearing Denied Nov. 10,1948.
    Writ of Error Refused Dec. 18, 1948.
    Plauche & Plauche,, of Lake Charles, for appellants.
    Reed & Holloman, of Lake Charles, for appellees.
   ELLIS, Judge.

This is a suit for damages resulting from a, collision between the automobile of the plaintiff and a truck belonging to the defendant.

The plaintiffs, Reese C. Stewart and his wife, Ethel Stewart, allege that on or about May 19, 1945 at about 11:30 P.M. plaintiff Reese C. Stewart was driving his 1936 Coupe automobile east on Highway 90 in Calcasieu Parish, Louisiana; That the plaintiff Ethel Stewart was riding in the automobile and was seated in the front seat on the right hand side, and that when at a point about 600 feet east of the place known as Vaughn’s Service Station plaintiffs noticed a vehicle approaching from the east; that said approaching vehicle was on the same side of the road as the vehicle of plaintiffs’; that plaintiffs were on the south side of the highway — their right side — and that, therefore, the approaching vehicle was on its wrong side of the highway; that plaintiffs were proceeding at a moderate rate of speed, their lights burning and dimmed for .the approaching vehicle, and keeping a careful lookout and observing all rules of the road; that as the vehicles drew closer together, the approaching vehicle continued on its south or wrong side of the highway, and it appearing that a collision was imminent, petitioner’s vehicle was turned toward the north side of the highway as this seemed to be the last clear chance to avoid a collision; that as the vehicle of petitioner was turned toward the north, the driver of the approaching vehicle also turned to the north, and petitioner then attempted to turn back to the south side of the highway but that the two vehicles were then so close together a collision could not be avoided and the two vehicles collided on the south side of said highway.

Petitioners further allege that the vehicle involved in the collision with them was a truck belonging to the Herrin Transportation Company and that the Herrin Transportation Company carried a policy of liability insurance on the truck involved in the collision with the American Fidelity and Casualty Company, Inc., and, therefore, the Herrin Transportation Company and its Insurer are made parties defendant and as a result of the collision petitioner Reese C. Stewart suffered injuries and damages which he itemized in his petition as damages totalling $7,120.00; that Mrs. Ethel Stewart suffered severe bruises, contusions and shock, every bone in her face was broken, her palate was knocked loose and all her teeth knocked out and both of her jaws dislocated; that her hearing was seriously affected and her eyesight almost completely lost, all of the above injuries resulting in great mental anguish and physical suffering; that she was further greatly damaged in that her comely was seriously and grossly impaired; that the above injuries are itemized in Article 11 of plaintiffs’ petition and total $26,000.00.

The defendants filed an answer which in general denies the main allegations of plaintiffs’ petition and further answers that under date of May 19th, 1945 between 11:00 and 11:15 o’clock P.M., defendant Herrin Transportation Company’s driver, Ross Martin, was driving his employer’s White Truck, 1941 year model with trailer attached, west upon United States Highway 90 approximately four miles west of Lake Charles, Louisiana, in a carefuí and prudent manner, at a reasonable and cautious rate of speed with due regard to the surrounding circumstances and traffic conditions then prevailing; that at this point defendant’s driver observed a car approaching him traveling east, which was the car of plaintiffs’, with bright lights shining, and that defendant’s driver dimmed the lights of the said truck; that when plaintiffs’ car reached a point approximately 75 feet distance from said truck that plaintiffs’ car, without warning, and inexplicably cut across the highway and ran on to the north shoulder of said highway; that defendant’s driver tried to stop and attempted to veer to the left in order to avert the impending collision but was unable to do so owing to the short distance between the truck and plaintiffs’ car, and further owing to the fact that plaintiffs’ car then cut back off of the north shoulder to its right, on to the highway again, and ran into the right side and front of defendant’s truck, causing the truck and trailer to “jackknife” to the left, causing the tractor and trailer of the truck to turn over.

Defendants answer in the alternative and only in the event the Court should find the defendant’s driver was guilty of negligence in the operation of the truck in any respect which contributed to the accident and collision, then defendants aver that the plaintiffs were contributorily negligent in certain acts of commission and omission, which contributory negligence defendants aver was the, or a, proximate and immediate cause of the said collision, barring any recovery by plaintiffs or either of them.

The case was duly tried and the Judge of the District Court rendered judgment, with written reasons, in favor of the plaintiff Reese C. Stewart and against the defendants, in solido, in the amount of $2,-908.00 with legal interest from date of judicial demand until paid, and also rendered judgment in fayor of the plaintiff Mrs. Ethel Stewart and against the defendants in the full amount and sum of $7,500.00 with legal interest from date of judicial demand until paid. The defendants were condemned to pay all costs of suit.

Defendants, through their counsel, filed an application for a new trial or a re-hearing. While we do not find any ruling on this application as shown by the minutes or the record, we presume that it was overruled, for final judgment was read and signed in open court at Lake Charles, Louisiana on the 15th day of January, 1948. The defendants were granted a sus-pensive and devolutive appeal to this Court.

Plaintiffs Reese C. Stewart and Mrs. Ethel Stewart have answered the appeal asking that the judgment be amended so as to increase the amount awarded Mrs. Ethel Stewart from $7,500.00 to $26,000.00 and that said judgment be further amended so as to increase the aggregate amount of $2,908.00 awarded to Reese C. Stewart to the aggregate sum of $4,408.00.

• The plaintiff Reese C. Stewart, his-wife and small daughter were in his automobile which he was driving, proceeding east on U. S. Highway 90 at about 11:00 or 11:30 P.M. on May 19th, 1945, and Ross Martin, who was employed as a driver by the Her-rin Transportation Company, defendant herein, was driving its truck west on U. S. Highway 90. Plaintiffs contend that Ross Martin was driving the defendant’s truck on the south side or wrong side of the highway, arid that in order to avoid if possible a collision with the defendant’s truck, Reese C. Stewart. pulled to the north, but that after he had pulled to the north, he contends that the driver of the defendant’s truck started back to his right side or north lane of traffic, and that he attempted to get back in the south lane of the highway but was unsuccessful and the collision took place.

Ross Martin, driver of the defendant’s truck, contends that he was driving west and in his own north lane of traffic on Highway 90 when he saw plaintiffs’ car approaching; that he dimmed his lights and plaintiff dimmed his, but that as the plaintiffs’ car got within 75 to 100 feet of his truck that plaintiffs’ car suddenly swerved out of its lane of traffic to the north into his lane of traffic and even knocked up dust on the north shoulder of the highway; that he applied the brakes but released them and attempted to pull to his left into the south lane of traffic in order to avert a collision but that plaintiff, after striking the north shoulder of the highway, tprned his automobile back in a southerly direction and struck his truck at the dual wheels. and gas tank with such force that although the trailer stayed connected to the tractor that the dual wheels came completely out from under it.

Although the record in this case is rather voluminous, there were only three eyewitnesses who testified in the case. These were the plaintiffs, Mr. and Mrs. Reese C. Stewart, and Ross Martin, the driver of the truck involved in the accident. The Reese Stewart version of the accident is given in his testimony as follows:

“Q. Will you please' state what happened about 11:30 P.M. you were traveling toward Lake Charles? A. Well, along about 11:30 P.M. while going east on U. S. Highway 90, approximately 400 feet from the place known as Vaughn’s Store, and approximately 400 feet from a gulley that crosses United States Highway 90, we noticed a vehicle traveling west on the south side of U. S. 90, which was the wrong side of the highway.
“Q. The wrong side for whom? A. For the vehicle. As we drove east, it appeared that the • vehicle was still bearing to the left, which was the wrong side for him to be on.
“Q. When you say to the left, do you mean to the south side of the road? A. The south side of the road, yes sir. As we drew closer together it looked as though we were going to have a head on collision. To my right, which was the south side of the highway, the shoulder is approximately nine feet and very rough; at the edge of the shoulder it is marsh, which is a jump-off.”
“Q. Now, that was when the two vehicles appeared to be about a hundred feet apart? A. Yes, sir.
“Q. What did you do? A. Knowing I couldn’t go to the right, I went to my left, which was the wrong side of the highway, but under the conditions of him being on my side and we drawing nearer to him and with him with extra bright lights and no dimmers, I went across. As I got across, it looked as though his lights turned back to the north. Well, as his lights turned to the north it struck me that he was coming back on his side. Of course, we didn’t have but a few seconds to figure. We didn’t have an hour. I cut my car back to the south, which to cut back on my side of the road, and he went by me and sideswiped me in the middle of the road, at least, practically on the black line.”

Mrs. Ethel Stewart’s version of the accident is given in her testimony:

“Q. You are Mrs. Ethel Stewart? A. Yes, sir.
“Q. The wife of Reese C. Stewart? A. Yes, sir.
“Q.. Were you with your husband about 11:30 o’clock P.M. on the night of May 19, 1945? A. Yes, sir.
“Q. What were you and your husband doing about that time ? A. Driving home.
“Q. From where? A. From Sulphur.
“Q. Will you state what happened on your way home when you reached the vicinity of Vaughn’s Service Station? A. Well, it was just bright lights coming ahead of us. A vehicle was on the same side with us and the. lights were so bright it just seemed like the car, or whatever it was — I didn’t know whether it was a truck or what. It was gaining on us and I told him to get out of the way, to do something about it. That is all I know. We hit so fast I just didn’t know any more.
“Q. You couldn’t tell anything about what happened after you told him to get out of the way? A. No, sir.
“Q. The collision came so fast that you don’t know anything else after that? A. No, sir, I don’t.
“Q. Were you knocked unconscious? A. Yes, sir, I guess I was. I don’t remember anything after that.
“Q. About how long before this collision occurred did you notice this vehicle approaching you on the wrong side of the road? A. I didn’t hear your question. '
“Q. Is your hearing affected ? A. Yes. (The reporter read the last question.) A. Well, it wasn’t very long. It seemed like it all popped up all of a sudden — those bright lights.
* * * * ¡ft *
“Q. When this collision happened who else was in the car with you and your husband? A. My little girl. She was asleep on my lap.
“Q. You say the lights of this on-coming vehicle were bright? A. Bright, yes, sir. They blinded us.
“Q. Were they dimmed at any time while you were looking at them? A. I never saw them dim. They were just bright.
“Q. Were you looking at the car all the time? A. Yes, sir.”

Ross Martin testified,that he had been in the employ of Herrin Transportation Company between six and eight months prior to the accident of May-19th, 1945, and that he had continued to work for them until August of 1945; that on the date of the trial he was a cab driver for Lone Star Company in Kilgore, Texas; that prior to the time he was employed by the defendant company as truck driver he had been employed as a truck driver for the Missouri Pacific for about 60 days. Martin testified that on May 18th, 1945, between the hours of 7 and 10 P.M., he left Houston, Texas on his way to Leesville, Louisiana, and that he arrived there between 5:00 A.M. and 8:00 A.M. on May 19th, 1945; that when he got to Leesville with the truck, he went to the warehouse of the' Herrin Transportation Company and gave the keys to a dock hand and then' proceeded across the street to a tourist cabin and went to bed. He slept until around 5:00 o’clock in the afternoon of May 19th, 1945. While Martin was sleeping, the truck had been taken to Camp Polk, unloaded and re-loaded with 14,000 pounds of hand grenades, which Martin was to deliver back in Houston, Texas. Martin left Leesville with the load of hand grenades between 7:00 and 9:00 P.M.

Martin testified that he made one stop after he left Leesville, which was at the Lake Charles Station of the Herrin Transportation Company where he punched the clock at six minutes until 11:00 P.M.; that he did not tarry for any length of time at the station but proceeded on his way to Houston, west on Highway 90; that he was driving around 35 miles per hour and he was sure that it could not be over that as the truck would not go over forty miles per hour unless it was in over-drive and that it had never been put in over-drive. As to the accident itself, he testified:

“Q. Please state what appeared ahead of you at the point of the accident which you said was about a mile past the chemical plant? Just from the beginning as to what you saw, and I will take you on from there. A. The traffic was thick. I was driving along. I was more or less afraid. That is, I was watching everything awfully close.
“Q. Had you driven this particular highway before? A. Yes, sir.
“Q. Were you familiar with that highway? A. Yes, sir.
“Q. Were you familiar with that highway? A. Yes, sir.
“Q. Had you driven it at night? A. Yes, sir.
,“Q. Go ahead. A. I knew the highway was thick, especially on Saturday, night.
“Q. Was it on Saturday night? A. Yes, sir, I met a car kind of coming off a grade up there.
“Q. About how far was it that you observed this car? A. I would say about three hundred feet. I cannot be positive.
“Q. Go ahead. A. I gave the signal for dimmers. He dimmed his lights and I dimmed mine.
“Q. You gave a signal for dimmers and he dimmed his lights and you dimmed yours? A. Yes, sir.
“Q. Are you positive of that? A. I am sure.
“Q. The car that dimmed its lights upon your signal for dimmers, whose car was that? A. Reese Stewart’s.
“Q. The fellow with whom you had the accident? A. Yes, sir.
“Q. Did you know his name at that time? A. No, sir.
“Q.’ You only know him since by hearsay? A. That’s right. '
“Q. The car that you signalled for dimmers and which responded to your signal was the car that you later had the collision with? A. Yes, sir.
“Q. You may proceed to state what happened? A. Well, he drove smooth; I did too.
“Q. At the time you signalled for dimmers, about what was your speed? A. About thirty-five.
“Q. On what side of the highway were you traveling at that time? A. On the north; on my right hand side.
“Q. On your right hand side ? A. Yes, sir.
“Q. Are you sure of that? A. I am positive.
“Q. On what side of the highway were you traveling up to the time that you first saw him ? A. On the right hand side.
“Q. What compass side is that? A. North.
“Q. All right, at the time you saw him and signaled for dimmers, on what side of the highway was Mr. Stewart, apparently? A. He was traveling on his side.
“Q. Proceed from there on. A. He came on and didn’t seem to be anything wrong. He got within, I would say, a hundred feet — I can’t be positive on that, but somewhere around a hundred feet and he gave a big swerve and cut across to the north side of the road which would be my right. He stirred up dust over there.
“Q. Where did he stir up dust? A. On the north side of the road.
“Q. On the pavement? A. Off the pavement. He hit the cylinder (shoulder) on my side.
“Q. When you say that he was approximately a hundred feet from you he swerved to his left, did that put him directly in front of you? A. That’s right.
“Q. Then whiat did you do? A. We were so close then I figured the only thing for me to do was to' grab his side of the road.
“Q. ■ Did you make any move in that direction until :he came across in front of you? A. None whatever.
“Q. All right, proceed to say what happened? A. Well, it looked like he was going to leave the road and turn completely off to my right. I gave the truck a swerve to the left.
“Q. What compass direction was that the truck was going in? A. South.
“Q. Did you turn completely south off the highway, or turn south continuing on the highway? A. I veered south so that I would miss him if he was leaving the road.
. “Q. Turning to your left? A. Yes, sir.
“Q. Go ahead. A. . Instead of leaving the road, after he stirred up that dust he cut back straight in and hit me right at the dual wheels and gas tank.
“Q. The right front part of your truck? A. Yes, sir.
“Q. At the time he hit you, in what direction were you going? A. I had veered off from the southeast.
“Q. Is that in the direction going west? A. Southwest.
“Q. At that time where was the car with reference to the middle black line? A. All of his car was on the north side of the black line except the left front wheel might have been on the black line. I can’t remember exactly. If it was over the black line it couldn’t have been very far.
“Q. Where was your truck with reference to the middle black line? A. All completely on the south side of the road; maybe two feet sticking up on the pavement.
“Q. No, no. I mean when you were struck by Mr. Stewart’s car, where was your truck and trailer with reference to the middle black line? Had any part of it gotten south of the black line? A. Only the front part.
“Q. Where was the rest of it? A. On the north side of the black line.
“Q. After you were hit, what happened? A. My truck flopped over on its left side and slid to a stop on the south side of the highway.
“Q. When you say ‘flopped over,’ will you describe that a little more fully? A. It laid over on its left side.
“Q. That is your truck cabin that you were in? A. Yes, sir.
“Q. What happened to the- trailer? A. The trailer stayed connected to the tractor, but the dual wheels came completely out from under it.
“Q. Is that where your truck had been struck? A. Yes, sir.
“Q. By the car coming into it? A, That’s right.
“Q. Where did the trailer end up? A. The trailer slid off into the ditch on the south side.
“Q. Did you see or contact any other vehicle at that time? A. Yes, sir, when my cab came to a stop on top of a 1941 Ford.
“Q. Whose car was that? Was it at the scene at that time? A. Yes, sir. I didn’t know the man then, but I found out later that it was Mr. Frank Robbins.
■ “Q. Your car hit that car? A. Yes, sir.
“Q. Was Mr. Robbins in his car at the time? A. Yes, sir.
“Q., Was anyone else in the car with him? A. His wife.”

It will be noted that neither Frank Robbins nor Mrs. Frank Robbins who, according to the record, were also eyewitnesses and actually involved in the accident, testified. Both the defendants and plaintiffs were aware of Robbins’ residence in the State of Texas or knew how they could get in touch with him, for • Robbins had filed a suit in- Calcasieu Parish and was locally represented.

The record discloses that Ross Martin, driver of the defendants’ truck, immediately after the accident went to the Stewart car and then came back to his truck, which took approximately four or. five minutes, and then talked to Frank Robbins and Mrs. Frank Robbins. Counsel for the plaintiff strenuously objected to the witness testifying as to what Robbins and his wife said at that time. Counsel for defendants contended that it was admissible as part of the “res gestae” and made the following tender:

“By Mr. Plauche:
"Counsel for defendant tenders this witness and the questions and answers which have been previously excluded for the purpose of showing', one, that the witnesses, Frank Robbins and wife, immediately upon the witness’ Martin’s return to the truck, cursed and complained of Mr. Stewart’s driving, stating that they saw exactly what happened; that they were immediately behind the Stewart car; that they had followed the Stewart car for several miles and had been afraid to pass it because he continued to cut out to the left. I want to tender this witness to show that at that time both Mr. and Mrs. Robbins made those assertions to this witness, Ross Martin, and that there had been no opportunity to reflect and contend that it is admissible as part of the res gestae. * * *
“By The Court:
“Let the record show that the objection be sustained if sustained on the ground that the testimony does not form a part of the res gestae.”

We are of the opinion that the statements made by Frank Robbins and his wife would form a part of the res gestae and should have been admitted for the reason that Robbins and his wife were actually involved in the accident, their car was buried underneath the cab of the defendant’s truck, and the1 statements followed within five minutes their extrication from the wreck. It must also be considered that Robbins is a plaintiff himself in'a suit arising out of this same accident. These statements are almost a part of the occurrence itself, as Robbins and his wife were bound to 'have been excited and to have spontaneously made the statements. Day v. Armour Fertilizer Works, 8 La.App. 720; Butler v. Washington-Youree Hotel Co., La.App., 160 So. 825; Auzene v. Gulf Public Service Co., La.App., 188 So. 512; Temple v. Martin Veneer. Co., La.App., 200 So. 676; Mancuso v. Hurwitz-Mintz Furniture Company, La.App., 183 So. 461; 10th R.C.L. page 976.

Counsel for defendants strenuously and, we believe, properly offered to prove the reason that he had not obtained the testimony of Robbins and his wife. Counsel for plaintiffs just as strenuously objected throughout ‘ the record to defendants’ offering, yet made no offering nor gave any reason as to why plaintiff had not secured or attempted to secure the testimony of Robbins and his wife. The record contains sufficient to exonerate the defendants for not attempting to take the testimony of Frank Robbins or his wife. Therefore, such failure on the part of defendant cannot be construed against them. However, we believe that the failure of the plaintiff to attempt to secure the testimony of Robbins and his wife, or to offer a valid reason for not so doing should be taken into consideration, and the Court would be justified in presuming that the testimony of Robbins and his wife would have been unfavorable to plaintiff. Regardless of the ruling of the trial court as to the admissibility of the statements made by Frank Robbins and his wife at the scene and practically concurrent with the accident itself or within five minutes after the accident, there is sufficient testimony in the record upon which to base a judgment.

There is a hopeless conflict in the. testimony of the eyewitnesses as to the manner in which the accident occurred, and it is, therefore, necessary to examine closely the physical facts and testimony of other witnesses in the case which might corroborate the plaintiffs’ or- defendant’s version as to who was at fault in this accident.

The Judge of the District Court correctly stated the physical facts in his written opinion as follows:

“The highway at the scene of the accident is paved to a width of eighteen feet, and the shoulders are from twelve to fourteen feet in width on each side of the concrete slab. The highway is straight at that point and is level except for a slight dip or depression at or near the place where the accident occurred. The weather was clear and visibility was good.
“The point of impact was approximately on the black line which runs along the center of the concrete slab. The right front fender and wheel of the Stewart car struck the right side of the Herrin truck at about the point where the gas tank and dual wheels of the truck are located. At the time of the collision, therefore, it is apparent that each vehicle was on its left or wrong side of the highway. After the impact plaintiffs’ car remained in an upright position on the concrete portion of the highway, facing in a southeasterly direction, and the Herrin truck came to rest on the south shoulder of the highway at a point several feet west of the point of impact facing in a northwesterly direction with the trailer turned over on its left side, the rear end of the trailer being in1 the south ditch and the front end of the truck resting on the south edge of the concrete portion of the highway. The front or' cab portion of the truck at first came to rest partly on its left side and resting on another automobile.” (This being the automobile of Mr. and Mrs. Frank Robbins.) “Shortly after it came to rest in that position the other vehicle was moved and the cab then turned over on its left side.”

We also have in the record the testimony of two State Troopers, W. A. Carpenter and Henry C. East, which must be considered. The District Court based its judgment greatly upon its interpretation of the physical facts and apparently gave greater weight to its interpretation of the physical facts than to the corroborating testimony of the two State Troopers. The record reveals that W. A. Carpenter was a trooper with the Department of State Police at Lake Charles, Louisiana, on the date of the accident; that he was in the car with Trooper Henry C. East when they received a radio call informing them of a serious accident on U. S. Highway 90; that they proceeded to the scene and found the Her-rin truck and trailer and the car which belonged to Reese Stewart had been involved in this accident. He further testified as follows:

“Q. After you directed traffic for awhile, what did you and Trooper East,do? A. We went to St. Patrick’s Hospital after we got the scene cleared up to where we could get the traffic through. We then proceeded to St. Patrick’s Hospital.
“Q. Were you present — was Mr. Reese Stewart there at the hospital? A. Yes, sir.
“Q. Was he interviewed by anyone? A. Yes, sir.
“Q. By whom? A. Trooper East.
, “Q. Were you there when that interview took place?' A. Yes, sir.
“Q. Do you distinctly recall some of that conversation and some of the statements made' by Mr. Reese Stewart to Trooper East? A. Yes, sir.
“Q. Did Mr. Stewart assign any cause as to how the accident had happened in that interview in your presence? A. Yes, sir.
“Q. What did he say caused it? A. Mr. Stewart said that he was traveling east on Highway 90 and he said this truck was approaching.
“Q. Did he say that it was in his wrong traffic lane ?
“By Mr. Reed: Your Honor, that is leading the witness and making suggestions as to what he should testify. He will not even let the witness answer the question.
“By Mr. Plauche; The last question was' leading, I know. The rest was asking what he said.
“By The Court: Proceed with the examination.
“By Mr. Plauche:
“Q. What did he assign as the cause of the accident in his words? A. He said there was some bright lights from the rear of the car; the car in the rear of the truck had bright lights that caused him to be blinded and he lost control of,his car.
“Q. Stewart said that? A. Yes, sir.
“Q. Do you remember that Mr. Carpenter? A. Yes, sir.
“Q. What did he say with reference to the lights of the Herrin truck, if he said anything ? A. He said they were dimmed.
“Q. Did he say anything about his own lights? A. Yes, sir, he said his lights were dimmed.
“Cross Examination
“By Mr. Reed:
“Q. You were present also when the truck driver, Ross Martin, was interviewed? A. Yes, sir.
“Q. Are you sure he wasn’t the one who made this statement about a car coming behind Stewart’s car with bright lights that blinded him? A. No, sir.
“Q. Are you positive of that? A. Yes, sir, I am positive of it.
“Q. Isn’t it possible that Mr. Stewart’s statement was that he was blinded by the truck lights? A. No, sir.
“Q. How long after the accident was it that you talked to Mr. Stewart, you and Mr. East; I imagine he did the interviewing? A. Well it was right at about two hours before we got to the hospital — before we got the traffic cleared up and could leave the scene of the accident. We were scared, to leave the truck because it was loaded with hand grenades and we were afraid of a fire catching and causing some road hazard.
“Q. You wouldn’t say positively that that was Mr. Stewart’s statement, that the bright lights of the car behind the truck blinded him? A. Yes, sir, that was the statement that he gave us at.the hospital. We have it on our report.
“Redirect Examination
“By Mr. Plauche:
“Q. You stated in answer to counsel that you were present when the driver of the truck was interviewed? A. Yes, sir.
“Q. What cause did he assign for the accident? A. He said the Stewart car came over on his traffic lane and he said when he seen the car come across — well, he swerved to the south side of the highway to avoid a head on collision.”
“Trooper Henry C. East testified in part as follows:
“Q. Did you interview the people there? A. Yes, sir.
“Q. Did you interview or see the truck driver of the Herrin truck? A. I talked with him and got a statement from him.
“Q. What was his condition mentally and physically at that time? A. Normal as far as I could see.
“Q. Did he appear to be intoxicated? A. Not that I could see.
“Q. After you had conducted your investigation and interview, and Trooper Carpenter had cleared the traffic did you then leave the scene? A. Yes, sir, we went to the hospital.
“Q. Was Mr. Stewart at the scene of the accident? A. No, sir.
“Q. Was he at the hospital when you arrived there? A. Yes, sir.
“Q. Did you interview him? A. Yes, sir.
“Q. You did? A. Yes, sir.
“Q. Was Trooper Carpenter present when that interview occurred? A. He was.
“Q. Do you recall some of the things that Mr. Stewart said at that time? A. Well, we talked to him with reference to the accident and asked what caused it.
“Q. What did he say caused it in his own words? A. He said there were bright lights to the rear of the truck that blinded him; that caused him to lose control of his vehicle.
“Q. He said that? A. Yes, sir.
“Q. Did he use the words, “lost control” of his vehicle? A. Yes, sir.
“Q. Did he say anything with reference to the lights of the Herrin Truck? A. Yes, he said they were dimmed and his lights were also dimmed.
“Q. He specifically said the Herrin truck lights: had been dimmed? A. The lights of both vehicles were dimmed.
“Q. Did he state whether or not the Herrin truck was on the wrong side of the road? A. No, sir.”

The, testimony of these two troopers corroborates the testimony of Ross Martin, driver of the truck. There was a written report made by the troopers of this accident and the result of their investigation, which included the statements made by the plaintiff, Reese Stewart, and Ross Martin. Certainly, Reese Stewart would have told the troopers that the Herrin truck was on the wrong side of the road if it had been. Stewart’s statement that he lost control of his vehicle corroborates the statement of Martin that Stewart suddenly swerved to his left when at a distance of about 100 feet. Also, in his statement to the troopers shortly after the accident at St. Patrick’s Hospital in Lake Charles, Reese Stewart told them that the lights on the defendant’s truck were dimmed as well as his own. Ross Martin also stated to the troopers immediately after the accident that this was true and, on the trial of the case, testified that his. lights were dimmed as well as Stewart’s. However, on the trial of the case, Stewart testified that the lights on the defendant’s truck were bright and not dimmed. While there is no testimony that there was a car behind the Herrin truck, regardless of the cause, the most material part of Stewart’s statement is that he “lost control” of his car. We find nothing in the record and can think of no reason why these two troopers, charged with the duty of investigating accidents such as the one in the case at bar, would have wanted to make a report and testify to facts which were not in line with what their investigation revealed. They had no interest, as far as we can see, in quoting a statement made by Mr. Stewart which was not true. As was stated by this Court through Judge Ott in Falgout v. Younger, La.App., 192 So. 706, 709, “The statements made by the witnesses shortly after the accident to these policemen are relative and significant.”

The Judge of the District Court seemed to base his judgment almost entirely upon his deductions from1 the physical facts plus the testimony of Mrs. Reese Stewart. Mrs. Stewart repeatedly referred to the “bright lights” of the motor vehicle apparently approaching them just immediately prior to the accident. This would seem to corroborate the testimony of the State Troopers as given them by Reese Stewart, for it will be noted that Reese Stewart told the Troopers that the cause of the accident was that, “There were bright lights in the rear of the truck that blinded him; that caused him to loose control of his vehicle.” Her testimony is not sufficient to overcome our conviction that the plaintiffs failed to produce sufficient evidence to entitle them to a judgment in this case. The physical facts which he relied on, however, have not so much to do with the relative position-of each vehicle after it had come to a stop following the impact but with a far more intricate proposition in the law of physics, that is, as to exactly what caused them to come to rest in the positions they did following the wreck. No positive deductions could be made upon, which a judgment could be based from the position of the two vehicles after the wreck. The position of either vehicle following the wreck does not offer any positive proof as to what caused the truck, on the one hand, to turn over as it did, or the plaintiffs’ car to come to a stop facing in a southeasterly direction. One could only speculate.

However, we do not think this is a case which depends entirely upon the physical facts, for we are of the opinion that plaintiffs have failed to produce sufficient testimony to support a judgment in their favor. Granting them to be both honest and sincere in their statements, there is no reason why the same amount of credence should not be given to the testimony of the truck driver. As' between them, the testimony relating to the position of the two vehicles on the highway when they were about 100 feet apart may be said to be equally divided. Beyond that, however, the plaintiffs have produced nothing unless it be the physical facts so strongly relied upon by the Trial Judge and which offer no positive proof upon which plaintiff could recover. Defendants,. on the other hand, have offered the testimony of the two State Troopers which we are unable to ignore.

We are of the opinion that plaintiffs have failed to prove that the driver of defendants’ truck was guilty of any negligence which was the, or a, proximate cause of this accident, and are, therefore, of the opinion that the judgment of the District Court should be Reversed and it is accordingly ordered that plaintiffs’ suit be dismissed at their cost.

DORE, Judge

■ I am of the opinion that the trial court did not manifestly err in the evaluation of the facts. He practically based his judgment on the testimony of Mrs. Stewart. He was in a better position to judge the credibility of the witnesses than we are. I see no reason to disregard his evaluation of the testimony of Mrs. Stewart over the testimony of the other witnesses.


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    DOMINGUEZ v. AMERICAN CASUALTY CO. et al.
    No. 3037.
    Court of Appeal of Louisiana. First Circuit
    Oct. 5, 1948.
    Rehearing Denied Nov. 10, 1948.
    See 37 So.2d 412.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, and Carroll Buck, of Amite, for appellant.
    Ponder & Ponder, of .Amite, for appel-lees.
   DORE, Judge.

This is a suit for damages for personal injuries and property' losses sustained by plaintiff in a collision between his automobile, being driven by him, and a truck owned by defendant George Thomas and being driven by defendant Saul Williams, which collision occurred between ten and eleven P.M., in the Town of Ponchatoula, on January 12, 1946. The plaintiff was travelling west on the Ponchatoula-Madisonville paved highway and after passing an automobile ran into the truck. He alleges that the sole cause of the accident was the gross negligence of Saul Williams, the truck driver, in the operation of the truck, contending that the truck had no lights and was backed into the paved highway from the south side thereof without any warning whatsoever and with utter disregard of traffic thereon, and, in effect, that while plaintiff was driving with all due caution and at a reasonable rate of speed (25 miles per hour) he could not possibly prevent running into the truck, as it blocked the highway completely and was not seen until plaintiff was within about 15 feet of it, having been temporarily blinded by -the lights of a car travelling east immediately before being confronted by the -truck. The defendants are Saul Williams, the driver of the truck, and George Thomas, his employer, under the doctrine of respon-deat superior, and American Casualty Company, as insurer of George Thomas. The damages claimed are in the total amount of $38,600,00, $3,000.00 for loss of farm income caused by the disability sustained by plaintiff and the remainder for personal injuries, pain and suffering and hospital and medical expense.

The defendant filed an exception of vagueness which was overruled and thereafter filed their answer in which they denied any negligence on the part of Saul Williams and contended that the accident was caused solely by the gross negligence and carelessness of the plaintiff and of his guest passenger, Herbert Lee Lavigne; that at the time and prior to the accident Saul Williams was using, and operating the truck without the knowledge, permission or consent of George Thomas, and on a mission entirely personal to him; that Williams was driving the truck in a1 careful manner on his proper side of the highway going west ahead of plaintiff Dominguez and that Dominguez and his companion were driving at a rapid rate of speed and without keeping a proper lookout and consequently ran into the rear of the truck. The defendants Thomas and his insurer further contend that in any event, since Williams was driving the truck outside the scope of his employment and without the knowledge and consent of Thomas, that they are free of any liability.

On trial on the merits the District Court rendered judgment in favor of plaintiff and against the employer and insurer, in solido, for the sum of $5,861.00, plus legal interest and costs. The defendant employer and insurer have appealed. The defendant Saul Williams was not served or cited and is therefore not a party to this appeal. The plaintiff has answered the appeal, praying that the award be increased to the amount of $15,000.00. Before us the exception of vagueness is again urged. It is levelled at Articles 5, 20 and 21 of plaintiff’s petition.

The complaint of defendant relative to Article 5 is that it fails to disclose how plaintiff was proceeding on the paved highway; whether in a vehicle and if so, what type of vehicle.

In Article 20 plaintiff avers “that he has been unable to work since the accident, that he was engaged in farming resulting in the loss of his farm crops, and for which he would have reasonably recovered * * * the sum of $3,000.00.” In Article 21, plaintiff avers that he has had “hospitalization, medical, dental and incidental expenses amounting to $600.00.” As to Article 20, the defendants contend that they are entitled to be informed what acreage was planted and what crops were planted on such acreage. As to Article 21, the defendants contend that they are entitled to know the names and addresses of the physicians and dentists, or other persons who gave him attention and the respective amounts paid therefor.

Although we find merit in defendant’s exception and probably it should have been sustained, ordering plaintiff to amend his petition, yet due to the conclusions we have reached on the merits, we will refrain from passing on. the exception.

As to the merits of the case we have no way of knowing howthe trial judge reached his conclusions, for he has failed to favor us with written reasons in support of his judgment. However, there are-three’main questions involved on the merits,, to-wit: (1) Has the plaintiff proved that the accident was caused solely by the negligence of Saul Williams, the defendant truck driver? (2) If so, has it been shown that the negligence of the truck driver can be charged to the employer and his insurer, under the doctrine pf respondeat superior ? (3) Does the omnibus clause of the insurance policy cover the truck driver under the facts adduced in this case ? i

We will first discuss and pass upon questions 2 and 3 supra for the reason that if we find there is no liability on behalf of the defendants Thomas and his insurer, there will be no need to discuss • and pass upon the negligence of Williams and the contributory negligence of the plaintiff.

' With reference to the question as to whether or not George Thomas and his insurer can be held liable for the negligent acts of Saul Williams, we have the following situation: It is shown that George Thomas was operating a saw mill and that in connection therewith he turned over the truck in question to Saul Williams for the express purpose of taking other employees of the saw mill back and forth from work to their respective homes and for the additional purpose of delivering stove wood from the saw mill to various customers; It is further shown that customers for stove wood ordered same either directly from the saw mill or through the driver. It was testified by Mr. Thomas, the employer, and by Saul Williams that it was clearly understood that while the truck would be kept by Williams at his house it was to be used only for the purposes stated above and not for his personal use; this testimony is unrebut-ted. It is shown that on the night of the accident, which occurred between ten and eleven o’clock at night, Saul Williams received a message that a fellow employee had driven his car into a ditch some three miles west of the scene and that he went over there to assist him. Both Williams and the employee fully realized that the mission had nothing to do with their employer. The plaintiff called several witnesses who had purchased stove wood delivered by Saul Williams and tried to show that he was in the habit of delivering stove wood at all hours, including that night, but none of- these witnesses testified that they ’had ever received a delivery at night. There is no showing at all that on the particular night of the accident that Saul Williams was in the act of doing anything even remotely connected with his employment, and further it is shown that he did not have the permission or consent, either expressed or implied, of his employer to use the truck as he did on the night of the accident. - . .

The instant case is similar to the case of Waddell v. Langlois et al., 158 So. 665, 667, decided by us. In that case, an employee, Wilmer Langlois, of the Istrouma Water Company, a defendant in the case, was furnished with a truck to use in his duties during the day and to be kept in a garage on the premises of his father, Joseph Aubin Langlois with whom he resided, in the event of emergency work at night. In that case, like in this case, the employee had been expressly, forbidden to drive the truck except in the use and service of the water company. On the, day of the accident, after his day’s work was over, the employee drove the truck home, but did not put.it in the garage; changed his clothes and went to a picnic on the Amite River, about nine miles from his home. Later in the evening, on his return from the party ,and while driving his date to her employment, he was involved in an accident. We stated that “the truck, in going to the picnic and in returning therefrom to the General Hospital (where the employee’s date was employed) in Baton Rouge, was hot being driven in the exercise of the functions in which the driver was employed. The truck had been driven home at the termination of the day’s work.When Wilmer (the employee) got into it again, after going home, for the purpose of driving to the picnic, it was. not a continuation of the drive home, but the commencement of a new journey, a new drive, which, from its commencement at the home, until its termination at the place of collision, was not in the exercise of the functions in which he was employed, but in pursuit of his own private business and pleasure. In so far as concerns the water company, it was wrongful, illegal, and unauthorized from start to finish.” We absolved the water company from liability.

In that case, like in the case at bar, it was contended that the insurer of the truck was liable under an omnibus clause contained in the liability insurance policy covering the truck. The only real difference between the two clauses is that the word “actual” appears before the word “use”, but it has been held that the word “actual” in this place neither adds nor detracts from the insurer’s liability under the omnibus clause. In the Waddell case, supra, under the facts heretofore stated, we stated: “Having found that driving the truck by Wilmer Langlois from his home to the picnic, and on the return trip, in taking Davis and Miss Waddell to her destination in Baton Rouge, was not driving it with the permission and consent, express or implied, of the named assured.” We held that the demand of plaintiffs against the insurer had been properly rejected.

The plaintiffs rely upon Parks v. Hall et al., 189 La. 849, 181 So. 191, and Haeuser v. Ætna Casualty and Surety Company et al., La.App., 187 So. 684, the latter, case having been decided by the Orleans Court of Appeal.

The facts in the Parks v. Hall case, [189 La. 843, 181 So. 192] supra, are in one material respect different from those of the present case. In that case, as stated by the Supreme Court, “the facts pertinent to the issue involved are that Harvey Hall had been in the regular employ of M. L. Gans as chauffeur for a period of about six years. prior to the accident. His duties were to drive the car while his employer, who was a salesman, called on his customers, and on their return to Monroe on weekends, he also washed and greased the car, which was usually done at Massey’s Service Station No. 1. But when the rack at that station was not available, he was allowed to use Massey’s Station No. 2. After he finished the washing and greasing job, it was his duty to return the car either to his employer’s home or wherever designated by him. While the record affirmatively shows that Hall did not have authority to use the car for his own purpose, nevertheless his employer never questioned Flail about the use of the car nor complained about the time the car was brought back after having been washed and greased. The record also shows that when the wash rack at the service station was occupied, Hall would sometimes wait until it was available and at' other times he drove away from the place, drove around, and returned later — sometimes to his home, and at least on one occasion he did not return the car to the residence of his employer until late in the afternoon. On the day of the accident, Hall drove his employer to the Virginia Hotel about 9:30 a. m., and was instructed, after washing and greasing the car, to inquire about some packages at the express office, and then to return to his employer’s residence where Gans would meet him. Hall drove to the Massey Station No. 1, on De Siard street and found that the wash rack was being used. Without narrating in detail the movements of the defendant Hall from then until the time of the accident, about 3 o’clock that afternoon, suffice it to say that at the time of the accident he was returning from a trip several miles out of town where he had gone to collect • some money due a friend of his. According to his testimony in the record, he intended to wash the car as soon as he brought the women, who had accompanied him and his friend on the trip, to their home which was within walking distance of the service station.”

In the Haeuser case, supra, the employer of one Kerner was instructed to return the automobile to the owner’s garage. He did not do so immediately, but departed from the scope of the permission given by his employer by conveying some friends to their home} and while thus engaged, the accident happened. The facts are very similar to those of the Parks v. Hall case in that in both cases there was merely a departure from the original permission to drive the automobile, and under the decision in the Parks case the insurer in the Haeuser case was properly held liable.

There is a fundamental difference between the facts of the two cases, in each of which the insurer was held liable under the omnibus clause, and the facts of the present case, and it is this: In both of the cited cases, at the time of the occurrence of the accident, the employee had actually taken the automobile for some purposes contemplated by the employer or owner and had only stepped aside or deviated from the accomplishment of such purpose, whereas in the present case the truck had been stored in its usual storage place, after working hours, and some six or seven hours thereafter was taken therefrom, without the knowledge or consent and against the specific instructions of the employer, by the employee for the employee’s personal mission. This difference in facts is pivotal.

We are firm in our opinion that the case of Waddell v. Langlois, supra, controls the decision of this case; and as expressed by us in that case, the taking of the truck from its usual parking place by Saul Williams, long after working hours, without the knowledge or consent and against his. employer’s specific instructions for his pet\ sonal use was wrongful, illegal and unarf-thorized from start to finish and therefore the driving of the truck by Saul Williams on'the night of the accident was not with the permission and consent, express or implied, of the named assured and it follows that plaintiff’s demand against the insurer of the truck has to be rejected.

Our conclusions reached in the present case may seem to a casual reader to be in conflict with the decision of the Supreme Court in the case of Stanley v. Cryer Drilling Co. et al., 213 La. 980, 36 So.2d 9, 12. However, the case is clearly distinguishable from the present case in that in that case the Supreme Court found that the record showed that Robinson, the employee of defendant, was never instructed by Cryer, his employer, or Hayes, who was in charge of the field operations, that the use of the truck was restricted to business purposes, although about a week after Robinson’s employment Cryer did tell Robinson he could not haul anything in the truck for anyone else, because this use of the truck was not authorized under the truck license and was not covered by the insurance. The Supreme Court stated: “ * * * it is significant that the only instructions given Robinson by Cryer with respect to the use of the truck was that he should not haul anything in the truck for anyone else because such use of the truck was not only unauthorized under his truck license but was not covered by his insurance, necessarily implying that such use as was covered by the insurance was authorized”, thus holding that Robinson had the implied permission of Cryer to use the truck for his, Robinson’s personal pleasure. (Italics ours). In our case, Saul Williams’ specific instructions were not to use the truck for any other purpose but that of his employer.

For these reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from is hereby annulled, reversed and set aside, and it is now accordingly ordered that there be judgment in favor of the defendants George Thomas and the American Casualty Company and against the plaintiff dismissing plaintiff’s suit, all at plaintiff’s costs in-both courts.


author: PER CURIAM.

text:
    CLOSTIO’S HEIRS v. SINCLAIR REFINING CO. et al.
    No. 3008.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 5, 1948.
    For former opinion, see 36 So.2d 283.
    - J. Minos Simon, of Lafayette, for appellant.
    Helm & Simon, of New Iberia, for ap-pellee.
   PER CURIAM.

The opinion and judgment in this case was rendered on June 30, 1948. Notice of the judgment was sent 'to counsel for plaintiffs immediately by Registered Mail, which is the usual method of giving notice of decisions rendered by this Court. The Registered Notice of the judgment was received, by Counsel for plaintiff on July 2, 1948, as shown by the Return Registered Receipt from the Post Office Department bearing his personal signature, showing delivery by the Post Office to him of the notice on July 2, 1948. The application, for rehearing was not filed in this matter until July 29, 1948. Attached to the application for rehearing is an affidavit by the attorney for the plaintiff and the secretary of the plaintiff’s attorney showing that after receipt of the notice of the rendition of judgment in this matter, counsel dictated his application for rehearing on July 14th, and because of a misinterpretation of his instructions by his secretary, the original application was kept in the office and was not sent out until July 27, 1948.

A motion has been filed by the attorneys for the defendants in this matter asking that the application for rehearing be dismissed and objecting thereto on the ground that it was filed too late and, therefore, cannot be considered by this Court.

There is no question in this case that due and prompt notice of the judgment rendered by this Court was received by counsel for plaintiff, and there is likewise no question presented as to the unfortunate misunderstanding which brought about the delay in the filing of the application for rehearing. However, in the case of Clark v. Delta Tank Manufacturing Company, La. App., 22 So.2d 135, the appellant did not file an application for a rehearing within the time fixed by the Constitution (Section 24, Article 7, Constitution of 1921), and a motion for an extension of time was filed asking for additional time within which to present the application. There had apparently been a change of attorneys which was assigned as an additional reason why the extension should be granted. This Court in that case stated:

“It is impossible however for us to consider the motion for extension of time in which to file an application for rehearing as under the provisions of the State Constitution already referred to, judgments rendered by this court become- final and ex-ccutory on the fifteenth calendar day after rendition. If the application is not filed in time the court is powerless to grant additional delay in which to file it. Gautreaux v. Harang, 190 La. 1060, 183 So. 349.”

In the present case, due notice was received by plaintiff’s counsel, and the application was not filed until long after the delays had elapsed, and under the jurisprudence, this Court has no discretion in the matter and is unable to consider the application for rehearing.

The application for rehearing, therefore, cannot be considered.


author: ELLIS, Judge.

text:
    STURM v. HUTCHINSON et al.
    No. 3033.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.
    Rehearing Denied Nov. 10,1948.

      Saal & Blackwell, of Covington, for appellant.
    Ellis, Ellis & Lancaster, of Covington, for appellees.
   ELLIS, Judge.

Plaintiff has filed this suit in which he is seeking the recovery of damages in the sum of $250 as a result of an injury to his cow which occurred on February 23, 1947, at or about 1:30 p. m., on the Madisonville-Pon-chatoula paved highway. Plaintiff alleges that on this date, the three minor sons of the defendants, namely: Earl Hutchinson, John Frere and Marshall Badeaux “were engaged in the unlawful and reprehensible practice of driving a milch cow, the property of your petitioner, from outside the corporation limits of the Town of Madison-ville, Louisiana,” that the said minors had driven the cow across the corporation line and into the town of Madisonville by shouting and poking the cow with sticks, and that “while in the act of so molesting-the said cow while the said cow was in the said ditch and/or on the south shoulder of the said road, they continued with gross negligence and want of care and without any respect whatsoever of the property rights of your petitioner to frighten said cow in such a manner as to" cause her to suddenly jump from the shoulder of the said road suddenly onto the concrete roadway into the path of the oncoming automobile of Mrs. Evelyn Mayo, residing at 1846 North Orleans Street, Chicago, Illinois;” that the automobile struck the cow in the hind quarters and dislocated the hip of the cow, which rendered the cow useless to plaintiff. Plaintiff alleged upon information and belief that there was upon the statute books of the Town of Madisonville a law providing for the impounding of cattle at large within the corporation limits of the said Town, and that the minor children were driving the cow toward the pound for the purpose of obtaining the impounding fee.

Plaintiff further alleged that the three defendants are residents of and domiciled in the City of Madisonville, Parish of St. Tammany.

The defendants filed an exception of .vagueness leveled at the failure of plaintiff to annex to his petition a certified copy of the impounding law of the Town of Madi-sonville to which plaintiff had referred in Article 5 of his petition; also that no specific acts of negligence by the respective minor children of the defendants were alleged in plaintiff’s petition, and that the nature of damages sustained by plaintiff was not shown and no itemization of damages is given. Defendants also filed an exception of no cause or right of action. The minutes of the District Court of June 20th, 1947 show that all of the above exceptions were overruled.

Defendants filed answer and deny that their minor sons are guilty of any negligence and allege that they found the cow within the corporate limits of the Town of Madisonville and were, at the time of the accident, driving the cow by the most direct route to the pound. Defendants charge Mrs Evelyn Mayo, the driver of the automobile which struck the cow, with operating same in “a heedless and reckless manner and at an unlawful rate of speed, without having her automobile under proper control, and without keeping a proper lookout, so that she was guilty of gross negligence, which was a proximate cause of the accident.”

The case was duly tried and the judge of the Lower Court dismissed the plaintiff’s suit.

Plaintiff has appealed from this adverse judgment and the defendants have answered the appeal in which they reurge the exception of no cause and no right of action and, in the alternative, ask that the judgment of the District Court be affirmed.

Defendants have also filed a motion to dismiss the appeal on the ground “that this controversy only involves the sum of $98 and hence is below the jurisdictional amount necessary for an appeal to this court.” Plaintiff made the following statement as to his damages in brief to the District Court.

“Robert H. Sturm, Jr., the plaintiff herein (Tr. p. 19, Line 4) was the owner of a cow. (Tr. p. 19) The cow was worth One Hundred fifty and no/100 ($150.00) Dollars, (tr. p. 19, line 26), and, in addition, the plaintiff fed the cow after the collision one sack of feed per week from February until September (Tr. p. 19, line 33), a period of thirty (30) weeks or a total cost of an additional One Hundred twenty and no/100 ($120.00).”

“The plaintiff sold the cow to a butcher for the sum of Fifty-two and no/100 ($52.00) Dollars (Tr. p. 20, Line 11), leaving a net loss to the plaintiff, of the sum of Two Hundred and eighteen and no/100 ($218.00)”

Defendants take the position in this motion that as the item of expense for feeding the cow is one that cannot possibly be allowed by this Court, then the Court can only consider the value of the cow of $150 and deduct the $52 which plaintiff received for the sale of the cow, which, under defendants’ reasoning, would leave only $98 in controversy.

It is well settled that the Courts will decline jurisdiction where a claim for damages is manifestly fictitious and made merely to create jurisdiction, and, further, that allegations in the petition as to amount will not control where the nature of the case and the failure to adduce evidence to fix the quantum indicates that he could not reasonably have expected to recover more than nominal damages. See Wagner v. New Orleans Railway and Light Company, 151 La. 400, 91 So. 817; J. Earl Rogers v. National Calendar & Advertising Novelty Co., 129 La. 504, 56 So. 421; Wolf v. Stewart, 48 La.Ann. 1431, 20 So. 908; Tieman v. Johnston, 114 La. 112, 38 So. 75; Lea v. Orleans, 46 La.Ann. 1444, 16 So. 456; Trenchard v. Central Laundry Company et al., 154 La. 1003, 98 So. 558; Buck v. Latimer, 151 La. 883, 92 So. 372; Buttner v. Palmisano, 152 La. 587, 93 So. 880; Ducharme et ux. v. Smith, 9 La.App. 264, 119 So. 268; Addison v. Kirby Lumber Company, La.App., 3 So.2d 199. We do not think this is such a case, and the motion to dismiss the appeal is therefore overruled.

While defendants have reurged their exception of no cause or right of action, neither in oral argument nor brief did they seriously argue same. Suffice it to say that from a reading of the petition and the prayer, it does set forth a cause of action, and the exception of no cause or right of action will therefore be overruled.

While plaintiff contends that by inference it has been proven that the minor sons of the defendants began driving the cow from outside the corporation limits of the Town of Madisonville, there is no positive evidence to prove this fact; on the contrary, all of the witnesses that testified on this point stated that when they observed the boys driving the cow it was about one-fourth of a mile inside of the corporate limits of the Town of Madisonville.

The ordinance of the Town of Madison-ville, which has been filed in evidence, provides, in Section 2 thereof: “Be It Further Enacted etc: That any cattle, horses or mules found running at large within. the above limits after said 'date, and not being in immediate charge of someone having control over them, shall be taken up and impounded by the Town marshall or by some one authorized by the Mayor for that purpose, in the pound or place provided for such purpose, or may be impounded by any citizen, who, in such case, may claim the impounding fee.” (Emphasis ours.)

Counsel for plaintiff contends that these boys were not citizens within the contemplation of this ordinance and that, therefore, they were engaged in an illegal act at the time of the said accident. Counsel for plaintiff also takes the position that the burden of proof is upon the defendants to show that they were citizens. The burden of proof is. upon the plaintiff to show that these boys were engaged in an unlawful act, and, if their act was unlawful due to the fact that they were not citizens, then the burden was upon the plaintiff to prove this fact. This contention of the plaintiff is fully answered in the case of State v. Willie et al., 130 La. 454, 58 So. 147, wherein the Supreme Court said:

“As the Constitution vested in the Legislature the power to prescribe the qualification of jurors, and that body has enacted a law which requires only one year’s residence in the parish as one of the qualifications of a juror, the only question that remains is whether the additional qualification of citizenship necessitates a residence of two years in this state. We have been cited to no law that requires a residence of two years in this state before a person can afcquire the status of a citizen. When a male person has acquired the status of a citizen, he must reside in this state for two years before he can acquire the status of an elector, with the right to vote and hold office. Const, art. 197. Citizenship may be acquired by residence, with the intention of remaining.
“ ‘In the absence of proof to the contrary, every man is considered a citizen of the country 'in which he may reside.’ 7 Cyc. 147.
“It follows that the juror in question became a citizen of this state when he became a resident thereof; and, as he had resided more than one year in the parish, he was a competent juror.”

As plaintiff has alleged that the defendants are residents'of and domiciled in the City of Madisonville and that their minor sons resided with them, under the decision of the Supreme Court in the above case, they were citizens and therefore had a legal right to impound this cow. Counsel for plaintiff, however, argues the case of State v. Willie, supra, presupposes “one year’s residence”, and that there is no evidence in the record that any of these defendants had resided in the Town of Madisonville for a period of one year. This case holds that one year’s residence was necessary before a person could be a competent juror but that a person becomes a citizen of this state when he becomes a resident of this state. It also holds that there is a presumption in the absence of proof to the contrary that every man is considered a citizen of the country in which he may reside. Therefore, these boys were engaged in a legal act in driving this cow within the corporate limits of the Town of Madisonville. for the purpose of having her impounded and collecting a fee.

The next question .to be decided is whether these boys were guilty of any negligence which was a proximate cause of the accident.

Charles R. Mire was called as a witness by the plaintiff and testified that he was up in a pecan tree cleaning the moss off, about three hundred yards from the highway, when he heard and saw the three boys driving the cow; that he started down the tree to stop them from driving her, but before he could get there, the cow had already been hit by the automobile; that he thought he heard brakes scream on the automobile but that he did not notice any skid marks on the pavement.

Plaintiff also called the witness Karl J. Peters, who testified that on the date of the accident at about 1:30 p. m., he was coming down the Ponchatoula Road going to Madi-sonville, and that when about one-fourth of a mile inside the corporate limits, he saw the three boys driving this cow, and that he turned to go to the plaintiff’s house in order to notify the plaintiff; that the boys had sticks in their hands trying to drive the cow and were also pushing and beating on the cow. It appears that the plaintiff lives off of the highway and that this witness had notified the plaintiff and had come back as far as the highway at the time the car struck the cow. This witness testified that Mrs. Mayo was driving the' automobile about forty or fifty miles per hour at the time it passed him, which was “several blocks” from where the cow was. He further testified that these boys, at the time of the accident, were trying to keep the cow from going across the highway, but the cow kept turning and zig-zagging in an effort to go back to plaintiff’s home; that at the time the Mayo automobile passed him he said to himself, “She’s going to hit that cow,” and that as the car got close to the cow, the cow made a lunge into the center of the road, and that although Mrs. Mayo had slowed her car down and pulled it to the left side of the highway, she didn’t or couldn’t stop in time to avoid striking the cow in the hind quarters. We are, therefore, of the opinion that the defendants’ minor sons were not guilty of any negligence which was the, or a, proximate cause of the accident. We find no negligence on behalf of the 'boys who were driving this cow and agree with the Trial Court that the proximate cause of this accident was the negligence of Mrs. Mayo, the driver of the automobile, in not keeping her car under proper control and in not keeping a proper lookout. The testimony shows that the road was straight and that these three boys were having considerable difficulty in driving this cow, and she must have seen, or should have seen, the cow zig-zagging back and forth on the highway several hundred yards away as the road was straight.. She had every reason to anticipate or expect this cow to do exactly what she did do, and she should have been able to bring her car to a complete stop. She was fully warned that this emergency might arise, and she had ample time to prepare to meet it and avoid a collision. She failed to do this and the accident was the result.

It is, therefore, ordered that the judgment of the District Court be affirmed, and, accordingly, that plaintiff’s suit be dismissed at plaintiff’s cost.


author: LE BLANC, Judge.

text:
    PAV v. ETHYL CORPORATION et al.
    No. 3019.
    Court of Appeal of Louisiana-First Circuit.
    Oct. 5, 1948.
    Sam J. D’Amico, of Baton Rouge, for appellant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellees.
   LE BLANC, Judge.

Plaintiff seeks to recover workmen’s compensation under Act No. 20 of 1914 and its amendments, as for total and permanent disability arising out of an accident which he alleges occurred while performing his duties as a painter in the employ of the defendant corporation, on or about November 20, 1945, and which caused ■him to sustain a right indirect inguinal hernia. His demand is for compensation at the rate of $20 per week, not to exceed 400 weeks and for medical expenses not to exceed $500.

He alleges in his petition that he was employed by the defendant, Ethyl Corporation, on August '2, 1945, and that on or about November 20 of that year he was engaged in painting a ■ large storage tank which required the use of a swinging scaffold and that while in the act of putting up the scaffold or pulling it up on a stack, he suffered the hernia complained of and for which he was later surgically attended to.

He alleges that he was examined for industrial employment by the defendant before he started to work and that examination revealed that he did not have a hernia, but that on February 11, 1946, he was examined by his own personal physician who found him suffering from an indirect inguinal hernia on the right side for which he underwent an operation on May 20, 1946. Incidentally he alleges that of his own accord, he left the employ of the defendant on April 30, 1946, which would be about three weeks before he was operated on.

Plaintiff makes all the other necessary allegations in order to bring his case within the provisions of the Workmen’s Compensation- law and prays for judgment as already stated. He impleaded with his employer, the Travelers Insurance Company, which carried the employer’s workmen’s compensation insurance, as a party defendant.-

In a joint answer both defendants deny that if the plaintiff had a hernia that the same was sustained by him while performing services for the employer in the scope and course of his employment. They admit that he underwent a pre-employment medical examination, as he alleges, but aver that in that examination it was disclosed that both of his inguinal rings were relaxed. Except to admit that plaintiff was successfully operated on for the hernia he had, and which they deny he sustained as the result of an accident in the course and scope of his employment, they generally deny the remaining allegations of his petition.

Upon trial of the case in the court below there was judgment in favor of the defendánts rejecting the plaintiff’s demand and dismissing his suit at his- costs. The trial judge supported his judgment with a written opinion which is filed in the record. That opinion and the judgment based on it are now before us for review on this appeal taken by the plaintiff.

Plaintiff, as appears from his own testimony, is a single man who was 35 years of age at the time of the trial of this case in the lower court. By trade he says that he was classed as a painter. He had been engaged in that work for 20 years. The record does not show how long he had been living in Baton Rouge but it does show that he had been residing at 3033 Hollywood Drive where he boarded with a Mr. and Mrs. D..C. Odom for the past 7 or 8 years. He had been employed by various industrial corporations in and around Baton Rouge and began to work for the defendant, Ethyl Corporation, in the beginning of August, 1945. He says that he had never suffered any accident or -injury during the whole course of his employment during these many years and had a fairly good industrial employment record.

He claims that on the date of his alleged accident he and an assistant were sent by the foreman to paint two big storage tanks. They were furnished a very heavy scaffold measuring about 20 feet long which they had to manipulate themselves in order to do the painting job. He intimates that he complained to the foreman that the scaffold was too heavy for them to handle and that he held back for over .a week before- starting the work. Finally they cut the scaffold down some two feet and rigged it up in order to begin. There was an extra helper given them but even with his help it was impossible to pull the stage of the scaffold off the ground by standing on it as they should. Instead, as we understand his testimony, they had to get on the ground and pull it up using a block and tackle attached to the top of the tank. Even so it was very heavy to pull up, especially because the side of the tank was of an oval shape and the stage rubbed against it as it was being drawn up. On the day that he claims he was hurt he and his helper were pulling the stage up and as it reached near the top he says a'pain struck him in his side. He did not realize what it was as he had no way-of knowing, so he went on-working and when he went to his lodging house that afternoon he told Mr. and Mrs. Odom about it. They told him 'that he might have sustained a hernia ;■ that he had better see a doctor. Four days later he went to the plant hospital and saw one of the doctors whose name, he did not recall and was told by him that all he had suffered was a strain.

He continued to work as he had been doing until April 30, 1946, when he voluntarily left the defendant’s employ. He says that he had gotten to a point where he could not go on any more and as his parents, who lived in Mississippi, were ill, he decided to leave. On leaving he signed a card stating to the effect that he had not received any injury in the course of his employment by the defendant company, which had not been reported.

After he had been told by Dr. Dennis A. Casey, his personal physician whom he had consulted in February, 1946, that he had a hernia and was told by Dr. Casey that he should report it to his employer, he'says that he went back and did report it and he insists on saying that the doctor he spoke to, whose name he does not recall, told him that all he had was a strain. He however did not tell any one that Dr. Casey had diagnosed a hernia because, he says, he figured that the man he spoke to was a doctor and he ought to find it out. He says that over telephone, he did report to a Mr. Hubbs who handled the insurance which the company carried for non-occupational diseases or accidents, and told him that he had sustained, this hernia in an accident on November 20 and would have to be operated. He asked him if the insurance he had paid up would take care of him and that Mr. Hubb’s answer was that since he had left the employ of the company the insurance had lapsed and that they could do nothing for him.

He was operated on- May 20, 1946, by Dr. Casey who was assisted by Dr. P. B. Polito. The operation was successful and Dr. Casey told him after ten weeks that he was cured. He says that he remained without employment until as. late as November and then went to work for somebody else and has been working since. He testified that he suffers at times while at work and attributes that to the - condition which. had been brought about, by the hernia he had.

That is about the sum and substance of the plaintiff’s testimony except we might mention also that he did say that at .the time he suffered this burning sensation when he strained on pulling the scaffold, he told his fellow-employee, Charles L. Cates, what he felt and that would be about the only -corroborating testimony he produced except that he also told Mr. and Mrs. Odom on his return home that afternoon what had happened to him. To the extent that he mentioned the matter to them, Mr. and Mrs. Odom corroborated him, but Mr. Cates had no recollection whatever of plaintiff having told him anything like he says he did at that time.

What we have said so far of the testimony in the case constitutes about the only proof adduced by the plaintiff regarding his having had an accident and having sustained the hernia he claims to have , sustained on November 20, 1945. Neither Dr. H. K. Smith, connected with the employer’s medical staff, nor Mr. Hubbs who we have already referred to, nor again,' Mr. Russell Whittington, the foreman, could recall any complaint made by the plaintiff at any time about having sustained an accident in which he suffered the injury he complains of. The record otherwise shows that plaintiff had frequently before called at the first aid station of the defendant company for minor ailments. He never made any demand whatever for workmen’s compensation and the first • notice that the employer had of his claim of an accident was on receipt of a letter addressed to it by the attorney he had employed to prosecute his claim.

On the record as made up therefore we feel satisfied that the trial judge was correct in holding that the plaintiff had failed to establish by a preponderance of the evidence that he had suffered the disability he claims from an accident while he was performing any duty for the defendant employer in this case.

Counsel seems to intimate that in the case of Hill v. J. B. Beaird Corp., La. App., 19 So.2d 295, the court laid down the proposition that when a man is free from hernia when he begins his employment and ' performs hard labor thereafter which could produce a hernia, and a hernia actually develops when his employment is terminated, he is entitled to compensation, and those being the facts in this case, plaintiff should recover. We do not find that the court laid down such a broad and general proposition in the cited case. It did however re-affirm the well established principle that a plaintiff, in a compensation suit, must prove his claim, and “that speculation and probabilities are not sufficient to justify a décree in favor of a plaintiff in the absence of his establishment of his claim with reasonable certainty.” It distinctly stated that the 'facts, as established by the record in that, case, “definitely preponderate in favor of plaintiff’s claim to such an extent and degree that there remains no question in our minds as to the fact that plaintiff’s injury occurred during the course and in the scope of, his employment.”

But in this case, save for plaintiff’s own statement, there is no proof whatever to show that the hernia which eventually developed was brought about by any straining at any particular time or under any particular period of time during his employment by the defendant corporation. True it is that he had a relaxed ring at the time he started his work with this company but according to the doctors that may never have given him any trouble and it is a well known fact that a large number of people have relaxed rings and never do develop a hernia.

Moreover it seems to us that all of plaintiff’s actions refute his contention that he sustained any accident at any time while working for this company which may have brought about this hernia. It seems unreasonable that'.a man with his industrial experience and who was accustomed to reporting even minor ailments to the first aid station as the evidence shows, would not have insisted on telling the doctor in charge of the defendant’s medical staff that Dr. Casey had definitely diagnosed his case as one of hernia. It seems unreasonable also that when Dr.. Casey told him that he would have to be operated on that he would not' have, gone to his employer to tell him about it .and endeavor to have them pay the necessary medical and hospital expenses. ' It seems unreasonable again that after he-had had the operation he would not have gone to the employer and asked’ for compensation insurance, which undoubtedly he would have been entitled to had he sustained an accident while in their employ, instead of asking if he could collect on some other form of insurance for a non-occupational injury. All of this tends to weaken his claim and gives added weight, in our opinion, to the findings of fact of the trial judge.

' We do not think that it is necessary to comment on any of the cases cited more than we have done with regard to the Hill case, for after all each of these cases must depend upon the facts presented and upon the situation that arises in each. The only law which is involved in this case is the one which requires a- plaintiff, in a compensation suit, like in any other suit, to prove his case to a legal certainty and that mere speculation or probability is not sufficient to support a claim. That we think is the basis, of the judgment of-the lower court and we cannot point to any manifest error in it.

Judgment affirmed.


author: LeBLANC, Judge.

text:
    MELANCON v. MIZELL et al.
    No. 3035.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.
    . Rehearing Denied Nov. 10,1948.
    Writ of Error Granted Dec. 13, 1948.

      Ott & Richardson, of Bogalusa, for appellant.
    Ernest A. Carrere, Jr., and Edward F. Stauss, Jr., both of New Orleans, for appel-lees.
   LeBLANC, Judge.

Plaintiff in this case appeals from a judgment of the district court which sustained an exception of no right or cause of action filed on behalf of the defendant Western Casualty and Surety Co. and dismissed his suit as to that defendant, at his costs. The other defendant in the suit, Floyd Monroe Mizell, apparently had left the Parish of Washington and it was impossible to obtain service on him. Issue was never joined as to him and for the time being he is not a party to the suit.

Mizell was engaged during the month of January, 1947, in a business operated under the name of Mizell Laboratory. He was a duly licensed and bonded termite contractor and had qualified as such under the provisions of Act. No. 124 of 1942 which created the Louisiana Pest Control Commission. Under the provisions of that act, a contractor operating such business is required to furnish a bond guaranteeing that he shall honestly conduct his business, which bond has to be made in favor of the chairman of the commission. The defendant, Mizell, furnished such a bond with the co-defendant, Western Casualty Co., as surety thereon.

In his petition plaintiff alleges that on January 25, 1947, he entered into a contract with Lymann B. Mattox and Lois C. Mat-tox to purchase their home located one mile west of Bogalusa on tlie Franklinton Highway, for $11,000 cash, and that as a part of their agreement he deposited $1,000 with a real estate agency handling the deal, pending the consummation of the sale, which $1,000 was to become part of the purchase pric.e. That the said agreement also pur-vided that ‘termite inspection is to be made, and if conditions are not found satisfactory, agreement must be made to remedy condition.”

He then alleges that because of that provision in the agreement, vendor, Lymann E. Mattox consulted Mizell about a termite inspection and treatment of the premises and on, January 25, 1947, he entered into a contract with Mizell who agreed that for the consideration of $160 cash he would treat the Mattox home and would “eradicate all subterranean termites therein and also non-subterranean termites in open con--struction therein during -a period of two years from date” and that he would also inspect the premises regularly and that the contract itself stated that “no repairs were needed.” The , contract further provided that work would commenc.e on January 27, 1947 and that Mizell would prosecute it in a thorough and workmanlike manner, under proper and adequate supervision and complete it all without delay. Whilst the agreement for termite eradication and inspection was made between Mizell and Mattox it was assigned to the plaintiff as purchaser of the property by a provision written across the face by Mizell and signed by him.

Plaintiff alleges that it was reasonable for him to rely upon the provisions of -the contract between Mizell and Mattox and especially that portion which stated that no repairs were needed, from which he concluded that the house had been or would promptly 'be freed of termites and that if there were any present, no damage had been done which would require repairs to be made. Acting on all of these assumptions he accordingly closed the sale and obtained title to the property by recorded title, but that upon taking possession he immediately found that the house was heavily infested with termites. He then promptly called Mizell’s attention to the condition and demanded that he remedy the same in accordance with his contract. This Mizell refused to do or to satisfy him in any manner and he further alleges that as a result of his failure and refusal to-faithfully and honestly comply with the terms of the contract he has suffered extensive damage as a result of the infestation; that it became necessary for him to tear out a large part of the flooring of the house and repair the same in order to prevent further damage and that it also became necessary for him to retain the services of another termite contractor in order to properly treat the building and eradicate the termites therefrom.

For what he alleges was the gross negligence of Mizell in complying with the terms of his contract, and also to honestly and faithfully perform the same, he has suffered damages in the sum of $705.56, all itemized in detail in his petition. He finally alleges repeated demands upon Mizell and his surety on his bond without avail and accordingly prays for judgment against them both, in solido.

Plaintiff annexed a certified copy of the' bond executed between defendant Mizell and the Western Casualty and Surety Co. as surety, to his petition and also his contract to purchase the property from Mattox and the termite contract executed between Mizell and Mattox. Across the face of the latter contract there is written at the top, “transferable on change of owner” and that is signed “F. M. Mizell.”

After the defendant surety company had filed its exception of no cause or right of action, plaintiff filed a supplemental and amended petition in which he alleges that in addition to operating and conducting his business under the provisions of Act No. 124 of 1942, he also operated and conducted the same under the regulations of the Louisiana Pest Control Commission and annexed to his petition a certified copy of the rules and regulations of that commission which became effective April 21, 1943. He also alleged in this supplemental petition that he had paid Mizell the sum of $160 under MizelPs contract with Mattox, which amount he is also entitled to recover and consequently he prays for judgment in the sum of $865.56 instead of $705.56.

The filing of the supplemental petition did not have the effect of meeting the issue that was presented under the exception of no right or cause of action and it was upon trial and submission of that exception later on, that the trial judge rendered judgment in favor of the defendant surety company and rejected plaintiff’s demand.

The issues that are presented in the exception are, in a great measure, the same as were presented and discussed by this court in the case of Parkerson v. Home Protection Service, La.App, 24 So.2d 256. The law creating the Louisiana Pest Control Commission is Act No. 124 of 1942; the one with which the court is concerned in this case. A prior act, Act No. 141 of 1936, had created the Horticultural Commission. It was the law applicable in the Parkerson Case, supra. The purpose of both acts was the same, but, it is urged, by counsel for plaintiff, that there are some material differences in some of their provisions, a very important one being with regard to the bond to be furnished by the contractor who is to engage in work of pest control eradication. They contend that under the act of 1936 it was optional with the contractor whether he would guarantee his work and it became necessary therefore for him to make particular reference to the authority under which he contracted and to-the bond which secured his faithful performance of his contract. Under Act No.. 124 of 1942, counsel contend that the contractor is given no discretion either by the terms of the act itself or by the rules and regulations of the Louisiana Pest Control Commission and that to the contrary he is obligated under the -rules and regulations adopted, to have a contract in writing and a bond to guarantee its performance.

To the extent that the act of 1942 requires a contract in writing in which the contractor shall guarantee all of its terms for a period of two years, counsel may be. correct. The only provision relating to a, bond is found in Sec. 6 of the act and that has reference to the-bond of $2,000 which the applicant for a license to engage in the work of pest control must furnish to the commission, and the only condition of that bond is “that the principal therein named shall honestly conduct said business; * * *.” The provision relating to the contract to be entered into between the licensed pest control operator and the one engaging his services, is found in a separate section of the act, Sec. 7, and the only requirement is that such contract must be in writing and its terms must be guaranteed by the contractor for a period of two years. It contains nothing about a bond but does provide a rather severe penalty for failure by the contractor to carry out its provisions.

Whilst it is true that the act authorizes the Pest Control Commission, under Section 1, to make rules and regulations covering the qualifications of applicants for licenses and the commission did, effective April 23, 1943, promulgate its rules, among which there is one relating to the bond to be furnished, requiring in addition to the condition that the licensee shall faithfully and honestly engage in his profession, the condition that he shall “carry out all contracts entered into”, we doubt the commission’s authority to exact -this additional condition in the bond.

That was an important point on which the court did not entirely 'agree in the Par-kerson Case, supra. However, regardless of the commission’s right in that respect, the majority of the court decided that case on the point that there had been two bonds executed by the contractor, one the license bond required by the statute then in effect, Act No. 141 of 1936, and the other, the “contract” bond, as it was referred to, required by the rules of the Commission, and irrespective of its right to exact such condition, the surety, having obligated itself with full cognizance of, and in compliance with the commission’s regulations, was held liable thereunder to anyone who had contracted with the principal, with reference to such bond. It is significant to note that with regard to certain items included in the demand made in that case the. court sustained the exception of no cause of action for the reason that with respect to the agreements covering those items, there was nothing to show that the service had been guaranteed nor was any reference made to any bond or surety. In this connection, it is to be observed that plaintiffs petition in this case is likewise void as to any allegations to that effect. The only reference made in either the original or the supplemental petition, to any bond, is that Mizell, the licensed Pest Control Contractor, executed a bond “as required by the above mentioned act” (Act No. 124 of 1942) in the sum of $2,000, with himself as principal . and Western Casualty and Surety Co. as surety. A copy of the bond referred to is annexed to the original petition and shows plainly that it was executed in compliance with Section 6 of Act No, 124 of 1942, all as recited in the bond itself. The amount of $2,000 is in accord with the provisions of that section of the act and it contains the condition required therein that the principal shall honestly conduct his business. Whilst reference is made to Section 7 of the act containing the guarantee clause, and ■the condition of the bond includes a guarantee of contracts, the commission was without authority to insert that additional condition because no bond is provided for under, section 7 of the Act. As indicated by the bond itself, it was executed in compliance with the terms of Act No. 124 of 1942; as such it was clearly a statutory bond which could neither add to nor detract from the terms of the act. That is a well recognized rule of construction of statutory bonds.

In construing a condition which was not authorized by the statute under which a bond had been executed, 'the Court, in the case of Davis v. West Louisiana Bank, 155 La. 245, 99 So. 207, 209, stated: “There is nothing in the statute, - under which the bond, in the case at bar, was given, that authorized the provision in question. * * * The parish was without power to accept such a provision, and therefore it is unenforceable. As the bond was given under the statute, and as the provision is in conflict with it, the provision must be read out of the bond, and the bond enforced without it.” From a companion case, Davis et al. v. West Louisiana Bank et al., 155 La. 252, 99 So. 210, 211, we quote this statement: “The bond was given by the defendant bank in pursuance of the requirements of the fiscal agency laws of the state (Act No. 205 of 1912 and its -amendments). It is therefore a statutory bond, which was the only kind of bond the police jury was authorized to accept. The statute must be read into the bond. Superadded stipulations must be disregarded. Necessary obligations which have been omitted :must be supplied.” See also Louisiana Highway Commission v. McCain, 197 La. 359, 1 So.2d 545; John H. Murphy Iron Works v. United States Fidelity & Guaranty Co., 169 La. 163, 124 So. 768.

Another reason which leads us to believe that the statute did not contemplate giving the commission the right to exact a bond to guarantee contracts is because section 7 of the act which requires a contract in writing with a two year guarantee by the pest control operator provides a criminal penalty, in addition to the revocation of his license, for failure to comply with these provisions. He can be fined as much as $200 and imprisoned for as long as 90 days for violation of either the provision to execute the contract in writing, or the one to carry out its guarantee. These in themselves are rather harsh measures to which he can be subjected and we are of the opinion that if it had been intended moreover that he furnish a bond to protect the property holder who employed him, the statute would have so stipulated!

The trial judge seriously questioned the right of the Pest Control Commission, under the authority granted to it by Section 1 of the act, to make rules and regulations under which it could add conditions to the bond required by Section 6. He was of the opinion however, that even though such authority be conceded, the surety on the bond in this case cannot be held thereunder because the.contract-between Mizell, the Pest Control Operator, and Mattox, the property owner, was entered into without any reference whatever to the bond itself. In this, we think he is right. We touched on this phase of the matter before and pointed out that in the Parkerson case, supra, that was the reason for which the majority opinion held that the exception of no cause of action was good with regard to certain of the items claimed. Whilst it may be that under the maxim that everyone is presumed to know the law, a presumption may arise that parties entering into a contract which is governed by the provisions of certain statutes, they do so with reference to a bond that is required in the statute, no such presumption attaches with regard to a bond that is not so required or authorized. In this case therefore whilst Mattox, the property holder who contracted with Mi-zell, and the plaintiff, assignee under that contract, may be presumed to have entered into their agreement with reference to the bond required by section 6 of Act No. 124 of 1942, they cannot be presumed to have contracted with reference to any conditions in the said bond which were not required or authorized by any other provisions of that act.

Under any view to be taken of the issues presented in the case, we believe that the judgment appealed from is correct and it is therefore affirmed at the costs of plaintiff, the appellant.