author: JANVIER, Judge.

text:
    TRANSPORTATION EQUIPMENT CO. v. YOUNGER BROS., Inc.
    No. 18684.
    Court of Appeal of Louisiana. Orleans.
    March 15, 1948.
    Rehearing Denied April 12, 1948.

      Titche & Titche, Bernard Titche, Jr., and Samuel I. Rosenberg, all of New Orleans, for plaintiff and appellant.
    Matthew A. Grace, of New Orleans, for defendant and appellee.
   JANVIER, Judge.

Transportation Equipment Company, plaintiff, a partnership composed of Charles R. Robertson and Richard E. St. Pe, is engaged in the business of repairing automotive equipment, especially large trailers and trucks. Younger Bros., Inc., defendant, is a corporation engaged in the business of transporting petroleum products by tank trucks. Plaintiff partnership brought this suit against Younger Bros., Inc., alleging an indebtedness of $1689.06 as the balance due for the altering of one large trailer and the complete rebuilding of another tank trailer which had been badly damaged previously in a fire. Plaintiff alleges that the amount to which it is entitled for altering the axle on one trailer and rebuilding the other was $3,472.08; that Younger Bros., Inc., has paid on account $1783.02, and that, therefore, there is a balance due amounting to $1689.06, for which judgment is sought.

Defendant corporation admits that the partnership was employed to do the work on the two pieces of equipment, but maintains that in doing the alteration work on one of them there was an overcharge of $544, and that after the other piece of equipment — the tank trailer — had been rebuilt by plaintiff, a leak was discovered, and that in welding the trailer in an effort to repair the leak, it exploded through the carelessness of the employees of plaintiff and was a total loss. Defendant charges that plaintiff is responsible for the value of this tank trailer, $3500, and that, therefore, instead of being indebted to plaintiff, plaintiff is indebted to it in the sum of $2354.94 for which, as plaintiff in reconvention, it prays for judgment against the said partnership, Transportation Equipment Company. In other words, instead of admitting an indebtedness of $1689.06, defendant corporation claims that it owes a balance only of $1145.06 and that as a result of the destruction of its tank trailer, plaintiff owes it $3500, and that, therefore, deducting from this $3500 the balance of $1145.06, there is due to it $2354.94.

In the District Court there was judgment in favor of pláintiff in reconvention for $1704.94, which is $650 less than the amount claimed by plaintiff in rcconvention, the $650 representing the salvage value of certain parts of the destroyed tank trailer.

From this judgment plaintiff partnership-lias appealed.

Though the suit is based on what at first glance seems to be a rather complicated accounting between the defendant corporation and the plaintiff partnership, the entire controversy grows out of two transactions— the altering of an axle on one trailer and the attempt to repair the leak in another,, and the only questions in dispute are, first, whether there was an overcharge of $544 for the altering of the axle of the one trailer, and second, whether the plaintiff partnership is liable for the value of the tank trailer which exploded while in its shop undergoing repairs.

When the defendant, as plaintiff in re-convention, claimed that the plaintiff partnership should be held liable for the value of the trailer which was destroyed as the result of the explosion, plaintiff partnership filed a plea of prescription of one year. We shall not discuss that plea of prescription at this time for the reason that it is necessary to a complete understanding of the ground on which it is based that there be set forth all of the facts which preceded the explosion. We have decided that the plea should not be sustained and, therefore, will first discuss the facts which resulted in the explosion and then set forth our reasons for the overruling of the plea of prescription.

We shall refer to the two jobs which the plaintiff partnership was employed to perform as the “axle” job and the “tank” job.

The tank job was undertaken first. The defendant owned a large tank trailer which had been damaged in a fire and which was taken to plaintiff to be completely rebuilt. The job was commenced during the middle of October, 1942. There is an irreconcilable dispute (which, under the conclusion we have reached, is unimportant) as to whether the work was completed on or about November 26, 1942, as plaintiff partnership maintains, or about December 20, 1942, as defendant corporation contends. At any rate, on the morning of December 24th, this trailer was sent back to the shop of plaintiff in order that a leak, which had been discovered, might be repaired.

The trailer had been used for the transporting of gasoline, and since, in repairing the leak, it was necessary to use a welding torch, it was important that proper precautions be taken to make certain that there remained in the tank neither gasoline nor explosive or combustible vapor. All parties agree that the proper method to be employed to make certain that such an operation is safe is to steam the tank, and the principal dispute arises over the question of whose duty it was to have this steaming done and whether the steaming was properly done, and whether, in spite of the steaming, the true cause of the explosion was carelessness on the part of employees of plaintiff partnership in not making certain that the operation could be undertaken.

Though there is a heated controversy over the time at which plaintiff was notified that the leak had been discovered and that defendant wished to have it repaired, we think that the record justifies the conclusion that on the morning of December 24th a representative of Younger Bros., Inc., defendant corporation, called plaintiff partnership and asked that the leak be fixed at once. We think, too, that during that or those conversations — for there may have been two of them — Younger Bros., Inc., were advised that the work could not be done on that day since it was Christmas Eve and all work in its shop would cease at noon. It appears, however, that since so small a welding job could have been done in a very short time, Younger Bros., Inc., were told that the only thing that would prevent the job being done on that morning was the absolute necessity that the tank be steamed beiore the welding could be attempted.

While there is a dispute over this question also, it seems to us that the record shows that the representative of Younger Bros., Inc., advised plaintiff that the steaming had been done. It may be that the fact is that the first conversation took place on the evening of the 23d and that it was at that time that Younger Bros., Inc., was advised that the work could be done? on the next day if, in the meantime, the necessary steaming could be done.

It seems clear that if such a tank is steamed from eight to ten hours, there is no danger of such an explosion. That it was the intention of Younger Bros., Inc., that this trailer should be steamed for a sufficient time is shown by the fact that defendant knew that steaming costs about a dollar an hour and that the driver of the trailer, who was told to take it to the Cloverland Dairy Products Company for steaming, was given Ten Dollars in cash to be used in payment for that work. The steaming was done by the Cloverland Company, but the tank was steamed for only l]/2 hours, or probably for only lj4 hours, as one of the witnesses says. The trailer reached the plant of plaintiff at about 10:30 o’clock or 11:00 o’clock on that morning, and the employees who were to do the welding were told by the driver that the steaming had been done. No tests were made by those employees, and a welding torch was applied to the outside of the tank and almost immediately the explosion occurred and the trailer was completely destroyed, except for the tires and certain parts, which were salvaged, and which had a value of $650.

The record shows that there are in existence and available now explosion meters which may be used to determine whether there remains in such a tank a sufficient accumulation of gasoline or gases to explode. But we think that the record also shows that at the time of this explosion such meters were not available, or at any rate, were not in general use.

Younger Bros., Inc., insists that the tank had been sent to the Cloverland Dairy Products Company for steaming at the sug-gestión of plaintiff and that, therefore, if the steaming was improperly done, plaintiff should be held responsible, regardless of whether additional tests should have been made by plaintiff or not.

We do not think that the record justifies the conclusion that the Cloverland Dairy Products Company was selected by the plaintiff. We are convinced that the record shows that when plaintiff partnership stated, wlfether on the evening of December 23d, or on the morning of December 24th, that the work could not be done unless the steaming could be first completed, it merely suggested the names of two concerns which could do such steaming and one of these was the Cloverland Dairy Products Company. That company had steamed out innumerable tanks of various kinds, and it is shown that it would have applied the steam to this trailer for as long a time as the owners might have requested. It is shown, too, that Younger Bros., Inc., probably in New Orleans and certainly at other places, on many occasions had had trucks steamed out and were thoroughly familiar with the process and with the necessity therefor. This is further made evident by the fact that the driver, as we have stated, was given Ten Dollars to pay for the steaming at the rate of One Dollar an hour.

One very important fact is that although the driver in charge of the truck left the establishment of Younger Bros., Inc., in Kenner at about three o’clock, or certainly not later than four o’clock in the morning, he did not reach the plant of the Clover-land Dairy until some five or six hours later, and then asked that the trailer be steamed for lj/¿ hours. This driver could not be produced as a witness, but it seems to us that the fact that the trailer was steamed for only lj4 hours was due to his desire to go somewhere else during that intervening period of five or six hours, and that when he did not reach the plant of the Cloverland Company in time to have the steaming properly done, he undertook to give the order that the tank should be steamed only 1 J4 hours.

An effort is made by Younger Bros., Inc., to show that plaintiff’s employees should have known that the steam was applied for ■only 1 Yz hours, and it attempted to prove that the receipt for the steaming, which would have shown this, was handed to the employee of plaintiff partnership before the operation commenced. The record overwhelmingly shows that when the tank reached the establishment of plaintiff "partnership, the driver was asked whether the steaming had been done and he answered that it had, and it was only after the explosion that he produced the receipt showing that two compartments of the trailer had been steamed for only 1^4 hours.

We conclude that the fact is that Younger Bros., Inc., which was in the business of hauling gasoline and petroleum products, well knew the necessity of steaming out tanks and that they were well aware of the fact that such steaming operation to make the tank safe for welding would require from eight to ten hours.

We think, too, that the proximate cause of the explosion was the failure of Younger Brothers to see to it that the trailer was probably steamed before it was sent to the plant of plaintiff partnership. Under all the circumstances, the employees of plaintiff were justified in assuming that Younger Brothers — engaged in the business of transporting gasoline and quite • familiar with the process of steaming out tanks — had had this done, and since the record shows that, had it beén done, there would have been no danger of such an occurrence, it was not negligence on the part of those employees to undertake the welding on the outside of the tank.

We are well aware of the decision of our Supreme Court in Moore v. Jefferson Distilling & Denaturing Co., 169 La. 1156, 126 So. 691, in which that Court discussed the question of what was the proximate cause of an explosion of a steel drum which was supposed to be new but which obviously contained an alcohqlic residue. The Court held that the negligence of the concern, which had furnished the drums, in failing to produce new drums and in furnishing drums in which an alcoholic residue was contained, was not the proximate cause of the ensuing explosion, but that the proximate cause was the intervening negligence of another person in holding a lighted match at the open bunghole of the drum.

There, however, the act of the third person in holding the lighted match at the bunghole of the drum was a careless act which no one could have anticipated. Here it was well known that a welding torch was to be applied to the tank and, therefore, since the application of the torch was an act which all persons knew was bound to occur, those who should have made the tank safe against the effect of such an explosion were responsible for the results which were bound to occur if the steaming was not properly done.

In the Moore case the Supreme Court quoted with approval from its earlier decision in Globe & Rutgers Fire Ins. Co. v. Standard Oil Co., 158 La. 763, 104 So. 707, in which the Court said [169 La. 1156, 126 So. 695]:

“ * * One is bound to * * * provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable.’ * * * ”

In the Globe & Rutgers case it was charged that the cause of the fire was the negligence of an employee of the defendant who had permitted gasoline to run upon the ground adjacent to a store building. The Supreme Court held that that negligence was not the proximate cause of the ensuing fire which had resulted when a third person carelessly threw a lighted match upon the gasoline. The Court said that the intervening negligent act was the cause of the fire, since it was not an act which was to be expected by those who had carelessly allowed the gasoline to run upon the ground.

In the Moore case the Supreme Court distinguished between a situation such as it had found in the Globe & Rutgers case and the situation in the Moore case, making the following statement:

“The casual and careless throwing of a match is an act much more usual, and hence to be expected, than is the deliberate applying of a lighted match to the bunghole of a steel drum, in an endeavor to show that the drum had never been used.”

Applying that reasoning to the facts of this case, we immediately see that since the act of the employees of plaintiff in applying the welding torch to the tank was an act which was not only to be expected, but was the operation for which the tank was sent to them, it follows that the cause of the accident was the failure of those who sent the tank to see to it that it was first properly prepared for such an operation.

The negligence of the employee of Younger Brothers was the cause of this disaster and it follows that plaintiff can not be held liable.

As we have already said, defendant, as plaintiff in reconvention, filed its reconven-tional demand on April 20, 1944, which was more than one year after the explosion which destroyed the trailer. Based on this fact, the defendant in reconvention, Transportation Equipment Company, filed a plea of prescription of one year, contending that the claim, on which the reconventional demand is based, is alleged to have resulted from a tort and that, therefore, the said claim became prescribed one year from the occurrence. Plaintiff in reconvention asserts that the claim in reconvention is based on an alleged breach of contract, and that although that breach is alleged to have resulted from negligence, nevertheless the demand grows out of a breach of contract and is, therefore, not prescribed in one year.

It is well settled that where a contract is breached by negligence the party damaged may base his suit for the loss sustained either on the breach of contract or on the tort. In American Heating & Plumbing Co. v. West End Country Club, 171 La. 482, 131 So. 466, 469, the Supreme Court said:

“The rule is well settled that a party to a contract may have a money demand against the other party to a contract and may sue either on the tort or upon the contract at his option or election.”

Relying upon this language, counsel for defendant in reconvention point to the allegations of the reconventional demand and assert that from those allegations it is shown that Younger Brothers, plaintiff in reconvention, chose to base the reconven-tional demand solely on tort. Counsel show, for instance, that nowhere in the said demand is there an express charge that the contract to repair the tank was breached, and that, on the contrary, the loss is alleged to have been caused “solely and entirely by the negligence, lack of prudence and skill on the part of the plaintiff in proceeding to make the repairs and applying a welding torch and heat to the tank without first having made a complete examination and inspection of the said gasoline transport and without first having ascertained that it was safe to proceed with the repair work without causing damage or injury.”

We think that to adopt the interpretation which counsel place upon the decision of the Supreme Court in the American Heating case would be to place upon that language too narrow a construction. Careful reading of the decision indicates that what the Court held was that when a contract has been breached by negligence on the part of the contractor, if the facts alleged show that there was a contract and that, as a matter of fact, it was breached, then, in spite of the fact that the breach resulted from negligence, the prescription applicable is that of ten years and not that of one year.

In American Heating & Plumbing Co. v. West End Country Club, supra, the Court said:

“The character of the action determines the prescription applicable thereto. If the action is purely one in tort, then it is prescribed by one year. If the action is predicated on a breach of the contract, then it is only prescribed by ten years.”

We interpret that statement as meaning that where it is shown that there was a contract and that it was breached by reason of negligence on the part of the contractor, since the action based thereon is not “purely one in tort,” it is not prescribed in one year. As the Supreme Court said in Illinois Cent. R. Co. v. New Orleans Terminal Co., 143 La. 467, 78 So. 738, 740.

“A contractor cannot liberate himself from his contract, or, in other words, destroy its obligation, by committing a tort; and if the obligation is not destroyed, but remains in full force, and the contract is breached, there is evidently a ground of action on the contract.”

The entire burden of the reconven-tional demand is that the defendant in re-convention has failed to carry out its contract, and however stoutly it may have been alleged that this failure was due to negligence, we think that, nevertheless, the claim is in reality based on a breach of contract and is, therefore, not prescribed in one year.

In the case of P. Oliver & Sons v. Board of Commissioners, 181 La. 802, 160 So. 419, 420, appears the following:

“It is said in Kohn v. Town of Carrollton, 10 La.Ann. 719, and confirmed in many subsequent cases, that the allegation by a plaintiff that he has been damaged does not determine that this action is ex delicto; for damages result as well from violation of contracts as from quasi offenses. The character of the action is determined from an examination of the whole petition.”

As we have already stated, we conclude that the plea of prescription is not well founded.

We pass then to a consideration of the question of whether there was an overcharge for the altering of the axle of the other trailer. The charge as made amounted to $960.97, but defendant contends that the work was done under a contract which provided for a total payment of $350, and that this, with the addition of a small charge of $66.97, which is admittedly due for extras not included in the contract, is all that is due for the altering of this trailer; that deducting from the $960.97, charged for this work, the contract price, $350, and the amount due for extras shows that there was an overcharge of $544.

The sole question involved here is one of fact: Was the work done under a contract which provided for a fixed price of $350, as Younger Bros., Inc., maintains, or was it done without an agreed price on a quantum meruit basis as is contended by Transportation Equipment Company, the plaintiff partnership?

Plaintiff points out that from its books it appears that the actual cost of the work amounted to $956.50, of which $432 was expended for parts and material and $524.50 for labor, and it is argued that the members of the partnership had much experience in that kind of work and could not have made an estimate so completely out of line with the cost of doing the work.

When plaintiff agreed to do the work there was a trailer which had been brought to its establishment by two officials of Younger Bros., Inc. It is contended by plaintiff that this trailer, which was shown to one of the partners, was not the one which was later brought in for the alteration job; that the one which was shown to plaintiff had only a single axle of a lighter type and that the plaintiff understood that this was to be replaced by another single axle of a heavier type, but that when the trailer on which the work was done was brought in it proved to be a trailer with a double or dual axle, and to take off this axle and replace it with a single axle was a much more expensive job.

The officials of Younger Brothers maintain, on the contrary, that the actual trailer on which the work was to be done was brought to the establishment of plaintiff and that Mr. Robertson, one of the partners, saw the trailer and agreed to do the work for $350.

The testimony on this question can not be reconciled. Mr. Robertson said:

“Mr. Dale and Mr. Woodard were in the office one afternoon, and they had a trailer standing out in the yard, and they asked how much it would cost to remove that particular understructure and install a new axle under a trailer of that same type. We were supposed to use the brakes off of the job, and install it on the new axle. We looked at the unit and decided we could do it for about Three Hundred and Fifty Dollars ($350.00). When they sent the job in, they sent an entirely different type of unit from the one we discussed. They also authorized a considerable amount of additional work.”

Mr. St. Pe, the other partner, said that when he saw the trailer which had been brought to plaintiff’s establishment, he understood that it was that trailer on which the axle was to be changed; that that trailer had a light single axle which was to be replaced with another heavier one, but that when the trailer on which the actual change was to be made was sent in it had a double axle, which rendered the operation much more expensive.

On the other hand, the officials of Younger Brothers say that when the contract was made, the partners of plaintiff partnership were shown a double axle trailer and that they agreed to change that axle for a single one for $350. Mr. Woodard, the Louisiana Superintendent of Younger Brothers, said:

“We asked what he would charge us for all materials and labor to take out the tandem axle and replace it with a single axle. He told us it would be a flat $350.00.”

He says, too, that after the work was in progress, he called at the shop of plaintiff and that even at that time Mr. Robertson said nothing to indicate that the job would cost more than the price which he says had been originally agreed upon. Later in his testimony, Mr. Woodard said that the job which Mr. Robertson had agreed to do for $350 was to “take out the old tandem axle and replace it with a single axle. * * *”

Dalas M. Dale, Vice-President of Younger Bros., Inc., says that the arrangements for the altering of the axle- were made by Mr. Woodard and himself, on behalf of Younger Brothers, and Mr. Robertson, on behalf of the plaintiff partnership. In his testimony, he said:

“We discussed with Mr. Robertson removing the tandem axle and putting a single axle under the trailer, and told him that we had three units that we wanted the work done on and asked him what he would contract for, to remove the tandem axle and put on a single axle; and there was an agreed price of Three Hundred and Fifty Dollars ($350.00) per unit.”

Later Mr. Dale was asked the following question:

“I believe, if I remember correctly, that you stated this morning that at the time the estimate was given you, that the identical unit on which the axle was to be changed was at that time in the shop. Did you say that?” He answered: “Yes, sir.”

There are circumstances corroborative of the contentions of both parties. For instance, the entire cost of the job, as actually done, when compared with the alleged contract price would indicate either that the plaintiff partnership was not shown the actual trailer on which the work was to be done, or that the plaintiff was most careless in preparing its bid for the work. Then, too, it seems clear that the protest about the alleged overcharge was not made until long after the work had been done and the bill sent, and, in fact, not until the plaintiff partnership had requested payment for this and other bills. On the other hand, it is most probable that if some other type of equipment had been sent in to plaintiff and a price for the conversion on that other type of equipment had been made, the members of plaintiff partnership would have protested when the equipment, which was actually sent in to be converted, proved to be entirely different from that which they had been shown.

Were it not for the fact that on this question of fact we have the benefit of the finding of the District Court, it would be most difficult to reach a conclusion. However, the District Judge saw and heard the witnesses who testified before him at great length and reached the conclusion that a fixed contract price had been agreed upon. From the record before us we can not say that this finding was obviously erroneous. We, therefore, conclude that the finding of the District Judge on this question should not be disturbed.

Accordingly, we conclude that the plaintiff partnership was entitled to only $350, the contract price, and to $66.97 for extras. It thus appears that from the balance, which is claimed to be due, $1689.06, there should be deducted $544, the amount of the overcharge, and that plaintiff partnership should have judgment against defendant corporation for $1145.06.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and reversed, and that there now be judgment in favor of plaintiff and against defendant in the full sum of $1145.06, with legal interest from judicial demand, and that the recon-ventional demand be and it is dismissed at the cost of defendant and plaintiff in re-convention; defendant to pay all costs.

Reversed.


source: Caselaw Access Project

author: McBRIDE, Judge.

license: Public Domain

text:
    BAILEY v. MARYLAND CASUALTY CO.
    No. 18664.
    Court of Appeal of Louisiana. Orleans.
    March 1, 1948.
    Rehearing Denied April 12, 1948.
    Writ of Certiorari Denied June 1, 1948

      Bernard J. Bagcrt, of New Orleans, for plaintiff and appellee.
    Montgomery, Fenner & Brown, of New Orleans, for defendant and appellant.
   McBRIDE, Judge.

This is an appeal taken by Maryland Casualty Company, the workmen’s compensation insurance carrier of plaintiff’s former employer, Higgins Aircraft, Inc., from a judgment in favor of plaintiff for 400 weeks compensation at the rate of $20 per week, commencing May 3, 1945 (subject to a credit of $692 for compensation previously paid,) and also for the sum of $40, representing medical expenses expended by plaintiff.

Plaintiff, Mrs. Charlie Bailey, divorced wife of Oliver Wactor, entered the employment of Higgins Aircraft, Inc., on November 9, 1943, and worked at various jobs until, on November 6, 1944, she was given the classification of assembler general A, at an hourly wage of $1.15.

On January 11, 1945, while performing her duties, which were hazardous, plaintiff slipped on some brown fluid located upon the floor of the aircraft plant and twisted her left knee. She was treated at the first aid station, and was later examined by Dr. Joseph T. Scott, Jr., who took X-rays and prescribed for her. She remained at home for about three days, then returned to her job as assembler general A at the same wage rate.

Plaintiff continued to work at the aircraft plant under said classification until May 3, 1945, when her services were terminated as the result of a reduction in the force of workmen. On May 4, 1945, plaintiff visited Dr. Scott, who sent her to the Touro Infirmary in New Orleans on May 8, where she underwent an operation to her knee the following day. Compensation was paid to her from May 8, 1945, at the maximum rate, until January 3, 1946, this period covering 34% weeks. Dr. Scott discharged her on January 3, 1946, his opinion being that she was able to return to work.

During the period for which plaintiff was paid compensation as aforesaid, Pliggins Aircraft, Inc., closed its plant, and the job which plaintiff held became non-existent, and counsel for both parties concede that there is no like employment available in the vicinity of New Orleans, as there are no aircraft-building concerns located there.

After her discharge by Dr. Scott, plaintiff instituted this suit for total and permanent disability. Maryland Casualty Company, the defendant, resists the claims of plaintiff upon the ground that she had subsequently recovered from the injuries and was no longer disabled, and that no further compensation beyond that paid her is due.

Three medical expert witnesses testified in the case. Dr. Joseph T. Scott, Jr., who appeared for defendant, testified that plaintiff had been referred to him on January 11, 1945, and his diagnosis was that she had a twisted knee. When plaintiff returned to Dr. Scott on May 4, 1945, after her services had been terminated at the aircraft plant, the doctor’s findings were that she possessed a definite injury to the cruciate ligament of the left knee. Dr. Scott placed plaintiff in the Touro Infirmary on May 8, 1945, and on the next day performed an operation which disclosed that she had a dislocated cartilage, which he removed. The cruciate ligaments were found to be intact, with the exception of the median anterior ligament, which was torn. Dr. Scott testified that he repaired the ligament “as well as possible,” but that “it is right difficult to make an entirely satisfactory repair of these ligaments.” Plaintiff left the hospital on May 16, 1945, and continued to report to Dr. Scott’s office from time to time until December 1945, for heat therapy and other treatment. Dr. Scott, while admitting that when he last saw her she had a ten to fifteen per cent disability, was of the opinion that she was physically competent to perform the duties of an assembler general A. Dr. Scott was asked upon cross examination if he had ever known of any cases were patients having injuries of the cruciate ligaments of the knee were able to return to work in airplane assembling plants. He stated that he knew of two cases where injured workmen having knee injuries had returned to their employment but admitted that they had injuries only to the cartilage of their knees, and not cruciate injuries.

Dr. Frank Brostrom, an orthopedic specialist, made examinations of plaintiff on October 8 and December 18, 1945, and during November 1946. Testifying as a defense witness, he stated that he found a ten to fifteen per cent disability in plaintiff’s left knee. He admitted upon interrogation by the Court, that she would have some minor disability, and he was not certain whether she could stand for a full eight hour working day. It was his opinion that plaintiff’s ability to stand, should be tested by a return to her job. He thought that if plaintiff was not required to kneel or stoop in crouched positions, she could do her work “very well.”

Plaintiff’s medical expert was Dr. Lyon K. Loomis, who specializes in orthopedic surgery, and who examined her on March 1, 1946, and again on June 6, 1946. He found the left lower extremity to be one-half inch shorter than the right; that plaintiff had a 21,4 inch, well healed scar on the anteric-medial aspect of the left knee; that there was tenderness over the anterior lateral aspect of the lateral condyle of the left femur. His conclusions were that plaintiff showed a definite disability and was unfit for work requiring prolonged standing or walking, or work requiring the ascending and desending of stairways. He estimated the impairment of function in the whole extremity to be about twenty per cent.

At the time of the accident, plaintiff worked on a machine called a “jig,” which was 30 feet long and stood 3 or 4 feet off the cement floor, used to drill holes with electric motors in the aluminum stringers that went into the manufacture of airplane wings. Plaintiff attempted to describe the jig, but her testimony is unenlightening as to the exact nature of this piece of machinery. In connection with her duties, plaintiff, at times, had to get beneath the jig in a crouched position, and she had to stoop, bend and crawl on top of the machine. It appears that the requirements were that plaintiff had to remain upon her feet at all times. About January 14, 1945, after the first treatment by Dr. Scott, she was placed on light work about the jig, and sat on a bench with her legs extended, interpreting blue prints for the benefit of other employees. She testified, and her testimony is uncontradicted, that she continued this light work until her termination on May 3, 1945. Plaintiff insists that since the accident she has continually suffered pains in her left knee, and that she cannot do any heavy work, and at the time of the trial below she described herself as being incapable of performing her usual household duties. She was employed at a gasoline filling station in Slidell, Louisiana, for a few days each week, sitting on a chair making out bills.

The opinion of Dr. Loomis is that the disability in plaintiff’s knee would inhibit her from doing the work she had previously performed. Dr Scott was equally as certain that plaintiff could resume her usual duties, but admitted that he had never known of anyone who suffered a cruciate injury to return to work afterward in an airplane manufacturing plant. Dr. Bros-trom at first stated that he did not know whether plaintiff could stand a full eight hours constantly, and that the only way to determine her ability to do so would be to test her out. He afterward said he thought she might be able to do her usual work.

The evidence shows that the employees of Higgins Aircraft, Inc., were given two short rest periods during the working day, one in the mid-morning, and one in the afternoon. Defendant’s counsel argue that with such rest periods, and the noon lunch period which was of one-half hour duration, it would not be necessary for plaintiff to stand during the full eight hours and that such rest would be beneficial to her and relieve the tension of constant standing. However, Dr. Brostrom is not certain whether plaintiff can return to her work, and Dr. Loomis is positive that she cannot.

During the course of the trial below, the court made two observations as to plaintiff’s apparent condition, which are incorporated in the testimony. On page 26 of the testimony, we find the following statement by the court:

“The witness steps down from the witness platform one step at a time, putting her left leg down first and then bringing the right to the same level as the left, and then putting the left leg down again and bringing the right down to the same level.”

On page 35, the following comment is found:

“Well, in order to clarify the record insofar as that demonstration is concerned, the Court might state that it particularly observed the witness when she made that demonstration, and she did keep her left leg in a straight position in descending the platform.”

The evidence shows that on February 5, 1945, less than one month after the accident, plaintiff received a five cents an hour increase in wages, which was designated as a “merit award,” and counsel for defendant argue that, had the plaintiff not been competent, such award would not have been received by her, and point to that circumstance as showing that she was laboring under no disability. However, the best answer to that contention is that Dr. Scott, defendant’s physician, found it necessary to operate upon plaintiff’s knee after her employment termination, and this clearly indicates that she did have some disability, otherwise the operation would have been unnecessary. And as to the merit award of five cents an hour, it would seem that this was a general increase given to all employees of the aircraft plant, as plaintiff’s testimony clearly shows that she did much lighter work after her knee injury, and that her presence in the plant was due to the indulgence and toleration of beneficent superiors.

Counsel further argue that under no circumstances can plaintiff be placed in the category of a workman who is totally and permanently disabled, for the reason that the kind of work she performed when injured is no longer available in the vicinity of New Orleans, and that unless plaintiff can show that she made some attempt to return to work of the same kind, and was unable to perform the duties required due to her physical handicap, she cannot be considered as a disabled person within the purview of the Workmen’s Compensation Act.

Considering the testimony of Drs. Scott and Brostrom, defendant’s witnesses, to the effect that plaintiff showed some abnormality in the knee when they last saw her and which they each estimated to range from ten to fifteen per cent; the testimony of Dr. Loomis that it was twenty per cent and that she could not possibly do the work of an assembler general A; and also the testimony of plaintiff, which is absolutely uncontradicted, that she continues to suffer pain and is unable to stand for long periods of time, and cannot do her household work, stoop or bend, or climb and descend stairs, it is our opinion that plaintiff should be placed in the category of one who is totally and permanently disabled. The question is not whether the employment in which she was engaged when injured still exists, but whether her physical condition would permit the performance of the duties thereof.

The trial court, who saw and heard the witnesses, believed that plaintiff was totally and permanently disabled. He also had the opportunity of observing her, and the statements dictated into the record indicate that it was his conclusion that she was laboring under disabling physical handicaps. These findings on factual matters, particularly where the veracity of witnesses is involved, should not be disturbed unless there is manifest error, and we fail to find any in the record.

It is well established that a workman is disabled totally and permanently when he cannot, on account of his injuries, return to the work in which he was engaged at the time of the injury. Butzman v. Delta Shipbuilding Co., Inc., La.App., 21 So.2d 80; Stieffel v. Valentine Sugars, Inc., 188 La. 1091, 179 So. 6; Yarbrough v. Great American Indemnity Co., La.App., 159 So. 438.

In th case of Stieffel v. Valentine Sugars, Inc., supra [188 La. 1091, 179 So. 15], a stenographer suffered injuries to his hip which shortened his right leg one-half of an inch, and caused him to experience pain and to walk with a limp, thus impairing his ability to move about. The Supreme Court found that the workman was totally and permanently disabled, saying:

“ ‘Total and permanent disability from performing any work for compensation or pro-fit does not require that insured become absolutely helpless, but merely requires such disability as renders him unable to perform substantial and material part of his occupation in usual and customary way.’
¡I? 5^
“ * * * In addition, it is satisfactorily shown that he is unequal to anything like reasonably constant physical activity in and about an office itself, where he is required to pass from room to room, handle chairs, typewriters, adding machines and their stands and supervise files that require frequent stooping and moving about, ‘sitting down’ for long periods and arising from a sitting to an erect position, all of which either provokes, or is accompanied by, more or less pain and discomfort, and has frequently to be followed by ameliorative treatment. ‘Competency,’ accompanied by active pain, amounts to disability:”

Counsel for defendant call our attention to the fact that after the injuries, but before the operation, plaintiff worked for Higgins Aircraft, Inc., for a period of twenty weeks, at wages approximating those received by her before the accident, and contend that if the defendant is cast for compensation, due credit should be allowed at the rate of $20 per week for each of those weeks she worked. In the case of Daigle v. Higgins Industries, Inc., La.App., 29 So.2d 374, 379, we said:

“In short, we take the view that if, during that period for which compensation is due, the injured workman can earn a substantial living by working for the same employer at wages approximating those earned before the accident, the weeks for which he should earn such wages should be deducted from the 400 weeks during which compensation might otherwise be due to him.”

Therefore, in addition to the credit allowed in the judgment for compensation already paid, the defendant is entitled to credit for $400, representing the twenty weeks during which she earned wages after the accident.

The lower court allowed plaintiff $40 for medical outlays, and there seems to be no complaint about this allowance. Plaintiff alleged in her petition that her medical expenses amounted to $500. There is, however, in the record, a stipulation agreed to by all counsel that the defendant expended $396.59 for such expenses.

For the reasons assigned, the judgment appealed from is amended so as to allow the defendant an additional credit of $400 and as amended the judgment is affirmed. Defendant-appellant is to pay all costs of this appeal.

Amended and affirmed.


text:
    STUMPF v. SNELL et al.
    No. 18784.
    Court of Appeal of Louisiana. Orleans.
    March 15, 1948.
    Fred A. Middleton, of New Orleans, for plaintiff and appellee.
    Frank H. Langridge, of Gretna, for defendant and appellant.
   JANVIER, Judge.

Plaintiff, Mrs.' Norma Rouprich Stumpf, brings this suit to cancel and rescind a written lease of a certain dwelling in the Town of Gretna which she, as owner, made with C. Ben Snell, as tenant. She alleges that Snell violated the provisions of the written lease by making certain alterations in the leased premises without her consent. She alleges also that Snell sub-leased the property to one, Thomas S. Medford, and, in addition to a prayer that the lease be cancelled, she prayed that Snell and Medford be ordered to show cause why possession of the premises should not be surrendered to her immediately.

Mrs. Medford, wife of Thomas S. Med-ford, the sub-lessee, appeared and intervened and alleged that her husband is “presently in the armed forces of the United States of America”, that “he is presently stationed at Charleston, S. C., and hence unable to appear * * * in order to defend himself and his said wife and two minor children at this time in these proceedings.” Mrs. Medford also made the following allegation: “That, under the law, and particularly under Section 521 of the United States Code Annotated [Title 50 Appendix], that she does hereby apply to this Honorable, on behalf of her said husband, for a stay of all proceedings herein, until such time that her said husband may be able to appear herein to defend his interests in this suit, and that said plaintiff should be ordered by this Court to show cause on a day and date to be fixed by the Court why the relief herein sought should not be granted.”

The principal defendant, Snell, in answer to the petition for the cancellation of the lease, admitted that he had made certain alterations, repairs and improvements but alleged that he had obtained the permission of the lessor before doing so.

On that part of the proceeding which may be referred to as a rule for possession there was judgment in favor of Med-ford and against the plaintiff “staying all proceedings insofar as it applies to the said Thomas S. Medford.” On. the main demand there was judgment cancelling and rescinding the contract of lease. From this judgment Snell, the lessee, has appealed.

Plaintiff has not answered the appeal nor herself appealed from that part of the judgment which stays the proceedings against the sub-lessee, Medford.

The record shows that on November 30th, 1944, Mrs. Stumpf and C. Ben Snell entered into a written contract of lease under which Snell became tenant of the property in question. The monthly rental was fixed at $35.00 and the term of the lease was three years, ending on November 30th, 1947. The lease contained a provision under which the lessee was given the privilege of renewing the lease “for one or three years” upon giving notice in writing thirty days prior to the expiration of the original term of the lease.

The lease contained two other stipulations which are the ones which give rise to this litigation. They read as follows:

“The Lessee agrees to make no alterations to said premises without the permission of the Lessor.

“All additions or improvements placed on the premises are to become the property of the Lessor at the termination of the lease unless otherwise stipulated herein.”

It is charged that the lessee violated the terms of the first of the above quoted stipulations in the following particulars: That he removed the bannisters on the rear gallery of said building; that he cut an opening in the kitchen wall and installed an exhaust fan and removed a part of the wall; that in one of the bedrooms and in the sun parlor he installed an air conditioning unit and bored holes in the floors of some of the rooms and placed in the rooms pipes required by the said unit; that he used the garage as a stable for horses and “thus deteriorated said building” the “said horses having kicked out numerous weatherboards in the sides of said garage” and that he, the said tenant, “changed and altered the said garage by erecting a drop roof on the front portion thereof.”

It is also charged that the lessee violated the second of the above quoted stipulations in that after he had installed in the premises an attic fan and an exhaust fan in the kitchen, he sold these fans to the sub-tenant, Medford, thus indicating an intention to refuse to comply with the above quoted provisions of the lease under which it is stipulated that said improvements, at the termination of the lease should become the property of the lessor.

The lessee admitted that he had done most of the things complained of but averred that he had done all of them, except as to the change in the roof over the garage, after obtaining the permission of the lessor; that no written permission was made necessary by the lease and that all of the things which he had done enhanced the value of the property of the plaintiff. He admitted that he had not obtained permission to change the roof over the garage but contended that that change was of minor importance and that the roof could be replaced as it was at a nominal cost.

The record shows that during the term of the lease the lessee expended $2200.00 in doing the various things which he admits that he did and that in addition he installed an air conditioning unit at a cost of $1800.00, which unit was later removed.

We think it very obvious from the record that the various things which the defendant did, as a matter of fact, enhanced the value of the property but that is not the question with which we are concerned. The question is whether they were . alterations which, under the terms of the lease, he had no right to make except with the consent of the lessor, and second, and more important, is the question of whether, as a matter of fact, he did obtain that consent. It appears to us from the evidence showing what would be the cost of undoing the various things which the defendant did and the evidence showing how much he expended and what was the nature of the various jobs which he did, that most of them cannot be looked upon in any other light than as alterations to the property. That he painted the property and repapered the entire interior, no doubt added to its value, but the owner of the property was within her rights in requiring that these things be not done except with her consent.

When we come to consider the question of whether permission was obtained, we find the evidence completely in conflict — Snell states that in each instance he obtained the permission of Mrs. Stumpf and Mrs. Stumpf states that he did not. We cannot see from the record that the trial judge was obviously in error in reaching the conclusion that Mrs. Stumpf had not given her consent and, therefore, we reach the conclusion that the finding of the trial court on this question should not be disturbed.

In the oral argument before us counsel for the plaintiff suggested that we should amend the judgment and order that immediate possession of the premises be surrendered to the plaintiff. Inasmuch as the rights of the parties under the housing regulations of the Office of Price Administration are involved, and inasmuch as the plaintiff did not appeal from that part of the judgment which stayed the proceeds so far as Thomas S. Medford is concerned, there is nothing that we can do except to affirm the judgment which is before us on appeal.

Accordingly, the judgment appealed from is affirmed at the cost of appellant.

Affirmed.


author: PER CURIAM.

text:
    ANTOINE v. CONSOLIDATED-VULTEE AIRCRAFT CORPORATION.
    No. 18691.
    Court of Appeal of Louisiana. Orleans.
    March 4, 1948.
    Writ of Certiorari Granted April 26, 1948.

      F. Irvin Dymond, M. E. Culligan, Jr., and D. Douglas Howard, all of New Orleans, for plaintiff and appellee.
    St. Clair Adams & Son, of New Orleans (St. Clair Adams, Jr., of New Orleans, of counsel), for defendant and appellant.
   PER CURIAM.

On February 5, 1948, the fifteenth calendar day after the rendition of our decision of January 21, 1948, plaintiff-appellee presented to the clerk of this court an application for a rehearing, which the clerk refused to receive on the ground that it came too late, his refusal being based on the first paragraph of Rule X of the rules of this court, which provides that applications for rehearings must be presented within the delay provided by law, and that when filed too late the clerk shall refuse to accept them.

Plaintiff then applied for writs of certi-orari or review to the Supreme Co-urt (No. 38,905 of its docket), which were refused with the following comment :

“Writs refused. This application is premature. Relator should apply to the Court of Appeal to order its clerk to show cause why the application for rehearing should not be received and filed by him.”

There was then filed in this court by plaintiff a motion, which is now before us for consideration, in which he seeks to compel the Clerk of Court to receive and file the application which had been tendered on February 5, 1948. It is averred that said application had been timely made because plaintiff’s counsel had never been notified of our judgment, and that no delay for applying for a rehearing ran against him as a result. This contention is based upon Art. 7, sec. 24, of the Constitution of 1921, which provides that notice of judgments rendered by the Courts of Appeal of each circuit shall be given to counsel of record, and that the courts shall provide by rule for the giving of such notice, and that no delay shall run until such notice shall have been given.

The Constitutional provision upon which reliance is made has no application to the Court of Appeal for the Parish of Orleans, and its judgments on appeals from the district courts become final and executory on the fifteenth calendar day after their rendition, without the formality of notification to counsel of record. A rehearing must be applied for prior to the judgment becoming final, and consequently no consideration whatever can be accorded plaintiff’s application, as it came too late, and we decline to order the clerk to receive and file it.

We said in Bell v. Employers’ Liability Assur. Corporation, Ltd., La.App., 153 So. 334:

“An examination of this section of the Constitution convinces us that it has no application to the Court of Appeal for the parish of Orleans, since it deals exclusively with the organization and operation of the other two Courts of Appeal of this state. This has always been the view of the judges of this court as demonstrated by the fact that no notice of judgment has ever been given in compliance with this section of the Constitution. See sections 76, 77, 78 and 79.”

Act 16 of 1910, sec. 1, provides:

“Judgments rendered in. the Courts of Appeal of the State shall become final and executory on the fifteenth calendar day after the rendition, * * * unless the last day shall fall on a legal holiday, when the delay shall be extended to the first day thereafter not a legal holiday; provided that in the interval parties in interest shall have the right to apply for rehearing; * *

For the reasons assigned, the motion is denied.

Motion denied.


author: HAMITER, Justice.

text:
    213 La. 40
    STATE v. WOODERSON.
    No. 38601.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Edwin I. Mahoney, of New Orleans, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., and Herve Raci-vitch, Dist. Atty., and Guy Johnson, First Asst. Dist. Atty., both of New Orleans, for appellee.
   HAMITER, Justice.

In a bill of information it was charged that the defendant, on the 8th day of January, 1947, in the Parish of Orleans, “while in a public place and in a public manner, did wilfully and unlawfully and intentionally perform an act of lewdness and indecency grossly scandalous, and tending to debauch the morals and manners of the people * * Without challenging the legality of the information, he went to trial, offering the defense that on the date named he was a patient in the Charity Hospital of Louisiana in New Orleans.

The court, at the conclusion of the trial, found defendant guilty and remanded him for sentence. Thereafter, his counsel filed a motion for a new trial. The motion was denied and he was sentenced “to pay a fine of $200 and to serve a term in Parish Prison for one year and in default of payment of said fine to serve a term in Parish Prison for six months additional.” This appeal followed.

The transcript filed here contains five bills of exceptions, four of which were reserved to rulings respecting the admission of evidence, and the fifth (the one most seriously urged) to the denial of the motion for a new trial. In connection with the last mentioned bill, defendant complains, among other things, that there was not a scintilla of evidence adduced at the trial which would warrant his conviction.

In a criminal case this court cannot and will not pass upon or determine the sufficiency of the evidence where there was some proof adduced to sustain the conviction. But after complaint is made, as here, that no evidence whatever was offered on which the conviction could be predicated, there is presented a question of law which we must and will consider. State v. Nomey, 204 La. 667, 16 So.2d 226, and cases therein cited.

The above recited charge against defendant is couched in the language of subdivision 3 of Article 106 of the Louisiana Criminal Code (Act 43 of 1942), which reads: “Obscenity is the intentional * * * (3)Performance, in any public place or in any public manner, of any act of lewdness or indecency, grossly scandalous and tending to debauch the morals and manners of the people * * And in proof of the charge the state’s evidence is only to the effect that defendant suggested or proposed to the prosecuting witness, while standing on the front porch of her home and in the presence of another person, that she commit with him an act of sexual intercourse. Hence, the question now before us is whether the suggestion or proposal or solicitation constituted a violation of said subdivision 3 (with which defendant is presently charged). We think it did not.

According to Webster’s New International Dictionary, Second Edition, the noun “performance” is defined as the act of performing; the verb “perform” means to carry on to the finish, to complete or accomplish. Therefore, in the light of this definition,- it cannot be correctly said that defendant, by his improper advances, performed, accomplished, completed an act of lewdness or indecency.

It may be, although we are not called upon to and do not hold, that the suggestion or proposal offered to the prosecuting witness was a violation of the provision of subdivision 4 of Article 106, which reads: “Obscenity is the intentional * * * (4) Solicitation or attempt to entice another, in any public place or in any public manner, to commit any act of lewdness or indecency, grossly scandalous and tending to debauch the morals and manners of the people.” But with the violation of such provision, which is separate and distinct from that of subdivision 3, defendant is not herein charged.

For the reasons assigned the conviction and sentence are set aside and the case is remanded for the purpose of affording to defendant a new trial.

O’NIELL, C. J., absent.


author: (BOND, Justice.

text:
    213 La. 44
    TROPOLI v. PAULSON et al.
    No. 38235.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Edwin H. Grace, of New Orleans, for plaintiff-appellee.
    Shapiro & Shapiro, of Alexandria, for defendants-appellants.
   (BOND, Justice.

The plaintiff, Paul Tropoli, filed suit against the defendants, James G. Paulson and Heracles Tzavaras, alleging that he was the owner of all of the counters, shelving, furniture, equipment, liquor, and merchandize stock belonging to the business known as “Victory Cafe & Bar”, in Lees-ville, La.; that the defendants were in possession of said business without legal right thereto; that under a verbal agreement entered into with him the defendants were operating the business on the basis of a one-fourth interest each in the profits thereof, in full payment of their services; that this verbal agreement was made with the defendants when the plaintiff was ill and it was agreed that upon recovery of his health and ability to resume the management and control of his business affairs, the business was to be turned over to him; that his health having been recovered, he made demand upon the defendants for possession thereof, but they refused to carry out the agreement, causing him considerable loss and damage. He prayed for a writ of sequestration against the defendants an asked for judgment placing him in possession and control of the above property and prohibiting defendants from interfering further with his affairs. On April 3, 1945, the writ of sequestration issued and the business was closed by the sheriff.

The defendants answered, denying the allegations of plaintiff’s petition and, assuming the position of plaintiffs in re-convention, prayed that they be recognized as plaintiff’s partners in the business, entitled to a one-fourth interest each therein, and particularly in all of the liquor and merchandise stock on hand and all of the counters, shelving, furniture, and cafe and bar equipment contained in the premises; they further prayed for judgment for $275 (in the proportion of one-half each) for damages sustained for loss of net profits during the time the business was closed under the writ of sequestration. In August, 1945, the plaintiff bonded the writ of sequestration and took possession of the property involved.

There was judgment in the lower court rejecting the claim of the defendants to a one-half interest in all of the store fixtures and equipment, counters and shelving, situated in the Victory Cafe & Bar, but recognizing defendants as partners of the plaintiff to the extent of an undivided one-fourth interest each in the stock of liquors, beers, whiskey, and wine actually in the bar, and displayed for sale at the time the sequestration was issued and tile store closed. It was further decreed that the stock of liquors be sold at public auction for the purpose of a partition and after the payment of all costs, plus the debts due by the partnership, the residue of the sale be divided one-half to the plaintiff and one-fourth each to the defendants. The writ of sequestration was maintained and plaintiff was held to be the owner of all of the store fixtures and equipment within the bar. The defendants appealed.

Upon the filing of this appeal, the original record (together with nearly all of the original exhibits which were annexed) was forwarded to plaintiff’s attorney, Mr. S. I. Foster of Leesville, La. Before the case was argued here, Mr. Foster died and plaintiff is now represented by a'New Orleans attorney, who filed a brief and presented argument on his behalf in this Court. Since Mr. Foster’s death, notwithstanding all efforts on behalf of the clerk of this Court, the original transcript and the documents annexed thereto have not been located. However, it is our opinion that, while these originals would be of considerable help in reaching the final judgment herein— notwithstanding they are not before the court — we can, nevertheless, render a judgment because by remanding the case we may not accomplish any result, as we are not certain that the original or duplicate original record and documents could be produced in the district court.

In oral argument it was stated by counsel for defendants that a stipulation had been entered into that in the event the court found that a partnership existed, in order to avoid the necessity of a suit for liquidation of the partnership, the court should render judgment accordingly. That stipulation is not in the documentary evidence in the duplicate or triplicate copies of the record. The attorney now representing plaintiff could not admit nor deny the stipulation but the judgment of the lower court shows that such a stipulation must have been in the original record, since the judge ordered that all liquor on the premises be sold and after the payment of debts, the residue of the sale be divided half to plaintiff and a fourth each to the defendants.

The duplicate copy of the record shows that on.June 7, 1943, the plaintiff, Paul Tropoli, entered into a written partnership agreement with Heracles Tzavaras, George Pagonis and James Captain whereby the plaintiff sold to Tzavaras, Pagonis and Captain and undivided one-half interest in his business, the “Victory Cafe & Bar” on Third Street, Leesville, La. This one-half interest included all of the cafe and bar fixtures and equipment, the licenses and permits, the lease upon the building, and all of the rights and appurtenances belonging to the business, to.gether with the stock on the premises. The whiskey, beer, and other liquors then belonging to the vendor Tropoli, located in his residence, was to be paid for by the partnership as withdrawn each month from the profits of the business. The vendees were to devote their entire working time to the business of the partnership without any compensation other than their share of the profits. The sale was for the sum of $6,000, $2,000, cash, the 'balance in $500 payments each month out of the vendees’ profits of the business. The partnership was to be operated on a cash basis and there was to be a monthly settlement of profits, with the portion falling to the vendees to be credited by the plaintiff to the payment of the last monthly installment due by them until the entire $4,000 balance was paid.

On or about June 17, 1943, Captain sold his interest in the business to John Re-dumis. In August, 1943, Tropoli sold one-third of his undivided one-half interest in the business (or a one-sixth interest) to James Paulson for $4,500. In November 1943, Pagonis sold his interest to Frank Cashiries for $1,500. Thus, at this point Tropoli owned a one-third interest in the business and Tzavaras, Redumis, Paulson and Cashiries owned a one-sixth interest each.

According to receipts signed by plaintiff and testimony in the duplicate record, the plaintiff was paid the entire $4,000 balance due him under the partnership agreement. It also appears that Tropoli received payment for the liquor stock from the partnership out of the profits of the business, as stipulated in the partnership agreement.

On February 12, 1944, in an agreement headed “Dissolution of Partnership”, Tro-poli, Captain, Tzavaras and Pagonis declared that they were the partners who entered into a certain, partnership contract on June 7, 1943, and that they “mutually dissolve the above partnership, rescind, and set aside the said partnership contract as null and void, and no longer of any effect as between themselves”. This document is signed by the original parties — Captain, Tropoli, Tzavaras, Pagonis, as well as Caohiries (who acquired the one-sixth interest of Pagonis) and is witnessed by John Redumis (who acquired the one-sixth interest of Captain) and Paulson (who acquired a one-sixth interest from Tropoli). After the execution of this “Dissolution of Partnership”, the business continued to be operated by Tzavaras, Paulson, Cashiries and Redumis.

In June, 1944, Cashiries sold to Tzavaras and Paulson his one-sixth interest for $500, and Redumis sold to Tropoli his one-sixth interest for $500. Thus in the month of June, 1944, Tropoli owned a one-half interest and the defendants, Paulson and Tzavaras owned a one-fourth interest each in the business, and thereafter the business was operated by the defendants, Tzavaras and Paulson, only.

From the foregoing, it is clear that the contention of the plaintiff that the business was being operated by him as the sole owner under a verbal agreement with Tzavaras and Paulson, who shared a one-fourth interest each only in the profits of the business, is not well-founded. Tzavaras, Tropoli and Paulson continued to operate either under the old partnership agreement or under a verbal agreement with the understanding, as the defendants contend, that a new partnership agreement was to be entered into. But disregarding the contentions of the plaintiff and the defendants, as to the existence of a new partnership agreement, the record shows at the time of the dissolution of the partnership, they were (as of June 1944) owners in indivisión of the business, and particularly of the liquor stock and the cafe and bar fixtures and equipment. The stipulation subsequently entered into in court resulted in a dissolution of any partnership that may have existed, thus entitling them to recover from the sale of this property under an order of court in the proportion of one-half to Tropoli and one-fourth each to Paulson and Tzavaras.

Any claim for damages as a result of the wrongful seizure would be a claim by the partnership against Tropoli and not by Tzavaras and Paulson individually. Therefore, the claim for $275 is dismissed.

For the reasons assigned, the original judgment is amended as follows:

It is ordered, adjudged and decreed that defendants, James G. Paulson and Heracles Tzavaras, are entitled to a one-fourth interest each in and to all of the store fixtures and equipment, furniture, counters, and shelving situated in the Victory Bar & Cafe, and in all of the stock of liquors, beers, whiskey and wine, etc., as shown in the inventory on file in these proceedings in the sheriff's office; and

It is further ordered, adjudged and decreed that, since the plaintiff in this suit has bonded the sequestration, in the event of his having disposed'of the store fixtures and equipment, counters and shelving, the right is reserved to the defendants to recover from the plaintiff the value of their one-fourth interest in and to this property.

All costs of these proceedings to be borne by the plaintiff, except the actual costs of liquidation, which shall be borne by the partnership.

O’NIELL, C. J., absent.


text:
    213 La. 53
    COX v. SHREVEPORT PACKING CO.
    No. 38399.
    Supreme Court of Louisiana.
    Feb. 16, 1948.

      See also 212 La. 325, 31 So.2d 815.
    Booth, Lockard & Jack, of Shreveport, for plaintiff-relator.
    Cook, Clark & Egan, of Shreveport, for respondent.
   HAMITER, Justice.

In this action in tort, instituted against the Shreveport Packing Company on May 5, 1945, plaintiff, Jesse L. Cox, seeks to recover damages for personal injuries allegedly resulting from the negligence of one Sentell, an employee of the defendant, in his operation of an automobile on October 4, 1941, in Caddo Parish.

To negative prescription as to this defendant, plaintiff alleged:

“Your petitioner now shows that shortly after the said accident, to-wit: on or about the 4th day of June, 1942, your petitioner filed suit in the First Judicial District Court, in and for Caddo Parish, Louisiana, against the said John Mercer Sentell, Jr., being proceedings entitled: Jesse L. Cox v. John Mercer Sentell, Jr., No. 85,162 on the docket of the said Court, seeking to recover damages for the injuries sustained by your petitioner due to the negligence of the said John Mercer Sentell, Jr., which' suit is still pending.
.“That on March 20, 1945, your petitioner discovered for the first time that the defendant, John Mercer Sentell, Jr., at the-time of the collision set forth in your petitioner’s original petition, was employed by the said Shreveport Packing Company and. was on an errand and mission for said company.”

In bar of the action, defendant pleaded' the prescription of one year. On this plea being overruled it answered, denying any negligence by the employee and alleging fault on the part of plaintiff. As a special defense, it averred that at the time of the accident Sentell was not engaged upon its-business, he, shortly prior thereto, having deviated from his employment.

There was judgment in the district court in favor of plaintiff, and also in favor of an. intervenor which had paid compensation to-him, and against the defendant. On appeal to the Court of Appeal the judgment was reversed and the suit, together with the intervention, dismissed, that tribunal having concluded that Sentell was not within the scope of his employment on the occurrence of the accident. 28 So.2d 617. The case is. before this court on a writ of certiorari or review.

A consideration of the merits of the litigation should not be undertaken unless it be determined that defendant’s plea of prescription (seriously urged here) is without merit. To such plea, therefore, we first address ourselves.

As before shown the accident occurred October 4, 1941. Suit was filed against Sentell (defendant’s employee) individually on June 4, 1942, and it is still pending in the district court. The instant action was not commenced until May 5, 1945, or approximately three years and seven, months from the day on which plaintiff was-injured; and in it defendant is sought to be held liable solely under the respondeat superior doctrine. Plaintiff does not allege or contend that the employer caused the employee to commit the tort or assisted in the commission of it.

Actions for damages, resulting from offenses or quasi offenses are prescribed by one year. Civil Code, Article 3536. And the prescription runs from the day on which the injury was sustained. Civil Code, Article 3537. From which it follows that the demands of plaintiff against this defendant are barred by the mentioned one year prescription unless he can show that its accruing was prevented by some interruption.

Counsel for plaintiff insist that the suit against Sentell, instituted within one year from the accident, interrupted the running of prescription as against this defendant. They take the position that Sentell and his employer are solidary obligors, and they argue that under the law of this state the citing in a judicial proceeding of one debtor in solido prevents the prescribing of the obligation as to the others.

Civil Code, Article 3552, insofar as pertinent, reads: “A citation served upon one debtor in solido, or his acknowledgement of the debt, interrupts the prescription with regard to all the others and even their heirs.” When this provision is analyzed the impression is gained that it was intended to be applicable only to contractual obligations, not to tort matters. Thus, it speaks of a “debtor in solido,” and accord-, ing to Article 3556, which furnishes the general definitions of the terms of law used in the Civil Code, an “obligor or debtor is the person who has engaged to perform some obligation.” Again, Article 3552 provides for the interruption of prescription as to all when one of the debtors in solido makes “acknowledgment of the debt.” We do not understand the law to be that an admission of fault and liability by the perpetrator of a wrong is conclusive as to him who is only secondarily liable, such as a master answerable for the torts of his servant or parents responsible for the damage occasioned by their minor children residing with them. As to the latter relationship this court has definitely held that an admission by a minor respecting his commission of an offense is inadmissible in evidence in a suit against the father to recover damages therefor. Toca v. Rojas, 152 La. 317, 93 So. 108; Rush v. Town of Farmerville et al., 156 La. 857, 101 So. 243.

But notwithstanding that the discussed provision of Article 3552 seemingly was intended to be applicable only to contractual obligations, it has been applied in actions against joint tort-feasors. This court has held that they are liable in solido and that service of citation on one of them interrupts prescription as to all. The holding, which is understandable and not improper, has as its basis the following provisions of Civil Code Article 2324: “He who causes' another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with •that person, for the damage caused by such act.” By these provisions all persons who actively participate in the commission of a tort are responsible solidarily to the injured person for the consequences of their joint act. For the entire damage resulting from their combined wrongful efforts, in other words, each is made liable. And joint tort-feasors being so answerable, no harm can result from applying to them, as this court has done, the provision of Article 3552, reciting: “A citation served upon one debtor in solido * * * interrupts the prescription with regard to all the oth--ers * * Each of the joint tort-feasors possesses knowledge of the facts and circumstances attending the wrong committed; and when a suit to recover damages is instituted against one of them before prescription has accrued, the others, by reason of such knowledge, are in a position to adequately protect themselves in defense of the action even though cited after the expiration of the one year prescriptive period.

There appears no justification, on the other hand, for applying the discussed provision of Civil Code Article 3552, to the obligation of the master (who is not at fault) for the damages resulting from a tort committed by a servant in the course and scope of his employment. In the first place, there is no provision of our law which expressly renders a master solidarily liable with his servant for the latter’s wrongdoing. The articles of the Civil Code from which his liability arises are the following: Article 176. — “The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title: Of Quasi-Contracts, and of Offenses and Quasi-Offenses.” Article 177.— The master is answerable for the damage caused to Individuals or to the community-in general by whatever is thrown out of his house into the street or public road, and inasmuch as the master has the superintendence and police of his house, and is responsible for the faults committed therein.” Article 2320. — “Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed. * * * ” Unlike Civil Code Article 2324, above discussed, which specifically makes joint tort-feasors “answerable in solido,” not one of these last quoted codal provisions makes reference to a solidary obligation; each recites merely that the master is “answerable,” the additional term “in solido” being omitted therefrom. And this circumstance of omission appears very significant.

In the second place the master often has no knowledge of the wrong committed by the servant and, when such is the case, to permit his being forced into a trial for it years later would be most unjust and un-faii\ Being uninformed about the facts and circumstances relative to the tort, and without the opportunity of gathering competent evidence because of the long delay, he would be at a great disadvantage in attempting to show his lack of liability. There would result a situation which our laws of prescription seek to prevent.

In support of their position herein, plaintiffs counsel depend largely on the following provisions of the Civil Code: Article 2091. — “There is an obligation in solido, on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.” Article 2097. — “A suit brought against one of the debtors in solido interrupts prescription with regard to all.”

But these provisions must be construed in connection with Article 2093, reading: “An obligation in solido is not presumed; it must be expressly stipulated.

“This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provisions of the law.”

And there is no provision of our law, as pointed out above, which declares that the liability of a master (who is without fault) is in solido with that of his servant.

Moreover, all of those articles, 2091, 2093 and 2097, are found under that portion of our Civil Code which deals with “conventional obligationsthey are not among the provisions relating to offenses and quasi offenses. True, this court in a few cases have applied them to tort claims. Among these, and one relied on strongly by counsel, is Cline v. Crescent City Railroad Company and City of New Orleans, 41 La.Ann. 1031, 6 So. 851, 855. Therein the comment is offered that by reason of the provisions contained in Article 2091 et seq. the obligations imposed by Articles 2315, 2316, 2317 and 2320 “have been recognized as being-solidary in effect, though not so stipulated.” But no authority was cited in support of that comment. Furthermore, in that case, the court was not at all concerned with the solidarity of the obligations involved as affecting the interruption of prescription. The sole question for decision was whether the plaintiff had the right to join the railroad company and the City of New Orleans in the action brought to recover damages for the death of plaintiff’s husband resulting from a defect in a street which-•both defendants were obligated to maintain. That question was presented by the railroad company’s exception, sustained in the district court, which recited: “The plaintiff has no right to join the city of New Orleans and this defendant in the same action, and sue them in solido in the same suit.” In, overruling the exception, after discussing a number of prior decisions, the court said r “All of these cases serve to show why the policy of the law should be in favor of permitting the joinder of all parties in one suit who are charged with participating in an offense or quasi offense whereby damage results, and whose obligations are averred to be in solido, reserving their right to sever on the trial.”

The conclusion reached in the Cline case is in keeping with our present jurisprudence which permits the joining of a master with a servant in a suit to recover damages for a tort committed by the latter. But the permitting of this practice is not because of any joint tort-feasor or solidarity relationship between the two; it is because of the more liberal rules of pleading and procedure that we now follow and, further, because the liability of each is determinable from the same factual situation.

The decision in Hiller Company, Ltd. v. Hotel Grunewald Company, Ltd., 138 La. 305, 70 So. 234, 235, is likewise not applicable. In that case the defendant was sued on an account for materials furnished to a contractor and used in the construction of its building, and the principal issue was whether or not a prior suit brought against the contractor interrupted prescription as to the defendant. In deciding the question in the affirmative, the court held that the defendant occupied the position of a surety, and as such was bound in solido with its contractor, since it had failed to require of the contractor the bond provided for by Act No. 180 of 1894. The following was said:

“The law of 1894 was enacted to secure workmen and furnishers of material by bond with good and solvent surety. Failing to require such bond, the owner was substituted as surety.
“The contractor and owner each being bound to pay the balance due the plaintiff, the obligation on their part is in solido. C. C. 2082, 2091.”

Under the laws of this state a master does not occupy the position of a surety for his servant. If such were his status, there would be applicable to him, and appropriate to the instant case, Civil Code Article 3553, reading: “A citation served on the principal debtor, or his acknowledgment, interrupts the prescription on the part of the surety.” But counsel for plaintiff neither cite this article nor contend that the defendant herein was surety for its employee, Sentell.

Not in point here are those cases which hold that liability insurers and their assureds are solidarily bound. The reason for solidary liability therein is to be found in the following specific provision of Act No. 55 of 1930: “ * * * the injured person * * * shall have a right of direct action against the insurer company * * * and said action may be brought either against the insurer company alone or against both the assured and the insurer company, jointly and in solido.” Also inapplicable are the cases holding an employer and his compensation insurer solid-arily responsible quoad an injured employee. The holdings result from interpreting the provisions of our Workmen’s Compensation statute, Act No. 20 of 1914, especially Sections 23 and 24, as imposing solidary obligations on the employer and the insurer. Section 23 states: “No policy of insurance against liability arising under this act shall be issued unless it contains the agreement of the insurer that it will promptly pay to the person entitled to compensation all installments of the compensation that may be awarded or agreed upon, * * *. Such agreement shall be construed to be a direct obligation by the insurer to the person entitled to compensation, enforceable in his name. * * * ” Act No. 85 of 1926. Section 24 provides: “ * * * that the insurer shall in all things be bound by and subject to the awards, judgments, or decrees rendered against such insured.”

Finally, plaintiff’s counsel further contend, in opposition to the plea under consideration, that prescription did not commence to run until March 20, 1945, that being the date on which plaintiff first learned that Sentell was in the employ of this defendant. And in support of the contention they cite McGuire v. Monroe Scrap Material Company, 189 La. 573, 180 So. 413. That case concerned a claim for the value of certain property allegedly stolen from plaintiff and illegally and fraudulently appropriated by defendants to their own use. The court held that although the theft was committed more than a year prior to the bringing of the suit prescription did not commence to ,run until plaintiff learned who had stolen the property and that there had been a conversion of it by the defendants. The situation there presented is, we think, readily distinguishable from the instant one. Here the plaintiff knew who had caused the accident as well as the time of its occurrence; and with the exercise of reasonable diligence, it seems to us, he could have ascertained within a year by whom Sentell was employed and the reason for his traveling on the highway.

We conclude, therefore, that plaintiff’s action against this defendant is barred by the prescription of one year. And, in view of this conclusion, our passing upon the merits of the case is unnecessary.

For the reasons assigned defendant’s plea of prescription is sustained; and the judgment of the Court of Appeal, which rejected the demands of the plaintiff and of the intervenor, is affirmed.

O’NIELL, C. J., absent.


author: McCALEB, Justice.

text:
    213 La. 67
    D’ANTONI v. EMPLOYERS’ LIABILITY ASSUR. CORPORATION, Limited.
    No. 38443.
    Supreme Court of Louisiana.
    Feb. 10, 1948.

      Fred G. Benton, of Baton Rouge, for -applicant.
    Durrett & Hardin, of Baton Rouge, for ■respondent.
   McCALEB, Justice.

This is a suit for workmen’s compensation. Plaintiff alleges that, while in the ■employ of the Department of Public Safety, Division of State Police, as a motorcycle policeman, he sustained severe personal injuries in an accident which occurred on August 30th 1944 and that the nature of his injuries are such that he will he permanently incapacitated from hereafter doing work of a reasonable character. He asserts that he has been furnished medical care and treatment by the defendant ■company, the compensation insurance carrier of the Department of Public Safety; that it paid him compensation at the rate of $20 per week from September 7th to November 22nd 1944, at which time payments ceased; that, after the discontinuance of compensation by the defendant and while he was still walking with crutches, he was placed on the payroll of the Department of Public Safety, Division of State Police, in a clerical capacity and received from it his usual wage of $190 per month; that he was permitted to remain in that position until on or about February 15th 1945, at which time he was assigned by his employer to another light job, that of making patrols in automobiles driven by other men and that he has been continuously employed in this capacity to the present time, receiving the same wage paid him prior to the occurrence of the accident. Pie further avers that, inasmuch as he has not received any compensation payments since November 22, 1944, his employer and its insurer have failed to extend recognition of his claim as a disability claim arising under the compensation laws of this state and that both of them refuse to admit that his injuries are such as to entitle him to the maximum compensation allowed by law for permanent and total disability, refusing “to fix or declare any further liability of any kind to petitioner under the said laws.”

The defendant resisted the demand by an exception of prematurity in which it asserted that the petition did not allege that the employer refused to pay the maximum percent of wages to which plaintiff was entitled as required by Subsection 1(B) of Section 18 of the Employers’ Liability Act, Act No. 20 of 1914, as amended. Alternatively, it maintained that, if it be found that the averments were sufficient to disclose that the employer had refused to pay compensation, the action was nontheless premature as such charges were without reasonable cause or foundation in fact.

After a hearing in the District Court, the plea was sustained and plaintiff’s suit dismissed. The judge, in a written opinion, expressed the view that, whereas the allegations of the petition were sufficient to comply with the requirements of Subsection 1(B) of Section 18 of the Employers’ Liability Act, the evidence produced by the defendant at the hearing exhibited that those allegations were not correct. Plaintiff thereafter appealed to the Court of Appeal, where the judgment was affirmed. He then applied to this court for a writ of review. The writ was granted and the case has been submitted for our determination.

Subsection 1(B) of Section 18 of the Employers’ Liability Act, as amended by Act No. 85 of 1926, upon which defendant relies for the dismissal of plaintiff’s claim, reads as follows:

“Unless in the verified complaint * * * it is alleged * * * that the employee * * * is not being or has not been paid, and that the employer has refused to pay, the maximum per centum of wages to which petitioner is entitled under the provisions of this act, the presentation of (or) filing of such complaint shall be premature and shall be dismissed; when s,uch allegation is contained in such complaint and is denied by the employer at the time fixed for the hearing thereunder by the Court, if it be shown that such allegations are without reasonable cause or reasonable foundation in fact, said complaint shall be dismissed; and the question of whether or not such allegation of non-payment is justified under the facts shall be determined by the Court before proceeding with the hearing of the other issues involved.”

We are in agreement with the lower courts that plaintiff’s petition sufficiently alleges a refusal on the part of the Department of Public Saftey to pay compensation to plaintiff. In Article 11 of the petition, it is averred that no compensation payments of any kind have been received by plaintiff since November 22nd 1944 and, in Article 12, it is charged “that both the said employer and the said insurer refuse to admit that petitioner’s injuries are such as entitle petitioner to the maximum compensation allowed under said laws where a permanent and total disability is involved, and otherwise refuse to fix or declare any further liability of any kind to petitioner under the said laws.” The sole purpose of the requirement of Subsection 1(B) of Section 18 of the Act is to permit a summary dismissal of any suit where the employer is paying compensation to the employee whether it be in the form of wages or not. But it must be paid and intended as compensation and not in recompense for work actually performed.

On the other hand, we are of the opinion that both courts erred in holding that the evidence of W. D. Atkins (which is the only testimony submitted on the plea of prematurity) exhibits that plaintiff’s allegations respecting the refusal of his employer to pay compensation are without foundation in fact. The Court of Appeal, in its opinion, summarizes the evidence of Atkins as follows [28 So.2d 49, 52]:

“Col. Atkins testified that plaintiff was returned to his work and that he at no time made any demand for a claim of disability and that his Department at no time took any action with reference to such claim for the reason that no demand for such was ever made. This witness further testified that upon being returned to his work on November 1, 1944, the plaintiff was assigned to light work because of his injuries until February 1, 1945 when he was assigned to a patrol car for the reason that he was needed in that capacity and not for the reason that he was physically disabled at that time to return to his former duties as a motorcycle policeman. Col. Atkins admits that prior to filing this suit, plaintiff’s attorney discussed with him the attitude of the employer with reference to compensation due plaintiff,. but that at that time he informed plaintiff’s attorney that he did not have the right to make any commitment on behalf of his Department and that this was a matter to- be determined by the Court and that he wanted plaintiff to receive Ms just dues.” (Italics ours)

Whereupon, the Court of Appeal concludes :

“From that testimony it does not appear that any formal demand and refusal was ever made.”

This resolution, we believe, is not justified by Atkins’ testimony. It is at variance with his admission that plaintiff’s counsel, prior to the filing of the suit, tried to ascertain his attitude respecting plaintiff’s wages (i.e., whether he regarded the payments as compensation or not) and Atkins’ refusal to commit the Department by asserting that this was a matter to be determined by the Court.

Obviously, Atkins’ attitude that the Court would have to decide the matter can be viewed only as a refusal of the Department, of which he was the head, to pay compensation and this is particularly so when consideration is given to his statement that plaintiff was assigned to a patrol car on February 1, 1945, because he was needed in that capacity and not for the reason that he was physically disabled at that time to return to his former duties as a motorcycle policeman.

The jurisprudence relative to the prosecution by injured employees of claims for further compensation, where they have returned to the service of their former employer in the same or a different capacity, has been settled by this Court in Carlino v. United States Fidelity and Guaranty Co. 196 La. 400, 199 So. 228, and Thornton v. E. I. DuPont de Nemours & Co. 207 La. 239, 21 So.2d 46. If the employee is actually earning the wages paid him, his suit cannot be dismissed on a plea of prematurity forasmuch as he is not receiving compensation. Such is the case here according to Atkins’ testimony. Conversely, if it is shown on the trial of the plea that the wages being paid the employee are in reality a gratuity and not for the performance of work, then the action will be dismissed as premature — for, in such instance, the payment of the wage is the equivalent to the payment of compensation.

In the instant case, the Court of Appeal has taken a most narrow and technical view of Subsection 1(B) of Section 18 of the Employers’ Liability Act. The opinion reflects the belief of the Court that, in order for an employee to prevent dismissal of his suit on the ground of prematurity, he must show that he has made formal demand on his employer for compensation and that the latter has formally refused. But the statute does not require a demand, formal or otherwise, by the employee and there is nothing contained in our decision in Hall v. Hillyer-Edwards-Fuller, Inc. 187 La. 959, 175 So. 633 (cited and relied upon by the Court of Appeal), which justifies a contrary view. Albeit, the act merely prescribes that the employee allege that he is not being paid compensation and that the employer has refused to pay. And, in Thornton v. E. I. DuPont de Nemours & Co., supra, the court heW that an allegation that the employee was not being paid compensation substantially complied with the provisions of the section, even though it was not specifically charged that the employer had refused to pay.

Again, in the very recent case of Washington v. Independent Ice and Cold Storage Co., 211 La. 690, 30 So.2d 758, 761, the defendants, among other things, sought to have plaintiff’s claim dismissed as premature because, when the suit was filed on October 5, 1945, there was no compensation due him as he had been paid through October 11th. We rejected this contention on the ground that, since the plaintiff had been informed by the defendants that payments of compensation would be limited to 150 weeks (loss of an arm) he was “entitled to have determined immediately upon being informed he was not entitled to receive any more compensation the extent of his disability and his right to further compensation.”

The judgments of the District Court and Court of Appeal for the First Circuit are annulled and set aside and the case is remanded to the Nineteenth Judicial District Court for the Parish of East Baton Rouge for further proceedings in accordance with law and not inconsistent with the views herein expressed. The costs of this Court and those of the Court of Appeal of the First Circuit are to be paid by the defendant, Employers’ Liability Assurance Corporation, Ltd. All other costs are to await final determination of the cause.

O’NIELL. Chief Justice, absent.


text:
    213 La. 78
    STATE v. JONES.
    No. 38798.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Charlie Jones, in pro. per.
    Fred S. LeBlanc, Atty. Gen., and M. E.. Culligan, Asst. Atty Gen., and James T. Burns, Dist. Atty., of Covington, for-plaintiff-appellee.
   McCALEB, Justice.

Appellant was charged, tried and convicted of the crime of perjury. After imposition of a five year sentence by the trial judge, he. appealed to this court.

No appearance has been made here by appellant, either in person or through counsel, and no bills of exception are found in the record.

Under Article 502 of the Code of Criminal Procedure, error not patent on the face of the record cannot be availed of after verdict unless a bill of exceptions has been reserved to the adverse ruling. And Article 558 declares: “Unless the error is patent on’ the face of the record, an appellate court can not consider or determine any question which was not submitted to and passed upon by the trial judge.”

An examination of the transcript does not reveal error in the proceedings-.

The sentence and conviction are affirmed.

O’N I ELL, C. J., absent.