author: Le BLANC, Judge.

text:
    GRADY v. M. W. KELLOGG CO. et al.
    No. 3044.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 10, 1948.
    Rehearing Denied Dec. 23, 1948.
    Writ of Certiorari Denied Feb. 14, 1949.
    L. C. Parker and Frederick A. Scott, both of Baton Rouge, for appellant.
    Taylor Porter Brooks & Fuller and 'C. W. Phillips, all of Baton Rouge, for ap-pellees.
   Le BLANC, Judge.

In this suit the plaintiff seeks to recover workmen’s compensation for the maximum amount allowed under the law at the time of -his alleged accident, Ac-t No. 20 of 1914, for a disability arising out of a right indirect inguinal hernia which he claims to have sustained while the course and scope of his employment by the M. W. Kellogg Company, on August 19, 1947. He is suing both the employer and the employer’s compensation insurance carrier, -the Travelers Insurance Company of Hartford, Connecticut. He also asks for judgment in the sum of $500 or as much thereof as may be necessary for hospital, medical and drug expenses.

The M. W. Kellogg Company is a construction company and at the time plaintiff claims to have been injured, was engaged in construction work for the Standard Oil Company of New Jersey at its plant in Baton Rouge. Plaintiff was employed as a concrete foreman.

He alleges that up to the time of the injury he claims to have sustained on August 19, 1947, he was an able bodied and a physically fit worker but that since the injury which he received in an accident on that date, he has become totally and permanently disabled within the purview o-f the workmen’s compensation law.

In describing the accident he alleges that he was standing astride a concrete firewall, about 18 inches high; that he stooped over to pick up a runway mat made of timber measuring 2 x 10 inches, 16 feet long; that when he lifted -it up he felt a sharp pain in his right groin which caused him to drop the mat and when he finally straightened up he went to the time-keeper and personnel director who sent him immediately t-o the company’s physician, Dr. D. A. Casey. He was examined by Dr. Casey and .advised that he 'had a bad muscular sprain or rupture; that he was to go home and rest for the balance of the day which he did, and on the third day following when he attempted to resume his work found that he could not continue. He telephoned Dr. Casey who then called on him and advised him that he had a hernia and needed an operation immediately. He was advised the following day by Dr. Casey that arrangements had 'been made for the operation within the next few days at one of the local 'hospitals, but he told the doctor that he was not willing to undergo any operation at that time because of the serious condition of health his wife was in.

He then alleges that Dr. Casey persisted in his being operated on and that he was equally as persistent in refusing at that moment because his wife was in the last stage of pregnancy, whereupon Dr. Casey asked him what, 'he would do if he (Dr. Casey) would say that he had had this hernia for a year and a half.

He next alleges that Dr. Casey reported in his surgeon’s report to his employer -that he had injured himself while walking and his foot had slipped, and further reported that he had had this hernia for one and a half years which statements made by the said physician were absolutely false and untrue. He then alleges, in effect, that because he would not submit to an operation, he was subjected to veiled threats and coercion and that the attempt of Dr. Casey and his employer, the Kellogg Company, as well as the insurance carrier, .to make it appear that he had stated that he ■had had this hernia for a long period before, is an effort to force him to submit to an operation which the law does not require him to do.

He alleges demand for compensation as set out in his petition and for medical and hospital expenses without avail, and prays for judgment accordingly.

The defendants filed a joint answer in which they -admit plaintiff’s employment by the M. W. Kellogg Company as alleged, but deny, .for lack of sufficient information on which to justify a belief, those allegations of that article of his petition in which he describes the accident he alleges -occurred on August 19, 1947, although they admit that he had reported that he had been -involved in an accident and had been referred to Dr. Casey. They then set out that upon examination, Dr. Casey discovered that he was suffering from a hernia and advised him .to rest the remainder of that day; .that plaintiff stayed at home and on the following day returned to work but, did not remain on the job. They further aver that later on, Dr. Casey, in the course of making his calls, v-is-ited plaintiff at his home and advised 'him .that he should have an operation. They deny that Dr. Casey made any statement whatever about reporting .that he would say that the hernia was one of long standing but that plaintiff himself told Dr. Casey that the hernia had developed more than a year prior to that date. They aver further that the report made by Dr. Casey contained the direct statements made by the plaintiff to him.

Further answering, the defendants allege that on or about August 19, 1947, plaintiff reported to Dr. Casey, complaining of a sprain of his right side and back and that in the course of his examination, the doctor discovered a right inguinal hern-ia. That plaintiff returned to his home and -remained there the rest of the day and on the following day returned to work; that he again returned to his home .that day whereupon Dr. Casey advised the defendant, Travelers Insurance Company, that plaintiff was suffering from an old hernia and asked if an operation was desired; that the insurance company, although in no way responsible for the old hernia reported by the doctor, authorized the operation for fear that plaintiff would later sustain a strangulation of the hernia. That through the course of the conversation with plaintiff, when Dr. Casey advised that he should have the -operation, plaintiff stated tha-t he had been suffering with the hernia for one and a half years and stated further that the family desired that he should have the operation in Texas a-nd asked if it could be delayed until he could go there. That on August 22, 1947, plaintiff visited the representative of the insurance company who advised him that the company would pay the -costs of the operation and pay him compensation during the period of his disability. That during the course of this conversation he stated to the representative of this insurance company that he desired to have the operation at the home of his family in Texas, all of which was agreeable to the insurance company, That plaintiff then asked for a cash ad-vancc to pay some obligations he owed, before leaving for Texas, whereupon ;the insurance agent advised him that he would have to take that request up with his superior in New Orleans, which he would do and give plaintiff a reply on his return to Baton Rouge on the following Monday, Before he could do that, however, plaintiff employed the attorney who is presently prosecuting this case, who called the representative of the insurance company, stating that plaintiff would not submit to an operation but would accept a cash settlement. The representative of the insurance company refused to make a cash advance or to pay the amount demanded in the settlcmcnt because from the information available, the defendant was not responsible or liable to plaintiff in any way. .

On the issues as thus made up by the pleadings, the case was tried in the district court and resulted in a judgment in favor of the defendants, rejecting plaintiff’s demand and dismissing his suit. The trial judge expressed his conclusions in a very few lines stating that he was not satisfied from the evidence that plaintiff, while in the employ of the Kellogg Company and while performing any duty for that employer, experienced an accident wherein he sustained an injury. He stated that there is no doubt but that plaintiff suffers from a hernia, but that the preponderance of the evidence is to the effect that plaintiff had this hernia before he was employed by the defendant. With regard to proof of an accident, he stated that the courts have held -that the statement of a plaintiff will suffice to prove an accident, provided the surrounding circumstances tend to corroborate his statement. In this case, aside from the complaint made by the plaintiff at the time, of the alleged accident, he found no convincing circumstances tending toward corroboration. From the judgment rendered, the plaintiff has taken this appeal.

We are confronted in this case with two propositions, either of which is determinative of the issue that is presented to the court. The first is whether or not plaintiff has sufficiently proven an accident, while in the course and scope of his employment by the defendant, Kellogg Company, which produced the injury he complains of. In connection with this proposition, it may be well to state also that it may involve the question of an aggravation of the injury complained of since counsel for plaintiff rather strenuously argues that point. The second proposition is whether or no.t the hernia which plaintiff admittedly is suffering from, was one sustained by him prior .to the time of his employment by the Kellogg Company,

Although on the first proposition the trial judge was of the opinion that plaintiff had not sufficiently proven an accident, we believe that to the extent that the witness, J-oe Higgins, who -was employed with him on the job, testified that he saw plaintiff handling the runway mat anci heard him say that he had hurt himself while handling it, and was given a slip to go to the doctor, that there is some proof, in addition to his testimony that something unusual may have occurred and, giving him the ’benefit of the doubt, it may be that he has shown that an accident of some kind took place. We are of the opinion, however, that the injury he sustained at the moment, if any, was the one he reported to Dr. Casey concerning pain -in 'his right hip and right side and had no connection with the hernia he is suffering from.

It is important to note that plaintiff, bc-sides alleging that he was an able bodied and a physically fit worker, not only testified to that fact himself but seemed to. have stressed that point in his proof by producing witnesses to state that they also knew him to be a hard working individual who, although being a foreman on the job,, very frequently did hard labor himself, The object of all .this proof, no doubt, was to bring out the point that before August 19, 1947, plaintiff was able to do. hard work and unable to do any of it after that date. In connection with .this question it is to be noted also that the Kellogg Company did not require a pre-employment examination of the men hired by it and there is no record of whether plaintiff was suffering from a hernia or no.t at the time he was employed. The lack of such pre-employment examination is not a reflection on this employer, as it seems, from the testimony, that the unions, or at least the one covering its employees, did not permit such examinations.

As stated, the point about plaintiff’s physical ability prior to the date of his alleged accident, as compared to his physical condition afterwards, is strongly stressed but it is shown by .the'record -in this case, that there were at least four or five men employed on this very job who were working while suffering with hernias and we believe that it is a matter of common knowledge that many men do heavy work even under such physical handicaps. It is certainly not a good thing for them to do, but nevertheless, they do it. Therefore, we are not so strongly impressed with that point in this case and believe rather .that the vital question is whether or not the proof is sufficient to show that plaintiff had a hernia before he was employed by .the defendant employer.

That point presents a question of fact ■on which the trial judge concluded, .from ■the evidence in the record, .that he did have such a hernia. He did not comment ■on the testimony but we are sure that he based his conclusion on that of the several witnesses who testified that the plaintiff himself had told them that he had sustained a hernia before, when he was in Texas. Of course, plaintiff contradicts the testimony of all of these witnesses and attempts to have the court believe that they so testified because all of them have some ■sort of grievance or prejudice against him.

The most important testimony on this point is that of Dr. Casey. Whilst Dr. 'Casey is referred to by the plaintiff as the company’s physician, meaning the defendant’s doctor, the proof is also to the effect that Dr. Casey was the plaintiff’s own personal family physician also. He not only .treated the plaintiff himself but he also attended plaintiff’s wife during her pregnancy and delivered her of a baby after the alleged accident took place and even after all this controversy over an operation with which plaintiff .tries to impress the court, had taken place. There is no motive we can think of which would have prompted Dr. Casey to go to the extent plaintiff says he did to insist that he be operated on. No doubt he suggested ■and advised that on account of the seriousness of his hernia, plaintiff should have the operation. This however is exactly the same recommendation that was made to him by Dr. J. E. Lawton, Dr. John T. Lewis, and Dr. Jeff McHugh, all of whom plaintiff consulted after Dr. Casey had seen him.

In his petition plaintiff made a statement which, in our opinion, reflects very seriously against Dr. Casey’s professional •integrity when he alleged that the doctor, with a view of coercing him into an operation, asked him what he would say if he, Dr. Casey, would testify that the plaintiff had had this hernia for one and a half years. In his testimony, plaintiff does not go -that far and whilst he still insists .that Dr. Casey seemed to have it in for him because he did not take the operation, we still don’t understand what would prompt any doctor to act in that manner. Dr. Casey seems to1 be a reputable physician, in good standing, in .the City of Baton Rouge. He frankly states that he was examining plaintiff for a pain he was complaining of in his side and it was in that examination that he discovered that he ■had a hernia. He states that plaintiff seemed to have had some reluctance to lower his trousers and that, no doubt, created a suspicion in Dr. Casey’s mind about •a hernia. It is to be noted that plaintiff does not deny this but explains it by saying that he was wearing his boots and that made it difficult for him to lower the 'trousers. In the absence of a more reasonable explanation, that incident is a circumstance which corroborates in some measure, Dr. Casey’s statement that it was ■the plaintiff himself who told him 'that he had had this hernia for one and a half years.

Four other witnesses testified that plaintiff had made a similar statement to them about having this hernia prior to his employment by the Kellogg Company. Three of these witnesses are still connected with the Kellogg Company and to that extent it is urged, on 'behalf of the plaintiff, that they were interested in having testified that way. The fourth of these witnesses is a man by the name of Thomas F. Black who no longer has any connection with plaintiff’s former employer and who is a man seventy years of age. Plaintiff would ■have the court believe that Black was prejudiced against him because he owed him some money and Black had attempted to garnish his wages. It is not disputed that the plaintiff owed Black and no doubt Black was attempting to collect from him. There even was a threat at a garnishment during their employment by .the Kellogg Company which was discouraged by the company. Nothing further was done about it and Black seems to have relied, up to now, on plaintiff’s promise to pay. If anything, it'would seem that Black, if he was trying to get his debt pa-id, would testify in a manner that would help plaintiff in this litigation rather than telling what definitely impresses us as being the truth.

On this controlling point in the case, in addition to the testimony which we have so far analyzed, we find this part of plaintiff’s own testimony strongly significant. On being questioned by the court regarding the testimony of these various witnesses, he was asked if in his opinion they had gotten the information on which they based their testimony from Dr. Casey. This is what he answered: “If they didn’t, I (-don’t) know where they got it. I won’t say I did have a hernia, or I didn’t. If I did have a hernia, I didn’t know it.” We construe .this statement as very near an admission on his part that he did have ■the hernia prior to his employment. In other words, he doesn’t specifically admit ■it, but he doesn’t deny it. His testimony gives weight to the testimony of the various witnesses who s-aid he had told them about a hernia and strengthens the conclusion reached by the trial judge with which we agree.

The qualified part of the quoted statement by plaintiff, to the effect that if he did have a hernia, he did not know it, might in a way, provoke the thought of an aggravation of injury. W-e are convinced however that since he does not deny that he had the hernia and since the testimony is so strong otherwise, we cannot make this out .to be a case of an aggravation. It has been held by the courts that a hernia is a disabling condition, no matter in what stage it is found at the time of the ■complaint. In this case, however, the proof that it existed prior to his employment by the Kellogg Company and that it was such a dangerous condition at the time he was examined by the several doctors who testified, leads to the conclusion that it was a fully developed and disabling hernia before, and consequently -there is no ground on which a claim of an aggravation of an existing dormant condition can be entertained.

The judgment appealed from is .affirmed at the costs of the plaintiff, appellant herein.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    ONCALE v. LANDRY et al.
    No. 3052.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 10, 1948.
    Rehearing Denied Feb. 2, 1949.

      Taylor Porter Brooks & Fuller, of Baton Rouge, for appellants.
    Porteous & Johnson, of New Orleans, and A. L. Talbot, of Napoleonville, for appellee.
   ELLIS, Judge.

Plaintiff has filed this suit in which he is seeking to recover damages for personal injuries as a result of an automobile collision between an Austin automobile in which he was a guest passenger, and a truck-trailer being driven by the defendant Ulysee Landry and owned by Leo Cafiero, Inc., and which collision occurred -about one mile north of Napoleonville, Louisiana, on Louisiana Highway 29 at about 9:30 P. M. on June 8, 1946, near a road house known as “Nicky’s Place.” Also sued is the insurer of the Cafiero- truck, the Maryland Casualty Company.

The Austin automobile was being driven by Alcee J. Gautreaux, who was killed instantly in the collision. His mother, Mrs. Alcee J.. Gautreaux, has filed suit against the -same defendants in which she seeks to recover $23,350 for loss of love, companionship and affection, future support, funeral expenses and the value of the Austin car which was destroyed. Both cases were consolidated for the purpose of trial and separate judgments rendered.

In the instant case, while the plaintiff alleges in -his petition nine separate and distinct acts of negligence on the part of Ulysee Landry, driver of the truck, as the proximate -cause of the accident, as well as seven separate and distinct violations of the State Highway Regulatory Act of 1938 as amended, Act No. 286 of 1938, as amended, which acts of negligence were denied by the defendant in its answer, and in which the defendants also charge in the alternative that Alcee Gautreaux, the driver of the Austin, and George F. Oncale, plaintiff herein, were guilty of negligence and carelessness proximately causing or contributing to the accident by certain acts of commission and omission, the case narrows down to a single question of fact. The plaintiff contends that the truck, when within about fifty feet of the Austin -suddenly swerved over into the Austin automobile’s proper lane of traffic, striking the Austin and demolishing same. The defendants contend that the Austin s-werved into the truck’s proper lane of traffic and struck the -truck.

Plaintiff, in his petition, itemized his damages which, he alleges, total $55,500, as follows:

1. Being rendered unconscious for a period of five days.. $ 1,000.00
2. Fracture of the skull. 5,000.00
3. Fracture of the roof of the mouth .. 1,500.00
4. Fracture of the bones of the right side of the face.... 2,500.00
5. Lacerations of the right forehead . 250.00
6. Contusions- of the chest.... 250.00
7. Pain and discomfort while in the New Orleans Army Hospital until July 14, 1946 . 500.00
8. Pain and discomfort while in the Brook General Hospital, from July 14th, 1946 to September 20th, 1946 500.00
9. Severe headaches which have continued to the present time . 2,500.00
10.Numbness to the right side of the face and forehead which continues to the present time. 1,500.00
11. Pain in the right side of face, right forehead and roof of the mouth which continues to the present time . 1,500.00
12. Loss of vision in right eye for three months after the accident . 1,000.00
13. Diplopia (double vision) which petitioner’s sight returned which continues to the present time, usually when petitioner first wakes up in the morning 2,500.00
14. Permanent disfigurement on account of scar on the right side of forehead, approximately three and one-half inches in length which extends from the outer angle of the eye to the hair line. 2,500.00
15. Permanent disfigurement on account of three healed wounds and scars on the right forehead varying from 1% to 3 inches.... 1,500.00
16. Permanent disfigurement on account of six visible healed scars on left side of face varying from' J4 to 2 inches . 1,500.00
17. Lacerations and scar 1% by 54 inch, medial surface, right knee and pain and suffering in right knee which continues to the date of the filing of this petition . 2,500.00
18. Permanent depression and disfigurement over the upper part of the right molar bone, resulting in loss of the supportive tissue of the right cheek which gives petitioner a sunken appearance and changes his facial contours, and pain which continues to the present time in connection with the above... 3,000.00
19. Loss of four upper teeth and pain in connection therewith . 1,500.00
20. Irregularity of the right frontal bone due to callous formation over this area and extreme tenderness on pressure over this area... 1,500.00
21. Scar in the right posterior axillary line due to a brush burn which has healed... 500.00
22. Injury at the 4th and 5th ribs anteriorly on the right side of the chest which still causes pain on pressure . 500.00
23. Damage to petitioner’s brain due either to a laceration, concussion or contusion of the brain which damage and injury is permanent and according to Dr. Richard L. Buck, employed by the defendant, Maryland Casualty Company “following an accident of this type there is fairly often some pressure which may later on give rather severe symptoms and patient at present complains of rather severe headaches, especially with atmospheric changes. If there should be any pres1sure due to callous formation, there is always the possibility that patient might develop epilepsy or some other evidence of brain damages or brain pressure,” for which petitioner is entitled to the sum of .'. 10,000.00
24. Future pain, sufferings and disability in connection with the above 23 paragraphs, itemizing petitioner’s extensive injuries... 10,000.00

The case was duly tried and the judge with written reasons rendered judgment in favor of the plaintiff and against the defendant, Ulysee Landry, and the codefend-ant, Maryland Casualty Company, the insurer of the truck, in the full sum of $23,000 together with legal interest from date of judicial demand until paid, and for all costs including that of the expert medical testimony. From this judgment, the defendants have appealed and the plaintiff, Oncale, has answered the appeal asking that the judgment be affirmed on the merits but the 'award increased to $35,000.

The facts reveal that the plaintiff George T. Oncale was in the U. S. Army and on the date of the accident, June 8, 1946, was at home on leave, and about 4:30 or S :00 in the afternoon, he and Alcee Gautreaux, the driver of the Austin, left the latter’s home and were going to Napoleonville, and when they got about two miles from Napoleon-ville the fan belt on the Austin broke and, as they could not obtain one in Napoleon-ville, they started to Donaldsonville, Louisiana. They got within one-half mile from Donaldsonville where Alcee Gautreaux’s brother owned and operated a night club known as “The Shamrock Club” where the plaintiff stated that he and Gautreaux drank two beers, ate supper and sat around and talked to some girls from approximately 7:00 P.M. to 8:45 or 9:00 P.M. They did not go on into the town of Donaldson-ville as they found out it would be impossible to obtain a fan belt there. When they left “The Shamrock Club” they intended to go to a dance in Labadieville, Louisiana. Oncale testified it .was impossible for them to drive more than fifteen miles per hour due to the fact that they had no fan belt and that the motor would get very hot and it was necessary to stop and cool the motor several times; that they had gotten within one-mile north of the town of Na-poleonville at or near the night club known as “Nicky’s Place” when he noticed two trucks approaching, and that when the Austin car got within about 30 feet past “Nicky’s Place” he saw the second truck and “It just swerved right into us.” He testifies that the Austin was being driven by Alcee Gautreaux on the right side of the highway which is the south bound traffic lane; that the truck struck the Austin mainly on the left side. The pictures introduced in evidence show that the Austin car was completely demolished, however, the right front fender seems to be intact from the pictures.

When the collision occurred, the plaintiff Oncale was immediately rendered unconscious and Alcee Gautreaux, the driver of the Austin, instantly killed.

Ulysee Landry, the driver of the truck involved in the accident, was examined under Act 115 of 1934 and testified that he was 47 years of age; that he wore glasses, however, the testimony reveals that there was nothing materially wrong with his eyesight other than the usual effect of his age; that on the day of the accident he was employed by Leo Cañero, Inc., as a truck driver and had been engaged in this occupation for twenty-eight years. On the date of the accident, Leo Oafiero, Inc., sent two of its trucks to Jeanerctte, Louisiana, to haul a cane derrick back to Donaldson-ville. These trucks were driven by Ulysee Landry, one of the defendants herein, and by Clarence Joseph, who also testified in the case. At the time of the accident the truck involved in the accident was approximately fifty to one hundred feet behind the lead truck being driven by Clarence Joseph. While Oncale estimates the speed of the trucks at 40 to 45 miles per hour, the drivers of the trucks, Landry and Joseph, testified that they were going from fifteen to twenty miles per hour.

Ulysee Landry, the driver of the truck, testified that at the time of the accident his truck was on its right side of the highway proceeding north toward Donaldsonville, 'and that after the accident the Austin was a little over the black center line, “heading on my truck” and that it was necessary to pull the Austin loose from the truck. He further testified that his truck was on its proper side of the road after the accident and that his truck was damaged on the left side, mainly to the front fender, bumper, front spring and steering rod. This witness also testified that he stepped on his brakes “at the crash of the two machines.” Clarence Joseph, the driver of the leading truck, also heard the crash, which would lead us to believe that the two trucks were rather close together at the time of the accident. There was some testimony that the driver of the lead truck, just prior to the accident, had stepped on his brakes as Ulysee Landry saw the red lights come on on this truck, and also testimony by Landry to the effect that Clarence Joseph had stated to him after the accident that a car had pulled out into the highway in front of him, however this is denied by Clarence Joseph and there is no testimony that any car pulled out into the highway. There is no definite reason proven as to why the truck would suddenly swerve to <’ts left and run into the Austin. There are many witnesses who testified -that they saw skid marks on the pavement at the scene of the accident, varying in length from fifteen faet to one hundred eight feet. All of these witnesses testified that the skid marks that they saw began to the left of the center line of the highway facing north and continued up the highway, some testified to where the truck was stopped, and others in the direction that the truck was stopped. Some of the witnesses positively identified ■these skid marks as traceable right to the truck involved in the accident.

The witnesses in the case estimated the distance between the Austin and the truck, where they came to rest after the accident, from 15 feet from the rear end of the trailer part of the truck to the Austin, up to 150 feet from the front part of the truck to the Austin. One witness, Sheriff Richard, estimated the length 'of the truck and trailer to be around 80 feet. Both vehicles after the accident were on the left hand side of the highway looking north, which would be the right side for the Austin automobile but the wrong side for the truck. The evidence further shows that on the night in question, cars were parked all around this night club and on the shoulders on both sides of the highway. While both drivers of the two trucks testified that after the accident the truck which Landry was driving was on its proper side of the highway, and that the Austin had to be pulled loose from the truck, there is positive testimony from witnesses who rushed out of the night club at the sound of the crash that the Austin and truck involved in the accident came to rest as above stated, and testified positively that the Austin was not fastened on the truck, nor was it necessary to pull the Austin away from the truck. Dennis Earl Diaz testified that he was in “Nicky’s Place” that night, had gone there to eat supper and had parked his car on the other side of Cotton’s driveway, which is sometimes referred to as Harvey Blanchard’s driveway, about 12 feet off of the concrete highway, and that he heard the crash of the impact and said to his friend, “It might be one of our cars,” and when he got out there, “I saw that my car got hit,” and that his car had been hit in the back and had run against a tree in front of it and “the wheel was broken, the fender was bent, and the taillight was broken,” and the damage amounted to $14.25. He testified that the little Austin must have hit his car •as it was right in the back of his car. He was asked: “Plow close from the back,” and answered, “About, after it hit my car it run against a tree, about six feet.” He also saw the truck up the highway on the same side as the Austin. Therefore, taking this testimony and the testimony of the other witnesses who came out of “Nicky’s Place” immediately after the wreck and who testified to the position of the Austin and truck at that time, it completely disproves the statement of the truck drivers that the Austin was fastened on the truck and that the truck came to a stop after the accident on its right side of the highway.

The Sheriff of the Parish, Mr. Fernand Richard, testified that he went to the scene of the accident a very short while after it happened and that the truck and the Austin were “100 and some feet apart;” that he observed skid marks on the pavement which “started a little before they got to the Austin until where the truck was stopped, about a 15 degree angle,” and “ended at the truck wheels.” He further testified that these skid marks began on the left side which is the south bound or west traffic lane of the highway. The Sheriff testified that he had a conversation with Ulysee Landry, one of the defendants and the driver of the truck and that when he talked to Landry, Clarence Joseph, the driver of the other truck was also sitting on the running board with Landry, and Landry at that time said “he went blind” and “he don’t know what happened, he was ■blinded.” He also testified that Landry told him that the truck had not been moved at the time he got there. The Sheriff tried to obtain more details of the accident but that is all that Landry said.

The defendants also offered the testimony of Mr. Minor J. Waguespack, who was a trooper with the Department of State Police on the date of the accident and, who arrived at the -scene at approximately 10:15 or 10 :20 P.M. At the time that he arrived there, however, the truel had been moved. He testified, “I couldn't find, any marks or the direct point of contact, and after being- told that the vehicles had been moved, I didn’t look for any more then, because after the vehicles had been moved I couldn’t establish which vehicle had caused the marks. All the cars were going- in and out and they would all apply their brakes.”

In the report of this accident made ‘by Trooper Waguespack, he stated:

“Indications are that the Austin car pulled to the left to -pull into Nicky’s Place and seeing he couldn’t make it, pulled to the right and could not pull out of the truck’s way.”

There are no witnesses who testified that •this was the case, and Mr. Waguespack himself testified that he only talked to the truck driver, Ulysee Landry, and from this conversation he concluded that this was what happened. There being'not one word of testimony or facts in the record to show that the Austin turned in toward Nicky’s, this portion of the report would have no probative value. Further, -we have an absolute denial by the plaintiff, Oncale, that they intended to go to Nicky’s. He positively testified that -they were going straight on to a night club at Labadieville, which was only ten miles from Nicky’s Club.

Counsel for defendants, in their brief, contend “that the judgments of the Trial Court were manifestly in error and should be overruled by this Court for the reason, first, that neither of the plaintiffs sustained the burden of proving his case, and, second, (alternatively), if the defendant be liable to either plaintiff which is denied, the quantum of damages granted is grossly in excess of that due.”

Taking into consideration the testimony of Landry that he applied his brakes at the moment of impact, and the testimony of the various witnesses who testified as to skid marks, apparently made by the truck, that they began to the left of the center line of the highway looking in a northerly direction, which would be in the west lane of traffic, the proper lane of travel for the Austin, and the testimony of the two truck drivers that the two vehicles were fastened together and had to be pulled loose, which is amply proven not to be true and which could not be true as the Austin' car proceeded on across the highway and struck another car before coming to rest, we can see no manifest error from the testimony in this case in the judgment or reasoning on the question of liability.

The record reveals that as a result of the accident on June 8th, 1946 the plaintiff On-cale was taken to the New Orleans Bomber Base Hospital where he remained unconscious from five to eight days. He stayed in this hospital -approximately six weeks before being moved to the Brooks General Hospital in San Antonio where he remained approximately nine weeks more. Fie testified that he received a fractured skull, a right eye injury so that he could not see for three and one-half months, that at the date of the trial his right eye was lower than his left; also a fractured palate, fractured cheek bone, four teeth knocked out, his knee was cut and still pained him, two ribs broken, and he still complained, on the date of the trial, of pains in his chest, and that he had cuts on both sides of his face. He testified that as a result of the accident he had diplopia (double vision) in his right eye, severe 'headaches constantly and he suffers pain when he eats as a result of the fracture of the roof of his mouth, and that he had lost the ability to smile due to a nerve injury and resulting muscular weakness; that one side of his face is numb, that the pain was extreme and that it was necessary during the entire time he was in the hospital to be relieved with opiates. He also testified he was on a liquid diet for four months and that at the time of the accident he weighed 190 pounds and after the accident he lost fifty pounds, however, on the date of the trial, approximately two years after the accident, plaintiff weighed 180 pounds. Plaintiff was operated on twice, the last time in the Army Hospital in Panama where he was confined and remained in the hospital for approximately fifty days at that time. Plaintiff testified that this operation was necessary as he “had some bones and a tooth that was mashed in there and infected my sinuses,” which was attributable to his accident. Plaintiff also, on the date of the trial, testified that he could not sleep on his side due to pain but that if he slept on his back he didn’t suffer any pain.

Dr. Shirley Lyons testified as follows:

“Q. And what did you find in connection with the first office visit for examination? A. May I just read my findings here? That’s about all I have to go on.
“Q. Yes, sir. A. Old lacerated wound of the right upper palate, four upper teeth on the right missing and replaced by a bridge; three lacerated wounds of the right forehead, one and a half to three inches .in length; six visible scars on the left side of the face running from one quarter of an inch to two inches; two lacerated wounds on the right side of the face; right axilla, a depressed scar one inch by three quarters of an inch; there was clinical evidence of an old fracture of the right frontal malar bone. He complained of marked tenderness of the right frontal region and of the right face on examination. There was a depression of the upper part of the right malar bone, resulting in the loss of support of the right face, giving the patient a sunken appearance and changing his facial contour. The patient complained of double vision, severe headache and an anesthesia of the right upper lip. General examination otherwise was normal.
“Q. What was your conclusion, Doctor ? A. Patient had received severe injuries as described above with resulting permanent scars and deformities described and a neurological examination recommended.
“Q. Who did you recommend for a neurological examination, doctor? A. Dr. Anderson or Dr. Carr.
“Q. Both of these are outstanding gentlemen in their profession, I suppose? A. Yes, sir, they are.
“Q. Doctor, the plaintiff gives a history of having been rendered unconscious for a period of five or possibly eight days. Would this prolonged period of unconsciousness indicate to you a serious injury? A. It would.
“Q. What sort of injury would it indicate to you, as an expert witness? A. Well, it would indicate severe injury to his brain and probably a fractured skull. Of course, we know from his clinical examination he had a fracture of the malar bone and frontal bone.
“Q. What fracture of the skull did he have, Doctor? A. I wouldn’t have that except from Dr. Anderson’s interpretation from his own history.
“Q. There was definitely a fracture of the roof of the mouth that you could determine? A. Fracture of the roof of the mouth and the malar bone and fracture across the frontal bone. All that would indicate that he had a fracture, probably at the base of the skull. I don’t have any way of confirming that by my examination without examination of his hospital record.”

Dr. Lyons further testified that at the time of his examination a period of two years had passed from the date of the accident and it was his opinion that the plaintiff would probably suffer pain permanently. There was no doubt in Dr. Lyon’s mind but that the plaintiff genuinely suffered pain as a result of his injuries'and, in fact, all of the doctors were of the opinion that the plaintiff was intelligent and conscientious, with the- exception of Dr. Buck who thought possibly he was over-emphasizing his pains.

Dr. Gilbert C. Anderson, nerve specialist, who also testified on behalf of the plaintiff that the pain which plaintiff complained of in the right side of the face, accompanied by numbness and abnormal sensations when touched was genuine, and also the complaint by plaintiff about the roof of his mouth being very painful at the -site of a fracture in the hard palate was also true. Dr. Anderson was asked to sum up his neurological findings in the case and he testified as follows:

“Q. Would you be good enough to sum up for us, if you please, your neurological findings in this case? A. Yes, sir, I’ll be glad to. I thought that there was some muscular weakness of the side of the face and that that might be due to a brain injury. The numbness and the pain in his face and the paresthesia of which he complained, and by that I mean the tingling, needles and pins sensation or electric shock that he said he felt when his face was touched. Those things I thought would probably be more likely associated with an injury to the fifth nerve in connection with the fracture that he had of the malar 'bone, and the pain of which he complained on upward gaze, I also thought was probably associated with that fracture or with scars as a result of that fracture, rather than to a brain injury. The soreness and pain that he had in his mouth, I would not consider particularly a neurological question and neither would I consider the fit or the comforts of his denture. I believe that the eye and the face probably constituted the abnormal neurological findings.
“Q. When you speak of “neurological findings”, you mean brain findings? A. The nervous system, without particular reference to the tractus of bones and deformities or things of that sort.
“Q. Did you attribute the muscular weakness of the face being limited to the lower portions, did that suggest that it might be of accidental origin and due to a brain injury? A. Yes, I just mentioned that in my previous reply.
“Q. Yes, sir. Doctor, after this length of time, could you prophesy how long the brain injury might last, considering that nearly two years have elapsed since the date of the accident? A. Well, in a healthy vigorous young man of twenty-three, usually the maximum amount of recovery would be expected by this time.
“Q. Well, has he recovered, Doctor? A. Well, he still has that weakness there.
“Q. You mean that brain weakness? A. Muscle weakness that I think may be due to the central lesion or brain condition.
“Q. Would it be reasonable to say at this time it would be very difficult to prophesy how long these will persist, inasmuch as they have shown practically no improvement after nearly two years?
“Mr. Brooks: I object to that as an assumption of a fact not proven.
“Q. You may proceed, doctor. A. I think it will probably be permanent after that length of time but you can’t be sure of that.”
“Q. Now, you described the type of examination that you made and went into some detail with reference to the twelve cranial nerves. Did you find all of those nerves normal? A. There were abnormalities in connection with the third— probably the third and the fifth and the seventh.
“Q. What were the abnormalities with reference to the third? A. That would be with reference to the diplopia, the double vision of which he complained and that is probably through one of the muscles supplied by the third nerve but not necessarily due to the nerve itself.”
“Q. With reference to the fifth cranial nerve, I believe you stated there was some abnormality present? A. Yes, sir.
“Q. What was that? A. That nerve that supplies the sensation to the side of face and part of the scalp. What he complained of was numbness in the side of the face.
“Q. Did you establish that? A. I established that by the usual methods of examination, which again is subjective. You ask the patient if he can feel it and he says yes or he says no.
“Q. So when he said he could not feel it, you assumed that he could not feel it? A. That’s 'about as well as you can do in that kind of examination.
“Q. That’s the only abnormality you found then? A. Well, in reference to the fifth cranial nerve, he complained of these electric like spreadings of sensation when you tap him or touch his face.
“Q. Did you establish that? A. Just the same way.
“Q. By subjective symptoms only? A. I tried it and he said he felt it.
“Q. Now, what about the seventh cranial nerve? A. That was where I saw a slight weakness of the right side of the face.
“Q. You saw that yourself ? A. I saw that myself; that was objective.
“Q. That was slight you said? A. Yes, sir.
“Q. You think that’s temporary? A. No, sir.
“Q. What is the cause of that? A. I don’t know but I thought that might be due to his head injury' — -to his 'brain damage.”

Dr. Richard Buck who testified on behalf of the defendants, found the same injuries as Doctors Lyons, Anderson and Bahn. He testified that the patient showed evidence of very severe traumatic injury which consisted of a fracture of the right frontal bone, fracture of the right maxillary bones extending through the roof of the mouth, and that there was some deformity of the face, due to the accident, however, it was not marked nor disfiguring. There was a difference in the level of plaintiff’s eyes, however, it was not noticed by Dr. Buck nor by Dr. Anderson. Dr. Buck was of the opinion that plaintiff was endeavoring to impress him with the severity of all of his symptoms. He did not doubt that he suffered headaches and some tenderness in the areas of the fractures of the upper lip but merely did not believe that they were as severe as plaintiff wished him to believe. He thought that plaintiff would reach maximum improvement in four years, whereas Doctors Anderson, Lyons and Bahn were of the opinion that plaintiff had already reached the maximum improvement.

Dr. Charles A. Bahn, prominent ophthalmologist, testified on behalf of the plaintiff. He found that the diplopia or double vision was permanent. He testified as follows:

“Q. What was your diagnosis of the right eye? A. The right eye showed a presis of the inferior oblique muscle which corresponds with the fracture shown apparently in the x-rays which were made on this patient. The second diagnosis was a right facial anaesthesis, that is, numbness which is due to injury of the fifth nerve. The third diagnosis was a right facial muscular weakness, that is, his mouth was drawn to the side and his eyes did not quite close so well due to a seventh nerve injury.
“Q. You said that the right facial an-aesthesia was due to a fifth nerve injury? A. That’s right.
“Q. What was your prognosis in this case ? A. The fact that a year and a half "■ had gone by since the injury, meant that any change which occurred would probably be for the worse, meaning that normal healing had completeely taken place and that as we get older, obviously these sick parts wear out faster with age than normal structural and functional parts.
“Q. Do you mean by this, Doctor, that if this young gentleman had never had an accident, there wouldn’t be as much deterioration in the future as you anticipate there will be because of this accident? A. The deterioration, of course, in a case of this sort is, one might say, potential. It is impossible to know exactly how much will occur in say ten or twenty years but we do know that parts which are defective, structurally or functionally, are much more prone to the degenerative changes of age.
“Q. Do you mean by that that these degenerative changes with age are more likely to occur quicker or faster with a young man who has had such an injury than they would with one who had not had such an injury? ’ A. Exactly. These changes are more likely to occur earlier and also to be more severe if they do occur.
“Q. Doctor, what have you got to say with reference to the fracture of the malar bone involving the floor of the orbit? A. This fracture of the malar bone which i-s, of course, the cheek bone, especially prominent in Indians, involving the floor of the orbit, that is, the boney box in which the eye is located. This accounts for the lowering of the right eye and also for the limitation of movement caused by a paralysis or injury to the inferior oblique muscle which is located at this point.
“Q. Was that responsible for the inferior oblique muscular weakness? A. Yes, sir.
“Q. Is there any doubt in your mind about the double vision? A. No, there is none.
“Q. Is there any doubt in your mind about the facial numbness? A. No, there is none.
“Q. Is there any doubt in your mind about the facial muscular weakness being directly due and attributable to the injury? A. No, I am sure that those all exist and that they are almost unquestionably due to exactly such an injury as this man describes having had.”

He further testified that glasses would have no effect whatever on plaintiff’s double vision; that it was permanent and would not improve and that he would not pass him for Military Duty. Plaintiff had re-enlisted in the Military Service prior to his accident and injury and it is therefore probable that should it be necessary for plaintiff to subject himself to another physical examination in order to remain in the Army or to re-enlist that he would be rejected on account of his physical impairments. Dr. Bahn was also of the opinion that plaintiff “is taking risks with his eyes and the time will probably come when his double vision will cause injury to himself or someone else especially in a military capacity.” Under the facts it would probably be difficult, if not impossible, for the plaintiff to pass a physical examination for industrial work.

From the testimony, there is no doubt that plaintiff has suffered severe and disfiguring injuries resulting in a permanent injury to the sight in his right eye, permanent nerve and muscular injuries, a brain injury which, while not probable, could possibly result in epilepsy, and as a result of the accident he suffered excruciating pain which entitles him to a substantial award as damages.

Counsel for plaintiff strenuously argues that plaintiff is entitled to damages comparable to those received by the plaintiff in the case of Weadock v. Eagle Indemnity Co., La.App., 15 So.2d 132, 143. In that case the Court found plaintiff’s injuries to be:

“The physical injuries sustained by Wea-dock were of a most serious character, but were confined to the face and mouth. The face was mashed in, particularly the right side and the nose. His attending nurse described his injuries in this way: ‘His face was mashed as if you had mashed a potato or dropped an egg and broken it.’
“His condition was such that the doctors at first were doubtful he would survive. Brain concussion produced unconsciousness • for eighteen days which was followed by twelve days of semi-consciousness. There was also contusion of the brain, which means that it was bruised. He remained in the sanitarium until December 24th and was then taken to- his parents’ home. For five weeks food was given intravenously and thereafter, for six months, food was ground in order for him to swallow it. There was a five inch laceration over the right eye running into the hair; a lip was incised; the bony socket of the right eye was fractured and pushed backward; the lower right jaw was fractured, and many of the teeth were loosened. The impact was so violent that the respective positions of the upper and lower front teeth were reversed; that is, the lower teeth now extend beyond the upper in biting, whereas normally, the reverse is true. The right cheek bone was crushed and depressed. Diplopia (double vision) resulted from paralysis of the right superior rectus muscle. This condition may not be relieved by the use of glasses; an operation will do< so. While in the sanitarium edema, swelling of the spinal cord, developed and for a time it appeared that fatal results would ensue;- Punctures of the spine revealed bright blood therein, a certain sign of brain bruising.”

Also, in this case, the plaintiff was taken to Mayo Brothers Clinic at Rochester, Minnesota to learn if his physical condition could be materially improved but was given scant encouragement there. He was then taken to an emminent surgeon, plastic and otherwise, in St. Louis, Missouri, and after a careful physical examination as well as an examination by an oculist and also an otolaryngologist (ear, nose and throat specialist), they found that the cost to attempt to repair his face would be approximately $5,000, which did not include an estimate of $630 for “removing four lower and seven upper teeth, temporary and permanent casts, plus incidental surgical work.” Even after this extensive plastic surgery,'the doctors stated: “This will not reposition the displaced upper jaw but should give an acceptable cosmetic and functional restoration.” Photographs of young Weadock prior to and since his injuries revealed a shocking difference. In assessing damages in this case, the 'Court took into consideration the ability of the defendants to pay and found that there were sixteen solvent surety companies as defendants, and the Court further stated that the decreased purchasing power of the American dollar was a pertinent factor to be taken into consideration in determining the award.

We do not think that plaintiff’s permanent injuries in the case at bar are comparable to those of young Weadock. In view of the extensive physical injuries which were sustained by the plaintiff as a result of the accident and the excruciating pain and suffering which he underwent and ' the permanent disfigurement to his face and sight in his right eye, we are of the opinion that he is entitled to an award of $17,500 for said injuries, pain and suffering.

It is, therefore, ordered that there be judgment in favor of the plaintiff, George T. Oncale, and against the defendants, Ulysee Landry and Maryland Casualty Company, insólido, in the amount of $17,500 together with legal interest from date of judicial demand until paid and for all costs, including that for the expert medical testimony.

As thus amended, it is ordered that the judgment of the District Court be affirmed.


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    GAUTREAUX v. LANDRY et al.
    No. 3053.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 10, 1948.
    Rehearing Denied Feb. 2, 1949.
    Taylor Porter Brooks & Fuller, of Baton Rouge, for appellant.
    Porte.ous & Johnson, of New Orleans, and A. L. Talbot, of Napoleonville, for ap-pellee.
   ELLIS, Judge.

As stated in the suit of Oncale v. Landry, 37 So.2d 395, this is a suit by Mrs. Alcee J. Gautreaux against the same defendants in which. she seeks to recover $23,350 for loss of love, companionship, and affection, future support and funeral expenses for the death of her son, Alcee Gautreaux, who was killed as a result of the automobile collision which has been fully discussed in the above referred to case. This amount also includes a claim of $500, the value of the Austin car which was destroyed.

Judgment was rendered in favor of the plaintiff and against both defendants, in-sólido, in the sum of $10,000.00, together with legal interest from date of judicial demand until paid and for all costs. The defendants have appealed from this adverse judgment and plaintiff has answered the appeal and prayed that the judgment he affirmed on the merits but amended so as to be increased to the sum of $15,000.

For the reasons stated in the suit of George T. Oncale against the same defendants, we are of the opinion that the negligence of the defendant Ulysee Landry was the proximate cause of the accident and that Alcee Gautreaux was free of any negligence, and, therefore, both defendants are liable to the plaintiff in this case.

As found by the District Judge, the plaintiff has failed to‘ prove the value of the Austin automobile. However, the record reveals that the deceased son contributed to his mother’s support approximately the sum of $50 per month. She was, at the time of his death, approximately 57 years of age. Alcee Gautreaux, her son, was unmarried and lived with her and, from the record, was evidently a young man of good character and attentive to his mother and would take her to church, picture shows and in the car with him. While the record reveals that she had a small grocery store, it also shows that the stock of merchandise amounted to approximately only $200. According to the record, the deceased was practically, if not entirely, her sole support other than this small business.

Plaintiff has proven funeral expenses of $350 and is entitled to judgment in that amount.

We are of the opinion that the judgment of the District Court should be reduced. Taking into consideration the facts in this case and the decreased value of the American dollar, we feel that an award to the plaintiff, Mrs. Alcee J. Gautreaux, for loss of love, companionship, affection and support in the sum of $8500 would be proper, with an additional amount of $350 as Funeral expenses.

It is accordingly ordered that there be judgment in favor of plaintiff and against the two named defendants, insólido, in the sum of $8,850 together with legal interest from judicial demand and all costs in both courts.

As thus amended, the judgment of the District Court is hereby affirmed.


text:
    McCARROLL v. JONES.
    No. 3048.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 10, 1948.
    Joseph A. Gladney, of Baton Rouge, for -appellant.
    Major & Sanders, of Baton Rouge, for appellee.
   ELLIS, Judge.

Plaintiff has filed this suit in which he alleges that the defendant is indebted to 'him in the full sum of $644.71 as a result of an automobile collision in which the defendant ran into the rear end of plaintiff’s jeep. The defendant admits his liability but denies that the damage amounted to $644.71.

The case was tried and the Judge of the District Court, without written reasons, awarded the plaintiff judgment in the sum of $256.39, together with 5% interest from the date of judicial demand until paid and for all costs of suit.

The plaintiff has appealed from this judgment.

The' record in this case reveals that on the afternoon of December 13, 1947, at about 3:30 p. m. the defendant, George Jones, was traveling south on Scenic Highway in his automobile, and plaintiff Mc-Carroll’-s jeep was also being driven south on this highway. The McCarroll jeep was stopped and when the defendant Jones applied his brakes they were ineffective and this was the cause of the collision.

Counsel for plaintiff, on the date of trial, stated that although the plaintiff sued for $644.71 as damages, that actually after the suit was filed the repairs to plaintiff’s automobile were completed and the total amount of damages amounted to $553.85.

On December 15, 1947, the defendant, George Jones, who is a colored man, went to see Sam McCarroll, the plaintiff, with regard to the damages and stated that he wanted to pay and was handed a bill for $379.44, signed on the typewriter “Watts & Behrnes” by Sam McCarroll. This is the amount of damages which Mc-Carroll claimed on that date. Defendant thought that this estimate of damages was high and refused to pay it. Thereupon, on December 18, 1947, Mr. Major, Attorney for defendant, received an estimate of damages, which has been introduced as defendant’s Exhibit 2, amounting to $644.71.

It will be noted from the estimate marked defendant Exhibit No. 1 that there is one Karriall trailer, $182.86, which was the price of a new trailer. McCarroll testified that the trailer was repaired at a cost of $92. The plaintiff admitted that the jeep top had depreciated one-third and, the price of a new top being $96.85, therefore, defendant would be entitled to a deduction of one-third of this price, or $32.-29. Therefore, the District Judge evidently took as a basis of the damages the first bill presented of $3-79.44, and deducted -therefrom $90.86-, which represented -the difference between the price of a new .trailer and the repairs actually made to the -old trailer, and also deducted $32.29, representing the one-third depreciation on the top, leaving a -total of $256.29, whi-ch is the amount for which the Lower Court ■rendered judgment.

The plaintiff contends that the Court erred in its judgment in that the estimate of $379.44 was in the nature of a -compromise offer and was also in error and made too hastily as it was impossible until the damaged parts of -the jeep were taken apart to accurately estimate th-e actual damage. The offering defendant No. 1, in our opinion, is an estimate of damages and not an offer of compromise. There is no -compromise involved where the estimate calls for a new trailer at $182.86 and the testimony shows that the trailer could and was repaired for $92. Furthermore, there is no compromise offer in charging $96.58 where the plaintiff later, on the trial of the case, admits and remits one-third of this amount due to previous depreciation of the top; further, the -testimony is conflicting as to whether this jeep needed an entirely new top. The testimony is very strongly to the effect that nothing was damaged except the back curtain of the jeep top had a hole in it which could have been repaired or, at most, a new back curtain installed.

The record reveals that Watts & Behrnes, Willy-s Dealers, handled jeeps, station wagons, trucks and passenger cars in the city of Baton Rouge, and that Sam McCarroll, plaintiff herein, had been working for them on and off since T940, and, prior to that time, was in the automobile business “-since Model T Days.” He certainly had ample experience and was capable of making an estimate without having -to change it two or three times. -In -one part of McCarroll’s testimony, he testified that he made the first estimate and, in another place, that Mr. Rex Bell made this estimate. Rex Bell is an employee of Watts and Behrnes.

On the final bill of $553.85 there is a charge of $96.85 for a jeep top. As above stated, plaintiff admits that one-third of this amount should be deducted, or $32.-29. While M'cCarroll and Rex Bell, mechanic, testified that the top could not be repaired and had to be replaced, we have the testimony of James Major, attorney for the defendant, and of Walter F. McKenzie, who was in the automobile fender and body repair business and who intended t-o make an estimate of the damages to the jeep for defendant and who -looked at the top, to the effect that they noticed only one hole in the back curtain of the top and that this could have be'en repaired but, at most, all the top needed was a back curtain. Both testified that the iron or metal bowes of the top were not damaged or bent.

On this same bill is “Left rear spring, $8.50” and “removing and replacing left rear spring, $3.50” McCarroll testified that all of the leaves of the left rear spring were not broken, however, in one place he stated that they were bent beyond repair and, further on in his testimoy he said: “Some of them were broken; I am not going to tell you they were all broke.”

Rex Bell, witness for the plaintiff, testified that it was not possible to repair the rear spring. It would seem that the leaves which were not broken could have been used.

Also, on this final estimate and bill there is a charge for “new rear housing, $58.00” and “labor to remove and reinstall new housing, $30.00.” Witness Bell testified that this rear axle housing had to be replaced “because you cannot straighten an axle housing.” This is in direct conflict with the testimony of Walter F. McKenzie, witness for defendant. Fie testified: “We straighten rear axle housings quite often, and you can straighten a housing, and if you have the equipment, you can put it back in as good condition as it ever was, unless it is an exceptionally bad job. From what I could see, this housing could have been repaired and would have been satisfactory. *

On this bill is listed a new hydraulic lift, $225, and labor to remove and replace hydraulic lift, $40. The first estimate had a charge of $100 for “metal work and repairs hydraulic lift & jeep.” There is no positive testimony by any witness for defendant that this item could be repaired or could not. Bell, a witness for plaintiff, testified that it had to be replaced new.

McKenzie, whom we consider as a disinterested witness, testified that when he was requested by the defendant to make an estimate of the damages to the jeep and trailer with a view of repairing same, that he went to the garage of Watts and Behrnes and talked to Joe Behrnes and stated his business, and that J-oe Behrnes then showed him the jeep and at that time told him: “I want to tell you before you . do anything that I am not going to accept any repaired parts on this car. Everything that has been damaged has got to be replaced new.”

Behrnes also told McKenzie at that time that the power take-off and the power lift on the jeep was damaged in the wreck and that the rear axle housing was also damaged and he wanted that replaced new as well as a new top, trailer hitch and a new trailer; that he would not accept repairs. McKenzie then stated that after being told that no repairs would be acceptable, he did not even make an estimate.

McKenzie also testified that he did not see any great amount of damage to the jeep from his examination.

In view of the conflicting testimony as to the necessity for the new parts rather than the repair of the old, we feel that it is doubtful that plaintiff has borne the burden of proof sufficiently to fix a definite amount for the damages, however, defendant does not complain of the judgment of the District Court.

The Judge of the District Court was evidently not impressed with the plaintiffs evidence and accepted the first and lowest estimate of damages as a basis for his judgment, which is not unreasonable in view of the fact that plaintiff did not offer satisfactory proof to show an error in this estimate.

For the reasons herein stated, it i-s therefore, ordered that the judgment of the District Court be affirmed and plaintiff to pay the cost of appeal.


author: LeBLANC, Judge.

text:
    HOLDEN v. EUGINO et ux.
    No. 3051.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 10, 1948.
    Rehearing Denied Dec. 23, 1948.
    Writ of Certiorari Denied Feb. 14, 1949.
    Favrot & Hynes, of Baton Rouge, for appellant.
    Bagwell & Williams, of Baton Rouge, for appellees.
   LeBLANC, Judge.

Plaintiff, a building contractor, sues to recover from the defendants, Dominic Eu-gino and his wife, the sum of $1650.00, the balance he claims to be due him on a contract entered into between them for the construction of a five room residence in the city of Baton Rouge. The contract was for the full sum of $4650.00 on which the defendants had paid $3000.00, leaving the balance claimed. -It was a very short and simple contract dated April 30, 1946, in which plaintiff obligated himself to furnish all materials and labor, excluding that necessary for plumbing, electrical services and painting, for the sum of $4650.00. In the contract as written, there was no time limit placed on the contractor.

Plaintiff alleges that after having performed all the services required of him under the contract for which he had been paid the sum of $3000.00 by the defendants, he was prevented from completing the same by the actions of the defendants in moving into the building before the flooring had been laid, the doors and windows set, all sheet-rock put up and all general inside work finished. He alleges that they moved in over his protestations and with full knowledge of the condition of the house at the time.

The defendants, in their answer, attempt to justify their action in moving in, on the ground that they were to be evicted from the house which they were occupying; that plaintiff had been informed by them that they had to have their house ready and that he had in fact agreed to so have it ready for occupancy at the time they moved in. They further set out that on plaintiff’s refusal to complete their home, they had to have the work done themselves at a cost of some several hundred dollars and they reconvene against him for the sum of $327 for damages for breach of contract, in addition to which, Mrs. Eugino claims the sum of $500.00 for inconvenience and lack of comfort she endured and for the humiliation she was subjected to, causing her to have a nervous breakdown. Those were the issues on which the case was tried and decided in the lower court. Judgment went in favor of the plaintiff in the sum of $500.00 and defendants have appealed.

We think it is important to note that the contract to build this house was entered into on April 30, 1946, at which time, as shown by the testimony in the record, and as is also commonly known, building material was scarce and in certain respects, some of it very hard to obtain unless a person was willing to buy on the black market. We may well suppose that is the reason why the written contract did not specify, a time limit within which this house was to be completed and ready for delivery. We believe however that the proof shows that plaintiff performed the services required of him in as diligent a manner as he could under the circumstances. There is certainly nothing to show that he purposely delayed any part of the work. Although by no means ready for occupancy on the night of July 31, 1946, when defendants moved in, we nevertheless believe that the stage it had then reached was an indication that plaintiff had done considerable work on it during the three months previous to that date. We don’t think therefore, that the defendants had the right to move in and thus prevent him from fulfilling the conditions of his contract unless there was a specific agreement between them entered into subsequently, by which plaintiff bound himself to have the house ready for them on the day they did’ move in. Whether or not there was such an agreement presents a factual question and it is no doubt on that question that the case was decided against the defendants in the lower court.

The written contract being silent as to a date-line for the completion of the house and the defense being a special one that there was an agreement subsequently made between them that the house would be ready on a certain day, the burden of proof fell on the defendants to show that such an agreement really existed. We find that they have failed to carry that burden.

The proof they offered and rely on principally is the testimony of Mrs. Eugino who states that on the night of June 14, 1946, when she gave plaintiff a check in the sum of $1000.00 he told her the house would be ready for occupancy on July 15, definitely, and that acting on the representation he made, she notified her landlady that they would vacate the house they were renting by July 20. In addition to her testimony on this point, they offered that of her father who speaks rather vaguely of having seen the plaintiff one Sunday afternoon in front of the Picadilly restaurant on which occasion he told him that the house would be ready for them when they got ready to move in. They also produced a witness by the name of Sidney S. Day who testified that when they were applying the asbestos siding, plaintiff told him that Mr. and Mrs. Eugino could have the house in two weeks. All of this testimony is contradicted by the plaintiff who states that it would have been unreasonable, in view of the conditions existing in the construction business at that time, to have made any such promises as Mrs. Eugino says he did. We are inclined to agree with him that because of those conditions it would have been a rather rash promise for him to make.

In further corroboration of her testimony on this point, Mrs. Eugino refers to a letter she wrote plaintiff in which she says he was notified of their contemplated moving in the house. This letter is not in the record and its contents are not definitely known. It is not disputed however by the plaintiff that he did receive such a letter from her, but it was dated July 29, 1946, two days before she actually moved in. He says ■that he received it on the 30th and that he tried to see or communicate with Mrs. Eugino to tell her not to carry out her intention of occupying the house but that she was not at home and he never could contact her personally. Mrs. .Eugino moved in at night on the 31st, and he knew nothing more about her actions until he went to work on the building on the following morning.

The main argument made by counsel for defendants appears to be that plaintiff should have protested at their moving in the building, as indeed he had alleged in his petition he had done repeatedly. But if he had made no promises to them to have the house ready, there was no reason why he should have been called on to make any such protest. It seems to be a most unusual and rather unreasonable thing for people to do to move in a house that apparently was so far from being ready for occupancy as was this one. Had these defendants been pressed by some urgent reason for having to have their house ready, that might fortify the position that they had obtained a promise from plaintiff to complete it within a certain time. But no such reason appears and none seems to have existed except the desire of moving into a new home although they knew full well that it was then in no condition to be occupied. This is no better evidenced than by Mrs. Eugino’s invitation to one of her friends to go “camping with them” in their new home. Whilst they made allegations in their answer to the effect that they were threatened with eviction proceedings by the landlady from whom they were renting, they admit on the trial that there never were any such threats made. Mr. Eugino is»a World War veteran and as such enjoyed all the benefits of the G.I. Bill of Rights, among which was security of a home, even though rented, for a period much longer than it would have taken to have their new home completed.

Stress is laid by counsel for defendants on the fact that even after they had moved in, plaintiff never spoke a word to either of them in protest of their action. This, it is urged, can be construed as an acquiescence on his part. But no stronger protest could he have made, than by refusing to work any longer on the house and leaving the job. For our part we don’t understand how they could have expected him to go on with the work with a family of three living in the house, in the condition in which it was.

The only law that is involved in the case is that which concerns the rights of one party to a contract who is prevented by the action of the other party from fulfilling all of his obligations thereunder. In this connection we think that Art. 2765 of the Revised Civil Code is applicable. This article is found in Section 3 of Chapter 3, Title IX. The title of this section is “Of Constructing Buildings According To Plots, And Other Works By The Job, And Of Furnishing Materials”, and the article cited reads as follows: “The proprietor has a right to cancel at pleasure the bargain he has made, even in case the work has already been commenced, by paying the undertaker for the expense and labor already incurred, and such damages as the nature of the case may require.” Whilst in this case, the proprietors, defendants in the suit, did not specifically cancel the contract, that in effect, is what their action amounted to.

It may be that Article 2040 of the Civil Code is also pertinent to the question at issue; not in the form in which it appears in the English Text, but as it was explained by the Supreme Court in the early case of Walls v. Smith, 3 La. 498, in its resort to the French text in construing its real meaning. The article is found in that chapter of the Code treating of “Obligations” and has particular reference to the fulfillment of conditions in obligations. It reads as follows: “The condition is considered as fulfilled, when the fulfillment of it has been prevented by the party bound to perform it.” As pointed out in the cited case, it is difficult to attach any precise meaning to the rule laid down according to that text which presents a very different idea from that conveyed by the French text. The corresponding article in the Code of 1825 is Article 2035, the French text of which follows: “La condition est réputéé accomplie, lorsque c’est le débiteur oblige sous cette condition 'qui en empeohe l’accom-plissement.” The Court, in Wall v. Smith, supra, interpreted that to mean “that the condition is considered as accomplished, when the debtor, whose obligation depends on this condition, prevents the accomplishment of it.” A literal translation of the article imports that very meaning which is clear and precise. The Supreme Court apparently approved it in the later case of Fowler v. Phillips et al. 159 La. 668, 106 So. 26. In applying it in the case before us to the contract under consideration, it would seem that the plaintiff contractor had, as a condition to fulfill under the contract, the completion of a house and its delivery, when completed, to the defendants, who then became obligated to pay him the full amount or any balance that may be due thereunder. Their obligation depended upon the fulfillment of the condition that the house was to be completed. This, the contractor was prevented from doing by their having moved into the house before completion. Nevertheless under the rule laid down, the condition is considered as having been fulfilled and the contractor is certainly entitled to redress.

The trial judge allowed plaintiff the sum of $500.00 reaching that amount by deducting the amount of money he would have had to spend for labor and material to finish the job from the $1650.00, balance due on the contract price. Plaintiff testified that he would have had to spend between $1100.-00 and $1150.00 and that his profit would have been the difference between that and. the $1650.00. The trial judge took the larger figure of $1150.00 and allowed the difference of $500.00, representing the profit he would have made. That is the measure of damages to be recovered under Article 2765, Civil Code. See Dugue v. Levy, 114 La. 21, 37 So. 995; Cusacha & Co. v. Sewerage & Water Board, 116 La. 510, 40 So. 855.

Judgment appealed from is affirmed.


author: PER CURIAM.

text:
    DOMINGUEZ v. AMERICAN CASUALTY CO. et al.
    No. 3037.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 10, 1948.
    Writ of Error Granted Jan. 10, 1949.
    For former opinion, see 37 So.2d 40.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, and Carroll Buck, of Amite, for appellants.
    Ponder & Ponder, of Amite, for appellee.
   PER CURIAM.

In this case, the plaintiff-appellee and defendants-appellants have filed applications for rehearing.

In his application for rehearing, plaintiff-appellee contends that our decree is “repugnant and contrary to the decree” in the cases of Haeuser v. Ætna Casualty & Surety Co. et al., La.App., 187 So. 684, and Stanley v. Cryer Drilling Company et al., 213 La. 980, 36 So.2d 9. In our opinion we differentiated these cases from the case at bar.

We would have refused the application of plaintiff without a Per Curiam was it not for the statement therein made by the plaintiff that the defendant George Thomas knew “the negro truck driver Saul Williams and all negroes used the truck whenever they wanted and that he continued to permit them to retain custody of the trucks.” We find this statement to be false and unfounded. The evidence is to the contrary. Defendant Thomas unqualifiedly testified that Williams had his permission only to take the truck to his, Williams’, house in the evening so that he could pick up his fellow employees the following morning. Defendant Thomas is emphatic in his testimony, that Saul Williams did not have his permission to use the truck at all at night and that he did not know that Williams ever used the truck at night. Furthermore, Williams testified that he did not have Thomas’ permission to use the truck at night nor did he use the truck at night but on the night of the accident.

The application of defendants-appellants is perfunctory.

Both applications refused.


author: REGAN, Judge.

text:
    HOME SERVICES v. MARVIN.
    No. 19009.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1948.
    Steeg & Morrison, of New Orleans, for appellant.
    Irwin S. Smith, of New Orleans, for. ap-pellee.
   REGAN, Judge.

The plaintiff, Herbert A. Matranga, doing business under the trade name of Home Services, brought this suit against the defendant, Richard L. Marvin, claiming the sum of $224.02, alleged to be due by virtue of repairs made to defendant’s residence, No. 1535 Octavia Street, under a written contract dated October 26, 1947.

The defendant filed an answer admitting execution of the contract and denying that he was indebted to the plaintiff in any sum1 whatsoever. He reconvened claiming $299.-99, alleging that this amount was expended by him in correcting plaintiff’s defective and faulty work and for damages to the property in question, and for illness, discomfort, humiliation and trouble suffered by him and his wife.

There was judgment below in plaintiff’s favor in the sum of $224.02, and dismissing defendant’s reconventional demand. Defendant has appealed.

The record reflects that on October 22, 1947, plaintiff wrote the defendant’s wife the following:

“Herewith submitted is our estimate for repair work to be done at your home as follows :
“Rebuilding with all new materials steps to rear porch, replacing approximately 30 sq. ft. of gallery flooring on rear porch, Taising rear quarters and replacing foundation. Labor and material .$120.02 w.o. #932
“Removing 7' chimney, capping and cementing, cementing all loose tiles, cleaning gutters and soldering five seams and guaranteeing all repair work six months . 68.00 w.o. #933
“Installing ten shelves in various places and one rod. Labor & material . 36.00 w.o. #934K'

On October 26th, 1947, defendant signed this same letter “O. K. Richard Marvin.”

Thus we have a contract composed of three separate work orders for repairs to defendant’s residence. The record further indicates that there was no real dispute concerning the performance of the contract under work orders 932 and 934, should we successfully dispose of defendant’s technical objections made to plaintiff’s offer to introduce evidence in support of these work orders at the time of the trial.

Plaintiff in his pleadings failed to allege “performance” of the work called for under the terms of the contract. Defendant, on the other hand, denied all of the allegations of the plaintiff’s petition except to admit the “execution of the contract.” He reconvened for damages because of the negligent and improper removal of a chimney which was covered by work order 933.

Based on these pleadings defendant, in t'he lower court, objected to the introduction by plaintiff of any evidence in support of the performance of work orders 932 and 934 of the contract. Plaintiff, on the other hand, made no effort to amend his petition to plead “performance of the contract.” It is defendant’s contention that evidence was only admissible relative to work order 933 by virtue of the broadening of the pleadings by the reconventional demand of the defendant.

Plaintiff maintains that if his petition is defective due to his neglect to allege “performance of the contract” that the defendant has cured this defect by his answer in which he admitted the “execution of the contract.” Defendant argues that the phrase “execution of the contract,” “means nothing more or less than the signing and bringing into being of the contract itself, and has nothing to do with the performance of the work under the contract.” We cannot agree with defendant that the definition of the phrase “execution of the contract” is limited to the “signing” and “bringing into being of the contract.” A reference to the following authorities refutes the limitation placed on the phrase by defendant.

Bouvier’s Law Dictionary defines execution as follows :

“The accomplishment of a thing; the completion of an act or instrument; the fulfilment of an undertaking. Thus, a contract is executed when the act to be done is performed; a deed is executed when it is signed, sealed, and delivered.”

Black’s Law Dictionary states:

“Execution. The completion, fulfillment, or perfecting of anything, or carrying it into operation and effect. The signing, sealing, and delivery of a deed. The signing and publication of a will. The performance of a contract according to its terms.”

In Webster’s New International Dictionary, Second Edition (unabridged — 1938) it is said:

“Execution: Act or process of executing; to perform; achievement.”

It is very plain from a reading of these authorities that the words “execution of a contract” are not limited to, nor circumscribed by the definition placed upon the phrase by defendant’s counsel. It may not be amiss to note in this instance, because of the elaborate alternative contentions of respective counsel, as to the ramifications of the phrase “execution of the contract,” that words are intermediary between thought and things. We express ourselves not merely through words, which are only signs, but through what they signify- — • through things. Words per se are colorless and sometimes meaningless; but the thing that a word stands for has a meaning of its own and usually a meaning charged with associations of ideas and most often this associative meaning is the primary and important one in its use. Therefore, before passing on to what we consider a more impressive phase of the case, it is worth observing that those words, or phrases which accurately convey counsel’s intentions relative to their use are preferred, because of the speed, certainty and fullness of meaning which they contain.

It is well established that the defects of a petition may be cured unwittingly and unintentionally by the defendant himself; “as where the answer filed by the defendant supplies material facts which were omitted in the petition. So it has been held that the allegations of plaintiff’s petition are enlarged by the admissions contained in the answer, which are to be treated as if the same facts had been offered and received without objection”. 9 Tulane Law Review 39. See also State ex rel. Wogan v. The Mechanics' & Traders’ Bank, 35 La.Ann. 562 and Davis, et al. v. Lindsay Furniture Co., 14 La.App. 215, 129 So. 447.

Even if we interpret the phrase “execution of the contract” as counsel for defendant say they intended it to be interpreted, as meaning only that the agreement was entered into, we are of the opinion that the defendant, by virtue of his reconventional demand in connection with work order No. 933, sufficiently broadened the pleadings to permit plaintiff to introduce evidence in support of the performance of the contract under work orders 932 and 934. This was on contract embracing three work orders and not three separate and distinct contracts, therefore, defendant, by reconvening for damages occasioned to him by virtue of the defective work performed under work order 933, admitted the performance of a portion of this contract, entitling plaintiff to show performance of the contract generally.

Counsel for plaintiff called defendant’s wife as his own witness and the following material facts were elicited from her:

“Q. Just a minute. I show you this contract, these jobs here, were they accomplished. That’s work order 932 and 934. A. Yes, the gutters were not done .
“Q. The other two were done to your satisfaction. A. Yes, sir.”

If we were to accept the reasoning of defendant’s counsel with respect to “technicalities” and apply it with all of its implications to this case we would, in effect, be recognizing the validity of the sophistry that prevailed during the regime of “technicalities” in Louisiana, usually referred to as the Augustan age when, in the heyday of that era, pleadings were deemed to be an end in themselves rather than merely a means to an end. Apparently, a dilemma which systemized legal philosophy must face and solve is a combination of a due regard for the claims of justice and equity with a procedural system rigid enough to be workable. When we favor one system of thought as diametrically opposed to the other, it is usually with the result that, one of two things happens, either all system is abandoned, or the system becomes such a labyrinth of technicalities that the reasoning of the courts is influenced almost entirely by the desire to apply and adhere to its procedural rules and, in the final analysis, only incidentally by the merits of the cases per se.

We are, therefore, of the opinion that plaintiff should recover from defendant for the work performed under the contract relative to work orders 932 and 934.

With respect to work order 933, there is, in our opinion, a serious dispute. The record shows that plaintiff advised defendant to remove a certain chimney atop his residence, a duplex, the lower apartment being occupied by defendant, his wife and two sons, and the upper by his tenants. Plaintiff advised defendant that the chimney in question was in a very bad condition, that it was too high, being more than seven feet above the eaves of the house, that it offered wind resistance and probably would be blown down with the next high wind causing damage. He was of the opinion that it should be cut down to two feet above the eaves of the house and he informed defendant that he would then cap and cement the chimney and cement all loose tiles on the roof of the main building and garage and clean and repair the gutters of the main house and garage. He guaranteed the work for six months.

Defendant, relying upon plaintiff’s representations concerning the chimney, ordered the work done by plaintiff and it was completed on October 30, 1947. Shortly thereafter, the weather became unusually cold which necessitated the use of a central heating system serving both apartments. Within a few days defendant, his family and 'his tenants noticed that there was a strong and unpleasant odor of fumes and soot which was infiltrating into both apartments, causing the bronchial tubes of defendant, his family and his tenants to become irritated. Upon investigation by defendant it was ascertained that in removing said chimney plaintiff had permitted one and one-half wheelbarrows of brick and debris to fall into the chimney with the result that the chimney drew ineffectively. On or about November 14th, 1947, defendant was prohibited by the Fire Prevention Division of the New Orleans Fire Department from using the heating system until the chimney was cleaned and raised to its former height of more than two feet above the top roof line of the house, all in accordance with the Building Code of the City of New Orleans, Ordinance No. 1SS28 C.C.S., Article 3701 thereof.

It appears that plaintiff refused to rebuild the chimney unless defendant paid him additionally the sum of $70. The record shows that plaintiff's insurer paid the defendant for the removal of the debris from the heating system, but that defendant contracted with and paid another brick mason $140 to rebuild the chimney.

Defendant alleges that his family and tenants were without heat from November 5, 1947, until November 22, 1947, and that because of the bronchial irritation caused by the soot and fumes both he and his wife contracted colds and that his two sons became sick and were forced to remain home from school two or three days; that he was humiliated and disturbed in mind over the health of his family and tenants; and that the gutters and tiles were never repaired by the plaintiff. He itemizes his damages as follows:

“Expense of rebuilding chimney $140.00
Damage to boiler room 15.00
Repainting recreation room 35.00
Physical injury, illness 55.00
Discomfort, humiliation, trouble, etc. 54.99
Total damages’ $299.99”

The. record shows that plaintiff was in error in advising defendant to lower the said chimney and further that the said chimney was in a fair state of repair, having only a few loose bricks that needed recementing. It is also shown that the lowering of the chimney was in violation of the City ordinance referred to herein-above.

Plaintiff, in his testimony, admitted that he had never gone on the roof to examine the chimney and that his observation of the chimney was made from a distance of approximately fifty feet and that he noticed only a few loose bricks. He stated, however, that a sub-contractor, whom he employed as a brick mason, one Paul Verdón, had made a thorough examination of the chimney and that it was upon his report that he advised the defendant to remove the chimney. However, the said Paul Ver-dón never appeared to testify on the trial of the case.

The damage for the breach of a building contract is usually the cost of repairing the defective work, but this rule is applicable where the owner derives some benefit from the defective construction. Merrill v. Harang, La.App., 198 So. 386, Sarver v. Barksdale, La.App., 24 So.2d 649. In this case, the work performed is worthless and must be completely redone, hence the defendant was required to rebuild exactly what plaintiff had induced him to tear down. Therefore, he is entitled to be made whole and to claim the expense of rebuilding the chimney.

W arc of the opinion that the defendant has failed to prove his other items of damage.

For the reasons assigned the judgment ■appealed from insofar as the main demand is concerned is amended by reducing the amount thereof from the sum of $224.02 to $156.02.

It is further ordered that insofar as the reconventional demand is concerned, the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of defendant, plaintiff in reconvention, Richard Lapeira Marvin, and against the plaintiff, defendant in reconvention, Home Services, in the sum of $140.00 together with legal interest. Defendant in reconvention to pay the costs of this appeal.

Amended and affirmed in part.

Reversed in part.