author: McBRIDE, Judge.

text:
    McGEHEE et ux. v. TUEMLER et al.
    No. 18600.
    Court of Appeal of Louisiana. Orleans.
    Dec. 13, 1948.
    Hugh M. Wilkinson and James Wilkinson, both of New Orleans, for plaintiffs and appellants.
    ITenriques & Mayo, of New Orleans, for defendants and appellees.
   McBRIDE, Judge.

This suit emanates from a collision which occurred in the afternoon of January 20, 1944, involving a Buick and a Chevrolet automobile. The point of impact was about the center of the downtown-lake intersection of Washington Avenue and Jefferson Davis Parkway; the two thoroughfares are boulevards each having two lanes for vehicular traffic separated by a neutral ground. Washington Avenue runs in the direction from the river to the lake and is intersected at right angles by Jefferson Davis Parkway, which runs in an uptown-downtown direction. At each end of the neutral ground of Jefferson Davis Parkway, which is 185 feet wide, there is a light signal controlling the movement of traffic. The Buick was owned by Sam H. McGehee and at the time in question was being driven by his wife, who was accompanied by her sister, Mrs. Imogene Wilson Rose; the Chevrolet was being operated by Robert Tuemler.

This suit was filed jointly by Mr. and Mrs. McGehee, the former claiming the cost of medical attention to Mrs. McGehee and for the damages sustained by the Buick, and the latter claiming $3,000 for personal injuries. The suit is directed against Tuemler and his insurer, the New Amsterdam Casualty Company. The specific negligence charged is that Tuemler, speeding at an excessive rate without proper lookout, ran through a red light into the Buick. Defendants denied any negligence on the part of Tuemler; they allege that he had a favoring green light, and that the accident happened entirely because Mrs. McGehee entered the intersection on a red light and drove in front of Tuemler, who was in such close proximity that he was unable to avoid the collision. Defendants, in the alternative, charged Mrs. McGhee with contributory negligence. After a hearing on the merits there was judgment in the court below dismissing plaintiffs’ suit, from which they have taken this appeal.

The sole question at issue is which of the drivers was favored by the green light. The testimony of Mrs. McGehee and Mrs. Rose is diametrically opposed to that of Tuemler.

Mrs. McGehee drove from her home with the intention of going to a store on Washington Avenue about one-half block beyond the place of the collision. To reach this destination it was necessary for her to proceed down Jefferson Davis Parkway, cross the uptown traffic lane and the neutral ground of Washington Avenue, and then turn left into the downtown lane of Washington Avenue. Upon reaching Washington Avenue the traffic light there showed green and she made the crossing and left turn.

Mrs. McGehee testified that after turning she noticed that the light before her (controlling traffic moving back Washington Avenue) was red; that she continued onward along the neutral ground space of Jefferson Davis Parkway at slow speed, which she estimated to be about ten miles per hour, awaiting and anticipating a favorable change in the light; that the light changed to amber when she reached about midway along the neutral ground space; that she continued forward at the same slow speed and came “almost” to a stop at the downtown-lake intersection. She stated that thereupon the light changed from amber to green and she attempted the crossing, and that when she was a little more than one-half over, the Buick was violently run into by the Chevrolet which was moving at an excessive speed in an uptown direction on Jefferson Davis Parkway, the Buick being struck on its right side toward the rear. Mrs. Rose testified substantially to the same effect.

Tuemler is equally as emphatic that he entered the crossing on a green light. A summary of his testimony is that about one block before reaching Washington Avenue he was compelled to stop for several minutes because there was a train switching cars at a railroad crossing. After the train cleared, he started toward Washington Avenue and noticed that the light in his direction was red and amber preparatory to changing to green. That when he reached approximately 140 feet from Washington Avenue the light changed to green, and he first saw the Buick which had just straightened out on Washington Avenue after making its left turn. He claims that he next noticed the McGehee car when it was about eighty feet from the intersection, and he placed himself at this time about sixty-six feet from the intersection. He explained the estimation of sixty-six feet because of his location on a bridge 112 feet long spanning the drainage canal which parallels Washington Avenue, which he had to cross before reaching the intersection. Tuemler states that when he saw the McGehee car at this time it appeared to be pulling to its right and slowing down as though to stop at the intersection, and that believing it would stop he continued toward the intersection and entered it on the green light, going not more than twenty miles per hour; that when he made the entry the McGehee car shot out in front of him, and although lie attempted to apply his brakes, and swerved to his left, he could not avoid running into it

Tuemler also testified that while the McGehee car was moving along the neutral ground space before reaching the intersection, he also saw another automobile, which later proved to be driven by H. King, travelling on the far side of Washington Avenue going in the direction of the river, and that the King automobile came up to Jefferson Davis Parkway and stopped; that at the time he entered the intersection the King automobile and a Public Service bus were at a standstill on the opposite side of Washington Avenue presumably waiting for the light there to turn green in their favor.

King was summoned by both sides, but testified as a plaintiff witness. He knew little about the accident, except that he went to the assistance of the two ladies in the Buick. He states that he had stopped at the uptown-lake intersection in obedience to a red light signal, and that he was at a standstill when the collision occurred. He had not' seen the cars before, and the noise of the impact attracted his attention.

We have carefully examined the record, and closely scrutinized the testimony. We must observe that Mrs. McGehee was somewhat vague in her statements as to the location of the Tuemler car when she first saw it, but she finally said that it was in the middle of the bridge when she was a car’s length away from the intersection. Mrs. McGehee’s testimony does not coincide with that of Mrs. Rose, who said she first noticed the Chevrolet when it was “past the middle of the bridge” and the McGehee car at that time was at about the middle of the intersection.

The petition alleges that Tuemler was driving at a high and dangerous speed in excess of the limit established by the local traffic ordinance, hut we are unable to conclude that Tuemler was guilty of speeding. He testified that he was travelling at not ©ore than twenty miles per hour; Mrs. McGehee estimated his speed to be about thirty miles per hour, and Mrs. Rose fixed it at “35 or more.” We do not think that the ladies’ testimony should prevail over Tuemler’s, in view of the limited period during which they had the opportunity of observing the Chevrolet and of making the estimation. Located in the record is a photograph showing the damage on the right side of the Buick, and though the damage was considerable it would appear to us that if Tuemler had been travelling at the rate attributed. to him, the Buick would have suffered more.

Counsel for plaintiffs concede, as they must, that the case is to turn on a question of fact, and that in such a situation the findings of the trial court must be given great weight. But, they argue, the verbal conflicts between the parties are to be resolved by other circumstances. In oral argument counsel argued that the testimony of Tuemler is too exact, especially as to time, distance and measurements, to ring true. We do not think so, particularly in view of the trial court’s statement that he was impressed by the testimony. Tuem-ler, some time after the accident, visited the scene and made measurements of the various points, and drew a comprehensive sketch of the locale, and we can conceive of no inference which should be drawn from this that would taint his evidence with insincerity or untruth.

In his reasons for judgment dictated into the record by the trial judge, there is contained this observation: “* * * The preponderance of the evidence does not establish in my mind that the light was red against Mr. Tuemler; the evidence seems to bear out more his statement that the light was green. * * *”

Applicable to this appeal is the well recognized doctrine that where only an issue of fact is presented to an appellate court, and the testimony is irreconcilably conflicting and the credibility of witnesses must be passed upon, the conclusion of the trial judge should not be disturbed unless it is clearly erroneous.

We fail to find manifest error in the judgment appealed from, and it will be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. Imogene Wilson ROSE, Plaintiff and Appellant, v. Robert TUEMLER and New Amsterdam Casualty Company, Defendants and Appellees.
    No. 18601.
    Court of Appeal of Louisiana. Orleans.
    Dec. 13, 1948.
    Plugh M. Wilkinson and James Wilkinson, both of New Orleans, for plaintiff and appellant.
    Henifiques & Mayo, of New Orleans, for defendants and appellees.
   McBRIDE, Judge.

This appeal was taken by Mrs. Imogene Wilson Rose, who was a guest in the McGehee automobile, from the judgment of the trial court rejecting her demands for damages resulting from personal injuries.

The matter was consolidated for trial with the case of Mr. and Mrs. Sam H. McGehee against these same defendant?, in which case an opinion and decree was handed down by us this day affirming the judgment dismissing the McGehee suit. 37 So.2d 860.

For the reasons therein stated, the judgment appealed from by Mrs. Rose will likewise be affirmed.

Affirmed.


author: LeBLANC, Judge.

text:
    CURRY v. CAILLIER.
    No. 3063.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 23, 1948.
    Welton P. Mouton, of Lafayette, for appellant.
    Dugas & Bean, and Kaliste J. Saloom Jr., all of Lafayette, for appellee.
   LeBLANC, Judge.

The plaintiff in this case, Aminthe Curry, sues the defendant, Luzion Caillier, as the sole and only heir of her deceased sister, Louise Curry, to recover from the said defendant the sum of $765.43 cash money, also a number of articles of jewelry valued at the sum of $360 and two rocking chairs valued at $7.50 each, all of which, she alleges, the defendant removed from a residence in which her deceased sister occupied a room, in the City of Lafayette, after she had been taken to an institution for feeble minded people at Pineville, Louisiana. 'She alleges that defendant took all of the said property without any authorization; that he has the same in his possession and, as it lies within his power to dispose of the same during the pendency of the suit, she is entitled to have the same judicially sequestered. In the event that the said defendant should have disposed of the money and the movable property which is fully described in the petition, she prays, in the alternative, that she recover judgment for the value thereof in the full sum of $1,140.43.

Having made the necessary affidavit and furnished the bond required by the distrist judge, an order of judicial sequestration was issued but apparently the same was never executed by the deputy sheriff charged with its execution. There is no complaint on this point however and it is not made an issue in the case.

The defendant’s answer denies the alleged heirship of the plaintiff and her consequent ownership of the property she claims and further it is therein averred that at the time the deceased Louise Curry was committed to the institution for feeble minded she was residing in the house from which he took the money and articles described which house was furnished her by him. Affer her commitment he went to her room and removed cash, not in the amount of $765.43 as claimed, but in the amount of $730.70. He also removed the articles of jewelry but did not remove the two rocking chairs until after she had died. He alleges further that all the property that he took had been merely loaned by him to Louise Curry with the exception of a certain portion of the cash money which she had taken from his clothes without his consent.

Further answering the defendant set out that he paid all the expenses in connection with the death and burial of Louise Curry and that these amounted to the sum of $424.75. In the event thát judgment should be rendered against him in any amount, he assumes, in the alternative, the position of a plaintiff in reconvention, asserts his claim for the said amount of $424.75 and prays for a judgment with recognition of the lien and privilege which the law accords for the payment of such expenses.

The trial judge after hearing the testimony in the case rendered judgment in favor of the plaintiff for the full amount of $765.43, cash which defendant had removed from the premises occupied by the deceased and ordered that the sequestration be maintained and that the sheriff deliver the property consisting of the items of jewelry to the plaintiff. The judgment further decreed that in the event the defendant was unable to deliver the two rocking chairs taken by him that the plaintiff recover judgment in the further sum of $15 for their value. The defendant took this appeal.

The first point to be discussed is whether or not Aminthe Curry is the legal heir of the deceased Louise Curry, her sister, for if she is not she would have no right to stand as plaintiff and recover judgment in the suit.

Before filing this suit, plaintiff had the succession of her sister opened and had herself recognized by judgment of the Fifteenth Judicial District Court of the Parish of Lafayette as her sole and only heir. The judgment also placed her in possession of all the property left by her deceased sister which property was fully described in the schedule of assets belonging to her estate and included the very property which she is now seeking to recover. Whilst it is true, as urged by counsel for defendant, that such a judgment is only ex parte, it is nevertheless prima facie evidence of ownership which entitles the party recognized .by it to full and exclusive ownership until such time as some one else appears to assert and prove ownership in himself. This is a well recognized principle of law as shown in the numerous authorities cited in brief of counsel for plaintiff, especially Glover et al. v. Doty, 1 Rob. 130; Dixon v. Commercial National Bank, 13 La.App. 204, 127 So. 428, and Taylor v. Williams, 162 La. 92, 110 So. 100.

It also appears, from the pleadings, that the allegation- in plaintiff’s petition to the effect that she was the heir of her deceased sister, recognized as such in the succession proceeding just referred to, was not denied in the defendant’s answer, the answer being merely that the succession proceeding is the best evidence of its contents. If it is, it follows that proof was made by the record of the succession and it is significant that although an objection to its offer was made on some other ground, nothing that is contained in it is contradicted in any manner whatsoever.

Therefore we can well take it for granted that plaintiff is properly before the court in her capacity as the heir of her deceased sister claiming ownership of the property which she is alleged to have died possessed of, and that brings us to a discussion of the merits of the case.

This record reveals that the defendant and the deceased Louise Curry lived a life of open concubinage for more than 12 years. During all that time the defendant treated her as his mistress which in fact she was. He seemed to have been as kind to her as men who lead that kind of life are to the women they keep and if we are to judge by the testimony in this case, he was in a position to give her all she needed to satisfy her wants. He seemed to have been a free spender and carried large sums of money on his person at all times. He visited in Mexico and brought back trinkets and souvenirs which he distributed among his friends and those who worked for him.

Some time in the latter part of 1942, defendant was called to service in the Army and he was gone for almost a year. Up to that time he had been living with Louise Curry in what he refers to as his house and supported her and her mother who was living with her. When he returned from the Army somethiing evidently had happened to estrange him and he no longer stayed with her. He provided a room for her in a house which he rented to a Mr. and Mrs. Antoine Trahan. She lived in that room for some three years or so when she became feeble minded. She was taken to the Parish jail awaiting -'the time to be transferred to the institute for feeble minded people at Pineville. She was taken there and died on August 19, 1946.

On the day after she was placed in the Parish jail the defendant went to her room and removed the property sought to be recovered by the plaintiff, the only difference in what she claims and what he admits having taken being the difference between $765.43 and $730.70. He did not remove the two rocking chairs that day but they were admittedly taken by him after her death. Defendant says that he was requested by Mrs. Trahan to go and take those things because she had children and she was afraid if any were to disappear they would be blamed for it. It is urged that Mrs. Trahan’s action was an admission on her part that she recognized the property as belonging to the defendant and not to the plaintiff, Louise Curry’s sister. We do not think however, that Mrs. Tra-han’s testimony has any bearing on the question of ownership as evidently she did not know who the property belonged to and because of the relationship which existed between the defendant and Louise Curry she no doubt thought that he was a proper party to be consulted, in the matter.

The real point in the case is how did Louise Curry come to be the owner of the property involved. There was an attempt made by plaintiff to show that her sister had worked and earned money and that some of the jewelry, especially a watch, had been bought and paid for out of her own funds. We do not think that there is sufficient testimony to support that contention but are convinced that Louise Curry, by virtue of having been given all of these things by the defendant when she was actually living with him as his concubine, was the undoubted owner. Defend-ant’s story that he has a right to take the cash money now, in order to reimburse him for the great sums of money he says she took from him when she was living with him, does not impress us. He claims that she took advantage of him when he was drunk and rifled his pockets. The only proof he offers on this is the testimony of some witnesses who say that Louise Curry told them that. The people to whom she is said to have told that were people she spoke to after she had been confined to the parish prison and certainly her mind was in no condition to bind her to such statements even admitting she made them.

But even though she did take money from his pockets, on occasions, what else could he expect? Under the circumstances arising out of their relationship we presume that at the time she took it it must have been alright with him for her to do so for he never complained to her about it. He says something about having set a trap for her once but his testimony on this point is so conflicting with that of his witness, Al. Grubbs, his confidential employee who suggested the plan, that the whole thing strikes us as being as fantastic a story as is his next story about the jewelry and trinkets which he claims are still his property.

With regard to these he contends that he never gave them to her at all and simply loaned them. Yet he states that when he returned from Mexico where he had bought all these trinkets, after displaying them all on a table he distributed them among his friends. To these friends, he claims they were gifts, but to his paramour, they were merely loans. That kind of testimony did not impress the trial judge, nor does it impress us and we are convinced that the judgment appealed from is correct in holding that this property, including the two rocking chairs, and this cash money which was found in her room all belonged to the decedent Louise Curry and as such was inherited .by plaintiff, her sole and only heir.

Defendant did pay all expenses in connection with the burial of Louise Curry. These amounted to the sum of $424.75 which he asks to recover on the basis of compensation against whatever amount he may be held to have to account to the plaintiff for. The trial judge refused to allow compensation on the ground that this case presented one of the exceptions which is provided for in cases of compensation, under Article 2210 of the Civil Code. That Article provides that compensation takes place no matter what the cause of either of the debts may be, except in certain instances, the first exception being “of a demand of restitution of a thing of which the owner has been unjustly deprived.” It is obvious that recovery by the plaintiff in this case amounts to the restitution of a thing of which the plaintiff has been unjustly deprived by the defendant, and that is exactly what is provided for in the article of the Code under consideration. We find the case of Ferrara v. Polito, La.App., 167 So. 120, to be authority on this point, and so is the case of Hitt v. Herndon 166 La. 497, 117 So. 568.

Judgment affirmed, defendant, appellant to pay the costs of appeal.


author: DORE, Judge.

text:
    BERGERON et al. v. SAIA et al.
    No. 3069.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 23, 1948.
    Rehearing Denied Feb. 2, 1949.
    Deutsch Kerrigan & Stiles, of New Orleans, Ellender & Wright, of Houma, and H. R. Ainsworth, of New Orleans, for appellants.
    A. Deutsche O’Neal of Houma, for ap-pellees.
    St. Clair Adams & Son and Harold J. Bodin, all of New Orleans, for intervenor.
   DORE, Judge.

On January 8, 1947, at about 12:45 o’clock P. M., a collision occurred on U. S. Highway 90, at a point four miles east of Houma between a truck being driven by Harold Verret and owned by Louis Saia, doing business as Saia Motor Freight Line, and a truck owned by Butane Gas Company, Inc., and being driven by Johnny A. Berger-on. As a result of the collision Johnny A. Bergeron was killed, and his widow, Mrs. Nell Thibodaux Bergeron, has filed this suit on her behalf, individually, and as the natural tutrix of her three minor children, born of said marriage, to-wit: Catherine Mary Bergeron, bom February 9, 1931; Nell Rita Bergeron, born November 26, 1933; and Charles Francis Bergeron, born on May 22, 1937, alleging that the accident and resultant death of her husband was caused solely by the gross negligence of Harold Verret, the driver of the Saia truck, while in the course and scope of his employment by Saia. She brings her suit against Louis Saia and his driver, Harold Verret, and against Continental Casualty Company of Chicago, pub^ lie liability insurer of the Saia truck. The limit of liability of the insurer of Saia is admitted to be in the sum of $10,000.00. In the suit, there was an intervention filed on behalf of Massachusetts Bonding and Insurance Company of Boston, Massachusetts, the compensation insurer of the Butane Company, in which it is shown that it paid, under the terms of the compensation laws, the maximum amount of $300.00 for funeral expenses, and since the date of the death of Johnny Bergeron, it has been paying to the widow, individually, andl on behalf of the three minor children compensation at the rate of $20.00 per week, and will continue to pay said compensation for a period of 300 weeks, and consequently the said compensation carrier prays to be subrogated for said amount paid in the event of judgment on behalf of plaintiff herein.

The petition of Mrs. Bergeron sets forth that her deceased husband was driving a Butane Gas Company, Inc., truck on the right lane of the paved strip of U. S. Highway 90 in the direction of Raceland, Louisiana, at a moderate, reasonable and safe rate of speed when he became aware of some impending danger, and gradually slowed down and pulled to his right, leaving said paved strip entirely and not returning to said strip for a period of some SO or 60 feet before the actual impact resulting in his death; that defendant Harold Verret was at the time operating the Saia truck on said highway and driving in the direction of Houma, Louisiana, or in the opposite direction to that in which deceased was driving; that said defendant Verret caused the Saia truck to crash into the truck driven by deceased at a time when the truck driven by the deceased was entirely on the shoulder of the highway adjacent to his own proper lane of traffic, and at a time when the truck of the deceased had continuously run along said shoulder of the highway for a distance of about 60 feet; that defendant Verret was not keeping a proper lookout, was not keeping his truck under proper control; could see the oncoming traffic, namely, the truck of deceased, and that had Verret been keeping a proper lookout, or had been driving properly, the accident would not have happened, but that in total disregard to the rights or privileges of others, Verret recklessly and negligently operated Saia’s truck in such a manner as to cause a collision with the deceased, resulting in his death, and thus causing damage to petitioner, individually, and to her minor children.

Petitioner itemizes her damages on her own behalf in the sum of $15,000.00 for loss of support (further alleging that her husband had a life expectancy of 25 years, and monthly income at the time of his death of $240.00) ; for loss of companionship in the sum of $5,000.00; for loss of love and affection in the sum of $5,000.00; and funeral expenses, $555.50; and on behalf of Catherine Mary Bergeron, the sum of $10,-500.00, being $3,500.00 for loss of support and for loss of love, affection and guidance, $7,000.00; on behalf of Nell Rita Bergeron, the sum of $13,000.00, being $5,000.00 for loss of support and $8,000.00 for loss of love and affection and guidance; on behalf of Charles Francis Bergeron, the sum of $18,-000.00, being $10,000.00 for loss of support, and $8,000.00 for loss of love, affection and guidance.

Defendants in answer admitted that the accident occurred at the time and place alleged and between the truck of Louis Saia being driven by Harold Verret in the course of his employment, and the Butane truck being driven by the deceased, Johnny A. Bergeron. They also- admit that as a result of the collision Johnny A. Bergeron was killed. However, they deny that the accident was caused by any negligence on the part of Harold Verret, and allege that the deceased was driving his large Butane truck at a fast speed and was not observing and keeping a proper lookout for oncoming traffic, both or either of which were the proximate cause of his death; that because of his failure to keep a proper lookout, he crossed the center line of the pavement and struck the truck driven by defendant Harold Verret, which was completely on its proper side of the highway, causing the said truck to leave the travelled portion of the highway, and turn over into the ditch next to said highway; that said truck was practically destroyed. In the alternative, in the event that the Court 'should' find that defendant Verret was guilty of negligence, the defendants plead contributory negligence on the part of the deceased, Johnny A. Bergeron, particularly (a) that he was travelling at an excessive rate of speed in view of the wet pavement and of the large trailer tank attached to his truck, and, (b) that he was not keeping a proper lookout for the oncoming traffic.

After trial of the case the trial court rendered judgment in favor of plaintiff, individually, in the sum of $12,055.50, and on behalf of Catherine Mary Bergeron, in the sum of $4,000.00; and on behalf of Nell Rita Bergeron, in the sum of $6,000.00, and on behalf of Charles Francis Bergeron, in the sum of $9,500.00 with legal interest from date of judicial demand, December 6, 1947, and all costs, said judgment to be jointly and in solido against Louis Saia, doing business in the name of Saia Freight Line, Continental Casualty Company of Chicago, and Harold Verret, the liability of Continental Casualty Company being limited to the sum of $10,000.00. The judgment further provides that there be judgment for the intervenor, the Massachusetts Bonding and Insurance Company, for the amounts paid by it of burial expenses and for compensation, plus $50.00 for an attorney fee and legal interest from December 6,1947. From this judgment the defendants have appealed. Plaintiff, individually and as tutrix to her minors, has answered the appeal, praying that the award's be substantially increased.

In support of his judgment the trial judge has favored us with a memorandum of reasons for finding liability against the driver of the Saia truck. The main reason cited by him is the point of impact and the location of the respective cars after the actual collision. He points out in his reasons that there is one point which is not in dispute, and that is the location of the tire tracks of the Butane truck along the shoulder of the highway from the point of impact to the stopping place of the Butane truck. As observed by him, the testimony is unanimous to the effect that prior to the collision the Butane truck left the highway on its right hand side and that the dual right wheels of the said truck continued on the right shoulder and could be clearly perceived for a distance of 50 or 60 feet prior to the actual collision with the Saia truck. It is also shown by a large preponderance of the evidence that practically all the debris from the collision was on the side of the highway of the Butane truck.

The record has the testimony of Harold Dean, who actually saw the collision from his rear view mirror and he states that ju'st prior thereto, while travelling towards Houma he passed the Saia truck and thereafter passed a slow-moving Model A. Ford Coupe, and that after passing the Ford' he saw the Butane truck coming from the opposite direction at a speed of about 50 miles per hour and that he noticed that the driver of the Butane truck pulled over to his right and began to blow his horn, and practically at the same time he perceived the Saia truck trying to pass the slow moving Ford, which was ahead of it, and, in effect, that in this maneuver the driver of the Saia truck lost control of his vehicle and came on over into the lane of travel in which the Butane truck was travelling and collided with it. From the testimony of witnesses who appeared immediately after the accident, the testimony of Harold Dean and the physical facts themselves, especially the fact that the tire tracks of the Butane truck clearly show that for a distance of 50 or 60 feet immediately prior to the collision it was travelling partly on its right shoulder, we cannot help but conclude that the accident was solely caused by the negligence of the defendant Harold Verret in leaving his lane of travel and proceeding onto the lane of travel of the deceased'. We are convinced that the trial judge was entirely correct in finding liability on the part of the defendants herein, and absolving the decedent of any negligence.

As to the quantum of damages to be allowed, we fully realize that the widow and minor children cannot be fully compensated for the unfortunate loss of their husband and father by any money judgment, but we have heretofore followed certain rules in trying to give substantial justice to all parties concerned in these unfortunate accidents. The deceased husband and father was instantly killed, was forty-two years of age and earning $240.00 a month. In the case of Wright et al. v. Texas & N. O. R. Co. et al.; La.App., 19 So.2d 894, a case somewhat similar to the case at bar, and wherein the deceased was 36 years of age and earning a very good salary at the time of his death, we awarded the widow $3,-000.00, plus her actual expenses, and $1,-000.00 to each of the minors, there being three minors, or a total of $6,000.00. That case was decided in 1944, so that there ha's not been any great depreciation in the value of the dollar since that decision. In that case, we not only took into consideration the depletion of the value of the dollar, but also took into consideration the ability of the defendant to respond in damages. However, in the case at bar, since the widow is receiving compensation at the rate of $20.00 per week and will be receiving that for a period of not exceeding 300 weeks, we should also consider this fact in computing the amount to be awarded the widow and her minor children. Therefore, the damages should be considerably higher than in the cited case. The defendant Louis Saia carried only $10,000.00 of liability insurance. His testimony shows that he is a man of limited means and has a limited ability to pay any damages in excess of the amount of his insurance. Considering all these factors, we find that the awards made by the trial court are excessive ‘and we have decided to fix the award in favor of the widow at the sum of $10,000.00 plus the funeral expenses of $555.00 actually paid by her, and the sum of $2,500.00 to each of the said minor children. The judgment will be amended accordingly.

For these reasons, it is ordered that the judgment appealed from be amended by reducing the award of Mrs. Nell Thibodaux Bergeron to the sum of $10,550.00, and by reducing the awards made to the three minors to the sum of $2,500.00 to each of said minors, and as thus amended the judgment stands affirmed; the costs of this appeal to be paid by appellee and all other costs to be paid by defendants.


text:
    LAFLEUR v. JOHNSON.
    No. 3058.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 23, 1948.

      Tate & Fusilier, of Ville Platte, for appellant.
    E. Herman Guillory, of Ville Platte, for appellee.
   DORE, Judge.

In this suit plaintiff, individually and on behalf of her two minor children, seeks to recover of the defendant compensation in the sum of $9.75 per week for a period beginning February 23, 1944, not exceeding 300 weeks, as a result of the death of her husband, Archange Lafleur, while in the course and scope of his employment.

Plaintiff alleges that her said husband, on February 23, 1947, employed the defendant as a special policeman to keep the peace in and about defendant’s place of business, a saloon and night club for Negroes; that his duties required him to carry firearms and that such occupation was a hazardous occupation within the scope of Act No. 20 of 1914, as amended, the Louisiana Workmen’s Compensation Act; that her husband’s weekly salary was fixed at 10% of the profits of the said night club while he was on duty and that such amount averaged $15.00 weekly; that on February 23, 1947, her husband was shot and killed when he attempted to apprehend one of the patrons of defendant’s night club who had been fighting and disturbing the peace and that his death arose out and in the course of his employment.

For answer, defendant admits that plaintiff’s husband was discharging the duties of a police'officer, or special policeman and that he was killed on the day and date aforesaid. He denies that his occupation as owner and operator of a saloon and night club is hazardous and avers that the occupation of decedent is not within the scope of the compensation act. He denies that the decedent was an employee, contending that decedent was a partner of his. He denies that decedent was killed while in the course and scope of his employment.

After trial on the merits, in his written reasons for judgment, the trial judge found that decedent was killed while he was acting as a police officer and held that the deceased was not covered by the statute and that his widow was not entitled to compensation. As authority for so holding, the cases of Hall v. City of Shreveport, 157 La. 589, 102 So. 680, and Coleman v. Maryland Casualty Co., La.App., 176 So. 143, were cited. He dismissed plaintiff’s suit. Plaintiff has appealed.

The facts in this case are not seriously disputed. The defendant, in September, 1945, operated a Negro saloon situated within the town of Ville Platte and was furnished by the town authorities a special town policeman in the person of decedent to keep the peace and order in his establishment. Decedent’s duties were the same as an assistant to the town marshal, and he was directly responsible to the town marshal. Decedent’s wages were paid by the town. Thereafter defendant closed this saloon. In the early paid of 1946, defendant and Emile Anderson then opened a Negro saloon and night club near the corporate limits of the town of Ville Platte. Decedent applied to the owners and operators of this saloon and night club as special police officer to keep the peace at this establishment. It became necessary that he be commissioned as a deputy sheriff for the Parish of Evangeline. The sheriff of the parish so appointed and commissioned him as a special deputy with all the powers and authority of a regular deputy sheriff, except that his authority was limited to the place of business of defendant and without pay from the sheriff’s office or from the parish. The decedent then assumed his duties as police officer at this saloon and night club. For his services, he received a commission of 10% of the net profits on such occasions as he acted as special police officer, which said occasions generally were on Saturday nights. It is shown that he was selected by the defendant and his partner in business, who had the power to terminate his employment, and served at their discretion.

Under Paragraph 1 of Section 1 of Act No. 20 of 1914, the Workmen’s Compensation Act is made to apply to the following persons, to-wit: “Every person in the service of the State, or of any parish, township, incorporated village or city, or other political subdivision, or incorporated public board or commission in this State authorized by law to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or zvritten, except an official of the State, or of any parish, township, incorporated village or city, or other political subdivision, * * (Italics ours.)

In interpreting the above quoted provision, the Supreme Court, in Hall v. City of Shreveport, 157 La. 589, 102 So. 680, a case involving the death of a police officer of that municipality who was killed while in the performance of his duties, held that a police officer was not covered by that Act.

In the case of Coleman v. Maryland Casualty Company, La.App., 176 So. 143, a case wherein the injured plaintiff was employed by the town of DeQuincy as a night watchman or deputy to keep the peace, we held that the injured plaintiff was not covered by the Act, basing our decision on the case of Hall v. City of Shreveport, supra.

The quoted provision of the compensation act and the cases supra are inapplicable to the instant case. In the case of Moore v. Blanchard, La.App., 35 So.2d 667, 669, we had under consideration the status of “bouncer” or special deputy sheriff assigned to a night club and saloon. In that case, we stated: “The term 'bouncer’ is a familiar one used to designate persons employed * * * to preserve the peace in establishments such as night clubs and other places of amusement where people indulge in dancing, drinking and in gambling. It seems to be conceded that generally men so employed are deputized by the sheriff of the parish in order that they may exercise some sort of official authority. They are really deputy sheriffs, with commissions issued by the sheriff, and they are authorized thereunder to arrest those who commit infractions of the law at the places' where they are employed. * * * The appointment by the sheriff as his deputy is however, purely a matter of convenience and service to the people who operate establishments of this kind and their entire salary or wages are paid by the proprietor of the establishment”, and we held that such persons were employees of owners of the night club. The facts in that case are the same as in our case. We therefore hold that the decedent was an employee of the defendant and only technically an employee of the Parish of Evangeline.

Having come to the conclusion that the relationship of master and servant, or employer and employee, existed between the defendant and decedent, the question presented is whether the business of defendant was hazardous or nonhazardous or both.

The general nature of the employer’s business, rather than duties of a particular employee as hazardous or nonhazardous, must determine liability for compensation. Kern v. Southport Mill, 174 La. 432, 141 So. 19; McAllister v. Peoples Homestead & Savings Association, La. App., 171 So. 130.

As previously stated the general nature of defendants’ business was operation of a combination saloon and dance hall. The place in which this business was conducted consisted of a one room frame building. On one side of the room was the bar,. wherefrom intoxicating liquors and beer were dispensed and the remainder was used as a dance floor. Behind and underneath the bar was a refrigerator or a self-cooling unit wherein the beer was stored prior to being sold. On the dance floor portion of the room was an electric music or juke box to provide the music for the dancers or the customers of the place. The bar, the ice or refrigerator box and the servicing of the juke box were attended by Emile Anderson, a joint owner and operator of the business. The duties of the decedent were to keep the peace and in no way connected with the operation of the ice box and juke box.

Since the operation of a joint saloon and night club is not named in the act as one of the hazardous trades, businesses, or occupations covered by the act, nor is any form of mercantile business, wholesale or retail, so designated therein, plaintiff would only be entitled to compensation if the facts showed that in the performance of his duties decedent necessarily came into direct contact with electric motors. This, she has failed to do. We do not want it understood, however, that these small, enclosed, electric motors an any particular case would be sufficient to classify an employer defendant as engaged in a hazardous and non-hazardous occupation. Under the facts of the case, the compensation act is inapplicable.

As a last resort the able counsel for plaintiff contends that the work of the deceased was hazardous, in that it involved the carrying of firearms regularly, and his duty was to quell any violence, if necessary. In addition, it was hazardous because it involved proximity of the employee to explosives, including gunpowder. In answer to this contention, the able counsel loses sight of the fact that it is the occupation of the employer and not the duties of the employee which controls. As stated by the. Supreme Court in the case of Hall v. City of Shreveport, supra [157 La. 589, 102 So. 683]; “While a policeman in the performance of his duties is, undoubtedly, at times placed in a dangerous and hazardous situation, and there may be many good reasons why he should be put under the protection of the Compensation Law, this presents a question for the legislative, and not for the judicial, department of the government.” It is to be noted that this case was decided on January 5, 1925, and many sessions of the Legislature have been held since then, yet the Legislature has not seen fit to amend the law in regard thereto.

For these reasons, the judgment appealed from is affirmed.


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    FONTENOT v. SMITH et al.
    No. 3056.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 23, 1948.

      Isom J. Guillory Jr., of Eunice, for appellant.
    Atlee P. Steckler, of Ville Platte, for ap-pellees.
   LeBLANC, Judge.

Prior to September 10, 1937, Jean Pierre Fontenot, plaintiff in this suit, was the owner of a tract of land situated in the Parish of Evangeline, having an area of 150 acres. Bayou Cocodrie bordered it on the west and it lay between parallel lines running directly east. The slope of the land was from northwest to southeast with the natural drainage according to those directions, through sloughs leading to a swamp situated southeast of the property.

On September 10, 1937, plaintiff sold to Paul Hampton Smith, one of the defendants, the seventy southern acres of his property, the understanding between them being that the northern line of the tract sold, which then became the dividing line between the two properties, would be parallel to the southern line. At the time of the sale there was a ditch, running north and south, on the southeastern end of the property which helped the natural drainage.

In the sale from the plaintiff to the defendant Smith, there is incorporated the following clause which the court is called on to interpret and apply to the situation as it presently exists: “It is further agreed that the purchaser and vendor shall jointly establish a drainage ditch on the north line of the seventy acres tract herein sold; it being understood that the said ditch have sufficient capacity to take care of the drainage on the balance of land of vendor herein; it being further understood that said ditch is to be maintained thereafter by the purchaser herein, or his assigns.”

In accordance with the terms of their agreement, the parties jointly had a ditch dug on the northern line of the Smith property which joined a ditch Smith had dug along the eastern boundary, after his acquisition of his property, this ditch being a continuation of the ditch formerly existing in the southeastern corner of the property before he bought. In excavating the ditch on the dividing line between them, the spoil dirt was evenly distributed and thrown on both sides. .

Apparently this ditch which was the one established under the agreement of the parties, did not turn out to be satisfactory, especially, it seems, to the plaintiff. The testimony is to the effect that the sloughs through which plaintiff’s land drained were reopened, if indeed they had ever been closed under the agreement. The parties however continued to disagree about the drainage and finally, some six or seven years later, Smith had a large canal dug entirely on his property, some distance south of the dividing line between him and the plaintiff and parallelling that line as did the other ditch. In having this canal dug he had the contractor throw all the spoil dirt on its south-side, this forming an embankment along the canal ranging in height from maybe six feet or more on the western end to some two feet or more at the eastern end. This embankment has the effect, during excessive rainfalls which cause Bayou Cocodrie to overflow, to cause the canal also to overflow and thus impound the water on plaintiff’s tract of land. It was to have the defendant Smith remove this dam or embankment which he alleges greatly interferes with his right of drainage that plaintiff instituted this proceeding. After the suit was filed, Smith sold his property to Clarence Estes who was then made a party defendant also.

The main defense to the suit, as urged on an exception of no cause of action, is that by having agreed to a method of drainage of his land by virtue of the stipulation contained in the act of sale from' himself to Smith, plaintiff had abandoned the natural servitude of drain which his. property enjoyed over that which he sold, and he is consequently held to that method as his only means of drainage. The exception was referred to the merits of the-case when it was again urged in answer and further urged that it is only during unusual rainfalls which cause both Bayou. Cocodrie and the canal to overflow that water remains on plaintiffs property as some of it also remains on his. Both defenses were rejected by the trial judge who rendered judgment in favor of the plaintiff as prayed for. Defendants have appealed.

In support of their contention that plaintiff had abandoned his natural right of servitude of drain, counsel for defendants refer to Article 752 of the R.C.C., which reads as follows: “Legal servitudes and even those which result from the situation of places, may be altered by the agreement of parties, provided the public interest does not suffer thereby.”

The first thought which comes to our minds, in applying this article to the situation existing in this case is conceding, arguendo, that the stipulation in the act of sale from Fontenot to Smith constituted an agreement contemplating a change in the natural drainage which Fontenot’s land enjoyed before, did not the agreement itself cease to exist when the parties were unable to understand each other on the method of construction of the ditch and whether the sloughs running through plaintiff’s property were to be closed or not? The action of Smith in later digging a canal entirely on his own property, and at his own expense, clearly evidenced his intention of abandoning the ditch established under the agreement and of having a drainage canal exclusively under his own control. The agreement then no longer existed and the parties were relegated to the status quo ante. Under that status plaintiff’s land admittedly was the dominant and defendant’s the servient estate. As such, under Article 660 of the R.C.C., plaintiff had the right of drainage over the defendant’s land, for that article provides that “It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.” Further it is provided by the terms of the same article that “the proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.” Therefore, whilst the defendant Smith may have had the right to construct a canal on his own property he certainly had no right, in doing so, to use the spoil dirt to make a dam or levee on his property which prevented the running of the water from off of the plaintiff’s land as it seems to be conceded it does. That was not only conceded by Smith in his testimony but also by his action in opening two of the five sloughs through which plaintiff’s property drained in order to alleviate the condition upon the latter’s complaint.

We believe that this view we take of the case disposes of the issue that is before the court. However, even though the agreement contained in the sale from Fontenot to Smith was not abrogated when the original ditch that was dug under it was abandoned and the large canal built by Smith on his property was substituted as a means of drainage contemplated under the agreement, it is nevertheless our opinion that in constructing that canal, Smith had no right to erect the levee he did on its south side, or either side for that matter, whch levee, as already indicated, admittedly impedes the drainage of plaintiff’s property. Plantiff’s complaint is not about the canal itself which he seems to admit overflows during excessive rainfalls, but about the dam or levee which keeps the water impounded on his property more than it would be otherwise. His contention is that without this levee, when the canal overflows, the water would not be concentrated on his property but would spread over both properties and naturally would drain off of his far more readily. This is but natural and we thoroughly agree with the contention made. Under either view of the case, therefore, the judgment of the lower court is correct and accordingly it is affirmed at the costs of the defendants, appellants.


author: ELLIS, Judge.

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    BOUGERE et ux. v. CHERAMIE et al.
    No. 3066.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 23, 1948.
    C. A. Blanchard, of Donaldsonville, for appellants.
    St. Clair Adams & Son, of New Orleans, Aubert L. Talbot, of Napoleonville, and Wm. H. McClendon, Jr., of New Orleans, for appellees.
   ELLIS, Judge.

This is a suit by a father and mother, Paul Bougere, Sr., and Mildred Bougere, in which they seek to recover damages for the death of their minor son, Paul Bougere, Jr.

An examination of the record reveals that it contains only the testimony of two witnesses, whereas • the counsel in their briefs, and the Judge in his written reasons for judgment, discuss the testimony of many other witnesses who evidently testified in this case.

It is, therefore, necessary that the missing testimony be supplied and it is ordered that this case be remanded to the Twenty-third Judicial District Court for the Parish of Assumption for the completion of the transcript.

It is further ordered that this testimony be supplied and the record completed within thirty days or the appeal shall stand dismissed.


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    FORD et al. v. DEROCHE.
    No. 3072.
    Court of Appeal of Louisiana First Circuit.
    Dec. 23, 1948.
    James P. Vial, of Hahnville, for appellants.
    Harvey Peltier and Hubert A. Lafargue, both of Thibodaux, for appellee.
   DORE, Judge.

This is a suit brought by Mr. and Mrs. William E. Ford, based on the alleged wrongful death of their son, Earl P. Ford, who was fatally injured at approximately 7:30 P.M., October 27, 1946, while riding as a guest in a 1937 model Chevrolet Tudor sedan, owned by Eddie Gaudet, and being operated by his minor son Hubert Gaudet.

The petition alleges that the said Earl P. Ford was riding with Hubert Gaudet driving at a reasonable rate of speed on U. S. Highway No. 90, in the direction of Houma, Louisiana, and that the defendant Colbert Deroche, accompanied by Norman Deroche, Gordon and Rufus Derodhe, pushed Colbert Deroche’s stake body truck on the paved highway and in the lane of travel in which Hubert Gaudet and Earl P. Ford were travelling and that said truck being pushed by hand had no headlights or tail lights burning nor any clearance lights, flares, or warning signals of any kind; that because of the lack of any lights, flares, signals and because the stake body truck was of a dark color, it made it impossible for any motorist, and particularly the "driver with whom petitioners’ son was riding to see or observe it until he was practically on it, or a very short distance from it; that when the operator of the automobile in which your petitioners’ son was riding first observed the truck as above described, he immediately swerved his car to the left to avoid striking it, but due to the fact that the truck was in the center of the highway, that is, straddling the center line of said highway, the right front of the car ran into the left rear of said truck, owned by the defendant; that as a result of the crash the son of petitioners, Earl P. Ford, was fatally injured, suffering a fractured skull and other injuries, and as a result thereof died two days later.

The defendant, in its answer, admitted that the collision occurred at the time and place alleged, but denies any negligence on his part, and alleges that the proximate cause of the collision was due to the fact that the Gaudet car was being operated at an' excessive rate of speed, without burning headlights and without the operator of the car looking ahead; that the truck with which the Gaudet car collided had run out of gas and that upon inserting one gallon of gas in the truck, the defendant and the other Deroche pushed the truck onto the highway with the lights of the truck burning, so as to make the truck level in order that the gasoline would flow into the truck carbureter and cause it to1 start; that, in fact, but for the excessive rate of speed and the poor headlights of the Gaudet car, and the failure of Gaudet to keep a proper lookout, the collision would not have occurred; that the said Earl P. Ford, who was a guest in the Gau-det car, did not object to the operation of said car in said careless and negligent manner, by the said Hubert Gaudet, but on the contrary, fully acquiesced in the operation of the car in said manner.

After trial of the case, the trial judge dismissed the suit at the costs of plaintiffs. Plaintiffs have appealed. The trial judge has not favored us with written reasons for his judgment, but it seems obvious that he failed to find any negligence on the part of the defendant Colbert De-roche.

The evidence is clear to the effect that the Deroche truck ran out of gasoline and that, as it did so, the truck was permitted to proceed on the grass shoulder and was parked on the shoulder without any lights or flares of any kind, but completely off the paved portion of the highway; that the truck was left in the care of two of the Deroches while the other two walked a distance of approximately one mile to procure gasoline; that they returned with one gallon of gasoline, which was inserted into the gasoline tank and that in view of the fact that the shoulder was not level, they thereupon pushed the stalled truck onto the right paved lane of the highway by hand. There is some question as to whether or not the lights on the truck were burning, but the preponderance of the evidence is to the effect that the headlights, clearance lights and one tail light were burning. The evidence shows that prior to the accident the defendant had had no trouble with the lights on the truck and that tests made on the same day of the accident and the next day after the accident show that all the lights, except the tail light, were lighted when the switch was turned on. The explanation as to why the tail light did not operate is that the Gaudet car struck the truck on its left rear, whereon the tail light was located, and obviously damaged the tail light to the point that it did not operate.

It seems clear from this testimony that the defendant, in the emergency which occurred due to having run out of gas, used every precaution he could under the circumstances. It is true and it is admitted, that he had no flares of any kind and that no warning signals, such as the use of a flash light was given, but such flares and warning signals were unnecessary in that the truck was being pushed by hand, and the preponderance of the evidence is to the effect that the lights on the truck were burning, and under those circumstances it would seem that the operator of a car proceeding from the rear, at a normal rate of speed and with normal lights, should have perceived the truck and the men pushing it in plenty of time to avoid the collision therewith, and we can see no manifest error in the obvious conclusion of the trial judge that the accident was caused solely by the negligence of Gaudet in driving his car at an excessive rate of speed, without proper lights and without keeping a proper lookout; that he was driving at a fast rate of speed was indicated by the fact that after striking this 1%-ton truck, which was being pushed by hand, the truck was shoved unto the right shoulder, and into the ditch on the other side thereof.

There is evidence in the record that a day or two after the accident Mr. Gaudet, the owner of the Chevrolet automobile which ran into the truck and his son, Hubert, went over to see the defendant, Colbert Deroche and made demand on him for the damages to the automobile in the sum of $50.00. Witnesses for the defendant testified that at that time, Hubert Gau-det admitted in their presence that he, Hubert, was driving fast, that his headlights were not strong and that was the cause of the accident. Hubert, in rebuttal, denied making any such statement. Hubert Gau-det testified that the accident was caused by his being blinded by an oncoming car just as he arrived at the spot where the truck was being pushed, but in that respect his testimony is uncorroborated, and, frankly, it is unconvincing.

We find a lot of conflict and inconsistencies in the testimony of the witnesses on both sides. However, we feel that it appears by the preponderance of the evidence that this unfortunate accident was caused by the reckless driving of young Hubert Gaudet, which was apparently condoned, if not encouraged, by his young pal, Earl P. Ford, who was riding beside him on the front seat of Eddie Gaudet’s Chevrolet automobile. In any event we find no manifest error in the obvious conclusion of the trial judge that the defendant was not guilty of any negligence which was the proximate cause of the collision herein involved, and his conclusion should prevail.

For these reasons, the judgment appealed from is affirmed.


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    BABINEAUX v. GIBLIN et al.
    No. 3065.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 23, 1948.

      Kibbe & Bailey, of Abbeville, for appellant.
    Deutsch Kerrigan & Stiles and Marian Mayer, all of New Orleans, and Jacob S. Landry, of New Iberia, for appellees.
   DORE, Judge.

In this suit, plaintiff, Beulah Babin-eaux, widow of Treville Stelly, seeks to recover of the defendants, G. J. Giblin and his insurer, Continental Casualty Company, compensation in the sum of Nineteen & 50/100 ($19.50) Dollars per week, beginning from January 4, 1947, for a period of not exceeding three hundred (300) weeks, and for an additional sum of Three Hundred ($300) Dollars for burial expenses arising out of the death of her husband on January 4, 1947, alleged to have occurred in the course and scope of his employment by the defendant, G. J. Giblin. The defendants filed an exception of no cause of action, contending that the death of her husband did not occur in the course and scope of the employment. The exception was sustained and plaintiff’s suit was dismissed. The plaintiff has appealed.

The facts, as shown by the petition and which necessarily must be taken as proven, show that prior to and on Saturday, January 4, 1947, the date of the accident and death, plaintiff’s husband, Treville Stelly, was in the employ, as a carpenter, of G. J. Giblin, a building contractor, in the construction of a building in the City of New Iberia, Iberia Parish. Decedent was residing in the Town of Abbeville, due to lack of available living quarters in the City of New Iberia; and as part of his employment, he was required to drive to and from his said work in the City of New Iberia, in an automobile owned by him. The shortest, safest and most available route between the place of his employment in New Iberia and his residence in Abbeville was a paved State Highway, which paved highway was traversed by a railroad track a distance of approximately one and 4/10 miles west of the City of New Iberia. In going to his work and returning home from the place of his employment, the decedent was required to traverse said railroad track along the aforesaid highway.

On the day of the accident and death, the decedent had been on duty. His employment would ordinarily have terminated at 4:30 P.M., and he was paid wages until that time, but in order to enable him to arrive home early, he was permitted by his employer to leave the place of his employment at about the hour of 4:00 P.M. He proceeded to drive to his residence along the aforesaid paved highway. The weather was cold, the sky was overcast and a steady drizzle was falling; as the rain fell, it immediately froze upon the wind shield of his automobile, obstructing his view. Upon his reaching the point where said highway was traversed by the railroad track, and as he drove his automobile upon the railroad track, his automobile was struck by a train and he was killed; the accident occurred at approximately 4:20 P.M.

The plaintiff contends that her petition discloses a cause of action because: (a) That as a part of his employment the decedent was required to use his own automobile in transporting himself to and from the place of his work; (b) that due to lack of available living quarters in New Iberia, decedent was required to live in Abbeville, Louisiana, and in going to -and from the place of his employment the decedent was required to traverse the railroad track along which he was killed; (c) that because of his employment on the date of the accident in question, the decedent was exposed to unusual weather conditions which directly caused his death.

In considering these contentions of plaintiff we shall consider them in the above stated order.

The general rule under the Workmen’s Compensation Law of this State is that an injury suffered by an employee away from his employer’s premises, while going to or returning from work, does not arise out of and in the course of his employment. However, this rule is subject to three exceptions: The first exception is where the employee’s duties are such as to require him to furnish his own means of transportation in the actual performance of his work and uses his own means of transportation not only to go back and forth to his work, but also to perform his duties during the course of a day’s business. In such instance, the means of transportation is a sort of instrument or'tool of trade and the employee travels during the course of one day’s work from place to place in the pursuit of his duties. The second exception is where the employer furnishes the means of transportation. The third exception is where the accident occurs near or immediately adjacent to the premises of the employer in the route of ingress or egress used by the employees.

Plaintiff bases her first contention on the fact that decedent, as a part of his employment, was required to furnish his own means of transportation both for himself and for his carpenter tools in going to and from his work in the fulfillment of his contract of employment and was so doing with the knowledge, approval and authorization of his employer and therefore contends that this case falls within the first exception stated and cites cases which she contends support her position. ■

The first case cited by plaintiff is a New Jersey case, namely: Clegg v. Motor Finance Corporation, 28 A.2d 533, 534, 20 N.J.Misc. 437. In that case the court found the facts to be:
“The petitioner on the day of the accident and for some time prior thereto, was in the employ of the respondents, Interstate Insurance Co., whose office was located in Newark, in the capacity of adjuster. Among other duties, it was necessary for him to effect the repossession of automobiles. He had no regular working hours, but was given assignments each day which he would carry over from day to day. It was not unusual for him to work varying hours of the day or night in the performance of these assignments in which he required the use of his automobile. Several days prior to the alleged accident, he was given an assignment to repossess the automobile of one Conklin who was the manager of a grocery store in Nanuet, N. Y., and who resided in New City, N. Y. On the day of the accident, a Saturday, the petitioner in furtherance of this assignment, attempted to contact Conklin at Nan-uet by telephone. Failing in this, he left Newark with his car to go to Nanuet to repossess the car of Conklin. Arriving in Nanuet in the afternoon, petitioner failed to find Conklin’s car in the vicinity of the store and although he made no effort to contact Conklin personally at his store, he tried to reach Conklin by telephone at his home in New City but was unsuccessful. Thereupon, the petitioner left New City in his auto to go to Newburgh, N. .Y., where his wife was visiting some friends. The petitioner spent the remainder of the afternoon and early evening visiting with his wife in Newburgh. Petitioner testified that about 11 o’clock that evening, he left Newburgh in his car to go to New City to see Conklin and, if possible, repossess his automobile. It was while on Route 9-W on the outskirts of New Windsor, N. Y. and between 11 P.M. and midnight, that he met with an automobile accident as a result of which he sustained a fractured leg and was hospitalized for several weeks. From the road map in evidence, it would apepar that New City is about 5 miles north of Nanuet, that New-burgh is about 30 miles north of New City and that New Windsor is about 3 miles south of Newburgh.”

In the opinion, it is stated: “An accident arises ‘in the course of’ his employment if it occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be dwñng that time. , For an accident to arise ‘out of’ the employment, it must be of such a nature the risk of which might have been contemplated by a reasonable person when entering the employment and as incidental to it. The risk is incidental to the employment when it belonged to or is connected with what cm employee is required to do in the performance of his services.” (Italics ours.) We find this to be the rule in this State. See Kern v. Southport Mill, 174 La. 432, 141 So. 19.

Applying the rule to the facts of the case, the court stated: “The field of his employment was not limited by time or material space, but by his ability to cope with and solve the problems incidental to the repossession of an automobile” and held that “the accident occurred in the course of his employment because it occurred while he was on the business of Ms employer and en route to the point where he expected and intended to discharge a given assignment. It arose out of the employment because it was the result of a risk that was directly connected with the special nature of his employment.” (Italics ours.) Und&r our jurisprudence this case would fall under the first exception to the general rule supra.

The next case cited is the case of Davis v. Bjorenson, 229 Iowa 7, 293 N.W. 829, 830, a case decided by the Supreme Court of Iowa. In this case, the claimant was injured by driving from his home to the place of his employment and the Court found that the claimant worked' as a mechanic at his employer’s place of business and this “duties consisted of inside shop work and outside service calls requiring transportation. These calls were made from the shop in the daytime and from claimant’s home at other times upon call by the employer to claimant at his home. Under the employment agreement claimant regularly furnished his automobile to the employer for use in the business as a service car. At night the car was kept at claimant’s home where he was subject to emergency service calls requiring its use. During regular working hours!, the car was kept at the employer’s place of business, for use in the business, not only by claimant, but also by the employer and by other employees. Thus the car was an instrumentality of the business at all hours of the day and was subject to that use at night. It happened that claimant received no orders to make emergency service calls during the night before he was injured. Consequently, it was his duty and this duty was regular and definite, to take the automobile to the employer’s shop for its use in the business, by others as well as claimant. In so' doing he was performing for his employer a substantial service required by his employment at the place and in the manner so required. In the language of the able trial court, ‘Claimant had no selection of his mode of travel to work, that he was required under the terms of his contract to drive his own car from his home to the shop where it was available to his employer for use in the employer’s business.’ ” (Italics ours.) The court held that the claimant was in the course of his employment when so engaged, and that his injury arose out of his employment. The distinction between this case and the case at bar is very evident.

The plaintiff also cites the case of Ohmen v. Adams Brothers et al., 109 Conn. 378, 146 A. 825, 827, a Connecticut case. In that case plaintiff employee was a carpenter, and it was his custom to be at his place of employment ready for work at 8 o’clock. His wages began at .that hour whether he had reached the job or not. He drove his own car to work, which his employers knew and acquiesced in. On the morning he was injured he had gone, with the consent of his employers, to vote, and received his injuries at about 9:20 while on his way from the poll after he had reached the main highway and was proceeding to his work by the shortest route there and by the same highway he would have taken had he gone directly from his home to his place of work. The court held: “From the time he reached the main highway and was proceeding to' his place of work he was in the course of his employment. * * * He was going by the direction of his employers to his work, in a customary conveyance of which they had knowledge, and by a route which was the shortest route to the place of his work, and one which it was reasonable for him to take. He was on the same highway which he would have taken had he gone directly from his home to his place of work. * * * The injury came within the statutory definition, because it happened to the plaintiff while he was engaged in the line of his duty in the business of his employer outside the premises of his employer, but within the hours of his employment and at a place where the employee had a right to be by the employer’s direction. It came within our definition because it took place within the period of the employment, at a place where the employee might reasonably have been, cmd while he was reasonably doing something incidental to it.” (Italics ours.)

We are not favored with the statutory definition referred to in the opinion, however we note that in the case of Whitney v. Hazard Lead Works, 105 Conn. 337, 136 A. 105, 106, that, in that State like in our State, an employee is not, as a general rule, entitled to compensation for injuries received .upon a public highway while going to and from work and that the rule is subject to four exceptions, one being “Where the employee is using the highway in doing something incidental to his employment, with the knowledge and approval of the employer.” The Court decided that that case fell within this exception. The only similarity of that case to ours that we can find is that plaintiff in that case was a carpenter and that he was employed by a contractor as in our case.

However, the Ohmen caSe was later distinguished by the same Connecticut Court in De Rosa et al. v. Levering and Gerrigues Co., 111 Conn. 655, 151. A. 246. In that case, a steel structural iron worker, whose duties required him to work in structural steel erection throughout the New England States, was killed while riding to work from Hartford to New Haven. He lived in Hartford and his work was in New Haven. He had to use his own automobile to go to and from his work because he did not live in the same town wherein he worked. In that case, the Court held that the accident had not occurred while the employee was in the course and scope of his employment. The case was differentiated from the Ohmen case in that in the De Rosa case, the employee did not use his car in connection with the actual duties of his job, using the automobile only to go back and forth to work, while in the Oh-men case the employee used his car to go from place to place as required by the duties of his employer. The De Rosa case, therefore, is more in point to our case than the Ohmen case. In fact, the only difference we find in the facts of the two cases is that in our case the employee was a carpenter while in the De Rosa case the employee was a structural steel worker, a distinction immaterial to the 'decision of the case.

The plaintiff cites the case of Neyland v. Maryland Casualty Co., La.App., 28 So.2d 351. Without discussing the facts and the holding of our Supreme Court, we do not find wherein this decision is applicable to the case at bar. The holding of that case comes within the second exception to the general rule. We could cite many other cases so holding.

Likewise, we find that the case of Osborne v. McWilliams Dredging Co., 189 La. 670, 180 So. 481, a case cited by plaintiff, is inapplicable to the determination of the issues herein. That decision falls under the second exception to the rule in that due to the location of work or the duties to be performed by the employee, the employee was required to have means of transportation to and from his home, which means of transportation was furnished by the employer. The employee used, with full permission of his employer, the method of transportation as used by the employer.

In the case at bar, plaintiff was in the employ of the defendant in the capacity of a carpenter, which involved work on and in connection with the construction of a definite building in the City of New Iberia. His employer was not concerned as to how he reached his place of employment. The means of transportation was at the employee’s discretion. Decedent had a definite place of employment; it was up to him to be at that definite place and at the hour to begin his duties. Naturally, it was required of him to have his tools with him in order to perform his duties. The employer was not concerned as to where he kept these tools when not in use. The fact that the decedent lived in the City of Abbeville and not in proximity of his work did not and could not concern the employer. It is evident from the petition that it was of no concern to the employer as to how decedent traveled to and from work; in so far as the employer was concerned, the method of conveyance could be by the use of his own car, by the pooling of cars by fellow employees, by bus or other public conveyance. It was the fact that he lived in Abbeville which required him to drive to and from Abbeville to New Iberia and not the nature of his duties. The cases relied upon by the plaintiff are clearly inapposite to plaintiff’s case.

With reference to plaintiff’s second contention, that is, that the decedent was required to cross the railroad intersection, where his death occurred, as an additional hazard of his employment, the plaintiff cites many cases. We see no useful benefit to discuss or analyze these many cases. They all fall within the classification of cases in which the accident happened in such close proximity to, or so connected with the premises, that, in principle it may be considered as having happened on the actual premises of the employer, and consequently to have arisen in the course of employment. See Cudahy Packing Co. of Nebraska v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532, and Le Blanc v. Ohio Oil Company, 7 La.App. 721. In the case at bar, the accident happened 1.4 miles from the city limits of New Iberia. The record does not show the distance from the locus of the work where decedent performed his duties. It caqnot therefore be said that the accident in this case happened in close proximity to or so connected with the premises, that it may be considered as having happened on the actual premises of the employer. Furthermore, the road traveled by the decedent cannot be said to be the means of ingress and egress of the employer’s employees to the premises. Therefore, the caies cited and relied upon by the plaintiff are not in point.

As to plaintiff’s contention that this railroad crossing was an additional hazard of his employment, the fact that decedent •had to traverse the railroad track was not because his employment required it, but because he was living in Abbeville. For reasons personal to himself, he exposed himself to a hazard which was not inherent to his employment or common to the other employees of the defendant. There is not anything in defendant’s business that especially exposed his employees to the risk of being hit by a railroad train.

As to plaintiff’s third contention, that is, because of his employment on the date of the accident in question the decedent was exposed to unusual weather conditions which directly contributed to his death, she cites and relies upon the case of Rogers v. Mengel Co., 189 La. 723, 180 So. 499. We do not see wherein this case is applicable. In that case, the Supreme Court decided that plaintiff’s petition disclosed, under the facts alleged, that plaintiff had been injured in the course and scope of his employment. In the same case, La. App., 187 So. 297, we held that it appeared to us, admitting that the plaintiff was in the course and scope of his employment, that the fire which caused the injuries was unnecessary. The prevailing weather condition in the case at 'bar would only be pertinent if the accident had occurred during the decedent’s course and scope of his employment.

Being of the opinion that the alleged ■accident did not occur during the course and scope of the decedent’s employment, the judgment appealed from is affirmed.