author: LE BLANC, Judge.

text:
    YATES v. WILLIAMS et al.
    No. 2950.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.

      Braxton B. Croom, of Baton Rouge, for appellants.
    Allison R. Kolb, of Baton Rouge, for appellee.
   LE BLANC, Judge.

This is a suit for damages for personal injuries sustained by Leonard C. Yates, plaintiff in this suit, but who is now deceased and has been substituted by the proper parties. He was injured on June 6, 1946 around 8 o’clock in the morning near a service station operated by the defendants at the corner of Scenic Highway and Choctaw Road in north Baton Rouge.

The accident was a rather unusual one. Pie was standing near a sign post of the bus company waiting for a bus; this sign post stood about 18 feet from a lot to the rear of the service station, on which automobiles were usually parked. There is some dispute as to whether it was used by the defendants to park the automobiles which they serviced or by other parties but the preponderance of the testimony is that it was a place used by the defendants for parking the cars of their customers and, if it is shown that the car which injured Mr. Yates was one of such cars, then they were correctly held liable for the injuries which he sustained.

From this parking space there is a slope to the street and undoubtedly Mr. Yates, was injured when an unattended car that was parked there ran down this slope and struck him when he was standing next to. the bus sign and severely injured his right, leg.

The suit is instituted against the defendants, Kirk E. Williams, Sr., and Kirk E. Williams, Jr., and Cecil L. Sanders, said to be a commercial partnership operating' under the name of Kirk’s Service Station. It is alleged in plaintiff’s petition that they were the operators of the parking lot on. which this car belonging to one of their customers was parked and that they,, through their employees, negligently permitted it to remain standing in neutral gear, and in such a position that it could roll down the slope from the parking lot into the street. It is also alleged that it was negligence on their part to maintain the premises on which cars were parked in such a condition as to make it dangerous for any one to be passing on the street opposite the slope without any warning signs. Further it is alleged that the doctrine of res ipsa loquitur applies.

To his petition the plaintiff had added interrogatories on facts and articles addressed to the defendants tending to prove by them that the car which ran over him. was a car of one of their customers and in their custody. Two of the defendants failed to answer the interrogatories and plaintiff then took a rule on them to show why, under the provisions of Article 349 of the Code of Practice, the facts concerning which they refused to answer should not be taken for confessed. This is a rather important point relied on by the plaintiff but we do not find it necessary to resort to it in order to hold the defendants liable as they were properly held by the district judge on the testimony found in the record.

Plaintiff’s demand is for the sum of $3,000. After the case had been put at issue by the defendants who seem to maintain that they knew absolutely nothing about such an accident having occurred, judgment was rendered by the district court in favor of the plaintiffs in the sum of $679. Defendants appealed and plaintiffs have answered the appeal asking for an increase in the amount of the judgment by the sum of $2,000.

It is not disputed that the plaintiff was injured on the date alleged in his petition and in the manner stated and the principal defense, as we view it, is that none of the defendants apparently knew whose car it was that rolled down the grade into the street and ran over him. It is intimated by the testimony of some of the defendants that this parking lot was used indiscriminately by the public but regardless of whether it was or not the fact remains that it was used by the defendants to park the cars which they serviced in their service station.

No one saw the car which ran over the plaintiff except the plaintiff himself and as he had died before the trial of the case his testimony by which it could have been positively identified, was not available. However one of the witnesses for the plaintiffs, a man by the name of Lee L. LeBlanc, who is thoroughly disinterested, testified that just about the time of the accident he was driving on the street next to where the accident occurred; that he was going east and as he reached the corner where the service station was situated he saw Mr. Yates standing against the sign post looking at his leg which was bleeding and that at the time he also noticed that there was a maroon Studebaker with a brown stripe trimming right next to him resting against the post. He also saw a colored man running from the back of the station to the side to talk to some one. All of this happened while he was waiting for the street signal light to change and as it changed, he proceeded and did not stop to make inquiries as to what had happened. This witness’ testimony is corroborated to the extent that the defendant, Mr. Kirk E. Williams, Jr., admits that his attention was called to the accident by one of his colored employees and that he himself rushed over to render assistance to Mr. Yates and asked one of his customers who was at the station at that time to take him to the hospital.

On the same day that the accident happened, Mr. Yates’ son-in-law, Edgar J. Mut, called on Mr. Williams who apparently was in charge of the station and discussed the accident with him. Mr. Mut testified that at that time Mr. Williams admitted to him that he knew whose car it was that had rolled down the slope and run over Mr. Yates but would not tell him the name of the owner because that was unnecessary as the station, meaning the service station, was responsible for the action of that car.

These are the main points on which the district judge relied in rendering judgment in the case. He very ably summarized the testimony in the written opinion filed by him in the record, the essential parts of which show that the automobile which caused the injury was in the custody and under the iontrol of the defendants and that the accident would not have occurred unless negligence appeared in some form. As the facts surrounding the happening were peculiarly within the knowledge of the defendants and they were not equally available to the plaintiffs, it was the duty of the defendants, under the doctrine of res ipsa loquitur, to come forth with proof sufficient to exculpate themselves -from the inference of negligence which had arisen. As they had failed in that duty he correctly held them liable.

The award of $679 was made up of the following items: Medical and hospital bills, $39; loss of salary $140 and physical injuries, pain and suffering $500. We believe that the $500 item should be increased. Dr. F. U. Darby who treated Mr. Yates described his wound as a laceration of the inner surface of the right leg approximately six or eight inches long and about one and one half inches deep. It was deep enough to involve all the muscles of the leg. He was under his care and treatment for ten days at the end of which time the sutures were removed. Mr. Yates was cautioned by him about placing weight on the leg and instructed to use crutches. One of his daughters with whom he resided for more than four weeks after the accident states that he complained most of the time. He was 73 years of age and employed as a night watchman by Farns-worth Construction Company. When he resumed his duties as watchman he was still using his crutches and had to be taken to the plant in an automobile. After discarding the crutches he walked with a limp until he died on December 29, 1946. Although the cause of his death had no connection with the accident and injury he sustained on June 6, 1946, it would seem reasonable that it produced a shock on a man of his age and may well have been the cause of the moody spells his daughter says he experienced from time to time thereafter. This item will be increased by the sum of $250 making the total award $929.

For the reasons stated it is now ordered that the judgment appealed from be increased from the sum of $679 to the sum of $929 and that as thus amended it be affirmed.


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    KNIGHT v. TRAVELERS INS. CO.
    No. 2949.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.
    Cashio & Cashio, of Baton Rouge, for appellant.

      Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellee.
   DORE, Judge.

This is a suit arising out of personal injuries sustained by the plaintiff when she fell in the store of Ourso & Company, located on the Plank Road near the city of Baton Rouge.

The petition shows that the department store of Ourso & Company faces east on the Plank Road and that the dry goods department of said store and the grocery department are not on the same level, that there is a drop of some 8⅞4 inches from the dry goods department to the grocery department; that to take care of this difference in floor level there is a step on the grocery department side which is 2½ inches from the floor level of the dry goods department, which step has a width of approximately 14¼ inches, and a drop of 4% inches to the level of the grocery department floor.

The petitioner alleges further that the step is so constructed that while walking from the dry goods department to the grocery department, which is in a northerly direction, it is practically impossible to see and observe the immediate drop in the floor; that when petitioner completed her shopping in the dry goods department she was attracted to the meat display case, which is located in the grocery department near the base of the step and on the northwest side thereof; that on the northeast side of the step there is a rack which contains bread, cakes and other delicatessen; that the color of the floor in the dry goods department and the grocery department are similar to the step, and that there is no sign or warning of any kind to warn invitees of the sudden drop in the floor and that it is impossible to see the step while walking from the dry goods department into the grocery department, unless one is looking down directly on the floor; that as a result of these circumstances she walked directly to the grocery department towards the meat counter, being attracted to the meat display, and upon arriving at the sudden drop from the dry goods department to the grocery department, she missed her step and fell into the grocery department, where she sustained various injuries itemized in her petition; that this was her first visit to Ourso & Company store and that she had no knowledge or warning whatsoever of the sudden drop in the floor which caused her fall.

She alleges that the accident was caused solely by the negligence of Ourso & Company in having this sudden drop in its floor levels, without any warning sign of any kind, in placing an attractive display which would necessarily divert the attention of a customer in the dry goods department to the extent of not noticing the sudden drop in the floor. She prays for judgment against the Travelers Insurance Company, as insurer of Ourso & Company in the full sum of $9,500, plus legal interest and costs to cover the various personal injuries sustained by her.

In its answer the defendant admits that it is the insurer of Ourso & Company and admits the allegations with reference to the difference in floor levels and with reference to the step between the two departments, but denies that there was any negligence on the part of Ourso & Company. In the alternative, defendant avers that plaintiff was walking in the store in a careless and inattentive manner and without regard to existing Aonditions, which she knew or should have known with the exercise of ordinary care and caution; that the step in question was well lighted by a skylight, as well as by artificial light, and that any one using ordinary care in walking from the dry goods department to the other department could have seen the step, and the carelessness and negligence of plaintiff was a contributory cause to the accident which should bar her recovery.

After hearing the case the District Court, for written reasons assigned, came to the conclusion that plaintiff failed to show that Ourso & Company were negligent and therefore rendered judgment in favor of the defendant and dismissed plaintiff’s suit at her costs. Plaintiff has appealed.

The testimony is very much the same as the pleadings. The plaintiff, Mrs. Louise B. Knight, testified that she entered the department store on the dry goods side, accompanied by Mrs. S. H. Radford, one of her neighbors; that this was her first visit to the store of Ourso & Company, and at this point it may be stated that the grocery department of Ourso & Company was constructed before the other department and had a front on the Plank Road of 37½ feet by 165 feet, with a floor built of concrete. Some years later the dry goods department was built south of and adjoining the grocery department with a front on Plank Road of the same dimensions and a depth of the same dimensions, and with a floor built of oak blocks at a level 8½ inches above the floor of the grocery department and connected with the grocery department by means of this step as set forth in plaintiff’s petition. The plaintiff testified that she walked around in the dry goods department for the purpose of purchasing certain items, and as she arrived at the entrance of the grocery department she was attracted by the display of meat and that she thereupon proceeded towards the meat counter, not realizing that there was a drop in the floor, and as she arrived at the drop she lost her step and fell heavily in the grocery department.

Her neighbor, Mrs. Radford, testifies to the same effect. She states that she was aware of the step, having visited the store previously and having entered in the dry goods department from the grocery department where the step could be seen; that, however, the step could not be seen from the dry goods department unless one was looking down at the floor; that she forgot to warn her friend, Mrs. Knight, of the presence of this step.

Both Mrs. Knight and Mrs. Radford testified that on the day of the accident it had rained and that at the time of the accident, between 11 and 12 o’clock, it was cloudy and that the darkest spot in the store was at the entrance from one department to the other; in other words, at the location of the step where the accident occurred. They both testified also that Mrs. Knight suffered severe injuries and that she was thereafter treated by Dr. Noto for body injuries, and by a Mississippi dentist for a broken tooth resulting from the accident; that she was confined to her home some 2½ months and has continued to suffer pain since that time and is still unable to do her house work.

Mrs. Roger James, the daughter of Mrs. Knight, testified in corroboration of the disability and suffering sustained by her mother as a result of the accident. She also testified that she had a telephone conversation with reference to her mother’s condition with one of the Oursos, whom she could not identify, and that he told her “See that she gets every attention she needs”.

Mrs. L. A. Thomas testified that she is a neighbor of Mrs. Knight, renting an apartment from her, and she corroborates the testimony of the other witnesses with reference to the pain and suffering and disability sustained by Mrs. Knight.

The defendants’ testimony on the question of liability consists of the testimony of Harold Ourso, the manager of the store, and of Mr. J. Roy Haase, the architect who built the store, and Mrs. Eloise Kirsch, an employee who witnessed the accident, and Mr. J. C. Werner, Jr., the official observer for the U. S. Weather Bureau.

Mr. Ourso testified that his store employed an average of 23 employees, and had a daily average of about 600 customers; that the first department built was the grocery department of the dimensions set forth hereinabove, and that some years later, in 1941, the dry goods department was added, also of the dimension set forth above; that the grocery department floor was a concrete floor and that the floor of the dry goods department, built 8½ inches above the level of the grocery department floor, was of oak blocks; that these oak blocks were sanded when the floor was constructed, and thereafter polished and retained the original color, to-wit, an orange color; that consequently there was a marked contrast between the orange colored floor of the dry goods department and the gray concrete floor of the grocery department, which was very apparent to any one paying the slightest attention. Mr. Ourso testified further that at the entrance from the dry goods department to the grocery department there was located a sky light, the glass part of which measures 3', 10" east and west by 5', 10" north and south, and that the light from this sky light was thrown directly at the division, around the step, between the two departments; that besides this natural light, there was a large 200 bulb light at the meat counter, slightly more than six feet from the step, and another large light on the northeast side in the dry goods department, also some six feet from the step, and lights in the office, which is located in the dry goods department and extending up to the step, and that these artificial lights also help to make the location of the step the best lighted part of the whole store. Mr. Ourso testifies that shortly before the accident he had been outside of the store and that it was not raining at that time, nor at the time of the accident. He stated that he had been one of the original members of the firm of Ourso & Company and had been continuously in the store since its establishment and that during all these years only two other accidents had occurred at the step. He testifies that one of these accidents was caused by a woman backing into the step and that she at that time stated that it was caused solely by her negligence. The other accident in question is not explained, but he states that neither of the two prior accidents caused any injury. He testifies further that when he arrived in the store he saw Mrs. Knight sitting in a chair in the dry goods department and that he thereupon gave her some liniment and that she applied it on her bruised knee and that she did not then complain of any serious injuries, and that he accompanied her and Mrs. Radford to plaintiff’s car and that, after a short conversation, Mrs. Knight, accompanied by Mrs. Radford, drove off; that thereafter he attempted to contact Mrs. Knight on at least four occasions, but was unable to do so. He admits having had a telephone conversation on one occasion with Mrs. James, daughter of Mrs. Knight, but denied having said anything to her which would indicate responsibility on the part of his store for the accident.

Mr. Haase, the architect, corroborates the testimony of Mr. Ourso with reference to the construction of the building, and he gives his expert opinion that the step in question is entirely safe in view of the sky light, the artificial lights, and in view of the contrasting colors between the floors of the two departments. It is admitted that there are no signs of any kind indicating the drop in the floor level, but as an expert, he maintains that such signs are not necessary.

Mrs. Hirsch, the employee of Ourso & Company, testified that when Mrs. Knight fell, she assisted her in walking to a chair some few feet away,-in the dry goods department, and that she did not appear to be seriously injured.

Mr. Werner, the weather man, testified that there was rain falling on the day of the accident up to 9 a. m., as shown at his observation station, located some two miles from the scene of the accident. He states that from his observation this rainfall was general and that thereafter the weather was classified as “cloudy”, but that this does not mean that the sun was not shining. In other words, that his records show that though the skies were cloudy, it was not overcast to the extent that the sun did not shine. He admits that he cannot say with certainty that there was not any local shower more than two miles away at the time this accident occurred.

Most of the testimony is medical testimony with reference to the condition of the plaintiff resulting from the accident. It is not necessary to consider that, due to our conclusion as to liability.

From a review of the testimony, it seems clear that Mrs. Knight on her first visit to this store, was attracted by the meat display and that her attention was focused entirely on this meat, which was hanging on hooks over the main counter, and that not knowing her surroundings, she proceeded, without paying any attention to the floor level, and as a result stumbled on the step or missed the step and thereupon fell. The question is can we, on these facts, convict Ourso & Company of negligence, in view of the other facts with reference to the construction and lighting of the department store? The evidence preponderates to the effect that the floors- of the two departments were of contrasting colors and that the division, including the step between the two departments, was well lighted, both by a sky light and by artificial lights. The fact remains, however, that there were no warning signs of any kind.

It is al'so shown that although 600 customers, on the average, entered the store each day, six days a week, since 1941, only two other accidents occurred at the drop between the two floor levels, both of which were obviously minor accidents, and one of which was admitted by the customer to have been due to her negligence.

In the light of the above the trial judge concluded thus: “It is therefore my opinion that no negligence can be attributed to the proprietor of the store insured by the defendant.” The trial judge, as a basis for his conclusion, cited and quoted extensively from the cases of Boyle v. Preketes, 1933, 262 Mich. 629, 247 N.W. 763, and Benton v. United Bank Building Co., 1944, 223 N.C. 809, 28 S.E.2d 491.

In the Boyle case, supra, the factual situation and the contentions therein are nearly identical with the present case. The Court said [262 Mich. 629, 247 N.W. 764]:

“If defendants’ premises were properly lighted, they were not required to post warnings of the steps between the two portions of their place of business. If the place was sufficiently lighted, the steps themselves constituted as effective notice to defendants’ customers as it was possible to give.
“Touching plaintiff’s claim that her attention was distracted by the display of defendants’ wares, it may be said that there was nothing unusual as to the manner or character of the display. We find nothing in this record which would justify the claim, at least made inferentially in behalf of appellant, that the display of the merchandise here kept for sale because of its attractive nature can be held to lessen the degree of care which plaintiff was required to exercise for her own safety. * * * It conclusively appears that the illumination was such that plaintiff could have seen the steps had she looked. There is no credible testimony that defendants were guilty of negligence in failing to properly light their place of business.
“ ‘It has long since been recognized that falling downstairs, where the mishap was not imputed to unknown or concealed defects, belongs to that class of ordinary accidents which ought to be imputed to the carelessness or misfortune of the sufferer.’ Davis v. Buss Machine Works, 169 Mich. 498, 500, 135 N.W. 303, 304. * * *
“The following from the Garret Case, supra [Garret v. W. S. Butterfield Theatres, Inc., 261 Mich. 262, 246 N.W. 57], is quite applicable to the instant case: ‘Different floor levels in private and public buildings, connected by steps, are so common that the possibility of their presence is anticipated by prudent persons. The construction is not negligent unless, by its character, location or surrounding conditions, a reasonably prudent person would not be likely to expect a step or see it. * * * The situation contained no element of a trap. A reasonably prudent person, watching where he is going, would have seen the step. Defendant is not under legal duty to prevent careless persons from hurting themselves. We think defendant was not guilty of negligence.’ ”

In the Benton case, supra, anent plaintiff's contention that there was no sign or warning of any kind to warn invitees of the sudden drop in the floor, the Court said [223 N.C. 809, 28 S.E.2d 493]: “Any danger incident to the difference in the levels of the two floors necessitating the step down being obvious to one who looked, there was no duty resting upon the defendants to give notice thereof. The law imposes no duty upon one to give notice of a dangerous condition to another who has eyes to see and an unobstructed view of such condition, but fails to take time to see such danger. Generally, in the absence of some unusual condition, the employment of a step by the owner of a building because of a difference between levels is not a violation of any duty to invitees. Where a condition of premises is obvious to any ordinarily intelligent person, generally there is no duty on the part of the owner of the premises to warn of that condition. Sterns v. Highland Hotel Co., 307 Mass. 90, 29 N. E.2d 721. There is no duty resting on the defendant to warn the plaintiff of a dangerous condition provided the dangerous condition is obvious. Mulkern v. Eastern S. S. Lines, 307 Mass. 609, 29 N.E.2d 919.”

We find these cases to be apposite to the case at bar and are decisive of the issues therein. These cases are in line with our jurisprudence holding that a storekeeper’s obligation to his customers and invitees is to use ordinary care to keep the aisles, passageways, and floors of his premises in a reasonably safe condition. Hays v. Maison Blanche Company, La.App., 30 So.2d 225, and the cases therein cited,

Finding no error committed by the trial court, the judgment appealed from is af firmed.


author: LeBLANC, Judge.

text:
    GUINN v. HOUSTON FIRE & CASUALTY INS. CO.
    No. 2940.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.
    Rehearing Denied Dec. 30, 1947.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellant.
    Watson, Blanche, Fridge & Wilson, of Baton Rouge, for appellee.
   LeBLANC, Judge.

This case was submitted to the district court on an agreed statement of facts on which the trial judge resolved the question at issue in favor of the plaintiff and awarded her judgment in the sum of $2,000, the amount she was seeking to recover from the defendant insurance company. From that judgment the defendant has taken this appeal.

From the statement of facts found in the record it appears that the plaintiff, Mrs. Isabelle Guinn, on August 3, 1942, sold to a party by the name of C. Bailey Behrnes, a certain property situated on Jefferson Highway in the Parish of East Baton Rouge for the price and sum of $18,000. In representation of the purchase price Behrnes executed one note for the sum of $9,000 payable in forty-five monthly installments of $200 each, commencing November 1, 1942 with interest at 6%, another note for the sum of $6,408 payable September 1, 1946, with interest at 6%, and he also assumed the payment of a series of notes aggregating $2,592 which, it was recited in the act of sale, were then held by Mrs. Leslie Michael Pecue. These notes were secured by a first mortgage on the property sold.

The two notes executed by Behrnes were secured by a vendor’s lien and mortgage on the property and he also agreed to have the property purchased insured against loss by fire in the sum of $3,000. In carrying out that obligation he purchased a policy of insurance from the defendant, Houston Fire & Casualty Insurance Co., which covered the main building on the property to the extent of $2,000.

On December 4, 1945, the building which had been insured was totally destroyed by fire and notwithstanding the fact that there was a loss payable clause in favor of the first and second mortgagees as their interest may appear, the insurance company, in settlement of the loss, issued its draft on December 28, 1945 to the joint order of Mr & Mrs. C. Bailey Behrnes, Leslie Pecue and Louisiana National Bank for the sum of $2,102.11, totally ignoring Mrs. Isabelle Guinn, the second mortgagee. The amount of $102.11 included in the draft appears to have been due the Louisiana National Bank under a policy endorsement agreement and is not involved in this lawsuit.

The draft contained the statement to the effect that it was in payment of the loss sustained and there is no question but what it was given by the insurance company in an attempt to pay for the loss which it had covered.

In due time the draft was endorsed by C. Bailey Behrnes, Mrs. C. Bailey Behrnes, Mrs. Leslie Pecue and Leslie Pecue and was promptly paid on presentation at the bank on which it was drawn. From the agreed statement of facts it also appears that although the Pecues name appeared on the draft and they endorsed it, they did not participate in the proceeds, as apparently, they waived their share in favor of the Behrnes. In the meantime, however, they held the last of the series of mortgage notes which had been assumed by the Behrnes. This last note amounted to the sum of $864.

On March 8, 1946, the plaintiff, through her attorneys, wrote the local agent of the defendant insurance company in Baton Rouge advising him that they were making demand that Behrnes apply the balance due on the Pecue mortgage note in the amount of $864 out of the proceeds of the draft which had been issued in payment of the loss by fire and that they were likewise calling on Behrnes to instruct them, the insurance company, to pay the remainder of the $2,000 fire loss to Mrs. Guinn who was the holder of the second mortgage. Apparently that letter went unheeded for on August 20, 1946, plaintiff again through her attorneys, addressed a letter to the defendant company at its office in Houston, Texas, informing them that they had written their local agent making demand for the loss wrongfully paid to the Behrnes, in violation of the mortgage payable clause in the policy, and making final demand for the full amount of the $2,000 with 5% interest per annum from date that payment had been made to C. Bailey Behrnes.

In the meantime, that is, on May 22, 1946, plaintiff had instituted foreclosure proceedings on the two vendor’s mortgage notes which she held, one in the sum of $9,000 and the other in the sum of $6,408. The property was advertised to be sold on July 1'3, 1946 but as it was discoverd that there was some defect in the advertisement, the sale was postponed. On that date however plaintiff paid to Mrs. Leslie Pecue, the holder of the last of the series of first mortgage notes, the sum of $903.60 in full. for the principal and interest due at that time. The property was re-advertised for sale on August 17, 1946, without benefit of appraisement, and on that date, it was adjudicated to the plaintiff for the sum of $7,000. It was upon the defendant’s refusal to pay the $2,000 as demanded by plaintiff in her attorney’s letter of August 20, 1946, that she instituted this suit on August 28, 1946 to recover that amount in full, with interest, as already stated.

The defendant company resisted the suit on the ground that it had already issued its draft in the sum of $2,102.11 in full payment of the fire loss and had discharged its liability in full under the policy and the endorsements on the draft it had issued. It also contended that payment of that sum to Mrs. Leslie Pecue and Leslie Pecue had fully discharged its liability to them under the mortgage payable clause and therefore plaintiff could not acquire from either of them, by virtue of having purchased the note of $864 from them, any greater right than they, or either of them had as the owner of that note. It also contended that as the property was sold without the benefit of appraisement, by virtue of Act No. 28 of 1934, the mortgage indebtedness on the property was fully satisfied and discharged by reason of the Sheriff’s sale even though the proceeds of such sale were insufficient to pay the mortgages in full.

The mortgage clause attached to the policy of insurance reads in part as follows : “Loss or damage, if any, under this policy, shall be payable to Leslie Pecue and Mrs. Isabelle Guinn, Baton Rouge, La. as first and second mortgagee (or trustee) as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy. In the event the mortgagor or owner neglects to pay any premium due under this policy, the mortgagee (or trustee) in consideration hereof covenants and agrees with this company that it will, on demand, pay the same.”

Thus it is seen that this defendant insurance company entered into a binding agreement with Leslie Pecue and with Mrs. Isabelle Guinn in the event a loss arose under the policy and it became necessary for it to pay. That agreement was to pay each, as the first and second mortgagee, respectively, the amount of the loss as his or her interest may appear. In the case of Leslie Pecue, the amount was the sum of $864 and in the case of Mrs. Isabelle Guinn, it was an amount far in excess of the full amount of the draft which was issued to cover the entire loss. The obligation was a personal one in favor of the two named mortgagees and when the loss arose on December 4, 1945, the policy being then in full force and existence, the insurance company became obligated to each in the amounts stated. In issuing its draft on December 28, 1945, in favor of certain parties, including Leslie Pecue, it fulfilled its obligation as far as he was concerned, as the draft was for an amount more than his interest as mortgagee appeared, but in omitting to name Mrs. Isabelle Guinn as a payee, it failed in its obligation to her as the other party it had contracted with under the mortgage clause in the policy.

But it is urged on behalf of Mrs. Guinn that by having merely endorsed the draft without receiving any of the proceeds and by having retained the mortgage note he held, Pecue waived all of his rights under the policy in favor of Bchrnes and that Mrs. Guinn having subsequently bought Pecue’s note from him, she should not be made to suffer the loss of that amount. We believe, however, that Mrs. Guinn’s mistake was to buy and pay for the Pecue note. She bought it on July 13, 1946, after it was more than three years past due and when she knew that the insurance company had issued its draft to Pecue, the holder, and other parties, in an amount more than sufficient to pay it in full. She certainly had this information as early as March 8, 1946 for on that day, through her attorneys, she wrote the insurance company advising that she was making demand that Behrnes apply the sum of $864 out of the proceeds of the draft that had been issued in payment of the Pecue first mortgage. The insurance company was under no obligation to see that Pecue surrendered and cancelled the note. All that it was interested in was in carrying out that part of its agreement to pay him to the extent that his interest in the loss that had arisen appeared and this it did by making him a payee of the draft it issued in payment of the loss. Pecue endorsed the draft and it was duly paid. What disposition he made of the proceeds, as far as he was concerned, was a matter in which it was not interested and for which it cannot be held responsible.

The second contention raised by counsel for the defendant is to the effect that the plaintiff, having permitted the property to be sold at foreclosure without the benefit of appraisement, the indebtedness claimed, as arising under the insurance, had been wiped out by virtue of the provisions of Act No. 28 of 1934. We are unable to read in that act anything which supports counsel in their contention. That act as stated by the Supreme Court in the case of Southland Investment Co. v. Motor Sales Co. et al., 198 La. 1028, 5 So.2d 324, 325, “declared as a public policy of this state that ‘where any mortgage or other creditor takes advantage of the waiver of appraisement of the debtor and provokes a judicial sale, without the benefit of ap-praisement, of the encumbered property, whether the same be real or perso'nal, or of both character; and the proceeds of such sale are insufficient to satisfy the debt for which said property is sold, said debt shall nevertheless stand fully satisfied and discharged, and such mortgage or other creditor shall not thereafter have the right to proceed against the debtor or any other of his property for such deficiency, in no manner whatsoever.’ Section 1. Unquestionably this act was enacted for the bene fit and protection of the mortgage debtor * * (Our italics.) The mortgage debtor in this case is not seeking any benefit or protection under the act. In fact he ought to be well satisfied in the way things turned out as he undoubtedly received $2,000 which he was not entitled to when the insurance company issued its draft in his favor along with the first mortgage creditor who waived his right ■also in his favor. The act itself seems to be very plain in its terms that all it intended to do was to restrict the mortgage or other creditor who had the property securing his debt sold without the benefit of ap-praisement, from proceeding against the debtor or any of his property for a deficiency judgment and it certainly did not have in mind to prevent him from proceeding to collect a claim which he thought he was justly entitled to and which had nothing to do with the mortgage indebtedness itself. As stated heretofore the loss payable clause in this policy was a personal contract under which the insurance company bound itself to pay first, the first mortgagee and then the second mortgagee in case of loss by fire of any of the property it had insured. That is the obligation which plaintiff has a right to have enforced since the insurance company failed to comply with it so far as she was concerned. Her right of action to recover the amount due her under that obligation arose when the loss by fire occurred on December 4, 1946 and it could not be affected by the foreclosure sale which took place long thereafter.

We hold therefore that plaintiff is entitled to recover from the defendant that amount which was erroneously paid by it to C. Bailey Behrnes and Mrs. C. Bailey Behrncs by its draft of December 28, 1945, that is the sum of said draft that is in excess of the $864 which had to be applied to the payment of the first mortgage under the mortgage clause of the policy, less the sum of $102.11 also included in the said draft but which is not involved in this proceeding. The amount due the plaintiff therefore is the difference between $2,000 and $864, or the sum of $1,136.

For the reasons herein stated it is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount of the award from the sum of $2,000 to the sum of $1,136 and that as thus amended, it be affirmed.

The costs of this appeal are to be paid by the plaintiff, appellee, and all other costs by the defendant, appellant.


text:
    HOLLABAUGH-SEALE FUNERAL HOME, Inc. v. STANDARD ACC. INS. CO. et al.
    No. 2945.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.
    Rehearing Denied Dec. 30, 1947.
    Writ of Certiorari Denied Feb. 16,1948.

      Johnson & Kantrow, of Baton Rouge, for appellant.
    Watson, Blanche, Fridge & Wilson, of Baton Rouge, for appellees.
   DORE, Judge.

This case arises from an intersectional collision between an ambulance owned by the plaintiff and a truck owned by the defendant Frank De Frances, and insured against public liability by the other defendant Standard Accident Insurance Company. Th'e plaintiff alleges that at about 11 o’clock, p. m., on August 31, 1944, their ambulance, being a 1940 Buick ambulance, was being driven by their employee Lonnie R. Scott, on Government Street, in the City of Baton Rouge, heading east, at a reasonable rate of speed not exceeding 35 miles per hour, on his right-hand side; that Oakwood Drive is a street which intersects Government Street Extension, which is a double street with a neutral ground in the center; that the truck of the defendant Frank De Frances was a 1940 Dodge truck, and at the time was being driven by Mrs. De Frances on Government Street going in the same direction as the Buick ambulance, and that as the two vehicles arrived at the intersection of Oakwood Drive, the driver of the Buick ambulance blew his horn and pulled to his left to pass the Dodge truck, but that as the Buick ambulance had just about overtaken the truck and was about to go around it, the driver of the Dodge truck turned to her left without giving any signal or warning, and the driver of the Buick ambulance thereupon pulled the ambulance further to the left and entirely off the pavement on Government Street going around the Dodge truck; that at the same time the driver of the Dodge truck turned the truck further to her left to enter Oakwood Drive, causing the collision of the right front fender of the Buick ambulance against the left side of the truck, toward the front of the truck, which caused the back end of the truck to whip around against the side of the ambulance toward the back part of the ambulance; that as a result of the collision the ambulance ran into a fire plug of the Baton Rouge Waterworks Company,’ located at the northeast intersection comer of the east side of Oakwood Drive and the north side of Government Street; that the resulting damage to the ambulance was in the sum of $474.09, for which judgment is prayed for against the two defendants.

In its answer the defendant admits that Mrs. De Frances was driving the Dodge truck for the benefit of her husband and that the collision did occur, but they deny that Mrs. De Frances was guilty of any negligence resulting in the accident. The answer states that Mrs. De Frances was approaching Oakwood Drive from the west; that she was driving at a slow rate of speed; that she was using all proper and due precaution and care and that as she approached Oakwood Drive and was preparing to make a left turn into Oakwood Drive, she extended her left arm out of the left side of said truck to its full length and signaled a left turn; that she also glanced into her rear view mirrors, one inside of her truck, and the other on the left side thereof, and that she perceived lights of an approaching vehicle at a distance sufficient for the driver of the vehicle to perceive her signals, but that, notwithstanding, the vehicle, which was the ambulance, continued going at a terrific speed, swerved to its left, and struck her on the left side, knocking the Dodge truck back into Government Street, the point of impact on the truck being on the left door, after which the ambulance continued on and struck a fire plug on the northeast corner of Oakwood Drive and Government Street.

The defendants contend that the collision and resulting damage was caused solely by the negligence of the ambulance driver, partly because (1) he violated the highway regulatory laws, in attempting to pass a vehicle at an intersection; (2) he failed to sound his horn or siren; (3) he failed to see or to honor the signal of Mrs. De Frances; (4) he failed to keep a proper lookout; (5) he failed to have his ambulance under proper control, and (6) he was driving at an unlawful and dangerous rate of speed.

After trial of the case, the District Court rendered judgment in favor of the defendants and dismissed the suit at the costs of plaintiff. Plaintiff has appealed.

Government Street is a paved street and runs east and west. Both vehicles were travelling east on Government Street on their right or south side of Government Street approaching Oakwood Drive, which is a dead-end street intersecting Government Street from th'e north. Oakwood Drive is a double boulevard consisting of a neutral ground of six feet separating the two-lane driveway on .each side and running north and south. Traffic going north from Government Street was required to travel on the east lane of the boulevard only. There are no dimensions given or shown for Government Street or the lanes forming Oak-wood Drive Boulevard.

The evidence, on behalf of plaintiff, consisted of the testimony of Lonnie R. Scott, the driver of the ambulance, and of Mrs. Myra Scott, and, on behalf of the defendants, the testimony of Mrs. De Frances.

Lonnie Scott testified that he was driving plaintiff’s ambulance at approximately 35 or 40 miles per hour, accompanied by Miss Myra Davis (whom he later married) and by a Mr. Martinez; he was the driver, Miss Davis was sitting next to him, and Martinez was sitting next to her. They had been to Pride to take a patient from the hospital to her home, and were on their way to take Miss Davis to her home on Clearcut Road at the time of the accident. The weather condition was fair, the visibility was good and he could see the truck for quite a distance ahead of him, travelling on its right-hand side at the moderate rate of speed. When about 50 yards back of th'e truck he perceived the truck; when he was about 25 yards away from the truck, he blew his horn and turned to his left to pass the truck; as he approached the truck to pass it on the left-hand side, he again blew his horn; both vehicles were approaching Oakwood Drive but had not yet reached Oakwood Drive. Just as the two vehicles were about to reach the western side of Oakwood Drive and the ambulance had gotten up to the back end of the truck and while he was still blowing his horn, Mrs. De Frances stuck her hand out, angling her truck to the left. He pulled the ambulance almost in the ditch when he saw the accident was inevitable. He places the point of impact opposite the entrance or mouth of the western lane and close to the neutral ground of Oakwood Drive. In rebuttal, he emphatically denies that Mrs. De Frances had her arm “stuck out” for a half block from Oakwood Drive.

Miss Myra Davis corroborated the testimony of Lonnie Scott in so far as the sudden happening of the accident is concerned and in so far as the horn signal being given. She states that she saw no signal whatever from the truck driver, admitting, however, that she was not paying any particular attention.

The other occupant of the ambulance, Martinez, did n'ot testify. There is a showing in the record to the effect that substantial efforts were made to obtain his testimony, and that at the time of the trial he was in the armed forces and could not be contacted.

Mrs. De Frances testified that she was travelling east on Government Street with the intention to turn off of Government Street on to Oakwood Drive; that at least half a block before reaching Oakwood Drive, she fully extended her arm out of the left window and kept it out so extended until she made the turn; that the truck was equipped with a back view mirror and also one on the side of the truck; that before she gave the signal she glanced into both mirrors, and she saw the lights of a car quite a distance away, coming in the same direction in which she was travelling; that she was then travelling approximately 15 or 20 miles an hour and that as she approached Oakwood Drive she was travel-ling about 15 miles per hour. She did. not hear any siren, horn or other signal regardless of the fact that her hearing is very' good and the truck was not making any noise to drown her hearing, and her windows were down. She states that as she was angling to enter the east lane of Oak-wood Drive, the ambulance’s right front fender struck the left front door of the truck and that as a result of the impact her truck was pushed to the south side of Government Street and that thereafter the ambulance continued to the northeast corner of Government Street and Oakwood Drive and collided with a fire plug. She places the point of impact as opposite the neutral ground of Oakwood Drive on Government Street.

The trial judge failed to submit any written reasons for his dismissal of plaintiff’s suit. It necessarily follows that he either found that the accident was caused solely by the negligence of the ambulance driver, thereby absolving Mrs. De Frances of negligence, or at least that he was guilty of negligence which contributed to the accident.

This record presents two questions. First, was the defendant guilty of negligence, and, second, if so, was the plaintiff’s driver guilty of negligence which contributed to the accident? We shall discuss these questions in the order named.

According to Mrs. De Frances’ own testimony we find her guilty of negligence which contributed to the accident, if her negligence was not the sole cause of the accident. She testified that for more than a half block, she glanced in the two mirrors of the truck and perceived a motor vehicle approaching her or travelling in the same direction; she would not state as to how far this motor vehicle was in the rear. She states that it was travelling pretty fast. She stuck out her hand and kept her hand out until about to make the left-hand turn. She was therefore alerted that she was being approached from the rear. She did not again look in her mirrors at the time of making her left turn. Had she looked in the mirrors, especially the mirror on the left-hand side of the truck, she would have perceived that the ambulance was in the act of passing her. She is charged with having seen that which she should have seen.

Rule 9 of the State Highway Regulatory Act, No. 286 of 1938, § 3, Dart’s § 5214, provides that before turning on the highway the driver of a vehicle must see that there is no traffic approaching from either direction so that such traffic will not be unduly or unnecessarily delayed, and that such driver attempting to turn on the highway shall yield the right of way to such approaching traffic' and shall not attempt to make a turn unless and until the said way is clear. We have repeatedly held in so many cases that citations become unnecessary, that the left-hand turn maneuver is a very dangerous operation, requiring care and caution and the responsibility for seeing that it can be made in safety is always placed upon the driver desiring to make such turn. Mrs. De Frances was too strongly relying on her extended arm signal for more than a half block, if she did so extend her arm.

Another fact showing that she was negligent is that she started angling her truck to make her left-hand turn at about the western end of Oakwood Drive, opposite the west lane of travel of said drive, or, as she testified, upon reaching the neutral ground. Under the Regulatory Act, she was required to keep on- her right-hand side until she reached the center of the east lane of the Drive.

The most serious question is the alleged negligence of the ambulance driver and its resultant effect. The alleged negligence or contributory negligence of the ambulance driver is based on the driver’s alleged violation of two provisions of the State Highway Regulatory Act. The provisions in question relate to the passing of a vehicle by another at a highway intersection: Section 3, Subsection (e) of Rule 7, under title 2 of the Act, and to the overtaking of a vehicle by another without the overtaking car giving sufficient signal or warning of its intention to do so: Subsection (b) of the same rule. The defendants further charge the ambulance driver in not honoring the signal of Mrs. De Frances' signaling a left turn; in failing to see Mrs. De Frances’ signal for a left turn; in not keeping a proper lookout; in not having the ambulance under proper control, and in travel-ling at an unlawful and dangerous rate of speed.

Under the view we take of the formation of the highway at the point where the accident occurred, the intersection of Government Street on which the two vehicles were travelling with the two lanes and neutral ground of Oakwood Drive leading north, considering that both cars were going east, was at the east lane of Oakwood Drive. To all intents and purposes so far as these two vehicles were concerned, they had not yet reached the east lane of Oak-wood Drive when the accident occurred. The preponderance of the evidence is that both vehicles were travelling well on their right prior to approaching Oakwood Drive, Mrs. De Frances at 20 miles per hour, the ambulance driver at 40 miles per hour. There was no other traffic. The preponderance of the evidence is that prior to the vehicles reaching the western side of the intersection ito sign or signal was given by Mrs. De Frances of making or of her intention to make a left turn, regardless of her testimony that she had “stuck” her hand out and had so kept it out for a half block. We are of the opinion that Mrs. De Frances only “stuck” out her hand just as she started the execution of the left turn and then she was at about the western line of Oak-wood Drive. In the meantime, the' ambulance driver had pulled to his left and was about or was in the act of pasting Mrs. De Frances. He had the right to assume that prior thereto Mrs. De Frances was not going to make a left-hand turn and he was at liberty to pass ahead of her. Therefore he is not guilty of the violation of the provisions of the Statute in that respect.

With respect to the ambulance driver’s failure to blow the horn, we are of the opinion, regardless of the strong denial of Mrs. De Frances that no horn signal was given, that the preponderance of the evidence is to the effect that the horn was blown prior to the ambulance driver leaving his lane of travel and particularly after he had completed his turn to1 the left and was travelling on his left, or north side of Government Street. We seriously doubt, in view of the situation as we see i't, whether the sounding of the horn prior to the ambulance driver leaving his right-hand side was necessary and also whether it would have served to avoid the accident. As we have previously stated, Mrs. De Frances’ truck was, up to the moment of her sudden attempted turn at an angle at about the opposite western line of Oakwood Drive, on its right-hand side of the road, leaving the ambulance driver necessary space on her left to pass ahead of her. We are of the opinion, like the ambulance driver and Miss Davis, that the horn was blowing just prior to the impact. An automobile driver’s reaction on seeing an immediate emergency, is to' blow the horn and pull to the side which will probably avert an accident. This is exactly what these two witnesses testified was done. It is noted that Mrs. De Frances claims not to have heard the horn nor seen the maneuver of the ambulance driver to the left, nor did she attempt to apply her brakes or do anything to avert the accident.

However, even admitting that the horn was not blown, when a car is attempting to pass another vehicle on the road at night, the beam of light that is thrown by its burning headlights gives sufficient warning of the driver’s intention that he is approaching and is trying to pass. The evidence in this case is that the headlights on the ambulance were burning and if, as the facts undeniably show, the two vehicles were practically abreast of each other, Mrs. De Frances was bound to have been warned of the ambulance driver’s intention to pass ahead of her.

Furthermore, the purpose of the law in requiring the giving of an audible warning by the overtaking vehicle, as we view it, is to favor its driver to the extent that his normal'progress on the highway will not be unnecessarily impeded by the driver of the car preceding him in not leaving or giving him sufficient clearance in which to pass ahead. Mrs. De Frances states that she reduced her speed to IS miles per hour at about the time she started to make her left turn. This might well be construed as an invitation to the ambulance driver to pass ahead of her. He had the right to presume that Mrs. De Frances was aware of his approach from the rear since the truck was equipped with side mirrors and necessarily a rear view mirror in the inside.

It must be remembered that violation of a statute is not negligence per se. Every fact and circumstance must be taken into consideration. The violation of a statute must be a proximate cause of the accident. Under our appreciation of the facts in this case, considering the manner in which and the place of the accident, the ambulance driver’s failure to blow his horn, if he so failed, and his attempted passing of the truck at .an intersection did not contribute to the accident, and the sole and proximate cause of the accident was the negligence of Mrs. De Frances, for which the defendants must be held responsible.

We do not find any merits in the remaining charges of negligence as contended by the defendants. The ambulance driver was keeping proper lookout and his speed cannot be said to be excessive considering the time of day, the location of the accident, and the conditions then existing. These two vehicles were the only ones using Government Street at that time.

As to the quantum of damages, the amount claimed has been proven. In fact, it is not seriously contested by the defendants. The defendants only argue that the most of the damages to the ambulance were caused by the ambulance running into the fire plug. It was the accident which caused the ambulance to run into the fire plug.

For these reasons, the judgment of the lower court is annulled, avoided and reversed. It is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Hollabaugh-Seale Funeral Home, Inc., and against the defendants, Frank De Frances, and the Standard Accident Insurance Company, in solido, in the full and just sum of $474.09, with legal interest from judicial demand, and all costs, out of which said sum the .amount of $424.09 is decreed to be for the benefit of the Paramount Fire Insurance Company.

Reversed and rendered.


author: PER CURIAM.

text:
    MARTIN v. HUFF TRUCK LINE, Inc., et al.
    No. 2914.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947
    For former opinion, see 32 So.2d 49.

      C. A. Blanchard, of Donaldsonville, for appellant.
    Percy & Wirtz, of Baton Rouge, for ap-pellee.
   PER CURIAM.

Notice of the judgment rendered in this case was received by counsel for plaintiffs, appellants, on October 4, 1947. The application for re-hearing was not filed until October 20, 1947. It is contended, by motion filed on behalf of the defendants, appellees, that the application comes too late and that it should be denied.

Counsel for appellants states that the time for filing the application expired on October 19, 1947, and he contends that as that day was a Sunday, a legal holiday, the delay was extended to the following day and consequently the application was filed within the time required by law. In support-of his contention he refers to Act No. 16 of 1910 which is now incorporated in Art. 920.5 of the Code of Practice and which reads in part as follows: “Judgments rendered in the courts of appeal of the state shall become final and executory on the fifteenth calendar day after the rendition, * * * unless the last day shall fall on a legal holiday, when the delay shall be extended to the first day thereafter not a legal holiday; provided that in the interval parties in interest shall have the right to apply for rehearing; * *

The fifteenth calendar day following October 4, 1947, was October 19, 1947 and that was the day on which the judgment in this case would have become executory had it not been a legal holiday. The legal holiday extended the day on which the judgment could have been executed until the following day, that is October 20, 1947. According to a further specific provision of the law execution of the judgment could have longer been delayed had the appellants, “in the interval” between October 4, 1947, the day on which notice was received, and the fifteenth calendar day thereafter, the day on which it became executory, which was, as we have seen, October 19, 1947, filed an application for rehearing. That interval was the fourteen day period between October 5, 1947 and October 18, 1947, both inclusive. See Murray v. Yazoo & M. V. R. Co., La.App., 184 So. 413 and O. K. Realty Co., Inc., v. John A. Juliani, Inc., 157 La. 277, 102 So. 399. The application was not filed within that interval. In fact it was not filed until two days after the interval had expired. Obviously it was filed too late and cannot be considered.


text:
    DEPARTMENT OF WILD LIFE AND FISHERIES v. THE TIMOTHY.
    No. 2969.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.

    Harry P. Gamble, Sr., of New Orleans, for appellant.
    Ellender & Wright, of Houma, for ap-pellee..
   PER CURIAM.

The above case was set for hearing at Thibodaux, Louisiana, on November 6, 1947; and counsel for plaintiff and appellant and defendant and appellee were present. It was suggested by the Court that since the cause appeared to involve an amount exceeding $2,000, that it might be transferred to the Supreme Court; and counsel agreeing before the Court, were given time to prepare motions to that effect.

It now appearing that counsel for all parties litigant in this proceeding have joined in a written motion for the transfer of the appeal to the Supreme Court; the averment being made therein that the object in dispute exceeds in value $2,000; it is concluded that the appeal is one for consideration of the highest court of this State, and the motion will be granted. Succession of Wengert, 178 La. 1027, 152 So. 747; Snyder Wagon Company v. Campbell Ice Cream Company, 173 La. 467, 137 So. 855; General Motors Truck Company et al. v. Caddo Transfer & Warehouse Company, Inc., et al., La.App., 172 So. 178.

Accordingly, and pursuant to the provisions of Act No. 19 of 1912, it is ordered that the appeal in this case be transferred to the Louisiana Supreme Court; that a period of 60 days is granted for the perfecting of the transfer, dating from the finality of this decree; and that on failure to make the transfer within that period, the appeal shall stand dismissed.

Appellant shall pay the cost of this appeal, and all other costs shall abide the final disposition of the case.


text:
    DEPARTMENT OF WILD LIFE AND FISHERIES v. THE BALTIMORE.
    No. 2970.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.
    Harry P." Gamble Sr., of New Orleans, for appellant. ,
    Ellender & Wright, of Houma, for ap-pellee.
   PER CURIAM.

The above case was set for hearing at Thibodaux, Louisiana, on November 6, 1947; and counsel for plaintiff and appellant and defendant and appellee were present. It was suggested by the Court that since the cause appeared to involve an amount exceeding $2,000, that it might be transferred to the Supreme Court; and counsel, agreeing before the Court, were given time to prepare motions to that effect. :

It now appearing that counsel for all parties litigant in this proceeding have joined in a written motion for the transfer of the appeal to the Supreme Court; the averment being made therein that the object in dispute exceeds in value $2,000; it is concluded that the appeal is one for consideration of the highest court of this State, and the motion will be granted. Succession of Wengert, 178 La. 1027, 152 So. 747; Snyder Wagon Company v. Campbell Ice Cream Company, 173 La. 467, 137 So. 855; General Motors Truck Company et al. v. Caddo Transfer & Warehouse Company, Inc., et al., La.App., 172 So. 178.

Accordingly, and pursuant to the provisions of Act No. 19 of 1912, it is ordered that the appeal in this case be transferred to the Louisiana Supreme Court; that a period of sixty .days is granted for the perfecting of the transfer, dating from the finality of this decree; and that on failure to make the transfer within that period, the appeal shall stand dismissed.

Appellant shall pay the cost of this appeal, and all other costs shall abide the final disposition of the case.


text:
    O’CONNOR v. AMERICAN AUTOMOBILE INS. CO.
    No. 2939.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.
    Reliearing Denied Dec. 30,1947.
    Writ of Certiorari Denied Feb. 16,1948.
    C. C. Bird, of Baton. Rouge, and Gordon Boswell and Stanley E. Loeb, both of New Orleans, for appellant.
    Samuel M. Robertson, of Baton Rouge, for appellee.
   DORE, Judge.

This is a proceeding brought under Act No. 20 of 1914, as amended, our Compensation Law, wherein plaintiff is seeking the maximum amount of compensation allowed by law for total and permanent disability from the compensation insurer of Modern Tire Service, plaintiff’s employer.

Plaintiff alleges that during the first week of January, 1946, while in the course and scope of his employment, he “suffered an accident by striking his right knee against a steel cable, which pained him for a few minutes, and which pain soon ceased, and he continued working regularly until February 1, 1946, on which date while he was checking inventory in the stockroom on the premises of his employer, he stooped down to check the number of a box of rubber on the floor. When he tried to get up, his knee popped as though it were out of joint and he was sent to a doctor for treatment by his foreman, a Mr. Limbers. The doctor to whom he was sent by his foreman treated him four times and sent him back to work, where he worked on his regular job for two days, on crutches, when his knee jumped out of place again, as alleged in plaintiff’s petition.

Plaintiff further alleges that since Feb. 1, 1946, his knee has’ been swollen and locks while he tries to straighten it completely and is very painful and will continue to do so permanently; that his injury has been diagnosed by his physician as a strain of his knee with probable rupture of some soft fibrous tissues of his knee or an injured cartilage thereof, commonly called a “football knee”; that on May IS, 1946, he attempted to work for another employer as a plumber’s helper, but was unable to continue work on account of his knee.

In answer, after admitting that it was the compensation insurer of the Modern Tire Service, plaintiff’s employer, that it paid plaintiff $11 as compensation, and that plaintiff’s wages were $42 a week, it categorically denied all of plaintiff’s allegations.

On these issues the case was tried, resulting in a judgment granting compensa-' tion at the rate of $20 per week for a period not exceeding 400 weeks, commencing on February 1, 1946, with legal interest on each past due installment from its due date until paid, subject to a credit of $11.46; further judgment in favor of plaintiff and against defendant for medical expenses incurred by plaintiff, fixing the fees of expert witnesses and of plaintiff’s attorney. Defendant has appealed. Plaintiff answered the appeal, praying for 10 per cent on the amount of judgment as damages for a frivolous appeal.

In this court, defendant contends as its only reason for reversal of the judgment that the plaintiff has failed to prove that he received personal injuries by an accident arising out of and in the course of his employment in accordance with Sections 2 and 38 of the Compensation Statute. Thus, this is the only question we have to consider.

Dart’s Statutes, § 4392, Section 2, of Act No. 20 of 1914, as amended, Act No. 85 of 1926, provides that “If an employee * * * received personal injury by accident arising out of and in the course of such employment his employer shall pay compensation in the amounts and on the conditions and to the person or persons hereinafter provided.”

Section 38 of the Act, as amended, Act No. 38 of 1918, Dart’s Statutes, § 4427, provides that “The word ‘Accident’, as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening, suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury. The terms ‘Injury’ and ‘Personal Injuries’ shall include only injuries by violence to the physical strttcture of the body and such diseases or infections as naturally result, therefrom * * (Italics ours).

The record discloses that plaintiff is an ignorant colored man, 37 years of age, with no trade or calling except as a plumber’s helper and a tire rethreader. Plaintiff enjoyed a reputation as an excellent worker in his line. Prior to his employment by the Modern Tire Service, he had been employed by the Greely Plumbing Company as a plumber’s helper for some three years. On account of the war, Mr. Greely discontinued his activities and plaintiff was then employed by the Modern Tire Service as a tire rethreader, giving satisfactory service to his employer, remaining in that employment for some three years when he quit on account of his alleged accident and injury.

Plaintiff testified that some three or four weeks prior to Feb. 1, 1946, he hit his right knee on a table while pulling a tire; his knee pained him for some 15 minutes; he continued to work without giving it any further thought until the occurrence of Feb. 1, 1946. On Feb. 1, 1946, while helping Mr. Limbers, the foreman in charge of the taking of the inventory, while squatting down, taking numbers, he arose and his knee “popped”, hurting him a good deal. This happened at about 11 o’clock on the morning of Feb. 1, 1946. Mr. Limbers saw him in his sufferings, told him to sit down awhile to see if the pains would not abate or his knee would not get better. Mr. Limbers then, sent him to Dr. Long for treatment. Dr. Long recommended that he bathe his knee in hot water. He visited this doctor on four different occasions and was finally discharged to go back to work. He returned and attempted to work on crutches for a few days. On account of the pain and condition, he had to quit his employment. He then consulted Dr. Thom, who treated him. This doctor recommended that he seek employment. He did so, but he could not perform the duties required of him. On the second of August, a Dr. Young of Abbeville performed an operation on his knee.

Mr. Limbers, the operational manager and foreman of pláintiff’s employer, admits that plaintiff, on Feb. 1, 1946, was helping him in talcing inventory. He states “Jessie was helping me take the inventory by reading the weights off of the boxes, camel back, and he was down on his knees reading the numbers off the bottom row boxes and we finished that section and I moved on to the next one and looked back for Jessie and Jessie was on the floor holding his knee and I asked him if he was getting old, he said his knee had jammed on him and was hurting him a little bit * ⅜ fur(;iler states that plaintiff went ahead and completed the inventory and limped the rest of the day and the next day plaintiff did not show up. Two or three days later he went to see plaintiff “to see why he didn’t come back to work.” “He told me that he had bumped his knee at an earlier date, which I had no knowledge of”. On account of plaintiff complaining of pain, the witness sent plaintiff to Dr. Long for treatment. Plaintiff thereafter came back and worked on a couple of days and limped around using a crutch. Thereafter, plaintiff failed to come back.

Dr. Long’s report shows that the date of accident was February 1, 1946, date of disability February 1, 1946, date of first treatment, February 1, 1946. The nature, and extent of .injury: Contusion of the right knee.

According to the testimony of Dr. Thom, he first saw the plaintiff on February .18, 1946. Plaintiff gave him á history of having struck the end portion of his knee against a steel table which caused him pain and some disability, but not sufficient to keep him from continuing his work; and that on February 1st, while he was stooping down doing some work and as he got up his knee popped and hurt him. When he, the doctor saw plaintiff on the 18th of February, plaintiff’s knee was swollen and quite sensitive to pain on pressure on the inside of the knee. His diagnosis of the nature and extent of injury and his objective findings were “Contusion and sprain of the knee, most likely some soft tissue torn.” He treated plaintiff by bandaging and rebandaging the knee and applied diathermy on it several times. The swelling went down and the knee apparently improved to such an extent that on April IS, 1946, he told plaintiff to try to work. He states that it occurred to him that plaintiff was probably suffering from a rupture of the semilunar cartilage but did not make such a diagnosis. He states that a rupture of internal semilunar cartilage is frequently caused by a direct trauma, but one may receive such an injury by the wrenching of the knee without a blow against the cartilage. He states, “My opinion later, after the thing went through the mill, was that the man actually damaged or ruptured that thing when .he struck the knee against the table and when he got up in February he completed rupturing it.”

Dr. 'Gustave R. Kuehnle examined plaintiff on March 7, 1946. His report is as follows: “I first saw Jessie O’Connor on March 7th, 1946. Jessie, at that time, gave me a history of having bumped his knee about seven weeks ago, was his words. He said that that stayed sore for quite some time but he continued to work. He said that around February 1st he was stooping down and on getting up his knee popped and since that time he said he had swelling and pain, that this pain varied at times but was more or less present at all times. It became worse after he had been standing for a long time. Now, I diagnosed him at that time. I also noted on that examination that he had a small amount of fluid behind the kneecap. He had a patella click, it would go back and you could feel it go back and touch the articular surface of the tibia and femur, would give you a clicking sensation denoting fluid between the patella and this articular surface. I began to give this man diathermy. Altogether he had a total of fifteen diathermy treatments. The last diathermy treatment was on April 13th. At the end of that time the swelling had diminished, the evidence of fluid behind the patella was no longer present and he said that his knee felt much better but still gave him trouble, and I think at that time I recommended to Jessie that he try to go back to work and see how he could get along on this knee. I didn’t see him any further until 7-17-46, at which time he came back complaining that his knee still continued to give him trouble. At this time he told me that his knee occasionally would lock and when in a flexed position and on extending it, it would pop and then unlock so he could complete the extension of the leg. The history at that time led me to make a tentative diagnosis of a possible laceration of the internal semilunar cartilage, and that was the last occasion I saw this man.”

Further in his testimony the doctor states that he definitely is of the opinion that his laceration occurred as he was rising out of a stooping position. The following questions and answers of Dr. Kue-hnle are pertinent:

“Q. Is that typical of how those things come about, ordinarily? A. The typical condition that produces these lacerations of the semilunar cartilage is a forcible medial internal rotation of the thigh with the leg slightly flexed and in a fixed position. You can get that sort of injury from rising from a stooping position if it was very forcible.”

By The Court:

“Q. As I understand your testimony the striking of the knee against this metal object did not contribute to the rupture of the cartilage? A. I don’t think it did.”
“Q. However, it is your opinion that rising from this stooping position could have caused it? A. Yes, that is a typical type of injury that would cause it. The foot is fixed where it does not rotate with the thigh. The typical football' knee is from a man being struck from the side, which produces the same thing. It is a force that strikes from the side with a leg in a semiflexed position producing an internal rotation of the femur on top.”

As to the bump on the knee, the doctor states that plaintiff did inform him of such occurrence, but that he did not attribute such importance to it, “because it didn’t produce, according to him, too much disability. He continued to work after that injury.”

Dr. Moss M. Bannerman was offered as a witness for the defendant. The doctor states that he examined the plaintiff in July, 1946. On the examination, he states that it was his “impression that he had a torn medial cartilage in his right knee” and that he based his diagnosis on the “limitation of motion and tenderness over the medial aspect of the joint, anterially. The history of locking and catching which he had, together with swelling was fairly typical”. There must be a torn cartilage or “some other loose body in the joint which can protrude between the joint surface for the knee to catch”. He recommended that an operation be performed on the knee to determine the exact status therein and the cartilage, if it was torn, or whatever condition found, should be corrected.

He was then questioned by the Court as follows:

“Q. Doctor, do you consider this man in condition to do manual labor now? A. No, Sir.
“Q. He gives a history of having risen from a stooping position, following which he felt pain in this knee and then went to a doctor, and you know the treatment that has been accorded to him since that time; is such a history consistent with the statement of the opinion of this particular injury? By that, I mean from all that you have learned from your own examination and from the reports furnished you by other doctors, would that be consistent with his present condition, to say that the rising from the stooping position is what resulted in this condition? A. That is a very difficult question to answer, Judge Herget, may I elaborate a trifle?
“Q. Yes, go ahead. A. These injuries, that is, a meniscus injury, semilunar cartilage, are usually incurred in earlier adulthood and they remain quiescent for a long period of time until re-activated by an additional injury, and the degree of that injury may be very trivial. I have had a number of instances in which the patient remembered no previous injury, that quite frequently happens that there has been ■fifteen or twenty years between the injury, and the person had a like knee after turning over in bed. The maxim of injury described by the plaintiff in this case of merely rising from a stooping position, a squatting position as I understood him ■to say, is not the usual maxim, but it is ■not sufficient from a medical standpoint to say that it could not have occurred in that manner.
“Q. As I understand your answer, it is -possible for it to have happened in that manner? A. Yes, sir.
“Q. If he had previous to that time sustained some injury to his knee and not known about it, this could have aggravated his condition? A. Yes, sir.
“Q. And the condition he has would be consistent with that story? A. Yes, sir.”

On August 1, 1946, plaintiff was examined by Dr. Marion O. Young of Abbe-ville, La. This doctor, upon examination of plaintiff, concurred in the diagnosis of an injured semilunar cartilage. He performed an operation, under spinal anesthesia, on August 2, 1946, and on exposure of the semilunar cartilage, the anterior portion was found quite loosened .and damaged near its end or attachment to the anterior ligament. The entire cartilage was removed. The patient made an ■uneventful recovery. He was admitted to the hospital on the night of August 1st, .and was discharged from the hospital on August 9th.

Although Mr. Limbers denied that plaintiff failed to inform him of the alleged striking of his knee on February 1, 1946, it is to be noted that on the report of the company to the insurer, on February 2, 1946, it' is expressly stated that plaintiff made a report of his striking his knee some time prior to February 1, 1946.

It is well established by our decisions that an accident can be proved by the plaintiff alone if there are corroborating circumstances. Plaintiff is fully corroborated that he did strike his knee some few weeks prior to February 1, 1946, by the histories he gave to the medical examiners and the report of the accident which his employer gave to its insurer on Feb. 2, 1946.

All the doctors agree that plaintiff, in his condition, cannot perform his former duties as a plumber’s helper or a tire re-threader.

It is well settled in our jurisprudence that the protection accorded by the compensation act of Louisiana against injury by accident comprehends and includes the giving way of affected parts of the body while at work, even though the disability was not the immediate result of an unusual strain or physical effort. Hill v. J. B. Beaird Corp., La.App., 19 So.2d 295 and the cases therein cited. The knee is an essential part of the body.

It is therefore our conclusion that under the 'facts as outlined above, there was an “accident” in the intendment and meaning of the Statute. It is not contended that the plaintiff did not receive an injury in the course and scope of his employment.

We find no merit in plaintiff’s demand for damages on the ground that the appeal is frivolous. Defendant strenuously urged their contention that there was not an accident in the intendment of the law, and gave plausible reason and force-able argument in its favor.

For these reasons, the judgment appealed from is affirmed.


text:
    LOCKWOOD et ux. v. COLLIGAN.
    No. 2952.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.
    Rehearing Denied Dec. 30, 1947.
    Watson, Blanche, Fridge & Wilson, of Baton Rouge, for appellants.
    Harrison G. Bagwell, of Baton Rouge, f0r appellee.
   DORE, Judge.

Plaintiffs sue the defendant for $1,421, together with legal interest thereon from judicial demand. As a basis for their demand, plaintiffs allege that Marcelite Ban-ta Colligan, wife of defendant, now deceased, was a sister of Mrs. Lockwood, one of the plaintiffs; that Mrs. Lockwood, during the life of Mrs. Colligan, loaned to the said Mrs. Colligan four (4) oak dining chairs of the value of $2.75 each, and four (4) quilts of a value of $5 each, and which were never returned to her or paid for; that the said Mrs. Colligan and Mrs. Lockwood rented a safety deposit box at Louisiana National Bank, in which said box Mrs. Lockwood had the sum of $400 in cash at the time of the death of Mrs. Colligan. They further allege that the defendant, during the latter part of 1942 or the early part of 1943, entered the Armed Services of the United States, at which time his wife came to reside in the home of plaintiffs. They aver that on account of the close relationship between the two sisters, it was agreed that Mrs. Colli-gan would pay a reasonable sum for her board at the Lockwood residence, where she took three meals a day, such payment to be made after her husband’s return; that in pursuance of said agreement, Mrs. Colligan resided with plaintiffs from Feb. 1, 1943, to Nov. 11, 1945 — 2 years and 9 months; that while no specific sum was agreed upon, they aver that $30 per month is a reasonable sum for such board, making a total of $990, which sum plaintiff J. M. Lockwood claims on quantum meruit.

They allege that Mrs. Colligan died on November 28, 1945; that on opening the bank box, there was found the -sum of $680 in currency, of which sum the plaintiff Mrs. Lockwood claimed $400 as her own para-phernal or separate property; that the defendant accepted the succession of his wife purely, simply and unconditionally, thus making himself liable for the debts of Mrs. Colligan, principally the chairs and quilts, or the value thereof, the “Board” of $990, and the $400 in currency.

The defendant appeared and filed an exception of vagueness, which exception was overruled. This exception is now abandoned. Thereafter, he filed a plea of prescription of one year, which plea was referred to the merits. Thereafter, defendant filed an exception of no right or cause of action, which exception was also referred to the merits. In answer, defendant admits his marriage to Marcelite Ban-ta, a sister of Mrs. Lockwood, on September 3, 1938; admits that he lived with his wife, with the exception of his service with the armed forces, from that day to the date of her death on November 28, 1945; admits that he entered the armed forces on October 9, 1942; admits the opening of the bank box, the listing of the property found in the box, including the $680. He categorically denies the remainder of plaintiffs’ allegations.

The trial of the case resulted in a judgment overruling the plea of prescription, and the exception of no right or cause of action, and in dismissing plaintiffs’ suit. Plaintiffs have appealed.

The exception of no right or cause of action seems to be abandoned by the defendant, in fact, he does not urge it in this court. Defendant, however, has re-urged his plea of prescription. His plea is based on Article 3534 of the Revised Civil Code which fixes the prescriptive period of one year against the claim of “innkeepers and such others, on account of lodging and board which they furnish.”

It is clearly shown by the record that the plaintiffs were not engaged in the occupation of running a rooming house when Mrs. Colligan came to live with her sister on February 1, 1943. At that time the plaintiffs were living in a dilapidated two-story house. Plaintiffs were occupying this house with Mr. Lockwood’s brother-in-law. They had the upstairs vacant and offered the decedent to come and live with them. It is true that later on, they did rent a room to an outsider. But the evidence does not show that they were furnishing board to any one, save the contested fact of furnishing board to decedent. This fact, admitting it to be true, does not make them furnishers of board as a trade or occupation. Defendant’s contention is fully answered in the negative by the case of Galjour v. Succession of Galjour, 1 La. App. 734, wherein we held that under similar facts, the prescription of 10 years was applicable to such cases. The plea of prescription was correctly overruled.

The record discloses that Marcelite Ban-ta, a sister of Mrs. Lockwood, married the defendant on September 3, 1938. After-wards, the exact date not being shown, defendant acquired real property in a subdivision some three miles north from the business district of Baton Rouge, upon which they resided. The defendant was inducted into the armed forces of the United States on October 9, 1942. At that time, Mrs. Colligan was in the employ of J. C. Penny, a mercantile establishment on Third Street in the City of Baton Rouge. On account of the induction of defendant in the armed forces, Mrs. Colligan removed from the matrimonial domicile to the home of her brother and rented the matrimonial house. She then moved around the first of February, 1945, to the residence of plaintiffs on Louisiana Avenue, in the City of Baton Rouge, some four blocks from her work, wherein she resided until November 11, 1945, a few days prior to her husband’s return from the service.

As to the chairs and quilts, we have only the testimony of Mrs. Lockwood to the effect that she loaned to Mrs. Colli-gan dining room chairs which cost her $2.75 each and the chairs were new; that she loaned to Mrs. Colligan the quilts when she moved back to her home. Mr. Colligan positively states that the chairs and quilts were those of the community, they being owned by the Colligans when he was inducted in the service. He also states that the chairs and quilts were old when he-returned. It is to be noted that other furniture was claimed as not belonging to the Colligans which furniture was returned either to plaintiffs or to Mrs. Lockwood’s and Mrs. Colligan’s brother. This fact tends to corroborate defendant’s testimony that he was not claiming or keeping any furniture which did not belong to the marital community which formerly existed be-tween his deceased wife and himself. Suffice it to say that the district judge held that the plaintiffs had not borne the burden of proof. We find no error committed by him on that score.

As to the claim of Mrs. Lockwood that she had $400 out of the $680 found in the safety deposit box at the First National Bank, we find the facts relating to this safety deposit box to be that Mrs. Colligan •rented this box with the privilege to Mrs. Lockwood to use the same, Mrs. Lockwood being furnished a key thereto. According to the testimony of Mrs. Lockwood, she had entrusted to Mrs. Colligan divers sums to be deposited in the box; that at one time, we presume sometimes -near Mrs. Colligan’s death, she had as much as' $500 in the box. She requested that Mrs. Colligan withdraw therefrom $100 for the purpose of paying rent on the house ■occupied by the parties as the family home, ■.the exact or proximate time prior to Mrs. ■Colligan’s demise of such withdrawal not being shown, thus leaving, according to her testimony, the sum of $400 claimed by her. -It is admitted by Mr. Colligan that the ■day following the funeral of Mrs. Colligan that Mrs. Lockwood informed him of the ■deposit box and her claim of $400. Mrs. Lockwood obtained an order to open the safety deposit box with the view of searching- for a will and of taking an inventory of ¡the box. Upon opening the box, there were -found certain articles as belonging to Mrs. -or Mr. Colligan such as ■ War Savings Bonds, insurance certificate on the life of .Mr. Colligan, receipts from J.C. Penny for “Thrift Fund”, and an envelope dated 7-15-44, containing currency to the amount of .$680. This envelope was a pay envelope of J. C. Penny showing' the salary of Mrs. Collingan to be $36.20, net, for a two weeks’ period. The currency thus found consisted of a $500 bill and bills of smaller denominations. Nothing in the box bore any earmark as belonging to Mrs. Lockwood. Thus we have only the lone testimony of Mrs. Lockwood that out of this sum she is entitled to $400. It is significant to note at this time that nowhere in her testimony does she state how the sum -of $500 was deposited in this box, such as jfrom time to time or as a whole. The testimony of Mr. Lockwood as to this sum is only such as was told to him by his wife and cannot be said to be a corroboration of her testimony.

The evidence shows that on April 27, 1944, Mrs. Lockwood sold to Mrs. Colli-gan, her undivided interest in a piece of real estate in Iberville Parish, Town of Plaquemine, for the sum of $300. It is to be noted, however, nowhere in her testimony does Mrs. Lockwood state that she entrusted this sum to her sister to be deposited in this savings box nor does she testify that she deposited this sum in the box herself. Her testimony is only to the effect that the $300 is part of the $400 claimed by her. This cannot be said to be in corroboration of her testimony that out of the sum found in the safety box, she had the amount claimed by her. To the contrary, Mrs. Lockwood admits that after her sale to Mrs. Colligan, Mrs. Colligan purchased the remaining undivided interests of her brothers in the property and thereafter sold the property for a cash consideration of $800. It is more logical to presume therefore that the amount thus found in the box to be the remainder of the consideration received by Mrs. Colligan than that any portion represents the $300 received by Mrs. Lockwood. Thus we do not have any corroboration of Mrs. Lockwood’s testimony. To the contrary, we find facts which seem to destroy her contention. We will comment on the law later on in this opinion.

We now pass to plaintiffs’ claim of $990. According to plaintiffs’ testimony, after Mr. Colligan had been inducted and due to gasoline rationing, Mrs. Colligan found it expedient to rent her home and to come to live with the Lockwoods. While plaintiffs were fixing the place wherein they resided, Mrs. Colligan stayed with her brother and thereafter she moved with plaintiffs around the first of February, 1943, and resided there until November 11, 1945. It is testified that on account of Mrs. Colligan not having enough money, it was agreed that plaintiffs would furnish board to Mrs. Col-ligan, three meals a day, and upon the return of her husband from service, they, the Colligans, would settle with the plaintiffs for such board. Mrs. Colligan occupied an upstairs room and for this privilege, Mrs. Collingan assumed and did pay the sum of $10 per month to help defray the ’phone, lights, water and gas bills. They testified that the furnishing of 3 meals a day was well worth the sum of a dollar a day. They testified that they so furnished these meals. However, they admit that there were in the hall, adjoining Mrs. Colligan’s room, a small gas stove, a refrigerator, a small dining room table and chairs which Mrs. Colligan used occasionally to serve coffee and “snacks” to her guests.

In contradiction of this testimony, we find in the record that Mrs. Colligan was employed by J. C. Penny up to and including July 15, 1944, at a net bi-weekly wage of $36.20, was receiving an allowance from her husband of $50 per month from his induction into service to the time of his discharge, and was rece-iving a monthly rent, the amount not divulged by the record, from the matrimonial home, thus showing that she was not a subject of charity, or unable to pay for her board or meals.

Another significant fact which tends to contradict plaintiffs’ testimony that they did furnish the decedent three meals a day from the time decedent came to reside with plaintiffs until she moved therefrom is the fact that there is in the record the testimony of witnesses to the effect that Mrs. Colligan, from time to time, bought her own groceries and prepared her own meals on this small gas range, used the small table and chairs and the refrigerator notwithstanding plaintiffs’ denial of such use for this purpose. We are not impressed with plaintiffs’ testimony that the gas range was only occasionally used for coffee-making and in preparing “snacks” for occasional friends, and the use of the refrigerator only in order to preserve it.

Another significant fact is that, in the handwriting of Mrs. Lockwood, executed by Mrs. Lockwood, receipts clearly show that Mrs. Colligan paid room rent rather than representing cost of utilities.

It is to be noted that this claim of board or meals was only mentioned after Mr. Colligan had refused to recognize plaintiffs’ claim of $400. The defendant had returned from service for more than a week.

It must be remembered that the lips of Mrs. Colligan are now forever sealed. Such claims should be substantiated by stronger evidence than we find in this record. Although Act No. 207 of 1906, is inapplicable to the facts in this case, we feel that the testimony of plaintiffs is not sufficient to grant judgment. There should be facts and circumstances to establish the debt, which, according to the record, are utterly lacking.

Since plaintiffs rely on a verbal agreement to pay board on the part of Mrs. Colligan, if and when her husband would return from service, we are of the opinion that Article 2277 of our Revised Civil Code is applicable to this case. That Article reads as follows: “All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other-corroborative circumstances.” (Italics ours.) Since the claim- of plaintiffs exceeds $500, admitting for the mere sake of argument that plaintiffs are credible witnesses, in the intendment of the, article, yet the fact remains that there are no corroborative circumstances warranting an award to plaintiffs.

In the language of the trial judge: “The plaintiffs, under the law, carried the burden of proving every item of the alleged indebtedness. Here we have only their word as to the ownership of the $400.00, the agreement to pay board, the ownership of the chairs and the quilts. It may be that their testimony is true and correct. However, in our opinion, it is insufficient to warrant the Court in awarding judgment against this defendant, particularly in view of the circumstances referred to tending to impeach their testimony. Courts cannot in dealing with the rights of litigants indulge in guess work.”

For these reasons assigned, the judgment appealed from is affirmed.