author: HAWTHORNE, Justice.

text:
    213 La. 621
    NEIDER v. CONTINENTAL ASSUR. CO.
    No. 38401.
    Supreme Court of Louisiana.
    March 22, 1948.
    Rehearing Denied April 26, 1948.

      Herman L. Midlo, of New Orleans, for appellant.
    Lemle, Moreno & Lemle and George B. Matthews, all of New Orleans, for defendant and appellee.
   HAWTHORNE, Justice.

In this suit the beneficiary named in a certificate of insurance issued under a group policy of life insurance seeks to collect from the insurer the amount of insurance specified in the certificate. The insurance company resists payment on the ground that the life insurance policy, as per certificate issued, had expired for nonpayment of premiums prior to the death of the insured.

The plaintiff, Mrs. William L. Henderson, alleged in her petition that the defendant, Continental Assurance Company, was indebted to her in the full sum of $3000 by reason of her being the designated beneficiary in a life insurance policy issued by the defendant on the life of her husband, William L. Henderson, on November 1, 1941, as per certificate No. 37474, attached to the petition and made a part thereof; that the premiums on the policy were fully paid, and, therefore, the policy was in full force and effect at the time of her husband’s death on June 10, 1944. She prayed for judgment in her favor, and against the defendant, in the full sum of $3000, together with 6 per cent interest from June 10, 1944, and for all costs.

In its answer the defendant admitted that it had issued a life insurance policy on the life of the plaintiff’s late husband on November 1, 1941, as per certificate No. 37474, but denied any liability whatever under the policy, averring that the policy was canceled on February, 29, 1944, for non-payment of subsequent premiums due under the policy, and that, accordingly, the policy was not in effect on June 10, 1944, the date of the death of plaintiff’s husband.

After trial on the merits, the district court rendered judgment in favor of the defendant, dismissing plaintiff’s suit. From this judgment she has appealed to this court.

The record shows that the defendant insurance company issued to the Illinois Central System, comprising the Illinois Central Railroad Company, the Yazoo and Mississippi Valley Railroad Company, and the Gulf and Ship Island Railroad Com-, pany, a group policy of life insurance insuring the lives of the railroads’ employees, to which we shall hereafter refer as the “master policy.” This policy was executed on October 11, 1941, and became effective on November 1, 1941. Under this policy the husband of the plaintiff herein, William L. Henderson, who was employed by the railroad as an engineer, was issued a certificate of insurance by the defendant insurance company dated November 1, 1941.

The master policy provided that the premiums of insurance were payable monthly in advance, and it provided also for a 31-day grace period. According to the policy the premiums were to be paid by the employer, but it contemplated that the employer could require of the employees contributions to the payment of those premiums, for it provided that the insurance would cease at the due date of the premium to which the employee had failed to make a required contribution, and, as a matter of fact, the employer made regular deductions from the employees’ salaries as contributions to the payment of the monthly premiums.

According to the testimony of the employee of the railroad company who had charge of the office in New Orleans that handled all matters concerning the insurance of the plaintiff’s husband, as long as an employee had payroll earnings, the contributions on his insurance premiums were deducted from those earnings, under the policy of the railroad concerning those contributions, but, in the event he had no earning’s, he had to pay his monthly premium contribution at the city ticket office. This employee also testified that the deductions for the premiums were taken out of the current month’s pay, that is, payments for January premiums would be taken out of the January payroll, ■ etc. Under the company’s system of payment to its employees it did not pay the employee until two weeks after the close of a payroll period, that is, for work performed January. 1 through IS, the employee would be paid on January 31, and, for work performed January 16 through 31, he would be paid February IS.

It was the requirement of the employer that the employee make cash contributions for payment of the premiums when he had no payroll earnings that brought about the issue in this suit.

The employee, Mr. Henderson, became ill on February 19, 1944, and worked no more from that time until his death on June 10, 1944, which resulted from that illness. The defendant takes the position that Mr. Henderson’s insurance lapsed on February 29, 1944, for non-payment of premiums. As pointed out before, the policy contained the provision that the insurance should cease at the due date of the premium to which the employee had failed to make a required contribution. Defendant contends that, since Mr. Henderson stopped work in February, the last deduction made by the company was for the February premium, and, since Mr. Henderson' was not on the payroll for March, he was required to pay the premium contribution for March; that he did not make any payment during the 31-day grace period in March, and therefore the policy lapsed on the last day of the period for which a premium had been paid, February 29.

The record does not show on what date ■the employer paid to the defendant the premiums for February, 1944, nor does it show the payroll out of which the deduction was made for Mr. Henderson’s February premium contribution. The policy ■of the company in regard to these payments and deductions is not even shown :SO that we might make a deduction as to how Mr. Henderson’s February premium payment was handled between the employer and the defendant. We do not know whether the company made the payments in advance in accordance with the policy, and deducted the contribution -at a later date from the employee’s salary, if he had any salary, or whether it paid the premiums at some time during the grace period for those employees who had enough earnings to cover the contribution.

The fact that Mr. Henderson knew that some contribution was required of him to keep his insurance in force during his illness is shown by the plaintiff’s testimony and by the testimony of the chief clerk of the mechanical department of the Illinois Central Railroad in New Orleans. The chief clerk testified that Mr. Henderson came into his office on or about March IS, 1944, and made inquiries concerning his insurance of a clerk in the office who died prior to the trial of this case; that he overheard the conversation between this clerk and Mr. Henderson, and that Mr. Henderson was informed by the clerk that he would have to pay his group insurance “as long as he was not on the payroll”.

On April 6, 1944, Mr. Henderson sent the plaintiff to the office to pay his insurance premium contribution. According to her testimony, he told her to make the payments for two months so that she would not have to go so often to the office. Receipts were given to Mrs. Henderson for the months of March and April, but on April 13, 1944, the railroad refunded to the insured by check these premium payments with the comment that his policy had been “reported for cancellation as of February 29, on account of failure to pay the amount applicable to group insurance premium contribution for March within the grace period”.

What impresses us and what must have confused Mr. Henderson is the fact that he received pay in March, but no deduction was made for his March premium from that pay. According to the testimony of the chief clerk, Mr. Henderson was paid on February 29 his earnings for the period February 1 through February IS, and he was paid on March 15 his earnings for the days February 16, 17, and 18, just preceding- the time he became ill. From the explanation given him by the company’s employees that he would have to pay his group insurance as long as he was not on the payroll, it was reasonable for him to believe that, if he received pay in March, he was still on the payroll, and that his premium contribution for March was deducted by the company. His misunderstanding of the time he was required to make the contribution is clearly shown by his actions thereafter. Since he sent his wife in April to pay his premium contribution, he must have thought that it was the April contribution that he was required to make directly, and thus that April was the proper time to make the payment.

Mr. Henderson was over 65 years of age at the time of his death, and had been in the employ of the railroad for over 40 years. Since the defendant admits that Mr. Henderson’s insurance was in effect until February 29, 1944, he must have paid premium contributions from 1941, the effective date of its policy, through February, 1944. Being an elderly man and suffering from an illness that was serious enough to prevent his working, Mr. Henderson would undisputably have had every interest in keeping his life insurance in effect. A deduction under these circumstances that Mr. Henderson would have sent his wife in April to pay a premium contribution that he understood he had to pay in March to keep his insurance in effect would be absurd and ridiculous.

Under the complicated situation .■ shown by this case, where the premiums were payable monthly in advance, monthly premium contributions were deducted currently, and yet the company had a system of accounting whereby it was always two weeks behind in its payment of wages, it is not difficult to understand how an employee could be confused as to when he would be required to make the contributions if he were not working. In such a situation it is equitable and fair that the company should give to the employee specific information as to when his contribution is required. In this case the employer should have made it clear to Mr. Henderson on March 15 when he made his inquiries that, if he did not work in March, he would have to make the contribution for March, and that the contribution would have to be made on or before March 31. In any case the company should give to its employees reasonable notification at a reasonable time of its policy in making the deductions so that it will be clear to them when they will be required to make the contribution.

In our opinion any other conclusion would cause an injustice out of proportion to the inconvenience and expense the giving of such information by the company would entail. Group insurance is a comparatively new form of insurance, and each problem presented to this court concerning it should be approached with the purpose of giving to it every legitimate opportunity of becoming a social agency of real consequence. It has been pointed out that the purpose of this form of insurance is to provide the employer with a means of procuring insurance protection for his employees and their families at the lowest possible cost, and that the employer’s making this form of insurance available to his employees results in the creation of good will between the employer and the employee, enables the employees to carry a larger amount of insurance than they could otherwise, and helps to attract and hold a permanent class of employees. Crawford, Group Ins., Sec. 2, pp. 5, 6. These results could be defeated if the employer, by poor administration of the insurance, could be instrumental in causing the insurance to become unavailable to the employee.

We feel that the employer owes to the employee the duty of good faith and due care in attending to the policy, and that the employer should make clear to the employe anything required of him to keep the policy in effect, and the time that the obligations are due. In its position as administrator of the policy, we feel also that the employer should be considered as the agent of the insurer, and any omission of duty to the employee in its administration should be attributable to the insurer. For these reasons we are of the opinion that the employer in this case did not discharge properly its duty to the employee to inform him of the time that direct contributions would be required of him; that this omission of duty was the reason that the premium payment for March was made after the expijation of the grace period, and that this omission, of duty was attributable to the insurer; therefore, the plaintiff is entitled to recover from the insurer the amount of the policy.

In the instant case, plaintiff prayed for interest at the rate of 6 per cent per annum on. the full amount of the insurance policy from the date of the insured’s death, and in her petition she alleged that she attempted on many occasions to obtain from the insurer the necessary forms to file a claim for the insurance, that is, to make full proof of death, etc., but that the insurance company refused to furnish them, The defendant admitted this allegation, defending its refusal on the ground that the policy 'was not in force and effect at the time of the death of the insured.

Under the facts and circumstances of this case, we cannot say that the insurer failed to pay this death claim “without just cause”, and for this reason plaintiff is not entitled to 6 per cent per an-num interest allowed under the provisions of Louisiana Act 17 of 1920.

The master policy provided that the insurance company would pay any amount due as a death claim upon receipt at its home office of due proof of the death of any insured employee. Since the defendant contended that the policy was not in force and refused to furnish forms for the making of proof of death, it would have been a vain, futile, and useless thing for plaintiff to have niade such proof. Under these circumstances we think that plaintiff is entitled to 5 per cent per an-num interest from the date she requested forms from the company to make such proof. However, the record does not establish this date, and, so that plaintiff may establish and fix the date with certainty, if she can, we have concluded to remand the case to the lower court solely for this purpose, and, upon her failure to prove said date, 5 per -cent interest will be allowed from the date of judicial demand,

For the reasons assigned, the judgment appealed from is reversed, and it is ordered that there be judgment in favor of plaintiff, Mrs. Henrietta Neider Henderson, ancj against the defendant, Continental Assurance Company, in the full amount of $3000. It is further ordered that the case be remanded to the district court in order that plaintiff may establish, if she can, the date on which she requested forms from the insurance company on which to make proof of death, and, if .that date can be fixed with certainty, it is ordered that there be judgment in plaintiff’s favor, and against the defendant, for 5 per cent per annum interest on $3000 from that date until paid; otherwise, it is ordered that there be judgment in her favor for 5 per cent per an-num interest from date of judicial demand until paid. All costs are to be paid by defendant-appellee.


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    HUGHES v. WILL et al.
    No. 18797.
    Court of Appeal of Louisiana. Orleans.
    May 10, 1948.

      Cabral & Courtin, of New Orleans, for plaintiff and appellee.
    Harry R. Cabral, of New Orleans, trial attorney.
    P. M. Flanagan and Gerald S. Quinlan, both of New Orleans, for defendant and appellant.
   JANVIER, Judge.

Plaintiff, John R. Hughes, is a house-raiser and shorer, doing business under the name “Orleans Houseraising and Shoring Company.” George J. Cameron, Sr., defendant, is the owner of a building which he desired to have raised and remodelled. O. R. Will is the son-in-law of Cameron and, having been in the military service during the last World War, was entitled to certain priorities in the securing of material and fixtures. Joseph Gould, at the time of the occurrences with which we are concerned, was a building contractor in New Orleans operating under the name “J. Gould & Company.”

On April 30, 1946, Gould, as contractor, entered into a contract with Cameron and Will, as owners, for the raising and re-modelling of the said building. This contract was not recorded. Gould employed Hughes to do the raising of the building under a subcontract which provided for a payment of $600. This contract also provided for an allowance of twenty-one days for the free use of the jacks on which the building was to be raised after the completion of the raising, and for a charge of fifty cents per day for each jack should the jacks be required to remain under the building for more than twenty-one days.

Gould, the general contractor, defaulted on the contract and Cameron, who was, in fact, the owner of the building, undertook to complete the work himself. The raising contract was carried out by Hughes and after this subcontract had been completed Hughes, on August 8, 1946, recorded in the Mortgage Office of- the Parish of Orleans an affidavit in which he set forth the fact that he had entered into the subcontract ; that he had been paid only $200 ; that there was a balance due of $400 on the contract, and that there was due “in addition thereto, fifty cents per day for each of five jacks'remaining on the job since July 9th, 1946.” In this affidavit he stated that O. R. Will was the owner of the building.

On October 29, 1946, Hughes recorded in the Mortgage Office another affidavit in -which he stated that George J. Cameron, Sr., was the owner of the building and in which he also stated that there was a balance due on the contract of $400 “plus demurrage of fifty cents per day per jack for each jack used on "the building.” On that same day, to wit: October 29, 1946, he also recorded an affidavit in which he stated that he desired “to supplement and amend the original affidavit filed herein,” that is to say, the lien filed on August 8th as against Will, by stating that the said premises were owned by George J. Cameron, Sr.

Hughes then filed suit against Will and Cameron and also the general contractor, Gould, claiming $400 as the balance on the stipulated contract price and $594.50 as the amount due for the retention of jacks beyond twenty-one days after the completion of the raising contract. He later filed a supplemental petition in which he claimed an additional $28.13 for lumber left on the job after the completion of his work.

His right to sue-the owner and his right to a lien for any balance due on the contract price of $600 are not disputed, it being conceded that because of the provisions of Act No. 298 of 1926, since the contract was not recorded, and since the owner obtained no bond from the contract- or, the owner may, himself, be held liable to subcontractors, laborers and furnishers of material, and that a lien may be filed against the building. But defendants first of all contend that Will is not one of the owners and they further aver that the liens were not filed within the time limit fixed in the said statute, and they also contend that the amount claimed for the use of the jacks beyond the free time period fixed in the contract is a claim for which a lien may not be filed, and, finally, they claim that if such a lien may be filed, the amount claimed is not correct.

The owne,r, Cameron, by reconventional demand, asserts that the work was not done in a careful and proper manner; that his building was damaged and that as a result he is entitled to a judgment in re-convention against Hughes in the sum of $1,286.

There was judgment in favor of Hughes dismissing the suit as against Will, but against George J. Cameron, Sr., and Gould, the contractor, in the sum of $907, recognizing the lien and privilege in favor of Hughes, and dismissing the reconventional demand of Cameron. From this judgment Cameron has appealed.

The record shows that the work of Hughes in raising the house was completed more than sixty days before the recordation of any of the three 'liens referred to and defendant, calling attention to this, maintains that because of this delay no right to a lien remains in Hughes, and that he, therefore, has no right to assert his claim against the owner.

This identical question, that is whether the lien of a subcontractor, laborer or ma-terialman must be filed within sixty days from the time at which that particular work is completed or that particular material is delivered, was considered by the Supreme Court in National Homestead Association v. Graham, 176 La. 1062, 147 So. 348, 351, wherein the Supreme Court held that such a lien may 'be filed at any time within sixty days of the completion of the general contract. In that case the Supreme Court stated the contention and its conclusion as follows:

“The contention made by the homestead company is that in order that a laborer, materialman, or any other may obtain a lien he must file and record his claim within sixty days from the date on which he performs his last labor, or furnishes the last material. We do not so construe the language of the act. We construe it to mean that the claim must be filed and recorded within 60 days after the last labor is performed on or last material is furnished for the building by any one. In other words, if the claim is filed within 60 days after the final completion of the building, it is in time, even though the laborer or furnisher of material did not file his claim within 60 days after he performed his last labor or furnished his last material on the building.”

The record shows that the principal job was not complete until long after the recordation of the three liens referred to and, therefore, the recordation was well within the time limit as construed by the Supreme Court in the Graham case.

Defendant’s next contention is that there can be no lien for the amount which was charged for the rental of the jacks which remained supporting the building after it had been raised and before the new foundation was constructed under it. It is argued that a statute authorizing a building lien and permitting a claim to be made directly against an owner is in derogation of common right and must be strictly construed and that, therefore, the language of such a statute can not be so broadly interpreted as to permit it to include a claim for rental of machinery.

It is true, of course, that lien statutes must be strictly construed. Griffith v. Williams, La.App., 19 So.2d 277; Yellow Pine Lumber Co. v. Maniscalco et al., La. App., 9 So.2d 320, and Lawrence v. Wright et al., 11 La.App. 703, 124 So. 697.

It is true, too, that in several cases it has been held that where a contractor or subcontractor finds it necessary to rent or purchase machinery or tools to carry out his contract, no Men against the work itself and no personal claim against the owner of the building may be asserted by the renter or seller of the machinery.

In Colonial Creosoting Co. v. Perry et al., 169 La. 90, 124 So. 182, 184, the Supreme Court said:

“It is true the language of the statute relating to the condition of the bond is very broad and comprehensive, yet we are of the opinion that it was never intended that the bond should cover the price which the contractor had to pay, either for the purchase or for the rental of machinery, tools, and implements employed in the construction of the work.
“The contractor is supposed to furnish at his own expense the machinery and implements necessary to perform the work he has contracted to do, and it was never contemplated that his surety was obligated to pay for same.”

See, also, Louisiana Highway Commission v. McCain, 197 La. 359, 1 So.2d 545, 548, in which appears the following:

“The equipment involved herein does not form a part of the completed structure and was not consumed in the prosecution of the work. The equipment survived the performance of the contract, remaining the property of the owners, and was available for use by the owners upon other contracts. Under such circumstances the surety would not be liable for the rental of the equipment. Rester v. Moody & Stewart, supra [172 La. 510, 134 So. 690]. Moreover, the contractor is supposed to furnish at his own expense the machinery and implements necessary to perform the work he has contracted to do. * * * ”

We think, though, that the situation here is quite different from that found in these or any other similar cases. Here, it was contemplated in the contract that there might be a necessity that the building remain on the jacks during the construction of the new foundation for a longer period than twenty-one days, and it was expressly provided that, if this necessity should arise, there would be a charge therefor. The necessity did arise, apparently due to the fact that the construction of the foundation took longer than was contemplated and, no doubt, due- to the fact that it was cheaper to let the jacks remain in place than to construct a temporary foundation, the jacks were allowed to remain and the additional indebtedness was incurred.

This is not at all the situation which is found where a contractor, in order to carry out his contract, has to buy or rent tools or machinery. If such tools or machinery are necessary for the carrying out of the contract, it is presumed that he has them or will obtain them at his own expense. But, where it is found that, after his work is completed, for the benefit of the work as a whole, it is best that he leave a part of his equipment in place, we see no reason why a charge should not be made for the use of the equipment and why that charge, particularly if contracted for in advance, should not form the basis of a lien against the building and a claim against the owner. We think, then, that the plaintiff is entitled to a lien based on the rental charge for the use of the jacks after the twenty-one day period, and the next question which is, therefore, to be considered is how much has been proven on this item and how much has been set forth in the lien affidavits.

As we have shown, three affidavits were recorded in the Mortgage Office. The first, recorded against Will, who was not the owner, is the only one which attempted in any way to set forth the amount due on this part of the claim, and that affidavit stated only that Hughes was entitled to collect “fifty cents per day for each of five jacks remaining on the job, since July 9, 1946.”

Neither the affidavit filed against Cameron, as owner, nor the affidavit which amended the first affidavit against Will so as to show that Cameron was the owner, shows any amount whatever on this particular item.

It is true that there is nothing sacramental about the form or contents of a lien affidavit. Mercantile National Bank of Dallas v. J. Thomas Driscoll, 194 La. 935, 195 So. 497. There, however, the court, after stating that the form of the affidavit was unimportant, went on to say that such statutes contemplate that in the affidavit there must be set forth the amount claimed. And we think there can be no doubt of this. If liens are to he strictly •construed, it is obvious that there must be set forth information as to how the claim arises, against whom it is to be asserted, and the amount thereof. This claim, therefore, so far as the owner is concerned and so far as the lien is concerned, must be limited to the amount set forth in the affidavits.

The most that can be said of the three lien affidavits is, if read together, they show a claim based on a rental of fifty cents per day for each of five jacks from July 9, 1946,, to the day on which they were removed from the job, which day is shown to have been August 18, 1946. But even this amount cannot 'be allowed in full because the record shows very plainly that the twenty-one days of free time did not expire as set forth in the affidavit on July 9th, but expired only on July 13th. We say this because it is very clear that the raising of the building was completed on June 22, 1946. If the twenty-one days free time commenced to run on June 23rd, then the last of those twenty-one days was July 13th. The first day for which a charge could be made was July 14th, and since the jacks were removed on August 18th, the last day for which a charge could be made was August 17, 1946. This was a total of thirty-five days at fifty cents per day for each of five jacks, therefore, the total charge which could be made was $87.-50.

This amount must be added to the $400 which is not in dispute and which represents the unpaid balance of the stipulated contract price.

The record shows that the reconventional demand was properly dismissed as was the supplemental claim for $28.13. Neither of these items was discussed in oral argument or in brief by counsel for either party.

We hold then that the total amount to which plaintiff is entitled is $487.50. Accordingly,

It is ordered, adjudged and decreed that the judgment appealed from be and it is amended by the reduction of the amount thereof to $487.50, and as thus amended, it is affirmed, costs of appeal to be paid by ap-pellee, all other costs to be paid 'by appellant.

Amended and affirmed.


author: McBRIDE, Judge.

text:
    CLOAR GLASS CO. v. GIACONE et al.
    No. 18884.
    Court of Appeal of Louisiana. Orleans.
    May 10, 1948.

      Dart, Guidry & Price and Edward F. Wegmann, all of New Orleans, for plaintiff and appellant.
    William C. Orchard, of New Orleans, for defendants and appellees.
   McBRIDE, Judge.

On or about April IS, 1946, Cloar Glass Company, plaintiff and appellant, contracted verbally with Louis Giacone and A. Bailot, defendants and appellees, to furnish and install certain mirrors in defendants’ place of business, which was being remodeled, at 123 University Place, New Orleans. It was understood that the mirrors were to be fu'rnished and installed as the work progressed. The glass company was represented by its field men, Snell and Sussdorf. Defendants acted through their general contractor, Eugene Cas-sanova, Jr. Plaintiff filed this suit alleging that the contract price was $3,009.04, and that the defendants had paid on account the sum of $2,875.22, leaving a balance due of $133.82, for which judgment is sought. Defendants allege that they have paid plaintiff in full.

Plaintiff’s suit was dismissed in the lower court, and this appeal resulted.

The disputed item of $133.82 represents the charges for the fabrication and installation of certain temporary mirrors furnished by plaintiff. The facts are: About July 1, 1946, when defendants’ contractor required delivery of certain of the mirrors, plaintiff informed him that there had been a strike in the glass industry which prevented a delivery of the polished plate glass mirrors contracted for. Plaintiff was then authorized by John R. Edwards, representing the firm of Shourds, Mogab-gab & Bean, architects for the job, to install temporary heavy sheet mirrors, the same to be replaced with the plate glass mirrors when and as they became available. The authorization was given because defendants were anxious to open and conduct their business. The temporary mirrors were installed about July 1, 1946, and’ later were replaced with the permanent mirrors, on or about October 1, 19-16. Plaintiff billed defendants for the fabrication and installation of the temporary mirrors, without any charge being made for the glass used, as it was returned to plaintiff when the permanent mirrors were installed.

In endeavoring to support the demand, plaintiff’s counsel argues that there was no time element mentioned in the contract, and that the strike in the glass industry, which prevented a flow of materials, was such an irresistible force as would excuse performance of the contract under articles 1933 and 3556 of the Civil Code. Counsel also contends that because of a custom prevailing in the contracting business the purchaser is to bear the cost of the temporary installation when the materials contracted for are not available through no-fault of the other party.

We perceive no merit in the first contention, as it seems to us a time element was involved in the contract, as will be hereafter pointed out. As to the other contention, that is that the defendants, under the obtaining custom, should bear the cost of the fabrication and installation of' the temporary mirrors, we notice it is well answered by Edwards, who testified as a plaintiff witness. His testimony is to the effect that the custom relied upon does not prevail in a case such as the one we now consider.

Cassanova, the contractor, stated that he had asked Snell, who represented the plaintiff, to examine the plans and to give a price on the work, “provided that he had all the materials necessary to do the job.” He stated that Snell replied that he would see if he had the necessary material and would then make a proposal. Snell later contacted Cassanova, gave him a price and stated that he had the material. The contract then followed. Regarding the availibility of the material, Cassanova testified:

“Q. Was the fact that Mr. Snell stated to you that the materials were on hand the moving factor that you gave them the .contract? A. Yes, sir, definitely.”

Neither Snell nor Sussdorf were produced as witnesses. It was explained that Snell was absent from the state at the time of the trial below and could not be located. Sussdorf’s absence is unexplained.

Edwards admitted that the contract was 'let on the representation of plaintiff’s agents that the materials for the job could be supplied. He said:

•“ * * * we approved that contract on the basis Mr. Snell and Mr. Sussdorf stated that they were in a position to supply all the materials for the job * *

And his further testimony is:

“Q. All of that material in the original contract was supposed to be in New Orleans and available? A. That was my understanding when the contract was let, yes, sir.”

The representations referred to by Cas-sanova and Edwards are absolutely un-•contradicted, and considering that it was represented to defendants’ contractor that the materials were available when needed, .and the contract was let on that promise, a time element was interwoven into the contract. Both of the contracting parties ■thoroughly understood that the materials would be delivered when required, as the job progressed.

Edwards also testified at length regarding the custom of the contracting business upon which plaintiff relies, and also regarding the bill which is in dispute. His testimony is as follows:

“Q. Now; Mr. Edwards, as a matter of fact, was it not understood between yourself and the Cloar Glass Company, represented by Mr. Snell at that time, that the 1-2-3 Club would pay for the cost of the installation and fabrication of these heavy sheet mirrors? A. No, sir, there was' no discussion about the price or anything at the time. The first we knew of it is when the bill came through.
"Q. But you were not surprised when the bill came thru, were you? A. I was surprised charging for material in addition to. the contract.
“Q. Had the bill been for the cost of installation and fabrication it would not have been unusual, would it, Mr. Edwards ? A. No, sir, I don’t think it would have been unusual, but in this case it was because we assumed when Mr. Snell represented as having all the materials, we didn’t expect any extra costs.
“Q. You did authorize Cloar Glass Company to put in the heavy sheet mirrors, did you not? A. Yes.
“Q. And it is the custom in the contracting field and architectural field, in a case such as this, if the material man is not able to furnish the material called for in the contract, that he pay for the cost of installation and fabrication? A. Yes, if you leave the words ‘such as this case’ out of it, it is alright.
“Q. Do you consider a strike in the glass business, the glass factories and the glass workers as good reason for not being able to supply the materials? A. Yes, I do."
Cross-Examination
“Q. But you would not consider it a good reason if the contract was let with the assurance that all material was on hand and available, would you? A. Np, sir, I would not.
“Q. And that was the situation here? A. Yes, sir, it was to my reasoning.
“Q. All of that material in the original contract was supposed to be in New Orleans and available? A. That was my understanding when the contract was let, yes sir.”

It seems' to us that when Cassanova made the-contract with plaintiff, premised upon the representations of plaintiff’s agents that the materials were on hand and available, he was justified in assuming that the materials would be furnished whenever he needed them for the job, and that it was not contemplated that plaintiff should order them from the factory.

Under the circumstances, our opinion is that defendants are not liable for plaintiff’s bill, and that the furnishing and installation of the temporary mirrors was made necessary solely through the plaintiff’s inability to furnish the permanent heavy plate glass mirrors which its agents represented were on hand and available, and which could be furnished as needed.

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

Affirmed.


author: KENNON, Judge.

text:
    MITCHELL v. PARLOR CITY LUMBER CO., Inc., et al.
    No. 7148.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    Dhu Thompson, of Monroe, for appellant.
    McHenry, Lamkin & Snellings and Hudson, Potts, Bernstein & Davenport, all of Monroe, for appellees.
   KENNON, Judge.

Alleging permanent and total disability as the result of accidental injury to his left leg while at work in defendant’s sawmill, plaintiff filed this suit for the maximum benefits under the Workmen’s Compensation Act. Act No. 20 of 1914, as amended.

The answer admitted the occurrence of an accident to plaintiff and set forth that compensation had been paid from April 2, 1946 through September 21, 1946, and further set forth that plaintiff on August 24, 1946, began gainful employment and that plaintiff was as of that date, and since, without physical disability and fully capable of performing manual labor and doing the same work which he was doing at the time of the injury.

The case is on appeal from a judgment of the District Court rejecting plaintiff’s demands.

Defendants denied employment of plaintiff. Mr. Smith, foreman in charge of the mill, testified that during the noon hour preceding the afternoon of the injury, plaintiff objected to the work he was performing and said he was not going to work any more at that job, and that he was told that if he couldn’t do the work he was assigned to, he could go home. The foreman testified that he thought he had gone home. However, the record shows that plaintiff was at work on the day of the accident and the foreman’s testimony that he told plaintiff that he would have to continue the job to which he had been assigned or go home, was not a definite showing that the employment had terminated. Plaintiff did not report for pay and apparently elected to put up with the undesirable duties. That defendants did not consider the noon incident as a termination of employment is indicated — although not necessarily so as a matter of law — by the fact that he was treated by the doctors employed by the company and paid compensation for several months following his injury. The compensation was discontinued when the defendants discovered that plaintiff had gone to work at another job. We conclude that the plaintiff was employed by the Parlor City Lumber Co., Inc., at the time he was injured.

The plaintiff testified that the accident occurred when there was a stoppage of the chain on the “hog” (a machine designed to cut waste wood into size suitable for boiler fuel). He testified that he got up on the machine and pulled a chunk of wood out; that he heard a noise like a belt broke; stepped down off the machine on his right leg and then put his weight on his left leg and discovered that this leg was injured, the clothes being stripped off and biood streaming out. He testified that he hopped to the signal whistle and then to the engine room. An ambulance was summoned by other employees and he was carried to the Riverside Sanitarium, where he was treated by Dr. Everett, under the supervision of Dr. Tisdale.

Considerable testimony was introduced to indicate that plaintiff at the time of injury, .was not engaged in his assigned duties, which were to work on the ground and not on the “hog” four to six feet above the ground, where 'the injury occurred. A careful examination of the testimony on this point does not show that plaintiff unnecessarily placed himself in the place of danger. Plis duties permitted and required him to be at various points in the mill, including the vicinity of the “hog.” It undoubtedly was unwise for him to have exposed himself to the moving machinery, but his conduct was not such as to show that he had either deserted his post of duty or deliberately exposed himself to danger. We conclude that the injury occurred in the course of his employment.

The remaining question for decision is whether or not plaintiff had recovered from his injuries at the time compensation payments were discontinued.

The injury occurred on April 2, 1946. Plaintiff was kept in the hospital approximately two weeks and remained under care of the doctors employed by defendants until July 26th. He sought no medical attention after that date and ceased using his cane in August. He testified that his left leg continues to cause him pain between the ankle and the knee and that there is, at times, swelling in the area of the ankle and foot. In support of his own testimony of disability, plaintiff introduced his wife, his landlady and Dr. C. H. Moseley.

Dr. Moseley’s testimony was based on a clinical examination and on X-ray picture of plaintiff's left leg and ankle; both of these were made on September 9, 1946 while plaintiff was working for the Standard Gin Company. He testified that there was a fracture of the fibula (smaller bone of the lower leg) at the lower half; that the fracture was united with a considerable amount of callous. He found scar tissue on the outside of the left leg and a small enlargement or bump over the fracture point. In his opinion, there was a serious injury to plaintiff’s ankle joint, consisting of an unusual separation between the fibula and" the astragalus. He interpreted his X-ray as showing the joint narrower on the fibula side (on the outside) than it was on the tibia side (on the inside). His testimony was taken on April 9, 1947, six or seven months after X-ray picture had been made and he Stated that later X-rays would be of value in showing a proper uniting of the fractured fibula, but did not think that recent X-rays would be helpful in determining the present condition of the astragalus area.

The testimony showed that plaintiff, in August following the injury, went to work for the Standard Gin Company. His duties there were not arduous and consisted principally of watching the gauges and instruments in the engine room and some maintenance of the machinery. At times he caught a ride to work, but often walked from his house to the job and back. He continued this employment until the close of the ginning season in October. His wife and landlady testified that he had been unable to do heavy work since the injury.

The defendants produced Dr. A. D. Tisdale, the original attending physician, Dr. D. M. Moore, Dr. A. G. McHenry and Dr. A. Scott Hamilton. Dr. Tisdale testified that an X-ray made immediately after the accident showed a fracture of the fibula with the broken ends in such position as to likely produce a good juncture; that additional X-rays were made a few days later while the leg was still in the cast and there was shown a good alignment with callous formation indicating normal healing already beginning. Another X-ray was made on May 16th at the time the cast was removed, which showed normal callous formation and another made on June 3d showing increased healing formation with good alignment and no indication of any abnormal bone situation at the ankle joint. He-testified that the plaintiff said that the leg felt fairly comfortable.

The other doctors introduced by defendants examined plaintiff shortly before the-trial. Each testified that he believed plaintiff had recovered from his injury and was. able to do the same type of manual work that he performed before the injury. Dr. Tisdale examined the X-ray film made by Dr. Moseley and found the alignment of the fibula bone as well as the spacing in. the ankle joint to be normal.

Dr. D. M. Moore, an X-ray specialist,, made X-rays on March S, 1947 (nearly a year after the injury) and found evidence-of the fracture of the fibula, with bones in-good position. He found the ankle joint normal with satisfactory spacing between: the fibula, tibia and astragalus bones, and testified that plaintiff’s leg, in his opinion,, was as good as ever.

Dr. McHenry testified that the X-rays-made in March, 1947 showed satisfactory position and alignment of the fractured bone, and that the series of X-rays taken during treatment showed normal healing processes. He examined plaintiff and found that he had normal use of his left leg. He believed plaintiff able to perform manual labor and found no deviation from the normal spacing at the ankle joint between the tibia, fibula and the astragalus.

Dr. A. Scott Hamilton, an expert orthopedic surgeon, testified, after an examination of the plaintiff and the X-rays, that there was a normal and complete healing of the old fracture and that the surface scar was well healed with no adherence to underlying tissues, and that there were no restrictions as to the movement of plaintiff’s left leg. He examined the X-rays made by Dr. Moseley as well as those made by the other physicians and considered that plaintiff had no disabling condition in the leg or in the ankle joint.

The District Court found for the defendants. Our study .of the record discloses that the testimony amply supports this finding.

The judgment is affirmed, with costs.


text:
    FRANKLIN v. TEXAS & P. R. CO.
    No. 18972.
    Court of Appeal of Louisiana. Orleans.
    May 10, 1948.
    Rehearing Denied June 7, 1948.
    See 35 So.2d 867.
    J. L. Warren Woodville, of New Orleans, for plaintiff-appellant.
    Phelps, Dunbar, Marks & Claverie and J. Burnwell Phelps, all of New Orleans, for defendant-appellee.
   JANVIER, Judge.

Plaintiff, a Negro man thirty-one years of age, sustained physical injuries on the night of Saturday, October 2d, 1943, just north of Natchitoches, Louisiana. Alleging that these injuries resulted from a fall from a passenger train of the defendant railroad company on which ‘he was a passenger for hire, and that the said fall was caused by negligence of the employees of the defendant company, plaintiff brought this suit praying for judgment for $31,000. He alleges that at the time he was a member of the Armed Forces of the United States and that he was stationed at Camp Claiborne near Alexandria, Louisiana; that he had obtained a short pass or leave in order that he might visit in Shreveport over the weekend; that he purchased a round trip ticket from Alexandria to Shreveport and that he boarded the train at Alexandria, leaving there shortly after 8 o’clock at night; that there being no available seats, he had been forced to stand during the journey from Alexandria to Natchitoches, and that as the said train was leaving Natchitoches, he thought that he might be able to find a seat in the passenger coach ahead of that in which he had been riding and attempted to pass from one coach to the other; that while he was in the vestibule, the train gave a sudden lurch which caused him to lose his balance and fall; that the trap door on that part of the floor of the vestibule nearest him had been left open through carelessness of employees of the company, and that when he lost his balance as a result of the sudden lurch he fell through the open door of the vestibule to the ground and sustained injuries.

Defendant denies all of the allegations of plaintiff’s petition, and after a trial, there was judgment in the District Court dismissing the suit, and plaintiff has appealed.

The sole issue in the case is one of fact. Did plaintiff fall from the train or did he sustain his injuries as a result of intentionally trying to jump from the train, or was he a passenger at all, having been hurt in some entirely different way?

It is shown clearly that although the injuries were sustained on the night of October 2d, 1943, neither a report oi them nor a claim resulting from them was presented to the defendant company until nearly three years later.

As a result of this long delay the railroad company, of course, found it very difficult to investigate the accident, if there was an accident, and bases its defense almost entirely on pointing to alleged inconsistencies and contradictions in the various statements given by plaintiff and to other circumstantial evidence tending to contradict the statements of plaintiff and also points to his previous bad character and reputation, showing a rather bad earlier criminal record.

Counsel for plaintiff insists that the District Judge dismissed the sui-t because of an erroneous belief that Article 2277 of the Civil Code has some application. That article governs the proof which is required in suits on contracts or agreements above $500, requiring proof by at least one credible witness and other corroborative circumstances. Counsel for plaintiff argues that that article has no application to a suit of this kind and that, therefore, if the judge below dismissed the suit because plaintiff’s claim was based solely on his own evidence, he must have been in error. We find nothing in the record to indicate that the District Judge was of the opinion that Article 2277 of the Civil Code has any application to such a suit as this.

The next contention of plaintiff, which we shall consider, is that since there, is no positive evidence, except that of plaintiff, himself, that the injuries were sustained as he says they were, we should accept this testimony and should not permit it to be overcome by the effect of circumstantial evidence and by proof that plaintiff, himself, had been in criminal difficulties on earlier occasions. In support of his argument on this point, counsel quotes the following from 23 C.J., Verbo Evidence, Sec. 1791, page 47; 32 C.J.S., Evidence, § 1038; “Uncontradicted evidence should ordinarily be taken as true, and cannot be wholly discredited or disregarded if not opposed to probabilities or arbitrarily rejected, even though the witnesses are parties or interested; and where the evidence tends to establish a fact which it is within the power and to the interest of the opposing party to disprove, if false, his failure to attempt to disprove it strengthens the probative force of the evidence tending to prove it.”

If the unsupported statement of a plaintiff in this kind of case is to be accepted, regardless of the circumstantial evidence and regardless of whether or not plaintiff’s character is such as to entitle him to be believed, then in any case in which a plaintiff is injured where there is no positive evidence to contradict his story, recovery must be allowed regardless of all suspicious surrounding circumstances.

Wigmore, in his work on Evidence, 2d Ed., Vol. 4, Sec. 2034, p. 309, says: “ * * * the mere assertion of any witness does not of itself need to be believed, even though he is unimpeached in any manner; because to require such belief would be to give a quantitive and impersonal measure to testimony.”

We have no doubt that in a case such as this, it is necessary, more than in a case where there are witnesses on both sides, to scrutinize carefully the statement of the party who makes the claim and to also study in detail the circumstances which tend to disprove his statements.

The plaintiff himself gave statements concerning the occurrence on three different occasions. In the first place, he made a statement to the claim agent of the defendant company; in the second place, his testimony was taken de bene esse, and in the third place, his evidence was given on the witness stand when the case was tried. While in the main and on the important details his three statements seem to coincide, in minor details, which ordinarily might be unimportant, there are contradictions which throw suspicion on the truth of his more important statements.

But there are other circumstances which, to an even greater extent, tend to discredit him. In the first place, it is shown that on four earlier occasions he had been in difficulties with the law. In these encounters with the law, plaintiff had come out with more or less success to himself, but we cannot but believe that the facts related in connection with them, both by him and by other witnesses, tend to show him to be not entirely trustworthy.

In addition, however, to these aspersions which have been cast upon his character, we find other circumstances which throw grave doubt upon the truthfulness of his recital as a whole. Among these circumstances let us recite the following:

He stated that during the preceding day and evening he had imbibed nothing whatever in the shape of intoxicating liquors and yet the two men, who discovered him after he had crawled to, or had been placed in, the power house near Natchitoches, say that unquestionably they could plainly detect whiskey on his breath. Mr. Dranguet, am employee in the power house, said: “Yes, sir, I smelled it. I am sure of that.” And Mr. Thaxton, the other employee, was asked: “Did you notice if Franklin had been drinking? ” And he answered: “You could smell whiskey or liquor I would say.”

Franklin claimed that he had fallen off the train at a point somewhere near this power plant and lapsed into unconsciousness several times and had finally crawled from the point at which he had fallen to the power plant. The record shows that this power plant is four or five hundred feet from the tracks at its nearest point, and yet these two witnesses say that Franklin’s clothes showed no evidence of having been dragged across the ground or of his having crawled and that the next morning, by daylight, they went outside to look at the ground and could find no evidence of his having crawled along the ground.

Another circumstance that we find interesting is that plaintiff, for five, six or seven months, had been a railroad employee, being employed as a dining-car waiter, and was undoubtedly familiar with railroad trains. He was not an ordinary country farm laborer, and it is hard to believe that he fell from a train as he says he did.

The record shows that the trap door could not have been opened unless the main door was also first opened, and he does not claim that the other door was open. He says that the lurching of the train threw him sideways to his right, and yet it is shown that the track was perfectly straight at that point and there was nothing to cause the car to sway from one side to the other. If the lurch was either forward or backward as a result of the train putting on speed or slowing up, he would have been thrown backward in the one case or forward in the other, but not sideways.

In the case of McBride v. New Orleans Public Service, Inc., 3 La.App. 474, we held: “When the manner in which an accident is alleged to have taken place is improbable, it will take but a slight preponder-anee of evidence to justify the conclusion that the accident did not occur in the manner alleged.”

In the question of whether the trap door could have been open the only evidence besides the testimony of plaintiff himself is to be found in the statement of the train conductor. This conductor, at the time of the trial, had retired from the service, having had forty-four years in the employ of the company. He said that when the train was about to leave Natchitoches, he took his position at the rear of the first passenger coach and he took the tickets from all passengers who boarded the train, and that if he had not handled the train in that manner, passengers would have boarded the train through other coaches and he would never have been able to get their tickets, so that he made certain that the other doors were closed and, therefore, he was certain that the door through which plaintiff says he fell could not have been open. Of course, this witness had no personal recollection of this particular occasion, but he had a remarkably complete record kept in a book in which all entries had been made by him, and he was able to give considerable details concerning that particular trip of this train. He said that he was certain that the door through which plaintiff says he fell could not have been left open because he always “religiously” looked to see that no other doors were open so that the passengers must board through that door at which he took his position.

Defendant’s theory of the case is that plaintiff, who, during his sojourn in the Army, had been stationed at Natchitoches for a considerable time, had suddenly realized, just as he was about to leave Natchi-toches, that he might get off there and enjoy himself in that district of Natchitoches known as the “Hill”, which seems to have been made up of colored saloons and pleasure resorts, and that he either did not get back on the train at all, or attempted to leave the train as it passed through that section of the town. Of course, there is no direct evidence to corroborate this theory. It is suggested too that possibly he had not fallen from the train at all, but had left the train at Natchitoches, had gone into this district referred to as the “Hill”, had there gotten into difficulties which resulted in his injuries, and had been carried to and left in the power plant where he was later discovered. Of course, here again there is no positive evidence.

A rather remarkable circumstance is the fact that plaintiff did not actually present any claim to the railroad until nearly three years after the alleged occurrence. He attempts to explain this by saying that he was in the Army and that he had reported the matter to the Judge Advocate and to the Red Cross and to various lawyers, but his stories concerning these various reports to these various agencies are very confusing and self-contradictory. It seems certain that if he had reported such an accident to such an agency as the Red Cross, the information concerning the claim would have reached the defendant railroad company long before it actually did so.

We see no reason to go into further details concerning the circumstances which throw grave suspicion on the story of plaintiff. The District Judge found those suspicious circumstances sufficient to discredit his story.

Our conclusion, after reading the record, is that the District Judge obviously was not in error in reaching this conclusion.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.


text:
    ADRIANI et ux. v. WIRTH.
    No. 18970.
    Court of Appeal of Louisiana. Orleans.
    May 10, 1948.
    Irwin W. Rosenthal, of New Orleans, for plaintiffs and appellants.
    Hammett & Bertel, of New Orleans, for defendant and appellee.
   JANVIER, Judge.

Defendant operates a drugstore at No. 619 St. Charles Street in New Orleans. Salvatore Adriani operates a tailoring and clothing repair business in that neighborhood, and Mrs. Adriani helps her husband in conducting this business.

At about 8:30 or 9 o’clock on the morning of October 2, 1946, Mrs. Adriani entered defendant’s drugstore to make a purchase. While waiting she decided to partake of a cup of coffee and a roll, and, accordingly, took her seat at the proper counter on a revolving stool. As she attempted to leave her seat, she fell to the floor and sustained injuries to her leg.

She and her husband charge that the fall was due to the improper construction of that part of the floor on which that and the other revolving stools rested, and they bring this suit against Wirth charging fault on his part, praying for judgment for $716, of which $500 is to compensate Mrs. Adriani for her pain and suffering and $216 is to reimburse Mr. Adriani for medical expenses, employment of a maid to attend to house work during the disability of Mrs. Adriani, and for loss of earnings in the business resulting from her absence.

The negligence of Wirth is alleged to be evidenced by the fact that the stools at the refreshment counter were not placed on the floor itself but were on a longitudinal plank 1% inches in thickness and ll1/^ inches wide, the edge of which plank did not extend to the base of the counter, there being a space between it and the said base 2% inches in width. It is charged that it was negligence to permit this opening between the counter and this plank and that the right foot of Mrs. Adriani caught in this opening as she attempted to step from the stool to the floor.

Defendant denies that there was any defect in the construction of any part of his store and avers that the accident resulted solely from negligence and lack of care of Mrs. Adriani and, in the alternative, that it appear that there was any negligence on his part, that the cause of the fall was the contributory negligence of Mrs. Adriani herself in the following particulars:

“a. That the said Mrs. Adriani is a woman weighing over 200 pounds. That if plaintiff, Mrs. Adriani, suffered any injury in said accident, which defendant denies, that said injuries were entirely caused by her negligence and lack of care in getting off the stool on which she was seated at the soda fountain.
“b. That the said plaintiff, Mrs. Adri-ani, in getting up from said stool, did not take the proper precaution to avoid tripping or stumbling, and that she fell in doing so entirely because she arose from the stool hastily and carelessly, without taking proper care of herself, so that she stumbled or tripped and fell.”

After a trial on the merits in the District Court,■ there was judgment dismissing the suit and plaintiffs have appealed. In the record we find a note reading as follows:

“The Judge inspected the premises 619 St. Charles Street and made the following statement:
“I made an effort to fit the shoe into the groove but found it impossible to do so without turning it sideways. It would have been impossible for the lady to step down and place one foot in the groove and the other outside the platform and stand on even footing as she testified. Furthermore, an inspection of the platform convinces me that it is not hazardous. I do not believe it is any more dangerous than the sills in the doorways of the court building.”

Mrs. Adriani, in an effort to show that she was not guilty of contributory negligence, declared that the opening in which she says her foot was caught was not noticeable for several reasons. First, because the floor of the establishment, which was of ordinary concrete, was of about the same grayish tone as the board to which the stools were attached, and, second, she says that the opening was in a shadow thrown by a magazine rack, which was on the floor of the drugstore between the counter and the glass front of the store; that the sun shone through this glass front and threw the shadow of the magazine rack directly on the opening in which her foot was caught, and that this was accentuated by the fact that over the counter and a little back of it, was a bright electric light which also threw the shadow of the counter on this opening.

There is some doubt 'as to whether her testimony concerning the lights and these several pieces of store equipment is accurate but we deem it of little importance in view of the conclusion to which we have come.

There is also a controversy between counsel as to whether or not such a condition as is shown to have existed here is dangerous. Again, in view of our conclusion, we find it unnecessary to determine this question. Our reason is that before it becomes necessary to consider whether there was a danger for the results of which defendant would be liable, and before we are called upon to determine whether plaintiff, herself, was guilty of contributory negligence, it must -first be made to appear that the injuries were sustained as a result of the danger and, in fact, that they were sustained in the manner described by plaintiff, that is to say that they resulted from this defect; if it was a defect.

As already shown, the district judge did not believe that plaintiff caught her foot in this opening, obviously concluding that she merely slipped or lost her balance and fell as she attempted to alight from the stool. It is true that he based this belief, to some extent, on his test which showed that the shoe could not have gotten into the groove unless it was turned sideways. And it is true, too, that plaintiff testified that she did turn sideways before her fall and before she attempted to put her feet on the floor. But it 'is obvious that for other reasons as well the district judge did not believe plaintiff’s story and there is much in the record which justifies his conclusion that she is mistaken in her version of the occurrence.

We have carefully analyzed the testimony of plaintiff, herself, and think that her story was changed so many times and is so often self-contradictory that a judgment could not possibly be based on it.

There is no doubt that as she was alighting from the revolving stool she fell and sustained injuries which, in spite of her testimony and that of her physician, seem to have been very trivial. There is no doubt also as to the fact that there was a space of 2% inches between the base of the counter and the plank which was 1% inches thick, which was attached to the floor and to which the revolving stools were affixed. Of course, if, as a matter of fact, Mrs. Adriani’s foot did catch in this opening and did cause her injuries, it would be necessary to consider the two questions: whether this was a defect which should not have been permitted, and' whether she should have seen it and was guilty of contributory negligence in placing her foot in it.

But her own story is unbelievable because, as we have said, of its many changes and contradictions. When she was on the witness stand and was asked what caused her fall, her first answer was: “I don’t know why I tripped.” Shortly afterwards she said that she looked down and saw this opening, and realized that she must have caught her foot in it. It would be easy to understand why she might not at first have realized what had happened except for the fact that a little later in her testimony, in an apparent effort to more firmly bolster her case, she said that her foot had actually caught in the opening and she added: ‘T couldn’t get it out.” Again she said that she “must have” seen her foot in the “groove” because “I had to jerk it out * * * I felt it holding me.”

We have no doubt that she did not at that time say anything to anyone about having caught her foot in this opening or groove. Mrs. Humphrey, a waitress employed in the store at that time but who no longer is employed there, asked her what had caused her to fall and testified that she said “she didn’t know.”

After Mrs. Adriani had testified that she had told Mrs. Humphrey exactly what caused her to fall, she was asked whether she knew Mrs. Humphrey would deny that and she changed her story and said she had not told it to Mrs. Humphrey but had said it out loud. And, on further questioning, she said she didn’t know how loud she had s-aid it, and when asked whether she had said it loud enough “for this girl to hear” she said: “I don’t know.”

Mrs. Humphrey, on the stand, testified that nothing whatever had been said about the groove, that Mrs. Adriani had simply said she didn’t know what caused her to fall, that her leg had been rubbed with alcohol and that after a few minutes she had departed.

Mr. Wirth was in the rear of the store and was told that “a lady had slipped off a stool.” Mrs. Humphrey asked him for something to rub the lady’s leg with and he gave her some alcohol and did not even go to the front of the store. Surely if he had been told that a customer had caught her foot in an opening in the floor and had been' badly hurt, he would have made a further investigation.

It is strange, too, that the fact that Mrs. Adriani claimed to have been seriously injured and claimed also that it had been caused by an alleged defect, was not reported to Mr. Wirth by either Mr. or Mrs. Adriani. Mr. Adriani did not claim that he had made any report to the drugstore. Mrs. Adriani said that she did not know if her husband had or not and said that she, herself, had said nothing about it until five weeks afterwards when she called at the drugstore to see if Mr. Wirth was in. She was told that he was not in, and she decided that she would not wait. She was asked if she had told the cashier what had happened and she said:

“No. I don’t think I told the young lady. I don’t think I spoke to the cashier at all about the accident; but she told me, the cashier told me, many persons have fallen on that same thing.”

The absurdity of Mrs. Adriani’s statement is at once apparent. She stated that she said nothing to the cashier about the accident and the cashier volunteered the information that many other persons had been caught in that same opening. The cashier denied having made any such statement. The record shows that no other accidents of this kind have ever occurred in the three or more years during which the stools have been placed on that plank in that particular location.

Our conclusion is that the story of Mrs. Adriani is unbelievable. Certain it is that the record does not warrant a reversal of the District Court on a question of fact.

The judgment appealed from is affirmed at the cost of appellees.

Affirmed.


author: HARDY, Judge. PER CURIAM.

text:
    CHAMBERLAIN v. BRUCE FURNITURE CO.
    No. 7173.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.
    Rehearing Denied April 30, 1948.
    Jackson B. Davis, of Shreveport, for appellant.
    Eugene J. Coen, of Shreveport, for ap-pellee.
   HARDY, Judge.

The facts involved in this case are set forth in the opinion of this Court which remanded the cause to the City Cou'rt of the City of Shreveport, Caddo Parish, Louisiana, for further proceedings, as shown in Chamberlain v. Bruce Furniture Co. et al., La.App., 29 So.2d 183.

After the case was remanded to the City Court the defendant again filed a plea of estoppel, a plea of non-joinder and an exception of no cause and no right of action. The exception of non-joinder was overruled and the exception of no cause or right of action and the plea of estoppel were referred to the merits. After trial on the merits there was judgment sustaining the plea of estoppel and rejecting plaintiff’s demands, from which judgment plaintiff brings this appeal.

The basis of the plea of estoppel is predicated upon defendant’s contention that plaintiff admitted the authorization of his wife to purchase the furniture; that he provided the money for the monthly payments made in response to judgment rendered against him, and that he appeared in the suit brought by these defendants, for the purpose of collecting an unpaid balance, through one L. L. Lockard, a member of the Shreveport Bar.

The exception of no cause and no right of action, which is additionally urged in this Court by zealous counsel for defendants, is based upon the contention that Mrs. Chamberlain incurred the obligations for the payment of the furniture as a duly authorized agent of the community and thereby bound the community for payment.

Conceding the truth of the facts relied upon with respect to these exceptions, we are of the opinion that they do not strike down all of plaintiff’s grounds of action. It is to be borne in mind that plaintiff in this proceeding is seeking to recover damages resulting from what he claims to have been an illegal seizure and sale of the furniture.

The salient point, as we appreciate the involved facts herein, and the only one which in our opinion requires an examination and disposition, is with reference to the procedure followed by defendants in attempting to enforce ,heir judgment by the service of process on plaintiffs through attorney Lockard.

Defendants in combating this contention rely on a strict interpretation of the law as set forth in the Code of Practice Article 186.1(16) which provides:

“After suit has been brought and the defendant has appealed, through counsel, service of all other process in the suit, except garnishment process, but including supplemental petitions, should same be allowed by the court may be accepted, by, or service made upon, the attorney of record, and the right so to serve shall remain until the attorney shall have formally withdrawn from the case under order of court; and this rule shall also apply to the plaintiff and his attorney, after suit filed.”

In connection with the above quoted article defendants also urge the provisions of Article 186.10 of the Code of Practice referring to the service of pleadings, motions, etc., upon attorneys of record.

.As a general proposition we think defendants’ argument on this point would be sound in the absence of a formal withdrawal by attorney Lockard as counsel for plaintiff. But it is always true that circumstances alter cases, and, certainly, facts frequently change the applications of general rules of law.

Briefly recapitulating the facts for the purpose of discussing this point, it is to be borne in mind that plaintiff, Chamberlain, was in the service of the armed forces at the time his wife purchased the furniture herein brought into question. Due to inability to make the required payments in accordance with the terms of the purchase, the vendor of the furniture brought suit against the Chamberlains. Attorney Lock-ard, representing Mrs. Chamberlain, also filed an intervention on behalf of Mr. Chamberlain, as a result of which a judgment was rendered in favor of plaintiffs, the vendors of the furniture, against the Chamberlains, coupled with an order staying execution thereof in consideration of payments in accordance with the provisions of the judgment.

It is significant to observe that the terms of payments were kept for a considerable period of time until the balance due the vendor of the furniture had been reduced to the sum of $16.04.

Seeking to enforce the collection of this balance of $16.04, a default in complying with the terms of the stay order was alleged and the judgment consequently was made executory. At this time Mrs. Chamberlain had removed from Shreveport, after storing the furniture in a local storage warehouse, and her whereabouts were unknown.

Counsel for the furniture concern contacted Mr. Lockard and was told definitely, according to the uncontradicted testimony of the said attorney in this proceeding, that he no longer represented the Chamberlains and that he considered his connection with the matter long since terminated. Despite this warning, process was served on the Chamberlains through Lockard as attorney of record, and after the judgment in the principal sum of $16.04 was made execu-tory, writs of fieri facias were issued, and notice of seizure was also served on Lock-ard.

We think it important at this juncture to quote the testimony of Mr. Lockard, as reflected in the record of this case, as follows:

“No, I didn’t take any formal steps to withdraw, no. I didn’t think it was necessary after I talked to you. I was relying on what I understood your representation to be that you would have other service.”

The interpretation of this extract of Mr. Lockard’s testimony is clear, unequivocal and uncontradicted. The counsel who cross-examined him at the time the above quoted testimony was given was the same attorney who had been advised previously by Mr. Lockard that he was no longer representing the Chamberlains, and he was the same attorney who had given Mr. Lockard to understand that he would take other steps to bring the Chamberlains into court. This attorney made no effort to testify in the case in order to attempt to refute Mr. Lockard’s testimony, and it therefore must be conclusively presumed that he knew this testimony and the facts set forth therein to be true.

As pointed out in the case of Fidelity & Casualty Company of New York v, General Motors Acceptance Corporation, La.App., 152 So. 692, 693, the law upon which defendants rely in this case is “in derogation of the usual methods of service [and] its effects should be limited to cases coming clearly under it”.

We are definitely of the opinion in this case that, under the circumstances, defendants are not justified in relying on a strict application of the provisions requiring formal withdrawal of counsel. Practicing members of the bar are too much accustomed to rely upon personal agreements and understandings between themselves which frequently have the effect of supplanting strict and formal statutory requirements. Failure of courts to extend full faith and credit to these agreements and to enforce such agreements would render the practice of law a thing of such immutable formality as to seriously and adversely affect the pleasant and agreeable relationships which for the most part exist between opposing counsel and the mutual advantages and benefits flowing therefrom.

For these reasons we deem it necessary in the interest of justice to reverse the judgment from which this appeal has been taken. .

It is to be regretted that the facts contained in the record before us are not sufficient to justify a definitive pronouncement of judgment by this Court as to the respective rights of the parties herein. Without question the defendants are entitled, as off-, sets against plaintiff’s claims, to the item of $16.04, which remained unpaid on the amount of the obligation originally assumed, and certain court costs, together with the expense and cost of storage of the furniture which was paid. The difficulty arises from the fact that the record does not contain any showing of the value of the furniture at the time of the seizure and sale by defendants. It is essential that facts be properly established upon which may be predicated a determination of the several rights of the contesting parties and adjudication made on the basis thereof.

For the reasons assigned the judgment appealed from is reversed and set aside and this case is remanded to the Honorable the City Court of the City of Shreveport, Caddo Parish, Louisiana, for further proceedings, in accordance with the views herein expressed. The costs of this appeal are to be borne by defendant-appellant and all other costs shall await final determination of this cause.

On Application for Rehearing

PER CURIAM.

The original decree of this Court with respect to the assessment of costs of appeal is corrected to tax said costs against defendant-appellee instead of “defendant-appellant”, as erroneously stated in the judgment on first hearing.

The application for rehearing is refused.


author: HARDY, Judge.

text:
    CHANDLER v. SENTELL et al.
    No. 7165.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.
    Rehearing Denied April 30, 1948.
    A. S. Drew, of Minden, and St. Clair Adams & Son, of New Orleans, for appellants.
    L. G. Campbell, of Benton, for appellee.
   HARDY, Judge.

This is an action in which plaintiff seeks to recover damages to a school bus of which he was the owner and operator, together with damages for personal injuries and expenses resulting from a collision between plaintiff’s school bus and an automobile owned and operated by the defendant, Dr. Sentell. The liability insurer of defendant, Sentell, was also made a party defendant. Plaintiff claimed a total sum of $1,567.51. After trial on the merits there was judgment in favor of plaintiff fixing the amount of recovery in the sum of $621.17. From this judgment defendants have appealed.

About 8:00 o’clock A. M. on January 26, 1944, plaintiff was driving his school bus East along highway 80. At a point directly opposite an establishment known as El Rancho, which is a combination restaurant and bar, plaintiff brought his school bus to a complete stop, well on his right-hand side of the highway, after having properly signaled traffic on the highway by means of extending a red flag from one of the front windows of the bus, which operation was performed by one of the passengers. The red flag was affixed to a stick or staff some three feet in length and was extended additionally to the full arm length of the passenger, one C. W. McCormick. Unquestionably, the flag was clearly visible to traffic in both directions along the highway. The testimony shows that the flag was picked up outside of the school bus after the accident, which fact corroborates the testimony of McCormick to the effect that at the moment of the collision he dropped the flag and jerked his arm back within the bus.

Traffic proceeding East on the highway appeared to be particularly heavy at the time, but all vehicles behind the school bus came to a complete stop on observing the signal, in accordance with the requirements of law.

Plaintiff, driver of the bus, testified that he checked the following traffic in his rear view mirror; that he observed the highway ahead of him, and, seeing no approaching traffic, made his turn across the highway to the north for the purpose of pulling into the parking lot immediately in front of El Rancho in order to pick up two school children, whose parents were the operators of the establishment and who lived on the premises. The point of the turn appears to have been the easterly limit of the school bus route and it was customary for the operator to accomplish this maneuver at this place, after which he reversed direction and proceeded west along the highway en route to the Haugh-ton School in Bossier Parish.

A space of about forty-five feet in depth and between one hundred and one hundred eighty feet in width immediately adjacent to the highway in front of El Rancho is graveled for use as a parking area. It appears that the point of turn of the bus was some fifty feet, more or less, from the easterly limit of this parking area.

As plaintiff was negotiating his left turn across the highway he observed defendant’s automobile approaching from the East at a distance of some seventy-five yards. At this time the school bus had completely blocked the north lane of the highway along which the automobile driven by defendant, Sentell, was approaching. It is clear that plaintiff had no opportunity to avoid the collision. Sentell’s car crashed into the front portion of the bus at a point at or immediately behind the right front door with a force of such severity as to overturn the bus, which, according to undisputed testimony, weighed sixty-eight hundred pounds when empty. At the moment of the impact the front portion of the bus had cleared the highway and was on the graveled area but the body of the bus blocked the north lane of the highway, as above noted.

Plaintiff’s petition charges the negligence of the defendant, Sentell, as being the proximate cause of the accident, in four counts, namely; failing to keep a lookout; driving at an excessive rate of speed; failure to have his automobile under control; and failure to observe the law by heeding the school bus signal flag.

Defendants denied all charges of negligence on the part of Sentell and set up proximate contributory negligence on the part of plaintiff in that he failed to' come to a stop on the right side of the road before attempting to cross the highway; that he failed to observe the approach of the Sentell automobile; or, alternatively, if he did observe same, that he imprudently left a place of safety at a time when the near approach of the Sentell automobile rendered an accident inevitable; that he failed to yield the right-of-way to the Sen-tell automobile approaching from the opposite direction in its proper highway lane; that he attempted to turn across the highway when the way was not clear; that he failed to assure the safe movement of the bus across the highway before attempting same, and that he failed to give the signals required by law.

While defendants’ earnest counsel urge before this Court that this case involves a misapplication of the law, we are constrained to disagree with this argument. In our opinion the proper determination of this matter rests exclusively and entirely upon a resolution of the facts involved.

Fortunately, most of the testimony bearing on substantial questions of fact is not disputed. The only conflicts which are developed by the record appear to be with reference to the speed of the Sentell car and the distance at which Sentell could have observed the movement of the school bus.

For a' period of several miles, before reaching the situs of the accident, plaintiff’s bus had been following some fifty yards behind a one and a half ton Chevrolet stake body truck, over which a tarpaulin had been spread. This truck was in the service of the United States Board of Health1 and was driven by a Mr. J. C. Champion. Seated on the back end of the truck were two men who were facing to the rear and who had at all times a clear and unobstructed vision of the vehicles and of the accident itself.

It is definitely established that the Chevrolet truck and the school bus were proceeding at an even rate of speed of some 20 to 25 miles per hour, separated by a distance of some fifty yards. When plaintiff began the operation of bringing his bus to a complete stop the truck proceeded on its easterly course at the same speed. It is therefore obvious that the distance between the vehicles increased considerably during the time that plaintiff brought the bus to a stop, observed traffic and began his turn across the highway. This fact is of considerable importance in corroboration of the testimony of the driver and the two passengers in the truck to the effect that the Sentell car passed the truck at a point some one hundred to one hundred fifty yards ahead of the school bus at the very time it was engaged in a turning maneuver. The testimony of these three witnesses fixes the speed of the Sen-tell car at the time of passing at between sixty to eighty miles per hour.

This estimate of speed is stoutly contradicted by Dr. Sentell and his wife, who accompanied him at the time, who fixed the speed at something in the neighborhood of thirty-five or forty miles per hour.

In addition to the testimony of the witnesses who observed the rate of speed of the Sentell car immediately prior to the moment of impact, uncontrovertible evidence of excessive speed is found in the fact that the severity of the impact was sufficient to violently overturn a vehicle which weighed well more than three tons, excluding the weight of the driver and passengers, which is not' shown.

There were no evidences on the highway of any marks which attested to the setting of the brakes of the Sentell car, and, according to the testimony of Dr. Sentell himself, he was so close to the bus at the time he observed its position that it was impossible for him to do anything except to try to cushion the impact by turning slightly to the right in order to effect a glancing blow rather than a head-on collision by the entire front end of his car.

The version of the accident as given by Dr. Sentell in his testimony is that plaintiff turned his bus directly across the road at a time when Sentell’s car was not more than fifty to seventy-five feet away, and that the operation of the bus was masked from the view of defendant, Sentell, by the tarpaulin-covered Chevrolet truck. Convinced as we are of the absolute good faith of this witness, we are forced to reject this conclusion as being directly opposed to the facts established by an overwhelming preponderance of the testimony.

There is no question in our minds as to the fact that Dr. Sentell had a clear and unobstructed view ahead when he was a considerable distance from the point at which the collision occurred, and that, had his speed been reasonable under the circumstances, his attention vigilant, and his car under proper control, he had every opportunity to avoid the collision.

The several charges of negligence asserted by plaintiff have been well established. It is clear that the defendant, Sentell, did fail to keep a proper lookout; that he was driving at an excessive rate of speed; that he did not have his car under control; and that he did not observe the signal flags on the school bus. We are further convinced that defendants have failed to sustain the counter charges of negligence against plaintiff.

It is strenuously argued on behalf of defendants that plaintiff was under a legal duty to observe the highway to the East, and that his failure to note the approach of the Sentell automobile constituted contributory negligence which was the proximate cause of the accident. We do not find it so under the facts of this case. It is shown that some four hundred yards East of El Rancho there is a slight curve in the highway. Taking into consideration the time element necessitated in performing the operation in which plaintiff was engaged, and being convinced of the excessive speed at which the Sentell car was being operated, we think it entirely reasonable to conclude that the car was not within the view of plaintiff at the time he began to negotiate the left turn across the highway. This operation consumed several seconds in which period of time the Sentell car was approaching at an excessive rate of speed.

There can be no slightest doubt on the point that Dr. Sentell could and should have seen the bus at a distance which would have permitted him to bring his car completely under control. His failure so to do, coupled with the excessive speed of the automobile, was the sole and proximate cause of the accident. Miraculously, aside from slight injuries to the plaintiff, none of the school children on the bus were injured, despite the fact that it was overturned, and though Dr. and Mrs. Sen-tell were painfully and seriously injured they escaped death.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

KENNON, J., recused.


text:
    CAPPS et al. v. AMERICAN AUTOMOBILE INS. CO.
    No. 7174.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.
    Rehearing Denied April 30, 1948.
    Jackson & Mayer, of Shreveport, for appellant.
    Garrett & Pleasant, of Shreveport, for appellees.
   KENNON, Judge.

This suit grows out of an intersectional collision at Marshall and Crockett Streets in the City of Shreveport, Louisiana, which occurred at 5:30 a. m. January 1, 1947.

Originally suit was instituted by ’appellant' Rhodes and three other passengers in his car at the time of the accident. The petition charged that the collision occurred through the fault of the driver of the truck, upon which defendant carried public liability insurance, in failing to observe, that plaintiff’s car had pre-empted the intersection ; in driving into the intersection without decreasing his excessive speed of more than ten miles per hour in 'violation of a Shreveport city ordinance; in failing to give right-of-way to plaintiff’s car approaching on the truck’s right and in failing to exercise proper use and control of the brakes and steering mechanism and thus avoid the accident.

The answer denied that the driver of the truck was guilty of any negligence; asserted that the proximate cause of the accident was the negligent operation of plaintiff’s automobile, and, in the alternative, pleaded contributory negligence on the part of plaintiff.

In the District Court judgment was rendered in favor of each of the four plaintiffs. The defendant paid three of the plaintiffs and we have before us a suspen-sive appeal from the judgment in favor of Dale F. Rhoades, owner and driver of the car involved in the collision.

The truck driver was returning from an all-night, bad weather trip to Many, Louisiana, some ninety miles distant. According to the stipulation in the record, the streets were icy and the weather still rainy. The truck was on Crockett Street traveling east. Plaintiff’s Pontiac automobile was on Marshall Street traveling north.

The truck driver testified that he entered the intersection at five miles per hour; that his windshield was clear and the windows on both sides of the truck were clear, but that he did not see plaintiff’s Pontiac until his truck was across the center line of Marshall Street and that “before I had time to get on the brake he (the car) had already hit me.” On the other hand, his helper testified that their speed was fifteen miles an hour, and in another answer he said twenty miles an hour, and that although he endeavored to do so, he could not keep the glasses clear.

Plaintiff testified that he, upon approaching the intersection, looked to the left and then looked closely to the right, the direction from which oncoming traffic would have right-of-way and the side which had a blind corner.

Mr. Robbins, who was on duty in the office of Hodges Storage, located at this corner, testified that he did not observe either vehicle until approximately the moment of impact. He gave little detailed information on the speed of either vehicle or the position of each when the other entered the intersection, but when questioned as to whether the truck hit the Pontiac or the Pontiac hit the truck, replied, “The truck hit the Pontiac the way I got at it.”

No useful purpose would be served by further detailing the testimony of the four occupants of plaintiff’s car and the two occupants of the truck. We conclude, after a careful study of the testimony, that the truck proceeded into the intersection at a speed of fifteen to twenty miles per hour at a time when plaintiff’s Pontiac car, approaching from the truck’s right, and therefore entitled to the right-of-way, was entering the intersection at approximately the same speed; that at the moment of impact, the front end of plaintiff’s car had passed completely in front of the truck.

The truck’s entire bumper struck plaintiff’s car broadside. The left end of the bumper crushed the car’s left fender, the right half of the bumper crushed in the left door and the center of the bumper buckled in the car body at the juncture between the hood and hinging point of the door, buckling the panel board on the inside of the car and pushing the car east beyond the intersection and some five feet into Crockett Street proper.

The physical facts support the District Judge’s finding for the plaintiff in that the vehicles came to rest on the north curb of Crockett Street, indicating that the car had passed mid-point of Crockett Street at the time it was struck by the truck.

The fact that the front of plaintiff’s car was untouched in the collision indicates that the car entered the intersection either ahead of the truck or approximately the same time. The fact that the truck driver had not time enough to apply his brakes between the time he saw plaintiff’s car and the moment of collision indicates his failure to maintain a proper lookout. The fact that his truck continued through the intersection, pushing the car past the intersection and some feet into Crockett-Street itself substantiates plaintiff’s testimony that the truck was moving at more than the legal speed limit. Another indication of the speed of the truck was the fact that the passenger on the right side of plaintiff’s car was thrown clear of the car some twenty feet down the street from the point where the Pontiac came to rest.

To sum up the case against defendant; we conclude that the driver of the truck entered the intersection at a speed of fifteen to twenty miles an hour and that because of the frozen condition of the water on his windshield and side glasses, or because of his failure to maintain proper lookout, he1 failed to observe that plaintiff’s car had preceded the truck into the intersection or was entering it at approximately the same time, and failed to slow down and bring his truck under control in time to avoid striking plaintiff’s car, which had partly cleared the truck at the moment of impact.

One charge of negligence made by plaintiff was that the truck was being operated on Crockett Street in violation of the city ordinance fixing truck routes. The driver of the truck testified that because of the condition of the streets and the hills and inclines on the designated truck line, he deemed it less hazardous at that time of the morning to use the downtown Crockett Street. We do not think that the violation vel non of this ordinance by the truck driver has any hearing on the decision as to which driver was negligent. Under the circumstances of the case, it was immaterial whether the truck was an ordinary automobile or a heavy truck.

We do not find that the evidence has sustained defendant’s charge that plaintiff was guilty of contributory negligence. The fact that the truck was large and conspicuously lighted and that each driver had a fairly clear view across the corner between them indicates that plaintiff could likely have avoided the accident had he exercised better care. However, his was a reasonable explanation. He testified that after looking to his left, he devoted' his principal attention to the right, where the corner was blind and where an approaching car would have right-of-way at the intersection. In short, the testimony and physical facts, as we find them, indicate considerable probability that Rhoades was not entirely free of blame but do not establish his negligence, or show same by a reasonable preponderance of evidence. The plea of contributory negligence was properly denied.

Plaintiff was knocked unconscious by the impact. He was carried to the hospital at Barksdale Field and remained there six days. He received a cut over his left temple and testified that he had a nerve injury in his pelvic region, a torn ligament in his left leg and a sprained back and that he was unable to resume his regular duties for approximately two months, having difficulty in controlling his left leg and suffering pain in his head and legs for several weeks. His right eye was also bruised. The District Court at the request of counsel, dictated into the record his observation of plaintiff’s condition, stating that plaintiff’s face showed a healed scar horizontal on the left side of his face beginning an inch in front of the center of the left ear and running in an irregular line forward to the corner of the left eye and upward to the left eyebrow. The Court further stated that the scar was discolored and red and clearly observable from a distance of six feet both from a side view and the front view of the plaintiff as he sat in the witness chair. Plaintiff in his answer to the> appeal has asked an increase on this item to $2500.

We believe that a reasonable allowance 'for personal injuries would be $1500. The remaining portion of the judgment should not be disturbed.

For the reasons assigned, the judgment is amended by increasing same from $1131.-70 to $1631.70, and, as amended, it is affirmed, with costs.