author: ICENNON, Judge.

text:
    WALKER v. MANSFIELD HARDWOOD LUMBER CO.
    No. 7199
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1948.

      Oglesby & Oglesby, of Winnfield, for appellant.
    Harry Fuller, of Winnfield, for appellee.
   ICENNON, Judge.

Defendant lias filed in this Court a motion to dismiss plaintiff’s appeal on the ground that the order granting the appeal made same returnable sixty-five days after the date of the order.

The appeal was lodged in this Court on March 18, 1948. The motion to dismiss was filed May' 1, 1948. Motions to dismiss an appeal because of irregularities incident to the order granting same must be filed within three days from the time the appeal is lodged. Article 886, Code of Practice; Greater New Orleans Homestead Ass’n v. Korner, 11 La.App. 59, 123 So. 181; Cigali v. Kaplan, La.App., 34 So.2d 924, and cases there cited. Defendant’s motion was not timely filed and it is therefore denied.

On the Merits.’

This is a compensation suit on appeal to this Court from a judgment sustaining a plea of prescription and dismissing plaintiff’s suit for four hundred weeks compensation..

The plaintiff is a colored woman. Her petition, filed in July, 1947, sets forth that <?n January 4, 1946, and for some time prior thereto, she had been working for defendant, doing a man’s work in loading lumber and doing other forms of manual labor; that on that date while moving a truck loaded with lumber, the platform on which she was working gave way; that she suffered a severe injury to her left leg and a “total and permanent” injury to her back.

The petition further set forth that after treatment by defendant’s physician for two or three weeks, she was dismissed by him and told to resume work, and that notwithstanding intense and constant pain, she went back to work on February 4, 1946; that she - was given lighter work by the company at the same rate of pay, until August 3, 1946, when the condition of her báclc became so bad and the pain so unbearable that she. was compelled to stop all work.

The fifth paragraph of the petition anticipated the' plea of prescription and provides as follows:

“That in order to negative a plea of one year’s prescription from the date of the injury in bar of her rights to recover which may be interposed, she shows that the prescriptive period was interrupted when her employer put her back to work in February, following her injury January 4, 1946, and at the same rate of pay while doing lighter work, and did not begin to run until August 3, 1946, the day she stopped working, under the provisions of Section 31 of Act 20 of 1914, as amended by Act 29 of 1934, as interpreted by the Appellate Courts of Louisiana.”

As anticipated by plaintiff, defendant’s first act was to file a plea of prescription, setting forth that more than a year had elapsed between the date of injury, January 4, 1946, and July 26, 1947, the date on which suit was filed; that more than one year had elapsed since any payments had been made to plaintiff as compensation; that at no time was there any agreement to pay further compensation, and denying that plaintiff was ever given any employment or wages in lieu of compensation.

Trial was had on the plea of prescription, at the conclusion of which the learned District Judge gave judgment in favor of defendant.

The testimony shows that plaintiff’s regular job at the-time of the injury was that of lumber checker;' that she began her work with the defendant company in 1944 and worked for some months as a laborer in handling lumber but “worked up” to a position of lumber checker, which required no heavy-labor. The mill was a small one and from time to time she was called upon —as necessity and convenience dictated — to perform heavier labor. On the afternoon of the accident, the operation which included the checking of the lumber was “shut down.” Plaintiff and a fellow employee were told to unload some lumber and “call it a dáy.” It was while engaged in this unloading operation that she was injured. She testified that after the injury she returned to her job as checker and was not called upon to do heavy work.

The accident occurred January 4, 1946. She returned to work in February, 1946. She made no demand for compensation until well past the prescriptive period. She left the employ of defendant on August 3, 1946, of her own accord. Suit was filed in July, 1947.

Plaintiff’s contention before this Court is that the payment of wages for services rendered up to and including August 3, 1946, constituted an interruption of prescription and that therefore the suit was timely filed on July 22, 1947, citing in support of this contention the cases of Carpenter v. E. I. DuPont DeNemours & Co., La.App., 194 So. 99; Esthey v. Avondale Marine Ways, Inc., La.App., 25 So.2d 631, and Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 199 So. 228.

In the Carpenter case, plaintiff, who was injured on July 21, 1937, soon returned to work at the same wages but at lighter duties. Soon afterwards, Carpenter discovered that his injury had resulted in a hernia. He requested his employer to arrange for an examination. The employer insisted that he would get completely well in natural course and continued to provide him with relatively light work, assuring Carpenter repeatedly that he would be taken care of and given work and that ultimately, if he did not get well, he would be taken care of to his full satisfaction. The Court held that when an employer, with knowledge of employee’s disabling injury, continues to pay him wages for performing lighter serv-^ ices than those done before injury, “there results a situation in which the provisions of the statute regarding the bar of peremption have been fully satisfied and as long as those payments continue prescription does not run.” [194 So. 101.]

Zealous counsel for plaintiff contends in brief that the doctrine of the Carpenter case is applicable in that the defendant “took this claimant off of the heavy duties which she was performing at the time of her injury, with full knowledge of her crippled condition and kept her employed at lighter duties of checking, grading and stencilling lumber.” (Italics ours.)

Unfortunately for counsel’s contention, the facts are different from- those of the Carpenter case. Claimant’s regular duties both before and after the injury were those of “lumber checker,” with occasional calls or assignments to various routine heavier mill work. The most favorable interpretation of the testimony would be that she was called upon less for heavy work after the accident than before. Moreover, the record shows that after the alleged injury, she voluntarily undertook for extra pay, the heavier work of giving the mill office a sort of spring house cleaning during hours which would normally be off duty.

A further distinguishing feature of the case before us from the Carpenter case is that Carpenter’s light employment continued past the prescriptive date, while Mable Walker quit the employ of defendant on August 3, 1946, while there yet remained more than five months of time before the one year’s prescription would accrue. There is no allegation or proof that the plaintiff made any demand for compensation or that defendant made any payment of wages to her during this time or that any action was taken by the defendant calculated to lull her into a sense of security as was true in the Carpenter case.

The other two cases cited by plaintiff’s capable counsel are not applicable to the facts before us. In the Esthey case, supra, the workman was disabled by a head injury. After being paid compensation for abo'ut six weeks, he returned to work, but becoming dizzy, went home the same day. A week later he returned to work for two days; two weéks later he returned to work. Es-they’s difficulty was a recurring ■ dizziness and after working ten days more he suffered another dizzy spell, fell, and injured his left leg. He returned to work again two weeks later, but was unable to carry on. He was paid compensation for the time lost prior to the occurrence of the dizzy spell which resulted in his leg injury and paid compensation for the two weeks absence from work following the dizzy spell and leg injury. Suit was filed more than twelve months after the first payments, but within twelve months of the last payments. The Court found that after the leg injury, the injured employee was treated for the head condition as well as the hurt to his les? and that his leg trouble was but an incident to the dizzy spell caused by the first accident, and that therefore the compensation payments made for the last two weeks constituted an interruption of prescription for the claim under the original injury.

The Carlino case, the third of the three cited by present plaintiff is not applicable here. The plaintiff in that case suffered a hernia on September IS, 1936, and after an operation returned to work in May, 1937. He continued to do light work until August 1, 1937, when the Supreme Court found he “suddenly suffered a complete rupture.” [196 La. 400, 199 So. 232.] In passing on the case, the Court said:

“It is not necessary to decide whether the one-year term of prescription against a suit based upon the hernia which occurred on or about the 15th of September, 1936, went on while the employer was paying the injured employee his wages as a gratuity. It is sufficient to say that a suit for compensation for the disability resulting from the rupture which occurred on August 1, 1937, is not barred by prescription, because the suit was filed on June 18, 1938.”

Section 31 of the Compensation Act, as amended by Act No. 29 of 1934, provides that compensation claims “shall be forever barred unless within one year after the accident or death the parties, shall have agreed upon the payments to be made under this act or unless within one year after the accident proceedings have been begun as provided in sections 17 and 18 of this Act.”

Plaintiff’s suit was filed eighteen months after the alleged injury. Her claim that her case falls within the recognized exception to the rule is not sustained by the record.

The judgment of the District Court sustaining the plea of prescription was correct and same is hereby affirmed, with costs.


source: Caselaw Access Project

author: TALIAFERRO, Judge.

license: Public Domain

text:
    BROOKS v. SMITH.
    No. 7086.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1948.

      Julius T. Long, of Shreveport, for appellant.
    Harold W. Hill, of Alexandria, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff appealed from judgment that sustained what is denominated an-exception of no right of action filed by the defendant; and dismissed his suit as of non-suit. He sued to recover workmen’s compensation on the theory that while performing the duties of a contract of hiring with the defendant, he suffered an accident that disabled him totally and permanently to perform manual labor, this being the means by which he earned a livelihood. He alleged: “That on or about February 12, 1946, while petitioner was in the employ of the said Clyde P. Smith at a daily rate of pay of four dollars per day and was performing services arising out of and incidental to his employment in the course of the business of the said Smith of decorating, repairing and building, papering, painting and renting houses, petitioner while -at work in the City of Alexandria, Louisiana, in papering a room in a house under the direction and supervision of the said Smith and was standing on a board or plank five- or six feet above the floor, an end of the said plank or board gave way or fell and caused petitioner to fall * * * ”.

Defendant filed exceptions of no cause and no right of action and a plea of vagueness to the petition. Neither of the exceptions nor the plea specifically points to the deficiencies in the petition against which it is directed. The court overruled the exceptions but. sustained the plea of vagueness, and ordered plaintiff to amend the petition within fifteen days: “to set forth more clearly the business, trade or occupation of the employer and whether or not injured employee was so engaged in that business at the time of injury.”

In obedience to the court’s order plaintiff submitted and filed an amendment to his petition which, so far as need be quoted here, reads as follows: “In no manner changing the aforesaid allegations of his original petition, and reserving his rights thereunder and his rights under said bill of exception, petitioner and plaintiff avers that the said defendant knows more about his trade and occupations than any other person and does not need and should not have additional information relating thereto; but plaintiff is informed and believes and so avers that the said defendant at time plaintiff was injured was engaged in repairing and renting houses of his own to others, also in leasing, repairing and sub-leasing houses belonging to others; that the house or building in which plaintiff was at work when thus injured was not lived in by the said Smith, but that he had been leasing it out to tenants for more than a year, was having plaintiff paper the room in which he was at work when injured so that the said Smith could lease same or let others live in or occupy same for a charge made by the said Smith' for the use of the said room; that whether the said Smith owned the said building in which plaintiff was thus papering when injured plaintiff does not know, but the said Smith in his business and trade was having same papered by plaintiff; that the said Smith so far as plaintiff knows and believes, owned the house in which plaintiff was at work at time of the injury of plaintiff.”

Following this filing defendant again excepted to the original and amended petitions as disclosing no right of action against him: “in that it is not alleged that the defendant is engaged in a trade, business or occupation that is hazardous within the meaning of the Workmen’s Compensation Laws of Louisiana, or that the plaintiff was engaged by the said Smith in a hazardous business, trade or occupation.”

The exception is erroneously named. It is in reality an exception of no cause of action.

Over plaintiff’s vigorous objection the court allowed defendant to introduce testimony on trial of the last filed exception. Plaintiff’s counsel did not participate in the trial to the extent of questioning the witnesses.

Plaintiff’s position now and all the while has been that the issues sought to be raised by the last so called exception of no'right,of action may not be tendered by an exception of this character; that whether defendant’s business is hazardous and plaintiff was injured while working therein, are questions to be properly raised and disposed of on the merits of the case after filing of answer; that to try such issues independently and apart from trial on the •merits is tantamount to trying the case by piecemeal, a practice not authorized by law.

In written reasons for judgment the court said: “In compliance with the ruling of the Court, the plaintiff filed an amended and supplemental petition which did not serve to amplify the facts originally alleged, whereupon the counsel for defendant filed an exception of no right of action and * * * when the exception was called, plaintiff’s counsel was present and vigorously opposed the right of the Court to hear testimony on this exception and thus try the case in piecemeal. I overruled his objection and permitted the evidence * * *

In view of what the court here says, it seems to us that whether viewed as being one of no right of action or as one of no cause of action, the exception should have been overruled as was done with the exceptions first filed.

Whether a person is engaged in the conduct of a hazardous business within the meaning of the Workmen’s Compensation Law, Act No. 20 of 1914, as amended, and whether the injured employee was rendering service to the employer in that business when injured, are questions that have to do with the' merits of the case. They do not relate to or concern the plaintiff’s right to institute and prosecute the suit; and whether the allegations touching such questions are sufficient to disclose a cause of action is a matter that appropriately falls within the domain of an exception of no cause of action, the merits of which should be adjudged strictly from the allegations of the petition; and in compensation cases all doubts should be resolved in favor of the adequacy of the petition.

The court in Termini et al. v. McCormick, 208 La. 221-227, 23 So.2d 52, 54, clearly draws the distinction between the nature and the function of an exception of no cause of action and an exception of no right of ■ action. Therein it said: “A distinction between the exception of no right of action and the exception of no cause of action is recognized in our jurisprudence. The former serves to question the right of a plaintiff to maintain his suit, to dispute the interest of that litigant in the subject matter of the proceeding, it having as its basis Code of Practice Article 15, which reads: ‘An action can only be brought by one having a real and actual interest which he pursues, but as soon as that interest arises, he may bring his action.’ If it appears that a plaintiff has an actual interest in the outcome of the case then, he has a right of action. The exception of no cause of action, on the other hand, presents the issue of whether or not sufficient grounds for obtaining the desired relief are alleged in the petition. Some of the cases in which the distinction between the two exceptions is pointed out are Succession of Breaux, 168 La. 712, 123 So. 300; Tichenor v. Dr. G. H. Tichenor’s Antiseptic Co., 180 La. 119, 156 So. 194; and Outdoor Electric, Advertising, Inc., v. Saurage [207 La. 344], 21 So.2d 375.”

In the present case if a cause of action to recover compensation reposes in anyone, that one is the plaintiff, and, of course, it follows as a legal consequence that the right to assert the cause of action likewise reposes in him; and the one against whom the right must be asserted, if asserted, is the defendant. The exception under discussion attempts to question the right of plaintiff to maintain his suit against the defendant by allegations that fall within the purview of an exception of no cause of action. It does not dispute his interest in the subject matter of the suit. In this respect it signally fails as an exception of no right of action.

If appellee’s position be correct, then any other defense to the merits could likewise be tendered by such an exception, among which we name: (1) Absence of the relationship of employer and employee; (2) That 'the services being performed at the time of the accident did not arise out of nor were they incidental to his employment in the course of the master’s trade, etc.; (3) That the accident was due to the injured employee’s intoxication, etc.

Such defenses, it is obvious, properly should be threshed out on trial of the merits of the case. Of course, the court has the right to order an exception that is based purely upon defenses of the character named, to stand as an answer to the merits and then proceed to a final disposition of the case.

The Workmen’s Compensation Law, Act No. 20 of 1914, names a long list of occupations, trades, etc., denominated, for its own purposes, as hazardous. Among such occupations, etc., the following appear: “Work in any of the building or metal trades in the erection, construction, extension, decoration, alteration, repair or demolition of any building or structural appurtenances.” § 1.

As we view the same, the allegations of the original and amended petitions bring plaintiff’s case within one or more of the occupations embraced within said quotation. He alleges, inter alia, that defendant was engaged in repairing houses of his own to rent to others, and houses belonging to others; that the room he was papering (decorating) when injured, was part of a building defendant desired to lease'to others. The petition, in effect, sets forth that defendant, as a trade or profession, is engaged in the repairing, decorating, etc., of buildings for rent. After all is said on the subject, it remains that the petition clearly reveals that this is a suit to recover under the Workmen’s Compensation Law. The requirements of Section 18, subd. 1(A) of this law, as amended by Act No. 81 of 1930, § 1, relative to the character of information that must be set out in the petition, are fairly well observed. In such cases, the courts are not bound by the technical rules of procedure. What the court said in Pierre v. Barringer, 149 La. 71, 72, 88 So. 691, fittingly applies to the present case, to-wit: “A critical examination of the petition, which is carelessly drawn, would show that it does not technically embrace a cause of action. But its general purport shows it to be a suit by an employé against his employer for compensation for an accident while the plaintiff was in the employ of the defendant and while he was supposed to be acting in the performance of his duties.”

We are of the opinion that the lower court erred in allowing the introduction of testimony on trial of the exception herein discussed, and that it should have been considered and disposed of solely on the face of the petition, and overruled.

In 9 Tulane Law Review, page 17, appears an excellent article by Professor McMahon of the Louisiana State University Law School, entitled “The Exception of No Cause of Action in Louisiana”.

For the reasons herein assigned, the judgment appealed from is annulled, avoided and reversed, and there is now judgment in favor of plaintiff and against the defendant, overruling said exception and remanding the case to the lower court to be there proceeded with in accordance with law and the views herein expressed. Costs of appeal are assessed against the appellee. Fixing of liability for other costs will await final judgment


author: ECHEZABAL, Judge. HAWTHORNE, Justice HAMITER, Justice

text:
    213 La. 765
    STATE v. DAMICO.
    No. 38619.
    Supreme Court of Louisiana.
    April 26, 1948.
    John R. Hunter & Son, of Alexandria, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., and Ben F. Thompson, Dist. Atty., and Walter M. Hunter, Asst. Dist. Atty., both of Alexandria, for the State.
   ECHEZABAL, Judge.

The defendant, Charles Damico, was charged by information with gambling, in violation of Article 90 of the Louisiana Criminal Code. He was tried, convicted, and sentenced to pay a fine of four hundred dollars and costs, and in default of the payment of the fine to serve ninety days in the parish prison; and in addition thereto to serve one year in the parish jail. The court suspended the unconditional sentence. From this conviction and sentence, the accused has appealed to this court for relief, and has based his complaints on several bills of exceptions, the first of which he has abandoned.

Article 90 of the Louisiana. Criminal Code provides as follows :

“Gambling is the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit.
“Whoever commits the crime of gambling shall be fined not more than five hundred dollars, or imprisoned for not more than one year, or both.”

The wording of the information was:

“* * * that Charles Damico on or about the 28th day of June, A. D., 1946, * * * did wilfully, maliciously and feloniously intentionally conduct and directly assist in conducting, as a business, a game, contest, * * * and contrivance whereby persons risked the loss of something of value, namely money, in order to realize a profit in money, wherein money, bets and wagers on the results of horse races were unlawfully accepted and made by the said Charles Damico, outside of the race track and enclosures and whereby persons risked the loss of money in order to realize a profit in money, contrary to the form of the Statute.

The defendant’s second bill of exceptions was reserved to the overruling by the trial judge of a motion to quash the bill of information on the ground that it did not charge specifically that he had committed the crime of “gambling” as prohibited by Article 90 of the Louisiana Criminal Code.

A comparison of the allegations in the information with the contents of Article 90 of the Louisiana Criminal Code shows that the information charges clearly that the accused committed the acts which the article prohibits.

The wording of the information in the present case is almost the same as that in the bill of particulars which was furnished in State v. Davis, 208 La. 954, 23 So.2d 801, 803, and which was declared in that case to be sufficient. The only difference between the case under consideration and the Davis case is that in the latter the defendant was originally charged briefly that he “did commit the crime of gambling as defined by Article 90 of the Louisiana Criminal Code,” and that subsequently the district attorney voluntarily amplified the information by filing particulars in compliance with a motion by defense counsel; whereas in the present case the district attorney included in the information particulars similar to- those requested in the Davis case.

The information in the present case complies with the provisions of- Article 227 of the Louisiana Code of Criminal Procedure, and with the provisions of Section 10 of Article I of the Constitution of Louisiana of 1921, which provides that in all prosecutions, the accused shall be informed of the nature and cause of the accusation against him.

We find no merit in the defendant’s second bill of exceptions.

We find it necessary to consider only three of defendant’s other bills of exceptions. These relate to certain documents which the state offered in evidence as paraphernalia used by the accused in the operation of a gambling contrivance with reference to betting on horse-races in a manner prohibited by Article 90 of the Louisiana Criminal Code and as alleged in the information.

Although in criminal cases the Supreme Court’s jurisdiction is restricted to questions of law, the facts recited herein and those referred to are considered by us, because they are intimately connected with and related to questions of law raised by the bills of exceptions.

The first of these bills was reserved to the overruling of the defendant’s objection when the district attorney offered the documents in evidence. The objection was based on several grounds, one of which was that the documents had not been properly identified. Then the judge stated that he wanted to familiarize himself with them, and -they were handed to him. The judge asked the district attorney: “Has any one explained these to you?” The district attorney replied: “I am going to question the chief,” referring to Chief of Police George Gray.

The prosecuting attorney handed the chief of police, who had been sworn as a state witness, several documents bearing the date of the alleged offense, and asked him to examine them and tell the court, if he could, what the documents were. The chief after looking them over said that he did not know how he could describe them by name, but he could tell how they were used. He said that, they were forms which were used in connection with horse-racing. .Here the attorney'for the defendant objected .on the ground that the witness had not qualified as an expert. The 'trial judge overruled the objection, -and counsel for the defendant reserved a bill of exceptions. Then the witness testified that one of the documents was a form used when horse-racing- information :was received from the track by ticker or telephone, regardless of where the races are run. Then the witness described the meaning of the several terms and expressions used in the documents which the state had introduced in evidence. Counsel for the defendant renewed his objection to the effect that the witness had not qualified as an expert and was not stating even the source of his information or the basis of his opinions. The judge again overruled the objection. Then the judge permitted -the witness to continue describing the documents in detail and to define the terms therein which are peculiar to horse-racing and the operation of handbooks on horse races; but the witness did not at any time show that he possessed any personal knowledge of the facts that he related nor the source of his information on which he based his opinion. Counsel for the defendant renewed his objection and the court again overruled it. The witness continued his testimony with such confidence and assurance of his competence and the correctness of his statements as to convey the impression that he knew .what he was testifying about. The confidence and assurance with which a witness expresses his opinions on a subject in issue are not proof of his competency to express them and do not for that reason become admissible.

The entire' testimony adduced at the trial of this case and the- horse-racing documents which were admitted in evidence have been filed with and-made part of the transcript of appeal. An examination of these shows that all the terms-and other matters contained in the documents are not matters 'of common knowledge. The district attorney did not believe that

they are; otherwise, he would not have had the chief of police interpret and define them for the court. Neither did the judge believe that they are matters of common knowledge, if he did, he would not have asked the district attorney if any one had explained .them to him, nor would he have used the following language in his per curiam to the defendant’s bill of exceptions: “The chief of police explained to the court the racing forms which were seized at the time of the arrest as well as the other documents. The chief was 'familiar with these matters and satisfied the court that he was competent to testify and was seemingly very clear. It is my opinion that the evidence was clearly admissible.” The judge’s per curiam shows that he required the assistance of an expert tó enable him to undei'stand the contents of the documents. The chief of police had not qualified as- an expert, nevertheless the judge permitted him to testify as such.

Article 463 of the- Louisiana Code of Criminal Procedure provides as follows: “Except as otherwise provided in this Code, the witness can testify only as to fac-ts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or- opinion that he may have.”

The exceptions referred to in Article 463 are stated in Article 464 of the Louisiana Code of Criminal Procedure which provides that, “On questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.”

Article 465 of the Louisiana Code of Criminal Procedure is as follows: “Every expert witness must' state the facts upon which his opinion is based.”

Article 466 of the Louisiana Code of Criminal Procedure provides that, “The test of the competency of an expert is his knowledge of the subject about which he is called' upon • to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.”

As hereinbefore shown, the chief of police possessed no personal knowledge of the facts -about which he testified. Some of his opinions were based on nonscientific or non-technical matters, and those opinions would have been admissible provided he had also' stated the facts- on which he had based them, which he did not do. State v. Winstead, 204 La. 366, 15 So.2d 793. Most of the chief’s other opinions were about questions involving knowledge obtained only by m'eans of special training or experience. Before being permitted to express his opinions about the technicalities involving horse racing and the operation of hand-books thereon he should have been qualified as an expert on such questions.

In State v. McCall, 162 La. 471, 110 So. 723, 726, it was held that,

“The fitness of a witness to testify as an expert or to give an opinion is’ an ' independent fact, separate and apart from the merits of the case, which fact must be established as a condition precedent to the admissibility of the testimony. The court’s ruling reserved to defendant every right, in this respect, to which he was legally entitled. The rule which is recognized and enforced in ever)- jurisdiction in this country is succinctly stated in C. J. vol. 22 'p. 523, as follows:
“ ‘The competency of the witness, with respect to knowledge, and also with respect to special skill or experience, where this is required, is a preliminary question to be passed upon by the court before the testimony is received, at least, where objection is raised to the competency of the witness.’ ”

During argument before this court, the district attorney referred to State v. Normandale, 174 La. 835, 141 So. 851. This case is not helpful to the contention of the state for the reason that although a police officer was permitted therein by the trial judge to express his opinion as to whether or not a certain substance was marajuana, it was required by the trial judge that the police officer before being permitted to testify as an expert be qualified by its being shown that he was competent at least as a "result of knowledge acquired from practical experience and .observation in his work as a police officer.

The requirement contained in Article 466 of the Louisiana Code of Criminal Procedure that before any witness can give evidence as an expert his competency so to testify must have been established to the-satisfaction of .the court is a clear mandate of the legislature and should be complied with by trial judges. The reason for the rule is obvious.. If a -yvitness is permitted to express opinions without first qualifying and the judge subsequently determines that he was not qualified to express such opinions there would be no way of determining to what extent either a judge or jury had been influenced by such testimony.

In State v. Howard, 120 La. 311, 45 So. 260, 263, the probable effect on a jury by the improper admission in evidence of expert testimony is stated as follows: “So far as we are informed, no other witness testified that three pistols were used, or as to the course of the bullets; but, were it otherwise, we should have no means, of knowing whether the jury relied upon such testimony, or upon that of the expert relied on by the state, which was improperly admitted.” ' ' ‘ •

The learned trial judge erred when he overruled the defendant’s objections, and permitted the chief of police to state his opinions as proof of the defendant’s guilt befqre it was shown that he was competent to express them. There is no way of determining to what extent the trial judge in finding the accused guilty was influenced by the chief’s inadmissible opinions. That he was influenced by them is shown by his per curiam hereinbefore quoted.

In as much as the conviction and sentence will have to be set aside and the case remanded for a new trial, we find- it unnecessary to consider the remaining bills of exceptions.

The conviction and .sentence are annulled, and the case is ordered remanded to the district court for a new trial.

HAWTHORNE, Justice

(concurring in part and dissenting in part).

I fully concun'with the majority opinion in holding that defendant’s second bill of exception has no merit. I respectfully dissent, however, from the opinion of the majority that, because Chief of Police George Gray had not qualified as an expert witness and had not shown that he possessed any personal knowledge of the facts he related, or revealed the source of information on which he based his testimony, it was error for the district court to permit him to identify and explain certain documents used as paraphernalia by the accused in the operation of a handbook.

The documents introduced and filed in evidence, about which the witness was testifying, had been seized in defendant’s place of business by the arresting officers on June 28, the date of the offense charged in the bill of information, and consisted of racing sheets, the Daily Racing Form, and tickets with numbers printed thereon.

The majority opinion reversed the district judge on his rulings on objections to certain questions propounded to the chief of police, as disclosed by Bills of Exception Nos. 6 and 7.

Bill of Exception No. 6 contains the following testimony: “Q. Chief, I hand you some of these documents that have been introduced, bearing the date June 28, 1946, and ask you to examine them and tell me, if you can, what they are. A. Well, I don’t know I could describe it by proper name. I could tell you how it is used. It is a form that is used in connection with horse racing, particularly where the information is received — ”

At this point in the witness’s answer, counsel for defendant objected on the ground that the witness was not an expert; that, unless he had experience betting on horses, he was not qualified to answer.

In Bill of Exception No. 7, we find the following: “Q. The documents contained in the cigar box, do you know what part they played? A. Yes, sir, these are tickets that were issued. They were issued in duplicate, the man making the bet keeps one part of it.”

To this question and .answer defense counsel objected on the ground that the witness was giving his opinion as to something he did not know of his own personal knowledge.

Both of defendant’s objections were overruled, and the witness then proceeded to identify and explain the documents about which he was being questioned. The trial judge’s per curiam to Bill No. 6, which he states is applicable to Bill No. 7 also, reads as follows: “The Chief of Police explained to the Court the racing forms which were seized at the time of the arrest as well as the other documents. The Chief was familiar with these matters and satisfied the Court that he was competent to testify and was seemingly very clear. It is my opinion that the evidence was clearly admissible.”

There is no doubt whatsoever that the documents themselves were admissible in evidence. Furthermore, the objection is not aimed at this officer’s testimony per se, but is based solely on the ground that he was not qualified to answer these questions. In my opinion, the documents speak for themselves, and it does not -take an expert to identify or explain them. For instance, on the racing sheets, we find very plainly printed the name of the race track, post time, number and length of each race, and date, and on the Daily Racing Form the names of the various race tracks throughout the country, together with the names of the race horses, probable jockeys, their weights, probable odds, amount of purse, number of race, and other data. As to the tickets, the amount bet and whether the bet was made for the horse to win, place, or show were indicated thereon.

In my opinion, the testimony of the witness was not a conclusion or observation or deduction from facts; he was testifying simply to facts, as facts, for he very plainly stated as a fact what the various documents were.

In State v. Hollingsworth, 160 La. 26, 106 So. 662, 663, a witness for the State was asked the following question: “State whether or not this tincture of Jamaica ginger you bought from the defendant was fit for beverage purposes.” This question was objected to by counsel for the defendant on the ground that it called for the opinion of the witness and that the proper foundation had not been laid; or, in other words, that the witness had not been qualified as an expert. The objection was overruled, and on appeal this court found that the ruling was correct, stating: “* * * the question whether or not an extract of Jamaica ginger be or be not fit for use as a beverage involves only a question of fact, dependant upon personal experience or observation, as to which any witness may testify without specially quali-tying as an ‘expert.’ The extent of such experience or observation may, of course, be inquired into on cross-examination.”

See also State v. Williams, 111 La. 205, 35 So. 521.

In the instant case, counsel for defendant did not cross-examine this witness as to the extent of his experience or observation in these matters, as counsel had a right to do.

The identification by the witness of the objects introduced by the State was testimony as to facts, and not opinion evidence. One does not have to be an expert witness or an experienced gambler to testify that a poker chip is a poker chip, and to explain how it is used in the game. Horse racing, the terminology used in connection therewith, and the paraphernalia incident to betting on horse racing are not unusual things about which the public in general is totally ignorant. The Daily Racing Form, for instance, may be purchased at almost any newsstand. In my opinion, the testimony of the chief of police in regard to the documents was admissible as testimony of fact, and its sufficiency was a matter for the trial judge, who stated that the chief of police was familiar with these matters and satisfied the court that he was competent to testify. I do not find any manifest error in his ruling.

I respectfully dissent.

HAMITER, Justice

(dissenting).

The objections urged to the identifying of the gambling forms by Chief of Police Gray were important only with reference to the weight to be accorded his evidence; they were without effect as- to the admissibility of it. That official was not expressing an opinion as an expert. He was giving testimony relating to actual facts, about which he apparently possessed knowledge gained by personal experience and observation, just as any witness is permitted to do without qualifying as an expert. The extent of his experience and observation, of course, is a matter to be inquired into on cross examination and to be considered in the weighing of the evidence. State v. Williams, 111 La. 205, 35 So. 521; State v. Ryan, 122 La. 1095, 48 So. 537; State v. Hollingsworth, 160 La. 26, 106 So. 662; Marr’s Criminal Jurisprudence of Louisiana, Second Edition, Volume 2, Section 580.

I respectfully dissent.


author: McCALEB, Justice.

text:
    213 La. 782
    ZACCARIA v. BEOUBAY.
    No. 38404.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.

      , R. A. Dowling, .of New Orleans, for defendant. and appellant. ,
    L. H. Gosserand, of New Orleans, for ap-pellee.
   McCALEB, Justice.

The defendant has appealed suspensively from an order awarding alimony pendente lite to his wife and three children at the rate of $15 per week.

The evidence taken at the trial of the rule for alimony shows that defendant is a butcher by trade and a gambler by preference. He states that he has been out of employment because handbooks have been closed in the city of New Orleans; that a $30 per week job as a butcher was available to him but that he refused it since it required him to stand for long periods, which would be injurious to his health.

In this court, defendant’s counsel contends that the alimony award was improper as Article 148 of the Civil Code applies only in cases where the husband has means or is earning an income and that, since the evidence shows that defendant is impecunious, the decree should be set aside.

While it is true that the alimony pendente lite provided for by Article 148 of the Code is assessed in proportion to the needs of the wife and-the means of the husband, it was never contemplated that the latter could escape liability for alimony thereunder. by refusing to work. Oh the contrary, Article 120 of the Civil Code imposes upon the husband the duty to support his wife and his neglect to fulfill his obligation, when she is in necessitous circumstances, renders him amenable, to ' the penalties pr'ovided by Articles 74 and 75 of the Criminal Code.

Moreover, there, are three children in the case, at bar, aged. 6, 5 and 2 years respectively, who are entitled to alimony under Article 227 of the Civil Code. But counsel for defendant says that his client is not responsible for the support of the children as they were born out of wedlock,

Thé conténtion that the children are not those of the marriage seems to be an afterthought on the part of defendant as he refers to'them-in'his testimony as his children and further stated that he had them in his custody at that time. Hence, since he admits that they are his children, they have been fully legitimated by the subsequent marriage of the parties. See Article 199 of the Civil Code.

The judgment appealed from is affirmed.

       It appears from the wife’s petition .that the parties were married on November 7th 1344 and she claims that the children wore born of'the union.

       He was ordered by the judge to deliver the children to his wife.


author: McBRIDE, Judge.

text:
    POLIZZI v. THIBODEAUX et ux.
    No. 18795.
    Court of Appeal of Louisiana. Orleans.
    June 7, 1948.

      Phil Trice, of -New Orleans, for plain- - tiff and appellant’.
    Sydney J. Par longue, of New Orleans, - for defendant and appellee.
   McBRIDE, Judge.

This suit involves a claim by plaintiff, who is a building contractor, against the defendants, Mr. and Mrs. M. B. Thibo-deaux, on a contract whereby plaintiff undertook to perform certain construction to and repairs on the ■ property of the defendants, located at 4426 Flamingo Stréet in the Parish of Jefferson. iThe amount of the contract is -$2,590. Plaintiff was paid the sum of $1,500, and the suit is for the alleged balance due of $1,090.

The petition alleges that plajntiff complied with the terms of his contract and completed the work, and that notwithstanding amicable, demand the balance due him under the contract has not been paid.

Mrs. Thibodeaux interposed an exception of no right or cause of action which was maintained by .the lower court, and she was dismissed, from the suit.

Thibodeaux, who will be referred to hereafter as “defendant,” made answer in which he denied that, the job was fully completed, and alleged that the work which had been performed was not done in a workmanlike manner in accordance with the contractual stipulations.

Defendant assumed the position of plaintiff in reconvention and alleged in that capacity that the cost of completing the contract by a third party would amount to the sum of $2,000, and that deducting therefrom the balance claimed by plaintiff to be due, he, the plaintiff in recon-vention, is entitled to a judgment for the difference, or for $910.

After a trial on the merits in the Twenty- - Fourth Judicial District Court for the Parish of Jefferson, plaintiff’s demands were dismissed, and there was judgment . in reconvention in favor of Thibodeaux for the sum. of $910. Plaintiff has appealed. •

It is well settled that a contractor is entitled to recover- for the value of work substantially done by - him, even though such work be unfinished or defective, the owner being relegated to a’ reduction of the price to an amount necessary to correct dr complete' the work. See Brandin Slate Co. v. Bannister, La.App., 30 So.2d 877, and authorities therein cited.

The contract forming- the basis of this suit contains seventeen ■ number-e'd ■ items, plus the installation of an electric -light and switch on the front porch, and also the installation of a feeder line from the butane gas tank to the house, which plaintiff agreed to perform to defendant’s building that had been removed from another lot to its present location. Plaintiff obligated himself to furnish all labor and materials in connection with the work.

At the outset, suffice it to say that the plaintiff, notwithstanding the allegation that he had performed his contract, admitted that the job is unfinished and there arc several items which he has not performed, and others which, while performed, were not in accordance with the contract. Specifically, he admitted that the contract called for a- Johns-Manville hexagonal rubberoid externit asbestos roof, but that he substituted another roof of a different type, which was installed by the Brandin Slate Company. There is a dispute between the parties as to whether defendant agreed to this substitution, but that is of little importance, as there is no question that the defendant, who accepted the substituted roof, is entitled to a credit for the difference in the price of the roof which should have been applied under the contract, and the cost of the substituted roof. Delaney v. John O. Chisolm & Co., 166 La. 406, 117 So. 443.

The only testimony in the record which tends to show such difference in the cost between the two roofs is that of Albert Posecai, a carpenter, who testified as a witness for defendant, and his estimation is that the difference in price would be between $40 and $50. On this particular item Posecai’s testimony is so vague that we cannot determine therefrom what the exact difference is, and his evidence is not helpful in a determination of the matter.

Polizzi freely admitted on the witness stand that he had quit the job before completion of the contract. He states that Mrs. Thibodeaux “ran” him off the job, hence the noncompletion. On the other hand, Mrs. Thibodeaux testified that Poliz-zi quit the job because she would not advance him any more money, as he was already overdrawn on the contract. Polizzi first stated that the job could be completed at a cost of $70, but at another point his testimony is that it would cost between $70 and $80.

Several of the contractual items are drawn into dispute. Item 5 covers the construction of a front porch. Polizzi admitted that the porch was not ceiled. Jeffcoat, a carpenter, who appeared as a witness for defendant, estimated it would cost $175 to ceil the porch, while Posecai’s estimate was “around $250.00 or $300.00.” This latter witness estimated that the porch was only about fifty per cent completed. Posecai, later in his testimony, said that $200.00 would suffice to complete the porch, and in another statement said he did not remember what the cost would be. Mr. and Mrs. Thibodeaux both testified that the screen work on the porch was not done in accordance with the contract, as there were no columns erected and the screens were nailed onto studs without cross pieces. Thibodeaux also claims that the porch has buckled and that a person traversing it could get his shoes caught in the planks.

Item 8 embraces the construction and installation of a cess pool, and plumbing in the house. Jeffcoat’s statement is that the installation of a lavatory bowl was incomplete, and M. B. Thibodeaux, Jr., defendant’s son, testified that no trap for the bathroom had been installed and that the toilet was stopped up. This latter witness stated that he completed this work himself at a cost of $2.25 for materials.

Item 11 (“Insulate with brick masonite missing pieces over exposed wood work only”) and item 16 (“Repair all defected spots on outside of building and porch”) may be considered together. Polizzi admits that about three squares of wallhide siding were not installed over exposed woodwork, and that he has not completed this detail. His estimation is that three squares of siding are necessary on the outside of the house. Vincent, who appeared for plaintiff, testified that the job is completed with the exception of three squares of wallhide shingles around the bottom of the house, and that the porch has to be ceiled. Jeffcoat testified that the missing pieces over the exposed woodwork were not installed, and his estimate was that it would cost about $65 to complete it. Mrs. Thibodeaux further complains that no fascia boards were installed. Pbsecai observed that the siding on the outside was not completed, and he estimated that it would take five squares of siding to do so, but he could not remember how much the cost would be. Thibodeaux, Jr., stated that the brick siding on the outside is incomplete, and that under the contract Polizzi was supposed to place a layer of felt first to protect the wood, and that the siding was to be nailed over the felt.

All parties agree that item 12 (“Renail masonite around building”) was not done, and the only estimate as to the cost of completion was given by Jeff coat,-who said it would 'be around $75.

Under item 13 the contractor was to install a door on the front porch, and the uncontradicted evidence is that the door was installed wrong-side-out, and is now hanging on one hinge as the screws in the other hinge became loose. However, there is no indication whatever as to the cost of ■correcting the defective door.

Item 14 contemplated the installation of a double window, and Polizzi admits that the sash was never supplied or .installed. The only estimate as to cost is by Jeff coat, whose opinion is that it would take $45 or $50 to complete it.

Polizzi gave no testimony in reference to item 15, covering the repairing of insulation in the downstairs bathroom and hall, but the defendant and several other witnesses stated that the work was incomplete and Jeff coat’s estimate was that the cost would be around $45 or $50 to finish repairs to the insulation.

The testimony in reference to item 17 is vague to say the least, and it is extremely confusing. The contract calls for painting the interior with water colors, but the contractor testified that in accord with an agreement with Mrs. Thibodeaux wallpaper was substituted. He claims that he painted two rooms, but that the Thibo-deauxs were not satisfied and suggested wallpaper, and that in order to 'satisfy them he undertook to make the change and put paper on the walls. According to his version there is little difference in cost between the painting and papering; however the difference is not shown. Polizzi admits that he did not install the electric light with 'switch on the porch; he likewise made the admission that he had never installed the feeder from the butane tank to the house. Two witnesses supported Polizzi’s statement that the Thibodeauxs authorized the substitution of wallpaper in lieu of the painting, but on the other hand Mrs. Thibodeaux testified that she agreed to the substitution only if Polizzi would let her choose the paper to be used, but that he gave her no choice in the' matter and installed some “dirty cheap-looking” paper, over her protest. There is some testimony that the wallpapering job is a “horrible” one; that there are holes near the windows and the paper is torn and uneven. Jeffcoat estimated that it would cost $200 to paint the interior of the house with water colors. There is no testimony whatever regarding the cost of installing the electric light and switch on the porch.

The witness Posecai was produced by defendant in an effort to prove the nature of the defects existing in the job and the incompleteness of it, and to inform the court the cost of doing the corrective work and completions. As noted above, Posecai gave no testimony whatever regarding the cost of several disputed items, and when he did make an estimate his figures were vague and of little assistance in a determination of the dispute. The record shows that he visited the premises in question and made pencil notations of the necessary details, which he handed to Thibodeaux who later had them typewritten. The typewritten memoranda is contained in the record, but we notice that it was never identified by Posecai, nor was it ever offered formally in evidence, and we can give to it no consideration.

There can be no doubt that Polizzi has not performed the work he contracted to do, as he admitted he did not finish the job, and there is likewise little doubt that some of the work, even though performed, was defective and not in compliance with the terms of the written contract. There was offered in evidence by defendant certain photographs, and a viewing of these by us instantly produced the impression in our minds that some of the work is extremely defective; for instance, large gaps appear in the siding on the exterior of the house; the siding appears to be uneven in places and bare woodwork is exposed; one of the doors was not fitted correctly, as large cracks appear between the frame and the door itself; the photograph of the front porch discloses that there is no ceiling whatever over it; the window casing in the front room is not installed and there appears to be a bad leak beneath the window. . .

From the confused, contradictory and incomplete state of the record, we are utterly unable to adjudge this case. Besides one set of witnesses disagreeing with the other set, the witnesses for the various parties disagree among themselves on important details. Where, in the opinion of an appellate court, the interests of justice would be best subserved by setting aside the judgment of the trial court and remanding the case to be tried de novo, that -course may be pursued, and we -believe that the ends of justice dictate that this cáse should be so treated, as further evidence is absolutely necessary for a proper adjudication of the dispute.

However, there is one item that we can pass upon. Under the contract Poliz-zi was to furnish all necessary materials and labor. The substituted roof above mentioned was installed by Brandin Slate Company, and although Polizzi overdrew on the progressive payments provided for in the contract, he has never paid Brandin Slate Company, and the proprietors of that company have leveled a lien against the property of defendant, and' have filed suit for a maintenance and recognition of the lien. The suit is for the principal sum of $410, plus $5 -for the cost of filing the lien, together with interest at the rate of six per cent per annum from August 13, 1946, until paid, and also for fifteen per cent attorney’s fees. on the amount of the claim and interest. The contractor is clearly liable unto the defendants for the amount of the slate company’s lien, and whatever amount is determined to be due the contractor should be offset pro tanto by the amount which defendant will have to pay the slate' company, to satisfy, the lien and the suit seeking recognition of it.

The lower court found as a fact that the cost to defendant for remedying the defective work and for completing the unfinished portion of it would aggregate $2,~ 000, but we are at a loss to know how that figure was computed, as there is-absolutely no evidence in the record supporting it. Defendant’s counsel frankly concedes that the trial judge was in error respecting the $2,000.

The lower court is directed to receive such competent evidence as it.deems necessary to show’the nature of the incomplete work and the cost of completion, 'and the amouiit of the defective work and the cost of correction, and . defendant is to be given credit against the' claim of the plaintiff for the amount found necessary to complete and correct the work, and also-for the difference in the cost of items contracted for which were eliminated and substituted by other items, ahd if the aggregate of such amounts, plus' that which is due Brandin Slate Company on its lien, is greater than the claim of plaintiff, then-judgment for the difference is to be awarded defendant, Morris B. Thibodeaux, as-plaintiff in reconvention.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered, adjudged and decreed that this case- be remanded to the court below for such proceedings as are necessary, not inconsistent with the views hereinabove expressed; defendant is to pay the costs of this appeal, and all other costs are to await the final determination of the case.

Reversed and remanded.


author: ’ DORE, Judge.

text:
    TIME FINANCE CO. et al. v. TABOR et al.
    No. 3007.
    Court of Appeal of Louisiana. First Circuit.
    May 26, 1948.
    Robert J. Pitard, of New Orleans; for appellants.
    Pugh, Lanier & Pugh, of Thibodaux, for appellees. • -
   ’ DORE, Judge.

On April 10, 1947, defendant Roland J. Tabor purchased a 1942 1% ton Chevrolet truck from-the French Pontiac Company of New Orleans, and financed the credit portion of $720.00 through Time Finance Company, said loan being evidenced by chattel mortgage note in the su,m of $720.00, of date April 10, 1947, and secured by chattel mortgage of the same date. The chattel mortgage recites that the truck is located at New Orleans, Louisiana. On May 10, 1947, this same truck was acquired by defendant A. M. Angellette from’Russel Tabor; in' the Parish of Lafourche, Louisiana, said' Russel Tabor claiming to be the owner of the truck. Later, when- the Time Finance Company discovered that the truck had been transferred and that Roland J. Tabor could not meet the payments thereon, the said Company brought this suit against both Roland J. Tabor and A. M. Angellette claiming that Tabor or his agent moved the mortgaged truck out of the Parish of Orleans arid placed it in the hands of defendant Angellette, contrary to the terms of the chattel mortgage and contrary to law. Tn its petition the plaintiff partnership prayed for a writ of sequestration of the truck which was duly granted.

The defendant Tabor admitted the material allegations of the petition with reference to the loan, but maintained that the truck was never removed from the Parish of Orleans, and was operated from out of the City of New Orleans subject to his control and orders; that only on occasions did the truck remain in Lafourche Parish, and only for short intervals; that said Russel Tabor who illegally transferred the truck to defendant Angellette, was employed by Roland J. Tabor and that he had no authority whatsoever to sell the truck, and that Roland J. Tabor knew nothing of Russel Tabor’s sale until after it was completed; that therefore the said truck was illegally in the hands of Angellette and that the defendant Roland J. Tabor was entitled to possession thereof.

The defense of Angellette is, in effect, that he is an innocent purchaser for value.; that the truck was in the possession of Russel Tabor, who rented an apartment on his property in Lafourche Parish, and had been continuously stored there practically every night since April 11, 1947; that before purchasing said truck he caused a check in Lafourche Parish records to be made to ascertain whether or not there were any liens against the truck, and finding no liens, and since Russel Tabor represented himself as the owner of the truck, and even produced a certificate of registration from the State of Louisiana in his name, he concluded that it was safe to purchase it and therefore he did so.

After the trial of the case the District Court granted judgment in favor of Time Finance Company and against the defendant Roland J. Tabor in the sum of $648.00, (being the balance due on the loan) plus legal interest from date of judicial demand until paid, plus 15% attorney’s fees and all costs; and further ordered that the writ of sequestration heretofore issued be annulled and that defendant Angellette be decreed to be lawful owner of the truck. From this judgment the plaintiff has appealed.

From the evidence it is shown that defendant Roland Tabor was a resident of the City of New Orleans, Louisiana, and that he negotiated this loan with plaintiff, Time Finance Company, with the assistance of Mr. Hebert who was known to the Company ; that the chattel mortgage he gave provided that the truck would remain in the City of New Orleans and that Time Finance Company had no knowledge of any kind that it would be removed elsewhere. Defendant Roland Tabor testified that he turned the truck over to his brother Russel Tabor for the purpose of hauling scrap iron and other things under his direction, in Lafourche Parish; the intention of both himself and his brother was that he would move to New Orleans as soon as an apartment could be found for him; that the truck did not leave the City of New Orleans except under his orders.

Angellette testified in accordance with his defense that he had no knowledge of Roland Tabor’s ownership of the truck and was under the positive impression that it belonged to Russel Tabor, because of Russel Tabor's representations to that effect, the fact that the license to the truck was in the name of Russel Tabor, and the further fact that it was in the garage and stored when not in use, on his premises in La-fourche Parish. He further testified that before purchasing the truck he had his attorney check the mortgage records of La-fourche Parish and received a clearance from his attorney.

From the facts set forth it is clear that the real culprit is Russel Tabor, whose whereabouts were apparently unknown at the time of the trial and that the parties herein involved are apparently all innocent. However, the fact remains that the loan in question was made in Orleans Parish and that both the lender and the borrower resided in the City of New Orleans, and that the chattel mortgage clearly provided that the truck should not be removed without the written consent of plaintiff, Time Finance Company, and that this was well understood by defendant Roland Tabor. It is shown that the chattel mortgage was recorded at the domicile of the borrower, and in the Parish wherein was located the truck,

which constitutes full compliance with the law as brought out in the case of Mossler Acceptance Corporation v. Naquin, La. App., 30 So.2d 766.

“Filing and recordation of chattel mortgage in Parish of chattel’s location and that of mortgagor’s domicile, as required by-statute, gives mortgage the effect in all other parishes of state. Act No. 172 of 1944, § 3.”

It certainly seems that Time Finance Company complied with státute, and the facts involved in the case at bar in so far as the question of recordation of the instrument is concerned, are identical to the Mossier case supra. It may be true that had Time Finance Company consented to the storage of the truck in Lafourche Parish, as defendant Angellette claims it was, or even if Time Finance Company had knowledge of such fact, possibly it would have been duty bound to have recorded its chattel mortgage in that Parish also, but the evidence is all to the effect that plaintiff had given no such consent and had no such knowledge. The truck was purchased in New Orleans, from a New Orleans company, and by a resident of New Orleans, and under these circumstances plaintiff could not anticipate that it would be turned over to a third party who would remove it to another parish.

It is our conclusion, under the facts of this case, that tire chattel mortgage resting against the truck is a valid chattel mortgage with full force and effect in the Parish of Lafourche; that the lien and privilege resulting therefrom should have been recognized and that the writ of sequestration under which the said truck was seized should have been maintained.

The plaintiff has not cited to us any law, and we know of none which would make defendant, A. M. Angellette, personally liable for the debt, and therefore judgment -cannot be rendered against him.

For these reasons, it is ordered that the judgment appealed from is hereby set aside, annulled and reversed and it is further ordered, adjudged and decreed that there be judgment in favor of plaintiffs, Time Finance Company, and its individual members therein, Florence Bradford, Luther Bradford, James N. Adams and William Re-naudin, and against the defendant Roland J. Tabor in the sum of Six Hundred Forty-Eight and No/100 ($648.00) Dollars, together with legal interest from date of judicial demand, until paid, and for attorney’s fees in the amount of fifteen (15%) per cent, of the. principal and interest due, and costs.

It is further ordered that the writ of sequestration herein issued under which that certain 1942 Model Chevrolet 1%-ton cargo 'truck bearing Motor No. BF 102752, had been seized by the Sheriff of Lafourche Parish, be maintained; that plaintiffs’ lien and privilege upon the said truck be recognized ; that the said truck be sold, and that out of the proceeds thereof plaintiffs’ claim, together with interest and costs, be paid with preference and priority over all others whatsoever.

It is further ordered that defendant A. M. Angellette pay the costs of this appeal.

ELLIS, J., absent; J. CLEVELAND FRUGE, acting as Judge ad hoc.


author: LeBLANC, Judge.

text:
    MOORE v. BLANCHARD.
    No. 2999.
    Court of Appeal of Louisiana. First Circuit.
    June 11, 1948.

      Gardiner & Fontenot, of Opelousas, for appellant;
    Robt; F. Dejéan,' of Opelousas, for ap-pellee.
   LeBLANC, Judge.

This is a suit for damages for personal injuries arising out of an assault which plaintiff alleges was' committed on him on the night of September 29, 1946, without cause or provocation, by one of the defendants, Edward Blanchard, at the Step-In Night Club, at Lawtell in the Parish of St. Landry, where the said Blanchard was employed by the owner of the club, Zenon Joubert, as a bouncer. As a result of the assault plaintiff had to have one of his eyes removed and for this, as well as for the mental pain and anguish, physical pain and suffering, disfigurement. and medical bills incurred, he seeks to recover the total sum of $25,063 from both Blanchard and Jou-bert. L ' ' --

There were pleas of vagueness and of no cause- of action filed by the defendants which were overruled in the Tower court. These' do not seem to be urged on appeal and therefore' they need not be considered.

The defendants filed separate answers in which each denies any liability whatsoever to the plaintiff and each further alleges that if the plaintiff-suffered an injury to his eye while engaged in a fight with the defendant Blanchard, -the injury'was caused solely and only by his own acts of violence towards Blanchard. The defendant- Joubert pleaded as a further defense that if the .plaintiff suffered the injury he claims by r,eason of the assault alleged by -him,; he, Joubert,. cannot be held liable 'because at the time o.f the said assault, Blanchard was. not his employee and if he w.as, he was not acting within the scope of his employment at the time of the alleged encounter in which plaintiff sustained the injury he complains of.

The defendants in their answers, prayed for a trial by jury and as the result of said trial the jury rendered a verdict in favor of the plaintiff in the sum of $4,063 which was approved by a judgment signed by the district judge. Both defendants have perfected a' suspensive appeal to this court.

We.will dispose of the special defenses urged by the defendant Joubert first. The testimony reveals that Edward Blanchard and another person by the name of Oscar Bihm were both employed .by Joubert as bouncers at his club. The term “bouncer” is a familiar one used to designate persons employed as they were to preserve the peace in establishments such as night clubs and other places of amusement where people indulge in dancing, drinking and in gambling. In seems to be conceded that generally men so employed are deputized by the sheriff of the parish in order that they may exercise some sort of official au-. thority. They are really deputy sheriffs, with commissions issued by the sheriff, and they are authorized thereunder to arrest those who commit infractions of the law at the places where they are employed. .They are armed just as deputy sheriffs are with a pistol and in this case, our understanding is that -they each carried a policeman’s club or a billy. The appointment by the sheriff as his deputy is however purely a matter of convenience and service to the people who operate establishments of this kind and their entire salary or wages are paid by the proprietor of the-establishment. That was' so in this case and the records of the sheriff’s office show that they, did not receive any compensation at all from the sheriff’s office. In effect therefore men so employed are the. employees of those who engage their services and the latter may become responsible, legally, for any acts unlawfully committed by them in the discharge and.the performance of their duties. We hold therefore that the defendant Joubert could be held liable for the acts- of the defendant Blanchard in this case, as his employer, unless it be shown that at the time of the alleged assault, he was not acting in the scope of his employment.

■ With reference to that point the evidence shows that a disturbance occurred on the dance floor in the hall between other parties which resulted in their being taken out of the- hall by Oscar Bihm, acting in his capacity as bouncer. One of the parties creating this disturbance was a friend, of the ■ plaintiff and he, followed them out of the dance hall when they were ejected. Apparently things had quieted down but a few minutes later the disturbance started' again on the outside of the hall and that is where the alleged assault was committed. It seems to be a contention that because it was committed outside of the dance hall that made a difference in the status of these two men’s employment by the defendant Joubert; that they were employed by him to keep peace in his dance hall and he was not responsible for any action of theirs on the outside.

If we are correct in stating that that is the contention made, we are not impressed with it as certainly it should make no difference where the encounter took place, either inside the dance hall or anywhere on his premises, if these two' men were the employees of the defendant, Joubert. They were acting in their capacity as his employees and if they or either of them would be legally liable to any;one, Joubert also would -be responsible .under the doctrine of respondeat superior.

The next and most important point in the case arises out of the contention'made that the plaintiff himself was the aggressor in the encounter thát took place between him and Blanchard and consequently he cannot recover. As shown by the pleadings this all occurred on a Saturday night at a dance hall where there was a large crowd congregated and, as was to- be expected, there are numerous witnesses who testified on both sides. The testimony is very conflicting and to determine who was-the aggressor it strikes us that' we have to rely a great deai on the credibility of the witnesses and on 'the weight to be' given to the testimony of each.

It seems ,to be agreed that the ■ plaintiff was not a party .to the disturbance that took place in the dance hall. , One of his friends was engaged in it however and he. also went outside after he had been ejected by the bouncer, Oscar Bihm. Apparently things had quieted down after they were on the outside and what happened from then on, with regard to the fight that ensued between plaintiff and Blanchard, is a sharply disputed question of fact.

There is some testimony to the effect that Blanchard or Bihm or’ both, used their clubs in quelling the disturbance on the outside and that it was then that plaintiff became involved in what followed. He and his witnesses testified that all he did was to make a remark that some people thought they could do anything they pleased because they wore a badge and that that is what provoked Blanchard into hitting him with his club. The witnesses for the defendants, on the other hand, say that plaintiff's language was much more violent and severe and that his remark was to ask who was the son-of-a-bitch that had struck him. There is testimony to the effect that on being told that it was Blanchard he grabbed the latter by the collar. In the fight between them following this, Blanchard stuck his finger in plaintiff’s eye causing the injury which necessitated its removal.

We do not find much difference in the quality and character of the testimony as we read it. We would judge that some of the witnesses who testified for the plaintiff were more or less well disposed towards him and believe also that most of the witnesses who testified for the defendants were people who were either employed by Joubert in his establishment in some way or another, or were friendly to him. But regardless as to how we analyze and apply the testimony we have to consider that here we have a case, which was tried by a jury, prayed for by the defendants themselves, and the jury, which apparently was unanimous in their verdict, chose to believe the witnesses for the plaintiff in preference to those of the defendants. The trial judge by signing the judgment he did, approved the verdict. In such cases the rule which attaches great weight to the findings of fact of the jury and the trial judge, and of their ability to judge of the credibility of the witnesses where there is a sharp conflict in the testimony applies with great force and in the absence 'of clear and manifest error the appellate court is always loathe to reverse on the question of liability.

Counsel for defendants raise a last point with regard to the charge of the trial judge to the jury, which they contend was prejudicial to the interest of their clients. The point they make is this: That in charging the jury the trial judge cited two decisions which were favorable to the plaintiff and one which was favorable to the defendants. In citing the decisions favorable to the plaintiff he related the facts as they appear in the opinion whereas he did not do the same thing with regard to the decision that was favorable to the defendants. We do not find prejudicial and reversible error in this, as in his charge the district judge instructed the jury that they had to decide this case on the facts that were adduced during the trial and we do not think that it could be implied from his charge that the jury was to take into consideration and compare the facts which he related concerning the cases he cited to them as authority for them to reach their decision. He cited all three cases to support his explanation of what the law on the subject of assault was in a suit of this kind and we presume that the jury acted on what he told them was the law and applied the facts as they found them from the testimony in this case.

We find that the amount of the award made in this case is excessive. It may be that the jury was prompted by a certain amount of sympathy for a man who had suffered the loss of an eye and also they may have believed the testimony of some witnesses who tried to make it appear that the defendant Blanchard had deliberately gouged plaintiff’s eye by twisting his finger around in the socket, thus making the assault a very aggravated one. We are not convinced by the testimony on this point and whilst we don’t want to be understood as minimizing the seriousness of an injury such as the loss of an eye, we believe that in this case the award made is too great. We are of the opinion also that there are mitigating circumstances which justify a substantial reduction in the amount of the judgment. The defendant Joubert, who will most probably have to pay the amount awarded demonstrated his desire to operate a lawful, quiet and orderly business by employing not one, but two men to preserve peace in and around his establishment. These are public places and on account of the nature of the entertainment they afford, some of their visitors at times indulge a bit too much in drinking, become obstreperous and it makes the task of these quasi-officials who are hired to maintain peace and order rather hard and difficult. Unconsciously they may exceed the authority which they have under the law. When they do their employer becomes liable for their actions. However, these are all circumstances which should be taken into consideration in mitigation of the damages to be paid. For these reasons we have decided that the award in this case should be the sum of $1,000 plus the medical expenses of $63 incurred by the plaintiff.

It is therefore ordered that the judgment appealed from be reduced from the sum of $4,063 to the sum of $1,063 and that as thus amended it be affirmed at the costs of the defendants, appellants herein.

ELLIS, J., absent.

J. CLEVELAND FRUGE, Judge ad hoc.


author: REGAN, Judge.

text:
    OWENS v. FELDER.
    No. 18787.
    Court of Appeal of Louisiana. Orleans.
    June 7, 1948.
    M. E. Culligan, Jr., of New Orleans, for appellant.
    Rudolph F. Becker, Jr., of New Orleans, for appellee.
   REGAN, Judge.

This is an appeal from a judgment dismissing plaintiff’s suit in which he claimed $190.00, as the balance due on the purchase price of a Ford truck.

Frank Owens, the plaintiff, alleged that on July 17th, 1946, he agreed to sell to James Felder, the defendant, a 1937 Ford V-8 60 Panel Truck for the sum of $200.-00, $10.00 of which was paid on account, the balance to be paid shortly thereafter, and that, though he made repeated attempts to collect this money, he was unable to do so.

Defendant pleads payment.

The record reveals that on July 17th, 1946, the plaintiff called at defendant’s auto repair shop with the intention of having his truck repaired; that the defendant asked him if he would like to sell the truck and plaintiff agreed to the sale for the sum of $200.00; that, at this time, defendant wrote two identical agreements evidencing the sale of the truck for $200.-00, the payment of $10.00 on account and a balance due of $190.00; and that one of these agreements, signed' by the defendant, •was given to the plaintiff, and the' other, signed by the plaintiff, was retained by the •defendant. Both plaintiff and defendant agree that the balance was to be paid within a few days.

The plaintiff introduced in evidence his copy of .this agreement signed by the defendant. ,

The defendant testified that he either lost ■or mislaid his copy of this agreement and that when the balance was paid to plaintiff he drew up another agreement which plaintiff signed, and which reads as follows:

“Frank Owens 7,23,1946 1211 S. Rampart ■
37 V 8. 60 Fora Motor No. ' . 561ÍG609 Paid $10.00 Balance $190
This truck sold to James Felder, 318 S. Prieur St For the amount of truck in full $205 Paid to Frank Owens 1211 S. Rampart St 1 V. S. 60 Ford 37 Model
Paid in Full.
(Signed) Frank Owens/?

The plaintiff contends that he signed only one agreement and that on July 17th, 1946, the day the sale was agreed upon.

The document introduced by the defendant appears on its face to contain several erasures and alterations, the important ones being in the date and the amount.

The defendant and his witnesses, Leroy Broomfield and Walter Houston, both of whom were employed by him at the time, all testified that the balance was paid plaintiff -on July 20th, 1946, whereas the receipt is dated July 23rd, 1946. It does not appear probable to this court that the money would have been paid on July 20th, and a receipt not given to the defendant until three days later.

The defendant has laboriously endeavored to explain why the amount in his receipt is shown at $205.00, rather than $200.-00, or $5.00 more than originally agreed upon, by stating that on the day payment was made, plaintiff insisted that he could not sell the truck for less than $205.00, and that he, defendant, agreed to this increased price. ' However, both"' Broomfield and Houston, whom defendant claimed werfe eyewitnesses to ■ the transaction, disagree with defendant and are most positive in their' testimony that they heard nothing concerning the payment of an additional '$5.00 and that-only $190.00 had been paid to the plaintiff.

It is our opinion that defendant never paid plaintiff, and further that-the document offered in evidence by defendant, dated “7,23,1946”; .which bore the signature of the plaintiff, was the document originally dated July 17th, 1946, and which defendant claims was either lost or mislaid. We are ■also of the opinion that the date had been changed by the defendant from “7,17,1946” to “7,23,1946”, and that the amount of $190.00; had been altered to- read “$205”, and further that the words “paid in full” had been written into the document over the signature of the plaintiff.

The plaintiff disclaims any knowledge of the alterations and because of his disclaimer and other suspicious circumstances encompassing the transaction, we feel that we must conclude that the defendant was in bad faith and we must'- apply the principle of law that the burden of proof rests upon a party, relying upon a written instrument, to account satisfactorily for any alterations operating -as a substantial change in the effect of the instrument. McMicken v. Beauchamp, 2 La. 290; Pipes v. Hardesty, 9 La.Ann. 152, 61 Am. Dec. 202; Wheadon v. Turregano, 112 La. 931, 36 So. 808; Messi et al. v. Frechede, 113 La. 679, 37 So, 600.

We are reluctant to reverse the finding of a trial court based primarily on questions of fact, but in a case, such as we are presently analyzing, it is a self evident principle that it is occasionally easier to perceive fallacies and inconsistencies contained in the record by -a comparison of the various portions of the transcribed record with other pertinent portions than it is to accurately observe and catalogue them while listening to the oral evidence of the various witnesses -who testified during the course of the trial.’

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of plaintiff, Frank Owens, and against the defendant, James Felder, in the sum of $190.00 with legal interest from judicial demand until paid; costs to be borne by defendant.

Reversed.


author: KENNON, Judge.

text:
    ALEXANDRIA MARBLE & GRANITE WORKS v. HARDING.
    No. 7169.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1948.
    J. B. Nachman, of Alexandria, for appellant.
    K. Hundley, of Alexandria, for appellee.
   KENNON, Judge.

Plaintiff filed this suit to recover $109.08 allegedly due by defendant as a result of plaintiff’s installing a marble fireplace with hearth, etc. in defendant’s home.

Defendant in answer admitted that there had been an agreement under which plaintiff was to install a marble mantel for the price of $80.00 and alleged further that plaintiff agreed to make the installation in such a manner that the fireplace could be used as an open hearth, but that upon inspection by proper authorities, it was disclosed that the fireplace as completed constituted a fire hazard and that in order to correct the defects and improper installation, it would be necessary for the mantel to be removed and the bricks and fireproof material replaced, and that by virtue of the improper installation, nothing was due.

The District Court gave judgment for the plaintiff for $104.03. The defendant has appealed.

The record discloses that Mrs. Harding came to plaintiff’s place of business and asked if the company could supply a white marble mantelpiece. The white not being available, plaintiff’s representative said he could, for $85.00, furnish a pink marble mantelpiece like plaintiff company had placed in her neighbor’s house. She agreed. Plaintiff prepared the marble and took it out to her house, but found that the fireplace was the old type 24 inch brick fireplace, while the mantel prepared was for a 34 inch fireplace. It was decided to remodel the fireplace to fit the standard mantel, which was done at a cost of $23.00. When the work was completed, Mr. Taylor, plaintiff’s representative, testified that Mrs. Harding offered him a check for $80.00. He told her that the original agreement was $85.00 and that he had undergone the additional expense of $23.00 for remodeling the fireplace. He testified that she agreed, after he told her of the $108.00 amount, to mail a check; that when he inquired of her after a week or two as to why the check had not been sent, she complained about the lack of shine on the marble and he took his men out and polished the places she complained of; that he waited two weeks more, called again and received the complaint that there was still one piece of marble that she didn’t think was polished right; that he went out the second time and polished that piece and thought she would mail the check. Two weeks later he called again and was informed that she had had the fire chief inspect the place and he had said that the installation constituted a fire hazard; that he took his cement man and plastered “all of that so it would be no fire hazard.”

Mrs. Harding testified that she made out and attempted to deliver the $80.00 check to Mr. Taylor when the work was completed. She did not contradict Mr. Taylor’s statement that he made demand for additional twenty-odd dollars for the revamping of the fireplace, which was not included in the original agreement.

The testimony as to whether the original price was $80.00 or $85.00 is conflicting. Under these circumstances, we accept the trial judge’s conclusion that plaintiff has failed to establish more than the $80.00 awarded him in the District Court judgment for this item.

We next consider the claim of plaintiff for $23.00 additional for the remodeling of the fireplace and the question as to whether or not the agreement between the parties contemplated the construction of the fireproof fireplace, or an ornamental one which would not require the use of fireproof materials. We think the evidence shows that both parties understood that the fireplace as reconstructed was to be suitable for the use of gas logs. The fire chief of the City of Alexandria, Louisiana, testified that the completed product was not safe for the use of gas logs and while plaintiff’s agent was of a different opinion, we believe that ordinary prudence would dicate the replacing of the inflammable material with fireproof construction.

Article 2769 of the Civil Code provides that the contractor shall be liable in damages for the losses that ensue from his noncompliance. The Courts have held that the measure of damage suffered by an owner for defective or unsuitable materials furnished is the cost of doing the work with proper materials. American Paint Works v. Metairie Ridge Nursery Co., 1 La.App. 396.

Defendant called a professional bricklayer with twelve years experience, who testified that he had inspected the fireplace and estimated that it would require $50.00 worth of brick work to replace the wood with brick. Pteintiff introduced no testimony in contradiction. Defendant pleaded the defective condition as a bar to ■plaintiff’s suit. We find the plea good against plaintiff’s claim for the $23.00 cost of doing this brick work. Defendant is entitled to this $23.23 credit.

The evidence sustains the learned District Judge’s finding that plaintiff completed his undertaking to install the marble mantelpiece and is entitled to the $80.00 shown to be due for that item. With tax, this amounts to $80.80.

The judgment appealed from is reduced from $104.03 to $80.80, and, as reduced, it is affirmed. Costs of appeal to be paid by plaintiff. All other costs by defendant.


text:
    McQUAIN v. W. R. ALDRICH CONST. CO. et al.
    No. 7201.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1948.
    J. Vance Thompson, of Alexandria, for appellant.
    Stafford & Pitts, of Alexandria, for ap-pellees.
   TALIAFERRO, Judge.

Plaintiff’s left eye was injured when struck by a flying piece of concrete that came from a piling of that composition which was being hammered by plaintiff with a sledge. Testimony relating to the size of the piece of concrete is -meager. Plaintiff told his physician that it was about the size of his fist. The full force of the blow did not reach the eyeball. There were small lacerations in the eyebrow and below the lash, but there was no injury to the bony structure constituting the orbit.

The injury disabled plaintiff and he was paid compensation at the rate of Twenty ($20.00) Dollars per week to June 4, 1947,' a period of seven weeks, two days after which date he was discharged by the eye specialist who had treated him, as being able to resume work. He refused to accept a check covering compensation due from June 4th to June 6th, 1947.

In this suit plaintiff, who is a Negro laborer, sues for compensation on the basis of permanent total disability to do manual labor. Pie alleged that his physical condition is the result of said accident. Specifically, he alleged total loss of the sight of eye and that:

“he suffered constant and continuous pain in his left eye and upon the slightest exertion and heat suffers pain in his right eye causing severe headache's and more excruciating pain * *

The employer, W. R. Aldrich Construction Company and its insurer, American Mutual Liability Insurance Company, were made defendants.

Defendants, while admitting the occurrence of the accident, deny that its effects produced the character of disability of which plaintiff complains. They allege that the inflammatory condition of the eye caused by the flying piece of concrete had entirely cleared up and all disability resulting therefrom had ceased when he was discharged by the attending physician as being able to resume his usual work; and that thereafter no compensation whatever was due him.

Plaintiff’s demand was rejected and his suit dismissed. He appealed to this court.

The contest below mainly revolved around the question whether the vision of plaintiff’s left eye is, for all practical purposes, lost. Four eye specialists testified in the case, two for each side, but they were not interrogated concerning the other pathology complained of by plaintiff, the origin of which he ascribes to the blow to the eye. Two of these doctors are positive in the opinion that sight of the eye is practically gone, while the other two are equally certain in the opposite opinion, and further, they stamp plaintiff as being a malingerer.

Plaintiff testified that he was knocked down from the force of the impact and was assisted to his feet by a brother who was working with him. The brother corroborated this statement. He also testified that his brother took him out to see the foreman who put “something” in his eye. The foreman did not testify. Two days later he went to the office of Dr. Quantz in Alexandria, Louisiana, and was examined by him. He was directed to go to a hospital in that city, and did so, where he remained for one week. Examination of plaintiff’s eyes by Dr. Quantz disclosed normal vision in each. He did not discover any foreign matter in either. There was some congestion in the left eye and inflammation of the conjunctiva, the mucous membrane lining the eyelids. The patient was observed by this physician twice daily while in the hospital. On April 16th, the day he was discharged from the hospital, plaintiff again reported to Dr. Quantz’ office and his eye was again examined. It was then found that there was present acute uveitis, which means inflammation of the uveal body, the choroid, due to trauma. Drugs were administered to relieve the eye’s condition and to prevent possible infection. Naturally, these conditions affected the eye’s vision. Thereafter, until finally 'discharged on June 6th as being able to resume work, he was treated by and was under the observation of Dr. Quantz.

On June 7th, the day following his discharge, plaintiff returned to the doctor’s office and complained of lack of ability to see out of the injured eye. He was given what is referred to as the “malingerer’s test” because Dr. Quantz was unable to find any reason for the conditions of which plaintiff complained. The doctor at that time found both eyes to be practically normal. Plaintiff was on August 26th again examined by Dr. Quantz, at which time the eye’s power of vision was again checked by appropriate tests and was found to be practically normal.

In order to have his diagnosis checked, Dr. Quantz sent plaintiff to Dr. Noel Sim-monds for additional examination. Dr. Simmonds found nothing demonstrably wrong with the eye. It was then, in his opinion, in a normal condition with no evidence of the trauma, save small scars above and below it. Usual and approved tests were resorted to as a means to determine whether plaintiff was honest in his profession of loss of sight of this eye. From these tests Dr. Simmonds reached the firm conclusion that plaintiff was a malingerer. While giving his testimony in open court, Dr. Simmonds re-examined plaintiff’s eye and found no change in its condition from that revealed by other examinations. He then, in open court, made what is called the “prism” test and from it his prior opinion of the eye’s condition was confirmed. The trial judge observed the making of this test and evidently was convinced of the correctness of Dr. Simmonds’ conclusions.

On behalf of plaintiff Drs. Gandy and Littell testified. At different times they also made tests in order to determine the true condition of plaintiff’s injured eye and each reached the conclusion that beyond the ability to discern light, the eye’s power of vision is gone. The record does not disclose the dates when these tests were made.

Therefore, numerically, there is set-off in the expert opinions as to the present condition of the injured eye. All these experts, so far as the record discloses, are of equal ability and credibility. No reason is assigned nor intimation ventured why they should not be fair and honest in giving their opinions in this case. On this basis, however, it is obvious that plaintiff has failed to prove his contention that the sight of the eye has been lost. But, a careful study of the testimony of all of these experts, together with, due consideration of the various tests made by them, has led us to the conclusion that in probative weight the opinions of defendant’s experts should prevail over those of the plaintiff. From this conclusion there follows the inevitable conclusion that plaintiff is not sincere as regards the condition of his eye.

As a corollary to the foregoing conclusion, plaintiff’s profession of subjective symptoms must be materially discounted, if not rejected in toto. As said before, he offered no medical testimony as regards said subjective symptoms. Members of his •family and one other witness corroborated what he ■ said about these symptons but their testimony is mainly based upon his own statements and actions. The testimony of his wife, if standing alone, would impress the reader with the idea that plaintiff is practically helpless because of physical impairments and loss of vision. She overlooks the fact that the vision of the right eye admittedly is normal and that plaintiff experiences no difficulty in going about afoot.

In passing, it is worthy of note that the piece of concrete did not inflict large or deep wounds to the fleshy structure about the eye. Had it been the size stated by plaintiff and had it felled him to the ground, as he says, undoubtedly there would have been much more serious evidence of the impact. We are bound to conclude that in this respect, as well as in other material respects, plaintiff has greatly magnified the true facts.

Surely there is no manifest error in the conclusions reached by the trial judge, and for this reason and others herein assigned, the judgment from which appealed is affirmed with costs.