text:
    TRIMBLE v. EMPLOYERS MUT. CASUALTY CO.
    No. 2951.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.
    Rehearing Denied Dec. 30,1947.
    Samuel M. Robertson, of Baton Rouge, for appellant.
    Durrett & Hardin, of Baton Rouge, for appellee.
   OTT, Judge.

Plaintiff brought this suit against the insurer of his employer for compensation for total and permanent disability at the rate of $20 per week, for a period not exceeding 400 weeks, plus medical expenses of $500. He alleges in his petition that while on his-way to deliver a tire for a customer of his-employer, the Louisiana Tire & Supply Company, he was thrown from a truck driven by the manager of the said company and sustained a fracture of the radius of the left arm and injuring the lower part of his back. The defendant admits that plaintiff received a small fracture of the distal tip of his left radius, and admits paying him compensation in the total sum of $246.66 to cover compensation from the date of the injury, November 11, 1945, to February 20, 1946. Defendant alleged that plaintiff had fully recovered from the injury at the time compensation was discontinued and denied that he suffered any further disability.

The plaintiff had filed a suit on his claim in the Federal court, but, after a trial before a jury, the United States- District Judge dismissed the suit for lack of the necessary jurisdictional amount in controversy of $3000. The jury did not pass on the facts in the case. The plaintiff then filed the present suit in the State court.

After a trial in the district court, the trial judge rendered a judgment in favor of plaintiff for compensation at the rate of $20 per week from February 20, 1946, to and including April 22, 1947, plus the sum of $123.85 for medical expenses, together with interest and expert witness fees. All other claims of plaintiff were rejected beyond the amount covered by the judgment. Plaintiff had execution issue on the judgment, and the defendant thereupon paid the amount of the .judgment in full.

Plaintiff asked for and secured an order of appeal from the judgment on the same day that the writ of execution issued. The defendant has filed a motion in this court to dismiss the appeal on the ground that the plaintiff has acquiesced in the judgment by forcing payment thereof.

Motion to Dismiss.

For some time the jurisprudence of the State was in confusion as to the right of a plaintiff to take an appeal from a judgment which he voluntarily executes or on which he causes execution to issue where the judgment was for a less amount than he claimed was due him. This matter was finally settled by the Supreme Court in the case of Foster & Glassell Co., Limited, v. Harrison et al., 173 La. 550, 138 So. 99, where it was held that a plaintiff does not lose his right to appeal from a judgment in which all of his claim was not allowed, although he proceeded to execute the part of the judgment in his favor against the defendant. For these reasons, the motion to dismiss the appeal is overruled.

The defendant filed an answer to the appeal in which it asked that the judgment be reversed insofar as it awarded plaintiff part of his claim for compensation and that plaintiff’s suit be dismissed; or, in the alternative, that the judgment be affirmed; or in the further alternative, that the judgment be amended so -that the plea of res adjudicata which it had filed in the district court be sustained. This plea is based on the ground that, as the Federal Court had held that there was not involved in controversy an amount exceeding three thousand dollars, and as plaintiff had not appealed from that judgment, that part of his claim in excess of $3000 has become res adjudicata. While the conclusion we have reached renders this plea inapplicable to our decision of the case on the merits, yet we might say in passing that under the Federal Rules of Civil Procedure, Rule 41(b), 28 U.S.C.A. following section 723c, a judgment dismissing a suit for lack of jurisdiction does not operate as an adjudication on the merits.

Merits.

The only issue in the case is the extent and duration of plaintiff’s disability, that is 'whether or not he was disabled after February 20, 1946, the date on which compensation payments were discontinued; or whether he was disabled from said date to April 22, 1947, the date to which the trial court allowed compensation; or, as plaintiff claims, he is and has been disabled for a longer period that that allowed by the trial judge.

Plaintiff testified that he hurt his arm when he was thrown from a truck being driven by his foreman; that his arm and back both hurt at the time, but he did not take the back injury seriously, as the most pain was in his arm. He went to a doctor of his own race (colored) the next morning, and this doctor bandaged his arm, but did not do anything to his back. He told the doctor that his back hurt him a little. He continued working at the service station, doing the things that he could do with one hand, such as putting gas in cars and wiping windshields. He had been changing tires, greasing and washing cars before he was injured. He went to see Dr. Joseph (the colored doctor) several times, and he admits .that, he did not complain to Dr. Joseph about his back except the first day or so. Dr. Joseph removed the bandage from his arm, and told him he would get all right. Plaintiff then went to see Dr. Thom.

Dr. Joseph saw plaintiff about a dozen times between November 12, 1945, and February 20, 1946, and treated the fracture of his wrist by placing a bandage on his arm and giving him treatment over this period of time. The doctor thought the fracture was healed in February, 1946, and thought plaintiff was able to return to- work. The doctor says that plaintiff never complained of his back after the first two or three days and for that reason the doctor did not give him any treatment for his back.

Plaintiff says he went to see Dr. Thom because Dr. Joseph would not pay any attention to his back injury, even though he admits that he never complained to Dr. Joseph about his back, except for a day or so after the accident. It is significant to note that plaintiff did not emphasize his back injury until his doctor pronounced his arm injury sufficiently cured for him to go back to work, which was over three months after the injury.

The lady for whom plaintiff was- working testified that he never complained about his back until an x-ray taken of his arm in February, 1946, showed that the fracture had healed. She says that he was a good worker around the service station before the accident, and during the time his arm was in a sling he tried to do the lighter work, but after his arm healed he began to neglect his work and complained of his back. She told him to go home and return when he felt like taking his job back, but he never came back to take his job. The strongest evidence in support of plaintiff’s claim to back pain was given by Dr. Kuehnle who first examined plaintiff in March, 1946. He found the healed fracture in plaintiff’s wrist, with slight limitation of movement in that wrist. He found moderate tenderness in plaintiff’s lower back and moderate muscle spasm. The doctor found about the same condition on two subsequent examinations. He thought plaintiff had some disability in February, 1947. This doctor states that if plaintiff hurt his back in November, 1945, and was suffering from that injury to his back, he should have had pain in his back before February, 1946.

Dr. Bannerman examined plaintiff the last time in February, 1947, and reported that he found a healed lumbro-sacral strain and healed fracture of the left radius with a mild arthritic change. The doctor was of the opinion that plaintiff was able to return to work. Dr. McVea examined plaintiff a second time in February, 1946, at which time he says the old injury to plaintiff’s back and wrist had healed and there was no residual disability. He thinks plaintiff was then able to work. At least three doctors (including the doctor whom plaintiff first consulted) were of the opinion that plaintiff is able to work. Practically all the doctors say that the injury to his wrist is very slight and should not interfere with its use in a normal way. The limitation in the use of the wrist was fixed at not over five or ten per cent.

Dr. Thom first examined plaintiff in February, 1946. He says plaintiff came in his office with a slight limp, complaining of trouble with his back and wrist. The only objective finding of the doctor was some rigidity in plaintiff’s lower back muscles. The doctor taped his back with adhesives to immobilize his back. The doctor saw plaintiff some seventeen times during 1946, and he says that when he saw him in December of that year there was less regidity in his back muscles. Dr. Thom saw plaintiff later, and he states that he still had some tone or rigidity in the lower back muscles and a nervous condition which he attributed to worry over his physical and financial condition.

In order to show that plaintiff does suffer back pain, counsel for plaintiff places much stress on what is known in the medical field as Robertson’s Sign or Test, which test was used on plaintiff in this case. The sign is defined in one of the medical books introduced in evidence as follows: “In the malingerer or neurasthenic, when alleged pain is complained of, pressure over the area fails to produce dilation of the pupils which invariably follows when pressure is made upon any painful area resulting from an organic lesion.”

Some of the doctors did not put much faith in this test, while others thought it would be of help in determining whether or not pain was actually present upon pressure over the area complained of. In regard to this test, the trial judge made the following pertinent statement in his reasons for judgment:

“At the time of the trial on February 27 and April 22, 1947, this Court examined plaintiff’s back and observed what Dr. Kuehnle called mild muscle spasm in the erector spinae muscles on the left side in the lumbar region, and what Dr. Thom called rigidity of ■ the muscles or muscle tone. Furthermore, the application of Robertson’s Sign test indicated this area was tender and painful to pressure. After watching the application of this Robertson’s Sign test and hearing the doctors discuss it, this Court is of the opinion that this test may be of assistance to diagnosticians in ascertaining whether or not a patient is a malingerer, but of little value otherwise, because any pain large or small causes the same reaction. There is no relation between the intensity of the pain and the amount of dilation of the pupils of the eyes. Furthermore, any sensory emotion causes the same reaction. There can be no doubt, however, that pain causes a dilation of the pupils and thus, a doctor with experience in using it could undoubtedly get some help and benefit where there was a question of whether or not the patient was a malingerer.”

The trial judge concludes his reasons for judgment with the following statement:

“The plaintiff had probably recovered so as to be able to return to his former employment by February 20, 1947, or within one year after the defendant stopped his compensation payments. Flowever, there may be some question about it so this Court has concluded to give him the benefit of the doubt and allow him compensation to the date of the termination of the trial on April 22, 1947. At this time the tests conducted by the doctors under the Court’s observation clearly indicated that the plaintiff was able to return to his former employment.”

We find no error in the conclusions of the trial judge. He has carefully reviewed the evidence, and we think his conclusions are justified by the record.

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


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    ROBERSON v. BALTHAZAR et al. (GAHAGAN, Intervenor).
    No. 7123.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    Gahagan & Pierson, of Natchitoches, for appellants.
    Watson & Williams, of Natchitoches, for appellee.
   HARDY, Judge.

This suit was consolidated for trial with the action of Minevia Rachal v. Larry Balthazar et al., La.App., 32 So.2d 483.

The facts and the issues presented in the two cases are identical and the only difference in the judgments rendered is with reference to the amounts awarded as damages.

For the reasons particularly set forth in the opinion to which reference is above made, there is judgment herein amending and recasting the judgment rendered by the Judge of the Tenth Judicial District Court, in and for the Parish of Nachitoches, State of Louisiana, to read as follows, to-wit:

“It is ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, Fannie Wilson Roberson, and against the defendant, Larry Balthazar, in the full sum of Four Thousand ($4,000.00) Dollars, with five (5%) per annum interest thereon from date of judicial demand until paid, and for all costs of these proceedings.

It is further ordered, adjudged and decreed that the pretended sale of the following described property, to-wit:

All of Larry Balthazar’s undivided right, title and interest in and to that certain tract of land on the right descending bank of Cane River in Natchitoches Parish, Louisiana, containing 52 acres, bounded in front by Cane River, in the rear of Conant, above by Guy Tolar and below by Conant.

One F20 Farmall Tractor, serial No. FA81978

One set of 210G tractor cultivators

One set of long beam middlebusters for tractor

One two-row corn and Cotton planter for tractor, John Deere Model, 536

One John Deere Tractor Disc harrow

One 1½ ton Chevrolet truck, Motor No. T5418242

One two wheel trailer

One white-face cow with calf

One red cow with white spots in her face made by Larry Balthazar, one of the defendants herein, to Bernie Balthazar, the other defendant herein, by act passed before Russell E. Gahagan, Notary Public for this Parish, on the 25th day of February, 1946, and registered in the Conveyance Office of the Parish of Nachitoches under Original No. 85023, be set aside, voided and annulled.”

It is further ordered, adjudged and decreed that all costs of both courts are taxed against defendants.

KENNON, J., absent.


text:
    RACHAL v. BALTHAZAR et al.
    No. 7122.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    Gahagan & Pierson, of Natchitoches, for appellants.

      Julian E. Bailes, of Natchitoches, for ap-pellee.
   HARDY, Judge.

This is a suit in which plaintiff seeks to recover damages resulting from the death of her husband in an automobile collision allegedly caused by the negligence of the defendant, Larry Balthazar. In addition to the claim for damages, plaintiff’s petition also seeks to set aside an allegedly simulated sale of the property made by the defendant, Larry Balthazar, to his brother, Bernie Balthazar, who is joined as a defendant.

This case was consolidated for trial with another arising out of the same accident, styled Fannie W. Roberson v. Larry Balthazar et al., La.App., 32 So.2d 482.

After trial on the merits there was judgment in favor of plaintiff, Minevia Rachal, and against the defendant, Larry Balthazar, in the amount of $4,000.00. There was further judgment in favor of the plaintiff and against the defendants, Larry Balthazar and Bernie Balthazar, setting aside, voiding and annulling the pretended sale of property, both real and personal, purported to have been made by Larry Balthazar to Bernie Balthazar by act dated the 25th day of February, 1946, and declaring the property described to be subject to a lien and privilege in favor of plaintiff by preference and priority over all other creditors save and except those holding written liens recorded prior to the filing of this suit. From this judgment defendant, Larry Balthazar, devolutively prosecutes this appeal.

There is no dispute as to the pertinent facts in connection with the accident, which is the basis of this suit, all of which have been conclusively established.

At about 2 :30 o’clock A.M. on the morning of February 25, 1946, plaintiff’s husband, Joe Sompayrac, was driving his 1925 T-Model Ford truck south on Highway 20 between Natchitoches and Natchez, Louisiana. Sompayrac was accompanied by a neighbor, John Roberson, husband of the plaintiff in the companion suit above noted, and a midwife by the name of Florence Johnson. Sompayrac’s truck had neither headlights nor tail-light, the only light on the vehicle at the time of the accident being an ordinary lantern which was hanging on the left side of the truck at a point in or near the doorway of the cab.

The defendant, Larry Balthazar, driving a passenger car south on the same highway at a speed, according to his own testimony, of about 40 miles an hour, was blinded by the headlights of an approaching automobile. Despite this fact Balthazar did not decrease his speed, failed to see the Som-payrac truck until he was within 8 or 10 feet of the rear thereof, and as a result his car crashed into the rear of the truck with disastrous and tragic effect. Sompayrac was instantly killed by the crash, and Roberson, fatally injured, died, without regaining consciousness, on March 7, 1946. The woman, Florence Johnson, miraculously escaped, apparently wi.thout serious injury insofar as is disclosed by the record.

The sole question presented is whether or not the defendant’s operation of his automobile under the circumstances was the proximate cause of the accident. We find not the slightest difficulty in resolving this question, as did the district Judge, in the affirmative.

As a practical proposition it must be conceded that the use of highways by vehicles traveling at night without lights constitutes a particularly dangerous menace to vehicular traffic. But it has been definitely established by the jurisprudence of this State that the driver of an automobile is required to maintain such control thereof as will permit him to bring the same to a stop, if necessary, within the range of his lights. The undisputed facts in this case bring it within the purview of this rule. The testimony of the defendant himself was more than sufficient to convict him of negligence. He testified that at the rate he was traveling he would have required a distance of approximately 100 feet to bring his automobile to a stop; that he was blinded by the lights of an approaching automobile; that he did not reduce his speed; that he did not see the truck until the approaching car had passed, or was passing, at which time he was only 8 or 10 feet behind the truck and it was impossible to avert the collision.

The facts in the case of Pepper v. Walsworth, 6 La.App. 610, are almost identical with those in the instant case. In the course of its opinion the Court stated:

“In the absence of any testimony to the contrary, we assume that defendant’s car was properly equipped with headlights. Therefore, if it had not been for the blinding lights on the approaching car the driver would have seen plaintiff’s car in time to avoid striking it, even though no lights appeared on the rear end, for it was on the open road ahead of him as he approached.
“The road, so far as the testimony discloses, is straight, and there was nothing to keep the driver from seeing the car ahead of him, even though it had no tail light, except the blinding lights of the approaching car.
“The question then arises whether it was negligence for the driver to meet this approaching car when he was blinded by its lights, at a speed of 25 miles an hour?
“We think it was.
“It was not only negligence, it was reckless driving. The driver of an automobile has no right to assume that the road before him is open, and to proceed ahead without regard to the safety of those who may be therein. To proceed ahead when one is utterly blinded, as the driver of this car says he was, at a speed of 25 miles an hour, is the grossest kind of negligence.
“When a driver finds that he is unable to see the road ahead of him, for any reason whatever, whether blinded by bright lights, smoke, dust, fog or for any other reason, it is his duty to at least bring his car under such control that it can be stopped in a moment in case of an emergency, and in extreme cases it is his duty to stop.”

We think the above is.a clear statement of the law as established and maintained by the jurisprudence of this State, and, as we have stated, the facts related are almost identical with those of the case before us. In this case, the road was straight for a distance of several miles in the vicinity of the place of the collision. The defendant, Balthazar, whose headlights were in good working order, was driving at a speed of 40 miles or more per hour, far in excess of the 25 miles per hour speed which the Court in the Pepper case, supra, held to constitute reckless driving under similar circumstances.

No serious argument is advanced by counsel for either party as to the quantum of damages asserted in this case, and we find nothing in the record which would indicate the sum fixed to be either inadequate or excessive. The sole question which remains for our consideration is with reference to that portion of the judgment which sets aside, as simulated, a purported sale of property made by the defendant, Larry Balthazar, to his brother, Bernie Balthazar. This phase of the case was not discussed by our learned brother of the district Court in his written assignment of reasons for the judgment rendered.

The undisputed facts in connection with this purported sale show that on the very day of the accident, that is, February 25, 1946, the defendant, Larry Balthazar, executed a deed conveying his entire interest in certain property, real and personal, to his brother, Bernie Balthazar, for a recited consideration of $1,800.00 cash. This instrument was filed and recorded on the following day, February 26, 1946. The consideration, nor any part thereof, was ever paid by the purchaser. Aside from the coincidence of dates and the failure of consideration, the attempted substantiation of the good faith and validity of this instrument by the testimony of the parties thereto, as adduced upon trial of this case, is so weak and unconvincing as to be incredible and unworthy of belief. We find no difficulty in concluding that the judgment of the district Court decreeing this purported sale to be a simulation and ordering the same set aside, voided and annulled was correct.

However, we find no authority in law for that part of the judgment which restricted the declaration of nullity of this sale to the plaintiffs in the damage actions and recognized a lien and privilege on toe property described in favor of said plaintiffs.

Reference to plaintiff’s petition discloses the fact that the attack upon the purported sale was made on the ground that the same was a sham and a simulation conceived and confected by the defendants for the purpose of defeating the rights of plaintiff. Only in the alternative was the purported sale attacked as being a true sale made for the purpose of defrauding the plaintiff, the defendant, Larry Balthazar, allegedly being insolvent.

It is evident that the purported sale was set aside and annulled on the ground that it was simulated, which conclusion was abundantly justified by the evidence in this case. For this reason, the alternative attack and the relief coincident thereto must be disregarded.

For these reasons we find that the character of the judgment rendered in this case to the extent that it set the sale aside only with regard to the rights of plaintiff, and further recognized a lien and privilege in the interest of plaintiff, does not accord with the relief provided in actions of simulation. The character of relief granted by the judgment would be proper in revocatory actions in cases of fraudulent contracts under 'the authority of Article 1977 of the Civil Code. However, as we have stated, this was not the nature of the proceeding nor the character of relief primarily sought and recovered by plaintiff.

It must also be borne in mind that at the time of the commencement of this action the plaintiff was not a creditor of the defendant, Larry Balthazar, and, therefore, did not have such a relationship as would have made the revocatory action, on the ground of fraud of creditors, available for her relief. Plaintiff became a creditor of this defendant only with the rendition of a money judgment in the same action which improperly restricted the setting aside of the purported sale and the granting of a lien and privilege to plaintiff.

For the reasons assigned the judgment appealed from is amended and recast to read as follows, to-wit:

“It is ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, Minevia Rachal, and against the defendant, Larry Balthazar, in the full sum of Four Thousand ($4,000.00) Dollars, with five (5%) per annum interest thereon from the date of judicial demand until paid, and all costs of these proceedings.

It is further ordered, adjudged and decreed that the pretended sale of the following described property, to-wit:

All of Larry Balthazar’s undivided right, title and interest in and to that certain tract of land on the right descending bank of Cane River in Natchitoches Parish, Louisiana, containing 52 acres, bounded in front by Cane River, in the rear by Conant, above by Guy Tolar and below by Conant.
One F20 Farmall Tractor, serial No. FA81978
One set of 210F tractor cultivators
One set of long beam middlebusters for tractor
One two row corn and cotton planter for tractor John Deere Model 536
One John Deere Tractor disc harrow
One U/2 ton Chevrolet truck, Motor No. T5418242
One two wheel trailer
One white-face cow and calf
One red cow with white spots in her face,

made by Larry Balthazar, one of the defendants herein, to Bernie Balthazar, the other defendant herein, by act passed before Russell E. Gahagan, Notary Public for this Parish, on the 25th day of February, 1946, and registered in the conveyance office of the Parish of Natchitoches under original No. 85023, be set aside, voided and annulled.”

It is further ordered, adjudged and decreed that all costs of both Courts are taxed against defendants.

KENNON, J., absent.


text:
    HENDRICKS v. MORRIS, Sheriff.
    No. 7120.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    Watson & Williams and Julian E. Bailes, all of Natchitoches, for appellant.
    Gahagan & Pierson and H. L. Hughes, all of Natchitoches, for appellee.
   HARDY, Judge.

This case was consolidated for trial with the suit of Fannie Wilson Roberson v. Earl Morris, Sheriff, La.App., 32 So.2d 489.

This is an action by the purchaser at a judicial sale demanding delivery of the property purchased at said sale by the Sheriff, made defendant herein.

Rule to show cause was directed to the Sheriff to compel Sheriff to deliver property which was the subject of sale, which action was consolidated with suit in which judgment under which sale was made was entered. Judgment for defendant, and plaintiff appeals.

The above styled companion suit is a proceeding by the plaintiff, Fannie Wilson Roberson, against the Sheriff of Natchito-ches Parish, demanding the payment of the sum of $864.27, being the net amount held in the hands of the Sheriff as the proceeds received from the sale of property at judicial sale.

The facts involved in this matter are simple, but the pleadings and the issues tendered thereby are complex and involved.

In the matter of Fannie Wilson Roberson v. Larry Balthazar et al., there was judgment in the Tenth Judicial District Court of Natchitoches Parish, Louisiana, in favor of plaintiff and against the defendant, Larry Balthazar, in the full sum of $4,000.00 There was further judgment in favor of plaintiff and against the defendants, Larry and Bernie Balthazar, setting aside, voiding and annulling a purported sale of property evidenced by an act of conveyance from Larry Balthazar to Bernie Balthazar. To this extent the judgment of the lower Court has this day been affirmed on appeal by judgment of this Court, La.App., 32 So.2d 482.

As a consequence of the money judgment in favor of Fannie Wilson Roberson against the defendant, Larry Balthazar, who prosecuted a devolutive appeal to this Court, certain personal property, consisting of farm machinery and implements, was seized under a writ of fi. fa. caused to be issued by the judgment creditor, Fannie Wilson Roberson.

The property was seized, advertised and sold by Earl Morris, the Sheriff of Natchi-toches Parish. The sale took place on Wednesday, May 21, 1947, and at the sale the plaintiff in this matter, C. D. Hendricks, was adjudged to be the last and highest bidder, and, as such, the property was adjudicated to the said C. D. Hendricks on his bid of $1,001.00. The costs of the sale, amounting to $136.73, were deducted from the amount bid and paid over to the Sheriff by the purchaser, and the balance of $864.27 was retained in the hands of the defendant Sheriff.

The said Sheriff refused to deliver the property purchased at the judicial sale to the plaintiff herein, and this proceeding to compel delivery was instituted.

The demands of this plaintiff, for delivery of the property purchased, and of Fannie Wilson Roberson, plaintiff in the companion suit, seeking the net proceeds of the sale, are resisted by the defendants, Sheriff, on the ground that there was a prior existing mortgage against the property offered for sale; that the purported adjudication was null and void for the reason that the amount bid was insufficient to discharge the amount of said mortgage with accrued interest thereon.

The mortgage referred to in the Sheriff’s answers in these suits was given by Larry and Bernie Balthazar in favor of Russell E. Gahagan in the principal sum of $1,000.00, with interest at the rate of 8% from date of the execution of said mortgage on April 23, 1946, until paid.

It appears that Gahagan, as the mortgage creditor under the instrument described, intervened in the suit of Fannie Wilson Roberson v. Larry Balthazar, et al., by petition filed on May 16, 1947, in which the said Gahagan, as mortgagee, claimed the proceeds of the sale, to be made under fi. fa., by preference and priority over the judgment creditor. This intervention was withdrawn, over the objection of opposing counsel, on motion of Gahagan made May 22, 1947. On the same date, that is, May 22, 1947, in an action by Russell Gahagan against Larry Balthazar et al., No. 26,217 on the docket of the Tenth Judicial District Court, Ga-hagan prayed for the issuance of an order of executory process and the seizure and sale of the mortgaged property for the payment of his claim. A petition of third opposition was filed in this proceeding by C. D. Hendricks, plaintiff in the suit before us. The said named petitioner and third opponent prayed for the issuance of a writ of injunction restraining and enjoining the Sheriff from proceeding with the sale under executory process. Third opponent further prayed for judgment in his favor and against Gahagan and the Sheriff for various sums as damages. The injunction issued, as prayed for, by judgment of the district Court, on June 24, 1947.

On June 4, 1947, Larry Balthazar brought suit against this plaintiff, C. D. Hendricks, the Sheriff, Earl Morris, and the Clerk of Court, which suit bears No. 26,230 on the docket of the Tenth Judicial District Court, in which he sought the annulment of the sale made under fi. fa. on May 21, 1947, and the erasure of the proces verbal thereof from the records of Natch-itoches Parish. Answer on behalf of defendant was filed in this proceeding, in which pleading the validity of the mortgage executed by Larry Balthazar to Russell E. Gahagan was directly attacked.

Eliminating unimportant technical considerations and stripping the matter to the heart, the issue herein presented to us becomes startlingly clear and simple.

In the final analysis the right of this plaintiff, C. D. Hendricks, to delivery of the property purchased at sheriff’s sale under writs of fi. fa., and the right of Fannie Wilson Roberson, plaintiff in the action against Earl Morris, Sheriff, No. 7121 on the docket of this Court, to the net proceeds of said sale as the judgment creditor at whose instigation the writs of fi. fa. were issued, must absolutely depend upon the determination of the matter of the validity vel non of the chattel mortgage given by Larry and Bernie Balthazar to Russell E. Gahagan, an issue which has not yet been determined by the lower Court and upon which, therefore, we cannot express an opinion.

Under the circumstances this Court does not feel that it is possible to pronounce definitively on these causes. Under the authority of Article 906 of the Code of Practice appellate courts are accorded the right to remand such a cause to the lower Court to the end that a definitive judgment may be pronounced.

Accordingly, it is ordered, adjudged and decreed that this cause be and it is hereby remanded to the Tenth Judicial District Court in and for the Parish of Natchi-toches, State of Louisiana, with instructions that it there be held pending determination of the issues before said Court respecting the question of the validity vel non of that certain mortgage executed by Larry and Bernie Balthazar under date of April 23, 1946, as recorded in Mortgage Book 188, Page 68, and Chattel Mortgage Book 18, Page 482, in the Records of Natchitoches Parish, Louisiana, which issue has been tendered to the said Court by the pleadings in Suit No. 26,217 on the docket thereof entitled Russell E. Gahagan v. Larry Balthazar et al., and Suit No. 26,230 on the docket of said Court entitled Larry Balthazar v. C. D. Hendricks et al.

It is further ordered, adjudged and decreed that all proceedings bearing upon the point above set forth, as and when presented to and determined by the District Court, shall be incorporated in and made a part of the record in this case, after which this cause shall be returned for final determination to this Court, which retains jurisdiction of the appeal herein for such purpose.

Assessment of costs of this proceeding to await final determination hereof.

KENNON, J., absent.


text:
    ROBERSON v. MORRIS, Sheriff.
    No. 7121.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    Watson & Williams and Julian E. Bailes, all of Natchitoches, for appellant.
    Gahagan & Pierson and H. L. Hughes, all of Natchitoches, for appellee.
   HARDY, Judge.

This is an action by rule in which plaintiff seeks to compel the defendant Sheriff to deliver to her the sum representing the net proceeds of a judicial sale made under a writ of fi. fa.

This is a companion suit which was consolidated for trial with the suit of C. D. Hendricks v. Earl Morris, Sheriff, La.App., 32 So.2d 487, and the issues- tendered in the two suits are identical.

Therefore, for the reasons assigned in the opinion this day rendered in the cause above referred to,

It is ordered, adjudged and decreed that this cause be and it is hereby remanded to the Tenth Judicial District Court in and for the Parish of Natchitoches, State of Louisiana, with instructions that it there be held pending determination of the issues before said Court respecting the question of the validity vel non of that certain mortgage executed by Larry and Bernie Balthazar under date of April 23, 1946, as recorded in Mortgage Book 188, Page 68, and Chattel Mortgage Book 18 Page 482, in the records of Natchitoches Parish, Louisiana, which issue has been tendered to the said Court by the pleadings in Suit No. 26,217 on the docket thereof entitled Russell E. Gahagan v. Larry Balthazar et al., and Suit No. 26,230 on the docket of said Court entitled Larry Balthazar v. C. D. Hendricks et al.

It is further ordered, adjudged and decreed that all testimony and evidence bearing upon the point above set forth, as and when presented to the District Court, shall be incorporated in and made a part of the record in this case, after which the cause shall be returned to this Court for final determination.

Assessment of costs of this proceeding to 6 wait final determination hereof.

KENNON, J„ absent.


author: LeBLANC, Judge.’

text:
    NATIONAL LIFE & ACCIDENT INS. CO., Inc. v. VAUGHAN et al.
    No. 2953.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1947.
    Rehearing Denied Dec. 30, 1947.
    See 33 So.2d 101.
    • Taylor, Porter, Brooks & Fuller and Wm. G. Randolph, all of Baton Rouge, for appellant.
    Cecil N. Bankston, of Baton Rouge, for appellee.
   LeBLANC, Judge.’

This is a suit by an insurance company seeking the cancellation of an insurance policy for $1000 which it had issued on the life of Lonnie L. Vaughan and in which the insured’s wife and child were made beneficiaries.

The demand for cancellation is based on the ground that in an application for reinstatement of the policy, after it had lapsed for non-payment of premiums due, the assured had made certain false statements and representations and because of the fraud perpetrated on the insurance company it has the right to have the policy voided.

In defense, the widow for herself and for her child, denied that the assured had made any false statements as alleged by the plaintiff and that the statements complained of were not fraudulent misrepresentations which would give the insurance company the right to cancel. She reconvened and asked for judgment for the full face value of the policy.

The policy had been taken out by the assured when he was domiciled in the State of Mississippi, where he had always resided. It was therefore a Mississippi contract. He died in the State of Tennessee but was still a resident of Mississippi where his widow and his child, the beneficiaries under the policy, were also living, althoitgh his wife was separated from him. After his death his widow moved to Louisiana and became a resident of the Parish of East Baton Rouge and that is why the suit was instituted against her in the District Court of that Parish. It is agreed by all parties however that the contract of insurance as well as the rights of the parties thereunder are governed by the laws of the State of Mississippi and upon the application of the laws of that State depends the recovery of whatever right either may have in this litigation.

The trial judge after hearing the case, without assigning written reasons, rendered judgment in favor of the defendant, rejecting the plaintiff’s demand and then awarded judgment again in favor of the plaintiff on her reconventional demand for the amount prayed for. From that judgment the plaintiff insurance company has taken this appeal.

The policy of insurance had been in existence for a year or more when a regular quarterly premium became due on December 14, 1940. The assured permitted the 31 day period of grace to expire and therefore the policy lapsed for non-payment of that premium. His wife who, as already stated, was separated from him at that time, and who evidently was interested in seeing that the policy was kept in force, called at the office of the insurance company after being advised that the policy had lapsed and she was there told that the assured himself would have to go to the office and sign an application for reinstatement if it was to be maintained in force. She states that at that time she paid the premium that was due and it was accepted by the representative of the insurance company. Nine days after the period of grace had expired her husband went to the same office, where she accompanied him and there, in the presence of a lady employee of the company, the same she had paid the premium to, the application for reinstatement was signed. There is some dispute as to exactly what took place right then but this we will discuss later.

In the application for reinstatement, which is on a printed form, there are statements relating to the assured’s state of health, whether it had been good since his original application and also whether he had been treated by a physician during that time. The information is elicited by stating what exceptions there were, and as it appears in the application, that there were no exceptions, it is upon these alleged representations that the insurance company now seeks to avoid the policy because, it contends that, as a' matter of fact the assured had not been in good health and he had consulted a physician and had been told that he was suffering from a duodenal ulcer which the insurance company maintains was a serious illness and one which he should have disclose.d in his application for reinstatement and that if he had, the reinstatement would not have been effected.

There does not seem to be any dispute concerning what the law of Mississippi is as developed in the jurisprudence of that State on the question at issue in this case. The law was thoroughly expounded by Mr. W. Calvin Wells, a prominent attorney of Jackson, Mississippi. From his testimony it readily appears that there is no statutory law on the subject in the State of Mississippi such as we have in the State of Louisiana, the law there being entirely evolved by the jurisprudence of that State. It is rather simple as we understand it and is to the effect that representations made by an assured in an application for reinstatement of the policy held by him have the same effect as representations made in the original application for the insurance and further under certain conditions, that if he makes any statements regarding the condition of his health or of having consulted a physician which are not true, these are not warranties but merely representations, and there is án important difference between the two.

Mr. Wells states the law to be that a statement regarding a condition of health or consultation of a physician in an application for reinstatement which is not true has the effect of vitiating the policy if the condition of health found to exist and the disease or condition for which a physician has been consulted is one of a serious nature. The same result would not obtain if the condition is one which may be said to be trivial. When asked the direct question whether the failure to disclose a condition of a duodenal ulcer of which the assured had been advised by a physician would have the effect of vitiating the policy, Mr. Wells answered that it would. He does not qualify that statement in any manner and if we accept it at its face value naturally he has decided the case in favor of the plaintiff insurance company according to Mississippi law. We do not believe however that his answer should be accepted in its broad sense as we are firmly of the opinion, considering the testimony in this case, that there may be a serious question whether a duodenal ulcer is a disease of such serious nature as .to undermine the health of an individual or rather is one which does not have such detrimental effect on the human body as to make of such individual a person of unsound health.

First however we will discuss tlie testimony relating to the manner in which this application for reinstatement was signed by the assured in this case. His widow testified that after she was notified that the policy had lapsed, she lost no time in going to the office of the insurance company to see what could be done about it. She had heen paying the premiums because she was the party interested. She and her husband were separated and her husband, we may well assume, was indifferent about the matter. As already stated she paid the premiums on the day that she first went to the office to a lady by the name of Miss Florence Terry who subsequently married and is now Mrs. Donaldson. The amount was something over $7 which Mrs. Donaldson accepted. She then told Mrs. Vaughan to have her husband come to sign , an application for reinstatement. Up to this point her testimony is not contradicted and assuming it to be true it leads to the thought that the insurance company was as eager as was Mrs. Vaughan to have the' policy kept in force. A few days later, Mr. Vaughan went to the office, accompanied by her, and she testified that all that took place then was a request on the part of Mrs. Donaldson for him to sign the applicationwhich he did. Mrs. Donaldson testified by deposition that she elicited the information given in the answers from Mr. Vaughan himself, that what she put in there were his answers, and that the same were read to him and he fully understood each. That of course raises a question of veracity between them but it strikes us that Mrs. Vaughan who was the person directly interested in having this policy reinstated would be in a better position to recall what transpired than Mrs. Donaldson, the agent of the insurance company, who no doubt handles numbers of matters relating to policies of different policy holders each day. Besides, if we accept that part of Mrs. Vaughan’s testimony to the effect that she had gone to the office of the insurance company a few days before to inquire about reinstating the policy and that she then paid the lapsed premium, why should the remainder of her testimony be rejected entirely and that of Mrs. Donaldson accepted instead ?

It is contended that the deceased insured, having signed the application for reinstatement, is bound by the statements therein contained, as he is presumed to have read it before signing. Generally speaking it is a correct statement of law that one is presumed to have read a document which he signs and to know the full import of its contents, but where in the case of an insurance contract such as we have before us, the insurance company ■ itself prepares the policy, the forms of application, both original and those for reinstatement, and all that the insured is asked to do is to sign the document presented to him, we' do not think that he is bound in the same manner as in other contracts. At least under such circumstances liability cannot be avoided by the insurance company solely on the ground that his answers are untrue. That seems to be the law of the State of Mississippi as indicated in the case of Fidelity & Casualty Co. of New York v. Cross, 131 Miss. 632, 95 So. 631.

We do not believe this to be the controlling point in the case, however, as we think the decision depends more on whether the statements contained in the application for reinstatement, assuming that they were made hy Mr. Vaughan, were representations rather than warranties. According to the deposition of Mr. Wells, under the law of Mississippi, if a policy of life insurance contains the entire contract and the statements made by the assured, in the absence of fraud, are deemed to be representations and not warranties, likewise, statements made by him in answer to questions relative to his health and medical attention in an application for reinstatement of the policy are considered representations and not warranties. The difference between the two is well stated in the case of Citizens’ National Life Insurance Co. v. Swords, 109 Miss. 635, 68 So. 920, as follows: “A warranty must be literally true and the materiality cannot be the subject of inquiry. A representation needs only to be substantially true, and if it is not material to the risk, in the absence of fraud, its falsity will not invalidate the policy.”

The policy in this case provides that it contains the entire contract between the parties and in order to determine whether statements made by the insured in the application for reinstatement, in answer to questions concerning his health and medical attention were representations rather than warranties, we have to view them in the light of all the testimony relating to them.

The assured, Lonnie L. Vaughan, had obtained a policy of insurance from this same insurance company some years previous to the one he obtained on December 14, 1937, and which is under contest in this suit. The former policy had lapsed for non-payment of premiums on October 27, 1931. As he was issued the other policy in December, 1937, without any question, apparently, it would seem that the insurance company considered him a good risk. The premiums on the second policy were paid in due time until the one that became due on December 14, 1940.

Some time in the latter part of 1939, according to his wife, the assured had an emotional disturbance of some sort. She says that he did not want to go to a doctor but that she took him to consult Dr. Henry G. Rudner, in Memphis, Tennessee, who, from the testimony appears to be a physician of some prominence in that city. Dr. Rud-ner’s records show that it was on December 18, 1940 that he first examined the insured. He gave him a complete physical examination and his diagnosis was a chronic duodenal ulcer, not acute. He verified his diagnosis by X-ray which showed a deformity of the cap of the duodenum. This deformity, he states, meant a scar resulting from an ulcer. Ulcers of this kind, he adds, are very common and they do not play a major part in the general health or soundness of the human system. It is so common that it is found in patients of sound health. Dr. Rudner operates a clinic and he states that after their physical examination of Mr. Vaughan, they made a stomach analysis, including complete blood studies and allergy studies and came to the conclusion that he had this chronic ulcer and was allergic to certain foods. He further states that with proper diet and the usual medication, he responded to treatment. A careful reading of this doctor’s deposition, and it should be stated here that he was introduced as one of plaintiff’s witnesses, leaves us with the definite impression that he does not consider a condition such as he found the assured in to be one of a serious nature and in fact he makes that positive statement in answer to a cross-interrogatory.

Several other doctors were produced as witnesses by the plaintiff to express their opinion as to the seriousness, vel non, of a duodenal ulcer and whilst some of them said that they considered it a serious ailment, others did not think so, notably among these being Dr. T. C. Oliver who also testified by deposition and in answer to a cross-interrogatory, stated, “It is not incurable, I do not consider it of a serious nature.”

It was more than a year after Dr. Rudner had seen the assured that the application for reinstatement of the policy was made. The doctor says that he responded to the usual treatment and as far as the record shows, he had no further effects from that ailment and lived the life of a normal individual in sound health. The statements contained in the application for reinstatement which he signed on January 24, 1941, concerning the condition of his health and medical attention were substantially true and as he died on November 16, 1941, from a cause wholly disconnected with the condition found by Dr. Rudner in December, 1939, they were certainly not material to the risk. We find nothing in the nature óf a wilful or fraudulent intention on the part of Mr. Vaughan to conceal anything from the insurance company when he signed the application for reinstatement. At most it was such a representation as would not invalidate the policy.

In his deposition, Mr. Wells referred repeatedly to the Mississippi case of New York Life Insurance Co. v. Burris, 174 Miss. 658, 165 So. 116 as authority for what he stated the law of that State was on the question at issue and we take it that when he answered that the Supreme Court of Mississippi would invalidate a policy if it were shown that the assured had misrepresented to the insurance company that he was in good health when in fact he was suffering with a duodenal ulcer, he relied on the holding in that case. Upon reading the facts of that case however it is shown that the application for reinstatement was made on August 31, 1934, that from his wife’s testimony it developed that the assured had suffered from chronic indigestion from the first of that year, that he had been subjected to a general X-ray examination of his entire intestinal tract by a physician, lost weight and gradually got worse and finally died from a cancer of the duodenum on October 13, 1934. On that state of facts we believe that the holding of the court was eminently correct, and it would have considerable weight with us in this case had it been shown that the insured’s death had even a remote connection with the ulcer which was found nearly two years before he died. To the contrary however, the doctors are unanimous in their opinion that his death, from myocarditis, had and could have had no1 possible relation to the ulcer.

We think that the case was properly disposed of by the judgment appealed from and for the reasons herein stated, it stands affirmed.


author: PER CURIAM. PER CURIAM.

text:
    STATE ex rel. DOYLE v. RAPIDES PARISH DEMOCRATIC EXECUTIVE COMMITTEE.
    No. 7155.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 11, 1947.
    Application for Rehearing Dismissed Nov. 21, 1947.
    Certiorari Denied Nov. 24, 1947.

      Polk & Culpepper and J. B. Nachman, all of Alexandria, for appellant.
    K. Hundley, of Alexandria, for appellee.
   PER CURIAM.

This is a proceeding under the provisions of the Primary Election Law, Act No. 46 of 1940, as amended, in which relator, Hiram Doyle, seeks to compel, by mandamus, the Rapides Parish Democratic Executive Committee to certify relator to the Secretary of State as a duly qualified candidate for the office of Police Juror of Ward Six, Rapides Parish, Louisiana, in the Democratic primary election of January 20, 1948.

The undisputed facts which are embodied in the stipulation between the parties are that the Rapides Parish Democratic Executive Committee, meeting on October 8, 1947, called a Democratic primary election to be held on the 20th day of January, 1948, for the purpose of selecting nominees of the Democratic party for certain parish and ward offices, including the office of Police Juror, Ward Six, Rapides Parish, Louisiana ; the qualifying fee and the limit within which notices of candidacy could be filed were fixed in the resolution; on the 13th day of October, 1947, well within the period for qualification, which was limited by the Committee as 5 o’clock p. m. on October 18, 1947, Hiram Doyle, relator herein, filed notice of his intention to become a candidate for the Democratic nomination as Police Juror of Ward Six of Rapides Parish, Louisiana, which notice was filed on a proper blank prepared and furnished by the Committee; that there was filed with the Committee by one C. A. Johnson on October 22, 1947, a protest to the candidacy of relator herein, which protest was answered by relator on October 23, 1947. The Committee at a meeting on October 28, 1947, heard the protest, sustained the same and declared Hiram Doyle ineligible to participate in the primary as a candidate for nomination as set forth.

Under the provisions of the Act governing primary elections Doyle filed this suit, and, after hearing, there was judgment by the Ninth District Court maintaining and making permanent the writ of mandamus, annulling and setting aside the decision of the Rapides Parish Democratic Executive Committee and ordering said respondent Committee to certify Pliram Doyle, relator herein, to the Secretary of State as a duly qualified candidate in said primary election for the Democratic nomination for said office.

Both C. A. Johnson, who filed the protest which is the basis of this action, and the Rapides Parish Democratic Executive Committee were made respondents. From the judgment of the District Court the Committee alone has appealed.

A motion to dismiss the appeal has been filed in this Court on behalf of the relator on the ground that no appeal bond was required or given by the respondent, Rapides Parish Democratic Executive Committee, appellant.

In support of this motion it is argued that the respondent Committee is not such a State board or commission exercising public power or administering public functions as is exempt from the giving of bond under the provisions of Act No. 173 of 1902, Dart’s Statutes, § 1978.

We do not find that the point raised has ever before been made an issue in this State. However, we find that decisions of both the Orleans and the First Circuit Courts of Appeal have construed committees of political parties as being instrumen-talities of state.

In Dastugue v. Cohen, 14 La.App. 475, 131 So. 746, 751, in which case writs were refused by the Supreme Court, the opinion of Judge Higgins expressed the conclusion of the Court in these words: “The duties of party committees and their members are public, and the committees are the instru-mentalities of the state. They are created by law which prescribed their duties and powers.”

In State ex rel. Tuttle et al. v. Republican State Central Committee of Louisiana, 192 So. 740, the per curiam of the Court of Appeal for the First Circuit expressed the opinion that the position of a member of a State Central Committee was not only a public office but a state office.

In line with this course of reasoning, it follows that any of the regularly constituted committees under the Act must be recognized as occupying the status of a public body exercising “public powers or administering public functions” within the provisions dispensing such bodies from giving bond.

For these reasons the motion to dismiss is overruled.

On the merits we are immediately and forcibly impressed with the point raised by counsel for relator to the effect that the alleged “protest” did not set forth any legal ground for the disqualification of relator as a candidate.

The body of the “protest” as filed by the respondent, Johnson, reads as follows: “I hereby protest the qualifications of Mr. Hiram Doyal who qualified as a candidate for Police Juror, Ward Six, Rapides Parish, Louisiana, due to the fact that when he took the oath before the Democratic Executive Committee, he did not possess any real property, and therefore was not a qualified candidate for Police Juror, at the time of filing his qualification.”

The opening paragraph of relator’s answer to the “protest” set forth: “With reference to the protest of C. A. Johnson as to my qualifications to become a candidate for Police Jury member from Ward six, the protest does not contain any legal grounds for disqualifying me as a candidate.”

Thus the issue was squarely raised. The fact that the remainder of relator’s answer to the “protest” alternatively raised other issues as to the validity thereof does not detract from the fact that in effect he excepted to the protest as failing to set forth a cause of action.

It is apparent that the respondent, Johnson, purported to protest the candidacy of relator on the ground of his lack of qualifications for the office of Police Juror as fixed by Act No. 94 of 1894, Dart’s Statutes, § 6393, as follows:

“6393. Qualifications of Police Jurors — ■ The members of the police juries of the several parishes throughout the State, hereafter to be elected, shall possess the same qualifications as members of the House of Representatives and also the following additional qualifications:
“They shall be able to read and write and shall, each, own in his own right or whose wife shall own in her own right property of an assessed value of at least two hunderd and fifty dollars in the parish for which they may be elected.”

And it is equally apparent that the so-called “protest” of the respondent, Johnson, did not negative relator’s possession of the qualifications expressed in the statute quoted.

It would have been eminently proper for the Committee to have declared that the “protest” failed to set forth any ground for the disqualification of Hiram Doyle as a candidate for nomination to the office of police juror. The sole and only ground upon which the alleged “protest” was based was that relator “did not possess any real property”. It is to be observed that the possession of real property is not enumerated as one of the qualifications under the provisions of the law above quoted. And, further, neither is it required that the ownership of property shall be in the candidate himself.

It is plain that the establishment of the only ground of the “protest”, that is, that relator did not possess any real property, would not have justified his disqualification.

The record before us clearly demonstrates the fact that the Committee, which heard the “protest”, notwithstanding the fact that it was acting, in the words of its counsel in oral argument before this Court, “in a semi-judicial capacity”, chose to go beyond the ground of the “protest” as actually filed and based its ultimate decision sustaining the “protest” on facts which were not set forth therein.

The protest in the instant case did not comply with the provisions of the statute governing primary elections, Dart’s Statutes, § 2682.32, Act No. 46 of 1940, § 28, as amended by Act No. 351 of 1946, § 4, which in referring to protests specifically requires that: “The objections to such candidacy must be in writing, and must contain, in detail, the reasons for such objections.” (Emphasis by the Court.)

Not only did relator’s answer to the “protest” before the Committee raise the issue as to protestant’s failure to set forth any legal ground for disqualification, but, on trial of the case before the District Court, relator preserved his rights in this respect by objecting to testimony on the ground that “The protest filed by Mr. C. A. Johnson, one of the respondents, does not negative the qualification of Mr. Doyle to hold office, and that the Committee cannot go any further than the protest as contained in the written document filed as a protest with the Committee.”

In ruling on the objection the learned Judge of the District Court stated: “The court indicates its ruling to the effect that it is of the opinion that the exception is good, but I reserve the final ruling on this until the case is closed and the court decides the merits.”

We think, unquestionably, relator’s objection to the “protest” was well grounded, and, in our opinion, the objection to the testimony as above noted should have been sustained.

In view of the fact that the statute governing the actions of committees with regard to protest particularly provides that protests shall state, in detail, the reasons upon which they are based, and in consideration of the fact that relator objected to the “protest” in the instant case on the ground that the same failed to state any reason for his disqualification as a candidate, we are of the opinion that the Committee erred in pursuing its investigation beyond these bounds and in failing to sustain relator’s exception.

In view of this finding we deem it unnecessary to enter into a discussion of the other points which were raised on behalf of relator.

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

KENNON, J., absent.

On Application for Rehearing

PER CURIAM.

Being of the opinion that in this case, and cases of like character, this Court is prohibited from entertaining or considering an application for rehearing on a judgment rendered by it:

It is, therefore, ordered that the application for rehearing filed herein be and the same is hereby dismissed. Par. (g), Sec. 86, Act No. 46 of 1940; Sec. 28 of Act No. 46 of 1940, as amended by Act No. 351 of 1946, § 4.

KENNON, J., absent.


author: OTT, Judge.

text:
    IVES et al. v. CARR.
    No. 2954.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.
    Rehearing Denied Dec. 30, 1947.
    Henry E. Fallon and John T. Charbon-net, both of New Orleans, and Loret, Percy & Wirtz, of Baton Rouge, for appellants.
    Kizer, Pleaton & Craig, of Baton Rouge, for appellee.
   OTT, Judge.

Plaintiffs, husband and wife, filed a joint petition against the defendant for damages resulting from a fall by the wife on the sidewalk in front of the service station operated by the defendant on April 20, 1940, located at the corner of Dufrocq and Spain Streets in the City of Baton Rouge. The petition alleges that the defendant “negligently and carelessly permitted water, oil and grease to escape from said parcel of ground, flow across said banquette and remain on said banquette.” It is further alleged: “That the said water, oil and grease made extremely slippery that part of said banquette on which said water, oil and grease was as aforesaid.”

It is alleged in the petition that Mrs. Ives was walking northward on said banquette and slipped and fell to the ground on account of the slipperiness of the walk caused by said water, oil and grease. She claims to have suffered an injury to her left shoulder and a severe strain and sprain to her back, which aggravated a previous abnormal condition of her sacrum. She prays for damages in the sum of $10,000 impersonal injuries, and her husband claims damages in the sum of $5,000 loss to the community in the earning capacity of Mrs. Ives, plus the sum of $144.21 for medical expenses incurred on account of her injuries.

The defendant denied any negligence on his part, and also denied that plaintiff, Mrs. Ives, fell as she claims. The defendant made a general allegation of contributory negligence on the part of Mrs. Ives.

The trial court rendered a judgment in favor of defendant and dismissed the suit of both plaintiffs. They have appealed.

Mrs. Ives testified that she was walking North on the west side of Dufrocq Street around 3 o’clock in the afternoon on the above mentioned date, and when she reached a point on the sidewalk opposite the service station of the defendant, she saw some water running from the station across the walk and into the street; that she continued across this water and after she had taken two or three steps in it, her feet slipped out from under her to the right, and she fell on her left side and tried to catch her fall with her left hand; that she crawled to a dry spot on the banquette and when she got up she found her stockings were torn, and her clothes were soiled with water, oil and grease. She told the manager about the fall, and he stated that the negro boy at the washing rack had spilt some oil and he was washing it up; that the manager paid her 79 or 89 cents for her torn stockings, and told her to have her clothes cleaned and he would pay the bill for the cleaning; that later on he paid for this service which was a very small amount. Mrs. Ives stated that there was oil or grease in the water which was coming over the sidewalk from the station but that she could not see the oil or grease in the water until she had started across it. She had passed over water on the sidewalk before, and had not slipped down.

No other person actually saw Mrs. Ives fall but soon after she fell, Mrs. Pittman saw her and testified that the dress of Mrs. Ives was wet and had oil stains on it. When Mrs. Ives reached home shortly after the fall, her husband saw her and testified that her clothes were all greasy and wet; that her stockings were torn and she had water and oil on her left leg and hip, and her shoes were oily.

Several employees of defendant at the service station testified in the case. Mr. Davidson, the manager, stated that Mrs. Ives came to him after the accident and the lower part of her clothes and her stockings were wet, but that there 'was no grease or oil on her clothes. He admits paying Mrs. Ives for her stockings and told her he would pay for laundering of her clothes, but that she said, “never mind, I will take care of that.” He testified that a colored boy was washing down the front of the station with water, and the walk was wet from the water, but there was no grease or oil in it. Mr. Davidson denied that he told Mrs. Ives that the colored boy had spilt some oil and the boy was washing it up. He also denied that he paid Mrs. Ives for cleaning her clothes.

The testimony of Mr. Davidson is corroborated to some extent by other employees who were working around the station and none of these employees saw Mrs. Ives fall, but some of them admitted that they saw her after the fall, and her clothes were wet. All of these employees denied that there was any grease or oil in the water which was running over the sidewalk from the hose pipe. They explained how the grease and oil around the station was taken up with a preparation called varsol. They further stated that the water from the washing rack was carried off in a drain pipe, and none of the water used in washing cars ran across the sidewalk.

The right of plaintiffs to recover depends on whether or not they have shown with legal certainty that there was oil and grease in the water which was running over the sidewalk from the service station. The duty of a person whose property adjoins a street to travelers on the sidewalk is expressed in Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 7, Perm.Ed., § 5077, as follows:

“An owner of property abutting on a street owes the duty to the public to exercise reasonable care to avoid rendering the sidewalk unsafe, and a garage keeper or proprietor of a public service automobile supply station is under obligation to refrain from doing things that will render the adjacent walks unsafe for public travel, and, if he conducts his business in such a manner as to cause the walk to become slippery from gasoline spilled thereon, and unsafe for public travel, he will be liable for injuries resulting therefrom to travelers on the walk.
“Thus, it is the duty of the proprietor of an automobile service station using the street for the removal of waste oil from such service station to see that oil is not left upon the sidewalk, or, if it is so left, to provide some proper protection for the public, and when it neglects this duty, it may be liable to one slipping on the oil for the injuries sustained.
“A garage owner, however, who, in operating automobiles in and out of his garage, uses the sidewalk is not an insurer of the safety of pedestrians in so doing, and in the absence of negligence is not liable for an injury to a pedestrian.”

In support of the principle stated above the following cases are cited: Collais v. Buck & Powers Oil Co., 175 Wash. 263, 27 P.2d 118; Hanlon v. City of Waterbury, 108 Conn. 197, 142 A. 681, and Texas Co. v. Grant, Tex.Civ.App., 179 S.W.2d 1007.

Counsel for the plaintiffs make an effort to show that, even if there was no oil or grease in the water, it was negligence to cause the water from the hose pipe to flow over the sidewalk. As stated in the above quoted extract from Blashfield, the owner of the service station only owed a duty to the public to exercise reasonable care to avoid rendering the sidewalk unsafe. The mere washing of the front of a building and permitting the water from a hose pipe, to flow over the walk is not such an act as to make the walk unsafe for a person exercising ordinary care. In fact, Mrs. Ives admitted herself that she had passed by this station before when water was running over the walk and she suffered no ill consequences. It is a matter of common knowledge that the owners of buildings abutting the sidewalk often use hose pipes to clean or water their premises and this water runs over the walk. It might be that there could be such a quantity of water, coupled with the condition of the walk, as to make such an act negligence.

However, it is not shown in this case that there was an undue amount of water thrown over the walk or that there was an unusual condition of the walk at that point.

The ¿rial judge must have found that there was no oil and grease on the sidewalk. Our examination of the record convinces us that the preponderance of the evidence is to the effect that there was no oil and grease in the water which defendant’s employee was throwing on the station with a hose. Nor do we find any facts which would justify the conclusion that there was anything unusual or out of the ordinary in the methods being used to clean the station with water.

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


author:
DORE, Judge.
      OTT, Judge

text:
    VAUTROT v. MARYLAND CASUALTY CO.
    No. 2944.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.
    Rehearing Denied Dec. 30,1947.

      Edward Dubuisson, of Opelousas, for appellant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellee.
   DORE, Judge.

This is a suit for compensation for total and permanent disability growing out of an alleged accidental injury received by the plaintiff on June 28, 1944, while in the course and scope of his employment by the Aluminum Ore Company. Plaintiff made the Maryland Casualty Company, the insurer of his employer, defendant in the suit. From a judgment dismissing his suit, plaintiff has appealed.

The evidence shows that plaintiff’s employment with the Ore Company began some time in April, 1943, as labor foreman supervising a large number of men; in •order to perform his duties, it was necessary for him to get about the plant, which was extensive, climb up and down ladders or stairs, get in, drive and get out of automobiles, jump ditches and show or instruct the men how to perform the work. His duties also required him to perform arduous or hard manual labor at times.

Prior to June 28, 1944, plaintiff had under his supervision some three hundred men. On that date, the plant had closed down, and the personnel under plaintiff’s supervision had been reduced to about forty men. On the date mentioned, plaintiff, while descending a flight of stairs some 25 or 30 feet long, slipped on grease or oil on the second step from the top and slid all the way down' the steps holding on to the railing to the concrete floor. On his descent, part of his back came in- contact with the steps. When he reached the bottom, his feet were straight and he was lying in a twisted position on his right side. He was red in the face. Plaintiff, at first, did not think that he was injured, but when he tried to get up he realized that he was injured; he was helped up to his feet by Jack Scott, one of his men, who assisted him by holding his arm and took him to the office of Mr. Alfred P. Giroir and sat him down in a chair. Mr. Giroir noticed plaintiff’s abnormal appearance and, after plaintiff’s complaint of having hurt his back coming down the stairs, he, Giroir, told plaintiff to go to the first aid station. Plaintiff at that time was complaining of pain in the pit between his two shoulders.

The plaintiff, on the first visit to the first aid station, complained of pain between his two shoulders and the nurse in charge gave him diathermy treatment on the affected area. The next day, she bandaged the back. Neither he nor the nurse thought much of the injury at that time, he, plaintiff, then believing that he was suffering from a torn or strained ligament. But because of the pain continuing in plaintiff’s back between the shoulder blades, plaintiff received infra-red light treatments and the strapping of his back several times at the first aid station between the date of the accident and September 1, 1944.

The evidence is conclusive that plaintiff, from the date of his fall to his termination on September 1, 1944, when the plant was finally closed, continued to suffer pain between his' shoulder blades. The evidence is also conclusive that after the injury plaintiff was not able to walk around like he had before and was furnished with a truck and a driver to visit the several parts of the plant until his final termination. It is also conclusive that the injury had incapacitated him to perform hard manual labor. On account of the plant’s pending closure within a few weeks or months plaintiff remained on the job, performing such duties as he could while in pain.

At the end of his employment, plaintiff returned to his home in the country in the Parish of St. Landry, still suffering with pains between his shoulders. During his absence "from home, the front of his home had become weedy. A day or two after returning to his home, he attempted to mow his lawn, and while so doing, he immediately felt a severe aggravation of the pains in his back at the same place where it had been ever since his fall. Some three or four days thereafter he consulted his family physician, who applied light treatment and tried to- bandage his back. Not receiving any benefits from the treatment, his family physician then sent him, in the first part of October, 1944, to the Ochsner Clinic in New Orleans, and he was there placed in the medical care of Dr. Guy A. Caldwell. After several subsequent visits to the Clinic, Dr. Caldwell diagnosed plaintiff’s condition as a complete collapse of the body of the sixth dorsal vertebra due to its destruction by a giant cell tumor. On June 4, 1945, Dr. Caldwell performed a serious and dangerous operation of a bone fusion of plaintiff’s spine. Plaintiff made good progress and was dismissed the latter part of June, 1945, with instructions to wear a brace and to remain in bed, on a hard mattress, the greater part of the time at first, and gradually to • sit up with the brace, but not to engage in any standing work for several months. According to Dr. Caldwell, plaintiff, at the time of his discharge, was totally disabled to perform hard manual labor and he would not venture to say how long he would so remain. On the date of trial, Feb. 5, 1946, plaintiff was still wearing the brace, obviously indicating that he was not able then to do the kind of work which he was doing at the time of his falling down the stairs.

Although in defendant’s answer the alleged accident of June 28, 1944, was denied, it is now conceded that plaintiff did fall down the flight of steps on that day. The defendant now contends that the accident merely caused a slight injury or strain which did not prevent him from working for a single day and that his present condition is not due to the said light injury or strain he then received, but is caused by the complete collapse of the vertebra by the giant cell tumor, there being no causal connection between the fall and the collapse of the vertebra. Therefore, there are two questions presented to us, viz.first, whether or not the plaintiff was disabled by the accident, and, second, whether or not the injury aggravated, activated or accelerated a pre-existing tumor of the vertebra, or whether or not if the accident did not produce the result stated, then the tumor retarded plaintiff’s recovery from the injury.

In determining and in reaching a conclusion in this case, being a compensation case, it is important that much consideration should be given to the character of the claimant. We say this because it is often contended by the defendant that the claimant is a malingerer and is faking his injury, pain and claim. However, in this case, there isn’t any suggestion or intimation of plaintiff being a malingerer or faking his injuries.

In this case we find, from the testimony, that plaintiff, prior to June 29, 1944, was a strong, healthy man, forty-two years of age, had been a farmer all his life, had never had any trouble with his back. He is shown to be a man of good character, and it does not appear that he is in any manner trying to impose on the Court. He candidly told what happened to him at the time he sustained the injury on June 28, 1944, and without exaggeration or pretence related how he continued to work at his job at the aluminum plant, regardless of his suffering quite a bit, but hoping all the time that his injury was not serious and that he would get over it in due course of time. He is corroborated in the manner of his fall, his pains, his inability to perform his- former duties and the treatments he received at the first aid station during the period from June 28, 1944, to his termination on Sept. 1, 1944, by two of his coem-ployees and Mrs. Norma Sharp, the nurse-at the first aid station up to August, 1944,. the date of her termination.

The question now arises as to-whether or not the fall could have -caused, plaintiff any continuing disability from. June 28, 1944, to September 1, 1944. That-question is answered in the affirmative by Dr. Guy Caldwell, the only doctor to testify in the case, viz.: “The slipping and fall as has been described would be calculated to produce strain and wrenching in the region of the dorsal spine, because of the patient grasping the hand rail and holding as his weight slid down the steps.” As to the duration of such a strain or wrenching in the region of the dorsal spine the doctor states: “If it amounted to not more than strain or chronic strain, they usually recover in three to six months from such symptoms, although they are chronic ■enough to have some recurring attacks with over-use, over a period of several years.” Thus, we see that by the plaintiff continuing his employment, the doctor’s testimony fully justifies the conclusion that plaintiff did receive, on June 28, 1944, an injury which disabled him to do the substantial duties for which he had been employed despite the fact that he did carry ■ on by his fortitude until he was terminated. As to the contention of the defendant that the accident merely caused a slight injury or strain which did not prevent him from -working for a single day, which contention seems to have been accepted by the trial judge, we find no merit therein. Defendant and the lower court lose sight of the ‘■fact that plaintiff did such work as he could ’under pain. His working under such condition should not mitigate against him. To the contrary, it shows a desire on his part ■not to take advantage of the compensation ■law and he should be commended therefor ■rather than censured. It is now too well ■ settled in our jurisprudence to even cite authorities that if a claimant can substantially do his duties only with pain and -discomfort, he is entitled to compensation for his disability. In our case, the evidence preponderates to the effect that plaintiff, within the purview of the compensation statute, was disabled from performing his former duties up to the collapse of the vertebra on September 7, 1944.

We now pass to the question whether or not the injury received by the plaintiff on June 28, 1944, aggravated, activated or accelerated a pre-existing tumor of the vertebra or had some connection with the collapse of the vertebra.

As previously stated, Dr. Caldwell was .the only doctor to testify in this case. We should consider the whole of Dr. Caldwell’s testimony in the light of the facts stated heretofore and when we do, and we probe his opinion as deeply as we can, we would say that Dr. Caldwell was certain of only one thing and that was that the accident had not caused the tumor, nor did it cause, at that time, the complete collapse of the vertebra. Dr. Caldwell wanted to be fair to the defendant in the case by stating that there was no sound reason from a medical standpoint why he could definitely state that the accident may have aggravated a condition of an injured vertebra. Nevertheless, he wanted to be fair to the plaintiff, also, and would not say that the accident had not activated or aggravated an already existing condition. He would not say that this giant cell tumor which he found to exist at the time of his examination on October 10, 1944, had already started to show itself as a tumor on June 28, 1944, since he says that the rate of growth cannot be known. He does say, however, that on account of the size of the tumor, it would suggest that it had been present for a period of several months. He nevertheless states repeatedly in his testimony that there might have been something there which the accident helped to bring into play and aggravate. If any such condition existed before June 28, 1944, it certainly was not apparent to plaintiff nor to any one else, in that plaintiff apparently was in good health before the accident and never experienced any trouble whatsoever in that region of his back. He had had two recent automobile accidents which produced no injury to that part of his body and, in fact, it is not suggested by the defendant that the accidents may have caused his sufferings after June 28, 1944.

It is true that Dr. Caldwell was put on the stand as plaintiff’s witness and plaintiff is bound by any statements he may have made whether they expressed any doubt as to the real cause of plaintiff’s injury or not. It is on these statements defendant so strongly relies and upon which the trial judge based his judgment. Yet taking the doctor’s testimony as a whole there remains several answers given by the doctor to direct questions by counsel for plaintiff which, in our opinion, reflect the stronger opinion, in view of the symptoms complained of by the plaintiff from the date of the accident to the time the doctor saw him, that there was a causal connection between the accident of June 28, 1944, and the condition the doctor found which admittedly is a disabling one. We refer particularly to those answers given by him in his deposition without quoting them extensively. After expressing an opinion that either one or two things may have happened, he is asked the question “In either case, there would be a definite relationship to a greater or less extent, between the fall and the tumor?” to which he answers: “Yes, if there were continuing symptoms from the time of the fall through the time of the severe symptoms which indicated the actual collapse of the vertebra, you would have to think of the two as being related.” Aside from that opinion expressed from a medical viewpoint, to us laymen this is the most reasonable hypothesis and, in the absence of any other hypothesis on which to base the real and actual cause of plaintiffs condition, we say it is sufficient evidence to support plaintiffs claim.

In the case of Lowery v. W. Horace Williams Co. et al., 8 So.2d 704, 705, we stated: “If there is found to be an accidental back injury which brought on the disability, the fact that the injured employee cannot have the doctors agree on its exact cause cannot deprive him of the compensation which is otherwise due him under the compensation statute, Act 20 of 1914 and its amendments.”

In the case of Crier v. Kent Piling Co., 12 So.2d 472, 474, we stated: “It is true that a compensation claimant must connect his disability with the accident by legal proof and with reasonable certainty, but he is not required to produce such ironclad proof as would exclude entirely any other theory or hypothesis as to the cause of the disability.”

The following cases are to the same effect: Anderson v. Louisiana Oil Refining Co., 16 La.App. 294, 134 So. 343; Hennen v. Louisiana Highway Commission, La.App., 178 So. 654; Christy v. Brown Paper Mill Co., Inc., La.App., 27 So.2d 917.

In this court, defendant cites and relies upon the cases of Rhodes v. American Insurance Co., La.App., 27 So.2d 388, and Barnes v. Dixie Drilling Co., La.App., 31 So.2d 292. Without discussing these cases, the mere reading of these cases clearly shows that they are inapposite to the case at bar. To the contrary, regardless of what the defendant says in its brief, we find the cases cited by us to be applicable to this case and are in point.

Our conclusion therefore is that the plaintiff’s disability is caused by the accident which he sustained on June 28, 1944; if not the original cause of his condition then that there is a causal connection between the said accident and the collapse of the vertebra. In either event, plaintiff is entitled to recover compensation at the rate of $20 per week, not exceeding 400 weeks.

Plaintiff was paid wages in excess of the weekly compensation due him from June 28, 1944, to September 1, 1944. Defendant is entitled to a credit of the number of weeks between that period, that is, nine weeks.

The evidence shows that plaintiff has incurred medical expenses far in excess of the maximum amount allowed under the compensation act and he is therefore entitled to recover such maximum amount, that is, $500.

For these reasons, it is ordered that the judgment appealed from is hereby annulled, reversed and set aside.

It is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, Louis Earl Vautrot, and against the defendant, Maryland Casualty Company, granting compensation to plaintiff at the rate of $20 per week from September 1, 1944, for a period not exceeding 391 weeks, with 5% per annum interest thereon on each past-due installment until paid;

It is further ordered that there be judgment in favor of plaintiff against said defendant in the further sum of $500, with 5% per annum interest thereon from judicial demand until paid. All at the costs of defendant.

Reversed and rendered.

OTT, Judge

(dissenting).

I can find no error in the conclusion of the trial judge to the effect that plaintiff has failed to prove with reasonable certainty a causal connection between the alleged back injury and the tumor in plaintiff’s back which was the direct cause of whatever disability he suffered after he severed his connection with the company and ceased to receive his wages. Doctor Caldwell stated that in his opinion the back injury which plaintiff recited could not have caused a tumor in the vertebra. The doctor stated that this kind of tumor is a growth, and there is no definite proof that trauma initiates such a tumor, and he did not think the tumor in plaintiff’s back was caused by trauma. We therefore must eliminate the proposition that the back injury caused the tumor.

The strongest part of plaintiff’s case is presented under his theory that the back injury caused a pre-existing tumor in this vertebra to become aggravated or accelerated by reason of the injury. This theory of course goes on the assumption that a tumor had formed or was forming in this vertebra at the time of the back injury. A reading of Dr. Caldwell’s opinion on this point would not justify the conclusion that plaintiff had a tumor at the time of the accident, nor that the accident aggravated a diseased condition of this vertebra. The doctor said on this point: “I cannot know whether the tumor was present and growing to some extent at the time of the accident, and whether its growth was faster or not after the accident; and as far as the histories related to me, there is nothing to give me a clue that it hastened the growth of the tumor or immediately precipitated the collapse at all.”

The doctor was given a hypothetical question based on the evidence as to the nature of the" accident and was asked the question whether or not there was any causal connection between the alleged accident in June, 1944, and the condition of pathology that he found. His answer was as follows: “No, I doubt it very much. The accident caused certain symptoms, but we are quite sure it didn’t cause the tumor, and there were certain symptoms, as I understand it, that continued up to the time that he became disabled and we knew that he had a tumor; yet those symptoms were those that might have happened or might have been the result of a severe strain in a normal spine up to the time this sudden severe collapse came on, so I think it rather doubtful that there is much direct connection.”

The most that can be said of plaintiff’s proof is that it shows a probability of a causal connection between his fall in June, 1944, and the collapse of the giant tumor several months later. While much liberality in favor of an injured employee has been shown in construing and applying the compensation law he has never been relieved of the necessity of proving his claim with reasonable certainty. As we said in the recent case of Barnes et al. v. Dixie Drilling Co., 31 So.2d 292, a judgment for compensation cannot be based on probabilities, and, in my opinion, that is all the plaintiff has shown in this case.

I therefore respectfully dissent from the majority opinion.