author: TALIAFERRO, Judge.

text:
    LEON v. NEAL et al.
    No. 7143.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1948.

      Lincoln Jeanes, of Bossier City, for ap•pellant.
    Campbell & Padgett, of Benton, for ap-•pellee.
   TALIAFERRO, Judge.

Plaintiff’s automobile, a Chevrolet sedan, was somewhat violently rammed from the •rear by the Ford coach of Mrs. Moses S. .Martin, while traveling easterly on the bridge over Red River between the City of Shreveport and Bossier City, Louisiana. Both cars were damaged. Plaintiff’s car was being driven by himself and Mrs. Martin’s car was being operated by her son and agent, James W. Neal. The accident occurred about l.:30 A. M., January 3, 1947. Plaintiff sued for estimated cost of repairing his car and charges, in general terms, that the collision occurred because of the negligence of Neal, but specific acts of negligence are lacking. Neal and his mother are impleaded as défendants.

The defendants deny that the collision occurred from any act of negligence on the part of Neal and attribute same solely to the carelessness and negligence of plaintiff, himself. They aver that both cars were traveling at a moderate speed, about forty feet apart while crossing the bridge on a slight down-grade; that plaintiff, without signal or warning, suddenly applied his brakes and came to a stop against the edge of the sidewalk on the south side of the bridge used exclusively ■ by pedestrians; that due to the short distance between the cars and ice on the bridge’s surface, Neal failed in his effort to stop his car in time to avert the collision. Defendants reconvened and sued plaintiff for the amount expended to repair the car.

The lower court rejected the demands of all parties, giving brief written reasons therefor. Plaintiff, only, appealed. As defendants did not appeal and have not answered the appeal perfected by plaintiff, the judgment rejecting their reconventional demand cannot be considered here.

After summarizing the pleadings and the facts, the trial judge assigned the following reasons to support his judgment, to wit:

“The evidence leaves in doubt the question of whether or not plaintiff’s car had stopped or merely had slowed - down. Plaintiff says that he slowed the car to see about his lights. Whether or not he had entirely stopped or simply had slowed the car down, it is my opinion that it was negligence on his part to do this without giving any warning of his intention. I am also of the opinion that the defendant’s negligence in not having his car under such control that he could stop it in time to avoid an accident, contributed to the happening.
“My conclusion therefore, is that the accident and resulting damage was caused by the combined, concurrent negligence of the drivers of both cars, which continued down to the time of the collision, and in this situation neither party can claim any award from the other.”

There were no witnesses to the accident save the two drivers. The only material conflict in their testimony relates to the position of plaintiff’s car when rammed. Plaintiff admits he was reducing his speed —slowing down — preliminary to stopping in order to determine if his lights were burning. Neal is positive plaintiff had stopped his car suddenly. Plaintiff does not contend that he gave any signal of his intention to stop or to slow down. The locus was well lighted. Visibility was very good.

As found by the lower court, plaintiff’s action in failing to give a signal or warning of his intention to slow down and ultimately stop, even though he had not come to stop completely, clearly was an act of negligence. The rule of the road applicable to motor travel in a city or town is equally applicable to traffic upon a bridge of the character and location as that whereon the accident occurred.

Defendant Neal testified, and he is not contradicted by plaintiff, that simultaneously with plaintiff stopping his car, he, Neal, was forced to pull his own car to his right in order to avert a head-on collision with a car coming toward him from the east; that this shift in position placed his car upon ice that had accumulated along the side of the pedestrian walk; that due to the presence of the ice his brakes were not as effective as they would otherwise have been, and for this reason he was unable to stop his car before running into that of plaintiff.

Plaintiff argues that Neal was traveling too close to him. We do not think so. A motorist traveling in a city, town or over a bridge on which traffic is heavy, violates no law by following another motor vehicle at a distance of forty feet, or thereabout. If this were not true, it is obvious that the rapid progress of such motor traffic would be unreasonably retarded with resulting congestion.

Plaintiff cites and quotes from cases wherein the sudden emergency doctrine was applied. In those cases it was held that a motorist should not follow another so closely that he could not stop his own vehicle before running into the forward one should a sudden emergency arise that would force the forward car to instantly stop. It is clear these cases- are not applicable here because the emergency was created by the negligence of the forward motorist. There existed no condition or circumstance that made it necessary for him to stop his car quickly and without giving the proper signal.

Granting that Neal was to some extent not as careful as he could have been, the fact remains that there would not have been a collision had plaintiff not suddenly reduced the speed of his car or stopped same without giving any signal of his intention so to do. His negligence surely was the proximate cause of the accident.

For the reasons herein given, the judgment appealed from is affirmed at plaintiff’s cost.


source: Caselaw Access Project

author: KENNON, Judge.

license: Public Domain

text:
    O’BANION v. HILLYER-DEUTSCH-EDWARDS, Inc.
    No. 7166.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1948.

      Gahagan & Pierson, of Natchitoches, for appellant.
    Thompson, Lawes & Cavanaugh, of Lake Charles, for appellee.
   KENNON, Judge.

In November, 1946, plaintiff, as an employee of defendant, was engaged in driving a team of mules and while he was hooking a tong to a log, one of the mules kicked him on the forehead. He was paid compensation for five and a fraction weeks and dismissed by the doctors employed by defendant to treat him as able to return to work.

After going to Jasper, Texas, where he employed counsel and was examined by a physician there, he filed this suit for compensation at $20 per week for a period not exceeding 400 weeks.

The petition alleges that:

1. His skull was fractured when the mule kicked him.

2. His eyesight has been materially affected by the blow to the head.

3. He suffered internal hemorrhage to his right ear and has been partially deaf since the accident.

4. Both sides of the jawbone were fractured, which has caused him pain, suffering and disability.

5. He has suffered edema of the brain, which has caused him deafness and throbbing headaches.

The defendant in answer admitted the employment and on the trial of the case admitted that plaintiff was injured on November 25, 1946 and had been paid com pensation to include January 4, 1947, at which time defendant contended that he was completely recovered and able to return to work.

This is an appeal from a judgment of the District Court rejecting plaintiff’s demands.

The extent of plaintiff’s disability is the single major point of controversy. The defendant contends that plaintiff suffered no permanent injury and was able to return to work when discharged by the doctors on January 4, 1947. On the contrary, the plaintiff urges that he is totally and permanently disabled.

For plaintiff, Dr. J. N. Seale, a physician residing at Jasper, Texas, testified that he made a single examination of plaintiff on February 7, 1947; that his examination revealed a long, healed scar on the right side of plaintiff’s forehead, extending from the hairline to the right upper eyelid; that the plaintiff had ptosis of the right eyelid; that plaintiff’s right eye was abnormal to the extent that there was a marked photo-phobia (fear of lights) and that the distant vision of the right eye was abnormal to the extent of 20/50. He further testified that there was evidence of an old fracture of the jawbone near the joint. With reference to the skull, he testified that “both anterior and posterior lambdoid sutures of the skull were markedly widened.” He testified that the blow “would cause swelling of the brain” and “it would widen the suture'lines and that the bone plates (of the skull) would pull apart.” He found no fracture of the skull but testified that the x-ray picture showed an abnormal separation in the bony structure of the skull, not caused by the kick but coming later as a result of the brain’s swelling to such an extent that it forced the separation or widening between the bones of the skull.

When plaintiff was carried to the sanitarium at Many, Louisiana immediately after the accident, he was attended by Drs. F. X. Letarde and S. F. Fraser, who testified that during the following four or five weeks they re-dressed the wound, removed the sutures and the wound healed, and that he was discharged by them at the end of approximately five weeks as able to return to work.

Drs. Letarde and Fraser made x-ray pictures soon after the injury in November, 1946 and' again in April, 1947. There was no testimony from either plaintiff’s or defendant’s medical witnesses that any of these x-rays showed that the skull was fractured when the mule kicked plaintiff as was alleged in paragraph 10 of his petition. Likewise, there was no proof that the injury caused “an internal hemorrhage to his right ear” or that “both sides of the jawbone was fractured” as set forth in paragraphs 12 and 13 of plaintiff’s petition.

On the question of whether swelling of the brain could cause widening at the suture points or separation of the skull bone, Dr. Fraser testified: “It is a known scientific and medical fact that the skull does not give.” He further testified: “Edema can’t cause separation of sutures in the human. It can occur in prenatal cases. These sutures or that bone is interwoven— interlaced. The bone is interlocked just as some mechanical unit was brought together to make it strong.” He concluded that in his opinion it was impossible for edema to cause separation of the sutures.

Drs. Letarde and Fraser testified that neither the November, 1946 or April, 1947 x-rays revealed any separation of the bones of the skull. Both of these doctors testified that in their opinion, the x-ray pictures introduced by plaintiff also showed no separation of the bones of the skull.

The fact that plaintiff’s scalp was cut and peeled, back indicates that the blow was glancing rather than direct in character. Drs. Letarde and Fraser had the better opportunity of observing plaintiff’s condition, particularly in the days following the injury. Dr. Fraser testified that he found no evidence of excessive blood pressure ’or unusual eyeground and that these findings, in his opinion, ruled out any marked edema. Both these doctors testified that they found no ptosis of the right eyelid.

Dr. Seale did not see plaintiff from the date of the examination until the trial and' his principal knowledge of plaintiff’s condition was obtained from the history given him by plaintiff.

The testimony of plaintiff and lay witnesses introduced by him was that he was always healthy and able to work prior to the November injury, but that .since that time, he had complained of his head and stated to various people that He was unable to do hard manual labor. While we are reluctant to disbelieve plaintiff’s own-testimony that since the' injury he has suffered headaches and been unequal to a return to work, the testimony in the record fails to substantiate ,any of the several major injuries and resulting conditions set forth as the basis of his claim for total and permanent disability. The petition- alleges' that plaintiff’s “skull was fractured when the mule kicked him.” There was no testimony at the trial that plaintiff’s skull was fractured when the mule kicked him as thus alleged. The further fact that plaintiff’s petition sets forth that both sides of the jawbone were fractured and yet made no complaint of this sort to any of his doctors or made other proof of such injury, also indicates a tendency to overstate and overplay his injuries and the resulting disability.

On the question of plaintiff’s major claim, that the blow caused an edema of the brain, which condition forced a widening of the sutures and separation of the skull bones, we find that the preponderance of the evidence is with the defendant rather than the plaintiff.

On cross-examination, plaintiff testified that he had received $1,100 in settlement of a compensation claim with a former employer. His wife placed the time of this former settlement as 1944. The record does not disclose what portion of plaintiff’s body was injured. Certainly the fact that a workman has received compensation for an .earlier injury does not disqualify him from recovering compensation from a new injury if same is established by competent evidence. However, in a cas^ where the determination of the extent of injury depends largely upon the statement of the plaintiff, the fact that he has received a prior compensation settlement may be taken into consideration along with the other evidence in determinating whether or not the new claim is well founded.

The District Judge, who had the benefit ■of seeing and hearing the witnesses and personally observing the plaintiff, gave judgment for defendant. Having found the record sustains this judgment, it is affirmed, with costs.


text:
    STEWART v. NATCHITOCHES COCA COLA BOTTLING CO.
    No. 7150.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1948.
    Polk & Culpepper, of Alexandria, for appellant.
    Gahagan & Pierson, of Natchitoches, for appellee.
   KENNON, Judge.

Plaintiff sued the Natchitoches Coca Cola Bottling Company for $1500 damages allegedly resulting from his drinking the •contents of a bottle of Coca Cola manufactured by defendant. Plaintiff alleged that he was very thirsty and started drinking the contents of the bottle very hurriedly; that, having drunk most of the contents, he discovered that there was “something thick and slimy” in his mouth, which he spit back into the bottle; that he did not know what foreign substance there was in the Coca Cola, but whatever it was made him nauseated and “deathly sick” and that he was sick for several days; that he lost ten days work at $4.50 per day and incurred a doctor’s bill of $10.

Defendant in answer set up that its machinery for the bottling of Coca Cola is the most modern and expensive machinery available; that the ingredients used are of the best in quality that can be procured and that same are handled in the most modern and sanitary manner; that it employs competent help and maintains a system of washing, bottling and checking each bottle before delivery. This system includes the washing and sterilizing of each bottle before the syrup is placed in the bottle, and that after the syrup and water are mixed and the cap placed, each individual bottle is thoroughly inspected before it is cased and placed on the racks for distribution, and that it uses the same methods of cleaning its bottles, bottling its drinks and inspecting the bottled mixture as is used by the best and most up-to-date bottling plants in the United States. Defendant denied the allegations of plaintiff’s petition and averred upon information and belief that “there was no foreign substance of any type in the bottle of Coca Cola which plaintiff drank, if, in fact, he drank any at all, which is not admitted, but is specially denied. It shows if, however, there was any substance of any nature in said bottle, that it was placed in there either by plaintiff or some other party.”

_ The trial judge gave judgment in favor of plaintiff for $150. Defendant appealed. Plaintiff answered the appeal praying that the judgment be increased to $600.

Mr. R. A. Pourcheu testified that he ■ operated a store in Natchitoches Parish; that he had known plaintiff some ten or twelve years and that on the afternoon in question, plaintiff came in the store and served himself a Coca Cola; that “after a while” he noticed that plaintiff was gagging and caughing, and, after running to the door, came back with some “stuff” in his hand, which compared to “mothers in vinegar,” he said it was “thick, reddish and slimy, thick as apple jelly.” He stated that he did not look in the bottle.

Plaintiff’s testimony was that he was an employee of the Department of Highways; that he went into Mr. Pourcheu’s store about four or five o’clock on a hot afternoon, purchased a Coca Cola and “just turned it up and drank it down”; that he discovered something in the bottle besides Coca Cola, that he swallowed some of it and ran to the door and spit it out.

A fellow employee said he “saw the stuff” when plaintiff ran to the porch to spit it out; that it looked like “soaked rubber, crummy slimy stuff,” but when asked, “Did you look at it pretty closely?” he replied, “No sir, I was on the steps.”

Plaintiff testified that he vomited about “a quarter from the store, again at the barn about a mile away,” and that he vomited for two days after the occurrence; that his weight was about 287 pounds; that after drinking the contents of the Coca Cola bottle, he lost forty or fifty pounds.

On cross-examination, plaintiff admitted that he went to the highway barn the following day and was equivocal on the point as to whether he drew pay for that day and as to whether he took sick leave on the following Monday, Tuesday and Wednesday, for which he drew pay.

Plaintiff introduced Dr. J. M. Brown of Campti, Louisiana, who testified that plaintiff came to his office and that he was “partly nauseated and in a weakened condition caused by extreme nausea.” He said that plaintiff stated that he had “drunk a ‘coke’ ” the day before and that “something got in his mouth, he didn’t know what it was.” He said that plaintiff returned three days later and again six days later; that he was suffering from a “physical weakness, the nausea had subsided, but he was weak and run down.”

Defendant introduced no evidence, but counsel for plaintiff and defendant agreed that the Court should consider the testimony of Mr. Ted Beasley, which was given in the case of Wade Moore v. Same Defendant, 32 So.2d 347.

The testimony of Mr. Ted Beasley, plant foreman in defendant plant, as given in the above case, was that when empty cases are returned, the broken bottles are removed and the remaining empty bottles are sent through the washer or soaker. After-wards, employees check them for anything such as broken necks, then they are carried to the “prerinse” where a pressure spray of water is forced down the bottles to get any substance that did not come out in the soaker; that the bottles are then run through the “No. 1 caustic soda tank” which contains caustic soda at 122 degrees temperature and then.to the No. 2 caustic soda tank which contains a 3% solution of caustic soda at a temperature of 145 degrees; thence to the No. 3 caustic soda tank and from there to the fresh water tank, thence to the rinsing tubes, which contain an arrangement that fits over the top of each bottle and forces water into the bottom of each from a pressure jet. From there the bottles go to the inside rinsing tubes with brushes that work inside the bottles and there in a No.. 3 rinsing spinner of the same sort and finally an inside rinsing spray; that after passing a final inspection, they go to the “syrupers,” which feed the Coca Cola syrup in from an overhead stainless steel tank through a wire screen filter; that the carbonated water is then placed into the bottle after passing through a paper disc and a cloth filter. The bottles then go to the crowner, which is 12 to 15 inches distant from the spot where the carbonated water is inserted; that the bottles then go through the “mixer” which simply turns the bottle over and thence to the “accumulative” where there is an inspection by three men as the bottles pass on the “accumulative table” in front of high powered bulbs.

The testimony does not establish that the Coca Cola bottle purchased by plaintiff contained substance of a poisonous nature, or that plaintiff’s drinking from the Coca Cola bottle caused whatever upset condition plaintiff may have suffered.

The tendency to exaggerate in plaintiff’s petition is shown by noting that, while his petition alleges “that he lost ten days work at $4.50 per day,” his own admission on cross-examination was that he stayed away from work only three days, during which time he didn’t stay in bed but “just laid around.” After three days of “taking it easy” during which time he was paid as a part of his eighteen days yearly sick leave, he returned to work and lost no pay. In fairness it should be stated that he testified that for several days he did not do real work but just drove the truck.

The evidence in the record as to plaintiff’s consumption of foreign substance from the bottle and his alleged disability does not establish his case and is insufficient to form the basis of a judgment against the defendant.

For the reasons assigned, the judgment appealed from is reversed and plaintiff’s suit is dismissed at his cost.


text:
    HARDAWAY v. HILBURN.
    No. 7137.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1948.
    Morgan, Baker & Skeels, of Shreveport, for appellant.
    Meadors, Shaw & Meadors, of Homer, for appellee.
   KENNON, Judge.

Plaintiff filed this suit to recover damages to his automobile resulting from a collision with defendant’s car at a road intersection in Claiborne Parish, Louisiana. Plaintiff alleges that he was traveling the Springhill-Haynesville highway at a speed of 25 miles an hour and while continuing to travel on his own side of the road, made a right turn into the Millerton Road; that he was then confronted by the defendant’s car coming around the curve in the middle of the Millerton Road. Plaintiff alleges that he turned his own Ford car to the right as far as possible and that defendant, on the contrary, turned his Pontiac to the left, causing the two cars to collide on the plaintiffs right side of the road. The plaintiff further alleged that defendant offered to pay for the repair of plaintiff’s automobile.

The defendant denied the acts of negligence charged by plaintiff and alleged that he brought his Pontiac to a stop on his right side of the center of the Millerton Road just two car lengths from the intersection, and that plaintiff, traveling at a speed of 30 miles an hour, swung his Ford to the left and drove directly into the left front of defendant’s car. He asks for judgment in reconvention for damages to his own car.

From a judgment for plaintiff and rejecting the reconventional demand, defendant prosecutes this appeal.

After the accident, defendant’s car was in the center of the road while plaintiff’s car had its two right wheels in the ditch on its right side of the road.

We find from a study of the testimony that the collision occurred in the curve at the -road intersection and, that the view of both drivers was obstructed by weeds growing in the corner of the intersection. The accident occurred in daylight on a clear day and we conclude that the plaintiff was not guilty of negligence in rounding "the curve on his own side of the road at a speed of approximately 25 miles per hour, and that the proximate cause of the collision was the negligent act of defendant in rounding the same curve on the wrong side of the road at approximately the same speed.

Defendant, after the accident, went to nearby Haynesville, Louisiana and brought back with him to the scene of the accident,- R. V. Stewart, owner of the garage where both cars were later repaired, and Sam Sale, Town Marshal of Haynes-ville, Louisiana. After an examination by all parties of the scene of the accident, the defendant asked plaintiff if he would be satisfied to have his car fixed and plaintiff replied that he would be satisfied. The fact that defendant, after a trip to Haynes-ville and after bringing the Town Marshal to the scene of the accident, asked plaintiff if he would be satisfied to have his car repaired and made no claim for his own damages, does not constitute a direct admission of liability. -However, it is corroborative of the other testimony that the accident was caused by defendant’s negligence.

The highway act makes the wholesome requirement that the drivers of vehicles proceeding in opposite directions shall each yield at least one-half the main traveled portion of the road for a distance of 200 feet before meeting. In order not to risk violating this rule, it is. incumbent upon the driver negotiating a curve, where he cannot see the road for 200 feet ahead due to obstructions, to-keep on his own side of the road. A motorist entering a blind curve has no right to “take a chance” that he will not meet an oncoming car. When a driver, as did the defendant in this case, comes around a curve on the wrong side of the road, he is-responsible for the damages occasioned by his negligence.

Defendant, in his reconventional demand,, charged that plaintiff was traveling at an excessive rate of speed; that plaintiff failed to maintain -a proper lookout and' that plaintiff drove to his left of the center of the road.

Our examination of the record convinces us that plaintiff was driving at approximately 25 miles an hour and on his own side of the road; that he observed defendant’s car as soon as it came into view and! turned his own car to the right in an unsuccessful effort to avoid the accident. Defendant’s fourth charge was that plaintiff drove his car “into a parked automobile.” Under our finding that defendant’s car was moving at the time of the collision, this charge passes out of the picture. We are further strengthened in our finding that plaintiff did not run into defendant by the fact that the front end of plaintiff’s car completely escaped damage; the record showing that the front fender of defendant’s car struck the left side of plaintiff’s car, damaging defendant’s front fender and leaving the front of plaintiff’s car entirely undamaged. The reconventional demand was properly rejected. .

Plaintiff contends that defendant, instead of turning his car to the right upon observing the emergency, for some unexplained reason made a further turn to the left and struck plaintiff’s car. Since the front end of plaintiff’s car was not struck, there is some likelihood that this did happen. Under our finding that defendant was already on the plaintiff’s side of the road and that this was the proximate cause of the accident, we do not find it necessary to pass upon this point, upon which the evidence is conflicting.

Defendant cites the case of Sexton v. Stiles, 15 La.App. 148, 130 So. 821, in which this Court laid down the principle that it is the duty of the driver, when the vision of the road ahead is obstructed, whether by curve or road contour or anything else, to bring his car down to such speed as to have it under such control that he can stop within the distance that he can see an obstruction ahead. We do not believe that even a strict application of the principle laid down in the Sexton v. Stiles case would require a motorist to bring his car under such control when rounding a curve that he could avoid being struck by an automobile moving toward him on the wrong side of the road. When defendant rounded the curve on the wrong side of the road, plaintiff might well have been struck even had his car been going at a snail’s pace or perchance had been brought to a complete stop.

In the case of Manley, et al. v. Hammons, et al., La.App., 20 So.2d 817, cited by defendant, plaintiff was charged with contributory negligence for not taking steps to avoid striking an automobile which she observed approaching from an opposite direction 300 feet distant and proceeding at an not excessive rate of speed but on the wrong side of the highway. In the case at- bar, plaintiff had no such prolonged opportunity to observe that defendant was on the wrong side of the road.

The judgment is affirmed, with costs.


author: DORE, Judge.

text:
    THOMPSON’S SUCCESSION v. CYPRIAN.
    No. 2990.
    Court of Appeal of Louisiana. First Circuit.
    March 9, 1948.
    Rehearing Denied April 12, 1948.

      Saal & Blackwell, of Covington, for appellant.
    Gordon Goodbee, of Covington, for ap-pellee.
   DORE, Judge.

This is a petitory action involving the Northwest Quarter (NWJ4) of the Southeast Quarter (SE%) of Section 33, Township 4, South of Range 10, East, situated in the Parish of St. Tammany. Plaintiff sets up its title deraigned from Eli Richardson, who patented the property from the United States’ Government. In 1914, there was constructed a public road running northwest to southeast, across the property, the eastern portion containing 20.60 acres and the western portion containing 15.10 acres. The plaintiff alleges that defendant is in possession of two disconnected portions of the western portion of the property without any title and without any right to remain in possession thereof. The defense is the prescription of thirty years.

The trial of the case resulted in a judgment in favor of the plaintiff and against the defendant recognizing the plaintiff as owner of all of that property which is east of the public road, and a further judgment in favor of the defendant and against the plaintiff, recognizing the defendant as owner of all the property which is west of the said public road. Defendant has appealed. Plaintiff has answered the appeal, praying that the judgment be reversed _and it be recognized as the owner of the entire tract. In the alternative, it prays that the judgment be amended by reducing the ownership of defendant to a small area of land immediately surrounding defendant’s dwelling house.

There is no dispute as to the chain of titles under which the plaintiff claims the ownership of the property, and the discussion is therefore restricted to the question of prescription.

“The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith.” Revised Civil Code, Article 3499. “The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.” Revised Civil Code, Article 3500. “The possession necessary for this species of prescription, when it has commenced by the corporal possession of the thing, may, if it has not been interrupted, be preserved by external and public signs, announcing the possessor’s intention to preserve the possession of the .thing, as the keeping up of roads and levees, the payment of taxes, and other similar acts.” Revised Civil Code, Article 3501. “A man may even retain the civil possession of an estate, sufficient to prescribe, so long as there remain on it any vestiges of works erected by him, as, for example, the ruins of a house.” Revised Civil Code, Article 3502. “How favorable soever prescription may be, it shall be restricted within just limits. Thus, in the prescription of thirty years, which is acquired without title, it extends only to that which has been actually possessed by the person pleading it.” Revised Civil Code, Article 3503.

From the testimony in this case, it is established that in the year 1902, Eli Richardson, a brother of defendant, was the owner of the property involved in this litigation. At that time he was residing thereon and had all of the property under a rail fence or enclosure. In the year 1902 Richardson moved away and abandoned the property to the defendant and never returned. The defendant from then on assumed the ownership of the property, continued to reside on the property, cultivated the whole thereof, sold timber therefrom in 1903, kept up the fences thereon until' the year 1914, when a public road was built across the property. Thereafter, she abandoned the keeping up of the fence on the east side of the road, -because she was unable to keep it up. There were fires nearly every year, burning the sap and portion of the trees. Due to the abandonment of the fence, the fence deteriorated and rotted. However, there was evidence of the fence as late as 1936. As to the west side of the road, the evidence is conclusive that defendant actually and physically remained in possession of the property until this suit was filed.

Thus, it can readily be stated that certainly in 1903, when defendant sold some of the standing timber to a nearby sawmill, she was actually and physically in-possession of the entire tract as. owner. She assumed the ownership of the entire property which was then under enclosure.. So, when her actual possession without title-so began, the boundaries of her possession, were fixed and that possession contained under the Articles of the Civil Code-quoted supra.

Counsel for plaintiff contends that defendant cannot be said to have been in possession as owner since she moved on. the property, resided with her brother and recognized her brother as the title holder. His argument is based on Articles 3489 and 3490 of the Revised Civil Code. It is true that under Article 3489 when a person’s possession commenced for another, it is supposed to continue always under the-same title, unless there be proof to the contrary; and it is further provided by Article 3490 that the circumstance of having been in possession by the permission or through the indulgence of another person, gives neither legal possession nor the right of prescribing. The evidence in this case shows that defendant did move on the property in 1902, with the permission and ■consent of her brother and resided with him. However, if we understand the contention of defendant correctly, she is not laying her foundation of her prescriptive plea on her possession dating from the time that she so moved on the property. The evidence further shows, however, that about one year after she had moved to reside with her brother, her brother abandoned the property and left it to her to do with it whatever she desired, and never returned to reclaim the property. The abandonment of the property by Richardson is further shown by the property being sold at Sheriff’s sale in 1904 by a creditor of Eli Richardson. She assumed the ownership of the property after the abandonment of her brother to her, which was in ■1903, and her plea of prescription is based on that possession so obtained from that date. It can be safely said therefore that there was a change in the nature of defendant’s possession by the permission and consent of her brother, Eli Richardson, the title owner. This change in possession is clearly demonstrated by the defendant taking the physical possession and management of the property, and by the selling of the standing timber thereon in 1903 to a nearby sawmill. The selling of this timber by the defendant showed a change of possession by an external act,' which is sufficient to give a beginning to the prescriptive period.

The plaintiff quotes and relies on the cases of Jackson v. Jones, 14 La.Ann. 230, and of Neel v. Hibard, 30 La.Ann. 808. In the Jackson-Jones case, the plea of prescription was filed by the lessees of plaintiffs. In the Neel-Hibard case, the plaintiff was the wife of the agent of the defendant’s son from whom defendant had inherited the property of which plaintiff claimed to be in possession. The cases are clearly inapposite to the case at bar.

The next contention of plaintiff is that the running of prescription has been interrupted under the provisions of Revised Civil Code, Article 3520, which reads as follows: “Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.”

In this connection, plaintiff contends that the construction of the road across the property was an interruption of the running of prescription. The evidence shows that the former public road was about a mile east of the tract of land. The record does not show what authority constructed this road. In 1914, the State of Louisiana had not yet adopted a system of roads or highways. It necessarily must have been constructed by the" Parish of St. Tammany, through its Police Jury. The evidence does not show from whom the right of way was acquired. In so far as we know, defendant may have given permission to construct the road. It was beneficial to her to have the road through her property rather than have the road about a mile away. She has not, in any way that we can see, acknowledged the title in another by her acquiescence in the construction of the road across the property.

Plaintiff further contends that defendant acknowledged the title to be in another by her allowing the cutting of timber in 1924. The record discloses that on May 21, 1924, W. B. Thompson & Co., for a consideration of $2500, cash, sold to John H. Cassidy, all of the timber of whatever kind, lying, standing or being on three tracts of land, and the first of which is the land in controversy. The purchaser was given seven years within which to remove the timber. There is no evidence in the record to show if and when Cassidy attempted to cut and remove any timber from this tract of land, the place of his operation, if any, the extent of his operation, the amount of • timber removed, and the date of his termination of his operation, if any. In this connection we have only the following (questions and answers of defendant on cross-examination) :

“Q. Do you know Mr. Cassidy, in Boga-lusa? A. No, Sir.
"Q. He cut timber there in 1924 or 1925; did you say anything to him at that time? A. No sir.
“Q. Why did you not protest at that time? A. I believe my thirty years was not up.
“Q. Then you knew it was Thompson’s land? A. No sir. i
“Q. You did not say anything to Mr. Cassidy and the men cutting the timber? A. No, Sir, there was not much there to cut. The timber was gone.”

Under the meager evidence, we are, like the trial judge, of the opinion that there was no interruption of prescription. The evidence does not show any acknowledgment of the right of the person whose title defendant prescribed.

Plaintiff cites and relies on the case of City of New Orleans v. Shakspeare et al., 39 La.Ann. 1033, 3 So. 346, 348. The mere reading of the case clearly shows that it is inapposite to the case at bar. In that case, long before the thirty years period was up, defendants at divers times, acknowledged ownership of the property in the City of New Orleans. In fact, defendants, at one time, sought to lease the property from the city. After reviewing the facts of- this case, the Supreme Court said:

“We do not mean to hold that knowledge or belief that title is in another of itself defeats the prescription of 30 years; but such knowledge or belief, when accompanied by acts or conduct indicating acknowledgment of the adverse title, justifies the legal conclusion that the party pleading that prescription did not claim to be owner, and that his possession is not under the title of owner.
“From defendants’ whole conduct, as explained by their own testimony, it appears clearly to our minds that they never lost sight of the city’s superior and exclusive right of ownership of the ground which they occupied, to which they admittedly subordinated their right of possession. Now vs the title of ownership is a unit, indivisible in its nature between two hostile or adverse claims to the same right, and as ownership in one person is absolutely incompatible, and cannot co-exist, with ownership of the same thing in another person, it follows that defendant’s possession was avowedly not under the title of ownership. Thus their case is stripped of one of the essential and indispensable conditions which must characterize the possession on which the prescription of 30 years is founded.”

Suffice it to say that the facts in the instant case are far apart from those of the New Orleans-Shakspeare case. For more than forty years, in fact ever since 1903, the defendant has held the property in possession uninterruptedly, openly, publicly, unequivocally, in the character of owner. Never since then had she acknowledged the ownership in any one else. She has always maintained the position that she was holding the possession of the property as owner and for herself for more than the prescriptive period of thirty years.

The third and last contention of the plaintiff is that if the defendant has acquired any portion of the property in question by adverse possession, then she is entitled to that part only which she has held enclosed for thirty years. We had the same contention in the case of Ranger Land Co. v. Story, La.App., 200 So. 649; Id., La.App., 1 So.2d 410.

We held that the enclosure of the land by having the lines run and a fence placed around it was such corporeal possession as is required by Article 3501, and when such actual possession without title begins by enclosure, the boundaries of his possession are therefore fixed and the party so possessing may even retain the civil possession of said property, sufficient to prescribe, so long as there remains on -it any vestiges of works erected by him.

We do not find any of plaintiff’s contentions tenable under the facts in this case.

The trial judge, after passing on the facts and the law and after coming practically to the same conclusion as we, states, in his reasons for judgment: “Certainly, in this case there is abundant evidence in the inception of the possession that the property was enclosed; that it was subsequently cultivated for a period of about eleven years; that two houses were built thereon; that dry kilns were also constructed on the property and that defendant has lived on the property during all of the intervening years. Certainly, these acts constitute possession, when coupled with the original possession by enclosure, sufficient to prescribe.

“I am, however, of the opinion that even though this defendant actually' held the continuous and uninterrupted possession of the property west of the highway for a period of more than thirty years, that she failed to so hold the property east of the highway. There are only a few instances of where she has been on this property since the year 1914, at the time she quit cultivating it and I do not think it is sufficient to constitute an announcement of her intention to preserve her possession of the property east of the highway in conformity with Article 3501, of the Revised Civil Code.”

We are in full accord with the finding and conclusion of the trial judge save that portion dealing with the property on the east side of the road or highway. As to that we disagree with him. His holding is in conflict with both the facts and the law as reviewed by us supra, particularly in conflict with our decision in ,the case of Ranger Land Co. v. Story, supra. He must have overlooked the evidence to the effect that there were evidences of the fence as late as 1936. Pine knots were removed and then the stumps and then tar was made on this east side. To hold as the trial judge did, we would have to hold that she abandoned her possession and that civil possession of the property did not continue in defendant. We find no evidence in the record to justify such a conclusion. We therefore conclude that the plea of prescription should have been sustained as to the entire property and not merely for a portion.

For these reasons assigned, it is ordered that the judgment appealed from is annulled, avoided and reversed. It is now ordered that there be judgment in favor of defendant and against plaintiff sustaining defendant’s plea of thirty years prescription, and dismissing plaintiff’s suit.

It is further ordered, adjudged and decreed that there be judgment in favor of defendant, Josephine Cyprian, and against the plaintiff, Succession of William B. Thompson, recognizing the defendant, Josephine Cyprian, to be the owner of the Northwest Quarter (NW%) of the Southeast Quarter (SEJ4) of Section 33, Township 4, South of Range 10, East, situated in the Parish of St. Tammany (save that portion thereof comprising the public road intersecting the said property).

It is further ordered that plaintiff pay all costs.


text:
    CANAGIO v. GLOBE INDEMNITY CO. OF NEW YORK.
    No. 7158.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1948.
    Love & Bailey, of Shreveport, for appellant.

      Irion & Switzer, of Shreveport, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff sued to recover the value of a trunk of clothes, etc., that were damaged from water, while the trunk was temporarily in an uncompleted garage adjacent to a residence then being erected by the W. A. Gray Construction Company for the .plaintiff. The suit is against Globe Indemnity Company of New York on a contract of insurance whereby that company obligated itself to pay for the construction company damages such as are herein claimed.

It appears that when the building was about eighty-five per cent completed, plaintiff, with the consent of the contractor, moved therein with his mother, father and sister. In order not to interfere too much with the men working inside the residence some household goods and effects and said trunk of clothing were stored in the garage. The doors to the garage had not been hung and for this reason its interior was accessible day and night to any one who desired to enter therein.

Plaintiff’s theory is that the construction company’s workmen allowed water to escape from a hydrant inside the garage in sufficient quantity to seep through the trunk’s bottom and into and over its contents.

The only contested issue in the case is that of whether defendant or his employees negligently allowed sufficient water to escape from the hydrant to do the admitted damage. Plaintiff, of course, takes the affirmative of this proposition while the defendant holds the negative.

The lower court rejected plaintiff’s demand and dismissed his suit on the ground that he failed to establish by a preponderance of the testimony that any one for whom the contractor was responsible left the hydrant open so that water escaped therefrom to cause the damage. Plaintiff appealed.

Plaintiff, his sister and mother, although living in the incompleted residence for the time the trunk was in the garage, admitted that at no time did they or either of them see water running from the hydrant to the floor, nor did they see water upon the floor in’ a quantity sufficient to cause the damage. It is true that to some extent the hydrant was used by the workmen to get water therefrom needed to carry on certain parts of the construction work.

All of the contractor’s employees who worked on and about the building, who were available at time of trial, testified positively that they never allowed the hydrant to run water on to the garage floor, and it was stipulated by counsel that all other employees, if introduced as witnesses, would likewise testify.

The record does not positively preclude the possibility of rain water having been blown through the large opening for doors in the garage in sufficient quantities to inflict the damages described in the petition, and it is not shown, nor could it well be, that the hydrant was not left open by some person' or persons for whose acts the construction company to no extent would be responsible. The fact that all the contents of the trunk were damaged lends force to the suggestion that rain water likely caused the damage. Water seeping through the bottom of a trunk, ordinarily, would not rise several inches to damage articles that distance above the bottom of the trunk.

We have studied the record quite closely and experience no difficulty in reaching the same conclusion as did the trial judge. Plaintiff has signally failed to support his allegations of negligence by proof of probative weight adequate to award him judgment; and for these reasons, the judgment appealed from is affirmed at plaintiff’s cost.


author: LE BLANC, Judge.

text:
    LIVAUDAIS v. WILLIAMS LUMBER CO. et al.
    No. 2991.
    Court of Appeal of Louisiana. First Circuit.
    March 9, 1948
    Rehearing Denied April 12, 1948.
    Ott & Watts, of Franklinton, and Lind-sa}< W. McDougall, of Covington, for appellant.
    Ellis, Barranger & Suthon, of Covington, for appellees.
   LE BLANC, Judge.

This is a suit to recover the value of 15,-000 board feet of timber whch ran to 18,-000 when manufactured into lumber, and appraised at $75 per thousand feet; also damage to and destruction of a number of young trees valued at $250, and the further sum of $5 for repairs made necessary to a fence which had been damaged, all arising out of a certain alleged trespass committed by the defendants, Williams Lumber Company, a partnership composed of Leonard Williams, Jessie Carnahan and Robert Leonard Williams, through their agent, Herbert Corkern, on the lands of the plaintiff situated in the Parish of Washington. The total amount of the claim is the sum of $1,605.

In his petition the plaintiff sets out that he is the owner of the lands on which the alleged trespass occurred; that between the dates of April 14 and April 24, 1946, the defendants who operate a sawmill in Frank-linton, in the Parish of Washington, through their agent or employee, Herbert Corkern, willfully and in utter disregard of his rights, entered and trespassed upon his said land and removed therefrom certain fallen pine timber, the value of which he is seeking to recover in its manufactured state, because, as he alleges, the trespass was done in moral and legal bad faith. He alleges also that in committing the trespass, the defendants broke down the fence which enclosed the property and damaged it and also in using a tractor to go upon the land to remove the said trees they damaged a large number of young pine and other trees.

The defendant Jessie Carnahan excepted to the plaintiff’s petition on the ground that he was not a member of or a party in the affairs of the partnership of Williams Lumber Company during the month of April, 1946. The other defendants filed an answer in which they admit that Williams Lumber Company operates a sawmill in the Parish of Washington as had been alleged and that Herbert Corkern is their agent or employee. Otherwise they deny each and every other allegation of the petition and pray that plaintiff’s suit be dismissed at his costs.

By consent of counsel, the defendant Jessie Carnahan was dismissed as a party defendant and the case went on trial as between the plaintiff and all other defendants. On the evidence submitted the trial judge rendered judgment in favor of the plaintiff in the sum of $509 with legal interest. The defendants, Williams Lumber Company and Robert Leonard Williams took a suspensive appeal and the plaintiff has answered the appeal praying for an increase in the amount of the judgment rendered to the sum of $1,034. The defendant Herbert Cor-kern did not appeal.

The plaintiff offered and introduced in evidence the deed showing his acquisition of the property from Edward J. Myrick and Helen L. Grosjean Myrick on December 19, 1944. The sale of the property was on terms of cash and credit and in referring to the clause which relates to the certificate of mortgages and conveyances required by Article 3364 of the Revised Civil Code, we find it stipulated that it does not appear that the property has heretofore been alienated by the vendors except as follows: “A sale by Mrs. Helen L. G. Myrick to Leonard S. Issacks by private act dated October 30, 1943, duly acknowledged, recorded C.O.B. 161, Folio 141, covering ‘all pine and hardwood timber of every kind and description including pulp wood, that is lying, standing, down or being upon the hereinabove described property,’ and the act of correction of said act of sale by notarial act before Victor E. Planche, dated December 13, 1944, recorded C.O.B. 165, Folio -. The purchaser herein takes cognizance of said sale and accepts this transfer subject thereto.”

Whilst there is nothing in the record to show any transfer or sale of the timber which he had acquired, from Leonard Is-sacks to the. Williams Lumber Company, it seems to be admitted that the timber was purchased or it was being removed under some form of agreement between the parties. That question is not at issue in the case.

Whilst also the deed covering the sale of the timber to Issacks is not in the record and that part of it is not referred to in the exception noted in the sale of the property to the plaintiff, it is conceded that the purchaser of the timber was given three years in which to cut and remove it from the land and that that period expired during the month of October, 1945. As the trespass complained of by the plaintiff occurred, according to his allegations, between the dates of April 14 and April 24, 1946, it is obvious that the period of three years had long since expired. As a matter of fact it does not seem to be disputed that the defendants did go upon the property and did remove certain timber which had already been cut and felled and was lying on the ground during the month of April, 1946, and as we understand, they are attempting to justify their going upon the property by claiming that this timber had been cut prior to the expiration of the three year period and the trees which had already been cut, being movable property, they had the right to go and remove them. They seem to contend that the only charge which could be levelled against them would be one of simple trespass for having gone upon the property without the owner’s permission.

They also maintain that their action in going upon the property of the plaintiff was done without legal or moral had faith.

There are then four points to be considered in the case. The first is whether ownership of the trees which had already been cut and which were lying on the ground had reverted to the plaintiff who had become the owner of the land; the second, if they were his property, whether the defendants acted in legal and moral bad faith in going upon the property in removing them; the third, what is the quantity of timber that was removed and fourth, if removed in legal and moral bad faith, what is its value as manufactured lumber which would be the amount of damage plaintiff would 'be entitled to recover.

In their brief counsel for the defendants argue that the timber which had been cut and was lying on the ground had been converted from real property tó a chattel or movable property and that its ownership could not therefore be transferred to the owner df the land. Therefore they contend that plaintiff was never the owner of this timber which was lying on the ground as he had acquired the property with full knowledge that the timber had been sold. In considering this point counsel have evidently overlooked Act No. 188 of 1904 which provides that “standing timber shall remain an immovable, and be subject to all the laws of the State on the subject of immovables, even when separated in ownership from the land on which it stands, * * If therefore the only claim to the timber depends upon the fact that it had been cut and severed from the soil and had thus become a movable, the provisions of that statute would seem to dispose of their contention.

But in construing the point involved in this case, it is not necessary to rely on that act alone. In the case of Ward v. Hayes-Ewell Co., 155 La. 15, 98 So. 740, 741, the court, after reviewing several prior decisions, makes this statement: “It will thus ■be seen that this court has always held, whether before or since the act of 1904, that standing timber was property subject to be acquired separately from the land on which it grows; but that when sold it must be cut and removed within the period agreed upon by the parties or fixed by the court in default of agreement; otherwise said timber reverts to the owner of the land. The act of 1904 had no other effect upon the status of standing timber so sold except to declare it an immovable, where before that it might have been argued that it was a movable; into the reason and purpose whereof we find it unnecessary to go at this time. Suffice it to say that the question for consideration herein is, not whether stand-mg timber, sold separately from the land, be a movable or cm immovable, but whether the interest which the purchaser acquired therein be or be not defeasable by the expiration of the delay given in the contract or fixed by the court. And, as we have just shown, this court holds that at the expiration of said delay the timber reverts to the owner of the lemd. And that holding is in accord with the jurisprudence which prevails generally. See authority cited in St. Louis Cypress Co. v. Thibodaux, 120 La. 834, 840, 45 So. 742.” (Italic ours.)

The case of Crowell & Spencer Lumber Co. v. Burns et al., 191 La. 733, 186 So. 85, 87, is a more recent case in which the same issue was presented to the court. The jurisprudence was again reviewed and the definite statement made that “it is well settled that if, in a sale of standing timber, a time limit upon the right of the buyer to remove the timber from the land is fixed in the deed, the title to the timber that is not removed within the time stipulated reverts to the seller, or to his successors or transferees.” The underscored phrase is particularly applicable to the plaintiff in the present case.

It is correct therefore, under the law as enunciated in these various cases, that the timber that remained on the land acquired by the plaintiff after October, 1945, reverted to him as the owner of the land, and that the defendants were without right to go upon the property to remove it.

The next question is whether in doing so the defendants acted in moral bad faith. On this point, what testimony there is in the record is all in favor of the plaintiff. He bought the property on December 14, 1944 when the timber contract had several months yet to run. He testified that in the early part of November, 1945, shortly after the expiration of the contract, he went to Franklinton to see Mr. Leonard Williams and advised him that as the contract to remove the timber had expired he wished that he would leave what was left there and not remove it. Mr. Williams assumed what seems to us to have been a rather arbitrary attitude as plaintiff states he told him that he was a young boy from the city who had plenty to learn about the timber business. He further told him that he could take the timber that had already been cut even though the contract for removal had already expired and advised that he go see a lawyer. This, plaintiff says he did. Apparently nothing was done and plaintiff was not aware that the timber had been removed at the time that it was in April, 1946. Leonard Williams admits that he removed the timber after having had the conversation with the plaintiff, which he states he recalls vaguely but in which he says that plaintiff told him he did not think that he had the right to remove the timber and that he did not tell him not to remove it. Later on he admits that plaintiff did tell him not to go on his land. In spite of this, and without further informing himself of his rights, he went upon the property and removed the trees. Under those facts the trial judge was perfectly correct in holding him and his partners in moral bad faith and making them responsible for the value of the timber as manufactured into lumber. As has frequently been held, that is the measure of damage in a case of this kind. Nona Mills Co. Ltd. v. W. W. Gary Lumber Co., 15 La.App. 560, 132 So. 257; Allen v. Frank James Co., Ltd., et al., 142 La. 1056, 78 So. 115; Stouse v. Shell, La.App. 33 So.2d 767, a very recent decision of this court.

The final and perhaps the most important question brought up for review is with regard to the amount of damage plaintiff is entitled to recover. The trial judge accepted the testimony of the defendants’ witnesses regarding the log scale of the timber that had been removed. Leonard Williams testified that the total of pine and hardwood was 11,490 feet log scale, but stated that only 5,000 feet of it had been removed after the contract had expired. Herbert Corkern who was in charge of operations testified that there were about 7,000 feet removed during the month of April, 1946. The trial judge took this larger amount as the basis on which to fix the amount of the damage. He properly allowed a twenty percent average over-run in the sawmill which increased the log scale to 8,400 feet. It appears however that according to Williams’ testimony the timber was measured according to the Doyle scale. He admits that had it been measured according to the Scribner-Doyle scale it would have run maybe four or five percent more. By the provisions of Act No. 108 of 1914 which was amended by Act No. 263 of 1918, the Scribner-Doyle scale seems to be recognized as the standard for measurement of saw logs in Louisiana and that being so it looks as though plaintiff would be entitled to this over-run of from four to five per cent in addition to twenty per cent over-run at the sawmill.

Allowing a twenty-five per cent increase instead of twenty per cent would give a total of 8,750 feet instead of 8,400 feet, the log scale arrived at by the trial judge. He fixed the value of the timber manufactured into lumber at the sum of $60 per thousand feet, basing this on the testimony of some disinterested witnesses who testified on this point. In that we think he was correct. Counsel for plaintiff says that that value should be fixed at $75 but he bases this on the testimony of a witness who was testifying about retail prices whereas the $60 value was shown to be the wholesale price which we think is correct. The increase of 350 feet log scale at $60 per thousand would amount to $21 which plaintiff is entitled to.

The district judge properly allowed plaintiff to recover the sum of $5 for repair to his fence which had been damaged by defendants in conducting their operations on his property. The claim of $250 for damage to young trees was not allowed for lack of sufficient proof. There was proof of such damage but none to show what part of it, if any, occurred during the operations that went on after the expiration of the timber contract. Besides, the only testimony on this point is that of the plaintiff himself and it is very indefinite both as to the number of trees that were damaged and their value.

For the reasons stated, it is ordered that the judgment appealed from be amended by increasing the amount of the award from the sum of $509 to $530 and that as thus amended it be affirmed.


author: McBRIDE, Judge.

text:
    THIEL v. KERN et al.
    No. 18794.
    Court of Appeal of Louisiana. Orleans.
    March 1, 1948.
    Rehearing Denied March 15, 1948.
    Writ of Certiorari Denied April 26, 1948.

      St. Clair Adams & Son, of New Orleans (P. A. Bienvenu, of New Orleans, of counsel), for plaintiff-appellee.
    Benjamin Y. Wolf, of New Orleans, for defendants-appellants,
   McBRIDE, Judge.

Plaintiff, Florence A. Thiel, seeks recovery for personal injuries, loss of earnings and expenses resulting from an accident caused by defective steps of an apartment building, a portion of which she occupied as her residence. Miss Thiel, with her mother and cousin, occupied under a written contract of lease which had been executed by her brother Walter E. Thiel with defendants, one of the two upper apartments in a building which contained four apartments, plaintiff’s apartment bearing the No. 809% Exposition Boulevard. William E. Kern, who is one of the defendants, and his wife, occupied the adjoining upper apartment, No. 811% Exposition Boulevard.

It is averred that on November 20, 1945, at 7:15 o’clock, a. m., while plaintiff was descending the front stairway, she was injured when one of the planks broke causing her to fall a distance of about ten feet to the sidewalk below; she charges that the step which broke was defective either because of a vice and defect in the original construction, or because of the failure of defendants to keep same in a proper state of repair. She claims the sum of $7,263.80. It is alleged that the building was owned by William E. Kern and his three sisters, all of whom are defendants.

Exceptions of vagueness and no cause of action were filed by the defendants. The exception of vagueness was maintained and plaintiff amended the petition; the exception of no cause of action was overruled.

The defendants deny the alleged defectiveness of the steps. They make the further defence that by the lease contract the lessee agreed to maintain the premises in repair, and assumed responsibility for its condition, and that under Act No. 174 of 1932 there is no liability on their part to plaintiff. In the alternative they plead that if they are adjudged guilty of negligence, they are nevertheless not liable, because of the contributory negligence on the part of plaintiff, who they alleged tripped and fell not as a result of the defect in the premises, but because of the high heels on her shoes.

Judgment was rendered in plaintiff’s favor for $2,500 after a trial on the merits, from which this present appeal has been taken by defendants. Plaintiff made answer to the appeal, and prays that the amount of the judgment be increased to $5,000.

There is no dispute that plaintiff fell on the steps. There were introduced into evidence several photographs of the stairway in question, which show that from the upper apartments there is a first flight of 12 steps leading downward to a landing, and from each side of this landing there are 9 steps leading to the ground, which are at right angles to the first flight of steps. The stairway provides a means of ingress and egress to the occupants of both upper apartments.

On the alleged date plaintiff was descending the stairway and had negotiated the first flight of steps to the landing, which is located about six feet above the ground, and as she attempted to continue down the second flight of steps to her left, the end board of the landing gave way, precipitating her to the ground. Plaintiff’s testimony regarding the fall is supported by that of her mother, Mrs. Alice E. Thiel, who was standing on the upper balcony and witnessed the accident. Plaintiff’s cousin, Fannie Merry, who was walking alongside of her, also testified that the landing board broke and plaintiff immediately fell to the ground. The landing board split into fragments, and photographs which are part of the evidence show it was in a decayed condition.

The platform landing, soon after the accident, was repaired, and the carpenter testified that he inspected the piece of wood which broke off and that it showed evidence of termite infestation. Two other witnesses, one of whom was produced by defendants, testified that the broken plank was subject to dry rot and had been eaten by termites.

There is disagreement between counsel as to whether plaintiff is to be considered a lessee of the premises, or as a licensee. It is averred in the petition that the lease “was executed by petitioner’s brother in her behalf and in behalf of the other members of her family,” and counsel for defendants argues that in view of that allegation the plaintiff was the actual lessee and cannot be placed in the category of a licensee, and that she was bound by all of the conditions and stipulations of the written lease. It is also disputed whether defendants had been notified or had knowledge of the defects existing in the steps.

But we consider it a matter of no importance whether Miss Thiel is to be classified as the lessee or as a third person, or whether the landlords had or had not notice or knowledge of the defectiveness of the premises, for the law is well settled that the owner of property is liable to a tenant or to a third person rightfully on the premises, being without fault, injured as a result of an accident caused by defects in the building, whether the defects are latent or not. The liability to a tenant arises from the obligations placed upon the owner by Civ.Code, arts. 2692-2695, and as to a third person the liability springs from Civ. Code, arts. 670 or 2322, or both. Coleman v. Rein, La.App., 4 So.2d 622; Staes v. Terranova et al., La.App., 4 So.2d 453; Hughes et al., v. Abate, La.App., 2 So.2d 68; Morris v. Hava, La.App., 180 So. 216; Tesoro v. Abate, La.App., 173 So. 196; Heath v. Suburban Building and Loan Association et al., La.App., 163 So. 546; Hanover et al. v. Brady, La.App., 148 So. 267.

In support of the plea of contributory negligence, defendants argue that the heels of plaintiff’s shoes were 1% inches high, as measured in the trial court, and that one of her heels “turned and caught in the edge of the step” tearing off part of it and throwing her to the ground, and that the accident resulted directly from the high heels. There is no evidence in the record supporting this theory of defendants, and we are convinced that plaintiff’s fall can be accredited solely to the rotten condition of the edge board of the stairway landing.

Under the facts as proven on the trial of this case, the law clearly warrants a recovery by plaintiff, unless the defendants can maintain their special plea of non-liability because of the contractual stipulations contained in the lease.

The lease under which plaintiff occupied the upper apartment had been entered into by. her brother, Walter E. Thiel, with defendants, and contained in the lease are the following provisions:

“Except as otherwise specified in this lease in writing, the premises and appurtenances, including locks, keys and all fixtures, are accepted by the Lessee in* their present condition and are to be maintained by Lessee during the term of the lease in like order as received. * * *
* * * No repairs shall be due to Lessee except such as may be needed to the roof, or rendered necessary by fire or other casualty, not occasioned by Lessee’s fault or negligence.
The Lessor shall not be liable for any damage either to persons or property, sustained -by the Lessee or his agents, clerks, servants or visitors, invites, licensees, or by other persons. This provision shall apply especially (but not exclusively) to damage caused by termites, leaks in the roof, water, snow, frost, steam, sewerage, electricity, illuminating gas, sewer gas or odors,, or by the bursting or leaking of pipes or plumbing work, and whether such damage be caused or occasioned by any thing or circumstance above mentioned or referred to, or by any vice or defect or failure to repair the leased premises, or any portion thereof, or by any other thing or circumstance. whether of a like or a wholly different nature. * * * ”

Defendants’ counsel has reurged the exception of no cause of action before us, and contends that in view of the quoted provisions of the lease, which is made part of the petition, defendants are absolved from all liability, under the provisions of Act No. 174 of 1932, Sec. 1 of which provides as follows: “ * * * the owners of buildings or premises which have been leased under a contract whereby the tenant or occupant assumes responsibility for the condition of the premises shall not be liable in damages for injury caused by any vice or defect therein to any tenant or occupant, nor to anyone in the building or on the premises by license of the tenant or occupant, unless the owner knew of such vice or defect, or should within reason have known thereof, or had received notice of such vice or defect and failed to remedy same within a reasonable time thereafter.”

We will consider the exception along with the special defense made by defendants. As a special defense they set forth in their answer that under the act they cannot be held liable for any damages suffered by plaintiff. This court, in the case of Estes v. Aetna Casualty & Surety Company et al., La.App., 157 So. 395, 398, had occasion to pass upon the liability of a landlord for an accident which occurred in a courtyard used in common by several tenants. We discussed there the difference between the common law and the Louisiana law insofar as the responsibility of landlords for damages caused by defective premises is concerned. The following expressions are found in the opinion:

“This civil law principle, that the lessor is responsible for damage caused by defects in his property, is the reverse of that which exists in practically all common-law jurisdictions. In the Zenoria Lumber Company Case [Lasyone v. Zenoria Lumber Co., 163 La. 185, 111 So. 670] our Supreme Court also said: ‘ * * * It is sufficient to say that under the civil law the rights of landlord and tenant are radically different from what they are under the common law.’
“This difference is interesting for the reason that, even under the other systems, under which the rule is that the tenant takes the leased premises subject to its defects, there is a recognized exception in the case of those parts of the lessor’s property used in common by different tenants, or used in common by the tenant and the lessor himself. In 25 A.L.R. 1273, there appears an editor’s note to the case of Roman v. King, 289 Mo. 641, 233 S.W. 161 [25 A.L.R. 1263], in which are cited nearly 200 cases from many jurisdictions,, all recognizing this exception to the common-law rule. In the words of the note: ‘To the rule that a tenant takes the leased premises subject to defects not amounting to a trap, there is an exception to the effect that the owner of a building who leases it to different tenants, and expressly or impliedly reserves portions thereof, such as halls, stairways, porches, walks, etc., for the use in common of different tenants, is liable for any personal injury to a tenant, or a person in privity with a tenant, due to defects in the portion of the leased premises of which the landlord so retains control, provided the defect is ascribable to the negligence of the landlord, and the tenant or person injured is not guilty of contributory negligence.’
“In a most recent treatise on the subject, American Law Institute’s Restatement of the Law of Torts, vol. 2, p. 976, § 360, the principle is thus stated: ‘A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor’s control, * * *.’ ”

Under Act No. 174, 1932, when a tenant assumes responsibility for the condition of the premises, and the lease stipulates that the landlord will not be responsible for damages caused by the defectiveness thereof, the landlord is exonerated, and liability for injuries to third persons resulting from a defect in the premises attaches to the tenant. See Terrenova v. Feldner et al., La.App., 28 So.2d 287.

A tenant under our law, leasing property by a contract containing the stipulations and conditions contemplated by the 1932 statute, is placed, quoad responsibility for damages caused by defects in the leased premises, in a situation analogous to that occupied by a tenant in a common-law jurisdiction. The tenant shoulders responsibility for damages sustained by third persons or their property in the leased premises resulting from vices existing therein.

As we pointéd out in Estes v. Aetna Casualty & Surety Company, supra, under the common-law rule this responsibility does not rest with the lessee when those lawfully upon the property are injured because of a vice existing in a part of the premises which the landlord retains in his possession, and which the lessee is entitled to use only as an appurtenance of that part of the property which is leased to him.

Applying that rule in the instant case, we are led to the conclusion that the defendants here are not relieved from liability to Miss Thiel for her damages because of the stipulations contained 'in the written lease. Walter E. Thiel, the lessee, and the- members of the Thiel family, had no control or supervision of the wooden stairway used in common with one of the defendants and the members- of his family, and the stairway did not constitute a part of the property leased, in the sense that the tenant was given possession thereof. The stairway being one used in common by all occupants of the upper apartments, the lessors necessarily retained domination and control of it, and it would be absurd to say that under those circumstances the parties contemplated that the provisions of the lease bound the lessee to make repairs and rendered defendants harmless for ' damages to a third person lawfully using the stairway injured as a result of a vice or defect therein.

Plaintiff’s injuries consisted of a fracture of the left elbow, bruises to the knees and left hip, a “hicky” on her head, and two black eyes. She was knocked unconscious, and remained in bed for the rest of the day of the accident and part of the two following days. She was examined by Dr. M. L. Michel in the emergency room of the Touro Infirmary, and X-rays disclosed the fracture of the left elbow. According to Dr. Michel “the bone was just cracked; there was no displacement of any broken fragments.” A cast was applied and plaintiff's arm was immobilized for 7 or 8 weeks, which we understand from the physician is the usual time required for the healing of such an injury. After the cast had been removed, the arm gradually returned to normal mobility, and the doctor stated that there was nothing particularly unusual about the case during the period of treatment. His opinion was that there would be no permanent deformity.

Shortly before the trial in the court below, plaintiff returned to Dr. Michel and complained of pains in the region of the left elbow, radiating down the inner side of the arm toward the fingers. Dr. Michel took further X-rays which showed the fracture to be completely healed, and he stated that it is difficult to explain the type of pain which plaintiff complained of, as it is unusual for a fracture of that type to cause difficulty so long afterward. However, up until a week before the trial, injections had been made into the nerves of plaintiff’s arm for this after-complaint.

Plaintiff testified that she was a clerical worker and did a great deal of typewriting, and that she lost in salary the sum of $213.21; however, at the time of the trial below she was working at a salary of $160 per month. Her medical and other expenses totalled $50.59.

In the matter of assessing damages for personal injuries no standard exists and no rule obtains, and the amount of the award is peculiarly within the discretion of the trial court, whose judgment should not be disturbed except for serious error. However, there should be some uniformity in awards for this type of damage.

In the case of Bates v. Blitz et al., La.App., 13 So.2d 516, affirmed 205 La. 536, 17 So.2d 816, decided in 1944, a plaintiff was allowed $1,000 in addition to incurred expenses for a fracture of the tipper third of the left humerus, together with contusions and brush-burns.

In view of Dr. Michel’s testimony that the fracture of plaintiff’s arm is completely healed, and that there is no residual disability, the amount awarded by the lower court is excessive and should be reduced, and we believe the sum of $1,500, in addition to the loss of earnings and the expenses incurred, will adequately compensate plaintiff for her injuries.

For the reasons assigned, the judgment appealed from is amended so as to allow plaintiff the sum of $1,763.80, and as thus amended, and in all other respects, the judgment appealed from is affirmed. Defendants-appellants are to pay all costs of this appeal.

Amended and affirmed.


text:
    FORD v. FORD et al.
    No. 2988.
    Court of Appeal of Louisiana. First Circuit.
    March 9, 1948.
    Talley & Anthony, of Bogalusa, for appellant.
    Carter & Erwin, of Franklinton, for ap-pellees.
   LE BLANC, Judge.

This is a petitory action which was met by a plea of prescription of ten and thirty years on the part of the defendants. The plea was referred to the merits after which the defendants filed their answer setting out title in themselves and again urging their pleas.

In his petition, the plaintiff alleges that he is the true and lawful owner of a tract of land described as being “six acres of land in the village of Angie, in the Joseph Ard Headright No. 52, Township 1, South, Range 14 East, said tract of land being 3 acres fronting NOGN Railroad and two acres deep, lying south of Vine Street.”

He alleges that he acquired the property from Mrs. Maude K. McRae and other parties, on January 17, 1944, by a title which is of record in the Conveyance Records of the Parish of Washington. He then avers that Mrs. Rebecca Lott Ford, widow of Liberty W. Ford, and Iris Ford Tilton, Ralph Ford, Tom Ford and Robert Earl Ford, surviving children of Liberty W. Ford, are in the actual possession of the tract of land without any title whatsoever thereto and without any right to remain on the same; that they refuse, without any good or legal cause, to deliver possession of the property to him. He accordingly prays that a curator ad hoc be appointed to represent those of the Ford children who are absentees and for service of citation and that after due proceedings he be recognized as owner of the property and as such entitled to the full and undisturbed possession thereof.

In a supplemental petition, plaintiff made it to appear, as it really is, that he was not claiming that the defendants were in possession of the entire tract of land but only of a small portion in the southern part which he more fully described as follows: “Beginning at the southeast corner of your petitioner’s six-acre tract of land, thence north along the easterly border of the said six-acre tract, a distance of 92 feet; thence west at an angle of 75° to the said easterly border of the said six-acre tract, a distance of 340 feet; thence south, eight feet; thence east along the south border of your petitioner’s six-acre tract of land a distance of 325 feet more or less to the point of beginning.” He annexed a sketch with a shaded part showing the area which he claims the defendants were in possession of. It is irregular in form and appears to be in the shape of a trapezoid.

In their answer the defendants admit that they are and have been in possession of the property involved, under fence and unmolested, and with good and valid title which they set out in detail and which is duly recorded in the Conveyance Records of the Parish.

It appears that the land in dispute is made up of portions of three separate tracts of land acquired at different times, some of the deeds running back for a period of more than thirty years and others more than ten years and defendants accordingly plead the prescriptions acquir-andi causa of ten and thirty years.

The lower court sustained the defendants in their contentions holding that they had a good and legal title to all the land involved in the suit and sustained the pleas of prescription which they had urged. The judgment decreed that they were the owners of the property and plaintiff took this appeal.

It developed from the evidence that all the land now belonging to the plaintiff and to the defendants came from a common owner who was Mrs. C. C. McMillan and, as stated by the district judge, it appears that it was because she had sold some of the small tracts of land from which the property in dispute comes and those sales were not taken into consideration when the remainder of the tract was sold to parties from whom plaintiff deraigns his title that the discrepancy occurred and if that is so then the plaintiff who has to rely ultimately on the title coming from the common author, has to be satisfied with less than what his sale calls for.

The first sale that was made by Mrs. McMillan out of the Headright in Section 52 was of one acre in the southeastern corner, on July 28, 1906. This sale was to T. L. and T. F. Ford and the property conveyed was described as being “one acre of land in the Joseph Ard Headright No. 52 and bound E. by R.R. Street, S. by Nicholas Headright line, W. & N. by vendor.” It is comparatively easy to identify that acre by the boundaries given on the east and on the south. Part of the land in dispute in this suit comprises one quarter of that acre which it appears was transferred in several deeds by one party to another until finally it was acquired by the father of the defendants, Liberty W. Ford from C. R. Pope on February 25, 1930. The whole of ‘ that acre which had been originally bought by T. L. and T. F. Ford had also been sold and conveyed on different occasions until it became the property of one E. H. Hood who on December 30, 1913, sold three quarters of it to Arthur Shay, author in title of Liberty W. Ford, reserving the one quarter of an acre in the northeast corner and the same being described as being bounded north and south by Mrs. Daisy Keeton, east by Railroad Street and west by Arthur Shay. It is important to note that in that sale the property conveyed is referred to as being that known as the Ford & Ford Mill Property. This it would seem helped to identify its location which is further substantiated by the testimony of several witnesses who referred to the fact that at one time there was a sawmill there and also a cotton gin.

With regard to that one quarter acre which comprises the easternmost part of the land in dispute we think therefore that the defendants have traced their title to it through C. R. Pope, a title which extends as far back as February 19, 1930. As to how they showed possession of that particular tract we will discuss later along with their claim of possession to the remainder of the property in controversy.

The other portion of the land in dispute comprises the northern part of that area which is situated immediately west of the acre sold by Mrs. McMillan in 1906 to T. L. & T. F. Ford. From the titles exhibited by the defendants it is shown that on May 8, 1907 she sold to Arthur Shay one acre of land in the Village of Angie in the Joe Ard Headright No. 52 bounded north and west by C. C. McMillan, east by Ford’s Mill and west by Headright 52. We do not quite understand the western boundary given by Headright 52 in this'sale because apparently the property sold is in Head-right 52. Unless therefore it was meant that the southern boundary was the southern line of Headright 52 it would seem that there is a little discrepancy there. However with the other boundaries given it strikes us that the property is correctly identified as being that acre which is directly west of the T. L. & T. F. Ford property since the eastern boundary is given as Ford’s Mill and it is reasonably certain that it was on that acre of land that the Fords did have their mill. Besides, at that time Mrs. McMillan still was the owner of the remainder of the property to the north which is given as that boundary and, we believe, was also the owner of the property on the west and from which she appears to have sold the acre described in a sale to Arthur Shay on January 23, 1908, since in that sale that acre is described as being bounded east by vendee (Shay) and south by the dividing line between Head-right 52 and 54.

The sales which we have referred to, comprise among them, all of the property which is in dispute in this suit.

The plaintiff’s title on the other hand dates back only to the year 1944 and whilst it calls for six acres of land, measuring three acres along the railroad by two acres deep, south of what is referred to as Vine Street, it is apparent, as appears from the survey made by T. E. Pigott in 1944, that in order to give the plaintiff the six acres called for by his title, he would have to overlap on the south portion thereof, some 92 feet on the east side along the railroad right of way, and about 8 feet on the west side, thus creating the area in the form of the trapezoid which comprises the very land that is in dispute in the suit.

These titles may be said to be a bit complicated and could be a bit clearer; still, they seem to be sufficient to support the pleas of prescription which have been urged by virtue of the possession claimed by these defendants through their father, Liberty W. Ford, and his author in title, Arthur Shay.

The evidences of possession consist of fences around the property. Shay who had acquired some ten acres of land consisting of adjoining tracts sold all that he owned to Liberty W. Ford on November 13, 1920. Part of the ten acres extended west of a road situated west of the property that is in dispute. It was on this part of the property that Shay had his home which was continued to be used as such by L. W. Ford after he acquired the property. After his acquisition Ford fenced in all of the property and ran his fence on the north end up to the quarter of acre which he did not acquire until 1930 from C. R. Polk. After he acquired this quarter of acre in 1930 he extended his fence on a straight line and ran it as far as the eastern end of the property up to the railroad property. Besides, the evidence shows that he cultivated some portions of the property. He clearly evidenced an intention of possessing the whole. We think therefore that his possession of all the land in dispute with the exception of the one quarter acre has been proven as far back as November, 1920 which is but a few years short of the thirty years. However if we add to his possession that of his author in title, Shay, it certainly extends far beyond the thirty year period.

The principal contention of counsel for plaintiff seems to be that the defendants cannot defend their thirty year plea of prescription which, it is maintained, is the only ground on which they could obtain‘title to the property, because in order to make up the entire period it is necessary for them to tack on to theirs and their father’s possession, that of liis author in title, Shay, and this, they say, they cannot do. Counsel cite certain authorities which did hold that the claimant under the thirty year plea could not add to his possession that of his vendor but that was because there was no privity of contract shown between him and his vendor with respect to the possession claimed. See particularly Sibley v. Pierson, 125 La. 478, 51 So. 502. In reviewing the law on this point the court, in Emmer v. Rector, 175 La. 82, 143 So. 11, referred to the case of Harang v. Golden Ranch Land & Drainage Co., 143 La. 982, 79 So. 768, 769 and stated that on rehearing it had approved the principle enunciated in Sibley v. Pierson to the effect that unless there was a privity between the possessor and his authors in title, the latter’s possession could not be tacked on that of the former to make the thirty year period, but that the court had “impliedly, if not expressly, approved the converse of the proposition; namely, that, where there was a privity of contract between the possessor and his vendor, the possession of the latter could be tacked on to the possession of the former to make out the statutory period.” [175 La. 82, 143 So. 14.] The court pointed out that in the Harang case it had also approved the definition of the word “privity” as used in this connection which is given in 1 R.C.L. at page 178 as follows: “Between Whom Privity Exists. — Privity denotes merely a succession of relationship to the same thing, whether created by deed or by other act, or by operation of law. If one, by agreement, surrenders his possession to another, and the acts of the parties are such that the two possessions actually connect, the latter commencing at or before the time the former ends, leaving no interval for the constructive possession of the true owner to intervene, such two possessions are blended into one, and the limitation period upon the right of such owner to reclaim the land is thereby continued; indeed, the purpose of a continuous possession is the continuous ouster of the owner.” See also 1 American Jurisprudence p. 880.

In this case all of the elements of the sort of privity defined existed between the parties holding possession of the greater part of the property for more than thirty years and even though it be conceded, for the sake of the argument, that the defendants have to depend on their plea of thirty years prescription with regard to that part of the property which is situated west of the quarter acre tract, the site of the old mill property, we hold that they have successfully sustained that plea.

With regard to the plea as it concerns the quarter acre tract referred to, we are of the opinion that the defendants’ title to that part seems to be clearer than their title to the remainder of the property that is in dispute and it impresses us as being definitely a title that is translative of property. The testimony further convinces us that when L. W. Ford acquired that portion of the land from C. R. Pope, in 1930,. he straightened out his fence and ran it as far as the railroad property which was the eastern boundary, thus including that tract also in his possession. That was more than sixteen years before this suit was filed and makes the plea of ten years prescription with a title translative of property good.

We believe that the judgment of the district court correctly disposed of all the issues presented in the case and for the reasons herein stated it stands affirmed at the costs of the plaintiff, appellant herein.