author: LeBLANC, Judge.

text:
    PITTMAN v. SMITH.
    No. 2992.
    Court of Appeal of Louisiana. First Circuit.
    April 12, 1948.

      Richardson & Richardson, of Bogalusa, for appellant.
    A. J. Jones, of Bogalusa, for appellee.
   LeBLANC, Judge.

This is a suit for damages to recover the sum of $673.00, representing the loss by plaintiff of his 1938 Pontiac Coupe which was damaged beyond repair, in an accident which occurred on Highway No. 7, just north of the line dividing the parishes of St. Tammany and Washington on December 13, 1945.

Petitioner alleges that on that day, at about 5 :30 in the afternoon, he was travel-ling north on' said highway and that on reaching the point mentioned he saw an automobile lying in a ditch on the west side; that he thereupon stopped his car on the east side of the road, as far on the shoulder as the surface would permit, to go and investigate what had happened and to offer any assistance that might be necessary; that a large truck, heavily loaded, had also stopped on the same side of the highway and that he stopped his car about ten or fifteen steps south of that truck. He describes the highway as consisting of the usual eighteen feet pavement slab and a shoulder on each side, approximately six feet wide, the one on the east side sloping gradually towards the ditch, with numerous washed out places in it.

He then avers that the highway was wet and that the shoulder on' the east side where he stopped was exceedingly slick and it was impossible for him to park his car entirely off the paved slab, but only the two left wheels of his car rested on the slab. That he left all the lights, front and tail, burning on his automobile and that its position and that of the truck on the highway were clearly visible to traffic approaching, with a clearance of twenty-two feet on the side for it to pass.

He alleges that after he had investigated the wrecked automobile lying in the ditch on the west side of the road, and while waiting in his car for the driver of that car to get in his automobile so that he could take him to Bogalusa, his car was struck from the rear by a truck belonging to the defendant C. A. Smith, being operated by a man named Fuller, acting at the moment within the course and scope of his employment by the said Smith. The impact knocked his car into the ditch on the east side of the road and the truck then ran into the other truck which was parked ahead of his car, turning it over.

He avers that there was a mist falling and the truck which ran into his car had no windshield wiper, that the windshield was cracked in several places and it was impossible for the driver to see through it; that it had but one headlight burning which was exceedingly dim and could not illuminate the roadway ahead. He further avers that Fuller, the driver of the truck in this defective condition, was running it at a dangerous and reckless rate of speed, approximately sixty miles per hour, and that the collision and resulting damage to his car was caused solely and only by the gross negligence of the said Fuller in the respects outlined, making his employer, the defendant herein, responsible for the damages that were caused to his car.

The defendant appeared in answer to the petition of the plaintiff and denied each item of negligence charged against the driver of his truck and then, assuming the position of a plaintiff in reconvention, he set out that the plaintiff, without any consideration for the perilous trap which he had created just beyond the crest of a steep hill, hidden in view from oncoming traffic approaching from the south, left his automobile on the highway, unattended and without lights, flags or flares oi any kind as a warning or signal of its presence. He alleged that his truck, which was heavily loaded was proceeding north at a moderate and safe rate of speed and that upon reaching the crest of the hill the driver found himself confronted with plaintiff’s car blocking the highway and that although he did all that was within his power to avoid a collision he was not sufficiently warned of the danger that existed until it was too late for him to avoid the same. He then alleges that the collision and the resulting damage to his truck was caused by the negligent manner in which plaintiff had parked his car on the highway and left it there unattended although he had ample opportunity to have placed it in a less dangerous spot. He set out the damage to his truck as being its total loss; that it had a ceiling value of $985 which amount he should recover from the plaintiff, less the sum of $100, its salvage value.

In a supplemental petition defendant averred in the alternative, that in the event there is any degree of negligence shown' to have existed on the part of the driver of his truck, that the proximate cause of the accident and the resulting damage was the contributory negligence of the plaintiff as set out in his reconventional demand.

There was a judgment in the lower court in favor of the plaintiff in the sum of $500, from which defendant has taken this appeal. Plaintiff did not answer the appeal so apparently he is satisfied with the amount of the award made by the trial judge.

There is no great dispute as to the facts in the case and we believe that the trial judge was correct in reaching the conclusion that the accident was caused solely through the negligence of the driver of the defendant’s truck.

It appears that plaintiff often engaged the defendant’s truck for hauling tung nuts from his farm in Mississippi to a mill at Covington and on its return to Bogalusa it carried a load of tung nut meal to his place of business. That is what the truck was engaged in doing on that day and it was oil its return trip from Covington late in the afternoon, when it was loaded with about 4000 lbs. of meal, that the accident occurred.

After the truck was loaded with the meal it left Covington and proceeded on its way north to Bogalusa. Plaintiff followed it in his automobile and passed it when it was maybe a mile or two outside of Covington. The weather was bad and a misty rain was falling constantly which kept the pavement wet and slippery. Plaintiff proceeded until he crossed the parish line and on reaching a point not far north of it, he noticed the car which had been wrecked and was lying in the ditch o.n the west side of the highway. A truck belonging to M. Marks Sons had stopped on the east side of the road and the two darkies who were in it had already gone to investigate the accident to the disabled car. Plaintiff stopped his car immediately back of the truck on the east side of the road and, as he says the shoulder appeared to him to be a bit soft, he did not park entirely off the paved slab. His estimate is that the left side of his car occupied about one foot or a foot and a half of the pavement. There is testimony to the effect that his car was parked almost on a line with the Marks truck, several paces back of it.

Plaintiff says that he then went to the assistance of the occupant of the wrecked automobile and found that he had been already helped out of his car by the darkies, so he offered to take him to Bogalusa. This party told plaintiff that he had been hunting and as he was about to enter his car he reminded him that he must have had his guns with him so the party went back to the wrecked car to get the gun and it was while plaintiff was waiting for him to return that the truck of the defendant, driven by Daniel Fuller, ran into it and then ran into the truck that was parked ahead of it turning it over. The blow to plaintiff’s car seems to have turned it half way around and it rolled into the ditch, and then completely over-turned with all four wheels straight up in the air. Plaintiff is certain that the lights on his car were burning and he is certain also that there was ample room on the west side of his car for traffic to pass as in fact, several cars did pass while he was investigating the accident to the car that was in the ditch.

Plaintiff’s version of the accident is corroborated by most of the other testimony in' the case and in fact it is not seriously disputed by the driver of the truck except in two particulars. The latter claims that the automobile was parked three feet or more 'on the paved portion of the highway and he also contends that plaintiff stopped anrl parked it some 35 or 50 feet from the brow of the hill which made it impossible for him to see and observe it as he was coming over the hill in his truck because the lights on his truck, as he ascended the hill, projected upwards and did not begin to project downward again until it was too late for him to see the obstruction in the highway ahead of him. That is why he claims he did not see the automobile and the truck parked on the highway until he was within ten feet of the automobile.

We might well assume that plaintiff’s car was parked as much as three feet on the east side of the paved slab on the highway, and yet, as just stated, that would have left enough clearance, as in fact it was shown that it did leave enough for traffic to pass safely by. The important difference between the testimony of the plaintiff and his witnesses and that of Fuller, the driver of the truck, is with regard to how far down the slope of the hill the plaintiff’s car was parked for, we would say, that if it was not more than 35 or 40 feet from the crest of the hill there might be some good reason found in Fuller’s explanation why he did not see it. Commenting on this point, we observe that the district judge after stating what Fuller’s contention was, said that he was satisfied that plaintiff’s car was parked 150 feet down the highway from the brow of the hill and that, we believe, is what a preponderance of the testimony shows. If it was at that distance that would seem to refute, in its entirety, the contention of Fuller that he could not have seen it until he was within ten feet of it.

Furthermore, considering the description we have of the truck Fuller was driving, and its condition, it may well be that he did not see the car until he was within ten feet of it for the testimony shows that the truck had had six years use and was in a rather dilapidated condition. Defendant himself admits that he had to keep it running and that he did so because it was impossible for him to get a truck to replace it at that time. Its more serious defects to be considered in connection with this accident were a cracked windshield and the poor visibility afforded by its headlights. A man who occupied the front seat next to Fuller, on the right, says that the windshield on his side was so cracked and blurred that he could not see through it at all and whilst Fuller says that on his side the windshield was clear there is testimony to the effect that that side was not much better than the other as there were cracks in it also. It is shown definitely by the testimony of more than one witness that the truck had but one headlight burning and that that light was very dim.

Considering the condition of this truck therefore, as well as the condition of the weather at the moment he was driving it on the highway, and considering also the fact that he was going over a hill, it became the obvious duty of the driver to have it under complete control so as to meet any eventuality on' the highway. Fuller says that he was travelling twenty-five or thirty miles per hour but considering the force of the impact with which he struck plaintiff’s car as well as the heavy loaded truck parked ahead of it, we agree with the trial judge that he must have been going at a greater rate of speed than he admits.

There certainly is enough, proof of negligence on the part of the driver of the defendant truck to support the judgment of the lower court and therefore, for other reasons stated, it stands affirmed at the costs of the defendant, appellant herein.

ELLIS, J., absent.


source: Caselaw Access Project

author: DORÉ, Judge.

license: Public Domain

text:
    GOMEZ v. BROUSSARD.
    No. 2996.
    Court of Appeal of Louisiana. First Circuit.
    April 12, 1948.
    Rehearing Denied May 26, 1948.
    See 35 So.2d 477.
    John Fred Odom and Homer J. Belanger, both of Baton Rouge, for appellant.
    Brumfield, Hebert & Rush, of Baton Ppuge, for appellee.
   DORÉ, Judge.

Plaintiff sues the defendant to recover the sum of $1,813.60 for physical pain and suffering and loss of wages he claims to have sustained in an automobile accident between himself and the defendant Roy Broussard while he was driving his 1936 model Pontiac automobile and Broussard was driving a heavy Buick automobile, on the Airline Highway in East Baton Rouge Parish, on February 20, 1946. Plaintiff claims that his car was damaged in the accident and it cost $149.60 for repairs which amount is also included in his total demand.

Fie alleges that he was driving north on the Airline Highway in the direction of the Mississippi River Bridge and it was his intention to turn left in the highway and then into a driveway leading to Guice’s Filling Station which is situated on the west side of the highway; that the highway although consisting of four lanes of travel is so constructed that it has a neutral ground in the center and at regular spaces there is a break in the neutral ground to permit vehicles intending to turn either completely around or into a driveway such as he was attempting to do when defendant ran into his car and caused the damage which he complains of.

Fie alleges that when he reached the break in the neutral ground where he was to turn he brought his car to a complete stop, looked up and down the highway and then gave a hand signal indicating his intention to turn left. That after satisfying himself that he could make the turn in safety he proceeded to make the left hand turn, crossing the neutral ground and west portion of the highway and had already entered the driveway to the filling station when his car was struck with great force by the defendant’s Buick automobile. He avers that at the time of the collision the rear of his car had already cleared the full distance of the western portion of the highway by 15 feet. In order to impress the court with the force of the impact he alleges that his car was lifted over a narrow neutral ground surrounded by a curb 6 inches high, which divides the driveway leading into Guice’s Service Station, and came to rest about 17 feet from where it was struck and that the Buick, after striking his car, turned completely around and came to rest facing the direction from whence it had come.

Plaintiff alleges also that at the time he turned his car to the left he observed the defendant’s car proceeding south along the highway but it was then 600 feet north of the place where he was making his turn and that the collision was due entirely to the excessive speed at which defendant was driving as it is shown that his car left the paved portion of the highway about 100 feet north of the point of impact and it travelled the distance between those two points on the dirt shoulder of the road, but because of the excessive speed he was making defendant was unable to stop in time to avoid the collision. He charges the defendant with negligence in all respects as set out and then alleges the injuries he sustáined which consisted of a painful shaking up and that two fingers of his right hand were twisted and bruised and so severly injured as to render the use of his hand extremely painful; that his back was also injured and pained him constantly thereafter. He claims that he was laid off from work for 12 days and lost wages in the sum of $164. For all of his injuries and pain and suffering he claims the sum of $1,500.

The defendant for answer denies virtually all of the allegations of plaintiff’s petition and then becomes a plaintiff himself in reconvention. He avers that when he saw plaintiff’s car he was then approximately 600 feet from the break in the neutral ground leading into the filling station and he had a right to assume that plaintiff who saw or should have seen him would stop before coming into his lane of traffic. Nevertheless plaintiff did not stop while he was in the neutral ground but continued across the highway in the path of his oncoming automobile. That he guided his car to the right as much as he could in an effort to avoid the collision, having trav-elled on the shoulder of the highway, but his efforts in that direction were unavailable. He avers that the proximate cause of the collision was plaintiff’s own negligence in driving his automobile in front of and across the western line of traffic in which he was approaching in his Buick automobile, without stopping and looking to see if he could make the left hand turn in safety.

He also alleges that his automobile was badly damaged and that he himself suffiered injuries to his head and his back. He claims the sum of $751 for the damage to his Buick and $1,800 for his pain and suffering.

In the alternative he avers that if his re-conventional demand should be rejected then the plaintiff himself was guilty of contributory negligence in making a left hand turn on the highway without stopping and looking to see that it could be made with safety.

Upon trial in the court below there was judgment in favor of the defendant rejecting the plaintiff’s demand and judgment also in favor of the defendant on his re-conventional demand in the sum of $751 for the cost of repairs to his automobile and the sum' of $100 for physical pain and suffering. From that judgment plaintiff has taken this appeal.

It seems clear that the judgment below is correct in so far as dismissing plaintiff’s demand is concerned. The evidence preponderates to the effect that the plaintiff was guilty of gross negligence in that he negotiated the left turn through the neutral ground of the highway without stopping and proceeded across the west lane of travel on the highway after making his turn without paying any attention to oncoming traffic. In other words, he not only failed to stop upon entering the neutral ground, but he failed to keep a proper lookout upon entering the west lane of travel of the highway.

However, we cannot agree with the trial judge that the accident was caused solely by the negligence of plaintiff, Gomez, because on his own testimony the defendant Broussard convicts himself of negligence which contributed to the accident.

Broussard testified that he was driving his 1942 Buick automobile travelling south on the Airline Highway at about 3:20 in the afternoon, going away from the river bridge and at a speed of approximately 35 or 40 miles per -hour; that at a distance of approximately 600 feet he noticed plaintiff Gomez’ car travelling north on the extreme right-hand lane of the Airline Highway with another automobile right behind him. He states that Gomez was apparently trying to beat this other car into his left hand turn and that Gomez made a long sweeping turn and let up on his accelerator “or did something, it died or choked down, he came across the neutral ground just jumping and jerking, just like he didn’t have any brakes and could not stop it, or the car would not run good.” He states that when he perceived that Gomez would not stop in the neutral ground, he assumed his extreme right hand of travel and that as Gomez continued across the highway he cut further to his right, took his foot off the accelerator, and then immediately put his brakes on and that in spite of his every effort to avoid striking the Gomez car, he was unable to do so and struck the Gomez car broadside on the right front door. He estimates the distance at which he perceived that the Gomez car was going to continue across the highway at about 100 feet and that his car, after applying the brakes, travelled some 12 steps on the pavement, which was dry, and then continued with the right wheels on the shoulder, which was wet, a short distance, approximately 25 yards, before he struck the Gomez car and completely demolished his own automobile, which, after striking the Gomez car, wheeled around and came to rest on the shoulder heading northeast. He estimates that the Gomez car, upon making a left hand turn, must have trav-elled about 37 feet, and that he travelled approximately 600 feet during the negotiation of this left turn. He states: “At all times I kept my eyes on his car trying to avoid the accident. Tried to figure out which way the man was going to go.” He denies that he was going at a great rate of speed and he maintains that he did not realize that Gomez would fail to stop when entering the western lane of the highway until after he had entered the western half, and that at that time he was within 100 feet of the Gomez automobile and that he took his foot off the accelerator and thereupon applied his brakes, and that the squeak in his brakes apparently alerted Gomez in his efforts to get across the highway, but that, in effect, when he perceived that Gomez would cross over the highway, he was too far to his right to cut back to the left.

It will be noted from this testimony that the facts are somewhat similar to the case of Redden v. Blythe, La.App., 12 So.2d 728. In the Blythe case the on-coming automobile, driven in a reckless manner, was perceived at a distance of 500 feet, and the court there held that the other driver was put on guard of a possible emergency, and should then and there have exercised caution by slowing down and having his car under complete control.

In this case at bar it will be noted that although this is a four-lane highway with a neutral ground in the middle, the defendant Broussard admits having seen plaintiff Gomez coming from the opposite direction at an apparent rapid speed and with the obvious purpose of crossing over to the left to beat the car behind, at a distance of some 600 feet. There is no showing that he in any way slowed down upon seeing this maneuver, but apparently operated on the assumption that the Gomez car would stop when entering the neutral ground and he made no attempt to slow down or apply his brakes until when within 100 feet of the point of impact, and obviously he must have been travelling at a high rate of speed to have failed to have brought his car under control within even that short distance and to have crashed with such terrific force into the Gomez car. It is our conclusion that the defendant Broussard also was guilty of negligence, contributing to the accident.

It is therefore ordered that the judgment below be amended by dismissing defendant’s reconventional demand and that accordingly there be judgment dismissing both the main demand of plaintiff and the reconventional demand of defendant, all costs of both courts ‘to be paid by plaintiff and defendant in equal proportion, that is, one half by each litigant.

ELLIS, J., absent.


author: KENNON, Judge.

text:
    LEWIS et al. v. PATTERSON et al. (NOLLY et al., Interveners).
    No. 7129.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1948.

    Rehearing Denied April 1, 1948.
    James W. Jones, Jr., of Natchitoches, for appellants.
    Gahagan & Pierson, of Natchitoches, for appellees.
   KENNON, Judge.

This is a suit for partition by licitation of thirty-three acres of land in Natchi-toches Parish, Louisiana. Plaintiffs are W. H. Harrison and the heirs of Douglas Lewis and Simon Sanders. The defendants are the heirs of Lee Patterson.

The petition alleges that W. H. Harrison, Douglas Lewis, Simon Sanders and Lee Patterson acquired a forty acre tract of land in Natchitoches Parish by deed dated January 13, 1911; that four acres out of the forty were sold to Green Grove Church and three acres to the Natchitoches Parish School Board, leaving title to the thirty-three remaining acres in plaintiff, W. H. Harrison (the sole survivor of the four vendees in the 1911 deed) and the heirs of Lee Patterson, Douglas Lewis and Simon Sanders, the three deceased vendees in the 1911 conveyance.

The petition further alleged that the timber was sold from this thirty-three acres of land for $500 and that Allen Patterson, one of the heirs of Lee Patterson, deposited this money in the Bank of Saline on June 9, 1944 in the name of Green Grove Club, and that this money was owned in the same proportion as the thirty-three acres. The relief prayed for was that the thirty-three acres be sold and that the proceeds of the sale and the $500 (less costs) be divided one-fourth to W. H. Harrison and each remaining fourth to the heirs of each of the otljer vendees named in the 1911 conveyance.

Defendants answered and set up that the land in question was purchased in 1911 “out of donations made by approximately twenty-five ciitzens” from among the colored people of the Green Grove community, who had organized themselves for the purpose of promoting community interest in the churches, public schools and other organizations, and that the actual title to the land involved in the present suit “was and is in the citizens of said community.”

Relative to the $500 on deposit in the Bank of Saline, the answer set up further that no portion of this money at any time belonged to the plaintiffs or to defendants; on the contrary, same belonged to the Green Grove community.

The answer further set forth that since the deaths of Lee Patterson, Douglas Lewis and Simon Sanders, the Green Grove community has elected new trustees to serve in the management of the lands and property. These trustees being Edward Nolly, Gus Tobin, Allen Patterson, Davis Nolly and Alfred Nolly, with Allen Patterson as the Chairman and David Nolly as the Secretary of the said trustees. Defendants prayed that the suit be dismissed and that the trustees above named be recognized as the legal trustees to hold title to the property for the community.

Subsequently, a petition of intervention and third opposition was filed by Ed Nolly, Coy Mathews, Richard Tobin, Jim Tobin, Isabell Patterson, Rachal Patterson, Levi Patterson, P. M. Turner, C. W. Walker, Bud Nolly, Otis Patterson and John Jenkis. This petition set forth that the lands in question were purchased as a community venture by citizens organized into what was known as the Green Grove Club, which had a chairman and secretary and held regular meetings; that the money paid the 1911 vendor for the land was contributed in the sum of $4.17 each by various citizens; that W. H. Harrison, Lee Patterson, Douglas Lewis and Simon Sanders, the named ven-dees, were agents and trustees of the club and community in the acquisition of the lands. The petition charged that W. H. Harrison and the other plaintiffs fraudulently had the title to the property placed in the name of the committee as individuals instead of in the name of the club.

The intervenors further set forth that the club and members, including inter-venors, sold the timber on the two occasions and fully exercised control and ownership, collecting the sale price and depositing the funds in the bank in the name of the Green Grove Club, and that the funds now on deposit in the Bank of Saline are funds belonging to the community or the club. In the alternative, intervenors prayed that should the Court order the partition, intervenors and the Green Grove Club should be decreed owners of the funds derived from the sale as well as of the funds on deposit in the Bank of Saline.

The defendants filed a supplementary answer, adopting the allegations of the petition of intervention and again charging fraud on the part of plaintiffs and prayed that the suit be dismissed with costs.

The District Court gave judgment decreeing the thirty-three acres of land and the $500 to be property of the plaintiffs and defendants; directing that the property be sold and that the proceeds of the sale and the $500 on deposit in the Bank of Saline be divided in the proportions of one-fourth to W. H. Harrison and one-fourth each to the heirs of Lee Patterson, Douglas Lewis and Simon Sanders.

The defendants appealed. Intervenors did not appeal.

On the trial of the case, counsel for defendants offered in evidence the minutes of the Green Grove Club, to which counsel for plaintiffs objected on the ground that the purpose of the testimony was to establish title to real estate by parol testimony. The Court sustained this objection. The Court also sustained objection to questions designed to elicit oral testimony that W. H. Harrison, Lee Patterson, Douglas Lewis and Simon Sanders received the 1911 title as agents of the Green Grove Club, and to the circumstances surrounding that sale, including questions as to whether the four 1911 vendees were active members of the Green Grove Club.

The District Court correctly ruled out this parol testimony offered for the purpose of proving that title to the property did not rest in the persons named in the deed of January 13, 1911. Parol evidence is not admissible to create a title in one who never owned the property and this rule against parol also applies when an effort is made to show that ownership was intended to he transferred to one not named as vendee in the act of sale. Civil Code, Articles 2275, 2276, 2292, 2440. Ceromi v. Harris, 187 La. 701, 175 So. 462.

The record shows that on June 9, 1945, a check from the Saline Lumber Company was made payable to W. H. Harrison and A. L. Patterson; that this check was endorsed by both payees and deposited in the Bank of Saline to the credit of “Green Grove Club.”

Granting, for the sake of argument, that the $500 obtained for the timber could legally have been retained by the persons named as vendees in the 1911 deed (or their heirs), the fact remains that they did not secure and obtain possession of the money. The rule that parol testimony cannot be considered in order to determine title to real estate does not apply to parol testimony to support the Green Grove Club’s right to keep possession of the $500 on deposit in its name in the Bank of Saline.

The evidence of Tal Mitchell with reference to this purchase of timber was that he bought it from the community rather than from individual land owners. As he described the transaction, “they had a meeting and I bought it (the timber).” He further testified that he paid the funds to Levi Patterson as secretary of the club. He further testified that W. H. Plarrison, one of the plaintiffs, was present at the meeting and took part in the proceedings.

Title to the check, as an endorsed negotiable instrument, was transferrable by mere delivery, and, when it was deposited in the bank to the credit of the Green Grove Club, that Club became owner of the funds, and the sole right to check out the funds rested with the Green Grove Club, in whose name the funds were deposited.

Under these circumstances, we believe that defendants have successfully defended the Green Grove Club against the contention of plaintiffs that the $500 on deposit in the name of Green Grove Club belongs to the vendees (or their heirs) named in the 1911 conveyance.

For the reasons assigned, the judgment appealed from is amended by inserting the sentence: “Plaintiffs’ demands for the $500.00 on deposit in the Bank of Saline are rejected.” And by striking therefrom the portion directing the Bank of Saline to pay over this $500 on deposit in the name of the Green Grove Club to the Sheriff of Natchitoches Parish and directing his division of same, and, as amended, the judgment is hereby affirmed. All costs in both Courts, including the cost of intervention, to be paid out of proceeds of the sale for partition.


author:
HARDY, Judge.
      KENNON, J.,

text:
    DONNELL v. GRAY.
    No. 7177.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1948.
    Rehearing Denied April 1, 1948.

      J. B. Files, of Shreveport, for appellant.
    T. B. Wilson and W. M. Phillips, both of Shreveport, for appellee.
   HARDY, Judge.

This is a suit by plaintiff, claiming as owner, for possession of certain equipment described as being two 500 barrel steel oil tanks, one 200 barrel gun barrel, and one Ideco pumping unit, which equipment plaintiff alleged to be in the possession of Arthur Gray, defendant herein, and to be located on the site of the Gray No. 2 well in Section 34, Township 22 North, Range 16 West, Caddo Parish, Louisiana. A writ of sequestration issued under which the property described was seized.

Plaintiff claims the ownership of the property described by virtue of purchase from one A. Paul Gilbert on February 21, 1947.

Defendant answered, denying plaintiff’s ownership, and alleged ownership in himself by reason of Gilbert’s abandonment of the equipment which was located on property owned by defendant.

The pertinent facts appear to be as follows :

On September 12, 1941, Arthur Gray, defendant herein, executed an oil and gas lease to A. Paul Gilbert on certain property located in Section 34, Township 22 North, Range 16 West, Caddo Parish, Louisiana, which lease contained the following specific provisions which bear upon the determination of the issues presented herein:

“Lessee agrees to commence operations for the drilling of a well to the Woodbine sand within thirty days from this date and to prosecute the same with reasonable diligence, and this lease shall remain in full force until such well is completed; and as long thereafter as oil, gas or other min-erais are produced thereon from any depth.”
“Lessee shall have the right at any time during or after the expiration of this lease to remove all property and fixtures placed by lessee on said land, including the right to draw and remove all casing.”

There is a conflict of testimony as to when the production of oil from the Gray lease ceased, thereby effecting a termination of the lease, in accordance with the provisions first above set forth, but it is safe to conclude that the cessation occurred either some time in the latter part of the year 1945 or early in 1946. Be that as it may, it is established that the lessee, Gilbert, pulled casing and removed the same, together with other equipment, from the leased premises during the month of May, 1946.

On June 1, 1946, upon advice of counsel, defendant, Gray, directed a letter to one Finley, described as “pumper for A. Paul Gilbert,” which letter contained the following statements:

“You are hereby notified to vacate my property in Section 34, Township 22, Range 16, within 15 days from date hereof as the lease heretofore executed to A. Paul Gilbert has expired and is abandoned. Unless you have removed within 15 days from date of this notice, it will be necessary for me to take necessary legal steps to cause removal.”

The addressee of this notice, Finley, testified that he delivered the same to Gilbert, which testimony is uncontradicted. Finley further testified that he removed some personal property from the lease immediately after receipt of this notice. Gray testified, without contradiction, that after receipt of the notice the oil lines and two derricks were removed from the property and that the tubing of the well was pulled and removed.

The property remaining on the lease, which is the object of this suit, was enclosed by a fence, the. gates of which were kept locked by Gray.

By deed of sale dated February 21, 1947, on a Texas form, and executed in Smith .County, Texas, by Paul Gilbert, the property involved in this suit was conveyed to H. W. Donnell. Testimony on trial of the case developed the fact that this instrument was originally executed as a conditional sale in the nature of security for money advanced by Donnell to Gilbert and to which the right of redemption attached for a period of ninety days. Upon expiration of this period the sale became final, and, a short time thereafter, Donnell made a trip to the Gray lease, found the equipment enclosed by a fence, the gates of which were locked, made inquiry as to the identity of the lessor, but did not contact him. In July or August of 1947, Donnell returned to the Gray lease, contacted Gray and requested the right to remove the equipment, which request was refused. Subsequently, this suit was filed on August 8, 1947.

The only other question of fact which appears to us to bear upon the issues at hand is found in the testimony of the defendant Gray, to. the effect that he had a claim for damages against Gilbert for which no settlement had been made at the time of the abandonment of the lease and the property thereon.

After trial, during which the above facts were developed,, there was judgment in favor of plaintiff maintaining the writ of sequestration and decreeing the ownership of the property described to be in plaintiff and ordering the same delivered to him, from which judgment defendant has brought this appeal.

The contention has been made in this Court by counsel for defendant-appellant that the purported instrument of sale executed by Gilbert to the plaintiff, Donnell, was in fact a mortgage, and, further, that there was no sale, in the absence of any delivery of the property.

Since in our opinion the issue as to the abandonment vel non of the property involved herein by Gilbert, the lessee, is of paramount importance and is determinative of the issues presented, we pretermit a consideration and discussion of the above point.

The burden of the defendant’s claim of ownership of the equipment on the leased property is based upon the proposition that Gilbert, the lessee, abandoned the property by failing to remove the same within a reasonable time after the termination of the lease, and that, as a consequence, the defendant, being the lessor and owner of the leased property, thereby became vested with ownership of the abandoned property.

The question posed is one which has perplexed the courts of many jurisdictions almost since the development of operations for the production of oil and gas has become an industry of importance and moment in our economic life.

In beginning our consideration of the rights of the parties herein, we take note of three well established principles of law, first, that under the landlord and tenant relationship the law recognizes the right of a tenant to remove fixtures placed upon the leased premises for the enjoyment and use of the tenant which can be removed without damage to the leased property, provided the removal is made at the proper time and in a proper manner; second, that personal property placed upon leased premises by a lessee for use in drilling, developing and operating the lease is considered to be “trade fixtures” which may be removed by the lessee either during the term of the lease or within a reasonable time after the expiration or abandonment thereof; and, third, that the provisions contained in agreements of lease governing the time within which the removal of fixtures shall be permitted are construed as permitting a reasonable time after the expiration or termination of the lease, whether the phraseology employed in the agreement specifically denotes a reasonable time or simply employs the expression “at any time,” as is true in the case at hand.

This latter point is well expressed in 39 A.L.R. 1258, and authorities there cited, as follows:

“It seems clear that where a lessee expressly reserves in his lease the right to remove casing, or fixtures generally, he may so remove them within the term of the lease or a reasonable time after its termination; and where he has expressly reserved the right to remove ‘at any time’, the courts hold a reasonable time is contemplated.”

In Louisiana the pronouncement to this effect is definitely stated in Standard Oil Company of Louisiana v. Barlow et al., 141 La. 52, 74 So. 627.

The extreme difficulty encountered by our Courts in adjudicating claims involving the rights of parties disputant to lease equipment arises from the attempt to define with any certainty the phrase “reasonable time.”

An interesting but necessarily inconclusive discussion of this matter is found in 19 Tulane Law Review 229. The conclusion of the article makes the further point that the abandonment of property to such extent as to vest title and control in a third party involves two essential elements, namely, an act of abandonment coupled with an intent to abandon.

Unquestionably, as pointed out in the above noted article, the act of abandonment occurs with the expiration or forfeiture of the lease and the leaving of property upon the leased premises, and the intent to abandon is manifested by the failure of a lessee to remove the property within a reasonable time.

This pronouncement as to the act of abandonment and the intent to abandon was well made by Judge Drew as the organ of this Court in Bickham v. Bussa Oil Co., 152 So. 393. The Court held on the facts that agents of the lessee had been engaged in removing property from the lease over an extended period of time up to a date some three or four months prior to the institution of suit, and, accordingly, concluded that the intention to abandon had not been established.

We think one of the points which has contributed to the extreme difficulty in a determination of the question here involved has been due to the tendency on the part of courts, as well as counsel for litigants, to assume that the time element in itself is controlling. Definitely this element is in no sense conclusive, and, in fact, it is not even persuasive unless it be considered in conjunction with an analysis of the facts involved in each individual case. As was said by the Supreme Court of Oklahoma in Stephens v. Lundy, 172 Old. 79, 44 P.2d 843, 845:

“What is a ‘reasonable time’ is to he determined from all the facts and circumstances of each particular case. Under certain facts, a delay of three months might be considered an unreasonable delay on the part of a lessee of an oil and gas lease to remove his property from the leasehold after expiration or termination of the oil and gas lease, while, under certain other facts, a delay of three years might not be considered unreasonable. Time alone is not the determinable factor.”

We thoroughly subscribe to the doctrine that the mere lapse of a particular period of time cannot be recognized as the standard or gauge by which a “reasonable time” may be measured.

Counsel for plaintiff has specifically cited certain cases in support of the argument that various periods of time extending up to seven years have not been deemed unreasonable, which citations are quoted as follows from counsel’s brief:

“Bickham v. Bussa Oil & Gas Company, La.App., 152 So. 393 — 3 months;
“Armstrong v. Federal Supply Company, Tex.Civ.App., 17 S.W.2d 170 — one year;
“Hubert v. Collard, Tex.Civ.App., 141 S.W.2d 677 — seventeen months;
“Stephens v. Lundy [172 Old. 79], 44 P. 2d 843 — eighteen months;
“McLeon v. Wells, 1944 [207 Ark. 303] 180 S.W.2d 325 — twelve or thirteen months. (This case held that mere delay, without consequent injury to lessor, does not work a forfeiture);
“Cox v. Miller, Tex.Civ.App., 1944, 184 S.W.2d 323 — three years;
“Lecroy v. Barney [8 Cir.], 12 F.2d 363 — nine or ten months;
“Collins v. Mt. Pleasant Oil and Gas Company [85 Kan. 483], 118 P. 54 [30 L.R.A.,N.S., 134] — four years;
“Hoing v. River Valley Gas Company [196 Ark. 1165], 121 S.W.2d 513 — seven months;
“Updegraff v. Lesen (Colorado), 167 P. 342 — nine months. [Note: Last cited case should be 15 Colo.App. 297, 62 P. 342]”.

Inasmuch as we are convinced that the facts of each individual case must be taken into consideration in connection with the actual lapse of a period of time, we have examined the cited cases with care and find that they do not bear out the argument advanced.

In the Armstrong case, while it is true that the lease expired on January 10, 1927, and suit was instituted on January 6, 1928, the Court specifically stated [17 S.W.2d 172]:

“The material issue here presented is the title to the casing in place in said well on December 17, 1927, when Heflin advised the plugging of the well and undertook to perform that service.”

It is obvious, under the above státement of the issue by the Court itself, that the lapse of time considered did not run for a period of twelve months, that is, from January 10, 1927, to January 6, 1928, but only for a period of one month from December 17, 1927, to January 6, 1928.

Similarly, the facts in the Texas case of Hubert v. Collard, supra, remove it from any analogy to the case before us inasmuch as the well was abandoned in June, 1936, but was not plugged in accordance with the rules of the Railway Commission until July 7, 1937. The Court held, therefore, that the right to remove the casing arose only on July 7, 1937, and not in June of 1936.

In the Oklahoma case of Stephens v. Lundy, to which we made reference supra, the facts showed, in the words of the Court:

“The apparent reason why the casing was not pulled and well plugged before May, 1933, was the possibility of other parties taking it over with a view of making a producing well out of it. The lessors indicated same in their answer.”

In the above case the action was begun on the 15th day of May, 1933. The Court called attention to the fact that the notice of termination of the lease, which was caused to be recorded by the lessors in November of 1931, had no bearing upon the ownership of the property located thereon. Quite obviously there was neither an act of abandonment nor any intent to abandon under the circumstances.

In the Arkansas cáse of McLeon v. Wells, the lease was abandoned in November or December of 1941. The lessee attempted to remove the equipment in December of 1942, which removal was opposed by the lessor. Again the facts remove this case from any bearing on the matter before us inasmuch as it was shown that the lessor was receiving an actual benefit in using gas from the well, and that he never asserted any right of ownership until the lessee attempted to remove the equipment.

In the Texas case of Cox v. Miller, cited supra, the question involved the matter of termination of the lease as of September 13, 1939, or September 13, 1942. The facts showed that in the interim the lessee was consistently attempting to find a market which would have made the operation of the well on the leased property profitable through the sale of gas therefrom. The Court very correctly held that in the light of the particular facts the commencement of pulling operations in April, 1943, was within a reasonable time.

In the case of LeCroy v. Barney, cited supra, which arose in Arkansas and was decided by the Federal Circuit Court of Appeals for the Eighth Circuit, the Court based its finding, to the effect that the action in removing casing was not unreasonably delayed because of the lapse of a period of nine or ten months, upon the fact that the procedure for the removal of casing was necessarily in accordance with the rules and regulations of the Conservation Department of the State of Arkansas.

The action in the Kansas case of Collins v. Mt. Pleasant Oil & Gas Co., cited supra, sought the cancellation of a lease and a decree of ownership of the equipment in favor of the lessor. The facts were that the lease was for a five-year period and the action for cancellation was instituted five years and 22 days after the date of the lease. The court granted the cancellation but held the lessees entitled to remove the casing from the wells. While it was true that the last of the wells was drilled more than four years before the action was begun, this fact ceased to be material in view of the effective five-year term of the lease.

The Arkansas case of Hoing v. River Valley Gas Co., cited supra, did not involve the question of the removal of fixtures used on leased premises but concerned the removal of personal property stored on the land of another.

In the Colorado case of Updegraff v. Lesen, cited supra, the Court held that a delay extending from the 18th of April, 1891, to the 22nd day of January, 1892, In beginning the removal of heavy mining equipment and buildings, used in connection with the operation of a leased mine, was not unreasonable. In its discussion of this point the court made the following observations [15 Colo.App. 297, 62 P. 346] :

“Now, a reasonable time is not a fixed period. What would be a reasonable time in one case would not be a reasonable time in another; so that in every case the question what is a reasonable time must be determined from facts and circumstances peculiar to that case. The nature of the act to be done, the situation of the parties, a duty or want of duty upon one to act promptly, and the effect of delay upon the rights of the other, must all be considered.”

In our attempt to arrive at a determination and construction of what constitutes a reasonable time, we have examined numerous other cases and texts, among which are Southwestern Oil & Gas Co. v. Kimball, O. & D. Co., Tex.Civ.App., 224 S.W. 1111; Terry v. Crosswy, Tex.Civ.App., 264 S.W. 718; Shellar v. Shivers, 171 Pa. 569, 33 A. 95; Houston & T. C. Railway Co. v. Roberts, 101 Tex. 418, 108 S.W. 808; Perry v. Acme Oil Co., 44 Ind.App. 207, 88 N.E. 859; Michaels v. Pontius, 83 Ind.App. 66, 137 N.E. 579; Childs v. Hurd, 32 W.Va. 66, 9 S.E. 362; 2 Thornton on Oil and Gas, pages 1342, et seq.; 3 Summers on Oil and Gas, Perm.Ed., § 526; 40 Corpus Juris 1101; 33 Cyc.. pages 1567, 1568.

On the basis of our study of the many authorities on this point we are confirmed in the following conclusions:

(a) That the use of the words “at any time” in a lease agreement in connection with the right of removal of. equipment is synonomous with the phrase “a reasonable time,” and
(b) That the determination of what constitutes a reasonable time must rest upon the facts involved in each individual case.

Our finding of facts which are pertinent in a determination of the issue tendered by this case are that the lease agreement between the defendant, Gray, as lessor, and A. Paul Gilbert, as lessee, was terminated either in the latter part of 194S or the early part of 1946; that some equipment was removed at intervals between the early part of 1946 and June of the same year; that a written notice to vacate, which we consider implied the demand to remove the equipment remaining, was conveyed to Gilbert, as lessee, by Gray’s letter of June 1, 1946; that after June, 1946, the lessee, Gilbert, made no attempt whatsoever to claim ownership or to remove the equipment remaining on the leased premises; that from June, 1946, until August, 1947, at which time this suit was filed by this plaintiff as assignee of Gilbert, no attempt was made by any party to claim ownership or to remove the equipment remaining on the leased premises.

We think the act of abandonment has been conclusively established, and it is therefore necessary that we proceed to a consideration as to the showing of an intention to abandon.

In connection with the intention to abandon, we think it has been established that some dispute did exist between Gray, the lessor, and Gilbert, the lessee, at the time that Gilbert removed portions of the equipment on the leased premises with respect to damages to the leased property, asserted by Gray to have resulted from the lessee’s operations thereon.

It is significant that Gilbert has not appeared in this matter for the purpose of establishing the absence of any intention to abandon the property which he left upon the leased premises. It is further significant that the defendant, Gray, emphatically asserted his ownership and his protection of the equipment on his property through the means of a locked enclosure thereabout.

So far as we can determine from the record, there has been no act on the part of Gilbert since June of 1946 which would negative the presumption of abandonment, and the intention to abandon. It is, of course, asserted on behalf of plaintiff that Gilbert ceased to have an interest in the property after May of 1947 when his right of redemption under the sale agreement of February, 1947, had terminated. We cannot construe this fact as being of sufficient weight to overbalance Gilbert’s failure for almost a year to take any steps to assert ownership and to acquire possession of property which he had left under the cloud of a dispute with his lessor and with respect to which he had taken no steps to enforce any right.

In Louisiana Oil Refining Co. v. Haltom, 188 Ark. 117, 64 S.W.2d 98, 99, the right of a lessee to replevin equipment on a lease was denied. The lease provided for the removal “at any time.” The specific question was considered as to whether the lessee did any act between June 1, 1931, and August 16, 1932, which would indicate he had not abandoned the property and the question was resolved in the negative.

In the instant case we do not consider that the lapse of time in itself is determinative of the issue presented, but we do think that the facts stoutly substantiate the conclusion that there was an actual abandonment, coupled with an intent to abandon, which endured for a period of not less than fourteen months after the partial removal of equipment from the lease by the lessee. This conclusion being considered in connection with the open and consistent actions of the lessor, Gray, in asserting and protecting his rights, we believe requires a reversal of the judgment herein.

Accordingly, it is ordered that the judgment appealed from be and it is annulled, avoided and reversed, and there is now judgment rejecting plaintiff’s demands, dissolving the writ of sequestration issued herein, and further decreeing the ownership of the two 500 barrel steel oil tanks, one 200 barrel gun barrel, and one Ideco1 pumping unit, skid-type, twin-crank, to be vested in Arthur Gray, defendant herein.

It is further ordered and decreed that plaintiff-appellee be taxed with all costs of both Courts.

KENNON, J.,

dissents, being of the opinion that the District Court was correct in ruling that the lessor had not acquired title to the property placed on the leased premises by the lessee under the provisions of the lease, which provided that the lessee had the privilege of removing his property at any time before or after the expiration of the lease. I agree with the general proposition in the majority opinion that the provision providing that a lessee may remove his property “at any time” must necessarily be interpreted to mean a reasonable length of time after the expiration of the lease, but believe that under the finding of fact in the majority opinion, a reasonable time had not expired at the time plaintiff endeavored to remove the property from defendant’s premises.


author: McBRIDE, Judge.

text:
    TORNABENE v. RAU.
    No. 18898.
    Court of Appeal of Louisiana. Orleans.
    April 12, 1948.
    Kullman & Lang, of New Orleans (Seme S. Klegar, of New Orleans, of counsel), for plaintiff and appellee.
    Alwyn J. Justrabo, of New Orleans, for defendant and appellant.
   McBRIDE, Judge.

This is a suit wherein plaintiff claims that his taxicab-was damaged as the result of a collision with defendant’s truck, at the intersection of North Front and Bien-ville Streets in New Orleans, on August 26, 1947, at about 8 o’clock A.M. and he seeks reimbursement for the cost of repairs and for loss of earnings whilst the repairs were being made.

The petition alleges that plaintiff was driving his cab abreast of the truck, which was driven by defendant’s employee. Both vehicles were travelling on North Front Street, which is a two-way street, in an uptown direction, or toward Canal Street. At the moment of the collision defendant’s driver was attempting to make a left turn into Bienville Street in the direction of the Mississippi River. The charges of negligence against defendant’s driver embrace failure to maintain a proper lookout, and failure to give any signal.

The defendant admits ownership of the truck and that it was being driven by his employee, but he denies that his driver was guilty of any negligence, and alleges that the collision resulted solely from plaintiff’s fault, in that plaintiff was travelling at an excessive rate of speed and could not control his car, and that he illegally attempted to pass the truck at the intersection.

The -lower court heard the case on its merits, and judgment was rendered for plaintiff for $214.73, the amount claimed; the defendant has taken this appeal.

As is usual in most cases involving collision of vehicles, there is conflict in the testimony of the two drivers, but on the essential points plaintiff’s statements are supported by the testimony of two persons who were passengers in the cab. There is nothing in the record showing exactly how far behind the truck the taxicab was travelling, but it is clear that when the truck reached a point about thirty feet from Bienville Street plaintiff sounded his horn, having in mind the intention of passing the truck. The truck then pulled to the right, and plaintiff believed that this movement was made by the truck’s driver to accommodate plaintiff’s passage. Just as the cab reached about the middle o-f the intersection, the vehicles being then nearly abreast, with defendant’s truck a little in the lead, the truck made a turn to the left, with the result that the right front part of the taxicab struck the truck a glancing blow on the left end of its front bumper. The truck driver admitted that he was travelling on tlie right-hand side of his traffic lane, and that he heard the horn signal given by plaintiff. He insisted that he had completely stopped at the moment of the accident, but in this detail he is contradicted by Sam Coley, who was riding in the truck with him.

Upon being interrogated as to whether he had given a hand signal before attempting the turn, defendant’s driver stated that he put out his hand a few feet before reaching Bienville Street, but withdrew it upon hearing the horn signal from plaintiff’s car. Plaintiff and two passengers in the cab stated that they saw no signal given by the truck driver.

Article VI, Sec. 1, sub-secs, (a), (b) and (d), of Ordinance No. 13,702, C.C.S. of the City of New Orleans (which regulates traffic on the city’s streets), provide that the operator of a vehicle who intends to stop or turn must give a visible signal to vehicles in the rear, and that in the case of a left turn he must extend his left arm in a horizontal position at least fifty feet before the turn is attempted.

The admissions of defendant’s driver clearly demonstrate a non-compliance with those provisions of the ordinance, for even assuming that he did put out his hand a few feet from the intersection and immediately withdrew it upon hearing the sounding of plaintiff’s horn, as he testified, he did not comply with the provisions of the ordinance.

The truck driver also frankly stated that he was travelling on the right-hand side of his traffic lane, and commenced the turn from that position. This also clearly establishes a violation of the ordinance, and particularly Sec. 2(b), which provides that the operator of a vehicle, intending to turn left at an intersection, shall approach the turning point in the lane for traffic to the right of and next to the center of the roadway.

The courts have repeatedly held that a motorist intending to make a left turn at an intersection must first ascertain by proper observation that the maneuver can be executed in safety, and then proceed cautiously and carefully. See Gaines v. Standard Accident Ins. Co., La.App., 32 So.2d 633, and the many cases therein cited.

We experience no difficulty in concluding that defendant’s driver acted without due care, caution and circumspection in maneuvering his truck into a left turn, which is a most hazardous operation, directly in the path of overtaking traffic, particularly when he had knowledge of its presence, having heard the horn signal from plaintiff’s vehicle.

Defendant’s counsel first argued that the sole cause of the accident was the negligence of plaintiff, who he claims was travelling at a high and excessive rate of speed, and attempted to pass the truck at the intersection, all in violation of the city ordinance. But we deem it unnecessary to investigate the merits of defendant’s charges imputing negligence to plaintiff, and it can avail him nothing, as we have already found defendant’s driver negligent in attempting to turn the .truck left in the manner above indicated.

The defendant’s attorney, in brief and in oral argument, next contends that the plaintiff was guilty of contributory negligence of such nature as to preclude his recovery. From an examination of the answer it is to be noted that defendant specially denied that his driver was at fault, and affirmatively averred that the sole cause of the accident was the negligence of plaintiff, the details of which were particularly set forth. Nowhere in the answer is there to be found the plea, in the main or in the alternative, that plaintiff’s negligence was a contributing cause of the accident, and in the absence of such plea, which is an affirmative one, we are not at liberty to examine into that defense raised by defendant for the first time in his brief. It is well established that contributory negligence is a defense which must be specially pleaded in order to warrant its consideration. Althans v. Toye Bros. Yellow Cab Co., et al., La.App., 191 So. 717.

Defendant does not dispute the amount awarded plaintiff by the trial court, and it appears to us that the quantum allowed is correct. Plaintiff testified that he expended $144.73 for repairing the right front door, radiator and right front fender of the cab, and exhibited a bill from the French Market Garage, which performed the work, marked paid. In addition, plain-tiff paid $7.50 for .towage of the damaged cab to a garage.

Plaintiff has been engaged in the business of operating a taxicab for about six years. He operated the cab himself during the daylight hours, and at night rented it to another driver and received rental of $5 per night. The automobile, while being repaired, was out of operation for a period of seven days, and plaintiff lost the night rental for that period, besides his earnings, which he testified were from $8 to $10 per day, from his own operation of the cab.

The judgment awarded plaintiff $214.73, which was the amount claimed by him, and we detect no error therein.

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

Affirmed.


author: JANVIER, Judge.

text:
    SHEEHAN et al. v. HANSON-FLOTTE CO. et al.
    No. 18748.
    Court of Appeal of Louisiana. Orleans.
    April 12, 1948.

      George Piazza, of New Orleans, for appellant Sewerage & Water Board of New Orleans.
    Godfrey Z. Regan, of New Orleans, for appellant Mrs. Laura Trahan Sheehan.
    St. Clair Adams & Son, of New Orleans, for defendants-appellees.
   JANVIER, Judge.

Edward Thomas Sheehan, an employee of the Sewerage & Water Board of New Orleans, was killed on June 21st, 1946, when the emergency repair truck of the Board, which he, as its employee, was operating, came into collision with a truck of the Hanson-Flotte Company, a partnership, at the corner of Fern and Oak Streets, in New Orleans. The Sewerage & Water Board, having effected a settlement of its liability under the Workmen’s Compensation Laws of Louisiana, Act No. 20 of 1914, as amended, under which it agreed to pay to Sheehan’s widow $14.04 per week for three hundred weeks, together with $300.00 of the funeral expense, and having thus become subrogated to that extent to the rights of Mrs. Sheehan against any tort-feasor who might be legally liable, joined with Mrs. Sheehan in bringing this action based on the allegation that the collision was caused by negligence of the driver of the Hanson-Flotte truck. The Sewerage & Water Board prays for judgment for such amount as it has paid or may pay to Mrs. Sheehan and Mrs. Shee-han prays for judgment for $15,000.00, subject to the rights of the Sewerage & Water Board.

During the course of the trial it developed that one of the children of Mr. and Mrs. Sheehan, Rudolph E. Sheehan, had not reached the age of majority and was, therefore, a minor and should have been joined as a party plaintiff. By consent, therefore, the Court permitted the minor to be joined as a party plaintiff and later Mrs. Sheehan qualified as natural tutrix of the said minor and, on 'his behalf, filed a petition asking that he be made party plaintiff with her.

The defendants are the partnership known as Hanson-Flotte Company, John D. Hanson and James J. Flotte, Jr., the members of the partnership, the Massachusetts Bonding and Insurance Company, the liability insurance carrier of the said partnership, and Squire Davis, the employee of the partnership who was operating tile truck at the time of the occurrence of the collision.

The defendants denied that there was any negligence on the part of Squire Davis and, in a supplemental answer, the Hanson-Flotte Company and the individual members of the partnership, - averring that the accident was caused solely and entirely by the negligence of Sheehan and averring also, in the alternative that it appear that there was negligence on the part of Squire Davis, that the accident was caused by the contributory negligence of Sheehan, prayed for judgment against the Sewerage & Water Board in the sum of $300.00, which they allege to be the cost of repairing the damage sustained by their truck.

There was judgment dismissing the main demand and on the reconventional demand there was judgment in favor of the Hanson-Flotte Company and the individual members of the partnership in the sum of $300.00. From this judgment plaintiffs have appealed.

The accident occurred in the afternoon at about 2:30 o’clock. The weather was clear and the streets were dry. The truck of the Hanson-Flotte Company was on its way down Oak Street and the Sewerage & Water Board truck was going out Fern Street towards the Mississippi River, so that the Hanson-Flotte truck approached the other from the right-hand side. Neither street at that point was recognized under the City Traffic Ordinance, No. 13702 C. C. S., as a right of way street, but since the Hanson-Flotte truck was approaching from the right side of the other truck, it was entitled to the right of way if the two trucks reached the intersection at about the same time, that is, if the other did not enter the intersection sufficiently in advance to entitle it to the right of way 'by reason of preemption.

The City Traffic Ordinance provides: “When two vehicles enter an intersection at the same time (other than through streets and boulevards) the preference belongs to the driver on the right. If two vehicles approach an intersection the first to enter the intersection has preference.” (Rule 6-c.)

It is charged in the petition that Squire Davis, the driver of the Hanson-Flotte truck, was guilty of negligence in that he was operating the truck at a speed in excess of thirty miles per hour, and in that he entered the intersection without stopping and without making certain that it was safe to do so. It is also charged that he violated the right of way provision of the Traffic Ordinance for two reasons “(1) That the truck of Hanson-Flotte Co. approached the right side of the Sewerage & Water Board of New Orleans truck; (2) that the said Sewerage & Water Board of New Orleans truck entered the intersection first and had gone more than half way across before the truck of Hanson-Flotte Co. entered the intersection * * We say in passing that it is obvious that whatever the facts, the allegation that the truck of the Sewerage & Water Board was entitled to the right of way for the reason that the other truck was approaching from its right, obviously results from a misreading or misunderstanding of the provision of the traffic ordinance which we have already quoted.

The defendants deny that Davis was in any way at fault and charge that Sheehan was negligent in the following particulars:

That he drove his truck at a speed of approximately forty miles per hour; that he failed to stop or reduce his speed as the truck, which he was operating, entered the intersection; and that he entered the intersection without taking proper precautions “when he knew or should have known that vehicles approaching from his right on Oak Street had the right of w&y - ^ * * ”,

There were several persons who testified that they actually witnessed the collision, but plaintiffs rely almost entirely on the physical facts which they assert show that the driver of the Hanson-Flotte truck was negligent, on the testimony of the driver of that truck who said that after looking into Fern Street when his truck was about fifty feet from the intersection he did not look again and did not know that the Sewerage & Water Board truck was also entering the intersection, and they rely to a very large extent on the testimony of certain “experts”, who, from, the physical facts and from the photographs, testified that it was obvious that the Sewerage & Water Board truck had either stopped or practically stopped and that the Hanson-Flotte truck dashed into it at a very high rate of speed.

As we have said, the driver of the Hanson-Flotte truck, Squire Davis, admitted that he did not look into the intersection again after his first glance when he was about fifty feet from the intersection, and that he entered the intersection at a speed of between fifteen and twenty miles per hour and did not see the other truck until he had reached the center of the intersection when he looked to his left and saw the other truck about five or six feet away.

In view of these admissions we have no difficulty in reaching the conclusion that Davis was, to some extent, at fault and that had he been operating his truck carefully there would have been no accident.

And counsel for plaintiffs relying on this negligence confidently assert that there can be no doubt of the right of plaintiffs to recover.

But there is in the record a plea of contributory negligence and there is also a finding of the district judge to the effect that the negligence of, Sheehan, himself, was the sole cause of the accident. That this was the finding of the district judge is made evident by the fact that he rendered judgment not only against plaintiffs on the main demand, but in favor of plaintiffs in reconvention on the reconventional demand, and is also made evident by his written reasons: “Four eyes (testimony of two women eye witnesses) is a safer evaluation for a Court to determine legal responsibility, than a hundred theories of experts.”

Counsel argue that when the Hanson-Flotte truck was fifty feet from the intersection, Davis, its driver, could have seen into Fern Street for a distance of one hundred and fifty-five feet and since he did not see the Sewerage & Water Board truck there can be no doubt that this failure was the sole cause of the accident.

They overlook the fact that Sheehan, too, could just as readily have seen the Hanson-Flotte truck and yet obviously did not do so. They overlook also the fact that, unless the Sewerage & Water Board truck reached the intersection sufficiently in advance of the other truck to entitle it to enter first and preempt the intersection, the other truck, under the already quoted provision of the traffic ordinance, was entitled to the right of way.

When we use the word “preempt” we do not attribute to it the meaning which counsel for plaintiffs seem to understand that it has. It does not mean that, where one vehicle, by traveling at an excessive rate of speed, is able to enter the intersection when the other which is approaching it is still a few feet away, the first has preempted the intersection and is entitled to cross regardless of what may otherwise have been the right of way. It does not mean that two drivers may race to see which can enter first and that then the one who does enter first may say that he has established his preemption. It merely means that if two vehicles approach an intersection at proper speeds and with the exercise of ordinary precautions and yet one enters sufficiently in advance of the other to justify the belief that it may continue across without danger, it may do so regardless of the fact that the other has approached from the right and would have had the right of way but for the advance position of the first.

If a decision on the question of whether Sheehan was guilty of contributory negligence depended solely on the testimony of the eyewitnesses, there could be no doubt whatever of the outcome because these witnesses were unanimous in the view that the Sewerage & Water Board truck entered at high speed and without stopping or substantially reducing its speed.

Miss Marcia Sbisa and a guest, Mrs. C. C. McCann, were on the front porch of the residence of Miss Sbisa, which was very close to the corner where the accident occurred. Both say that they saw the actual impact between the two trucks. Miss Sbisa says: “I would say that the black truck coming on Fern Street was going at a much greater rate of speed than the blue truck was going, and I am not a driver and I can’t accurately say the speed, but I would judge it to be over thirty-five miles an hour for the black truck and between twenty and twenty-five for the blue truck. That is my estimation on it, but I couldn’t say as an authority on it.”

Mrs. McCann said that when she first saw the two trucks the Sewerage & Water Board truck was traveling “thirty-five to forty miles per hour”.

Joseph A. Pierce was on the sidewalk walking towards the intersection. The accident occurred when he reached a point about twenty-five feet away. He said ■“ * * * all at once the Sewerage & Water Board truck dashed out of Oak Street * * * He later corrected this to read Fern Street.

Davis, the driver of the Hanson-Flotte truck, said that when he first saw the Sewerage & Water Board truck (when it was five or six feet from his truck) it was proceeding at a speed of thirty-five to forty-five miles per hour.

Counsel for plaintiffs attack the credibility of each of these witnesses. They say that Mrs. McCann and Miss Sbisa were obviously not paying attention to the trucks before the accident occurred, because they were having difficulty in opening the front door of Miss Sbisa’s residence, and it is thus apparent that they were not noticing what was going on on the street. Counsel also say that both of these ladies testified that their attention was first called to the impending accident by the screeching of brakes and, therefore, since they did not turn towards the intersection until they heard this screeching of brakes, they obviously could not have seen the trucks until just a fraction of a second before the impact.

We do not agree with counsel and it is evident that the trial judge did not agree with them because, as we have already shown, he decided the case largely on the testimony of these two ladies.

Counsel also say that the witness Pierce should not be believed because he became confused during the course of his testimony and obviously gave much incorrect testimony concerning directions, etc. As a matter of fact, the district judge, at the close of his testimony, said that “it is confusion after confusion”. That is quite true, and yet a reading of the testimony of this witness leads us to believe that he was relating the facts as he had seen them and that he was convinced that the Sewerage & Water Board truck entered the intersection at a very high speed and did not stop or slow down.

Counsel also attack the testimony of Davis, which is to the effect that the Sewerage & Water Board truck was traveling at a speed of thirty-five to forty-five miles per hour, charging that he could not have properly estimated this speed since he did not see that truck until it was five or six feet from the point at which the impact occurred. It is true that Davis may not have been able, under the circumstances, to make an accurate estimate of the speed, but surely, he saw the other truck sufficiently in advance of the impact for him to realize that the truck was traveling at high speed, and surely the result of the impact was such as to justify his conclusion that the speed was excessive.

There is much confusion among the experts and eyewitnesses as to the location of skidmarks on the street and as to whether some of the marks which were shown in the pictures were actually skidmarks at all, but we think that the record leaves little doubt that the Sewerage & Water Board truck did skid for a considerable distance — approximately thirteen feet— either just before the impact or immediately after it.

There is a physical fact which the experts point to as indicating that the Sewerage & Water Board truck had practically stopped when it was struck by the Hanson-Flotte Company truck, and that is, that the Sewerage & Water Board truck, after the impact, completely reversed its position, headed in exactly the opposite direction from which it was going when it entered the intersection, and turned over on its right side. This turn, referred to by counsel for plaintiffs, as a “U turn”. was made so sharply that it is very evident that the truck could not itself have rolled in that direction and that something else must have caused it to turn so sharply from its course, to reverse itself and then to turn over on its right side. The experts are of the opinion that this resulted from the terrific force of the blow from the other truck, but we are not certain that if the Sewerage & Water Board truck had been stopped or practically stopped, it would have been physically possible for another truck to strike it on its right front wheel a blow sufficiently hard to knock it completely around and then to turn it over on its right side. We think that this would more likely have resulted from its own momentum had the two vehicles come together, as obviously they did, with the right front wheel of the Sewerage & Water Board truck and the left front wheel of the Hanson-Flotte truck coming into contact. If the Sewerage & Water Board truck was moving at high speed and, if its driver, suddenly realizing that it was about to strike or be struck by another vehicle on its right, turned its wheels as sharply to the left as he could, and the evidence shows that he did this, then the momentum of his own vehicle would have been sufficient after that vehicle was so sharply deflected from its course, to cause that vehicle to overturn towards its right, with the result that it would skid slightly and then reverse its position as this vehicle did and turn over on its right side.

Of course, in making these statements we are indulging in theories just as the experts have done. We are inclined, however, to take the position of the district judge and to say that whatever the theories may be, the testimony of the actual eyewitnesses, who say that they saw the two vehicles enter, both at fairly high speeds, and strike in the middle of the intersection, is much more apt to represent the correct picture of what actually occurred.

We think that the district judge was obviously correct in his conclusion that Sheehan, himself, was guilty of negligence. We disagree only to the extent that we think that the driver of the Hanson-Flotte truck was also guilty of negligence, without which the accident would not have occurred. We conclude, therefore, that there should not have been recovery on the reconventional demand.

The judgment appealed from is amended to the extent that the reconventional demand is now dismissed. In all other respects the judgment appealed from is affirmed at the cost of plaintiffs.

Amended and affirmed.


author: DORE, Judge.

text:
    CAIN v. DELTA TANK MFG. CO., Inc.
    No. 2995.
    Court of Appeal of Louisiana. First Circuit.
    April 12, 1948.
    Huckabay Seale & Kelton, of Baton Rouge, for appellant.
    Ernest A. Carrere, Jr., óf New Orleans, for appellee.
   DORE, Judge.

This suit is to recover compensation at the rate of $20.00 per week for a period of not exceeding 400 weeks, plus medical expenses not exceeding $500.00, on account of an injury received by the plaintiff on or about the 16th day of January, 1947, which injury is alleged to have caused bilateral herniae or both a left and a right inguinal hernia, causing total and permanent disability. Plaintiff alleges that he did not, at the time of the accident, realize the nature or consequence of his injury and continued in the employment of defendant until on or about January 26, 1947, when he was laid off in a general lay-off; that on the 30th of June, 1947, he was notified by his employer, defendant herein, to return to work and in order to resume his former duties he was required to submit himself to a pre-em-ployment physical examination by Dr. James R. Godfrey, defendant’s physician, which said examination disclosed that he had double herniae, or both a left and a right inguinal hernia. He alleges that from the time he was laid off until he was called back to duty, he was not employed and drew and accepted, for such period, weekly unemployment benefits without knowledge of his disability. The defense is that the plaintiff did not receive any accident in the scope and course of his employment resulting in or causing the bilateral herniae and the accompanying disability.

Thus, there was presented only one issue in the lower court and that was whether or not plaintiff sustained the herniae in the course and scope of his employment with the defendant company. The trial judge found that plaintiff had failed to prove with legal certainty that he sustained the herniae in the course and scope of his employment and dismissed his suit. Plaintiff has appealed.

Plaintiff testified that he started working for the defendant in the latter part of 1943 and worked until some part of 1945, when he was laid off as the result of a general lay-off. He was rehired in the latter part of 1945 and worked until the latter part of January, 1947, and was then released in a general lay-off. On or about January 16, 1947, he was screwing fittings in a pump with a 24-inch Stilson wrench. While pulling with his full strength on the wrench, the wrench slipped causing him to lose his balance and going over backwards for a distance of ten feet, hitting something on the floor and finally landing on his buttocks on a box. He wrenched or turned his left ankle. Pie experienced the “severest” pain in his left ankle. He states: “I hurt myself when I hit the box or whatever I hit, but I thought it was just a jar, and got sick at my stomach.” He was sick about twenty minutes. His foreman told him to report to the first aid office. He reported to the first aid within twenty minutes after his fall. He told the nurse at the first aid station that he had fallen and had hurt his ankle and being sick at the stomach. He knew that he had a bruise in the lower part of his abdomen; it was a burning feeling but did not care to show it to the nurse, nor did he tell her about it. From then on he was put on light duty and was finally laid off in the general lay-off on January 26, 1947. He immediately applied for unemployment compensation and thereafter went to his home northeast of Denham Springs, where he started a garden. His work consisted of plowing and hoeing to a small extent. On or about June 30, 1947, in obedience to a notice to return to work, he visited Dr. Godfrey’s office for a pre-em-ployment examination, and then was shocked to know that he had bilateral her-niae. According to his testimony, outside of pains from his ankle, which abated prior to his termination on January 26, 1947, he had had no pains or any indication whatever that he had or was developing a hernia.

Ivy Pearson, a fellow employee, testified that plaintiff was putting a piece of pipe in a pump with a wrench; the wrench slipped and plaintiff ran backward and sat down on a box about seven feet away. He spoke to plaintiff and plaintiff’s only complaint was that he had hurt his ankle. Plaintiff did not complain of any pains in his stomach, did not mention or complain of any bruises in the lower region of his body, nor did he mention that he was nauseated, at the time of the accident nor while working from the time of the accident to his termination nor since.

Jim Henry Street, a fellow employee, testified that, during the lay-off period between January and June of 1947, he and the plaintiff would come to the union hall at Baton Rouge three or four times a week seeking employment; that the plaintiff did not complain or indicate that he had pains in his stomach, nor did he say anything about being hurt in the lower regions of his stomach or 'being hurt thereabouts. He and Cain went together for the pre-employment examination and Cain was the first to be examined. On coming out of the doctor’s office, Cain said “Boy, I am in terrible shape.” Cain was white and said “I am ruptured on both sides.” Cain did not know it until then. Cain, during the lay-off period, farmed about three acres.

Sam C. Chambers a first cousin of plaintiff, testified that during plaintiff’s lay-off period he, plaintiff, continually complained of pain in his lower stomach and sides and that he had been sick practically all of the time. This is diametrically opposed to the testimony of Street and plaintiff. From the examination of this witness by the trial judge, it appears his testimony did not impress the trial judge.

Dr. Charles McVea, a medical expert called by plaintiff, testified that he examined plaintiff on August 19, 1947, and that he found that plaintiff had definite hernias on both sides. The doctor states that from his examination he could not tell anything about the age of the bilateral herniae. He did not find any tenderness or soreness of any par-ticlar moment on either side. He was then asked the following questions and answered as follows:

“Q. Ordinarily would a recently developed hernia give indications of tenderness? A. A very recently developed hernia might show some tenderness or soreness, probably would but not necessarily so.
“Q. From a hypothetical standpoint would it have been possible for the plaintiff in this case to have sustained a hernia in January without having knowledge of it until subsequent examinations? A. Yes, Sir.
“Q. Would that necessarily have been accompanied by nausea or other indications? A. No, Sir.”

On cross-examination, the doctor states that if the plaintiff had sustained a hernia at the time as a result of the fall and the hernia was the size that it was at the time of the examination, plaintiff would have some pain in his lower abdomen or at least some burning sensation in his lower abdomen in the region where the hernia occurred. He might or might not have nausea or vomited. The predominant usual indication of this type-of hernia is a burning sensation in the region of the hernia. Plaintiff did not inform him when the hernia. occurred. The doctor concluded by saying that he questioned plaintiff relative to the- occurrence of the hernia and plaintiff hold him that he first knew that he had a hernia after his pre-employment examination on or about June 30, 1947.

George Mathew Ellis, Jr., plaintiff’s foreman, a witness for the defendant, testified that plaintiff was tightening up a piece of pipe into, a meter which was located in a vice. The wrench slipped and plaintiff took several steps backwards and sat down on the concrete floor. He immediately went over to plaintiff and asked plaintiff if he was hurt. Plaintiff replied that he thought that he had sprained his ankle. He is emphatic that plaintiff’s only complaint to him was that he had hurt his ankle; plaintiff did not complain of any nauseated feeling in his stomach; he did not complain of any burning sensation in his lower abdominal region. He instructed plaintiff to go to the first aid station, and that plaintiff left, within five minutes from the time of his fall, the scene of the accident, and walked, unassisted, to the first aid station. After the accident and for the remainder of plaintiff’s employment, he, plaintiff, made no complaint, other than his ankle, particularly he made no complaint whatever relative to his lower abdomen and stomach.

J. B. Best, defendant’s superintendent and a witness for defendant, .testified that he had occasion to talk to plaintiff subsequent to the accident of January 16th, and that plaintiff made no complaint to him of any pain in his lower regions, meaning his stomach or abdomen, nor did he complain of any hernia which he may have sustained on the job. lie stated that, as plaintiff previously testified, that he, plaintiff, was dismissed in the general lay-off about January 26, 1947, as a result of the reduction in the force.

Miss Gladys Felps, a registered nurse then in charge of the first aid station, now in the employ of the Lady of the Lake Hospital, a witness for defendant, testified that on or about January 16, 1947, at about seven o’clock, P.M., plaintiff came to her first aid station, as he had done several times before, with the complaint that “My wrench slipped while I was working on a pump, screwing fittings in it. I fell backwards on the ground and sprained my ankle”, it being her duty to reduce complaints to writing on her reports in complainant’s own words, and which duty she performed. She' also had been admonished or warned to be on the lookout for herniae, and she is emphatic that plaintiff made no other complaint to her on that evening and particularly that he did not complain to her of any injury or pain in his lower regions, meaning his stomach; that he did not tell her that he had been nauseated as a result of the fall; that-he did not mention any bruise sustained in the lower regions, and in general, any other symptoms of hernia, otherwise she would have noted it on the card and would have given him a slip to see a ■doctor.

The defendant then called Dr. Arthur N. Houston, a general surgeon of the City of New Orleans, who examined plaintiff, and Dr. James Robert Godfrey, the surgeon who rejected plaintiff for re-employment in June, 1947.

Dr. Houston testified that plaintiff, at the time of his examination (which, we gather from his testimony, was on the day of trial, October 7,1947) had bilateral inguinal herniae. He was of the opinion that the herniae were not caused by the accident of January 16, 1947, for the reason that the directional force, falling backward in a sitting position, would not cause the downward strain on the inguinal canal; he was of the opinion that directional force would have been toward his back. He was of the opinion that plowing in the field was of such a nature of strain as to cause an inguinal hernia. He states that the herniae are very early, and very small and he was of the opinion that they were of recent origin. However, on examination by the court, the doctor admitted that there was no definite way for a doctor to determine the age of a hernia. On cross-examination the doctor would not say if the herniae existed prior to or in January, 1947. He cannot state how progressive the herniae have been. He concludes his testimony by stating that had plaintiff sustained a traumatic hernia such as related in this case, that plaintiff would have had accompanying pain at the time of the trauma.

Dr. Godfrey testified that he found that plaintiff had small bilateral inguinal her-niae; that plaintiff stated to him that he was unaware that he had any herniae and that he expressed surprise that he had the herniae. Plaintiff suspected nothing whatever was wrong with his inguinal regions; plaintiff did not inform him of any accident or receiving any pain in the lower regions or of any nausea or vomiting while on the job at defendant’s plant. The doctor states, as his opinion, that if a man sustained a hernia from a single traumatic accident, or if a man was predisposed to hernia, plus a traumatic accident, which resulted in the final breaking of the tissues, that such an individual would experience soreness and pain would persist for several days, anywhere from a week or two weeks. On examination by the trial judge the doctor states that he can’t tell if the herniae were old or not. He states that in the event that in the event that a man is predisposed to hernia and he undertakes plowing in the field and the usual normal occupation of a farmer, such activity could bring about the final break in the inguinal system.

Defendants then offered a series of complaints by plaintiff to defendant’s first aid station during the period of his employment.

Under the testimony as detailed above, the lower court, in his reasons for judgment, states: “To say that these herniae were a result of the accident which he is alleged to have sustained in January, 1947, would be a guess of the rankest kind and one in which this court will not indulge. In compensation cases, as well as in other cases, the burden of proof is on the plaintiff to prove to a legal certainty the allegations of his petition. This he has failed to do, and for this reason I am of the opinion that this suit should be dismissed.”

It is incumbent on the plaintiff to show a causal connection between the accident of January 16, 1947, and his present condition. In other words, the burden of proof is on him to establish, with a reasonable certainty, that the accident caused the herniae with which he is now suffering. We have only his testimony that he was sick at the stomach and had a bruise on his lower regions immediately after the accident. In that, he is not borne out by any of his co-employees. He did not complain to anyone at the scene of the accident to have been hurt outside of his ankle. His foreman testified that plaintiff complained of nothing else but of his ankle. His co-employee, Pearson, testified to the same effect. During plaintiff’s many visits to Baton Rouge with his co-employee, Street, plaintiff made no reference to having suffered any burning sensation of pain in his lower region either at the time of the accident or thereafter. Although plaintiff states that he told Miss Felps of being sick at the stomach, she emphatically denies that plaintiff made any complaint whatsoever save the complaint relative to his ankle. The preponderance of the medical testimony is to the effect that if the accident had caused these herniae plaintiff would have had a burning sensation in the lower region and that the pain and soreness would have persisted for a greater length of time than to walk from the scene of the accident to the first aid station and that plaintiff would have shown some sign of such pains, such as paleness of the face, and would have informed his foreman and the nurse. The series of complaints of plaintiff to the first aid office filed in evidence clearly shows that plaintiff was a chronic complainant and had he received any symptoms of hernia, he would have readily and willingly informed Miss Felps thereof.

It is true that we have held in some cases that a claim for compensation may be proved by the testimony of plaintiff alone, but in such cases the testimony was reasonable and consistent and was supported by the surrounding circumstances. In this case we do not find his testimony reasonable and consistent and is not supported by the circumstances detailed supra.

In this court, plaintiff strongly relies on the cases of Hill v. J. B. Beaird Corporation, 19 So.2d 295 and Dortch v. Louisiana Central Lumber Co., La.App., 30 So.2d 792. A careful reading of these cases clearly shows that the cases are inapposite to the case at bar.

Suffice it to say that we find no error committed by the trial judge, 'but to the contrary, we are in full accord with his conclusion therein.

For these reasons, the judgment appealed from is affirmed.

ELLIS, J., absent.