author: HARDY, Judge. PER CURIAM.

text:
    REGIONAL AGRICULTURAL CREDIT CORPORATION v. ELSTON et al.
    No. 7105.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    Rehearing Denied Nov. 26, 1947.
    William H. Cook, of Shreveport, and Harold Moses, of New Orleans, for appellant.
    Morgan, Baker & Keels and Turner B. Morgan, all of Shreveport, for appellees.
   HARDY, Judge.

This is a suit by plaintiff as the holder and owner for value and before maturity of a certain promissory note signed by the defendants, Robert D. Elston and Dudley C. Elston, to recover the face amount of the said note in the full sum of $2,500 with interest at the rate of 5% per annum from March 23, 1943, together with 10% upon said sum of principal and interest as attorney’s fees, less, however, a credit of $922.-63 paid by defendants on February 6, 1945. From a judgment in its favor in the amount of $671.77, with interest and attorney’s fees, plaintiff has appealed.

The basis upon which this action is predicated and the burden of the defense are succinctly and ably stated by the learned trial judge in his opinion on the merits as follows:

“On March 23, 1943, the defendants executed and delivered to plaintiff through its loan agent for Bossier Parish, John H. Rachal, a promissory note for $2500.00, due March 25, 1944, identified with a chattel mortgage on Chickens. The loan was made to enable Robert D. Elston to increase his production of chickens and eggs, thus furthering the government’s program to increase the production of food during the war.
“The note is unpaid, except for a credit of $922.63, which sum resulted from a liquidation of the poultry project, and was paid and accepted without prejudice before the suit was filed.
“The defense to the suit is set forth fully in the answer. Briefly, it is that defendants understood when they executed the note that it was to be payable from the net proceeds of the poultry project, and that if the project failed to earn enough to pay the loan, there would be no personal liability on the part of defendants to pay the balance. Plaintiff was engaged in making loans to encourage more production of foodstuffs. Two types of loans were being made — one called F-l, on which the borrower was personally bound, and F-2, •on which the personal liability was conditional.”

The disposition of this appeal must rest purely and simply upon a determination of an issue of fact, namely, whether or not the defendants in good faith believed, and were justified in believing, that their execution of the note sued upon involved no personal liability on their part.

The conception of the negotiations which are involved in this case took place in the early part of the year 1943 during which time considerable publicity was being given to the efforts of the government to increase the production of foodstuffs during the war emergency period through the agency of plaintiff. It is definitely established that there were two types of loans contemplated by the government, which were distinguished as F-l and F-2 loans. Under the provisions of bulletins and directives, which have been made a part of the record in this case, the details in connection with the distinction between these two types of loans are made explicit. F-l loans, which involved personal liability on the part of the borrower, were designed, in accordance with the announced purpose of the program, “to provide adequate financing to assure maximum wartime production of essential agricultural commodities”. F-2 loans, which provided only a contingent personal liability on the part of borrowers, were designed to aid and encourage the production of “essential war crops”, which crops were specifically designated by name in the bulletins and directives relating to this character of loan.

The defendant, Robert D. Elston, at the time referred to, was engaged in the business of poultry raising in Bossier Parish. Interested by information as to the government’s program in making advances for financing this nature of undertaking, young Elston made inquiry as to the details. In pursuit of this inquiry, accompanied by his father, the defendant Dudley C. Elston, one J. S. Pratt was contacted. At the time Pratt was the chairman of the Bossier Parish War Board, and it is primarily upon his testimony that the defendants rely in support of their defense in this case.

Pratt testified that he advised the Elstons that there would be no personal liability on a “chicken loan”. The value of the testimony of this witness is considerably weakened by the fact that on cross-examination he testified to the effect that he knew there were two types of loans, and that he was reasonably familiar with the bulletins and regulations governing these loans. Despite these facts, Pratt testified that he thought the chickens would stand good for a loan of this nature, and that he thought he got the idea from one of the bulletins, but the witness could not identify any bulletin which would sustain this impression. He further testified that he talked to a representative of the plaintiff corporation, but he could not name nor identify the representative.

The sum and substance of the testimony of the Elstons and the witness Pratt is that all three were under the “impression” that the loan did not involve personal liability. The testimony of all three of these witnesses refers to Pratt’s “understanding” and “interpretation” of the regulations governing the loan and the nature and extent of liability thereon.

We have no doubt that in the initial stages of this transaction defendants assumed they could borrow this money from the government agency without personal liability. But, opposed to the contentions of defendants that they remained under this impression, is the testimony of plaintiff’s loan representative, John H. Rachal, its clerk, M. N. Wingett, and the Secretary-Treasurer of the Shreveport Credit Production Association and Parish representative of the plaintiff corporation, S. T. Hamiter, all of whom state that they advised defendants of the distinction between F-l and F-2 loans.

Obviously there is a sharp conflict of testimony on this point which our distinguished brother of the district court resolved in favor of defendants. With due regard to and respect for his reasons, we cannot agree with the conclusion reached and we believe our learned brother was led into error by his failure to accord serious consideration to other factors of evidence apart from the testimony of the witnesses in this case.

First, we call attention to the fact that the regulations governing F-2 loans specifically provide for personal liability for the full amount of the advances made, except in such instances as the County War Board might certify. These requirements, as definitely stated in the bulletin or directive governing F-2 loans, are set forth as being that :

“1. The borrower has used the amount advanced for producing the crops for the production of which the advance was made;
“2. The borrower in good faith has diligently applied principles of good husbandry to the production of such crops;
“3. The borrower has applied an amount equal to all proceeds of such crops to the repayment of the advance; and
“4. Such amount has been insufficient to repay the advance in full.”

That these requirements were recognized by defendants is evidenced by the diligence with which distinguished counsel for defendants in his conduct of the examination of witnesses attempted to show full compliance therewith by the defendants.

The defendant, Robert D. Elston, was the party primarily at interest since the undertaking was his individual venture. However, since at the time of the negotiation of the loan the said named defendant was in class 1-A under Selective Service regulations and therefore subject to call, it was required by plaintiff’s representatives that Dudley C. Elston, the father of defendant, Robert D. Elston, join in the execution of the note. We feel that this fact in itself is significant since such procedure would have been unnecessary and superfluous, if, as contended by defendants, they were uninformed as to any personal liability for repayment of the loan. This requirement is a circumstance which argues convincingly in support of the testimony of plaintiff’s representatives to the effect that they acquainted defendants with facts and details as to their personal liability on this obligation.

The testimony and the evidence in the record conclusively establishes the fact that the borrowers in this case did not make any application of the proceeds from this poultry and egg producing venture to the repayment of the advance. The only credit on the obligation, to the extent of $922.63 made on February 6, 1945, represented the sum derived from the sale of chickens. To this amount, by the judgment of the district court, has been added an additional sum of $671.77, representing the cost of the building of a two-story chicken house and the purchase of a water pump, which expenditures were made by defendants out of the proceeds of the loan and which were retained by them.

In further evidence of the fact that defendants did not comply with the requirements above enumerated, which would have absolved them from personal liability, there was introduced on behalf of plaintiff upon trial of this cause the copy of a letter directed to Mr. R. D. Elston et al., under date of June 27, 1944, by one J. T. Coleman, Secretary of the Bossier USDA War Board, which letter we quote in ex-tenso as follows:

“Benton, Louisiana
June 27, 1944
Mr. R. D. Elston et al.
McDade
Louisiana
Gentlemen:

The USDA War Board of Bossier Parish reviewed your 1943 F-l loan on the date of June 22, 1944.

The Board decided to recommend to the RAOC General Office that your note be extended from its due date until June 22, 1945, and they are also going to recommend you be allowed to retain the amount you submitted in your statement as ‘Cash in Bank’ as of June 1, 1944, of $592.63 to be used by you to help defray expenses during low production season on account of high price of chicken feed.

They are requesting this loan be extended at thi's time, and that it be paid in full on or before June 23, 1945.

You should hear within a few days whether this recommendation being, made by the War Board will be accepted by the General Office of the Regional Agricultural Credit Corporation.

Very truly yours,
J. T. Coleman
Secretary, Bossier
USDA War Board”

In our opinion the implications of the above communication are inescapable and amount to notice to defendants that payment of the obligation in full would be expected.

If, as contended by defendants, they were totally unaware of any obligation of personal liability, it is more than passing strange that the record in this case does not disclose any protest on their part. The failure of defendants to establish any objection on their part to this character of notification is weighty indication of the fact that they were not at the time relying upon freedom from personal liability.

It would be difficult to reconcile the conduct of reasonable business men, under the facts and circumstances of this case, with the conclusions reached by defendants. As was said by Judge Taliaferro in his opinion in Dealers’ Finance Company, Inc., v. Woodward, La.App., 151 So. 145, 146:

“Signatures on promissory notes are not mere ornaments. They mean something and import some legal liability, or else they would not be required.
“ ‘And parties who sign negotiable instruments, or other solemn obligations, must expect to be held liable according to the tenor thereof’. Thompson & Co. v. Sporl, 160 La. [352], 359, 107 So. 135, 138.”

In this case the burden was clearly upon defendants to establish their defense, in which effort, in our opinion, they have utterly failed. On the contrary it appears evident to us that the question of the existence of personal liability vel non was not a controlling nor, indeed, even a pertinent influence in the negotiation of the loan by the defendants.

There is a great deal of testimony and evidence in the record of this case, as made up, with reference to the re-execution of the note and certain instruments in connection therewith on the part of defendants; mimeographed letters sent out by the Department of Agriculture and received by defendants, and other matters which we do not consider to be pertinent to a determination of the case, for which reason we have refrained from burdening this opinion with references thereto, preferring to strip from the record what we regard as the essential ' elements directly bearing upon a determination of the liability of these defendants.

For the reasons assigned the judgment appealed from is amended and recast to read as follows: “It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Regional Agricultural Credit Corporation of Washington, D. G, and against the defendants, Robert D. Elston and Dudley C. Elston, in solido, in the full sum of $2,500.00, with interest thereon at the rate of 5% per annum from date of March 23, 1943, until paid, and an additional 10% on both principal and interest as attorney’s fees, subject, however, to a credit of $922.63 as of February 6, 1945, together with all costs of both courts.”

KENNON, J., absent.

On Application for Rehearing

PER CURIAM.

It is noted that counsel for defendants, in written application for rehearing, has drawn certain inferences from the wording of a portion of the Court’s opinion on original hearing which are clearly erroneous. The particular paragraph of the opinion to which reference is made is the one in which we stated that the question of the existence of personal liability was neither a controlling nor even a pertinent influence in the negotiation of the loan by the defendants.

The only clear implication in this statement, and the only one which the Court intended to be found therein, was that the loan was negotiated by the defendants for the primary purpose of acquiring funds for the expansion of the poultry business in which the defendant, Robert D. Elston, was engaged at the time. This fact was made exceedingly clear, or so we thought in an earlier reference in the opinion of this Court in which we said: “The defendant, Robert D. Elston, at the time referred to, was engaged in the business of poultry raising in Bossier Parish. Interested by information as to the government’s program in making advances for financing this nature of undertaking, young Elston made inquiry as to the details.”

With reference to this point the Court was not dealing in assumptions nor was it travelling outside of the record but rather it was basing its conclusion upon the testimony of the defendants, and any inferences by defendants’ counsel as to any hidden meaning in the Court’s observation are un-. warranted.

The application for rehearing is denied.

KENNON, J., absent.


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    TRAINA v. FRANK JORDANO & CO. et al.
    No. 18651.
    Court of Appeal of Louisiana. Orleans.
    Dec. 1, 1947.
    Robert L. Hickerson, of New Orleans,, for plaintiff-appellee.
    Bernhardt C. Heebe, of New Orleans, for defendants-appellants.
   JANVIER, Judge.

This is a suit for a balance of $141.50> which plaintiff, John Traina, claims is due-him by defendants, Frank Jordano & Company, a partnership, and its individual, members, Frank Jordano and Mrs. Mary Sciambra Jordano, who conduct a’ real estate business and who, according to the-plaintiff, have failed and refused to turn, over to him a balance in their hands resulting from a sale by them of certain real estate which plaintiff owned and sold. through said agents, who, he alleges collected the installment payments which were made on the said sale.

Defendants deny any indebtedness to plaintiff, and, assuming the position of plaintiffs in reconvention, aver that the plaintiff is indebted to them in the sum of $35 “paid to S. A. Calongne’s Sons, Civil Engineers and Surveyors, for making a ■survey of said property owned by the said John Traina.”

From a judgment in favor of plaintiff ■as prayed for and dismissing the recon-ventional demand, defendants have appealed devolutively and suspensively.

The district 'judge has set forth his reasons for judgment in writing. They ■contain a statement of the issues involved ■and so clearly set forth our views that we have decided to adopt those reasons as our own. They now follow:

“Plaintiff brings this suit against defendants, claiming the sum of $141.50, together with legal interest from February 28, 1946, ■until paid, representing the amount which •defendants collected for plaintiff’s account under a written contract dated December 4, 1942, and the supplement thereto dated April 29, 1943.
“The supplemental and amended petition ■of plaintiff fully sets forth his cause of action.
“Defendant originally filed an exception •of vagueness to the original petition, but before the exception was filed plaintiff filed his supplemental petition, and the defendants immediately filed their answer, which was a general denial coupled with a •so-called reconventional demand for $35.00. No special plea in compensation and set-off was filed.

“On the trial of the case, when the defendants attempted to introduce evidence for the purpose of pleading compensation and set-off, objection was promptly made by counsel for plaintiff on the ground that the claim of $110.00 for an alleged commission was unliquidated, whereas the plaintiff’s claim was liquidated, being money collected under the written contract. When defendants sought to introduce evidence on the reconventional demand, plaintiff’s counsel promptly objected on the ground that the demand was not fully pleaded, or, in other words, was vague and indefinite; that if there was any agreement for the payment of the survey amounting to $35.00, being the basis of the reconventional demand by plaintiff, it should have been in the original contract further that the survey, having been made on October 30, 1942, any claim for reimbursement had prescribed. No written plea of prescription was filed, but it is unnecessary to pass on the plea for the reasons hereinafter set forth.

“While the Court permitted the evidence to be introduced in support of the plea of compensation and set-off and the reconventional demand, having referred the objections to the effect, it came to the conclusion, after a review of the evidence, that the objections to such evidence should have been sustained, and therefore, in' arriving at its judgment, which was rendered on January 10th and signed on January 16th, 1946, excluded said evidence and rejected the claim of $110.00 representing the alleged commission claimed by defendant and the item o-f $35.00 representing the cost of the survey.

“Article 367 of the Code of Practice reads as follows: “ ‘The defendant may plead compensation, or set-off at every stage of the proceedings, provided it be pleaded specially.’
“In Robert v. Blythe Co. Inc., La.App., 145 So. 15, at page 16, the Court held:
“ ‘ “The plea being in the nature of a demand should specify the particular amount to be compensated, the manner in which the right thereto was acquired, and every circumstance of time and place to be given in other demands; otherwise, no evidence will be admissible under it.” ’ (Citing numerous authorities.)

“Aside from the question as to whether the debt which was sought to be set up in compensation was equally liquidated, the law requires that the plea in compensation and set-off be specially pleaded in detailed specification', just as is required in reconventional demands. This was not done, and, therefore, the Court did exclude all of the said evidence in reaching its decision herein.

“As to the claim of plaintiff for $141.50, same has been fully proven. The defendants did not deny same. The statement prepared by defendants5 own auditor and approved by defendant furnishes ample proof.”

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

Affirmed.


author: McBRIDE, Judge.

text:
    WALKER v. JOSEPH P. GEDDES FUNERAL SERVICE, Inc.
    No. 18628.
    Court of Appeal of Louisiana. Orleans.
    Jan. 21, 1948.
    Rehearing Denied March 1,1948.
    Leo. L. Dubourg, .of New Orleans, for plaintiff-appellant.
    Lemle, Moreno & Lemle, of New Orleans, for defendant-appellee.
   McBRIDE, Judge.

This is an appeal by plaintiff, Calanthe Olivier Walker, from a judgment rejecting her claim against Joseph P. Geddes Funeral Service, Inc., for $15,545 for injuries sustained by her mother, Mrs. Thomas Walker (known as Lily Walker), and for her ensuing death, through the alleged negligence of the employees of the defendant.

Plaintiff alleges that on January 31> 1943, her mother became ill while at work at 4104 St. Charles Avenue, and that defendant was employed to remove her by ambulance to plaintiff’s home at 919 Mar-engo Street; that while the employees of - defendant were carrying her on a stretcher, they negligently dropped her, as a result of which she sustained a severe blow on the head, contusions of the arm and a broken right hip, which brought about her death.

Defendant admitted its employment for the alleged purpose, but denied that Lily Walker died as a result of injuries received in falling from the stretcher. ■ •

The lower court rejected plaintiff’s demands.

The facts show that plaintiff is the only child of Lily Walker, issue of her marriage with Thomas Walker, deceased. Lily Walker had been employed by Mrs. Albert Mackie as a domestic and companion for approximately 48 years; she was born in 1867, and at the time of her death was 76 years of age; she lived at the home of Mrs. Mackie. On Sunday morning, January 31, 1943, at about 5 o’clock, Mrs. Mackie, upon being summoned by one of the male servants, found Lily Walker on the floor of the lower back hall leading to the kitchen, and ascertained that she had suffered a stroke. Lily Walker was carried to her room on the second floor and placed in bed, and later that afternoon defendant’s ambulance was sent to take her to plaintiff’s home.

The ambulance attendants found that it was impossible to maneuver a stretcher along the back stairway, and for that reason Lily Walker was carried into the principal part of Mrs. Mackie’s home so that she could be taken down the front stairway. There is a landing about midway on this stairway, and while being carried down Lily Walker slipped from the stretcher, feet first, to the stairs, falling for a distance variously estimated at from 2½ feet to 4 feet. This stairway was covered with a carpet, and beneath the carpet was a felt pad.

Two employes of the defendant made the visit to Mrs. Mackie’s home, and they enlisted the services of Columbus Noble, Mrs. Mackie’s chauffeur, and Steve Johnson, her butler, to help carry out the stretcher bearing Lily Walker.

Plaintiff charges that defendant’s employees were negligent in permitting her mother to suffer the fall; that the injuries received brought about total paralysis of the entire right side of her body, and that the injuries and shock which she .sustained brought about her death.. Plaintiff claims that she is entitled to recover $10,000 for the loss of the love, affection and companionship of her mother, and the further sum of $5,000 which Lily Walker would have recovered had she lived, and also the sum of $545 for the expenses of the burial of Lily Walker.

The evidence shows that early in the morning of the day on which the accident occurred, Lily Walker had suffered the stroke aforesaid; that on that afternoon, before the arrival of defendant’s ambulance, Dr. P. L. Querens, under whose care Lily Walker had been for several years, was summoned to treat her for the stroke. Dr. Querens found that “She had a cerebral hemorrhage; in other words a hemorrhage into her brain; she had severe convulsions. She had suffered with high blood pressure for' a long period and she had a cerebral hemorrhage, giving her a severe convulsion.” He further testified that she showed no signs of paralysis at the time, was subconscious, and that her condition was very grave. He remained with her for about one-half an hour; he again saw her the next day at the Marengo Street address, at which time she was unconscious, and his examination disclosed that the patient had contusions of the right face, the right forearm, and the right thigh, all of which appeared to be about the size of 2 inches by 2 inches.

Lily Walker died on February 7, 1943, and according to the certificate of death executed by Dr. Querens, the primary cause of death was cerebral hemorrhage, and the contusions of the face, right forearm and right leg were listed as contributing causes.

Dr. C. Grenes Cole, Coroner for Orleans Parish, who testified for defendant, stated that he held an autopsy on the body of the deceased, and that he found evidence of contusions on the right side of the head in the temporal region, and slight contusions of the right forearm and right leg.

Victor L. Chauvin and Arthur Richardson, the employees of the defendant, testified. Both described in detail how the stretcher was carried down the stairway, and agreed that Lily Walker slipped out of the right side through the right front corner1 of the cot. It is quite apparent from the testimony that as the two persons carrying the front end of the stretcher stepped down the stairway, they failed to raise the stretcher to compensate for the lower level upon which they were standing, causing it to incline towards the front end. Under the circumstances, there is no doubt that defendant’s employees were guilty of negligence.

As before stated, Lily Walker lived for seven days after the fall from the stretcher, and the question is tendered whether the injuries which she received caused or accelerated her death.

Lily Walker suffered the stroke on January 31, 1943, and her condition was considered by Dr. Querens as “very grave.” She was mortally ill when placed upon the stretcher by defendant’s employees, but notwithstanding her debility the defendant owed her the duty of safely transporting her in its ambulance. The law is well settled that the duty of care and of abstaining from injuring another is due to the weak, the sick and infirm equally with the healthy and strong, and when there is a violation of that duty the measure of damage is the injury inflicted, and if a pre-ex-isting disease is brought to a crisis by negligence, a recovery for personal injuries resulting therefrom is authorized against the wrongdoer, as well as a recovery for death resulting from the accident. Lapleine v. Morgan’s L. & T. R. & S. S. Co., 40 La.Ann. 661, 4 So. 875, 1 L.R.A. 378; Shaffer v. Southern Bell Telephone & Telegraph Co., et al., 184 La. 158, 165 So. 651, 655. In the latter case the Supreme Court said:

“In Behan v. John B. Honor Co., 143 La. 348, at page 351, 78 So. 589, 590, L.R.A. 1918F, 862, this court said: 'But it is well settled in the jurisprudence elsewhere that the fact that a person was already afflicted with a dormant disease that might some day produce physical disability is no reason why he should not be allowed damages or compensation for a personal injury that causes the disease to become active or virulent and superinduces physical disability.’ Citing Hilliard v. Chicago City R. Co., 163 Ill.App. 282; Larson v. Boston Elevated R. Co., 212 Mass. 262, 98 N.E. 1048.
“In Hooper v. Standard Life & Accident Ins. Co., 166 Mo.App. 209, 148 S.W. 116, it was held that: ‘Where a man is so afflicted that he will die from such affliction within a very short time, yet if, by some accidental means, his death is caused sooner, it will be a death from “accident,” within the meaning of the terms of an accident insurance policy.’
“There can be no doubt such is the law, because it has been adopted by practically every court which has had occasion to pass on the question. And it follows, of course, that if a pre-existing disease brought to a crisis by accident authorizes a recovery for personal injuries resulting from the accident it also authorizes a recovery from death resulting from the accident.”

In Louisville & N. R. Co. v. Northington, 91 Tenn. 56, 17 S.W. 880, 882, 16 L.R.A. 268, the court said: “* * * A man might be suffering from an incurable disease, or a mortal wound, with only two days to live, when a negligent wrong-doer inflicted upon him an injury which in his condition of debility took his life, or developed agencies which destroyed him in one day, and yet the latter wrong be in a legal sense the cause of his death, though it only hastened that which on the next day would have inevitably happened. * * * ”

The Supreme Court of Alabama, in Louisville & N. R. Co. v. Jones, 83 Ala. 376, 3 So. 902, 904, said: “ * * * Even if Mrs. Jones had pneumonia, or incipient pneumonia, at the time she received the injury, and it could be known that she would ultimately die of that disease, this would not necessarily, and as a matter of law, relieve the railroad of all responsibility. If the injury was caused by the negligence of the railroad company, under the rules declared above, and if it contributed to and hastened her death, then the corporation would not be guiltless. Tidwell v. State, 70 Ala. 33; Whart.Hom. § 382. This would be so in criminal prosecutions, and must be at least equally so in a civil suit, such as this. In such case the wrong and injury are, in fact, the cause of the death. * * *”

See also Meekins v. Norfolk & S. R. Co., 134 N.C. 217, 46 S.E. 493, where it was held that recovery might be had for a death if the cause was a disease but the disease was accelerated and death hastened by the negligent act of the defendant.

In San Antonio Public Service v. Mitchell, et al., Tex.Civ.App., 238 S.W. 265, 267, we find the following language: “If, as the jury must necessarily have found, the injury to Mrs. Mitchell so weakened her powers of resistance to the attacks of the tuberculosis germs that they seized upon and destroyed, or impaired, her lungs, and thus hastened her death, then the proximate cause of her death was the negligence of appellant. * * * ”

The burden rested upon plaintiff to prove that the injuries resulting from the fall caused or accelerated the death of Lily Walker. The only medical evidence is that of Dr. P. L. Querens, and Dr. C. Grenes Cole, the coroner. Briefly summarizing the testimony of the former, we find that Lily Walker had suffered from high blood pressure and was under his care for some years preceding her death. Dr. Querens stated that in his opinion the fall reduced the chances of Lily overcoming her condition brought about by the stroke, and that without the fall her chances of recovery would have been better. His testimony is to the effect that her blood pressure on March 31, 1941, was 220 over 140, which was a warning sign of the likelihood of a hemorrhage, and that when a person of her age with that blood pressure suffers a hemorrhage there is very little chance of a recovery. He stated also that when he saw her on January 31, 1943, before the fall, his prognosis was that her condition was very grave. He was asked if, in his opinion, the patient would have died had she not suffered the contusions and bruises, and he answered: “A strong possibility, yes.” He was then asked by plaintiff’s attorney: “But would you say that it did cut off some expectancy?”, to which he replied: “I feel certain that they did. If you want nay opinion, that is my opinion.”

Dr. C. Grenes Cole, the coronen held an autopsy which showed, “hypertension, generalized arteriosclerosis, cerebral hemorrhage, apoplexy, contusion of right side of head, temporal region, slight contusion of right forearm and right leg, with no evidence of fracture.” He said, “It wasn’t as massive a hemorrhage as you get from a traumatic condition, like a subdural hemorrhage, as you would get from a massive subdural hemorrhage”, and that the cause of the hemorrhage “was a break in the cerebral vessels, a rupture of the cerebral vessels.” He further said, “The vessel had ruptured and there was a hemorrhage outside the vessel, in the ventricle”, and “She showed definite manifestations of arteriosclerosis, and, from the extent of it, I would judge that she had had it for some time.” The vessels showed considerable age and the hemorrhage was sufficient to cause death. He said the contusions on the side of her face were superficial and were not sufficient to cause death, and “I didn’t think that they had anything to do with the cause of death.”

On cross examination Dr. Cole stated, “I don’t know that the fall played any part at all in this case; in my opinion it did not.” He further said, “I don’t think this fall hurt this woman at all.” He testified that in his opinion the fall played no part in, producing her death, because “I think that she had a sufficient hemorrhage to cause her death before they ever put her on the stretcher.”

There existing this irreconcilable conflict in the testimony of the two physicians, we are unable to say that plaintiff has carried her burden of proving that the contusions sustained by her mother following the fall from the stretcher in any wise accelerated her death. As a prerequisite to a recovery, it was incumbent upon plaintiff to successfully make such showing, and our opinion is that she has not done so.

The court below evidently believed that the testimony of Dr. Cole should prevail, otherwise the plaintiff’s suit would not have been dismissed. Some of the medical testimony was taken by agreement of counsel out of the presence of the court, and our careful reading of the record leads us to the conclusion that the trial court’s findings of fact are correct. Dr. Querens admitted that he could not state definitely that Lily Walker’s death was hastened by the fall, and the judgment appealed from is correct insofar as it absolves defendant from liability for the death of Lily Walker.

However, plaintiff has claimed the sum of $5,000 “which her mother would have recovered had she lived” and this claim poses a different proposition. Article 2315 of the Civil Code provides in part: “Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children, including adopted children, or spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving brothers and sisters, or either of them, for the space of one year from the death; provided that should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and minor children; provided further, that the right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children. * * *"

The Supreme Court has held that if a person is injured by the fault of another, a right of action arises at once in his favor, and in case of his death, survives in favor of the particular beneficiaries named in the above quoted paragraph of the article, whether the deceased died from the particular injuries received, or from other causes. Payne v. Georgetown Lumber Co., 117 La. 983, 42 So. 475; Badie v. Columbia Brewing Co., 142 La. 853, 77 So. 768; Thompson v. New Orleans Ry. & Light Co., 145 La. 805, 83 So. 19; Reed v. Warren, 172 La. 1082, 136 So. 59; Norton, et al., v. Crescent City Ice Mfg. Co., Inc., 178 La. 135, 150 So. 855; Thompson, et al., v. Travelers Ins., Co., et al., 182 So. 356.

The physical injuries sustained by Lily Walker, according to the medical testimony, appear not to have been serious, but nonetheless she did sustain some injuries, and had she lived she would have been entitled to a recovery against the defendant for them. There is a conflict in the testimony as to whether Lily Walker was conscious when she was placed on the stretcher; Dr. Querens’ testimony is to the effect that she was subconscious, and that when he saw her the following day she was unconscious. We believe that the defendant would have been liable to Lily Walker for damages in a nominal amount, had she survived the stroke, and whatever right of action she would have had was transmitted, upon her death, to the plaintiff. In view of the superficial injuries sustained by Lily Walker, and of the doubt which exists as to whether she experienced pain as a result thereof, we believe that an award of $100 to plaintiff would be adequate compensation for the injuries, pain and suffering sustained by Lily Walker through the defendant’s negligence.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered, adjudged and decreed that plaintiff have judgment against the defendant for the sum of $100, with legal interest from judicial demand; defendant-appellee to pay all costs.

Reversed.


author: HARDY, Judge.

text:
    GRANT v. CONSOLIDATED UNDERWRITERS.
    No. 7127.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 26, 1947.
    Rehearing Denied Dec. 17,1947.
    Theus, Grisham, Davis & Leigh, of Monroe, for appellant.
    Charles H. Morton, of Jonesboro, for appellee.
   HARDY, Judge.

This is a compensation suit in which plaintiff claims to have been injured while in the employ of one Joe McAllister (or McCallister), who, according to the allegations of the petition, was either a subcontractor of Gross and Janes Tie Company, or an independent contractor. The defendant is the insurer for Gross and Janes Tie Company.

Defendant’s answer denied that plaintiff was ever in the employ of Gross and Janes Tie Company, or that of any contractor or sub-contractor of said Company.

There is no dispute as to the facts with reference to the injury and the sole question involved herein is concerned with a determination of the relationship between Gross and Janes Tie Company and Mc-Allister.

After trial there was judgment in favor of plaintiff awarding compensation at the rate of $17.8714 per week during the period of disability not exceeding 400 weeks, together with $500 for medical and hospital bills, from which judgment the defendant has appealed.

The record establishes the facts that plaintiff was employed by Joe McAllister; that he was injured on June 24, 1946, while working in the course of his duties behind the edger at a tie mill located at Quitman in Jackson Parish, Louisiana; that McAl-lister was the owner of the tractor type tie mill which he had purchased from Gross and Janes Tie Company for a total consideration of $3,250, of which amount $500 has been paid in cash, the balance of $2,750 being represented by a demand note to the order of Gross and Janes Tie Company, secured by a chattel mortgage on the saw mill. It is also established that at some time before the time of the accident one Dewitt Sanders, an agent of Gross and Janes Tie Company, had negotiated with a Mr. Harvey for the purchase of tie timber located on a 150 acre tract of land in Jackson Parish belonging to Harvey and his brother. The timber was bought by the stick on the ■basis of Sanders’ agreement to pay the Har-veys 20 cents per tie for all cross-ties cut from the tract in question. Shortly after these negotiations Sanders and McAllister, accompanied by Harvey, selected a site for the mill and McAllister moved the mill and equipment to said site from a location near Choudrant.

After making his set on the Harvey property McAllister cut ties and also sawed an undetermined amount of lumber from the slabs of timber. All the ties cut and manufactured at the McAllister mill were hauled by the Harvey brothers in their truck to the railway siding, which was the point of delivery to Gross and Janes Tie Company. The company deducted the stumpage of 20' cents per stick, and remitted the same, plus. the cost of hauling at 12 or 14 cents per stick, to the Harveys. The further amount of 20 cents per stick was deducted by the company and credited on McAllister’s note. The difference between the total of these amounts withheld and the market price of ties, which was in the neighborhood of $1.25 each, was paid to McAllister.

The lumber which McAllister salvaged and sawed in the course of his operations in sawing ¡cross-ties was sold by him to a dealer by the name of Barrett.

Some time after the accident, which is the cause of this suit, McAllister sold his mill to Barrett, the consideration being the assumption by the purchaser of certain debts, including the unpaid balance of the Gross and Janes note, and an additional sum of a few hundred dollars which was paid to McAllister in cash.

The sole issue before us is whether, on the basis of these facts, McAllister was in truth an employee or a contractor of Gross and Janes Company. If the facts justify an affirmative answer, then, unquestionably, the defendant herein, as the insurance carrier of Gross and Janes, is clearly liable for compensation.

In a written opinion our learned brother of the District Court summed up his reasons in these words:

'T am impressed that the entire arrangement made in ■ this case by and between Gross and Janes Company and the alleged operator of the mill, so far as Gross and Janes was concerned, was a refined scheme to shield itself from liability for compensation in case of injuries resulting from the ■operation of these mills, and the longer it could continue such operations, it would perhaps save insurance premiums by not reporting and paying premiums on the wages earned by employees in these mills.
“If such is not the case, then the information is in the hands of the defendant’s principal and insured who assisted the defendant in the defense of this case and I would think it certainly in better position to present the evidence on the point than the plaintiff who, of course, had not possession of the evidence and facts peculiarly in the hands of the defendant or of its principal who assisted it in the defense of this case.”

We regret that in our opinion neither the facts established in the instant case nor the law applicable thereto justify the conclusion reached by the District Judge.

The uncontradicted testimony of the witness, Sanders, who was the agent for Gross and Janes Tie Company, shows that he purchased manufactured ties, in what was known as the Ruston territory, from some 16 to 18 tie mills. Of these mills Gross and Janes had purchased and resold six, to various people, on terms similar to the transaction between the company and McAllis-ter. Gross and Janes Tie Company is not shown to have been directly engaged in the manufacture of ties but rather, according to the record, its business is confined exclusively to the purchase of manufactured ties. Obviously it was to the interest of the company during a period of great demand to keep as many operators as possible engaged in the cutting and sawing of ties in order to supply the company with its needs. The District Judge inferred, from the circumstances of the liberal terms accorded McAllister, the existence of a scheme designed to save Gross and Janes Tie Company from the payment of compensation premiums. This inference the District Judge attempted to support by the interpretation of the agreement between the Harveys and Gross and Janes’ agent, Sanders, as a purchase of timber for Gross and Janes, and by the further circumstance of the deduction for stumpage and the direct payment by Gross and Janes to the Har-veys.

We do not think any of these facts are fairly susceptible of the interpretation thus placed upon them. As we have pointed out, the interests of Gross and Janes comprehended practical assistance to operators. There are any number of reasonable explanations for the requirement by the company of a demand note, none of which ought properly to be construed as evidences of a scheme. As to the purchase of the timber on the Harvey tract, in reality there was no binding sale, as such. The verbal agreement between Sanders and the Har-veys was that payment at a stipulated price per tie would be made by Gross and Janes if, as and when timber was cut from the tract. According to the undisputed testimony of the witness, Harvey, there was neither an obligation to cut the timber on the part of Gross and Janes nor an obligation on the part of the Harveys to permit such cutting.

And, as to the withholding of the agreed price, again we find that the testimony of witnesses, without contradiction, conclusively established the fact that such a procedure, as well as the withholding of hauling costs, is a matter of custom which is followed in the great majority of instances.

We think the interpretation of the facts established in this case as reflecting the concoction of a “refined scheme” is too strained to bear close examination. Particularly is this true when we consider that the only purpose of such a design would be to save insurance premiums on a comparatively small number of employees engaged in the operation of a half dozen' small tie mills.

Counsel for defendant argues in brief before this Court that the trade and business of Gross and Janes Tie Company is not covered by Workmen’s Compensation Statute, Act No. 20 of 1914, since its business of purchasing cross-ties is not of a hazardous nature.

There is nothing in the record which would disprove this contention except an interpretation of the facts in such manner as would justify a finding as to a concocted scheme. We do not so interpret the facts before us. This Court would not under any circumstances lend itself to stamping with its approval any plan which would reasonably appear to have been designed for the purpose of defeating the rights of an injured employee, but neither will it lend itself to the condemnation of what appear to be reasonable, sound and fair business practices in an attempt to seek out and impose liability upon a party removed and distinct from any real connection with or responsibility for the circumstances made the basis of a compensation claim.

Zealous counsel for plaintiff has cited a number of authorities upon which he relies in support of his contentions, among which we find Wilson v. Roberts et al., La.App., 194 So. 88.; Seabury v. Arkansas Natural Gas Corporation, 171 La. 199, 130 So. 1; Carter v. Colfax Lumber & Creosoting Co. et al., 9 La.App. 497, 121 So. 233; Owers v. Louisiana Long Leaf Lumber Co., La. App., 14 So.2d 27S; and Hatch v. Industrial Lumber Co., La.App., 199 So. 587, 589.

We find nothing in the cited cases which would support the claims of liability as asserted against this defendant. On the contrary our interpretation of the facts reflected in the cases set forth and the application of the sound principles enunciated by the courts with reference thereto resolves the authorities in support of our conclusion herein.

Particularly do we feel that the reasoning of the Court in the case of Wilson v. Roberts, supra, is applicable to the issue before us since, in the cited case, the Court stressed the character and nature of the business of the company which was made defendant as the alleged principal. In the instant case, as we have above noted, there is nothing in the record to indicate that Gross and Janes was engaged in any business save and except as a purchaser of cross-ties.

Similarly in the case of Hatch v. Industrial Lumber Company, supra, the following quotation from the opinion of the Court is pertinent: “Because of the facts and circumstances related above, learned counsel for plaintiff would have us conclude that there was no bona fide sale of this pulpwood by Brown to the defendant, but that the former was merely an interposed party disguised as a vendor, when in fact he was in reality nothing more than the agent or contractor of the defendant company; that the defendant arranged for the purchase of the timber and financed Brown in cutting and hauling it, and that the difference in the stumpage price paid Turner and the price paid Brown was nothing more than the allowance made to Brown for cutting, hauling and loading the wood.”

Much the same contentions are urged in this case for, in effect, it is argued that Gross and Janes was in reality the owner of the timber on the Harvey tract by purchase; that it was in fact the-owner of the mill, and that' McAllister was simply an employee or contractor of the company.

In our opinion, none of these facts are borne out by the preponderance of the testimony in the case. The alleged “sale” of •the timber under the facts which we have above pointed out had no bearing upon the relationship between Gross and Janes and McAllister. Although the District Judge appeared to attach significance to the fact that Sanders had told Harvey that “he had a man he would move down there”, or words to that effect, we fail to see how such an innocent, colloquial expression can be construed as supporting the conclusion that McAllister was in the employ of Gross and Janes. The testimony makes the situation perfectly clear that McAllister, who had bought a mill from Gross and Janes, was “bogged down” at his then location near Choudrant and needed another and more accessible site for his operations. Sanders’ activity in locating timber which McAllister could cut obviously served the double purpose of giving McAllister the opportunity to pay on his indebtedness to Gross and Janes, and offered Gross and Janes a new source of supply of the product, cross-ties, which it was interested in purchasing.

In this case there is no question but that McAllister was the bona fide owner of the mill at which plaintiff was employed. Plaintiff testified that he was employed and paid by McAllister. In the obvious attempt to bolster his case plaintiff testified that he was frequently carried to work by Sanders, the agent for Gross and Janes, along with other employees, and that the ties were hauled from the millsite by a Gross and Janes truck on which the name of said Company was painted. This testimony is conclusively refuted not only by the testimony of defendant’s witnesses but by witnesses who testified on behalf of plaintiff. It is definitely established that McAllister himself hauled his employees to and from work except on one single occasion when Sanders, as a favor, transported the employees, McAllister’s truck being out of running order. It is also established' beyond any question that no ties were hauled by Gross and Janes’ truck but that all were hauled by the Harveys in their own truck, and, in fact, aside from the clearly erroneous testimony of plaintiff there does not appear to have been any truck of Gross and Janes concerned with any of the affairs in connection with the operation of McAllister’s mill.

McAllister was in charge of hiring, firing, paying and supervising his employees; he was under no obligation to report to Gross and Janes on any matter; his only relation with Gross and Janes consisted of a verbal understanding to the effect that he would sell them the entire tie output of his mill. McAllister sold the lumber which he sawed at the mill for his own account.

On the whole we cannot readily conceive of a clearer picture of the affairs of a small independent sawmill operator whose only relations with defendant’s insured were predicated upon fair, reasonable and mutually advantageous business agreements.

Our conclusions as to the character of the relationship which existed between. Mc-Allister, on the one hand, and Gross and Janes, on the other, is substantially strengthened by the fact that exactly the same character of relationship is shown to have continued between Barrett, as the purchaser of the mill from McAllister, and the Gross and Janes Company. The plain and uncontradicted -testimony of Barrett was to the effect that he became the owner of the mill by purchase from McAllister for the considerations which we'have above noted; that Gross and Janes had no interest in the ownership of the ties until after they were manufactured and delivered; that Gross and Janes held' out stúmpage and hauling costs and paid him the difference; that he sold the lumber to whomsoever he desired; that Gross and Janes had nothing whatsoever to do with the hiring, firing and payment of employees, nor with the supervision of operations of the mill.

All of this testimony is squarely in line with exactly the same-nature and character of testimony given by McAllister, and cannot, in our opinion, be disregarded in favor of an assumption that all of these established details were component parts of a scheme on the part of Gross and Janes to avoid paying insurance premiums.

We think clearly there is manifest error in the judgment appealed from, and, for the reasons set forth, it is accordingly reversed, annulled and set aside, and there is now judgment in favor of defendant rejecting plaintiff’s demands at his cost.

KENNON, J., absent


author: PER CURIAM.

text:
    PERRAULT v. PROFFER.
    No. 18868.
    Court of Appeal of Louisiana. Orleans.
    Dec. 1, 1947.
    Maurice B. Gatlin and Harry R. Hill, both of New Orleans, for plaintiff and appellant.
    Melvin P. Barre and Rene R. Nicaud, both of New Orleans, for defendant and appellee.
   PER CURIAM.

Defendant-appellee moves to dismiss this appeal for the reason of our lack of jurisdiction. The suit involves a demand for the sum of $2,000 with legal interest, plus attorneys’ fees in the amount of $500. The amount sued for is claimed by plaintiff as the amount due him arising out of the alleged violation by defendant of a contract involving the purchase and sale of certain real estate located near LaPlace, Louisiana. The petition alleges that under the terms of the contract plaintiff is entitled to recover his attorneys’ fees.

Appellee contends that the amount of attorneys’ fees should be added to the $2,000 claimed and that the aggregate of these amounts is in excess of our maximum jurisdictional limit under Const.1921, art. 7, §§ 10, 29.

This contention is meritorious. It is well established that an attorney’s fee fixed in a contract forms part of the demand and that it is inseparable from the main demand in determining the matter of appellate jurisdiction. See Thompson v. Jones, 200 La. 437, 438, 8 So.2d 286, and cases therein cited.

Exercising the discretion with which we are vested by Act No. 19 of 1912, we conclude that the matter should be transferred to the Supreme Court.

In his motion, appellee also contends that the appeal should be dismissed for the reason that the appeal bond furnished by the appellant is defective. As we have no jurisdiction of this matter we cannot pass upon this second ground of complaint

Therefore, it is ordered, adjudged and decreed that this appeal be and it is transferred to the Supreme Court of Louisiana to be adjudicated according to law; the transfer is to be made within sixty days after this judgment becomes final, and if the transfer is not so made, then the ap1-peal is to be considered dismissed; plaintiff-appellant is to pay the costs of appeal in this court, and all other costs are to await the final determination of the matter.

Appeal transferred to Supreme Court.


author: HARDY, Judge. TALIAFERRO, Judge.

text:
    JONES v. WILLIAMS.
    No. 7095.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    On Rehearing Eeb. 2, 1948.

      Wellborn Jack and Ashley J. Gold, both of Shreveport, for appellant.
    Thomas M. Comegys, Jr., of Shreveport, for appellee.
   HARDY, Judge.

This case comes before us on an appeal by defendant, Althea Williams, from a judgment of the District Court awarding plaintiff compensation at the rate of $19.50 per week for the period of disability not to exceed 400 weeks. The judgment further provided for recognition of a credit upon the judgment in the sum of $1,000.

The appeal has been answered by plaintiff who prays the amendment of the judgment to the extent of disallowing the credit of $1,000 allowed by the lower Court.

There are no questions of fact presented by this appeal, the sole issues raised being concerned with matters of law and procedure.

In his original petition in this cause plaintiff alleged that he was an employee of the defendant, Althea Williams, at the time of the occurrence of the accident which resulted in hi's injury and disability.

In answer to plaintiff’s petition the defendant, Althea Williams, specifically denied her status as plaintiff’s employer and alleged that she was employed by the Peterson'Sales Company of Shreveport, Louisiana, to render labor services in the course of which she was authorized to employ helpers, of whom plaintiff was one so employed.

Subsequent to the filing of defendant’s answer, unquestionably impelled by the recitals therein as above summarized, plaintiff filed a supplemental and amended petition. This pleading averred “upon information ánd belief founded in part upon allegations made in the answer filed by Althea Williams” that the Peterson Sales Company had entered into a contract with Althea Williams as an independent contrae-, tor. Pleading in the .alternative, plaintiff: further averred in his supplemental petition that Althea Williams was an employee of Peterson Sales Company and “that this petitioner was, therefore, also an employee of said Peterson Sales Company” * * *.

Peterson Sales Company answered denying all the allegations of plaintiff’s supplemental petition 'and set up the fact that Peterson Motors, Inc. was in reality the party at interest by reason of some arrangement with defendant, Althea Williams.

In consideration of this development plaintiff filed a second supplemental and amended petition in which he alleged error as to the parties, adopted and reiterated the allegations 'of his first supplemental petition, and asked the substitution of Peterson Motors, Inc. in the place and stead of Peterson Sales Company.

Peterson Motors, Inc., made defendant by plaintiff’s second supplemental and amended petition, filed an exception of no cause or right of action which, after hearing, was overruled, and thereupon answered the suit generally denying the allegations of plaintiff’s amended pleading and, among other things, specifically denying that either plaintiff, Jones, or the defendant, Althea Williams, was its employee.

Some two weeks after the filing of answer by Peterson Motors, Inc., a joint petition was presented to the First District Court of Caddo Parish, Louisiana, in which the plaintiff, Booker Jones, the defendant, Peterson Motors, Inc., and its insurer, Eagle Indemnity Company, were represented as first, second and third petitioners, respectively.

In the course of this petition there appeared the allegation that “second and third petitioner each denied generally and specifically, all of the allegations contained in first petitioner’s original and supplemental petition, and affirmatively allege that first petitioner was never injured while in the employ of second petitioner; was never an employee of second petitioner * *

This petition further proceeded to set up the recitals that are usual and customary in connection with a petition of compromise agreement under the Workman’s Compensation Act, particularly reserved all of the rights of plaintiff, Booker Jones, against the defendant, Althea Williams, and further subrogated all rights and causes of actions on the part of second and third petitioners as against the defendant, Althea Williams, in favor of plaintiff. The petition prayed for the approval of the proposal of compromise and settlement in which the basis fixed for payment to plaintiff, Booker Jones, by the defendant, Peterson Motors, Inc., and its insurer was designated as being the lump sum of $1,000.

In accordance with the provisions of the petition evidencing the compromise settlement, finding that the same was just and in substantial accord with the terms of Act No. 20 of 1914, as amended, and that the lump sum settlement proposed was to the best interest of the claimant, there was judgment by the Court approving the settlement and entering judgment in favor of plaintiff, Booker Jones, and against Peterson Motors, Inc. and Eagle Indemnity Company in the sum of $1,000. The judgment further recognized the subrogation in favor of plaintiff and reserved all of his rights and causes of action against the defendant, Althea Williams. The amount of the judgment was paid to plaintiff who executed a receipt and discharge in favor of Peterson Motors, Inc. and its insurer.

A plea of estoppel was filed by defendant. The minutes of the District Court do not reflect what action was taken with reference to this plea, and, accordingly, it must be assumed that the same was overruled either expressly or by implication. The issues tendered by the plea have been strenuously urged before this Court.

After trial on the merits there was judgment in favor of plaintiff and against the defendant, Althea Williams, to the extent first hereinabove noted.

The first point raised on behalf of appellant is based upon the proposition that facts cannot be pleaded in the alternative, and, accordingly, the plaintiff’s pleadings alleging that he was the direct employee of the defendant, Williams, and, in the alternative, that he was the direct employee of Peterson Motors, Inc., were so inconsistent as to be mutually destructive, thus rendering the petition fatally defective.

We think this contention may be briefly disposed of on the ground that the alternative pleading, as represented in plaintiff’s supplemental and amended petition, was necessitated and required by reason of the averments set forth in the answer of defendant appellant.

The employment of the alternative pleading in the instant case is not of that nature which is reprehended by the rule against the alternative pleading of inconsistent facts.

To sustain appellant’s contention in this connection would be equivalent to denying an employee who might be ignorant of the exact identity of his employer the right to recover compensation. Such a holding would be repugnant to the liberal procedural requirements of the Workman’s Compensation Statute and the interpretations of our Courts which have consistently relaxed the application of technical rules to this character of action.

The second point urged by appellant is predicated upon the proposition that one who alleges himself to be the employee of a certain party and enters into a compromise settlement with such party on the basis of the alleged employment is estopped by his own acts and judicial admissions from thereafter prosecuting the same cause of action against another party under an alternative allegation of employment by such other.

The argument in support of this contention is susceptible of being briefly and clearly illustrated:

(1). A brings suit for compensation against B on the ground that he was B’s employee.

(2). Supsequently in the same suit A, by means of a supplemental and amended pleading, alternatively alleges that if he was not in the employ of B he was the employee of C and prays judgment against C.

(3). A and C enter into a compromise agreement for the settlement of A’s claim based upon and arising out of the essential element of employment, which settlement is approved and authorized by formal judgment of the Court.

(4). Query: Can A who has settled his claim against C, in which the question of employment was an issue, thereafter maintain his demand against B and continue to assert his status as B’s employee?

We find no jurisprudence of this or of any other jurisdiction directly bearing upon this issue or sufficiently analogous thereto to serve as precedent for the determination of this point. It therefore appears that the question is res nova in this State.

The basis of appellant’s contention is obvious, namely that a party is estopped from maintaining a claim against an alleged employer when he has already recovered from another party on the alleged' basis of employment.

It might be urged that this contention fails in view of the fact that plaintiff’s employment by Peterson Motors, Inc., with whom he effected a compromise, was one of the disputed issues between them. Unquestionably this fact is true, but it must be borne in mind that the basis of compromise settlements under the Workmen’s Compensation Statute is the existence of a dispute.

It is seriously and ably contended by distinguished counsel for plaintiff that the dispute and the uncertainty of positions as between plaintiff and Peterson Motors, Inc. which influenced both parties to effect a compromise,- was not concerned with the question as to the employer-employee allegation between plaintiff and Peterson Motors. But this does not appear from the record before us. We must be governed by the pleadings and it is clear from a review thereof that the issue of employment was not only made by the pleadings of the parties but was reiterated ■ in the compromise agreement in which plaintiff asserted the employment and Peterson Motors specifically denied such employment. Therefore, while the employer-employee status may not have been the only issue in dispute certainly it was one issue which was intended to be finally determined by the negotiation of the compromise settlement.

Appellant’s claim on the point under consideration should not be confused with her position with regard to plaintiff’s alternative pleadings. As we have above held there was nothing inconsistent in plaintiff’s position which in effect led him to allege that he was either the employee of one or the other of the parties defendant. But the question is whether, he can effect settlement with one party on the basis of employment and continue to assert his claim against the other party. He was not required to elect whether he should sue either one or the other, because such an election, under the circumstances, might have reacted to the prejudice of his rights. But when he elected to settle with one party as the employer we believe that by such a free and independent election he has es-topped himself from the continuance of the assertion of his claim against the other. Obviously there is a vast distinction between alternative pleading and the election of a remedy.

To permit appellee to recover against the defendant, Williams, to the extent of all or a part of his claim would be in effect a justification of a double recovery upon the básis of a single cause of action.

The third ground of attack upon the judgment of the lower Court by the appellant is directed at the point that the judgment entered upon the basis of the compromise settlement is res judicata as to the appellant, Williams.

We are not impressed with this claim particularly in view of the specific provisions of Article 539 of the Code of Practice which provides that a definitive judgment having the force of res judicata is such a judgment as decides on the point in controversy between the parties, and Article 2286 of the Civil Code which requires that the demand must be between the same parties and formed by them against each other in the same quality.

The requirements which would conform the existing facts of the case to the codal provisions are not present since the defendant, Williams, was not a party to the compromise agreement.

The final objection made on behalf of appellant is predicated upon the alleged error of the trial Court to order the claimant to submit himself to a medical examination. A review of the record in the case is convincing to the effect that defendant had ample opportunity to procure medical examination of the claimant prior to trial of the case. There was no abuse of discretion nor error on the part of the Judge of the District Court in refusing to require the claimant to submit to an examination after the trial.

For the reasons assigned the plea of estoppel filed by defendant-appellant is sustained and the judgment appealed from is reversed and set aside and plaintiff’s suit against defendant-appellant dismissed at his cost.

KENNON, J., absent

On Rehearing.

TALIAFERRO, Judge.

When considering this case originally, after having decided to sustain the plea of estoppel interposed by the defendant, we inadvertently failed to consider and pass upon the merits of plaintiff’s alternative demand, to wit: the tort action. Our attention having been called to the oversight, through application therefor, a rehearing was granted to the end that this phase of the suit might be adjudicated. In all other respects the application for a rehearing was denied.

The lower court reached the conclusion that plaintiff’s primary demand should prevail and, accordingly, awarded him workmen’s compensation; or, in other words, held that his right to recover herein was governed by Act No. 20 of 1914, as amended, being the Workmen’s Compensation Law, and not by Articles 2315, 2316 and 2317 of the Civil Code, which, in a general way, largely constitute the law of tort of this state.

In passing on the plea of estoppel, it was not necessary to definitely determine which of the two laws had controlling influence in the case. ,We simply held that in view of record facts, plaintiff was precluded from further prosecution of his primary demand against the defendant. The situation now is such that we are called upon to specifically say whether the case, as originally tendered, was governed by the Workmen’s Compensation Law or the law of tort. If by the former then clearly the alternative demand, in law, has no foundation upon which to rest because it is provided by Section 34 of the Workmen’s Compensation Law that: “the. rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is entitled to compensation under this act shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, relations, or otherwise, on account of such injury.” As amended by Act No. 38, Session Acts of 1918.

The restrictive provisions of this law have been literally applied and enforced in many cases, including the following: Thomas v. Shippers’ Compress & Warehouse Company, Inc., La.App., 158 So. 859; Dourrieu v. Board of Commissioners of Port of New Orleans, La.App., 158 So. 581; Labourdette v. Doullut & Williams Shipbuilding Company, Inc., 156 La. 412, 100 So. 547; Roy v. Mutual Rice Company of Louisiana, 177 La. 883, 149 So. 508.

The established facts of the case disclose that the defendant owned the truck that was involved in the accident in which plaintiff was injured; that it was daily used by her in transporting various kinds of material, merchandise, trash, etc.; that the use of the truck in this way and manner constituted her regular business from which she earned a living. To successfully carry on said business she hired from time to time such assistants as were necessary. The testimony leaves no doubt that defendant hired, the day before the accident, plaintiff and another Negro man to load and unload the truck, and that when the accident occurred they had just completed loading it with goods to be transferred to another part of the City of Shreveport. Therefore, the Workmen’s Compensation Law governs the case.

It has often been held that the operation of a motor truck in connection with or to prosecute a regular business, rendered such business in whole or part, hazardous. See: Haddad v. Commercial Motor Truck Company, 146 La. 897, 84 So. 197, 9 A.L.R. 1380; Collins v. Spielman, 200 La. 586, 8 So.2d 608.

Therefore, for the reasons herein assigned, plaintiff’s alternative demand is rejected and his suit thereon dismissed at his-cost.

KENNON, J., absent.


author: FOURNET, Justice.

text:
    212 La. 831
    CITY OF NEW ORLEANS v. W. HORACE WILLIAMS CO.
    No. 38365.
    Supreme Court of Louisiana.
    Nov. 10, 1947.
    Henry G. McCall, City Atty., and Alden W. Muller, Asst. City Atty., both of New Orleans, for plaintiff-appellant.
    Deutsch, Kerrigan & Stiles and Breard Snellings, all of New Orleans, for defend.ant-appellee.
   FOURNET, Justice.

The W. Horace Williams Company, a commercial partnership engaged in the business in the City of .New. Orleans of contracting on both a fixed-fee and a cost-plus '.basis, having tendered and paid to the City ■of New Orleans an occupational license tax for the year 1946 based on its gross earn- ■ ings within the territorial limits of the city for the year 1945, the city, contending that such tax should be computed on fhe basis of the entire gross receipts of the partnership whether derived from work within or without the city, proceeded by rule to collect the difference between the amount of the tax tendered and paid and that allegedly due, plus the interest penalty and attorney fees as provided for in the ordinance levying the. occupational tax. The city- is now appealing from the judgment of the district court dismissing its suit.

The case was tried on an agreed statement of facts wherein it was stipulated that the defendant paid to the State of Louisiana as an occupational license tax for the year 1946 an amount based on its gross receipts in the sum of $625,058.97 for work performed throughout the state on a fixed-fee basis, and on $79,783.07 for cost-plus contracts, whereas the occupational license tax paid the City of New Orleans was based on fixed-fee work amounting to $86,811.84 and cost-plus work-amounting to $13,868.44, being the amounts received for work actually done within the territorial limits of the City of New Orleans. It is. further stipulated in this agreed statement of facts that “No municipal license tax for the year 1946 has been demanded of or paid by this company to any other municipality for work performed outside of Orleans Parish.”

The Legislature of the State- of Louisiana, in pursuance of the provisions of Section 8 of Article X of the Constitution of 1921, adopted at its Third Extra Session of 1934 a general occupational license tax act for the state as a whole, Act 15, and therein provided “That any municipal or parochial corporation in the State-shall have the right to impose a license tax on any business, occupation or profession herein provided; provided, that all such license taxes shall conform to the provisions of Section 8 of Article X of the Constitution.” Section 42.

Availing itself of the authority thus conferred upon it by the legislature, the City of New Orleans, on December 4, 1945, adopted its Ordinance No. 16,357. This ordinance, for all intents and purposes, is identical with the 1934 act, as amended. In Section 19 thereof it is provided “That every individual, firm, company or corporation carrying on the profession or business of contractor on a lump sum basis, or any other basis than cost-plus, shall pay a license taxed upon the gross annual receipts of said business, which license shall be fixed and graded, as follows, to wit” (the licenses to be levied in the respective classes and grades being given in detail). In this section it is further provided “that every individual, firm, company or corporation carrying on the business of contractor on a cost-plus basis, commission or percentage plan, shall pay a license based upon the gross annual earnings from such business, which license shall be fixed and graded as in Section 3 of this Ordinance for those carrying on a commission or brokerage business.”

Counsel for the defendant are in error in their contention that “This ordinance, like the State Act, makes no mention as to its territorial scope,” for in Section 58 of the ordinance is found the provision “That all gross receipts derived from any mercantile business or occupation whatsoever, as hereinbefore provided, whether earned within -or without the city shall form the proper basis upon which all licenses shall be assessed and collected by the Commissioner of Public Finance.” The corresponding article in the state act provides that “except as otherwise in this Act provided, all gross receipts derived from any mercantile business or occupation whatsoever, as hereinbefore provided, shall form the proper basis upon which all licenses shall be assessed and' collected by the tax collector.” Section 53. (Italics in the city ordinance section quoted are ours.)

The constitution, in Section 8 of Article X, not only provides that license taxes may be levied on such classes of persons, associations of persons and corporations pursuing any trade, business, occupation, vocation or profession, as the Legislature may deem proper (with certain exceptions not pertinent here), but it also provides that such taxes may be classified, graduated, or progressive. The only limitation to be found in the constitution with respect to the city’s right to levy such a tax is that found in this same section. It prohibits municipalities from imposing a greater license tax than is imposed for state purposes. Since the tax here sought to be levied is in fact equal to that levied by the state, it cannot be said to be greater.

The authorities relied on by counsel to support the contention that the ordinance is unconstitutional in so far as it attempts to give extraterritorial effect to the City of New Orleans (City of Shreveport v. New York Life Ins. Co., 141 La. 360, 75 So. 80; City of Lake Charles v. Equitable Life Assur. Society, 114 La. 836, 38 So. 578; and City of New Orleans v. Penn. Mutual Life Ins. Co., 106 La. 31, 30 So. 254) are neither controlling nor pertinent here. All of these cases deal with foreign insurance companies doing business in various sections of the state either through branch offices or soliciting agents and the court in each case had for consideration the interpretation of the city ordinances and their applicability to the particular facts involved.

In the case of State v. Albert Mackie Co., Ltd., 144 La. 339, 80 So. 582, 587, the other case relied on, the court’s holding was that the tax could not be allowed because it amounted to a direct interference with or regulation of interstate commerce since it was graduated or measured in part by the volume of interstate and foreign business done. While it is true that, based on the decision of this court in the case of City of Shreveport v. New York Life Ins. Co., supra, this court did remark- — -“We had occasion lately to consider a similar question; that is, whether a taxing authority could legally include in the measure or standard by which a license tax levied for doing a local business was graduated the volume of business done outside of the territorial limits of the taxing authority. And we concluded that it could not” — such a statement was not only not controlling in the Mackie case in view of the conclusion that had already been reached, but it was also inap-posite since the question of interference with interstate commerce was not involved in the Shreveport case.

The City of New Orleans is not here seeking to tax property beyond its territorial jurisdiction. As was very aptly pointed out in a well-considered opinion by the Supreme Court of South Carolina, a. case that is for all intents and purposes “on all fours” with the case we are considering: “It was not contemplated that the various-phases of á business should be segregated and only that part taxed which was actually carried on within the corporate limits. The- tax was imposed for the privilege of maintaining and conducting a place of business within that municipality and it was intended that the business should be considered as a whole. The gross income or volume of such business is merely made the basis on which the tax is graduated.” Triplett v. City of Chester, 209 S.C. 455, 40 S.E.2d 684, 687. See, also, City of LaGrange v. Whitley, 180 Ga. 805, 180 S.E. 823, and compare the case of Great Atlantic & Pacific Tea Co. v. City of Richmond, 183 Va. 931, 33 S.E.2d 795, 804. (Italics ours.)

In the latter case the contention was urged as here that the City of Richmond in graduating its occupational license tax so as to include business done without as well as within the city rendered the same unconstitutional because it amounted to imposing a tax on property outside of the territorial limits of the city. The Supreme Court of Appeals of Virginia, in answering this contention, very aptly observed: “The vice in this contention is that the ordinance does not impose a direct tax upon any property of the Company. It imposes a privilege tax, that is, a license tax for the privilege of maintaining and conducting a place of business in the City for the distribution of merchandise among retail stores. The property of the Company is not directly taxed as such. The merchandise which it distributes through the agency of its office or place of business in the City of Richmond is merely made the measure of the amount to be paid for the privilege of conducting the business involved.” (Italics ours.)

The W. Horace Williams Company maintains its principal and only permanent office or place of business in the state in the City of New Orleans and it is from this office that all of its operations are directed and controlled and all of its administratrive functions are performed. The fact that some of the company’s business is executed or performed outside of the city and, of necessity because of the nature of its work, at the sites where the construction is going on does not, in our opinion, make these jobs done outside the city a separate business or constitute the locale of the construction a separate place of business within the meaning and contemplation of the act of the legislature and the city ordinance. Such work is only a component part of and incidental to the defendant’s main business of general contracting.

That the conclusion we have reached was clearly the intention of the legislature is, in our opinion, strengthened by the identical provisions in both the state act (Section 54) and the city ordinance (Section 56) that a “a person, firm or company, having more than one place of business, shall pay a separate license for each place of business.” (Italics ours.)

For the reasons assigned the judgment of the lower court is annulled and set aside and it is now ordered, adjudged, and decreed that there be judgment in favor of the City of New Orleans and against the W. Horace Williams Company in the sum of $620, as an additional amount on its occupational license tax for the year 1946, together with interest thereon from March 1, 1946, at the rate of 2% per month until paid, and 10% attorney fees on both the principal and the interest, as well as all costs of this proceeding.


author: HAWTHORNE, Justice.

text:
    212 La. 839
    Succession of CARRE.
    No. 38745.
    Supreme Court of Louisiana.
    Jan. 12, 1948.

      Lathrop & Bowman, Robert M. Lathrop and W. Hullin Bowman, all of New Orleans, for plaintiff-appellant.
    Phelps, Dunbar, Marks & Claverie and Edward E. Finlay, Jr., all of New Orleans, for defendant appellee.
   HAWTHORNE, Justice.

The only question presented by this appeal is whether a will dated prior to the adoption of a child becomes invalid or is revoked by this adoption.

Decedent, Hutson Carre, was married to Edward Wellington Charlton, Jr., in 1929, and of this marriage no children were born. On January 7, 1947, the parties to this marriage adopted a minor child whom they named Rebecca Charlton. Thereafter, on March 21, 1947, Mrs. Hutson Carre Charl-ton died in the Parish of Orleans, leaving a last will and testament in olographic form, dated July 16, 1941, which last will and testament was admitted to probate.

Walter W. Carre, Jr., acting in his capacity as undertutor of the adopted child, Rebecca Charlton, instituted a suit to have declared null and void the last will and testament of the decedent on the ground that it was invalidated by reason of the adoption of the child subsequent to its confection. Upon this premise, petitioner alleged that decedent died intestate, and that the minor Rebecca Charlton should be recognized as the sole and only heir of the decedent and as such entitled to the full ownership of decedent’s entire estate.

After the case had been put at issue by answer filed by Edward Wellington Charlton, Jr., universal legatee under his wife’s will and tutor of the adopted child, the lower court in due course rendered judgment dismissing plaintiff’s suit at his costs. From this judgment an appeal has been taken to this court.

Article 1705 of the Revised Civil Code of 1870 provides: “The testament falls by the birth of legitimate children of the testator, posterior to its date.”

In Succession of McRacken, 162 La. 443, 110 So. 645, 647, in which the same question now before us was presented to this court, the court in reviewing the history of Article 1705 of our Code said: “Our opinion is that the act of adoption * * * did not have the effect of annulling * * * [the] will. The statement in article 214 of the Civil Code, that an adopted person shall have all of the rights of a legitimate child in the estate of the person adopting him, is not the same as to say that a testament falls by the adoption of a child, merely because article 1705 of the Code says that a testament falls by the subsequent birth of a legitimate child. Article 1705 was adopted as article 1698 in the Code of 1825, the French text being: ‘Le testament est caduc, quand il est survcnu des enfants, depuis qu’il a été fait.’ The article was not taken from the Code Napoleon, but perhaps from the Partidas, book 6, law 20, title 1, viz.: ‘A will is revoked by the posterior birth of a child or by another person being adopted by the testator.’ The reason why the provision relating to adoption was not enacted' as the law in Louisiana was that at that time there was no provision in the statutes, for the adoption of children. The Legislature afterwards made provision for the adoption of children by the Act 64 of 1868, p. 77, which was retained as section 2328. of the Revised Statutes and as article 214 in the revision of the Civil Code in 1870. There was then perhaps as good reason for the redactors of the Civil Code, in 1870, to provide that the adoption of a child .should annul a will previously made by the adoptor as there was for making-the provision that the birth of a legitimate-child should annul a will previously made by the parent; but the fact remains that the redactors of the Code, in 1870, after the Legislature had enacted the law providing for the adoption of children, did not see fit to declare that the adoption of a child should annul a will previously made by the adoptor; and the Legislature has not seen fit to make such provision. There is no doubt that article 1698 of the Code of 1825, now article 1705 of the Revised Civil Code, was not intended to apply to the adoption of a child, because, as we have said, adoption was not recognized in the law when the article of the Code was enacted.

Appellant concedes that that case is the only one squarely in point, but contends that subsequent legislation has changed the result reached by us in the McRacken case, particularly Act No. 318 of 1944, amending Section 16, Article IV, of the Constitution of 1921, ratified by the electorate on November 7, 1944, and also Act No. 154 of 1942, and argues that .the effect of this legislation has placed adopted children in the same status as legitimate children, as that term is used in Article 1705, or that the words “legitimate children” in the article include or contemplate “adopted children.”

The pertinent part of Section 16 of Article IV of the Constitution of 1921, as amended, reads: “No law shall be passed abolishing forced heirship; provided, that children lawfully adopted shall have the same rights in the successions of the persons adopting them, as. children who are forced heirs, to the exclusion of the father and mother of the adoptive parent, or either of them, who are forced heirs, but the party adopted shall acquire no right of succession to the property of relatives of the party adopting. * * * ”

This provision was undoubtedly enacted in the form of a constitutional amendment because the legislators considered a constitutional provision necessary in view of the prohibition of the Constitution against any law abolishing forced heirship, inasmuch as the amendment makes an adopted child a forced heir to the exclusion of the father and mother of the adoptive parent, or either of them.

Apparently the amendment was brought about by the decision in Succession of Dielman, 155 La. 496, 99 So. 416, in which this court in interpreting Article 214 of the Revised Civil Code reached the conclusion that a surviving parent was a forced heir even though the deceased had an adopted child.

We do not think that the above article of the Constitution, as amended, had the effect of placing adopted children in the same status as legitimate children as that term is used in Article 1705 of the Code. It had the effect only of giving adopted children the same rights in successions of the persons adopting them as children who are forced heirs to the exclusion of the father and mother of the adoptive parent or either of them. It does not, however, clearly or in express terms provide that adopted children shall have the same rights in the successions of the persons adopting them as forced heirs or the same rights as legitimate children. In the absence of such an express declaration we see no valid reason why our decision in the McRacken case, decided over 20 years ago, should be disturbed or why we should read into Article 1705 the term “adopted children”, as the Legislature could yery easily, by express legislation, have provided that a prior will should fall by the adoption of a child. For us to read into Article 1705 the expression “or by the adoption of a child”, as appellant contends we should, we should be, in effect, legislating or making law rather than interpreting the plain provisions of the article.

Act No. 154 of 1942, also relied upon by appellant as legislation which has placed adopted children in the same status as legitimate children as that term is used in Article 1705, is an act providing the method and procedure of adopting children under 17 years by the several classes of persons described therein, and is procedural in its nature and therefore does not confer any substantive rights upon adopted children so as to bring them within the term “legitimate children” as used in Article 1705.

After a careful analysis of the constitutional amendment and the act of the Legislature cited and relied upon by appellant, we have reached the conclusion that they in no way affect or supersede the result reached by us in the McRacken case, supra. Therefore, to arrive at the result contended for by appellant it would be necessary for us to overrule the McRacken case, which we are not disposed to do, being of the opinion that it is sound and correct.

For the reasons assigned, the judgment appealed from is affirmed; appellant to pay all costs.