author: F. XAVIER MOUTON, Judge ad hoc.

text:
    DILLEY v. PHILLIPS PETROLEUM CO.
    No. 3009.
    Court of Appeal of Louisiana. First Circuit.
    June 11, 1948.
    Rehearing Denied Aug. 9, 1948.
    See also 24 So.2d 209.
    Debaillon, Bailey & Mouton, of Lafayette, and Kibbe & Bailey, of Abbeville, for appellant.
    Edward F. LeBlanc, of Abbeville, for appellee.
   F. XAVIER MOUTON, Judge ad hoc.

Harry A. Dilley, plaintiff, was employed as roughneck and/or fireman by the Phillips Petroleum Company in the Erath Oil Field in the parish of Vermilion, Louisiana. Whilst in the scope of his employment on November 11, 1941 he suffered painful, serious and lasting injuries to his back, caused by the falling thereon of the lid of a tool chest weighing approximately two hundred pounds. He has instituted this suit against his employer, Phillips Petroleum Company, under the Workmen’s Compensation Act of this State, Act No. 20 of 1914, as amended for total permanent disability as a result of said accident.

A great deal of medical testimony by eminent physicians and specialists was introduced by both sides. We shall now proceed to analyse the same.

At the time of the accident, plaintiff was treated by Dr. Marion Young, who at that period was defendant’s Physician, and he was paid compensation at the rate of $20.00 per week for a period of eighteen weeks.

On February 21, 1942 Dr. Marion Young submitted report to Phillips Petroleum Company, defendant herein, relative to his findings in the Dilley matter, from which we quote in part as follows: “ * * * Up to the present I have felt that his condition seems about stationary or little or no improvement. * * * ” “ * * * I feel that Mr. Dilley is still disabled and there is little or no point in continuing- this line of treatment. I would suggest that this man be referred to an orthopedist or bone specialist for an opinion of the case. * * * ”

Acting upon the recommendation of Dr. Young, the Phillips Petroleum Company sent Mr. Dilley to Dr. Earl D. McBride, Oklahoma City, Old. for further examination. The opinion of Dr. McBride was that the pain suffered by Dilley “was morely due to some gastric or gall bladder disturbance than to the injury to his ribs. * * * ”, and he referred him to Dr. Arthur W. White, also of Oklahoma City, whom we would refer to as a stomach specialist. The diagnosis reached by Dr. White was that of peptic ulcer and colonic spasm, stating that the same probably developed on a nerve basis. We find in his report the following: “* * * Tenderness appeared on pressure from the external spinal nerve root right, toward the abdomen. Finger point tenderness over the epigastrim and the second external spinal nerve root left. * * *

Dr. McBride reported on March 11, 1942 to defendant company that plaintiff could return to work within the next two or-three weeks, and continue to work as an able-bodied man, provided proper treatment was given to his stomach ailment.

Dr. Donald B. Williams examined the plaintiff at New Orleans, Louisiana, on July 8, 1942, and we quote in part from his report as follows: “ * * * Diagnosis: Severe contusion of the back, spine and lower chest with persistent back pain from severe blow to lumbar spine. In my opinion the patient’s symptoms and pain are genuine. The patient is suffering from a traumatic residual injury to a lumbar spinal nerve root which is causing a more or less constant pain in the lumbo-sacral region. At this examination it is my opinion that he is unable to do manual labor necessitating ordinary exertion and that considering the patient’s age this disability is permanent.”

Some time thereafter, plaintiff secured employment at various places, as is fully shown in the record. The lower court found that the work performed by him at these various jobs was of a light nature, and that he carried on despite constant pain to his side and back. We are in accord with that finding.

The plaintiff broke down whilst attempting to work and was taken to a hospital at Great Bend, Kansas. An exploratory operation was performed by Dr. Clark W. Zugg, and his findings were that plaintiff was suffering from a tumor of the pancreas. No biopsy was performed, and it was therefore not determined whether the tumor was malignant. The depositions of Dr. Zugg were taken on the 26th of August, 1947, from which we quote in part as follows: “ * * * Of course, there is no accurate way to be sure about whether a tumor is malignant or benign without a pathological specimen. There is a possibility that this tumor mass may not have been of a malignant type, since Mr. Dilley is still alive. * * * ” “ t- * *■ j ¿grit think anyone can be absolutely sure what was or is cans-sing this man’s pain in his back, (Italics ours) but it is my opinion that Mr. Dilley’s pain is due to the- tumor, which referred pain to his back * * * ”.

Dr. Marlin W. Carlson, who assisted Dr. Zugg in the exploratory operation, testified that trauma is generally understood not to be a cause of malignant tumor.

The depositions of both Dr. Zugg and Dr. Carlson were taken on August 26, 1947, whilst the operation was performed on April 10, 1946. The fact that Dilley was still alive on August 26, 1947 seemed to indicate to Dr. Zugg that the tumor was benign and not malignant.

The diagnosis of the ailment of the plaintiff as peptic ulcer by Dr. Arthur W. White seems to have been exploded by the findings of Dr. Zugg when he performed the exploratory operation. His testimony shows that his diagnosis did not include gastric ulcer.

There is therefore conflict between these eminent physicians as to the diagnosis of the ailment from which the plaintiff is suffering.

The reports of Doctors Zugg and Carlson, experts for the defendant, show that plaintiff is suffering from a tumor of the pancreas. Dr. Carlson states that a malignant tumor is not caused by trauma; and Dr. Zugg testified that, as plaintiff was still alive, there was a possibility of the tumor not being malignant.

On the other hand, Doctors Young and Williams, experts for plaintiff, testified positively that plaintiff is suffering from nerve root injury, causing total permanent disability. Dr. Young further testified that the symptoms of nerve root injury and pancreatic injury, in many cases, are rather parallel. He was very positive in his testimony that a pancreatic tumor could be caused by trauma, and stated he had refreshed his memory by reference to medical textbooks relating to this subject, and that this opinion of his was supported by eminent doctors in textbooks on surgery.

The lower court, in a lengthy, well-reasoned written opinion leaned heavily upon the testimony of Doctors Young and Williams.

We feel that Dilley is totally and permanently disabled. This issue was passed upon by this Court in the case of Lowery v. W. Horace Williams Co. et al., La.App., 8 So.2d 704, 705, when we stated: “If there is found to be an accidental back injury which brought on the disability, the fact that the injured employee cannot have the doctors agree on its exact cause cannot deprive him of the compensation which is otherwise due him under the compensation statute, Act 20 of 1914 and its amendments.”

Counsel for defendant, in a very forceful brief, points out that, in workmen’s compensation cases, the law places the onus pro-bandi on the plaintiff just as it does in other civil controversies, and cites numerous authorities in support thereof.

A very close study of the entire record convinces us that the authorities submitted by him are not applicable to the case at issue. We find that the case of Crier v. Kent Piling Co., Inc., also by this Court, 12 So.2d 472 is controlling: “Compensation claimant must connect disability with accident by legal proof and with reasonable certainty, but need not produce such proof as would exclude entirely any other theory or hypothesis as to cause of disability.” This case was cited approvingly by us in Vautrot v. Maryland Casualty Co., La.App., 32 So.2d 500, 503. The following cases are to the same effect: Anderson v. Louisiana Oil Refining Co., 16 La.App. 294, 134 So. 343; Hennen v. Louisiana Highway Commission, La.App., 178 So. 654; Christy v. Brown Paper Mill Co., Inc., La.App., 27 So.2d 917.

In its decision, the lower Court had this to say about Dilley: “He made a good witness and the Court was impressed to the extent that the Court believes he told the truth.”

■ The lower Court granted judgment against defendant for medical expenses in the sum of $250.00. In this it was in error. In the transcript we find the following stipulation entered into by and between counsel for plaintiff and defendant: “It is admitted by and between Counsel that Defendants paid the medical fees and expenses enumerated in their answer, which shall be an off-set against any medical expenses awarded Mr. Dilley in the event of his success in this matter.” The award of medical expenses is therefore disallowed.

We find it necessary, therefore, to amend and recast the judgment, and, for the reasons stated, it is recast so as to read as follows: It Is Therefore Ordered, Adjudged and Decreed that the judgment in so far as it awards the plaintiff compensation at the rate of Twenty ($20.00) Dollars per week for a period not exceeding four hundred (400) weeks, beginning the 11th day of November A.D., 1941 until paid, together with five (5%) per cent per-annum interest on each and every installment aforesaid from its respective maturity, subject, however, to credit of Twenty ($20.00) Dollars per week for eighteen (18) weeks already paid thereon, and the payment of expert fee of Dr. Marion Young as witness in this case be fixed at Twenty-five ($25.00) Dollars to be taxed as costs, is maintained; that the award for medical expenses in the sum of Two hundred fifty ($250.00) Dollars is disallowed; and that, as thus amended to be affirmed at the cost of appellant.

ELLIS, J., absent.


source: Caselaw Access Project

author: McBRIDE, Judge.

license: Public Domain

text:
    STEIN v. WILLIAMS LUMBER CO. et al.
    No. 18728.
    Court of Appeal of Louisiana. Orleans.
    June 18, 1948.
    Porteous & Johnson, of New Orleans (Charles F. Séemann, of New Orleans, of counsel), for plaintiff-appellant.
    John E. Jackson and Baldwin J. Allen, both of New Orleans, for defendants-appel-lees.
   McBRIDE, Judge.

Plaintiff, Rudolph Stein, has appealed from a judgment of the lower court maintaining an exception of no cause of action and dismissing his suit.

The suit is for $120.38, the cost of repairing plaintiff’s automobile which he alleged was damaged in a collision with a truck of Williams Lumber Company, a partnership and also for commissions of $179.62 which he allegedly lost by reason of being unable to use his car whilst the repairs were being made. The lumber company and its individual partners are made defendants in the suit.

During the course of the trial in the First City Court of New Orleans plaintiff, on cross examination, admitted that his automobile was covered by insurance; that he had been paid by the insurer, Albany Insurance Company, eighty per cent of the damages to the car, and that he executed a subrogation to the insurance company. It was conceded by all parties that a few days after the insurance loss was adjusted, the attorneys for the insurer notified Williams Lumber Company that the Albany Insurance Company had referred to them for attention its claim “under subrogation” and demanded of defendants payment of the sum of $120.38.

The defendants then interposed a verbal exception of no cause of action which was maintained by the lower court, and the suit was dismissed.

The only testimony regarding payment by the insurer was given by plaintiff, and he stated that under the terms of the policy the insurance company was obligated to pay eighty per cent of the loss. He admitted the subrogation, but this document is not a part of the record and we are unable to know whether plaintiff assigned his claim for all damage to the car, or whether the subrogation covered only eighty per cent thereof.

Plaintiff contends that under the holding of the Supreme Court in the case of Hanton v. New Orleans & C. R. Light & Power Co., 124 La. 562, 50 So. 544, 547, the court below was in error in maintaining the exception, as he had a perfect right to proceed with his suit for the whole claim, both for injury to the automobile and loss of commissions, notwithstanding the subro-gation of a part of the claim.

In the cited case, the plaintiffs’ property, valued at $26,785.53, was destroyed by a fire allegedly caused by the negligence of the light and power company. Plaintiffs held policies of fire insurance and had collected from the insurers the sum of $18,500, the amount to which they were entitled under the policies, and by way of subrogation transferred to the insurers the claim against the alleged tort feasor, up to the amount of those payments. Plaintiffs, without referring in any manner in their pleadings or otherwise to the fact that they had been paid the insurance, or that they had given subrogations to the insurance companies, brought suit against the light and power company for the full amount of the loss, to wit: $26,785.53. During the trial it was shown that plaintiffs had received the $18,500 from the insurers and had subrogated them pro tanto to the claim against defendant. Counsel for the defendant company thereupon immediately suggested to the court that plaintiffs’ claim should be considered as having been reduced by the amount which they had received from the insurers, and that they should not be permitted to claim any part of that amount, either on their own behalf or as representatives of the said insurers. This suggestion, which the court treated as an exception, was overruled and plaintiffs recovered judgment for the full amount of the loss. The matter was appealed to the Supreme Court and the judgment was affirmed. The Court said that even though the claimants had been paid the greater portion of their loss by the pro-seeds of the insurance policies, inasmuch as ‘.hey had retained against the tort feasor a claim for the unpaid portion of the loss, they might assert their claim for that balance, and might also, in the same suit, make claim for that portion of the loss for which they had been paid, and it would be assumed that in asserting the full claim they were acting for the subrogated insurers for the amount of the insurance paid. The Court said: “Defendant, with knowledge of this condition directly brought home to it, did not claim to have any defenses against the insurance company which would be cut off by the manner in which the suit was brought, nor does it claim now that it has been, in fact, in any way injured. It relies entirely upon the fact itself and the position claimed by it that, as a matter of law, plaintiffs should have been limited in the suit to prosecuting what portion of the original demand remained due to themselves. The effect of this would have been to have required that one single cause of action should be split into a number of actions, each action being by the assignee of a particular portion of the loss. Had the different parties partially interested in the loss brought separate actions, we think it can be safely assumed that the defendant would have urged as a legal proposition that the plaintiffs had no right to divide one single cause of action into a number to suit his convenience or his-interests. As matters stand, we do not think defendant sets up any just cause for complainant.”

Counsel for defendants contend that the Hanton case is to be distinguished from the one now being considered, and that the case of Dupuy v. Graome Spring & Brake Service, La.App., 19 So.2d 657, 659, is controlling. They argue that where an insured is-paid the loss by his insurer, and the tort feasor has been formally notified of a sub-rogation, the original creditor, the insured, has no further interest to warrant his prosecution of the claim for damages-against the tort feasor. They direct attention to the following language used in the Dupuy case: “But as we now view and interpret the Hanton case and other Louisiana decisions, we think that it is clear that even though an automobile owner, whose car has been damaged by a tort feasor, has received from his insurer the total amount of his claim for damage, he may, nevertheless, maintain against the tort feasor a claim for the damage provided the tort feasor has not been formally notified that the claim has been assigned to someone else. * * * ”

As we have already said, the record does not disclose the proportion of the claim assigned to the insurance company. However, it is certain that the loss of commissions was not included, and at least to that extent plaintiff retained a claim against defendants. Defendant’s counsel concede this. In the Dupuy case we observed that where the owner of the automobile had received from and subrogated to his insurer the total amount of his claim for damages, he could still maintain the claim against the tort feasor, provided the latter had never been formally notified of the subrogation. We did not say, nor have we been able to find any authority which says, that where only a portion of the claim has been subro-gated, even if followed by formal notification to the tort feasor, that the original claimant cannot maintain an action for the full amount of the damages. We adhere to what was said in the Dupuy case. Had the present plaintiff assigned his full claim, including both damage to the automobile and loss of commissions, and had the defendants been formally notified of the sub-rogation, in that event the plaintiff would have had no further right or interest to prosecute a suit or to stand in judgment.

A debt is indivisible without the consent of both parties, and a debtor cannot be compelled to pay his debt to a number of transferees among whom it may please the creditor to divide it, and a subro-gation of a part of the debt is not binding on the debtor without his consent. C. C. arts. 2111 and 2153; Lane v. Deas Co., 12 La.App. 382, 125 So. 514; Red River Valley Bank & Trust Co. v. Louisiana Petrolithic Const. Co., 142 La. 838, 77 So. 763; Hanton v. N. O. & C. R. Light & Power Co., supra; Meyer v. V. S. & P. RR Co., 35 La.Ann. 897; Cantrelle v. LeGoaster, 3 Rob. 432; LeBlanc v. Parish of East Baton Rouge, 10 Rob. 25; King v. Havard, 5 Mart., N.S., 193; Miller v. Brigot, 8 La. 533.

In the case of Lane v. Deas Co., supra, the court said [12 La.App. 382, 125 So. 517] : “Viewed in the most favorable light from plaintiff’s standpoint, this was a transfer of only part of a debt. The police jury, not having assented to the transfer, is not bound.”

In the syllabus of Red River Valley Bank & Trust Co. v. Louisiana, etc., supra, the Supreme Court said [142 La. 838, 77 So. 763] : “An assignment, by a contractor, of a portion of the contract price, due or to become due under a contract for the building of a public road in a parish, imposes no obligation upon the parish, as the other contracting party, unless consented to by it”

The following language was used in the case of Miller v. Brigot, supra: “In answer to this proposition, it suffices to say, that no debtor, is bound to pay a debt by portions, and it follows as a corollary, that no partial transfer can be made by a creditor, so as to be binding on a debtor, even when notice is given, except by express consent of the latter. * * *”

The Court said in Cantrelle v. LeGoaster, supra: “ * * * .The provisions of the Code relied on by the appellee’s counsel, and to be found in the chapter which treats of the assignment and transfer of debts, must be understood as applying only to entire debts, rights, and claims; and cannot be made to interfere with another express enactment in the same work, which declares that an obligation, susceptible of division, must be executed between the creditor and the debtor, as though it were indivisible. If a creditor cannot claim the payment of a debt by portions, it is clear that transferees, claiming under him, cannot exercise such a right. * * * ”

In the case at hand, there was only one debt and one cause of action, and the partial subrogation to which they never consented, notwithstanding notice, was in no wise binding upon the defendants. It necessarily follows, therefore, that they, the defendants, cannot successfully urge that plaintiff is bound by it, nor can they use it as a shield against plaintiff’s suit for the whole debt. As to the effects of the subrogation as between plaintiff and his subrogee, that is a matter to be regulated between themselves, and is no concern of defendants.

For the reasons assigned, the judgment of the lower court is reversed and the exception of no cause of action is overruled, and the matter is remanded to the court below for a trial on its merits in accordance with law. Costs of this appeal are to be-paid by defendants-appellees; all other costs are to await the final determination of the matter.

Reversed and remanded.


author: TALIAFERRO, Judge.

text:
    NEAL v. ELLINGTON.
    No. 7196.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 1948.
    James W. Jones, Jr., of Natchitoches, for appellant.
    Gahagan & Pierson, of Natchitoches, for appellee.
   TALIAFERRO, Judge.

Plaintiff, a resident of Natchitoches Parish, Louisiana, instituted this suit in •the district court of that parish, against C. J. Ellington, a resident of Rapides .Parish, Louisiana, to recover wages allegedly due and owing to him for labor performed at the sawmill of defendant, which is located in the Parish of Natch-itoches. Defendant challenged the right of plaintiff to sue him on said cause of action in Natchitoches Parish, since he was a resident of and domiciled in Rapides Parish and excepted to the court’s jurisdiction ratione personae.

The plea was sustained on the face of the record. From a judgment dismissing the suit, plaintiff appealed.

The general rule governing the venue of civil suits is expressed in Article 162 of the Code of Practice. It reads:

“It is a general rule in civil matters that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicile or residence, and shall not be permitted to elect any other domicile or residence for the purpose of being sued, but this rule is subject to those exceptions expressly provided for by law.”

As stated therein, there are certain exceptions to the rule which have been ordained by law. Most of these .are contained in Articles 163, 164 and 165 of the Code of Practice and express amendments thereto. However, plaintiff does not rely upon any of these exceptions, but does rely upon the exception established by Act 16 of 1886 which reads as follows:

“That parties holding claims against any citizen of this State for labor performed, or for supplies or materials furnished, or for improvements made upon any farm or plantation, or real estate, are hereby authorized to institute suit for the recovery of such claims before any competent court having territorial jurisdiction of the property, whether the owner be domiciled or not in the parish where the property is situated.”

He argues that the wages for which he sued, accrued to him for “labor performed” on real estate, to-wit: the sawmill, and, therefore, the act is applicable and provides ground for the court of Natchitoches Parish to entertain jurisdiction of the suit.

The precise character of labor performed by plaintiff is not disclosed by the petition. It is alleged that the amount for which he sued is “due for services as a laborer in the employ of the said C. J. Ellington” and he additionally alleged:

“That the commercial business of the said C. J. Ellington in the operation of the sawmill, and manufacture and sales of lumbers, at the place in which your petitioner performed the services in his employment, as a laborer for the said C. J. Ellington, was in, or near, Clear Lake, Parish of Natch-itoches, Louisiana, where your petitioner performed such labors * *

It is clear from these allegations that the sawmill of the defendant had been completed and was in operation when plaintiff worked for him. Plaintiff could have have labored as a truck driver, log cutter, lumber stacker, or could have performed some other heavy work at or about the mill, yet he would not have rendered service “for improvements made upon * * ’* real estate.”

The act of 1886 is free of ambiguity. The beneficent purpose it is designed to accomplish is made clear by the language therein employed. It was adopted to protect two classes ■ of persons, to-wit: those who labor and those who furnish materials and supplies to make' improvements upon lands. 1 In effect, it-’accords to such persons -the option of entering suit in the court having territorial jurisdiction of the property, regardless of the location of the domicile of the owner, to recover what is due and owing to them, or to sue the owner in the court of his own domicile.

Statutes dealing with jurisdictional questions, such as that of 1886, which derogate from the general rule that one must be sued before the court of his own domicile, have to be strictly construed. The litigant who claims the right to come within the provisions of such a statute must clearly prove his position. Plaintiff •has not succeeded in doing this. See: Boyett v. King, La.App., 180 So. 168; Glover v. Mayer, 209 La. 599-607, 25 So.2d 242.

We are clear in the opinion that the lower court properly declined to take jurisdiction of this case, and, for the leasons herein assigned, the judgment appealed from is affirmed with costs.


text:
    BRANAM v. MANSFIELD HARDWOOD LUMBER CO., Inc.
    No. 7204.
    Court of- Appeal of Louisiana, Second Circuit.
    June 28, 1948.

      J. S. Pickett, of Many, for plaintiff-appellant.
    R. A. Fraser, of Many, for defendant-appellant.
   TALIAFERRO, Judge.

Plaintiff, while working for M. A. Walker, independent contractor of the Mansfield Hardwood Lumber Company, Inc., on May 16, 1945, experienced an accident that caused injury to the left wrist joint admittedly producing temporary total disability to perform manual labor. He was paid compensation on this basis for six weeks at the rate of $15.60 per week, and was then discharged by his physician as being able to resume work. On the theory that said injury and consequent pathology brought about permanent total disability to do work of any reasonable character, plaintiff sued Walker and said lumber company to recover compensation at the rate of $20.00 per week for four hundred weeks and for medical expenses, etc., not to exceed $500.00.

Defendant resists the suit on the ground that plaintiff now suffers no disability whatever as a result of said accident but, on the contrary, since discharged by his physician he has been and is now well able to do the same character of work he was performing when injured.

There was judgment for plaintiff for $3.12 per week for one hundred fifty weeks, less amounts previously paid him, on the basis of twenty per cent loss of earning power or disability. Both sides appealed to this court.

Plaintiff has abandoned his original position of total permanent disability and now contends that his loss of ability due to the accident should be fixed at one-third and that his weekly wage was much more than $24.00, as found by the lower court.

Defendants argue that plaintiff’s demand should have been rejected in toto for lack of proof of present disability.

Plaintiff does not exclusively gain a livelihood for himself and family by working as a log cutter. He owns, lives on and annually operates a farm. When his time is not needed on the farm he seeks public work to augment the family income.

When injured plaintiff and another workman, referred to as his saw partner, were engaged in sawing down a tree preparatory to converting it into saw logs. As the tree fell it struck another one and disengaged therefrom a limb that fell across plaintiff’s wrist which had been raised above his head for protection. He continued to work until the tree had been reduced to logs and then went home. The wrist was giving him much pain. He promptly went to Dr. E. E. Vines, for examination and treatment, but no X-rays were then made. However, Dr. Vines was evidently of the opinion that a fracture had occurred as he put the joint in splints, immobilized it, and allowed it to so remain for some six weeks. But this treatment did not bring about the desired results. The wrist continued to give pain and much discomfort. Subsequently three different physicians examined and X-rayed the wrist and from these pictures and the testimony of these doctors we are clear in the opinion that when the limb struck the wrist it severed from the ulna the styloid process. This is the lower part of the ulna that connects with bones of the wrist joint and serves as an important factor in the functioning of that joint and gives to it much strength. So long as this little chip of bone remains detached from the ulna it will give pain that will be aggravated when the wrist is constantly used or twisted. An operation is the only specific for relief. This could easily be performed and with meager risk of unfavorable reaction.

In July, following the accident, plaintiff applied to another sawmill company for employment and after being examined physically and otherwise, the company’s physician passed him as being in a condition to do heavy work, and he did work as a log cutter with said company for several months.

During the year 1946 plaintiff, with the assistance of his wife, made a crop on his farm. The case was tried November 13, 1946.

The record leaves little or no doubt of the character of disability that has finally resulted from the accident. The power of grip of the left hand is impaired to a material extent. For this reason plaintiff cannot use an axe, and chopping is an important factor in felling and sawing trees into logs. This reduced gripping power naturally prevents him from using the hand in a normal manner when pushing and pulling the saw employed in felling trees and converting them into logs.

While working for the sawmill company, after being injured, plaintiff’s earnings were practically the same as he earned prior thereto. And the same earnings also accrued to him when he, with his father, cut down trees to be coverted into ties.

Plaintiff testified, and in so doing he is supported by fellow workmen, that he cannot now carry one-half the burden of sawing down trees, etc. as he formerly could do, and because of this disability his saw partners are forced to do more than their part and as a consequence object to working with him as a saw partner. It is further shown that because of the foregoing conditions plaintiff has been forced to work with his father .as a saw partner, who, naturally, is willing to and does carry more than his share of the work burden in order to enable plaintiff to rate as a log cutter and hold employment.

The case was tried before Judge Hal A. Burgess who died before rendering judgment therein. Judge Fraser passed on the issues tendered on the record as built up before Judge Burgess. He gave no written reasons to support his judgment.

Under the Workmen’s Compensation Law the loss of a hand entitles the claimant to sixty-five per cent of his weekly wage for one hundred fifty weeks. Paragraph (d) IS of Sub-section 1 of Section. 8 of said law reads as follows: “In all cases involving a permanent partial loss of the use of function of the member mentioned here-inabove, compensation shall bear such proportion to the amounts named herein for the total loss of such member as the disability to such member bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable under this act for the loss of such member.” Act No. 242 of 1928, p. 358.

Evidently the court employed this provision to reach the conclusion it did, but there is no testimony in the record to support the holding that plaintiff’s disability is twenty per cent. We believe the quoted provision has application. No effort was made to prove by medical experts the extent of loss of functioning of the hand because of the wrist’s impaired condition. One lay witness testified that it was “off about one-fourth or one-third”.

It has been three years since plaintiff was injured. If the injury was amenable to the curative power of nature, surely it has exerted itself by now. This possibility and the extent of loss of functioning of the hand, due to the injury, should be the subjects of further consideration and testimony, and the case will have to be remanded for this purpose.

For the reasons herein assigned, the judgment appealed from is annulled, avoided and reversed, and this case is now remanded to the lower court for the purposes above mentioned. One-half of the cost of appeal is assessed against each appellant. The fixing of liability for all other costs will await final judgment in the case.


author: KENNON, Judge.

text:
    COYLE v. LEIGH et al.
    No. 7226.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1948.

      Cecil C. Lowe, of Minden, for appellants.
    Drew & Drew, of Minden, for appellee.
   KENNON, Judge.

Plaintiff, owner of a lot of ground which defendants were occupying as lessees, filed this suit seeking possession of the leased premises on the ground that the lease covering same had expired.

The answer admitted the execution of the lease, but set forth that the leased premises were not the property of plaintiff and prayed that the Court order a survey to be made for the purpose of determining whether plaintiff was owner of the property in question.

Defendants have prosecuted an appeal from a judgment of the District Court ordering them to vacate the premises.

This suit was filed on May 26, 1948. The record shows that plaintiff had been owner of the property since 1917 and that he took possession as soon as it was purchased; that in 1938 he gave a lease which expired on March 20, 1948, and that defendants went into possession of the premises by virtue of a sub-lease under this lease.

Defendants introduced some oral testimony that the leased lot was not located on the property deeded to plaintiff in 1917, but instead was located on an adjacent forty acres, belonging to the Bodcau Lumber Company. However, no deed was presented establishing the lumber company’s title to the adjacent property. On the contrary, the testimony showing that plaintiff had been in actual possession of the property and had had same under fence since 1917.

For the purpose of deciding this case, we are not concerned as to whether the leased lot was located on the land deeded to plaintiff in 1917 or on an adjacent tract. Defendants as lessees cannot question the title of their lessor. The original lease under which defendants held the property as sub-lessees having expired, the judgment of the District Court ordering that plaintiff be put into possession of the property leased from him was correct and same is affirmed, with costs.


author: HARDY, Judge.

text:
    BUTLER v. FRY.
    No. 7190.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1948.

      Lewell C. Butler, of Shreveport, for appellant.
    Frank A. Blanchard, of Shreveport, for appellee.
   HARDY, Judge.

This is an action in which plaintiff seeks to recover for damages received by his automobile as the result of a collision with an automobile owned by the defendant, driven by a Negro employee. Defendant made a claim in reconvention for damages to his automobile. After trial there was judgment rejecting the demands of both plaintiff and defendant, from which judgment plaintiff has brought this appeal.

The accident which is the basis of this suit occurred on or about the 21st day of June, 1946, about the noon hour, on Highway 80. Plaintiff was driving his car west along said highway when a sudden and extremely heavy rain caused the windshield and door glasses of his car to become clouded. Plaintiff stopped his car in the highway, with the right wheels some four feet more or less from the right edge of the paved portion of the highway, with the intention of wiping the mist from the windshield and glasses of the vehicle. Within a short time after plaintiff’s car was brought to a stop it was struck from the rear by defendant’s car. Both cars were more or less seriously damaged and plaintiff claims the sum of $196.40 as costs of repair, while defendant’s reconventional demand fixes his damages in the sum of $74.35.

As stated, by the District Judge in his written reasons for opinion, this case presents a question of fact upon which the testimony of plaintiff and the testimony of defendant’s driver, who were the only witnesses to the immediate circumstances surrounding the collision, is contradictory and irreconcilable. Plaintiff testified that he had been stopped for an appreciable period of time, which he estimated at between one and three minutes, but which estimate he qualified by the statement that it might have been a less time.

There can be no dispute as to the physical fact that plaintiff did stop his automobile on the highway at some little distance from the right-hand edge thereof, and that he did not observe, nor could he observe, by reason of the misted condition of his car glass, following traffic. It is equally obvious that defendant’s driver was negligently proceeding at a speed of some forty miles per hour on a slippery highway in a downpour of rain and failed to observe plaintiff’s car until too late to avoid the collision.

Under these facts we are quite in agreement with the conclusion of the District Court to the effect that plaintiff was guilty of negligence in bringing his car to a stop on the highway without observing proper precautions and without clearing as much of the highway as possible, and further that defendant’s driver was guilty of negligence in proceeding at what was a reckless rate of speed under existing conditions.

It seems quite clear to us that the negligence of both parties directly and concurrently contributed to the accident, by reason of which fact neither should be allowed to recover.

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


text:
    GONGRE v. LIFE & CASUALTY INS. CO. OF TENNESSEE.
    No. 7211.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1948.
    James W. Jones, Jr., of Natchitoches, for appellant.
    Watson & Williams, of Natchitoches, for appellee.
   KENNON, Judge.

Plaintiff, beneficiary under a $500.00 life insurance policy issued to her daughter on August 12, 1946, filed suit for the $500.00 face amount of the policy. The petition set forth that the. insured, Mrs. Mildred G. Stone, died on February 21, 1947 and that all premiums due had been paid.

The defendant admitted the issuance of the policy and that proof of death had been received, but defended on the grounds that the policy had been obtained through fraudulent representations by the deceased and the plaintiff, representing insured to be a woman in perfect health, while in fact she was on August 1, 1946, suffering from acute nephrosis or “Bright’s disease” for. which she had recently been under treatment by physicians in both Natchitoches and Shreveport, Louisiana.

At the time of the trial defendant tendered to plaintiff the premiums paid. The District Court gave judgment rejecting plaintiff’s demand and directed that the premiums, deposited in the registry of the Court, be delivered to her.

In the application for insurance made in writing by the insured on August 1, 1946, Mrs. Stone stated that she had never had any disease of the kidneys; that she was in sound health; and that she had not been under the care of any physician within three years previous to the date of the application.

The evidence discloses that in June, 1946, Mrs. Stone was confined in the Natchitoches sanitarium for several days for treatment of a kidney disease. On her attending physician’s recommendation she went to a specialist, Dr. Rougon of Shreveport. Plaintiff, on the witness stand, admitted that the insured was in the Natchitoches hospital as contended by defendant; that her physician “sent her to Shreveport” to see Dr. Rougon, and that Dr. Rougon said that her daughter had kidney trouble. Dr. R. S. Roy, the Natchitoches physician, testified that he treated the insured for three or four days and because her condition was so bad suggested that she go to a kidney specialist, which she did. His diagnosis was that she had nephrosis, which he described as a chronic ailment of the kidneys and that her condition was so serious that “the best we could do would not be too much.”

We conclude that the insured, prior to applying for the policy sued upon, was suffering from this serious kidney ailment and that this condition was known both to the insured and the plaintiff at the time the application for insurance was signed.

Act No. 160 of 1934 provides that the written and signed application that is the basis for issuing a policy of industrial insurance becomes a part of the insurance contract. The provisions of this act have been followed by the Courts. Succession of Ryan v. Life & Casualty Insurance Company of Tennessee, La.App., 198 So. 522, and cases there cited. Plaintiff cites the case of Blackwell v. Fireside Mutual Life Insurance Co., La.App., 11 So.2d 65. That case is distinguished from the case at bar in that the defendant was a regular life insurance company, to which the above mentioned statute relative to industrial life insurance companies, does not apply.

The learned District Judge, in a well considered written opinion, found that the insured and plaintiff knowingly made the serious misrepresentations about Mrs. Stone’s unfortunate affliction. He correctly reached the conclusion that the misrepresentations were of such a nature as to void the policy, citing the Ryan case, supra.

The judgment appealed from is affirmed, with costs.


author: DORE, Judge.

text:
    RICHARDSON v. MATHIESON ALKALI WORKS, Inc.
    No. 3015.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1948.
    Rehearing Denied Aug. 9, 1948.
    Murray A. Anderson, Bass & Brame, all of Lake Charles, for appellant.
    Jones, Kimball & Owen, of Lake Charles, for appellee.
   DORE, Judge.

On or prior to October 8, 1945, the plaintiff was employed as a laborer by the defendant at its alkali plant located in Calca-sieu Parish. On that day the plaintiff, while engaged in removing burnt lime out of a lime kiln in defendant’s plant, accidentally stepped of a board runway into sonic hot powdered lime with his left foot. As a result he suffered burns on his left foot, near the ankle, for which he was given first aid treatment. He was paid compensation to the amount of $70.00, and thereafter he was discharged by the Company’s nurse as being fit to return to work. However, he claims that he was unable to return to work because both his left and right legs became infected with ulcers which he attributes to the accidental burning. The employee sues the employer based on these allegations, and demands workmen’s compensation for a period of 400 weeks, less the credit of $70.00 heretofore paid, plus $500.00 for medical expenses.

The defendant admits the accident and admits that plaintiff suffered minor burns on his left foot, but maintains that after several weeks’ treatment at defendant’s First Aid Station that the burns were completely healed, except for one burn on the ankle, about the size of a quarter; that consequently after being discharged by the Company nurse the plaintiff was fit to return to his usual work as a laborer. Defendant contends further that the present ulcers on plaintiff’s legs are not in any way connected with or the result of the accident.

After trial of the suit the court came to the conclusion that plaintiff had failed to establish causal connection between the condition of his legs and the accident, and accordingly he dismissed plaintiff’s suit at his costs. Plaintiff has appealed.

As brought out by the trial judge, in a well written opinion, there is only one serious question involved in the case, and that is whether or not the ulcers, lesions or sores from which plaintiff was suffering at the time of trial were the result of the burns which he sustained on October 8, 1945.

Plaintiff testified that he had burns on both legs at the time of the accident. His wife stated that when he came home he had burns on both legs, and some of his neighbors and friends also testified to the same effect. However, the nurse who treated the plaintiff was positive that the only burns were to plaintiff’s left ankle; that she examined the left leg and that there were no burns on the left leg; that plaintiff made no complaint about any burns on either leg; that he was given permission to return to work November 14, 1945. Dr. Watkins examined plaintiff on January 28 and on February 19, 1946, and that at that time plaintiff did not complain of having received any burns on his right leg. In testifying relative to scars on plaintiff’s left leg Dr. Watkins stated that plaintiff informed him that “those are some old ones I had a long time ago.” Evidently the trial judge did not believe the testimony of the plaintiff and his witnesses with regard to burning of both legs, and saw fit to believe the nurse and Dr. Watkins to the effect that plaintiff had no burns to the legs outside of the ankle burns on his left ankle;, which were practically healed by November 14, 1945, when he was discharged by the nurse.

With reference as to whether or not plaintiff’s condition resulted from the accident, we have the following expert testimony:

Dr. Steve F. Price testified that he examined plaintiff on March 1, 1947, and that the plaintiff gave him a history of having been exposed to some lime of some sort and that he had burns on his leg from the lime and had been treated by the Company nurse for the burns, but that he apparently had never gotten well. Dr. Price testified further that if plaintiff’s legs were in a condition that he saw them, he should have been treated by a physician and that in his opinion the nurse was not qualified to treat him or to pronounce him cured. From his examination, he concluded that plaintiff had eczema, an eczematoid type of dermatitis, and that in his opinion the skin had become sensitive as a result of the burn or exposure, creating a condition for the development of this eczematoid type of reaction upon exposure probably to other substances, which produced a similar effect. He admitted, however, that his opinion was based on the history as given him by the plaintiff and, in effect, that if the facts showed that plaintiff had suffered burns only to his left ankle, that it is not likely or probable that the dermatitis from which he now suffers was caused by these burns. Plaintiff had given him the impression that he had suffered burns on both legs.

Dr. H. S. Snadic testified that he examined plaintiff, in February or March, 1947, and found that he was suffering from chronic ulcers of the legs. The history given him by the plaintiff was to the effect that following the burns his skin developed blisters, and that some of the skin came off and ulcers formed directly following the burns. Based on this history the Doctor was of the opinion that the ulcers were the result of the accidental burns sustained on October 8, 1945. He admitted that if there was no evidence of a dermatitis on plaintiff’s legs on November 12, 1945, that the dermatitis was probably not connected with the accident of October 8, 1945; in other words, that if the dermatitis was the result of the burns it would have developed prior to November 12th. He testified further that the plaintiff was suffering from the same type of trouble in both legs, and that'a burn on the left ankle could not have caused the right leg to have become affected.

Dr. H. B. White testified that he examined plaintiff on March 23, 1946, and, based on the history given him by the plaintiff, concluded that the ulcers on plaintiff’s legs were caused by chemical burns. Pie too admits, however, that if the dermatitis had not developed prior to November 12, 1945, he feels, in effect, that the condition is too remote to be connected to the accident of October 8th.

Dr. T. H. Watkins, the Company physician, testified that he examined plaintiff on January 28, 1946, and on February 19, 1946, and that on both occasions he found open lesions only on plaintiff’s left leg. He was of the opinion that plaintiff had varicose ulcers and that there could be no connection between this condition and the burns received on October 8, 1945.

Dr. G. E. Barham testified that he had examined and treated the plaintiff on April 12, 14 and 17, 1947, and that in his opinion the plaintiff was suffering from a chronic eczema caused by deep varicose veins and not the result of the lime burns to his left ankle.

As brought out by the trial judge, the facts in the case at bar are similar to those in Ware v. Engineering Construction Company, 17 La.App. 600, 135 So. 248. In that case the employee was standing in fresh concrete and sustained burns to his feet, and after the burns had healed, a form of dermatitis broke out which resulted in total disability. The courts refused to award compensation on the ground that the dermatitis had not been shown to be the result of the burns. The trial judge sets forth that in the Ware case the dermatitis was in the same area where the lime burns had been sustained, whereas in the case at bar the dermatitis is in both legs, even on the right leg, on where there had been no lime burns, and consequently is not in the same area as the lime burns, and naturally the possibility of the plaintiff’s condition being connected with the accident are more remote than in the Ware case.

It is apparent from the above that the trial judge did not believe plaintiff and his lay witnesses to the effect that burns were sustained on both legs, and ulcers or sores developed on both legs a short time after the accident, but on the contrary immediately after the accident and for some time thereafter, to the effet that the only area affected was the left leg néar the ankle. The trial judge also obviously believed Dr. Watkins’ testimony to the effect that there was no question of any burns on the right leg. All the experts, on these facts concluded as being true by the trial judge, are agreed that plaintiff’s condition could not have been caused by the burns on October 8, 1945. Naturally the trial judge was in a better position than we are to have reached the conclusions as to the burns sustained in the accident, since he was confronted by the witnesses.

Finding no manifest error committed by the trial judge, for these reasons assigned the judgment appealed from is affirmed.


author: ELLIS, Judge.

text:
    HAMMETT v. CITIES SERVICE REFINING CORPORATION.
    No. 3016.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1948.
    Rehearing Denied Aug. 9,1948.
    Writ of Error Granted Nov. 8,1948;
    Irion & Switzer, of Shreveport, for appellant.
    Jones, Kimball & Owen, of Lake Charles, for appellee.
   ELLIS, Judge.

This is a suit for Workmen’s Compensation. Plaintiff alleges that while in the employ of the defendant he sustained severe injuries to his left knee in an accident which occurred on July 2, 1946, which has resulted in total and permanent disability to do work involving manual labor or the use of his legs or any work of a reasonable character. He specifically alleges in Article 11: “That said Cities Service Refining Corporation has failed and refused to pay petitioner any compensation whatever despite amicable demand and still fails and refuses to pay him any compensation, and, consequently, a dispute exists between petitioner and said defendant as to the extent and duration of petitioner’s injuries.”

Plaintiff filed this suit on the 10th day of June, 1947.

On June 26, 1947 the defendant, through its counsel, filed an exception of prematurity for the following reasons:

“ * * * Appearer denies that it refused or had occasion to refuse to pay petitioner any compensation because no demand or request has ever been made upon it for the payment of any compensation to plaintiff whatever. Appearer avers that it had no knowledge that any claim was being made or urged against it for compensation until the copy of the petition in this cause was served upon it.”
“That therefore, under Sub-section (b) of Section 18 of Act 20 of the General Assembly of Louisiana for the year 1914, as amended, known as the Workmen’s Compensation Act, said cause of action, if plaintiff has one, which appearer denies, is premature, which prematurity ap-pearer especially pleads in bar of plaintiff’s right to recover or judgment herein.”
“That the issues raised by this exception are required to be determined under the provisions of the Workmen’s Compensation Act in advance of the hearing on the merits of this cause.”

After a hearing, the District Judge by written reasons held that plaintiff’s action was premature and dismissed plaintiff’s suit at his cost and without prejudice. Plaintiff has appealed from the judgment of the Lower Court.

The testimony of the plaintiff was taken by deposition in Shreveport, Louisiana, to which testimony is attached four letters offered in evidence by the plaintiff. Plaintiff is relying upon his testimony and the four letters introduced by him to prove a refusal by the defendant to pay him compensation. The testimony of the plaintiff is to the effect that he was working for the defendant on July 2, 1946 at the Tut-wiler refinery at Lake Charles, Louisiana, and that he injured his leg on that date; that he went to Dr. Lacour, who was in charge of the clinic at the refinery and that he received light treatment there for fifteen to eighteen days. The evidence fails to show the exact date he voluntarily left the employ of the defendant company but merely shows that he left Lake Charles sometime after the accident and went back to Shreveport.

On December 13, 1946, plaintiff wrote to Dr. Lacour in care of the Tutwiler Re-, finery with regard to the injury to his knee, which letter reads as follows:

“Shreveport, Lousiana
December 13th, 1946.
Dr. Fritz Lacour
c/o Tutwiler Refinery
Lake Charles, La.
Dear Dr. Lacour:
I know you will recall the knee condition I had while employed there. Am still having trougle with it. Have tried bandadge and light and neither have helped. I would like your advice as to what I should do.
Will appreciate hearing from you.
Yours truly
W. J. Hammett
841 Ratcliff Street
Shreveport, Louisiana”

This letter was answered by Dr. Lacour on December 18, 1946 as Plaintiff’s Exhibit No. 2 as follows:

“Cities Service Refining Corporation
The Tutwiler Refinery
Lake Charles, Louisiana
December 18, 1946
Mr. W. J. Hammett
841 Ratcliff Street
Shreveport, Louisiana
My dear Mr. Hammett:
Your letter dated December 13th has been received.
I regret that you are having trouble and, under the circumstances, suggest that you see your family physician for appraisal and treatment. It is hoped that your condition will not prove serious and recovery will be uneventful.
Seasons greetings.
Very truly yours,
Fritz LaCour, M. C.”

Plaintiff’s Exhibit 3 is another letter written by plaintiff to Dr. Lacour as follows :

“841 Ratcliff Street
Shreveport, Louisiana
February 28, 1947
Dr. Fritz LaCour,
c/o Tutwiler Refinery
Lake Charles, Louisiana
Dear Doctor LaCour:
Would you please check your records and advise me by return mail the date shown thereon that I injured my knee, while working at the Tutwiler Refinery in Lake Charles last year.
Thanking you, I am
Yours Very truly
W. J. Hammett”

The evidence shows that this letter was referred to L. D. McClatchey, Treasurer of the defendant company, and was answered by him on March 31, 1947:

“Cities Service Refining Corporation
716 Hodges Street
Lake Charles, Louisiana
Telephone 8391
March 31, 1947
Mr. W. J. Hammett
841 Ratcliff Street
Shreveport, Louisiana
Dear Sir:
Your February 28, 1947 letter to Dr. LaCour has been passed to me for handling.
According to our records you bruised your knee on July 2, 1946.
It is of course understood that the furnishing of this information is no admission of liability on our part.
Yours very truly
L. D. McClatchey, Treasurer
LDM; js
cc: A. H, Heitzler
Attention: Dr. La'Cour”

Plaintiff fui-ther testified that he had worked for the defendant corporation prior to the time that he worked for them in Lake Charles and that a Mr. Welsh was the head man for approximately 12 years of the time he worked. That after he left Lake Charles and went to Shreveport he went to see Mr. Welsh in order to get a lighter job; that he told Mr. Welsh about his injury and that Welsh promised that if anything came up that he thought the plaintiff would be interested in, he would notify him. Plaintiff admitted under cross examination that Mr. Welsh was connected with Arkansas Fuel Oil Company who he thought was a subsiduary of the Cities Service Refining Corporation.

The plaintiff, therefore, is relying upon his visits to Mr. Welsh and the letters, Plaintiff’s Exhibit 1 through Plaintiff’s Exhibit 4, to show a refusal on the part of the defendant company to pay him compensation for his injury.

The record shows that Mr. J. A. Welsh, whom the plaintiff visited in Shreveport, was the sales manager of the Arkansas Fuel Oil Company, There is no proof that he was employed in any capacity by the defendant. The defendant corporation and Arkansas Fuel Oil Company are sub-siduaries of the same parent company. Mr. McClatchey testified that his department had jurisdiction over workmen’s compensation claims and that no claim or demand had been made on the defendant previous to the filing' of the present suit by the plaintiff for compensation under the Compensation Act of Louisiana; that “the first knowledge that the defendant had of any demand for compensation was the institution of this suit and service on the defendant.”

Certainly plaintiff’s visits and talks with Mr. Welsh would not and could not constitute a refusal on the part of the defendant to pay him compensation for the very simple reason that Mr. Welsh was in no wise connected with the defendant company.

Plaintiff also seems to be relying mainly upon the letter introduced as Plaintiff’s Exhibit 4 from L. D. McClatchey, Treasurer of the defendant company, in answer to his letter of February 28th asking for the date on which he injured his knee. The main part of the letter of March 31st which defendant contends shows a refusal to pay compensation is the last paragraph wherein the treasurer of the defendant company stated “It is of course understood that the furnishing of this information is no admission of liability on our part.”

The compensation law provides that “neither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation under this act.” Acts 1914, No. 20, Sec. 18; 1920, No. 234, Sec. 1; 1920, No. 247, Sec. 1; 1926 No. 85, Sec. 1; 1930, No. 81, Sec. 1.

Certainly then, the furnishing of the information contained in the letter introduced as Plaintiff’s Exhibit 4 did not in itself constitute an admission of liability nor a refusal to pay compensation and, therefore, the mere addition in that letter of the Paragraph which stated that “the furnishing of this information is no admission of liability” was mere surplusage and cannot be considered as a refusal to pay.

Taking all the testimony, we do not believe that the plaintiff has shown a refusal on the part of the defendant to pay compensation as required by law.

The Supreme Court in the recent case of D’antoni v. Employers’ Liability Assurance Company, 213 La. 67, 34 So.2d 378, 381, held: “In the instant case, the Court of Appeal has taken a most narrow and technical view of Subsection 1(b) of Section 18 of the Employers’ Liability Act. The opinion reflects the belief of the Court that, in order for an employee to prevent dismissal of his suit on the ground of prematurity, he must show that he has made formal demand on his employer for compensation and that the latter has formally refused. But the statute does not require a demand, formal or otherwise, by the employee and there is nothing contained in our decision in Hall v. Hillyer-Edwards-Fuller, Inc. 187 La. 959, 175 So. 633 (Cited and relied upon by the Court of Appeal), which justifies a contrary view. Albeit, the act merely prescribes that the employee allege that he is not being paid compensation and that the employer has refused to pay. * * * ”

We are of the opinion that the defendant has shown that the allegation in plaintiff’s petition that the defendant had refused to pay compensation was without reasonable cause or reasonable foundation in fact. This the defendant was entitled to show under Subsection (b) of Section 18 of Act 20 of the General Assembly of Louisiana for the year 1914, as amended.

It is, therefore, ordered that the judgment of the District Court dismissing plaintiff’s petition on the exception of prematurity be and the same is hereby affirmed.


author: J. J. DAVIDSON, Judge ad hoc.

text:
    CLOSTIO’S HEIRS v. SINCLAIR REFINING CO. et al.
    No. 3008.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1948.
    Rehearing Denied Oct. 5, 1948.
    See 37 So.2d 44.

      J. Minos Simon, of Lafayette, for appellants.
    Helm & Simon, of New Iberia, for ap-pellees.
   J. J. DAVIDSON, Judge ad hoc.

The heirs of Mrs. Homer Clostio have instituted this suit for damages resulting from the death of their mother, who was accidentally killed in an automobile accident which occurred in the Town of Abbe-ville in Vermilion Parish, Louisiana, on August 27, 1946. The suit is directed against Joseph Romero, the driver of the automobile, A. D. LeBlanc, employee cf the Sinclair Refining Company, the Sinclair Refining Company, and its insurer, Zurich General Accident & Liability Insurance Company, Limited.

The petition alleges that A. D. LeBlanc, who was an agent of the Sinclair Refining Company and was acting in the course of his agency at the time, took his automobile to a garage in the Town of Abbeville operated by one West Richard, for the purpose of having a glass in the door of the car changed. That A. D. LeBlanc thereupon requested West Richard to have someone take him home in his car and then bring the car back to the shop for the repairs. Richard pointed out one of his employees to LeBlanc to take him to his business or to his home, but LeBlanc objected to using this particular employee and thereupon approached Joseph Romero and specifically requested that Romero drive him to his home or his place of business, and Romero agreed to do so. A. D. LeBlanc drove his automobile to his place of business and dismounted, and Joseph Romero started back to the garage with the automobile. On the way back to the garage, the mother of the plaintiffs was struck by the car driven by Joseph Romero as she was walking across the street, and it is alleged that the accident was the result of the negligence of the said Joseph Romero. The petition specifically avers that Romero was operating the automobile with the express permission and at the specific request of A. D. LeBlanc, and then alleges that the Zurich General Accident and Liability Insurance 'Company, Limited, had issued a policy of public liability insurance covering the Sinclair Refining Company and A. D. LeBlanc and any person who was using the automobile in question with the permission of LeBlanc, or the Sinclair Refining Company. The petition also alleges that Joseph Romero was an independent contractor working in the same garage where West Richard worked; that Romero went to work whenever he so desired, his hours being his own, and West Richard had no control over the said Joseph Romero.

Exceptions of no right of action were filed on behalf of Sinclair Refining Company, A. D. LeBlanc and Zurich General Accident and Liability Insurance Company, Limited. In the exception filed on behalf of Zurich General Accident and Liability Insurance Company, Limited, specific reference is made to Section 3 of the policy of insurance which is usually referred to as the “omnibus clause” and which reads as follows:

“III. Definition of ‘Insured.’ The unqualified word ‘insured’ wherever used in coverages A and B and in other parts of this policy, when applicable to such coverages, includes the named insured and except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured. The insurance with respect to any person or organization other than the named insured does not apply: * * *
“(c) to any person or organization, or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station or public parking place with respect to any accident arising out of the operation thereof;”

Exceptions of no cause or right of action were filed on behalf of Joseph Romero and with reservation of the exception, an answer has been filed on Romero’s part.

The exceptions of no right of action filed by Sinclair Refining Company, A. D. Le-Blanc and Zurich General Accident and Liability Insurance Company, Limited, were taken up, evidence was introduced thereunder, and after submission to the court, the District Court rendered judgment maintaining the exceptions and dismissing the suit of the plaintiff against the defendants named. From this judgment the present appeal has been taken.

Motion to Dismiss

When this case was called for argument in this court, a motion was filed on behalf of the appellees to dismiss the appeal on the ground that at the time the exceptions were tried in the District Court, it had been agreed that the District Court could render judgment in vacation, reserving to either party the right to appeal “by petition” with the same force and effect as though rendered in regular term in open court. The motion to dismiss declares that judgment dismissing the plaintiffs’ suit was rendered during vacation in August, 1947, and plaintiffs moved for an appeal in open court by oral motion in open court on October 1, 1947, which was a subsequent term of court to the one in which judgment was rendered, and, therefore, the plaintiffs having failed' to take the appeal by petition and citation, the appeal should be dismissed.

The plaintiffs and appellants take the position that inasmuch as the judgment was rendered during vacation, and not during any prior term of court, and inasmuch as the appeal was taken as soon as court opened, the motion for appeal was not made at a “subsequent” term of court but should be considered to have been taken at the “same term” as required by Article 573 of the Code of Practice. The record shows that the term of court ended on June 30th, and the next term convened in September. The judgment was rendered by the court in vacation in accordance with the stipulation between the parties, and a motion for appeal was made by the attorney for the plaintiffs in open court on October 1st, and at that time, pursuant to the said motion, an order was entered “ordering that all necessary parties be notified and cited of this appeal.” Pursuant to this motion and order, the citation of appeal was issued and all of the parties presently before the court were duly cited and notified.

The judgment was rendered by the Court during vacation, under an agreement of counsel, and while the agreement gave the judge the right to grant an order of appeal at that time, he did not exercise that right, and the order of appeal was not granted until Court resumed after vacation. For all intents and purposes, therefore, the judgment may be said to have been rendered at the same term just as well as it can be said to have been rendered at a prior term before court went into vacation. However, in any event we do not believe the motion to dismiss is well founded. The law favors the granting of appeals.

There are a number of decisions which point out that where the motion to dismiss the appeal strikes at the foundation of the right of the appeal itself, the motion should be maintained, whereas if the motion relates, to some informality in connection with the appeal which does not affect the right of appeal itself or the jurisdiction of the Appellate Court, such informality should not result in preventing a review of the case by the Appellate Court. Coreil v. Town of Welsh, 120 La. 557, 45 So. 438; Haydel v. Major, La.App., 19 So. 2d 628; Watson v. Young, La.App., 34 So.2d 86.

In the present case, the order directed the parties defendant to be notified of the appeal, and a citation and notice of appeal was actually issued and served upon the parties defendant. All parties had full notice of the appeal and of all action which was taken through service of the notice and citation, to the same extent as though the procedure had been by “petition.” The motion to dismiss was filed some time thereafter when the case was called for argument in the Appellate Court'. It is clear that no harm has resulted to any of the parties from the procedure taken, that all were fully advised in ample time to protect themselves fully, and that the procedure used in perfecting the appeal, if not strictly complying with the statutory law, was an informality only and should not result in preventing a review of the case by this court.

The motion to dismiss the appeal is therefore overruled.

On the Merits

Plaintiffs objected to the introduction of any evidence under the exceptions of no right of action. Over the objection, evidence was introduced for the purpose of showing that Joseph Romero was not, in fact, the agent of A. D. LeBlanc and Sinclair Refining Company, showing the express provisions of the insurance policy issued by the Zurich General Accident and Liability Insurance Company, Limited, and showing that Romero was, in fact, the employee of West Richard. It has been repeatedly held that where the trial and final disposition of an exception will put an end to a case, it should be disposed of before going into a trial on the merits so as to eliminate a protracted and unnecessary trial. Miller v. United States Fidelity & Guaranty Company, La.App., 169 So. 259; Beard v. Vincent, 174 La. 869, 141 So. 862; Jones v. Shehee-Ford Wagon & Harness Company, Inc., 183 La. 293, 163 So. 129. It is likewise clear that on the trial of an exception of no right of action, the exceptor has the right to offer evidence for the purpose of showing that the plaintiff does not possess the right to make a claim or that the right itself does not exist. Bartholomew v. Impastato, La.App., 12 So.2d 700. The objection was, therefore, properly overruled and the evidence properly admitted.

The evidence introduced shows that on the day before the accident A. D. LeBlanc made an appointment with West Richard to have certain repair work done on his car. On the morning of August 27, 1946, pursuant to the appointment, A. D. LeBlanc took his car to West Richard’s garage in ■the Town of Abbeville for the purpose of having this repair work done. He spoke to West Richard and asked Richard if it was all right for Joseph Romero to drive him back to his office. West Richard replied that, “If Joe wanted to, it was O. K.” LeBlanc thereupon apparently asked Romero to drive him and Romero replied to the effect that, “If Mr. Richard is willing to let me go, I was willing to take him back to his office.” LeBlanc drove his own automobile to his office, at which place he got out and Romero took the car and started back to the garage for the purpose of having the repairs made when the accident occurred. There is some little confusion about the exact relationship between West Richard and Joseph Romero, but it appears from the evidence that Joseph Romero ’had returned from service in the Armed Forces of the United States, and West Richard had offered to allow him to come into his garage and learn the trade of a mechanic. Romero came into the garage, and performed all of the work under the direction and supervision of West Richard. West Richard made the contracts with the customers, fixed the prices of the work to be performed, and actually collected whatever charges were assessed therefor. However, West Richard gave to Joseph Romero the full amount of all collections which resulted from the actual work performed by Joseph Romero, and he received no other wage or compensation. It likewise appears that although Romero worked regularly, his hours were to be determined by himself, and West Richard did not look upon him in the capacity of an employee.

It is not necessary to determine whether Joseph Romero was a servant or employee of West Richard, or whether he was an independent contractor, as contended by plaintiffs. If he was an independent contractor, he was engaged in “operating an automobile repair shop” himself. If he was an employee then he was representing, as employee or servant, West Richard who was “operating an automobile repair shop”. Both West Richard and Joseph Romero, either together as master and servant, or separately as independent operators, were engaged in the business of operating the repair shop and performing the services of a mechanic.

It seems to be well established that where the owner of a garage or repair shop, or the servant or employee or agent of the garage or repair shop, delivers cars to customers after they have been repaired, or picks them up from customers for the purpose of taking them to the shop to be repaired, he is in no way the agent or the representative of .the owner of the automobile.

There is no doubt that the automobile in the present case was being operated with the permission of A. D. LeBlanc, the owner, and the evidence shows not only that he turned the car over to Romero to take back to the garage, but he had specifically requested Romero to go with him to his place of business to drive the car back to the garage. There is likewise no question but that the automobile was being returned to the repair shop in order that the repairs might be made by that shop, either by West Richard himself, or by Joseph Romero, both of whom were mechanics and both of whom performed such services. Arrangements had been made to have the car repaired, .and it was delivered by the owner, A. D. LeBlanc, to Joseph Romero for no other purpose than for its-return to the repair shop to undergo the repairs. Thus it is clear that the accident was one which arose “out of the operation” of an automobile repair shop, while that automobile was being driven by a person who operated the automobile repair shop, or by an agent or employee of the person who operated an automobile repair shop. Although being operated with the permission of A. D. LeBlanc, clearly such operation falls within the exception contained in the insurance policy issued by the Zurich General Accident and Liability Insurance Company, Limited quoted above.

The Louisiana Supreme Court has finally put at rest all questions with reference to a situation of 'this kind in the case of Nyman v. Monteleone-Iberville Garage, Inc., 211 La. 375, 30 So.2d 123, 125. In that case the plaintiff’s husband was killed by an automobile belonging to W. K. Weaver as it was being taken on his instruction to the Monteleone-Iberville Garage by one of the garage employees sent to the Monteleone Hotel to pick up the car for storage. Weaver had specifically requested that the garage send over for his automobile, and an employee of the garage went to get it. The court discussed the matter in some detail. An exception of no cause or right of action was filed on behalf of the United States Fidelity and Guaranty Company, as the insurer of the owner of the automobile based upon a provision contained in the policy of insurance which was identical with the “omnibus clause” and its exception quoted above and contained in the policy involved in this case. The court in the Nyman case maintained the exception and said:

“Unquestionably the car in the instant case was being used with the permission of the insured under the facts pleaded in the petition and without the limitation above referred to we think the plaintiff would be entitled to prosecute this suit against the insurer of Weaver, the owner of the car. The question that arises is whether the injury sustained in the instant case is one of those specifically stated to be exempt from ¡the coverage in the omnibus clause within the intendment of. the parties as stated in Sub-section C under the definition of the term ‘insured.’
“ ‘An insurance policy is a contract and the rules established for the construction of written instruments apply to contracts of insurance.’ 14 R.C.L. 925, Section 102. See, also, Wallace v. Insurance Co., 4 La. 289; Parks v. Hall, 189 La. 849, 181 So. 191; and Hemel v. State Farm Mutual Automobile Insurance Co., La.Sup., 1947, 29 So.2d 483. And under the express provisions of the Revised Civil Code, to be found in Section 5 of Chapter 3 of Title IV, under the heading ‘Of the Interpretation of Agreements,’ it is provided that ‘courts are bound to give legal effect to all * * * contracts according to the true intent of all the parties,’ and such ‘intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences.’ Article 1945. In arriving at the intent of the parties ‘All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act.’ Article 1955. It is only when a clause is susceptible of two interpretations that it must be understood in the sense in which it may have some effect rather than in a sense that would render it nugatory (article 1951) and only in doubtful cases that the agreement must be interpreted against the party who- contracted the obligation. Article 1957.
“Just what was the intention of the parties in stipulating that ‘The insurance with respect 'to any person or organization other than the named insured does not apply: * * * (c) -to any person or organization, or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station or public parking place with respect to any accident arising out of the operation thereof’?
* * * *■ * f *
“While it may appear at first glance that the use of the automobile sought to be excluded is limited to accidents arising out of the use of the automobile by the class of persons engaged in the designated businesses, or their employees, a fair analysis of this provision, when considered with the entire contract, shows, we think, that the limitation is applicable to accidents arising out of the operation of an automobile repair shop, public garage, sales agency, service station or public parking place when the automobile is being Used by the operators of such businesses or their employees with the permission of the named insured.
“Clearly the death of the husband of the relatrix in this case resulted from an accident that occurred while the insured car was being used with the permission of the insured by an employee of a public parking place in ¡the operation of that business and it is our opinion, therefore, that the district court and the Court of Appeal for the Parish of Orleans correctly concluded the injury was not covered under the terms of the policy and properly maintained the exceptions of no cause and no right of action filed by the insurer.”

In this case Joseph Romero was taking the car back to the repair shop for no other purpose than for him or West Richard to make the repairs agreed upon. He was operating the automobile with the permission of A. D. LeBlanc, only with respect to the operation of the repair shop by him individually, or as the employee of West Richard. Thus, the operation fell within the express exception to the omnibus clause above quoted, and the policy did not afford coverage to any resulting accident. It is clear that under the decision of the Supreme Court of Louisiana in the Nyman case, supra, the plaintiffs have no right of action against the defendant, Zurich General Accident and Liability Insurance Company, Limited, and 'the decision of the District Court maintaining the exception filed by this company is affirmed.

There is, however, some further question to be presented as regards the defendants, A. D. LeBlanc and Sinclair Refining Company. Plaintiffs contend that Romero, the driver, was the agen’t of LeBlanc, and the Sinclair Refining Company, the owner, being specifically so designated and acting pursuant to the special request of LeBlanc, and therefore, LeBlanc and Sinclair Refining Company are responsible for his negligence. It is shown by the pleadings and the evidence that A. D. LeBlanc was the agent of the Sinclair Refining Company. It is also shown that A. D. LeBlanc specifically requested Joseph Romero to go with him to his place of business to return his car to the shop for repairs. There is some question as to whether or not the permission of West Richard was required before he could make this trip, and also some question as to whether a young boy at the station had offered his services to go with A. D. LeBlanc to bring the automobile back to the garage, and whether his services had been refused by LeBlanc, who preferred to have Joseph Romero. The question as to whether either. A. D. LeBlanc or Sinclair Refining Company, or both of them, are responsible for the action of Joseph Romero depends upon whether or not Joseph Romero was, in fact, their agent and under their control. If this agency and control existed, then it would make no difference how many other employments Romero may have had or what business he was engaged in. In 5 Blash-field ■ Cyclopedia of Automobile Law and Practice, Perm. Ed., § 2920, the author states:

“Thus a person put in charge of an automobile by the owner and subject to the direction and control of such owner is his agent and servant, and the owner is liable for his negligence, no matter how many employments he may then have had with others.
“As will be shown in another connection, a driver, to whom an owner of an automobile commits its custody and operation, though in the general employ of another, may, for the time being, be the servant and agent of the owner.
“Thus, one in the general employment of a garage keeper may become pro hac vice the servant of the owner of an automobile, so as to charge the owner with the negligence of such employee in driving the car.” (Italics ours.)

Although .the owner may be responsible in the instance referred to above, it is ■to be noted that as a prerequisite to such responsibility, the owner must be in control and the operation of the automobile must be subject to his' direction. Unless the element of control is present, the owner, who places his automobile in the hands of someone to take to a garage, cannot be held responsible. As stated in 5 Blashfield Cyclopedia of Automobile Law and Practice, Perm. Ed., § 2920:

“An owner who does not control the servant to whom he commits his car, and does not assume to direct him in the manner of doing his work, is not, however, liable for his negligence.”

The evidence introduced in this case specifically shows that A. D. LeBlanc gave no instructions whatever to Joseph Romero as to the route he should take in returning the car to the garage, nor was anything said relative to the manner of driving. He gave Romero no instructions whatever, but states that since he knew that Romero was a careful driver, he simply turned his car over to him to take it back to the repair shop in order that the repairs might be made. Romero testified that he was requested to take Mr. LeBlanc to his office; that he took the car from Mr. Le-Blanc at his office for the purpose of bringing it back to the garage, and he came back alone. There is no evidence that any instructions were given to him by LeBlanc with reference to the manner of operation or the course to be followed, and therefore, it is clear that LeBlanc exercised no control whatever over Romero. Under the circumstances here presented, the driver of the automobile was not the agent of the owner, and the owner is not responsible for any ensuing damage which may have resulted due to the negligence of the driver.

Blashfield in his Cyclopedia of Automobile Law and Practice, Perm. Ed., vol. 5, § 2966, at page' 104, states:

“Where an automobile owner drives to a garage and there takes aboard the garage owner, who is to repair his car, and who, at the car owner’s request, goes with the owner, and drives the car back for repairs after the owner disembarks, the owner retaining no supervision over the mechanic, either as to the manner or method of repairs or as to the manner of his return to the garage, the car owner is not liable for injuries caused by the negligence of the garage owner in driving back to the garage.”

Plaintiff relies to a large extent upon the case of Stephanelli v. Yuhas (American Casualty Co. of Reading, garnishee), 135 Pa.Super. 573, 7 A.2d 124, 125. In the cited case George Yuhas was an employee of Pennsylvania Hide & Leather Company and on the day of the accident the truck of his employer broke down. He took it to the repair shop for service and it was found that a bolt was needed which was not in stock at the repair shop. Yuhas stated he had to go to Scranton (apparently a near by town) to get his pay check and he agreed to get the bolt. The repair shop owner, Walsh, gave Yuhas permission to use his wife’s (Jean Walsh) autom bile to malee the trip and on the trip the accident occurred. The facts in this case are thus very different from those in the case before us for consideration. It is clear that in the Stephanelli case the driver was acting in the course of his employment, on a mission that would enure to the benefit of his employer, the owner of the truck, and he was clearly not the agent of the owner of the garage, and the Pennsylvania Court so found. Thus, as the Court held, the exception in the policy relating to the use of the car in connection with the garage business had no application. However, the Court in the Stephanelli case recognized the rule that control and supervision over the driver is the important factor, and in the course of the opinion states, “more precisely, the inquiry is under whose control and supervision Yuhas was when the accident happened”. The Court concluded that under the evidence Yuhas was under the control and supervision of his employer, and not an agent or employee of the repair shop owner, Walsh. The cited case, therefore, is not contrary to the rule hereinabove set out.

Inasmuch as Romero was not the agent of A. D. LeBlanc, it is clear that he cannot be held to be the agent or representative of Sinclair Refining Company. The exception of no right of action should, therefore, be. maintained with respect to the Sinclair Refining Company and A. D. LeBlanc, and the judgment of the District Court in that respect is affirmed.

ELLIS, J., absent; J. J. DAVIDSON, acting as Judge ad hoc.