author: HARDY, Judge.

text:
    COCKRELL v. PENROD DRILLING CO. et al.
    No. 7133.
    Court of Appeal of Louisiana. Second Circuit.
    Oct 31, 1947.
    Rehearing Denied Nov. 20,1947.

      Blanchard, Goldstein, Walker & O’Quin and Ben C. Dawkins, Jr., all of Shreveport, and Meadors, Shaw & Meadors, of Homer, for appellants.
    M. M. Moreloclc and Max M. Morelock, both of Haynesville, for appellee.
   HARDY, Judge.

This is a suit for compensation by plaintiff against his employer and its insurer, claiming permanent and total disability resulting from an accident while in the course of his employment. After trial there was judgment in favor of plaintiff from which defendants appeal.

The burden of plaintiff’s petition is-that on July 11, 1946, at about 4:15 P. M. while engaged in working as a “roughneck” for the Penrod Drilling Company on a well in the East Haynesville Field, Claiborne Parish, Louisiana, he sustained a traumatic varicocele, which injury has resulted in his permanent and total disability to perform physical work of any nature.

It is admitted that plaintiff is affected with varcocele but defendants deny both the accidental origin of this condition and the disability resulting therefrom.

At the time and on the date in question plaintiff was working on the drilling rig, his particular duty being to throw “slips”, which are instruments intended to hold the casing while the pipe is being broken and connections made. The slip which he was handling at the time is described, in the testimony of the driller who was on duty, as a “Mission one man slip, a three piece slip”. The weight of the slip was variously estimated by the witnesses as being in the neighborhood of 75 to 100 pounds.

Plaintiff alleged and testified that as he was handling the slip he felt a hot painf-in his left side- down in the grom which made him so sick that he “turned kind of blind” and felt like he “wanted to vomit”. Despite this pain plaintiff finished the operation required of him during the making of the connection and then walked over behind the engine of the drilling rig and took down his pants to examine the site of the injury. He claims to have observed a red place on the skin and observed to a fellow employee “I believe I have ruptured myself”. Plaintiff further testified that he went to a house where the *crew was accustomed to change clothes, and, because he was in such pain, examined himself again, and found a knot as big as “the end of my thumb and kind of turned blue and black”. He informed the driller, took down his pants, showed his alleged injury, and, at the suggestion of the driller, after some little delay, took the driller’s car and drove, according to his testimony, to the hospital in Haynesville, where he was examined by Dr. Rivenbark.

In attempted substantiation of his testimony as to the facts surrounding his injury plaintiff introduced the testimony by deposition of the driller who was on duty at the time, and presented as a witness one of his fellow employees. He further attempted to bolster his recital of the nature and character of the injury with the lay testimony of his wife and father-in-law. On behalf of plaintiff Dr. M. J. Rivenbark of Haynes-ville and Dr. E. A. Campbell of Homer testified as experts.

The witnesses on behalf of defendant were exclusively members of the medical profession, namely, Dr. L. G. Fincher of El Dorado, Arkansas, Drs. Tom J. Smith, J. R. Stamper, E. T. Hilton and W. S. Harmon of Shreveport.

The learned Judge of the lower Court rendered a detailed opinion in which he set forth at length his reasons for judgment.

Because of the great weight which is properly accorded to opinions and judgments of trial Courts by appellate tribunals, we have taken great pains in giving extremely thorough consideration to the record in this case. After exhaustive study we are firm in the belief that our distinguished brother of the District Court permitted himself to be led into manifest error in his determination of this cause. It is evident from a reading of the learned Judge’s opinion that he erred in basing his conclusions upon a considerable mass of the testimony of witnesses which he extricated and isolated from the substance and text of the background. Long and detailed extracts of testimony are set forth in the opinion, which, when taken by themselves, would unquestionably carry great weight in supporting the conclusion reached. But in our opinion when these testimonial extracts are relegated to the proper position in the whole fabric of the case as presented on trial they become of little importance and yield to the convincing factors which to our minds justify another and opposite conclusion.

In the first place, we are convinced that plaintiff did not suffer any accident and in this statement we comprehend those several classifications which have been determined under our jurisprudence to constitute ■“accidents” within the meaning of the "Workmen’s Compensation Statute. Act No. 20 of 1914, as amended.

It is evident to us that plaintiff has failed to establish with any reasonable certainty by a preponderance of credible evidence the occurrence of an accident resulting in injury either directly and in itself, or through the exaggeration of an existing weakness, or in the giving way of affected parts of the body.

We think this fact is conclusively •established by the testimony of defendant and the two witnesses who were members of the drilling crew at the. time and who testified in his behalf. To begin with, the symptoms which plaintiff described at the time of the supposed “accident” are so exactly the symptoms evidenced by persons who claim to have suffered hernia that there can be no doubt as to the fact that plaintiff intended at the time to simulate an injury of this nature. Every Judge of every Court is familiar with the testimony of “burning”, “stinging” pains, of violent nausea, either producing or threatening to produce immediate vomiting, of dizziness and a kind of blindness, which are the standard, classic, customary and almost unvarying symptoms of claimants alleging hernia as the result of injuries in the course and scope of employment.

If there were even the slightest doubt about this particular point it would be completely dissipated by the remark made by plaintiff at the time, according to his own testimony, to the effect that he believed he had ruptured himself.

And by way of making assurance doubly or trebly sure we are impressed by the testimony of plaintiff’s fellow employee and the driller in charge of the rig, who stated positively that the only evidence of any injury which they observed at the time when they examined plaintiff’s body, at his request, in the region where the alleged injury had occurred, was a red mark on the left side of the abdomen at a point several inches above the location of a varicocele. This, it must be observed, was the testimony of the witnesses referred to, in the very face of plaintiff’s testimony that a knot in his groin immediately appeared, swelling and blue black in color. Had this indeed and in truth been the case we are convinced that plaintiff would have pointed out this particular visible evidence of the injury to his fellow workers at the time.

Unquestionably the red place on the left side of plaintiff’s abdomen was due to the fact that plaintiff had himself rubbed his side at this point with his hand, a fact which was testified to by plaintiff’s witness, Norris,- the driller.

And, added to all these facts and circumstances, we find that despite his allegedly severe pain plaintiff within a few minutes drove off in the driller’s car, ostensibly for the purpose of consulting a doctor in Haynesville. But, in truth, it appears that plaintiff did not consult the doctor until the following afternoon, almost 24 hours following the purported accident and injury. We observe with some amazement the effort which the able Judge of the District Court has made in his written opinion to justify the conclusion that plaintiff went to Dr. Rivenbark immediately after the “accident”. In doing this he has been forced to write out of consideration the positive testimony of Dr. Rivenbark himself which was based upon his office records. Even plaintiff’s zealous counsel apparently do not insist upon this point since they state in brief before this Court that “Dr. Rivenbark examined the plaintiff within 24 hours after the accident.” (Emphasis by the Court.)

Further than this we find no indications from the testimony that would support plaintiff’s claims. While we have above discussed the positive factors we are scarcely less impressed by the omission of other circumstances, which, within all reason, should have been expected to have been manifested. It is difficult to believe that plaintiff, suffering as acute and severe pain as he would have the Court believe, made no outcry, continued his work for a few minutes until his immediate task was completed, and gave evidence by no outward physical appearance, insofar as is reflected by the testimony in the record, of the result of any accident, injury or suffering. He did not turn pale nor break out in sweat, nor did he manifest before the eyes of his co-workers any other outward evidence of discomfort, to say nothing of acute pain.

In our opinion it,is not even necessary to resort to a reliance upon the vastly preponderating weight of the expert medical testimony to the effect that there is no such thing as a traumatic varicocele in reaching the conclusion that plaintiff did not suffer this character of. injury.

We think .the conclusion is unescapable, from the testimony of Dr. Fincher, that plaintiff had been suffering from a vari-cocele at least since 1943 when he was examined by Dr. Fincher. With reference to this fact, as is urged by plaintiff’s counsel, the Court must determine whether plaintiff suffered an “accident” to the extent that this condition was aggravated or resulted in breaking down of the affected part of his body. On this point we think the great preponderance of the expert testimony is more than sufficient to serve as the basis for a negative conclusion.

The testimony of the medical witnesses indicates that from 25 to 50% of all men suffer from some form of varicocele, ranging in degree from small through moderate and medium to large, and that from 90 to 95% of all these varicoceles are located on the left spermatic cord. In the opinion of the majority of these witnesses, which opinion is ably supported by explanation in theory and observation in practice, a vari-cocele of such degree as to render a man totally disabled is exceedingly rare. And the great weight of the testimony of the doctors in this case, all of whom had made thorough examinations of plaintiff, is clear to the point that plaintiff was not suffering from a disabling varicocele and that he was able to perform hard manual labor.

The point is made and zealously urged that plaintiff at the time of trial was suffering some considerable pain and had been so suffering since the time of the “accident”. On the basis of the familiar principle that the law does not require a man to work nor does it regard him as able to work, within the intent and purpose of the statute, at the cost of pain and suffering, it is contended that this plaintiff should be regarded as suffering from total disability because labor is painful.

In disposing of this issue we are fully cognizant of the fact that pain is purely subjective and that medical science has not yet devised a means whereby it may measure or determine the existence or degree of pain. And in this connection we are impressed with the testimony of Dr. Riven-bark, who was an able medical witness tendered by plaintiff, and who. repeatedly indicated that his conclusions as to plaintiff’s injury and ability to work were in a substantial degree predicated upon the history of the alleged “accident” and the subjective symptoms of pain and suffering as related to him by the plaintiff.

But again we do not find it necessary to resort to the expressions of opinion of the medical experts but prefer to base our conclusions primarily upon established facts. And, strangely enough, we are moved to a resolution of this particular issue by a circumstance which, paradoxically, is urged in support of plaintiff’s claim. It is argued on behalf of plaintiff that he actually did try to work and that on or about January 24, 1947, he went to work and worked for four days, at the end of which time he was forced to again quit work because of the pain and suffering that resulted from the physical exertion attendant upon his work. And, again, in support of plaintiff’s testimony the witness, Norris, was looked to for substáritiation. But Norris’ testimony not only fails to substantiate 'but actually destroys plaintiff’s version. Norris testified that during these four days plaintiff worked as hard, as ably and as willingly as had been his experience prior to the “accident” and made no complaint nor evidenced any discomfort or pain. Yet plaintiff would have the Court believe he .suffered such severe pain that he had to quit the job, go to a doctor and get a hypodermic of morphine for relief. It is more than passing strange that plaintiff did not produce the doctor who had administered this hypodermic, and we can only regretfully conclude that his failure to secure this critically important testimony is attributable to the' fact that the doctor in question would not have so testified.

Reference has been made in briefs of counsel for both parties and in the opinion of the District Judge to the only three cases in the jurisprudence of this State which involve claims under the Workmen’s Compensation Law on the basis of vari-coceles as constituting disability, namely, Perkins v. White Grandin Lbr. Co., 1931, 17 La.App. 47; 135 So. 275; Norris v. Crowell & Spencer Lbr. Co. La.App. 1934, 157 So. 164; and Cunningham v. Louisiana Central Lbr. Co., La.App. 1942, 8 So.2d 115.

The above cases, in all of which the demands of the plaintiffs were rejected, were quite naturally cited with an evident feeling of assurance by diligent counsel for defendant. The attempt was made, again quite naturally, on the part of equally diligent and able counsel for plaintiff to distinguish and differentiate the applicability of the cited cases from the matter at hand, and the opinion of the District Judge evidences a considerable effort to disregard the findings in these cases as controlling of the issues tendered in the instant case.

We find upon close examination of the cases cited that they appear to be reliable and well reasoned authority on the basis of an analysis of expert testimony- for the general proposition that varicoceles; or the aggravation thereof, are not the result of trauma nor are they disabling.

If in the case before us we had no basis for our position save and except a consideration of the medical testimony, we would feel that the preponderance of such testimony in this casé would indicate a holding to the same effect as the cases cited supra. But, as we have been at some pains to set forth, we feel that the questions presented herein are susceptible of being definitely resolved by analysis of the testimony of plaintiff and his fellow employee witnesses. The pattern is so plain as to leave no question in our minds.

It matters not whether we pitch our conclusions upon either the lay testimony or the medical testimony, the same result is indicated. And since our appreciation of the testimony of the lay witnesses and of the medical experts leads to the same result, we cannot help but feel doubly certain as to the justice thereof.

For the reasons assigned the judgment appealed from is reversed and set aside, and there is now judgment in favor of defendants, rejecting plaintiff’s demands at his cost.

KENNON, J., absent.


source: Caselaw Access Project

license: Public Domain

text:
    LIGHTHOUSE TRAILER CO., Inc., v. FOSTER.
    No. 7117.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    Rehearing Denied Nov. 26, 1947.

      Eugene J. Coen, of Shreveport, for appellant.
    Harvey L. Carey and Hollingsworth B. Barret, both of Shreveport, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff seeks to recover possession of one automobile trailer, or, in the alternative, a money judgment in the sum of $1,990 representing the sale price thereof, together with certain charges in the nature of protest fees and telegraph costs, and $500 as attorney’s fees. A re-mittitur of the sum claimed as attorney’s fees was entered prior to judgment.

The defendant, assuming the position of plaintiff in reconvention, prayed for judgment against the plaintiff for damages resulting from the loss of profits on the resale of four trailers, for attorney’s fees with respect to the issuance of the writ of sequestration, and for the return of the balance remaining to his credit out of the amount deposited in accordance with the agreement hereinafter set out. In setting up the details of his reconventional demand defendant conceded an allowance of $1,990 in favor of plaintiff, representing the purchase price of the trailer for which plaintiff sought judgment. After trial there was judgment in favor of plaintiff in the sum of $1,990 and in favor of defendant, plaintiff in reconvention, in the total sum of $1,-234.50, or, after adjustment and compensation of the said amounts, in favor of plaintiff in the net amount of $755.50, there was further judgment dividing the costs equally between plaintiff and defendant. From this judgment both plaintiff and defendant have appealed.

In March of 1945, plaintiff and defendant entered into a contract, the terms and conditions of which are evidenced in writing by two documents, the first being a letter of defendant directed to plaintiff confirming an oral agreement, and the second being an acceptance and confirmation on the part of plaintiff. We set forth in full the communications referred to as follows:

“Palmer House
“Chicago
“March 26, 1945
“Mr. T. D. Thomas
“Lighthouse Trailers
“633 Schubert
“Chicago 14, Illinois
“Dear Mr. Thomas:
“This is to confirm our conversation of March 7, wherein you verbally agreed to grant me a dealership for Lighthouse Trailers in this territory.
“You may enter my order for ten Lighthouse Trailers, the first trailer to be delivered within ten days from the receipt of this letter. I would appreciate it if you will make my first delivery a tandem coach. I have several prospects waiting to see a Lighthouse Tandem before they buy.
“As per our agreement, I am enclosing herewith my check for five hundred dollars ($500.00) as a deposit. This deposit is to be held until the tenth trailer is delivered, at which time I am to receive a refund in the form of a credit for this amount on the purchase price of the tenth trailer.
“In event I exercise the privilege granted me to cancel any part of this order, I am to forfeit fifty dollars ($50) per unit on trailers delivered to me up to the time of cancellation. The balance of the deposit is to be refunded in full.
“I regret that I have been unable to send you this confirmation sooner. I returned to Shreveport much later than I had planned, and- found myself without a secretary as well as two boys missing from the shop. This, together with my absence has upset my whole organization and I am just now getting my head above water again.
“It was a pleasure for me to go through your factory and I consider your trailers to be outstanding in workmanship, material and appearance. I am looking forward to a successful future in the handling of your line. I wish to assure you of my fullest cooperation and concerted efforts in the distribution of your coaches here. But what I need now is a Lighthouse coach on my lot but quick.
“Respectfully yours,
“Rogers R. Foster”

“Lighthouse Trailers Thomas Manufacturing Company Chicago 14, Illinois Display Room and Factory : 631 Schubert Avenue — Lincoln 6000 Name Foster Trailer Sales & Service Date March 28, 1945 Model -- Address Lake at Spring St. Serial-Shreveport 69, Louisiana Color - Telephone - Acknowledgment of Order 10 Lighthouse Trailer ‘Aristocrats’ Single 7% Excise Tax 2 7:50-16-6 ply Tires $1345.00 94.15 7% Excise Tax $1439.15 70.00 4 Tires $1509.15 Tandem $1495.00 104.65 $1599.65 120.00 $1719.65

For Resale
“There is an additional deposit of $50.00 on Form WPB 3538. On trailers with trunks, there will be an additional charge as the price has not yet been determined.
“Electric Brakes $53.50 extra, if available.
“Received $500.00 as deposit on 10 units.
“Lighthouse Trailer Co.
“V. Hosanna”

In compliance with the agreement plaintiff invoiced and shipped to defendant at irregular intervals between the dates of April 7, 1945, and April 16, 1946, six trailers. The sixth trailer was delivered to defendant by the transport company on April 19, 1946, at which time defendant delivered to the driver of the transportation agency his check in the sum of $1,990 in payment of the invoice price. Within a few minutes following the delivery of the sixth trailer to defendant and his payment therefor by the check above described, the following letter was delivered to defendant:

“Lighthouse Trailers
“Lighthouse Trailer Company
“Chicago 14, Illinois
“631 Schubert Avenue The Home of Fine
“House Trailers Lincoln 6000
“April 17, 1946
“Foster’s Trailer Sales & Service “Lake & Spring Ave.
“Shreveport, Louisiana.
“Dear Lighthouse Dealer,
“We are writing to you at this time in reference to the trailer industry as a whole, but more particularly about our relationship towards you as a Lighthouse dealer and friend. As you well know, things are not bright at your end of this business and needless to say, very, very rough from a manufacturers’ standpoint. It has always been our policy to build our business and trailers around the word ‘Fairness.’ Fairness is not a word to be used lightly since we must realize that todays problems are many. For some time now, we have been trying to devise a means of serving our dealers in the best possible manner; however, we are now at the point of taking drastic action in regard to this. After careful thought and consideration, we have found that with the present crisis of materials, strikes, etc., no dealer in our organization can hope to receive more than one trailer every six to seven weeks. Now we well realize one trailer in that length of time is neither good business for the manufacturer or the dealer, since no dealer can be expected to put forth his best sales effort on such a small amount of merchandise.
“It has been our custom in the past to accept deposits of $50.00 per coach, not as you well know for any other purpose than evidence of good faith between us as a manufacturer and you as the dealer. Before going further, may we say in all honesty, that we have not taken on any new dealers regardless of who they might be, for many, many months now. Also may we say that at the recent Trailer Coach shov^, we did not entertain any new dealers nor lead anyone to believe that we were going to take on any new dealers until the present crisis is well over. This again was in fairness to our already established dealers. So much for that.
“Getting back to our new plan, which may seem rather extraordinary to you. We have decided to return all deposits received in the past and now on our books for the purpose of setting up our new arrangements. Upon receiving your old deposit back, please carefully go over this letter once again and decide if you sincerely wish to continue on representing what we believe to be the finest trailer coach built in America and, to borrow a slogan from the auto trade, may be say ‘When better trailer coaches are built, Lighthouse will build them.’
“Write to us how you feel about this matter, and perhaps enclose your deposit in the amount of $500.00 per coach on an order of not less than ten or $5000.00 minimum. As stated in the earlier part of this letter this may seem rather harsh at this time, but I assure you, it is for the best interests of Lighthouse dealers in general.
“Hoping that our relations will always remain cordial as they have been in the past, may we ask that you contact us within ten days from the above date, since these are emergency times and we feel that ten days is sufficient time for any business man to reach a decision.
“Expecting your answer, we remain
“Yours very truly,
“Lighthouse Trailer Co.
“T. D. Thomas
“T. D. Thomas
“TDT/ls
“P. S.
“Enclosed please find check for $491.00”

At the time of the receipt of the letter above set forth defendant’s father, an attorney of Leesville, Louisiana, the late Mr. Sidney I. Foster, was present. Defendant-turned over to his father the file on his contract with plaintiff, and, early the following morning, received a telephone call from his father with reference to the matter. Acting upon the advice of his father defendant stopped payment on the check for $1,990 which he had delivered to the transport driver.

On April 20, 1946, defendant wrote plaintiff giving in detail his attitude with reference to the matters comprehended in plaintiff’s letter of the 17th and demanding delivery of the four trailers under the terms of his contract or the payment of damages resulting from plaintiff’s alleged breach thereof. On May 6, 1946, defendant’s father, acting as his attorney, wrote to plaintiff suggesting negotiations looking to a settlement of the differences between plaintiff and defendant. No reply was made by plaintiff to either of the above letters, and on May 17, 1946, plaintiff filed this suit under which he sought to sequester the trailer which had been delivered to defendant on April 19, 1947. The writ issued but was not executed in view of the fact that the trailer had been sold by defendant to a purchaser who had removed the vehicle to the State of Texas.

It is contended, on behalf of plaintiff-appellant before this Court on appeal, that plaintiff was under no obligation by reason of the so-called “memorandum agreement” to deliver any trailers to the defendant and that the return of defendant’s deposit at any time would close the transaction. As a corollary to this proposition it is submitted by counsel for plaintiff that the defendant had the right to cancel the memorandum agreement at any time and demand the return of his deposit.

To construe the rights of the parties to the agreement involved in this litigation in the manner so naively proposed would be equivalent to declaring that a contractual agreement between the parties thereto is nothing more than a scrap of paper which may be disregarded at will by either party.

We wholeheartedly agree with the finding of our learned brother of the District Court who made the following statement in his opinion on the merits of the 'case:

“We have no difficulty in concluding that Foster’s letter of March 26, 1945, and the acknowledgement of March 29 constitute a complete and binding contract for the sale and delivery of ten trailers.”

The testimony of the defendant on trial of this case is clear to the effect that immediately after April 20, 1946, he began to make plans to purchase land, erect a building and engage in the manufacture of trailer units. To this end a corporation was formed, the charter of which was filed on July 17, 1946, and after that date there was no question but that defendant devoted all of his time to the business of the corporation.

In assigning his reasons for the allowance of damages the District Judge stated:

“Foster says that in the usual course he would have received only one trailer before he gave up the retail business. That he had only one prospect to whom he was compelled to return a deposit. We therefore conclude that his loss of profits cover only one trailer.”

It is on this point we find ourselves regretfully forced to the conclusion that the trial judge fell into error.

We find no law, nor, indeed, has any been pointed out to us which would serve as authority for the proposition that a party to a contract which has been actively breached by the other party thereto is required to refrain from entering into business of the same or of a similar nature to that contemplated by the agreement, and to await a judicial determination of his damages before devoting his efforts to some profitable business or endeavor.

While it is true that the defendant was compelled to return a deposit to only one prospect, the record conclusively establishes the fact that there was no dearth of prospects for the purchase of trailer units. Indeed, it is definitely established by the only witnesses who were familiar with this business that prospects were clamoring for trailers.

And it must be borne in mind that the defendant did not close his retail business and begin to make plans to enter into a trailer manufacturing enterprise on his own until after plaintiff had actively breached the contract and had refused even so much as the courtesy of a reply to communications, made by and on behalf of defendant, looking to an adjustment.

Not until some months after plaintiff instituted suit and not until after defendant had despaired of receiving any reply to his offers of negotiation and adjustment, and after he had risked all his property and possessions in the independent manufacturing business, did plaintiff, through its counsel, make any effort to propose negotiations for a settlement. And, for reasons which are obvious from a consideration of the record, defendant at such a late date declined plaintiff’s proposals. In our opinion defendant was well within his rights in refusing, at the time and under the circumstances, to negotiate with plaintiff, and we do not perceive, despite the strenuous arguments of plaintiff’s counsel, that these proposals are material or relevant to a determination of the respective rights of the parties to this litigation.

It is asserted by counsel for plaintiff that the contract contained a potesta-tive condition which rendered the obligation null in that it provided that defendant, Foster, should have the privilege of cancelling any part of the order by forfeiting $50 per unit on trailers delivered up to the time of termination. We think the trial Court correctly disposed of this condition in the following words:

“The provision that he (Foster) could cancel the contract by forfeiting $50.00 per ■unit did not create a potestative condition because of the penalty attached to the exercise of this option.” (Parenthesis supplied)

It is strenuously urged by counsel for plaintiff that defendant breached his contract and waived any rights he might have had to the delivery of the four additional trailers by his action in stopping payment on his check issued in payment of the sixth trailer. In other words, counsel rather ingenuously argues that by his action in stopping payment of his check to plaintiff this defendant put himself in default in the performance of his obligations under the agreement and therefore forfeited any claim he might have to the further delivery of trailers in accordance with the agreement. In support of this position a number of cases are cited, including Williams Lbr. Co. v. Stewart Gast & Bro., La.App., 21 So. 2d 773; Tremont Lumber Co. v. Robinson Lumber Co., 160 La. 254, 107 So. 101; Southern Tie Co. v. G. W. Signor Tie Co., 164 La. 1063, 115 So. 270.

To our minds the cited cases have no applicability, under the facts, to the instant case. In the matter before this Court the facts are conclusive to the effect that there was no default on the part of defendant; there was no failure on his part to perform his obligations under the agreement, and, so far as the record shows, he had meticulously complied with the provisions of the contract in all respects, until the same was actively breached by plaintiff.

A party to a contract cannot escape the penalties contingent upon an active breach thereof by attempting to charge a party not at fault on the basis of an act which was intended solely to preserve the just and legal rights of such party.

Predicated upon the provisions of Articles 2046 and 2047 of the Civil Code, it is urged on behalf of plaintiff that the judgment of the lower Court should have allowed plaintiff additional time for the performance of the contract, that fs, for the delivery of the four trailers. We do not find that these articles, which deal with procedure under a resolutory condition, have any bearing upon the issues presented by the nature of the relief sought by defendant in this case. Defendant’s reconventional demand is an action for damages and not an action to dissolve.

And, it is further true that the enforcement of the resolutory condition necessitates the restoration of the status quo which obviously would not be possible under the facts of this case.

We are not impressed by plaintiff’s effort to secure the rendition of a judgment which would restore the contract and offer the opportunity for additional time for performance in view of the failure of plaintiff to show that the time of delivery was of the essence. Defendant herein has not complained of any delay in delivery nor has he sought the dissolution of the contract on such ground. The plain and inescapable fact is that plaintiff refused to perform the contract and repudiated its agreement and its obligations thereunder, and certainly it should not now be heard to seek a reinstatement of the contract under condition which would render its performance both undesirable and impracticable.

The action of the defendant has been completely honest and straightforward in that he has presented for the determination of the Court his- claim for damages and has conceded his obligation for the purchase price of the sixth trailer as an offset against such damages as might be allowed.

Having disposed of the contentions advanced by plaintiff, we proceed to a consideration of what we regard as the paramount issue presented under the facts of the case, namely, the basis of fixing the quantum of damages which should be allowed defendant, plaintiff in reconvention.

There is no question but that plaintiff was guilty of a gross, premeditated and apparently inexcusable active breach of his contract with defendant. The serious results flowing from this breach are not measurable by the standard suggested by the Judge of the trial Court. The basis of damage is not to be found in the number of deposits returned by the defendant to prospective purchasers but rather it should be fixed upon the basis of the sales which could have been made by the defendant. In other words, the question posed is “If the contract had remained in force could the defendant have sold the seventh, eighth, ninth and tenth trailers which plaintiff was obliged to deliver?”

We think the record in this case abundantly justifies answering this query in the affirmative. The testimony of defendant and of his witness, Donald F. Halfpenny, was uncontradicted and uncontroverted on the point that the demand for trailers in the spring and summer of 1946 far exceeded the supply.

Inasmuch as defendant could have sold the four additional trailers which plaintiff was obliged to deliver under the terms of the contract, and since, as we have above set forth, defendant’s actions subsequent to the active breach by plaintiff should not be construed as estopping him from claiming the proceeds on such sales, we feel that the judgment appealed from should be amended to this extent.

Defendant, plaintiff in reconvention, itemized his claim for loss of profits as being calculated on the basis of $743.50 per trailer, or a total of $2,974 claimed as damages attendant upon plaintiff’s breach of the contract. To this sum was added the claim for the return of the balance remaining to defendant’s credit under the $500 deposit made under the contract, which balance was set up as being $491. Against these sums defendant concedes plaintiff’s right by way of offset to the sum of $1,990 representing the purchase price of the sixth trailer. These calculations would leave a balance of $1,475 in favor of defendant, plaintiff in reconvention.

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 the defendant, plaintiff in reconvention, Rogers R. Foster, and against the plaintiff, Lighthouse Trailer Company, in the full sum of $1,475.00 with legal interest from date of this judgment.
“It is further ordered, adjudged and decreed that that certain check in the sum of $1,990.00, dated April 19, 1946, drawn by Foster’s Trailer Sales & Service in favor of Lighthouse Trailers, and that certain check in the sum of $491.00 dated April 17, 1946, drawn by Lighthouse Trailer Company to the order of Foster’s Trailer Sales & Service be, and the same are hereby cancelled and annulled.”

And, as amended and recast, the judgment appealed from is affirmed. All costs of both Courts are to be paid by plaintiff-appellant.

KENNON, J., absent


author: TALIAFERRO, Judge.

text:
    ROBINSON v. FOSSETT.
    No. 7077.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    Rehearing Denied Nov. 20, 1947.
    Robert J. Newson, of Shreveport, for appellant.

      John F. Phillips, of Shreveport, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff, age sixty-five, weighing two hundred fifty pounds, with a fifty pound block of ice on his shoulder, while ascending the front porch steps to a cottage at 308 Douglas Street, Shreveport, Louisiana, owned by the defendant, was injured when the steps, as a whole, dropped to the ground. Plaintiff lost his balance and fell heavily to the ground, his left knee striking it violently. He, without assistance, arose to his feet, conversed with persons at the scene and, with some assistance, climbed into his one-horse delivery wagon nearby and drove home. He alleged that as the result of the accident the lower right side of his back and left knee joint were seriously and permanently injured; that his lower back, right side, and “center portion of his ribs” were sprained, all of which injuries, he says, “being bruises and sprains”.

Plaintiff sued the defendant to recover for loss of earnings, for pain and suffering to the time of instituting this suit, for total and permanent disability, and for doctor’s bills, etc. His suit is predicated upon the theory that through defendant’s negligence the steps deterioriated to such extent that they fell while he was thereupon.

Defendant denies all allegations of the petition save those to the effect that he owned the building to which the steps were attached. He avers that the steps, though sound, and free of original defects, simply fell because of the unusual and excessive weight put upon them by plaintiff; that he should not have put his entire weight, augmented by that of the ice, upon the steps, and by doing so he negligently contributed to the accident to such extent as to bar recovery by him.

There was judgment for plaintiff for $1,440.00, made up of the following items, according to its language, to-wit:

Loss of earnings $1,050.00
Doctor’s bill 125.00
Cost of belt 15.00

These items aggregate only $1,190.00. Evidently, the trial judge intended to in-elude an amount for pain and suffering, but inadvertently omitted same.

Defendant appealed. Plaintiff has not answered the appeal and in no respect does he complain of the judgment.

That the steps fell from plaintiff’s weight and that .of the ice, there is no dispute. However, he had been ascending these same steps with the same quantity of ice, two or three times per week, for some two years, and had the right to assume they were in sound condition and would sustain his weight plus the ice. The record does not disclose the condition of the sill to which the steps were nailed, nor -the number of nails used to hold them in place. The porch was open, exposed to rain and sunshine, and it is reasonable to assume, as we do, that the wood about the nail holes became weakened from decay, especially the front of the sill, making it possible, under heavy weight, for the steps to pull loose and fall, as they did. It is not shown when the steps were built or last repaired, nor the age of the building.

Defendant owns a large number of small residences in the City of Shreveport that he rents, some to white tenants and others to Negro tenants. In the present case the house was occupied by a Negro woman. Defendant testified that he regularly inspects his buildings to keep informed as to their physical condition. He was unable to recall the last time he inspected the steps in question. He also admits that he personally re-erected the steps involved herein the day they fell, but says he had no knowledge at that time that they fell under plaintiff’s weight; and, further, says such knowledge only reached him some eight months after the accident.

The undisputed facts of the case, when considered in the light of Articles Nos. 2322 and 2695 of the Civil Code, and recent jurisprudence dealing with the liability of landlords to tenants, invitees and licensees, warrants judgment for plaintiff, but we experience some difficulty in determining the correct amount due him.

Thomson et al. v. Cooke et al., 147 La. 922, 86 So. 332, is in point. The syllabus in part, reads:

“The fact that a landlord and her carpenter made inspection of the premises, and discovered nothing wrong or needing attention, did not relieve the landlord from liability for injuries resulting from a decayed condition of a step, under C. C. 2695.
“A guest of a lessee, injured by reason of a defect in a step, stands in the shoes of the lessee for invoking the benefit of Civ. Code, art. 2695, under which the lessor guarantees the lessee against all vices and defects in building.”

Klein v. Young et ux., 163 La. 59, 111 So. 495, expounds the law on the subject, and applies Article No. 2322 of the Civil Code. The syllabus in this case, so far as pertinent, reads:

“Obligation imposed on owner of building, under Civ. Code, art. 2322, to answer in damages to person injured by neglect of owner to keep building in repair, arises ex delicto.
“Right of action, under Civ. Code, art. 2322, against owner of building, for injuries resulting from neglect to keep building in repair, is in favor of one injured while lawfully on premises or inside of building, as well as in favor of neighbors and passers-by.”

The fall of a person of plaintiff’s weight for only two feet inevitably would incur considerable shock, pain and resultant soreness, even though no bones were fractured or broken. As to the duration of the pain and soreness and total disability therefrom, the record in this case is not as clear as we would like to have it; nor is it as clear as we believe it could have been made.

Only two physicians examined plaintiff to determine the nature and extent of his injuries and the cause of his asserted disability to follow his former trade of vending ice or of doing other gainful work. Of course, plaintiff testified that he pained incessantly and could not do manual labor. He is not qualified to earn a living otherwise. However, no member of his family nor a single friend testified in support of his professed impaired physical condition.

Dr. Lacy, colored, examined plaintiff the day after the accident and prescribed treatment for him, consisting of diathermy and taping the lower back. Plaintiff then complained of his left knee and lower part of his back. The doctor made no X-rays because plaintiff was unwilling to pay for them and stated that he felt sure he would soon be all right.

Plaintiff did not improve much; in fact, none, according to his statement to Dr. Lacy, and then the doctor advised him to buy and wear a sacro-iliac belt to support the lower part of his back, and he did this.

Plaintiff, before he was able to walk and thereafter constantly complained to Dr. Lacy of his asserted wretched physical condition, so much so that the doctor says: “He almost got on my nerves.” Dr. Lacy testified that plaintiff’s complaints just prior to trial were as mournful as those made by him immediately after the accident. He made it quite clear that he did not know whether plaintiff was suffering the pain he professed to suffer or not, but underlying his testimony as a whole, we perceive in it a mild innuendo of doubt on the subject.

Dr. S. W. Boyce examined plaintiff and made X-ray pictures of the knee and back in the early part of December, which was about ten months after the accident. He found no evidence whatever of injury from the fall. The X-rays revealed no sign of fracture or breaks of the bones. Urinalysis disclosed pus cells. His gums were badly infected with pyorrhea. Dr. Boyce sums up what the X-rays disclosed in the following language, to-wit: “There was marked sign of bone disease in the form of a hypertrophic arthritis; that is increased bone formation around the old arthritic joints with lapping of the vertebrae, the bony bridges extending from one joint to the other. X-ray of the left knee showed no sign of bone injury. There was some thickening around that knee which was, in my opinion, arthritic in nature.”

Dr. Boyce was unable to connect the physical condition found by him with the injury of some ten months prior. He says it was “a simple case of old chronic arthritis” caused by focal infection, commonly known as rheumatism, which would produce the subjective symptoms of which plaintiff complained. At the date of this examination, there were not existent any signs of injury from the fall. Dr. Boyce was certain the physical conditions found hy him existed prior to the accident and were only aggravated thereby. He believes plaintiff has fully recovered from the soreness that followed the fall and is certain any pain and/or discomfort now experienced by him have as their basis the arthritic and other pathological conditions mentioned above. These, he says, will continue so long as plaintiff lives.

Dr. Boyce was sure plaintiff was not entirely sincere in professing to be disabled from the aches of the knee and back. He was at that time wearing the sacro-iliac belt but the doctor believed he was doing so for effect rather than from necessity. Finally, the doctor opined: “A man with this arthritis, there has to be some time when he reaches the end of his rope, and if this fall gave him a temporary disability, it might be in his mind that he was old enough to quit and sore enough to quit, and it was a good time to quit and get paid for it.”

We are disposed to agree with Dr. Boyce in his opinion as regards plaintiff’s disability. We are sure, at least, plaintiff is largely exaggerating his condition. It is certain the pain he now experiences is the same sort experienced by all persons having physical infirmities of the character that now beset him. The fall should not be entirely credited with his present disability to do his former work, if such disability really exists.

Plaintiff sued for weekly profits of $35.00 for thirty weeks. His own testimony in support of this claim is all he offered. The records of the ice company from whom he purchased ice, or sales tickets therefor, would have been material to his case if he is not mistaken in what he says. The lower court accepted his testimony as to profits and also held that he had been disabled to pursue his former trade for thirty weeks. We are constrained to believe the trial judge failed to take into consideration the physical conditions found by Dr. Boyce, and revealed by the X-ray pictures, which evidently existed at the time of the accident, in determining the amount of award on this phase of the case. Undoubtedly, these pre-existing physical conditions contributed to a large extent to the duration of plaintiff’s disability. We believe a fair solution of this issue would be accomplished by cutting the time in half; that is, credit the fall with disability for fifteen weeks only, or $525.00. To this amount an award for pain and suffering should be given him. This we fix at $250.00. To these two items should be added the doctor’s bill of $125.00 and the cost of belt of $15.00, making a total of $910.00.

Defendant cites: H. A. Burton and wife v. Wm. F. Davis et al, 15 La.Ann. 448; Thompson v. Commercial National Bank et al., 156 La. 479, 100 So. 688; Plescia v. Le Roy, 148 La. 316, 86 So. 824, in support of his contention of nonliability herein. The facts of neither of these cases parallel those of the case at bar, and, therefore, do not serve to exonerate defendant from liability to plaintiff.

For the reasons herein given, the judgment appealed from is amended by reducing same to $910.00, and, as amended, it is affirmed with costs, excepting those incurred in this court, which are hereby taxed against appellee.

KENNON, J., absent.


text:
    HANSON v. GREAT AMERICAN INDEMNITY CO. et al.
    No. 7109.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    Rehearing Denied Nov. 26, 1947.

      Drew & Drew, of Minden, for appellant.
    Campbell & Campbell and Graydon K. Kitchens, all of Minden, for appellees.
   TALIAFERRO, Judge.

This suit, is the outgrowth of an inter-sectional accident, in broad daylight, between the Plymouth automobile of the plaintiff and a taxicab of the defendant, Service Cab Company, a copartnership. Plaintiff was driving his car westerly on a parish highway, commonly called the Penal Farm Road. The taxicab was being driven southerly on State Highway No. 559, called the Dubberly Road, by one Delma Taylor, agent and employee of the partnership. The collision occurred about six miles south of Minden in Webster Parish, Louisiana, where the two roads cross.

Plaintiff seeks judgment against said partnership and its members, B.- B. and W. G. Barnette, and the carrier of its public liability insurance, the Great American Indemnity Company, for the damages sustained by him consequent to the accident. It is alleged by the plaintiff that before attempting to cross the intersection he brought his car to a stop on the east side thereof and looked in each direction to ascertain traffic conditions on the Dubberly Road and did not see a single vehicle thereon; that he then put his car in gear and proceeded forward slowly and when he had passed the center of the intersection his car was violently run into by the taxicab on its right hand side.

For a cause of action against the defendants, plaintiff alleged that the collision happened solely by and through the negligence and carelessness of the taxi driver in these respects, to wit:

(a) Driving at a speed in excess of 60 miles per hour, on a country road, when near an intersection;

(b) Not maintaining a proper lookout for traffic and not having his car under complete control as he approached the intersection;

(c) Driving the taxicab in such a careless and reckless manner as to endanger the lives not only of his own passengers, but of others using the highway in a lawful and prudent manner.

Defendants deny that the collision was to any extent due to the negligence of the taxi driver, and aver that while going at a speed of not over 45 miles per hour, plaintiff’s car suddenly and without warning entered the intersection directly in front of the taxicab without there being time or distance sufficient to stop before colliding with it, although every effort was put forth to do so; that the two vehicles entered the intersection about the same time and the taxicab being to plaintiff’s right, had the right of way, which plaintiff failed to recognize; that plaintiff should have brought his car to a stop before crossing the intersection and then looked to ascertain if it were safe to do so, and had he followed this rule of caution, he would have Ob'served the taxi to his right and would have concluded it was not safe for him to proceed until it had passed.

In the alternative, employing the above related alleged acts of negligence on plaintiff’s part as a basis therefor, defendants invoke his contributory negligence as a bar to his recovery. Defendants also plead that plaintiff had the last clear chance to avoid the accident and did not avail himself of it.

Plaintiff’s demand was rejected and his suit was dismissed at his cost. He appealed to this court.

The record makes it clear that plaintiff either brought his car to a stop, or reduced its speed to such degree before attempting to cross the intersection, that he could have stopped instantly. He testified that he did stop and there is no evidence in the record to the contrary. He was going at a very slow speed when first observed by defendant’s driver and the two lady passengers in the taxi. The taxi driver says that plaintiff was traveling at from 5 to 10 miles per hour when he first observed him in the intersection.

Plaintiff is positive that after stopping at the edge of the intersection he looked in both directions for' cars on the Dubberly Road and saw none. He then proceeded forward and was struck when about the center of the 24 foot intersection or when slightly west of the center. He testified that his eyesight was good and that he could and did see .3 of a mile to his right.However, he did not see the taxi until it was not over 40 feet from him.

It is also established beyond any reasonable doubt that the taxi was traveling at a speed not less than 60 miles per hour. The driver admits a speed of 55 miles per hour. The two lady passengers estimated the speed at from 60 to 65 miles per hour. It was so excessive that they felt uneasy and one of them protested to the driver who slowed down some for awhile, but soon resumed his former speed. The excessive speed of the taxi ’ is well reflected from the fact that after application of the brakes it traveled 60 feet. Skid marks in the gravel- surface covered this distance.

The taxi was covering 88 féet per second. Plaintiff’s car was making not over 10 feet per second. It required but three seconds for the taxi to reach the intersection after plaintiff was seen by the lady passengers therein. It is fair to assume, as we do, that it required about the same time for plaintiff to go from stop to that point in the intersection where struck.

The two lady passengers saw plaintiffs car first when the taxi rounded a slight curve 280 feet north of the intersection, but the taxi driver testified he first saw it when only 80 or 90 feet away. The correctness of this estimate is confirmed by the length of the skid marks which were made after the brakes were applied. There existed no good or valid reason why the taxi driver did not observe plaintiff slowly entering the intersection when the two ladies did. Had he done so and immediately applied his brakes, the collision would have been averted. Pie could have,-by so doing, brought his vehicle to a stop before reaching the intersection.

The fact that plaintiff did not see the taxi when he stopped and looked each way when1 at the edge of the intersection, in view of uncontradicted facts of the case, becomes unimportant and surely is not a decisive factor therein. It is certain the taxi was at least 285 feet from plaintiff when he entered the intersection. Suppose he had seen the taxi when that far away; would he not have had the right to assume that it was traveling at a lawful rate of speed and that he had ample time to negotiate the intersection before the taxi would reach it? Surely so. Had the taxi been going at a lawful speed plaintiff would have gotten over the intersection without mishap.

It may be said that under rule 11(a) of the Highway Regulatory Act, No. 286 of 1938, primarily the taxi driver had the right of way, but under other provisions of this same rule he forfeited that superior right by illegal, dangerous and reckless speed. By driving at a rate in excess of SO miles per hour, the taxi driver violated Section 3, subsection (c) 3’ of Rule No. 4 of said Highway Regulatory Act; and rule No. 4(a) of the Act provides that a motorist who drives his car upon a highway of this state at such speed and in such manner as to endanger the life, limbs or property of others: “shall be held and deemed to be prima facie at fault in and responsible for any accident or damage proximately flowing therefrom or connected therewith, which presumption, however, may be rebutted and overcome by proper showing of the contrary.”

The facts prove that the taxi driver was violating this rule of the road prior to and at time of the collision.

The violation of a traffic law is per se negligence, and when it is the proximate cause of an accident, as is true in this case, the violator becomes responsible for the injurious results of it.

It is clear to us that plaintiff was free of negligence in attempting to cross the intersection. But, even though it be conceded, arguendo, that he was to some extent negligent in doing so, defendant would still be liable to him for the damage he sustained.

The undisputed facts of the case, conceding that plaintiff was negligent to some extent, warrant application of the doctrine of the last clear chance or discovered peril. Even though the taxi driver did not see plaintiff in a perilous situation in time to avert running into him, the rule of law comprehended in said doctrine (now well established in this state) has the same application as though he had seen him and had failed to avail himself of the last clear chance not to injure him. A motorist is held to have seen that which by the exercise of due diligence he could have seen.

The lower court held that both motorists were negligent and stated in written reasons for judgment that by the exercise of ordinary care on the part of each, the accident would not have occurred. The court cites and quotes from a recent decision of this court, Wyche v. Brian, 28 So.2d 143, wherein Judge Hardy was the court’s organ, to support the judgment rendered by it. The crux of that case simply recognizes and applies the legal principle that in the eyes of the law a motorist must be held to the duty of seeing what he should have seen. No fault can be found with such a holding, and we are applying it in this case. Of course, the facts of the Wyche case are quite different from those of the present case. The last clear chance doctrine had no application to those facts, as regards either motorist.

The question here discussed has been tendered in numerous cases arising in this state. The fairly recent case of Jackson v. Cook, 189 La. 860, 181 So. 195, deals elaborately with the question, and clearly states the conditions necessary to exist to render the doctrine applicable. This is reflected clearly from paragraphs one and two of the syllabus, which we here quote:

“The duty of those in charge of automobiles to look ahead and observe never ceases, and in legal contemplation what they can see they do see, and the failure to see that which could have been seen by the exercise of due diligence does not absolve the motorist from liability.
“Where the motorist sees a person in peril of which such person is not aware, duty devolves upon the motorist to use every possible available means to avert injury, notwithstanding negligence of such person, and if motorist fails to perform such duty the last clear chance doctrine applies, even though person’s negligence continues up to the accident.” '

See also Taylor v. Shreveport Yellow Cabs, Inc., et al., La.App., 163 So. 737, in which the Supreme Court refused writ of review.

Plaintiff was nearly 67 years old when injured. He was a retired railroad employee and was drawing a monthly pension. He retired from railroad service on August 31, 1945, and had not since that time followed a gainful occupation or business. Prior to the accident his general health had been good.

Plaintiff's car was knocked southeasterly about 30 feet, but it did not turn over. He was rendered semi-conscious from concussion of the brain, slumped over the steering wheel and remained in that position until his son, about one hour thereafter, arrived and carried him to a sanitarium in Minden. He was there placed in charge of Dr. B. L. Cook for examination and treatment. X-ray pictures disclosed no fractures or broken bones. He was then in a state of mental and physical shock and talked incoherently. He suffered lapse of memory which persisted for about a week. The doctor found considerable bruises and contusions on the right arm, shoulder and hip. There were no wounds about the head but evidently to produce the concussion it must have violently struck some part of the car at the time of the impact.

Plaintiff remained in the doctor’s office for only an hour and was then carried home but the doctor continued to treat him for lumbosacral sprain. He was confined to bed for a time. No doubt the violent contact of his body against the interior of the car brought about extensive soreness of the flesh, muscles, etc., accompanied by pain and much discomfort for some weeks.

According to plaintiff’s testimony he had not fully recovered from the effects of his injuries at time of trial, 11 months after the accident. He attributes all of his aches, minor pains and discomfort to the accident.

Plaintiff was also examined by Dr. W. S. Harmon of Shreveport, Louisiana, on February 4th, eight months after he was hurt. Dr. Harmon found his general condition very good for one of his age and also found some limitation of motion of the lower back, about which plaintiff complained mostly. The arms, shoulders and legs were functioning normally. It was Dr. Harmon’s opinion that the chronic osteo-arthri-tis was producing the pain of which plaintiff complained and the- impaired movement of the spine. He admits that trauma can and ofttimes does aggravate pre-existing arthritis.

We conclude from a careful consideration of all the testimony bearing thereon that at date of trial plaintiff had practically recovered from the ill effects of the accident and in view of his age and the chronic arthritis with which he is afflicted, was enjoying about as fair physical condition as might be expected. He is able to engage in light work. His age, regardless of the accident, would limit him to this character of work.

Plaintiff sued for loss of earnings in addition to other damages sustained by him. As said before, he was not working when injured. He testified that he intended to go to work on June 15th, 12 days after the accident, at a salary of $200 per month, but he did not give the character of the duties this job would require of him. Anyway, the proof with respect to loss of earnings is not of such character as to warrant judgment in his favor.

Plaintiff is entitled to recover:
Cost of repairing his car $503.49
Physicians’ bills 70.00
Sanitarium bill 30.00
Pain, suffering and discomfort 2,000.00
Total $2,603.49

For the reasons herein assigned, the judgment appealed from is annulled, avoided and reversed, and there is now judgment in favor of plaintiff, Henry J. Hanson, Sr., and against the defendants, Service Cab Company, and its component members, B. B. Barnette and W. S. Barnette, and their insurer, Great American Indemnity Company, in solido, for the sum of $2,603.-49, together with legal interest thereon from judicial demand until paid, and for all costs of suit.

KENNON, J., absent


text:
    WAITS v. INDEMNITY INS. CO. OF NORTH AMERICA.
    No. 7046.
    Court of Appeal of Louisiana. Second Circuit.
    June 26, 1947.
    Rehearing Denied July 16,1947.
    Browne, Browne & Bodenheimer, of Shreveport, for appellant.
    Henry W. Bethard, Jr., of Coushatta, for appellee.
   HARDY, Judge.

This is a suit for damages against the insurer of the owner of a truck involved in a collision in which plaintiff sustained injuries. From judgment in favor of plaintiff the defendant has appealed, and the appeal has been answered on behalf of plaintiff praying for an increase in the amount of damages awarded.

For the most part the pertinent facts involved are either uncontradicted or definitely established, and are as follows:

One A. K. Gillis, the named insured under a policy of liability insurance issued by the defendant, Indemnity Insurance Company of North America, the owner of a truck used in the nature of a bus, as hereinafter set forth, entered into a contract with the Louisiana & Arkansas Railway Company under which he hired the truck to the railroad for the purpose of transporting labor from the Town of Coushatta in Red River Parish, Louisiana, to various points on the railroad right-of-way and return. After working hours, upon the return of the truck to Coushatta, it was parked in a vacant area of property of the railroad company which lay between the hotel and the depot. This arrangement had originally been followed as a matter of convenience to the driver of the truck who roomed at the hotel, and was continued without change by the succeeding driver, who is the individual involved in the incidents hereinafter related. At the time of the accident which gave rise to this action the driver of the truck was one C. D. Selby, an employee of both the L. & A. Railroad Company and Gillis, the owner of the truck, being paid regular wages by the railroad company for the working day and additionally receiving pay from Gillis at the rate of $30 per month for his services performed in driving the truck to the points on the right-of-way, where work was in progress, and return. Selby worked directly under the supervision of one Bert Minchew, an employee of the railroad company. It is conclusively established that Selby had been positively instructed by both Gillis and Minchew that the use of the truck was to be confined exclusively to'the one purpose of transporting laborers to and from their work on the railroad, and there is no evidence that there had been any previous disregard of thes.e instructions .nor any other use of the truck except for occasional trips to a local filling .station for the replenishment of its fuel.

It was the custom of Selby, the driver, on returning to Coushatta sometime around 5:00 o’clock in the afternoon to park the truck in the space described, where it was left overnight. The truck was not locked, the key to the ignition switch having been lost, and it was necessary to manipulate the ignition wires in lieu of using a key. ■ .

On the day of the accident, September 4, 1943, the driver, Selby, brought the truck to Coushatta and parked the same in the accustomed place at or about 5:00 o’clock in the afternoon. According to the undisputed testimony of one of plaintiff’s witnesses, a negro by the name of Ben Washington, who was an assistant foreman on the railroad work, Selby and another white man invited the witness and two other negroes to drive up to Loggy Bayou, which is about seventeen miles from Cou-shatta, that night. The party was made up, and embarked on its expedition in the truck about 7:30 or 8:00 o’clock that night, the point of departure being from the truck’s described parking space. The witness, Washington, further testified that he asked Selby if he had permission to use the truck for the purpose of this pleasure jaunt and Selby replied in the negative, but insisted that he intended to bring the truck right back and that they would be gone only for a little while.

The attraction at Loggy Bayou appears to have been a saloon which was patronized by all members of the party, not only to the extent of a few assorted drinks of whiskey and beer but also by the purchase of packaged goods of these substances.

On the return trip on Highway 71, at a point some three or four miles from Cou- ' shatta, the truck, recklessly driven at a high rate of speed by Selby, who was allegedly in an intoxicated condition, crashed into a passenger automobile parked on the side of the highway while its driver, plaintiff’s son-in-law, was attempting to repair some motor trouble, -assisted by plaintiff, who was holding a flashlight. As a result of the accident plaintiff sustained injury.

At the instance of some of the other members of. the party, Selby was prevailed upon to bring the truck to a stop at a point, which was considerable distance down the' highway, and all packaged evidences of intoxicants were disposed of by being thrown into the bushes at the side of the road.

Within a few days after the accident Selby was discharged by the railroad company and his subsequent whereabouts apparently became a matter of speculation and conjecture since there is no evidence thereto in the record.

The negligence of Selby, the driver of the truck, is conclusively established, and, likewise, it is certain that at the time of the accident Selby was acting outside of and beyond the course, scope and purpose of his employment. It follows that any questions concerning negligence and -the applicability of the doctrine of respondeat superior have passed out of the case.

The sole issue in the case before us, therefore, involves an interpretation of the familiar omnibus clause embodied in the policy of insurance issued by defendant under which Gillis, the owner of the truck, was the named insured, and a determination of the application of this clause under the facts in the case before us.

In his written opinion the judge of the district court based his judgment upon the holdings in Parks v. Hall, 189 La. 849, 181 So. 191, and United States Fidelity & Guaranty Co. v. DeCuers, D.C., 33 F.Supp. 710, 711, distinguishing the case of Wilson v. Farnsworth, La.App., 4 So.2d 247, under the facts.

Quite recently this court has decided the identical question involved here, in Stanley et al. v. Cryer Drilling Co. et al., Associated Indemnity Corporátion, Inter-venor, 29 So.2d 810, in which matter writs of certiorari- were granted by the Honorable The Supreme Court of the State of Louisiana, on April 21, 1947, and before, which court the case is now pending.

In his opinion in the above case Judge Taliaferro, speaking for the majority of this court, fully and ably discussed the Parks, DeCuers and Farnsworth cases, supra, as well as Haeuser v. Aetna Casualty & Surety Co. et al., La.App., 187 So. 684. The majority of this court reached the conclusion that the driver of the truck in the Stanley case was operating the vehicle without that nature and character of permission comprehended in the omnibus clause of the insurance policy.

While we have above referred to the Stanley case as comprehending the identical issue involved’in this matter, we feel that the facts in the instant case are far stronger than in the Stanley case. In the first place, it was not shown that the driver of the Cryer truck had ever been ?pecifically and positively instructed that the use of the vehicle was to be restricted to business purposes; second, it was established that the driver of the Cryer truck was accustomed to use the truck in connection with personal matters; third, the location of the parking space was immediately outside the place of residence of the driver, and, fourth, the period of time intervening between the driver’s return of the truck and his resumption of its use was comparatively in-signicant in duration.

In the instant case, as opposed to the above facts, it has been conclusively established:

(1) That Selby, the driver of the truck, had been specifically and definitely prohibited from any use of the truck aside from the particular and limited purpose of hauling railroad laborers from Coushat-ta to the points of labor and return, and, by the testimony of plaintiff’s own witness, Selby was completely aware of these instructions and deliberately and intentionally violated them.

(3) The truck was invariably parked at or near the hour of S :00 o’clock, immediately after its return to Coushatta, in the place located on railroad property, and established by custom and usage.

(4) There was a complete, definite and considerable interval of time between the return of the truck on the day of the accident and the resumption of its use for an absolutely unauthorized purpose.

We feel that the reasons advanced by this court in the Stanley case are not only controlling but, because of the above recited facts, are rendered more potent and conclusive in their application to the case at bar.

It is earnestly contended by distinguished counsel for plaintiff-appellee that Selby, engaged to drive the truck, had absolute possession of the vehicle for the reasons that he was responsible for its operation, for keeping it in good mechanical condition, for refueling, further, because there was no designated place of parking or storage and the place used was a matter of convenience to the driver, and, finally, that if there had been a key to the truck it would at all times have been in the possession of the driver, Selby.

The reasons advanced, as above enunciated, unquestionably are conclusive as to Selby’s possession, custody and control of the truck, but we do not find that any of them ane valid arguments in support of the proposition that the use of the truck by Selby at the time of the accident was within the “permission” of the insured under the provisions of the omnibus clause of the policy contract.

Counsel also attempts to combat the defense that Selby violated instructions, a fact which is established beyond any question, by arguing that because Selby would have been within the authority of his instructions by driving the truck at any hour of the night to a filling station for refueling, or to a point for purposes of procuring parts or repairs, he was also within his authority -in employing the truck in a purely personal venture. Such a conclusion does not logically follow from the premises advanced.

In effect the burden of plaintiff’s contentions is that the original permission to drive and possess the truck embraced the use to which the vehicle was being put at the time of the accident. We cannot so hold.

The leading Louisiana cases involving the point of law at issue herein, which are relied upon by plaintiff, and which were emphasized by our esteemed brother of the district court in his opinion assigning reasons for judgment, are Parks v. Hall, 189 La. 849, 181 So. 191; Haeuser v. Aetna Casualty & Insurance Co., La.App., 187 So. 684; and Farnet v. DeCuers, La.App., 195 So. 797, 802.

We do not find the cited cases to be controlling under the facts of the instant case. Justice Fournet, who was the organ of the Supreme Court in the Parks v. Hall case, ably and plainly pointed out that the decision of the court on that matter turned upon the fact that the permission of the assured to the employee to use the car in the first instance was to be construed as permission of the assured within the meaning of the provisions of the omnibus clause. This principle, as enunciated in the opinion referred to, is an expression of what is called the “first instance rule,” which is followed in a number of jurisdictions, including Louisiana.

The Haeuser case, supra, primarily concerned the interpretation of the words “actual use” as embraced in the omnibus clause, and the relationship of the character of use with the first instance permission of the insured.

The same issue of law was considered and applications made of the same principle in the Farnet case. But, we particularly wish to call attention to the distinction expressly made by Judge Janvier, the distinguished author of the opinion, who had dissented from the majority opinion in the Haeuser case, as follows:

“Even the doctrine of the Haeuser case would not extend so far as to require a holding that an employee, after putting away the employer’s automobile, could again take it out entirely for a purpose of his own and yet obtain the coverage and protection of such an ‘omnibus clause’. We think that it is necessary that he must, at the time of the occurrence, have actually taken the car for some purpose contem-lated by the owner and that it is only when he steps aside from the accomplishment of this purpose that the ‘omnibus clause’ affords protection.”

The facts in the case before us are so clearly distinguishable from the facts of the Parks, Haeuser and Farnet cases as to place this case in an entirely different category. The facts before us are analogous to those in Wilson v. Farnsworth, La.App., 4 So.2d 247. The opinion in that case recognized the point that' the controlling factor was whether-or not the initial use of the car was with the permission of the owner, the named assured, and held that under the facts of the case it was not, since the use was in defiance of a well known rule or regulation of the employer.

In the case at bar the driver took possession of the truck in violation of definite and unequivocal instructions, which violation he acknowledged and admitted, a far more flagrant breach than the violation of printed regulations.

It was further pointed out in the opinion in the Wilson case that the status of the employee at the time of the use of his employer’s truck without permission was that of an interloper and constituted an intrusion and conversion of his employer’s property.

In the course of his opinion in the case of Stanley v. Cryer, supra [29 So.2d 814], Judge Taliaferro made the following observation :

“It is a legal certainty that if .Robinson had been required at the end of each day’s work to put the truck in a designated garage of Cryer’s, and he had done so the day of the accident, and thereafter, without the knowledge or consent of Cryer, removed it from the garage and had an accident, the coverage provision of the policy would not have protected him. James et al. v. J. S. Williams & Son, Inc.,. 177 La. 1033, 150 So. 9; Stephenson v. List Laundry & Dry Cleaners, Inc., et al., 186 La. 11, 171, So. 556; Wilson v. Farnsworth et al., La.App., 4 So.2d 247; Clemons et al. v. Metropolitan Casualty Insurance Co. et al., La. App., 18 So.2d 228.”

Here, as in the Stanley case, there was no designated garage for the parking of the vehicle, but there was a specific place recognized and established by custom. And, in each of these cases there was a definitely established reason for the selection of the particular place for parking the vehicle after the termination of each daily period of its authorized use.

While we are convinced that the Louisiana cases above cited are more than sufficient for the purpose of substantiating our conclusions, we cannot refrain from referring to authorities from other jurisdictions which have impressed us, in the course of our examination of this question, by reason of the logical development and application of the principle to which we here adhere. Byrne v. Continental Casualty Co., 301 Ill.App. 447, 23 N.E.2d 175; Jordan v. Shelby Mutual Plate Glass & Casualty Co., 4 Cir., 142 F.2d 52; Houlihan v. Selengut et al., 175 Misc. 854, 25 N.Y.S.2d 371; Hodges v. Ocean Accident & Guarantee Corporation, 66 Ga.App. 431, 18 S.E.2d 28; and Western Casualty & Surety Co. v. Strozier, 67 Ga.App. 41, 19 S.E.2d 433.

In the Hodges case, supra, the Court cited the Haeuser case as an example of the first instance doctrine, but refused to apply that principle in view of the fact that the use of the automobile in the case before the court was in direct violation of the employer’s instruction, and held, therefore, that there was no first instance permission.

An analysis of the jurisprudence of Louisiana, and the other states to which reference has been made, convinces us that the established rule fixing liability of the insurer under the "permission” provision of the omnibus clause must rest upon a finding of facts which are applicable:

(1) In those cases in which permission is given or implied for the beginning of the use of a vehicle by an employee. (This covers all cases of so-called temporary deviation from a specific mission, as exemplified under the facts in Parks v. Hall.)

(2) In those cases in which a vehicle has not been returned to a specific or designated place of storage, although the use of the vehicle for an authorized purpose has been concluded. (This covers facts such as were developed in the Haeuser and De-Cuers cases.)

But equally well established is the rule that the resumption of the use of a vehicle for an unauthorized or forbidden purpose involving its taking out or away from a designated or established place of parking after working hours, cannot be interpreted as falling under the protection of the omnibus clause.

To hold that the taking of a vehicle for personal use, after termination of a period of authorized use and a return of the vehicle to an established parking place, subjects the insurer to liability under the omnibus clause, would have the effect of condoning the conversion of an employer’s property by his employee. Indeed, under the facts developed in this case an extension of the coverage of the omnibus clause would establish a principle of law which would permit recovery against an insurer under any conceivable set of facts involving a taking and using of an employer’s vehicle by the employee. Such a principle would be so unjust as to be unthinkable.

For the reasons assigned, the judgment appealed from is reversed and set aside, and there is now judgment in favor of defendant rejecting plaintiff’s demands, at appellant’s cost.


text:
    KENNEDY v. JOHNSON LUMBER CO. et al.
    No. 7051.
    Court of Appeal of Louisiana. Second Circuit.
    April 23, 1947.
    On Rehearing Nov. 26, 1947.

      Dhu Thompson, of Monroe, for appellant.
    Theus, Grisham, Davis & Leigh, of Monroe, for appellees.
    A. B. & Elodie K. Parker, of Jena, amici curiae.
   TALIAFERRO, Judge.

This case tenders for decision the right or lack of right of a boy under the age of 18 years to recover from his employer workmen’s compensation for injuries sustained while performing the duties of his employment.

According to the allegations of the petition the minor, James H. Kennedy, son of K. H. Kennedy, was injured on or about June 30, 1946, while loading logs in the discharge of the duties of his employment with defendant; that he was employed by defendants with the knowledge and consent of his parents.

Plaintiff appealed from judgment sustaining exceptions of no cause and no right of action, and dismissing his suit.

In this court appellant filed a plea of es-toppel based upon the premise that the hiring of the boy by defendants was a violation of a penal statute, Act No. 301 of 1908, as amended, and that defendants should not be allowed to profit from their own wrongdoing, which would ensue ■ if they escape liability for payment of the compensation for which sued.

Subsection 6 of Section 3 of the Employers’ Liability Act, No. 20 of 1914, Louisiana General Statutes, § 4393, has reference to the employment of minors. It accords to minors, 18 years old and upward, the right to determine for themselves whether, in the performance of contracts of hiring with employers engaged in hazardous businesses, named in the Act, the provisions thereof shall or shall not apply; but as to a minor under the age of 18 years the cited section of the Act requires that the father, mother or tutor of the minor, but if neither of these is available, then the Court shall represent him in the contract, and determine whether in performing the" duties thereof the provisions of the Act shall apply. The cited section closes with this proviso, to wit: “Provided, that this act shall not apply to employees of less than the minimum age prescribed by law for the employment of minors in. the trades, businesses or occupations specified in paragraph 2 of Section 1, or that may be determined to be hazardous under the operation of paragraph 3 of Section l.” Act No. 85 of 1926.

When the Employers Liability Act was adopted by the Legislature, Act No. 301 of 1908 was in effect. It is designed to regulate the employment of children. Section 1 thereof, inter alia, provides: “ * * * That from and after the passage of .this Act it shall be unlawful for any person, agent, firm, company, co-partnership, or corporation to require or permit or suffer or employ any child under the age of 14 years to labor or work * * * in any other occupation not herein enumerated which may be deemed unhealthful or dangerous.”

The Act, in some respects, was amended in 1914, 1916, 1926, 1930, 1932, 1942, and, lastly, by Act No. 210 of 1944. That part of the last amendment, pertinent to the present discussion, reads as follows: “No minor under 18 years of age (except those indentured as apprentices in accordance with the provisions of Act 364 of 1938 of the Legislature of Louisiana) shall be employed, permitted, or suffered to work:

*****

“In logging operations.”

This amendment, in effect, abrogated that portion of subsection 6 of Section 3 of the Workmen’s Compensation Law, which, under the conditions named therein, permitted minors over 14 but under 18 years of age to legally enter into contracts of hiring with persons engaged in hazardous occupations, that would come under the provisions of the Workmen’s Compensation Law. The 1944 amendment unqualifiedly forbids any minor under 18 years of age to enter into a contract that has logging for its object and purpose. It is obvious that the consent of parent, tutor, etc., cannot validate such a contract.

Plaintiff’s counsel and those appearing as amici curias argue that it was not the Legislative intent by the adoption of the 1944 amendment to alter the status of the law, with reference to the employment of minors, as resulted from passage of the 1908 and 1914 acts. They also seriously stress the seeming injustice and inequity that will result from denial of recovery by plaintiff.

Prior to the adoption of the mentioned amendment the Supreme Court and this Court had occasion to consider and construe the quoted provision of the Employers Liability Act in connection with Act No. 301 of 1908, and in each instance held that injury sustained by minors under the age of 14 years while working under contracts of employment in hazardous businesses were not compensable; in other words, that as to such persons the quoted provision of subsection 6 of Section 3 of the Act had effective application. See: Plick et al. v. Toye Brothers Auto & Taxicab Co., 169 La. 44, 124 So. 140; Ross et ux. v. Cochran & Franklin Co., Inc., 10 La. App. 719, 122 So. 141; Liner et al. v. Riverside Gravel Company et al., 13 La.App. 664, 127 So. 146.

These decisions expressly, or in effect, held that under the 1908 act a minor not 14 years of age was incapable of legally contracting his services to anyone and, therefore, the general provisions of the Workmen’s Compensation Law do not accord to him the right to recover compensation, if and when injured, as is accorded to persons not .comprehended within the referred to prohibition. Since the 1908 Act, as amended, fixes the minimum age at which minors may legally contract to work in hazardous businesses, etc. at 18 years, what was said in the cited cases equally applies to the Act as amended. 14 A.L.R., page 819, has this to say on the subject, to wit: “While there is some conflict upon the question, the rule is adhered to by the weight of authority that the employment contemplated by the provision of the Workmen’s Compensation Acts is a lawful employment, and that these acts are inapplicable in case of an injury to a minor whose employment is unlawful.”

Adoption of a workmen’s compensation statute was a matter that addressed itself to the wisdom of the lawmaking branch of the state; it has acted, and, of course, the conditions that must exist to warrant reception by an injured workman of the benefits provided by such action could only have been prescribed by the enacting power.

The quoted portion of subsection 6 of Section 3 of the Act is free of ambiguity. It possesses sufficient elasticity to warrant application thereof not only to any law then in existence but to those subsequently adopted by the Legislature having for their purpose and object the barring from certain kinds of work persons under a certain age. It must be assumed that the lawmaker did not overlook the possibility or likelihood of the age limit in the respect? referred to being changed by it or else it would have definitely fixed such limit at 14 years in order to track the provisions of the 1908 Act. The failure to so do, it seems to us, was not accidental nor inadvertent,.

While it is true, as has been repeatedly said by the courts, the Workmen’s Compem sation Law is a humane one and was designed to and does effectively make provision for benefits of a substantial character to injured workmen in the trades, businesses and occupations named therein, and to their widows and minor children in case of death, not theretofore enjoyed by them, it is also true that statutes of the character of Act No. 301 of 1908 and amendments thereto are also adopted out of humane considerations. They are enacted to protect children of tender ages from the hazards and harmful effects of the sweat shops of industry.

It is the province of a court of competent jurisdiction, in proper cases, to apply the unambiguous provision of a statute to the proven facts of a case, even though, in particular cases the results of the application seem hard, as also it is their duty in cases arising under the Workmen’s Compensation Law to see to it, as far as legally lies within their power, that its benefits are not denied to those coming within its 'beneficent provisions.

It is elemental that as one of the prerequisites to the formation of a legal contract of hiring, as well as all other contracts, the parties thereto must be legally competent and qualified to so engage themselves. Civil Code, art. 1779. It is also elemental that as a prerequisite to the right to demand and receive workmen’s compensation the injury or death, forming the basis thereof, must have occurred while the relation of employer and employee existed. If this relation did not then exist, certainly the benefits vouchsafed by the Workmen’s Compensation Law do not accrue. As the law forbids persons under 18 years of age to contract in the logging business, this positive prohibition of the law would have to be ignored in order to grant the compensation herein sought.

The plea of estoppel was submitted on the face of the record. We think it without merit. To sustain the plea would virtually nullify the far-reaching, protective benefits the 1944 amendment was intended to guarantee. Such action would open the door to the promiscuous employment of minors in hazardous businesses and bring about observance of the law in its breach.

For the reasons herein given, the judgment appealed from is affirmed with costs.

On Rehearing.

The far reaching importance of the law questions involved in this case had controlling influence in our decision to grant the rehearing applied for by plaintiff. When the rehearing was granted we were of the opinion that we had not erred in our judgment on either of the two legal points tendered in the case, but did wish to reexamine them, especially that of estoppel. Additional study and consideration of these twó questions have not served to alter the conclusions expressed by us in the original opinion, but, on the other hand, strongly tend to confirm those conclusions.

The questions for decision below and here) were tendered on exceptions of no cause and no right of action. It was necessary in passing on said exceptions that only the face of the petition be considered. These questions are:

1. Do the provisions of the Workmen’s Compensation Law apply to a contract of hiring wherein the employee, under the age of 18 years, was injured while performing the duties of his employment, to wit: logging, which is hazardous under said law?

2. Under said facts, granting that the Workmen’s Compensation Law does not apply, is the employer estopped to invoke the illegality of the contract of hiring and the law that makes it so, in defense of a suit by the minor to recover compensation for incapacitating injuries? In other words, can the employer herein escape liability for payment of compensation to plaintiff by taking a position equivalent to alleging his own turpitude as a party to a contract reprobated by laws that, in effect, announce a rule of public policy?

In our original opinion we resolved both of the primary questions negatively and, of course, the last or alternative question, in the affirmative.

In view of the clarity of the language of the statutory law applicable to question No. 1, and the cited decisions construing and applying same, we deem further elaboration and discussion thereof unnecessary. The question of estoppel cannot be disposed of so easily.

Appellee’s contention is not that the injured minor is without redress for his injuries, but that he has mistaken his remedy; that is, that his right to demand and receive from his employer indemnification for his injuries is governed by the general law of tort. Articles Nos. 2315 and 2316 of the Revised Civil Code.

The law, Act No. 301 of 1908, as lastly amended by Act No. 210 of 1944, that forbids the employment of minors under the age of 18 years in hazardous businesses, such as logging, simply, in effect, announces a rule of public policy of the state whose plenary power to legislate thereon cannot be successfully challenged. So zealous was ' the law maker in the desire to insure observance of the law, it affixed thereto a penal clause whereby an employer convicted of violating it could be punished by fine and/or imprisonment. The law is prohibitory in character, is in derogation of common rights and was designed to accomplish far-reaching good and benefit to those classes of persons comprehended within its prohibitory provisions.

It is a fundamental law of this state that whatsoever is done in contravention of a prohibitory law is void. Article No. 12 of the Revised Civil Code.

The weight of authority, insofar as we have been able to discover, sustains appellee’s position as regards the plea of estoppel. The general rule applicable thereto is well expressed in 19 American Jurisprudence, § 149, page 802, which, so far as pertinent, we quote:

“It is generally considered that as between the parties to a contract, validity cannot be given to it by estoppel if it is prohibited by law or is against public policy, though there are some limitations upon, and qualifications of, this rule.”
******
“The general rule above stated is in accordance with the well-established principle that an estoppel cannot be founded upon an illegal act. The reason underlying it is that when the matter of illegality arises, the question ceases to be one solely between the parties or between private individuals.”

In line with this doctrine, the Supreme Court of the State of Mississippi, in National Life and Accident Insurance Company v. Ball, 157 Miss. 163, 127 So. 268, said: "Appellee contends however that the insurer knew of the particular relation and of the want of insurable interest; and that the insurer, having nevertheless continued to collect the premiums from appellee, is now estopped to raise the point. If it were a matter wherein only the parties to the litigation were concerned, the argument of appellee would be unanswerable; but when a contract is in contravention of public policy, is contrary to the public good, the individual interests of the immediate parties are subordinated to the superior concern of the public in general, so that, so long as the condemnatory vice remains in it, there is nothing that the particular parties to the contract may do which will make it otherwise than it was ab initio—void as against public policy, and therefore nonenforceable by the courts. Greenhood on Public Policy, pp. 1, 8; 10 R.C.L. p. 801, and the numerous cases cited under note 3; see, also, Cotton v. Mutual Aid Union, 132 Ark. 458, 201 S.W. 124.”

The principle of law applicable to this case is also tersely but clearly expressed in Kelly v. Kelly, 131 La. 1024, 60 So. 671, as is reflected from paragraph 4 of the syllabus, to wit: “The doctrine of estoppel has no application to conventions which derogate from the force of laws made for the preservation of public order or good morals, and what is done in contravention of a prohibitory law is void, although the nullity be not formally directed. Civ.Code, arts. 11, 12.”

The rule is to some extent more fully declared in Ackerman v. Larner et al., 116 LA. 101-114, 40 So. 581, 586. We quote what the court therein said concerning the plea of estoppel then under consideration, to wit: “Estoppel, as predicated upon the maxim ‘nemo allegans suam turpitudinem audiendus est,’ it may be said, is a doctrine which forms part of the policy of the law by reason of its recognition by the courts, but, as the law itself is the paramount authority as to its policy, it follows that in those matters concerning which it speaks definitely, it cannot be controlled by an es-toppel, which is but the creature of its creature. * * *”

The rule concerning estoppel, as reflected from the authorities cited supra, appears to prevail in other states of the Union. We cite, as in point, the case of Deer Creek Highway District v. Doumecq Highway District, arising in the State of Idaho, and reported in 37 Idaho 601, 218 P. 371, 373. The court, as disclosed from the syllabus, expressly ruled as follows: “An estoppel can never be invoked in aid of contract which is expressly prohibited by a constitutional or statutory provision.”

Appellant invokes the familiar rule of law that a person may not accept the benefits accruing to him from the execution of a contract, affected by legal infirmities and, when it serves his selfish purposes to do so, repudiate that same contract because of said infirmities. Many Louisiana cases are cited by him and those appearing herein in the capacity of amici curiae to support this position. However, the facts of neither of the cited cases are even similar to the facts of the present case. In not one of those cases was the contract under consideration in violation of a prohibitory law, nor contrary to a law that, in effect, announced a rule of public policy. Therefore, the cited cases may easily be differentiated from the case at bar, and, perforce, should not be accorded the influence in determining this case that assiduous counsel and amici curiae would have us do.

For the reasons herein assigned, and for those assigned in our original judgment, said original judgment is reinstated and made the final decree of this court.

KENNON, J., absent.