author: ELLIS, Judge.

text:
    FIELDS v. GENERAL CASUALTY CO. OF AMERICA et al.
    No. 3027.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.
    L. C. Parker, of Baton Rouge, for appellant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellee.
   ELLIS, Judge.

Plaintiff Isaac Fields has filed this suit against his employer, Dayton Seed and Feed Store, -and its insurer, General Casualty Company of America, in which he alleges that as a result of an accident in the scope and-performance of his regular employment he was rendered totally and permanently incapable of performing work of any reasonable character within the terms and meaning of the Workmen’s Compensation Laws of the State of Louisiana, and accordingly he prays for judgment condemning the defendants to pay to him compensation at the rate of $16.25 per week, not to exceed 400 weeks, with 5% per anmim interest on each weekly payment from due date until paid less compensation payment, less the credit for 18 weeks compensation paid to plaintiff by defendants before the suit was filed, and also $500.00 or so much thereof as may be necessary for drug and hospital expenses.

Plaintiff alleges in Article 4 of his petition the following:

“Petitioner was employed by his said employer to load sacks of feed on trucks and cars, which sacks of feed weighed 100 pounds each, and it was while loading a sack of feed on the back of a pickup truck, owned by petitioner’s said employer, on or about May 18, 1946, at about 4:00 P. M., and while lifting said sack of feed over the top of a frame on the back of said truck, the top of which frame was about six (6') feet high from the ground, that he was injured, and while lifting said sack of feed over the back of said truck and raising same approximately six feet from the ground, he felt a sharp pain in the center of his stomach which felt like a knife sticking.him.”

Defendants denied the material allegations of plaintiff’s petition.

The case was duly tried and the District Court rendered judgment in favor of the defendants, dismissing plaintiff’s suit at his cost. The Judge of the District Court, in his short written reasons stated that (1) Mrs. Charles Hebert was not at the time of the alleged accident, engaged in a hazardous occupation within the sense and meaning of the Workmen’s Compensation Law; and (2) that the evidence fails to show that plaintiff suffered a hernia in the course of his employment by the said Mrs. Hebert.

Plaintiff has appealed from, this adverse judgment.

The plaintiff was employed by the Dayton Seed and Feed Store, which was owned and operated by Mrs. Charles J. Hebert at 4237 Plank Road, East Baton Rouge Parish, Louisiana, on the 23rd day of November, 1945 as a laborer, and he continued in this employment until on or about the 18th day of May, 1946. The Dayton Seed and Feed Store sold feed, seed, fertilizer and baby chicks. Plaintiff was employed to load sacks of feed on customers’ cars or trucks and to keep the store clean.

It is shown that the Dayton Seed and Feed Store during the time Isaac Fields was employed and on the date of his alleged injury did not own or operate in connection with its busitiess any motor vehicle or machinery. Charles Hebert owned a 1940 Model Ford which was his personal car and was not used in connection with the business except to go to the bank and post office, however, Isaac Fields never used this car or came in contact with it at all.

The plaintiff testified that on the 6th day of May, 1946, that he picked up a sack of feed and loaded it on a one-half ton truck, and that he felt a pain.in the region of his stomach and it continued to hurt “worse and worse”. He called in Dr. Law-ton, who visited him the next morning at plaintiff’s home. Plaintiff was confined to bed for about four weeks,, and after a visit to Dr. Dupre at Ville Platte he was given a slip by this doctor and also Dr. Lawton to go to the Charity Plospital for an operation, which was in due course performed by Dr. Stander of Baton Rouge, Louisiana. Plaintiff contends that as a result of the operation it left sensitive scar tissue and a mass which the doctors were unable to account for in the operative region, which disabled plaintiff from performing any work of a reasonable character.

The plaintiff contends that the judgment of the District Court should be reversed and that there should be judgment in favor of plaintiff for four reasons, viz:

(1) That the business of the Dayton Seed and Feed Store comes within the purview of the Workmen’s Compensation Law for the reason that it involves the operation of a warehouse;

In other words, counsel for plaintiff contends that Fields was required to lift and carry sacks of feed from the warehouse of his employer to the vehicles of the customers trucks or automobiles, and that it was while in the operation of his employer’s business working in a warehouse and in the operation of same, and while in the scope and performance of his regular duties that'he was injured and suffered an accident, and, therefore, the business in question came within the definition of a warehouse as stated in the Compensation Law, Section 1 of Act No. 20 of 1914, as amended, subparagraph 2(a), Section 4391, Dart’s Gen. St.

The record fails to contain any testimony with regard to a warehouse or what kind of a warehouse was involved in this case, in fact, as stated by counsel for defendants in their brief, the word “warehouse” does not appear in the testimony. However, it is undisputed that the Dayton Seed and Feed Store was a retail mercantile establishment dealing in feeds and seeds, and it can only be presumed that its feed was stored in the same building as the retail store. Regardless of the lack of proof on this point, in the case of Caldwell v. Geo. Sproull Co., La.App., Second Circuit, 1935, 164 So. 651, 653, the Court considered a' wholesale and retail establishment dealing in painter’s supplies, and in this case plaintiff contended there was a warehouse, but the Court said:

“The statute declares to be hazardous the occupation of operating warehouses. Such a business is a distinct and well-defined one. A ‘warehouseman’ is one ‘lawfully engaged in the business of storing goods for profit’. Act No. 53 of 1920. The goods referred to, of course, being goods of third persons for which negotiable receipts are issued. Act No. 221 of 1908. A permit for the operation of such a business has to be obtained from the clerk of the civil district court wherein the business is carried on. Section 1 of Act No. 82 of 1926. Other requirements are prescribed by the statute before a person may legally become a warehouseman. Surely, because a wholesale dealer stores surplus stock bought or manufactured by him, in the basement of his building, as is done by defendant, he does not thereby engage in the occupation of operating a warehouse. Such a room is no more than a storage room. It is in no sense a warehouse. The position of plaintiff here discussed is not tenable.”

(2) Plaintiff contends that this case was one within the purview of the Compensation Act for the reason that an agreement had been reached between employer and employee in accordance with subpara-graph 3 under the heading “railways”" in the first section of Act No. 20 of 1914 as amended, which contains the following:

“If there be or arise any hazardous trade, business or occupation or work other than these hereinabove enumerated, it shall come under the provisions of this act. The question of whether or not a trade, business or occupation not named herein is hazardous may be determined by agreement between the employer and employee or by submission at the instance of either employer or employee to the Judge of the Court which shall have jurisdiction over the employer in a civil case. The decision of the Court shall not be retroactive in its effect.”

Plaintiff contends that as Fields had worked some six months or more for Dayton Seed and Feed Store before he was injured ana’ had been paid regularly by his employer, and that as the Insurer, General Casualty Company of America, had issued a written policy covering compensation claims and had collected premiums for the protection of the Dayton Seed and' Feed Store, and that ás the wages earned by Isaac Fields were included in calculating the amount of the premium paid on this insurance policy by this employer, that this constituted an implied agreement which had been recognized and sanctioned by Dayton Seed and Feed Store, Isaac Fields and General Casualty Company of America. There was never any express agreement by the plaintiff, Isaac Fields, and his employer, Dayton Seed and Feed Store, whatsoever, relating to whether or not Isaac Fields’ employment was hazardous. Our law does not recognize an implied agreement to come under the Workmen’s Compensation Law. Benjamin v. Standard Accident Ins. Co. of Detroit, 1922, 152 La. 874, 74 So. 428.

Under this same heading, plaintiff also contends that if the action of the employer and the insurer, which consisted of the issuance of this policy of insurance and the collection of premiums based on the payroll of Mrs. Hebert, the treatment by physicians at the expense of the employer, and the insurer, and seventeen or eighteen weeks compensation paid Isaac Fields, did not constitute an admission of liability, that these actions have estopped them ■ from denying the hazardousness of the business and the employment. This argument has been answered by our Courts and specifically so by the Orleans Court of Appeal in the case of Franz v. Sun Indemnity Co., 1942, 7 So.2d 636, 638, wherein the Court said:

“If by the issuance of a policy in which it agreed to indemnify the employer corporation against loss due to liability for compensation and by the acceptance of a premium therefor the insurer estopped itself to contend that the employer, because of the nature of its business, could not be liable in compensation, then that is an end of the entire matter so we should first consider that contention, which is in the nature of a plea of estoppel. In the first place, it should be noted that in the policy there is no clause or stipulation which in any sens®’» imposes on the insurer any liability other or greater than that which by law could be imposed upon the employer. The policy is simply an agreement that if the employer becomes liable in compensation to an employee, or to his dependents, the insurer will assume that liability. It is true that it does contain a stipulation that the insurer will make payment directly to the employee or to his dependents and that the employee or his dependents may sue the insurer directly and without the necessity of. making the employer a defendant. But this stipulation results from the law which gives these rights where, there is a policy and which provides that though no insurance need be obtained by the employer, if it is secured, the insurer must make itself liable directly to the employees provided there is liability in the employer.. These stipulations do not in any way nor does the law in any way create against the insurer a cause of action where none exists against the employer. And we know of no reason which would justify the view that the acceptance of a premium operates as an estoppel and prevents the insurer from contending that there can be no liability. It may well be that the nature of a business is such that its operator and the insurer may both feel reasonably certain that it is not within the contemplation of the workmen’s .compensation statute, and yet that there is a possibility that the courts may differ from them if and when a claim in compensation arises. Why, under such circumstances, should the employer not be permitted to make certain of his own protection by purchasing insurance without, by so doing, cutting off from the insurer the right to make the defense which both think is perfectly sound; that the employment is not hazardous? The statute itself contemplates that no such estoppel shall result for it provides that even the furnishing of medical service or the making of payments by the employer or by the insurer shall not constitute an admission of liability: ‘Neither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation under this Act.’ Sec. 4408, Par. S, p. 384, Dart’s Louisiana General Statutes, Vol. 8, Act No. 20 of 1914, § 18 subd. S, as amended by Act No. 85 of 1926.
“It will be noted that there is no limitation in this provision. Even after the furnishing of medical services or even after the making of a payment the employer or the insurer may still set up as a defense any contention; even that, because of the nature of the employer’s business, the employer is not within the contemplation of the statute. In Benjamin v. Standard Accident Insurance Co. of Detroit, 152 La. 874, 94 So. 428, 429, the Supreme Court expressed the view that the issuance of a policy does not make the insurer liable unless the employer could have been held. That was a suit under this statute. It was held that the business of that employer was not hazardous. The court said: * * The reason plaintiff cannot recover under the Workmen’s Compensation Act is that the employment was not dangerous, and that there was no agreement in writing that the parties should come under the act. * * * *
“But on behalf of plaintiff it was contended that this defense should not be available to the insurer since the insurer had issued a policy of workmen’s compensation insurance. The court said: ‘ * * * but from that fact does not result in favor of plaintiff a right of action under the Workmen’s Compensation Act. Plaintiff had no right of action under the act against the employer, and has none against the surety of the employer.’
“See also Rutland v. General Accident Fire & Life Assur. Corp. [La.App.] 200 So. 486, 488, in which our brothers of the First Circuit said: ‘ * * * there only remains now the question as to plaintiff’s right of action against the defendant, insurance company, Gillespie’s surety under the contract of insurance. That question might be the source of further controversy in the case were it not for the fact that the Supreme Court has already specifically held that where an employee has no right of action under the Statute against the employer, he has none against the employer’s surety. This ruling was made in the case of Benjamin v. Standard Accident Insurance Co., 152 La. 874, 94 So. 428. * * * ’
“There is then no estoppel and we pass on to consider whether the employer’s business is within the coverage of the compensation statutes. * * * ”

(3) Plaintiff contends that he “is entitled to the liberal construction consistently given the Compensation Statute by our courts.”

This contention needs no answer other than that plaintiffs in compensation suits, while not held to the strict rules of pleadings and practice, must, nevertheless, prove their case to a legal certainty before they are entitled to judgment.

(4) Plaintiff contends that the business and employment of the Dayton Seed and Feed Store came within the purview of the Compensation Act because motor-driven vehicles were used in the operation of the business, which rendered it hazardous.

The evidence in the case is to the effect that the feed obtained by the Dayton Seed and'Feed Store was hauled by one William F. Cobb, who was engaged in the business of general hauling for the public. He would haul this feed from the railroad station out of the box car to the place of business of the defendant company on the Plank Road at a charge of 5‡ per sack, which charge was raised to 7‡, then 8^ and finally to 10{5 a sack of 100 pounds. This feed was unloaded from Cobb’s truck by labor employed solely by Cobb. Cobb testified that he knew Isaac Fields, that he never worked on his truck and never did take anything out of the trucks; that he was an independent contractor and that the defendant company exercised no control over him.

It was further proven that there was no machinery of any kind used in connection with the business, nor did the Dayton Seed and Feed Store own any motor vehicle, nor did it use or operate one in connection with its feed business.

Plaintiff contends that while the Dayton Seed and Feed Store did not own or operate any automobile in its business, that all of its feed was sold directly to customers who brought their own motor vehicles to its place of business where the feed they purchased was loaded and delivered into the customers’ trucks by Isaac Fields and that this constituted the use of a motor vehicle in the operation of the business as contemplated by the Compensation Act. The business of the Dayton Seed and Feed Store was not of itself hazardous and is in the same category as a grocery business which has been held by the Courts to be nonhazardous and not covered by the Act. Rester v. Community Stores, Inc., La.App., First Circuit, 1936, 169 So. 183.

There is no doubt but that our Compensation Law is applicable to any business which owns or operates in connection with its business or as a necessary part thereof, any motor vehicles. In all of the cases cited by counsel for plaintiff, the employer either owned and operated, or borrowed and operated, or used and controlled the motor vehicle or any other dangerous instrumentality in connection with its business.- The act has no application unless the trade, business, or occupation of the employer places him under it.

In the case at bar, the Dayton Seed and Feed Store did not own, operate nor control the motor vehicles of its customers who bought feed from it and into which motor vehicles the plaintiff Isaac Fields loaded the feed. The mere fact that his duties required him to come in contact with a motor vehicle of a third party over which his employer had no control, did not own, operate or use in the sense of controlling same in connection with his business, would not convert this phase of the Dayton Seed and Feed Store business from non-hazardous to hazardous.

Therefore, the Compensation Law does not apply to the business of selling feed and seed at retail any more than it would apply to an ordinary grocery store, as it is not specially named in the act, nor has there been any agreement to come under the Act, nor have the Courts determined in advance that the retail feed and seed business is of a hazardous nature under the facts in this case.

In view of the above, it is not necessary to decide whether or not plaintiff suffered a ■hernia and as a result of his operation is still unable to perform the duties required of him on the date of his injury.

It is therefore ordered that the Judgment of the District Court be affirmed and Plaintiff’s suit dismissed at Plaintiff’s costs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CHAPITAL v. WALKER et al.
    No. 18925.
    Court of Appeal of Louisiana. Orleans.
    Oct. 5, 1948.
    For former opinion, see 35 So.2d 900.
    Neils F. Hertz, E. B. Charbonnet, Jr., and Joseph M. Bowab, all of New Orleans, for plaintiff and appellee.
    Warren O. Coleman, Edwin J. Prinz, and Solomon S. Goldman, all of New Orleans, for Defendants and appellants.
   PER CURIAM.

Counsel for defendants-appellants, in application for rehearing, bitterly complain that the court did not comment upon what they characterize a major defense.

The facts upon which we did not comment and upon which counsel lay so much stress are that on October 13, 1944, the thirtieth day after Hortman offered his stock for sale, Chapital addressed a letter to the president and members of the board of directors of the corporation, in which he offered to sell his own stock and that of his wife and son. On October 20, 1944, the offer never having been accepted by the other stockholders, Chapital, in writing, withdrew it.

Counsel argue that Chapital’s action, in offering his stock for sale on the very last day the stockholders had the right to purchase the Hortman stock, manifested on his part an intention to abandon his "bffer” to participate in the Hortman stock, which is opposed to and is in complete conflict with his protestations that he then wished to share in the purchase. However, we are referred to no authorities supporting the position assumed by counsel.

This court did not and does not accredit any importance to the above defense. Evidently the lower.court was of the same mind, for we find no mention of it in the reasons for judgment. Chapital’s offer to sell, not having been accepted by the persons to whom it was proposed, is without legal effect; he unquestionably had the right to change his intention on the subject, and there was no contract. C.C. art. 1800. In agreeing to take a share of the Hortman stock, Chapital, along with the others, signed a subscription list, and this document was not a mere offer to purchase as counsel postulate, but it amounted to a binding contract between him and Hortman wherein he effectively obligated himself to purchase a proportionate share of the latter’s stock. Hortman could have forced Chapital to live up to this contract, and Chapital’s offer to sell his own stock, which went unaccepted and which was subsequently withdrawn, in $0 wise abrogated the contract which he had with Hortman, nor did it constitute a waiver of any rights which he had under the corporate charter. We perceive no merit in defendants’ contention. The rehearing requested is refused.

Rehearing refused.


text:
    BANK OF COMMERCE v. YUNKES.
    No. 3020.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 5, 1948.
    Watson, Blanche, Fridge & Wilson, of Baton Rouge, for appellants.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellee.
   ELLIS, Judge.

On January 9, 1926, Rudolph Yunkes signed a note for $290, payable six months after date to the order of the Bank of Commerce at their office in St. Francis-ville, Louisiana, with interest thereon at the rate of 8% per annum from maturity until paid and 10% additional on the amount of principal and interest as attorney fees. Rudolph Yunkes was a resident of the City of Baton Rouge at that time and up until his death in 1945.

On March 30, 1927, the Bank of Commerce and Trust Company (then known as Bank of Commerce) filed suit against Rudolph Yunkes in the Nineteenth Judicial District Court in Suit No. 1993. On the same day, a certified copy of the petition and citation were served upon the defendant, Yunkes, which said date fell on Wednesday. On Monday, April 11, 1927, preliminary default was entered against the defendant and confirmed on Thursday, April 14, 1927.

The judgment not having been paid, the said bank in 1936 filed a suit to revive the judgment, and on the 21st day of July, 1936, said judgment was revived in the same original numbered and entitled cause. Personal service was had on Rudolph Yunkes in this suit to revive.

Rudolph Yunkes died on the 30th day' of January, 1945, and on March 5, 1945, Julius J. Yunkes and his wife, Mary M. Yunkes, purchased from the widow and other forced heirs of Rudolph Yunkes Lot No. 6 of Square No. 27 in the Subdivision of the Parish of East Baton Rouge known as “Suburb Istrouma.” Under date of April 18, 1946, Julius J. Yunkes and his wife, Mary M. Yunkes, were notified by letter from Taylor, Porter, Brooks, and Fuller, Attorneys, that the aforesaid lot was burdened with a judicial mortgage in the form of a judgment in Suit No. 1993 on the docket of the 19th Judicial District Court for the Parish of East Baton Rouge, which was the judgment obtained by the Bank of Commerce and Trust Company of St. Francisville, Louisiana, on April 14, 1927, and reinscribed by judgment dated July 21, 1936. As a result of this notice, on May 3, 1946, they filed a suit in which they are seeking to have the judgment in suit No. 1993 declared null, void and of no effect and ordering same cancelled completely from the mortgage records of the Parish of East Baton Rouge, and particularly in so far as same purports to affect Lot 6, Square 27, “Suburb Istrouma,” Parish of East Baton Rouge, State of Louisiana. This suit is No. 24,682 of the docket of the 19th Judicial District Court for the Parish of East Baton Rouge. Defendants filed their answer in this suit on June 22, 1946, and also on the same date filed a second suit to revive the judgment in Suit No. 1993, entitled “Bank of Commerce v. Rudolph Yunkes.” The defendant in No. 1993 excepted to the plaintiff’s petition on the ground that it had not set forth a right or cause of action.

The two suits were consolidated for the purpose of trial but it was agreed that separate judgments would be rendered in the two cases, and they were submitted to the Court on the stipulation of fact. In this stipulation of fact it was agreed that:

15. “No execution on the said judgment, against Lot 6, Square 27, Suburb Istrouma or any other execution, has been issued under said judgment.”
16. “It is agreed and stipulated that the office of the Clerk of Court in East Baton Rouge Parish Courthouse was open all day (that is, until 5:00 P.M.) on Saturday, April 9, 1927, for the purposes set forth in the “Holiday Act” then in force. (Act 249 of 1926)”
17. “The population of the City of Baton Rouge in the year 1927 was in excess of ten thousand (10,000) persons.”
18. “Counsel for Julius J. Yunkes and Mrs. Mary M. Yunkes agree and stipulate that they have never paid any money upon the said note or the debt secured thereby, or upon the judgment obtained in the said suit No. 1993, and, so far as they know, neither Rudolph Yunkes nor any other person has ever paid any money upon the said debt, note or judgment * *

The day and dates used by the Court above were also agreed upon in the stipulation of fact.

The learned Judge of the District Court in his well-written opinion overruled the exception of no cause or right of action filed on behalf of the widow and forced heirs of Rudolph Yunkes in Suit No: 1993. Answer was filed and judgment was rendered on the merits in favor of the plaintiff. In Suit No. 24,682, which is the suit to annuli the judgment in Suit No. 1993, the Lower Court, for the written reasons assigned for the judgment in Suit No. 1993 in overruling the exceptions filed therein, rendered judgment rejecting and dismissing plaintiffs’ demands at their cost.

The defendants in suit No. 1993 and the plaintiffs in No. 24,682 have appealed from this adverse judgment.

Defendants excepted to the plaintiff’s petition on the ground that it had not set forth a right or cause of action. These exceptions are based upon the contention that the original judgment against Yunkes of date April 14, 1927, is illegal, null and void for the reason that the preliminary default entered April 11, 1927, was prematurely entered. Defendants contend that the date of service of the petition and citation on March 30, 1927, did not count, and that, therefore, the delay in which to answer began on March 31, 1927 which was a Thursday; that the 10th day thereafter was Saturday, April 9, 1927. Defendants contend that Saturday was a legal half holiday and the next being Sunday, also a holiday, that the defendant had all of Monday, April 11, 1927, in which to file answer, the latter day and date being the day preliminary default was entered.

The plaintiff, of course, contends that Saturday, April 29, 1927, was legally included in the delay in which the defendant, Rudolph Yunkes, was required to answer, and that, therefore, the preliminary default entered on Monday, April 11, 1927, was legally entered.

Act No. 249 of 1926 provided for a half holiday:

“ * * * in cities and towns where, the population shall exceed ten thousand every Saturday from twelve o’clock noon until twelve o’clock midnight, to be known as a half holiday; * * *”

.And provided further:

“ * * * that it shall be lawful to file and record suits, deeds, mortgages, and liens and to issue and serve citation and to take and execute all other legal proceedings, and to make sheriffs’ sales on Saturdays half holidays.”

It is admitted that Baton Rouge at that time had a population in excess of ten thousand people, and, therefore, Saturday was a legal half holiday in the City of Baton Rouge. There is no doubt that by the very terms of Act No. 249 of 1926 and the stipulated facts, that the office of the Clerk and Recorder of the Parish of East Baton Rouge was open for all purposes all day on April 9, 1927, until 5:00 P.M., and that on said date instruments were actually filed for record as late as 4:30 P.M. The defendant could most certainly have filed his answer, but the question before the Court is whether the defendant was required to file his answer on that date. In other words, was Saturday, April 9, 1927, a legal half holiday in so far as the District Court sitting in and for the Parish of East Baton Rouge was concerned.

If the Saturday in question was a legal half holiday and applied to the District Court for the Parish of East Baton Rouge, there can be no doubt that as it was the last one of the ten days in which defendant was allowed to answer, and, it being a legal holiday, the defendant would have had all of the succeeding day to file his answer, but, in the present case, this being Sunday and a legal holiday, the defendant clearly would have been entitled to file his answer at best not later than noon, Monday, April 11th, 1927. See Catherwood v. Shepard, 30 La.Ann. 677; Manspur v. Abraham, La.App., 159 So. 146.

Exceptors cited the case of Rady v. Fire Insurance Patrol of New Orleans, 126 La. 273, 52 So. 491, 492, 139 Am.St.Rep. 511, in which the question was whether service of citation on the Saturday half holiday created by the Statute then in effect interrupted prescription. The act in force was Act No. 3 of 1904, which contained the following provision:

“The following shall be considered as days of public rest and legal holidays and half holidays in this State, and no others, namely: Sundays * * * Good Friday * * * twenty-fifth of December, Thanksgiving Day * * * and also, in cities and towns where the population shall exceed fifteen thousand, every Saturday, from twelve o’clock noon, until twelve o’clock midnight, to be known as a half holiday.”

The Supreme- Court held in the Rady case as follows:

“It is very plain that Act No. 3 of 1904 places Saturday half holidays on the same footing as Sunday and other legal holidays and days of public rest, and that Act No. 6 of 1904 treats such half holiday as a dies non juridicus. In fact neither the Code of Practice nor the statutes of this state make any distinction quoad judicial proceedings between Sunday and other legal holidays; all being days of public rest, except in the matter of the trial of cases already begun.”
“We therefore are of the opinion that the service of the citation on the half holiday, being prohibited by law, produced no legal effect.”

The exceptors also strongly rely upon the case of Frank v. Currie, La.App., 172 So. 843, 844. In this case, the plaintiff, Frank, had filed a suit in the First City Court of New Orleans on an open account against Mrs. Currie, the defendant. Mrs. Currie was served with citation on July 28, 1933, and, under the law, she was obliged to answer the third day after the day of service of the citation. Judgment by default was taken against her on August 2, 1933. On October 31, 1934, Mrs. Currie filed suit in which she claimed that the default judgment was null and void for the reason that:

“(1) Only two days elapsed, exclusive of Sundays and holidays, between the date of service of the citation and the date of the default judgment; that, under the law, she was entitled to three full days, after the date of service of citation, before a default judgment could be taken against her;

Exception of no cause or right of action was filed to the petition to annul the judgment and was maintained by the trial court, and Mrs. Currie’s suit dismissed.

In this case, as stated, petition and citation were served on Friday, July 28, 1933', July 29th was a Saturday, and July 30th was a Sunday. The judgment was taken on Wednesday, August 2nd. It was contended that July 29th, being Saturday, was a half holiday under the law and was not to be counted in computing the delay within which to file answer; that, likewise, Sunday, July 30th, being a dies non is excluded; that therefore, only two days, Monday, July 31st, and Tuesday, August 1st, intervened between the service of citation and the taking of the default judgment on Wednesday, August 2nd; therefore, Mrs. Currie had not had the three days o answer allowed her by law.

The Court said:

“By Act No. 16S of 1932, which applies to the case at bar, Saturday, from 12 o’clock noon, until 12 o’clock midnight, is designated as a half holiday, and, accordingly, it would seem to follow that, under the jurisprudence as laid down in the above-cited cases, Mrs. Currie was only granted, by the decision of the court below, two and one-half legal days within which to file her answer, whereas article 1082 of the Code of Practice allowed her three days.
“But counsel for Frank argue that Act No. 165 of 1932, which declares that Saturday shall be a half holiday, does not contemplate that it is a dies non, with respect to the filing of answers or the performance of other legal acts, and they point with confidence to a proviso contained in that Act, which reads:
“ ‘Provided, further that it shall be lawful to file and record suits, deeds, mortgages and liens and to issue and serve citation and to take and execute all other legal proceedings, and to make sheriffs’ sales on Saturdays half-holidays.’
ife sj: ‡ * * *
“It is claimed by counsel for Frank that the Rady Case may not be relied on, in determining the problem here involved, because the act of 1904 has been repealed, with respect to the service of citation on a Saturday half holiday, and the law, as it now stands, specifically permits the service of citation on Saturdays. It is true that the statute has been amended so as to allow certain legal acts to be performed on Saturday, but, notwithstanding the permission granted, the statute also designates Saturday to be a half holiday. Hence, the Rady Case is authority for the proposition that Saturday, being a half holiday, does not require persons, charged with the duty of performing legal acts on that day, to execute them. As we view the proviso, contained in the statute (No. 165 of 1932), it is merely permissive and is not mandatory and, while it recognizes the validity of the performance of certain legal acts on Saturday, it does not penalize those charged with such performance in the event they fail to execute them on the half holiday. It is true that Mrs. Currie might have filed her answer to the original petition on Saturday, July 29th, prior to 12 o’clock noon, when the office of the clerk of the First city court was open, but article 1082 of the Code of Practice did not oblige her to appear and answer the petition until the third day after the service of citation. The best that can be said, if we count the Saturday half holiday, is that Mrs. Currie was allowed two and one-half days within which to file her answer, and to hold that Saturday should be counted, even though it be a half holiday under the law, would be contrary to the jurisprudence established by the cases hereinabove discussed.”

Counsel for plaintiff have cited and relied upon the case of O. K. Realty Company, Inc., v. John A. Juliani, Inc., 157 La. 277, 102 So. 399, and the case of State v. Westmoreland, 117 La. 958, 42 So. 440.

In the case of State v. Westmoreland, the defendant was convicted of violating the Sunday law in the City Court of one of the Wards of Caddo Parish. He appealed to the District Court and objected to going to trial on Saturday afternoon on the ground that Saturday was a half holiday in the City of Shreveport. This case went to the Supreme Court under its supervisory jurisdiction and the Court held that a half holiday did not apply to the District Court for the reason that the Court was not a local Court for the City of Shreveport but for the entire Parish of Caddo. In this case, the Court said:

“Conceding that this statute has the effect of making dies non of the days thus declared to be days of public rest and holidays (a question on which this court expresses no opinion), the local holiday in question can have no application to the district court, which is a court for the entire parish of Caddo. Any other interpretation would make this distinctly Shreveport holiday apply to, or have effect for, the entire parish of Caddo, in so far as the business of the district court was concerned, and by the same rule the same local holiday in New Orleans would prevent the sitting of the Supreme Court on Saturday afternoons, and thus have operation throughout the state, insofar as the business of the Supreme Court was concerned.
“When this local holiday was first created for New Orleans, the justices of this court found themselves called upon to consider whether it should affect the sitting of this court, and concluded that it should not; and that interpretation has been acted on ever since without question from any quarter.”

The Juliani case came before the Supreme Court on application by the plaintiff for writs of mandamus and certiorari to compel the Court of Appeal for the Parish of Orleans to consider and determine an application for a re-hearing against the defendants, John A. Juliani, Inc., which involved Act No. 16 of 1910, which act provided :

“That judgments rendered in the Courts of Appeal of the State shall become final and executory on the fifteenth calendar day 'after the rendition, except in cases of appeal from the City Courts of the City of New Orleans which shall be and become final on the sixth calendar day after rendition, in. term time and out of term time, unless the last day shall fall on a legal holiday, when the delay shall be extended to the first day thereafter not a legal holiday; provided that in the interval parties in interest shall have the right to apply for rehearing.”

In this case, the Court said [157 La. 277, 102 So. 400]:

“The second contention of relator is that in the city of New Orleans Saturday is a legal half-holiday, and it being the last day of the delay in which the application for a rehearing could be filed, and the following day being a Sunday, the relator had the whole of Monday in which to file the application, and it being filed on that day, was in time.
“The error of relator is in assuming that Saturday is a half-holiday for all purposes. As a matter of law Saturday is not a half-holiday with respect to the Court of Appeal sitting in the city of New Orleans and as concerns judicial procedure in said court. The Court of Appeal does not sit merely for the trial of appeals from the courts of the city of New Orleans, but its appellate jurisdiction extends to appeals from the parishes of St. James, St. John the Baptist, St. Charles, Jefferson, Plaquemines, and St. Bernard. Constitution of 1921, art. 7, § 78.”

This Holiday Statute involved was Act No. 6 of 1921, Ex.Sess., containing a proviso identical with that contained in the Act of 1926, relating to what legal acts could be presumed on the half holiday.

The Circuit Court of Appeal for the Parish of Orleans in Frank v. Currie, La.App., 172 So. 843, had this to say of the Juliani case:

“In the Juliani Case, supra, the Supreme Court had under consideration whether Saturday, a legal half holiday, should be included in calculating the time within which an unsuccessful litigant could apply for a rehearing in a case decided by the Court of Appeal, which had been appealed from the First city court of New Orleans, the court held that Saturday was to be counted because, under the law as it then existed, Saturday was a half holiday only in the city of New Orleans, whereas the Court of Appeal for the Parish of Orleans, having jurisdiction in other parishes where Saturday was not a half holiday, was required to entertain the filing of legal documents during the entire day. In other words, th'e decision is based upon the theory that Saturday was hot a half holiday in the Court of Appeal for the Parish of Orleans, and we draw the inference from the opinion of the court that, had Saturday been a half holiday in this court, the point contended for by the relator would have been sustained.”

Counsel for exceptor is also relying upon the case of Evans v. Hammer, 209 La. 442, 24 So.2d 814, 815. In this case, Evans obtained judgment against Hammer without citation on a promissory note embodying a waiver of citation and confession of judgment. On June 17, 1930, Evans filed suit to prevent or interrupt the prescription of ten years and domiciliary service of citation and of a copy of the petition was made on that day. The District Court decided that the judgment rendered op March 29, 1938, in the suit brought on June 17, 1930, to interrupt the prescription of the original judgment dated June 21, 1920, was null because the judgment dated March 29, 1938, was rendered on confirmation of default, and less than two legal delays had elapsed between the entering of preliminary default on March 25, 1938, and the confirming of it on March 29, 1938.

While the Supreme Court did not rest its decision on this ground,' it did discuss this condition and said:

“Taking up the first reason for which the district court held that the judgment dated June 21, 1920, was prescribed, we take notice of the fact that the 25th day of March 1938, the day on which the preliminary default was entered in the suit to prevent prescription, was a Friday. See Calendar in Dart’s Louisiana Gen.Stat., pp. 1030-1031. Therefore two full legal days-did not elapse between the date on which the preliminary default was entered, March. 25, 1939, and the date on which the judgment by default was confirmed, March 29, 1938. Article 312 of the Code of Practice requires that two days — not necessarily judicial days but excluding Sundays and legal holidays — shall elapse between the entering of a preliminary default and the confirming of the judgment by default. In. this case, the first date following the 25th of March 1938 was Saturday, which, according to Act 289 of 1936, was a half-holiday., and hence only half of a legal day. The next day being Sunday, the only full-legal day that elapsed before the day on. which the judgment by default was confirmed was Monday, the 28th day of March-1938. Hence only a half-holiday and a Sunday and one full legal day elapsed between the day on which the preliminary default was entered and the day on which, the judgment by default was confirmed, i.e. Tuesday March 29, 1938. The confirmation of the judgment by default therefore was premature. If a judgment by default is confirmed before the expiration of two. legal days after the entry of the preliminary default, the judgment is null. Ward & Jonas v. Graves, 11 La.Ann. 116; Taney v. Meilleur, 35 La.Ann. 117; Kelly, Weber & Co. v. F. D. Harvey & Co., 178 La. 266, 151 So. 201; Many Iron Works v. Kay, La.App., 151 So. 253; Frank v. Currie, La.App., 172 So. 843, certiorari denied. April 26, 1937. In the latter case it was held point blank that where a statute requires a given number of'days to elapse before a, stated judicial proceeding may be had, Saturdays, being half-holidays, must be excluded in computing the number of days.”’

The Supreme Court did not mention nor refer to the Juliani case or the Westmore-land case. However, it is probable, as stated by the District Judge, that it was-not mentioned for the reason that Act No. 289 of 1936 was a General Holiday Statute and applied equally to the place where the District Court rendering judgment sat and the rest of the parish (Parish of Bienville). It will be noted that Frank v. Currie, supra, was cited in this case.

The Rady case arose in the Parish of Orleans and was tried in the Civil District Court for the Parish of Orleans. The City of New Orleans embraced the entire Parish of Orleans and, therefore, the Civil District .Court for the Parish of Orleans had no jurisdiction outside such limits as it was confined to -the limits of the Parish of Orleans. Therefore, any legal holiday which applied to the City of New Orleans would have applied to the Civil District Court for the Parish of Orleans.

In the case of Frank v. Currie, supra, the Court of Appeal cited the Rady case and also the Juliani case. The Court of Appeal held that as the question before them involved a suit that arose in the First City Court of New Orleans, whose jurisdiction was limited to the City of New Orleans, and the Holiday Act of 1932 which made a Saturday a legal half holiday in the City of New Orleans, that, therefore, it was a legal half holiday in so far as the City Court of New Orleans was concerned.

The case of Evans v. Hammer, supra, involved the Act of 1936 which was a general Holiday Statute and covered the entire parish of Bienville, and, as the matter arose in the District Court for the Parish of Bienville, Saturday, being a legal half holiday in the entire parish of Bienville under the Act of 1936, it was a legal half holiday in so far as the District Court was concerned.

The District Court for the Parish of East Baton Rouge does not now and did not in 1927 sit merely for the trial of cases arising in the City of Baton Rouge or involving only citizens thereof. It sits to hear all cases, including appeals from the decisions of Justices of the Peace of country wards, and all suits by the residents of such country wards. In other words, the jurisdiction of the East Baton Rouge Parish District Court covers the entire parish of East Baton. Saturday was, therefore, under the law as it existed at that time, not a legal holiday in so far as the entire parish of East Baton Rouge was concerned, but only within the city limits of Baton Rouge, and, therefore, was not a legal half holiday insofar as the District Court of the Parish of East Baton Rouge was concerned. On April 9, 1927, the District Court of the Parish of East Baton Rouge could have been convened and held for all purposes, and, therefore, the day was not dies non juridicus.

Therefore, the preliminary default was properly entered on April 11, 1927, and properly confirmed on April 14, 1927, and the judgment of the District Court overruling the exception of no cause or right of action was correct, as well as the judgment of the District Court on the merits in favor of the plaintiff, Bank of Commerce, reviving the original judgment therein, and said judgment of the District Court is, therefore, affirmed at the cost of the defendants.


text:
    Julius J. YUNKES et ux. v. BANK OF COMMERCE & TRUST CO.
    No. 3021.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.
    Watson, Blanche, Fridge & Wilson, of Baton Rouge, for appellants.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellee.
   ELLIS, Judge.

The issues being the same in this case as in the suit of Bank of Commerce v. Rudolph Yunkes, 36 So.2d 849, in which we have this day rendered judgment for the reasons therein stated, it is hereby ordered that the judgment of the District Court be affirmed and that, accordingly, plaintiffs' suit be dismissed at their cost.


author: DORE, Judge.

text:
    SAMPLES v. STRAIT.
    No. 3040.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.

      Dudley L. Weber, of Baton Rouge, for appellant.
    Cangelosi, Hayes & Lane, of Baton Rouge, for appellee.
   DORE, Judge.

This suit arises from a collision between a -Chevrolet automobile driven by the plaintiff and a Ford automobile driven by defendant, at the intersection of Florida Street Extension Boulevard and North 22nd Street, in the City of Baton Rouge, on June 26, 1946, at about the hour of 8:50.P.M.

The plaintiff alleges that the said collision was due to the negligence of defendant, and claims the amount of $5,000, as damages for personal injuries received by him, and $315 for medical expenses incurred by him, as a re-sult of the collision. The defense is based on a denial of negligence on the part of the defendant and a plea of contributory negligence on the part of plaintiff. The defendant reconvened seeking $300.85 for damages to his automobile and $700 for personal injuries.

The trial resulted in a judgment dismissing plaintiff’s suit and rejecting defendant’s reconventional demand. Plaintiff has appealed. Defendant has answered the appeal, praying that the judgment, in so far as it dismisses plaintiff’s suit, be affirmed; that it be reversed in so far as it rejects his reconventional demand, and asks that there be judgment in his favor in accordance with his reconventional demand.

Florida Extension Boulevard is a four lane highway running in an easterly and westerly direction; in the center thereof there is a rising, save at street intersections, dividing the Boulevard into two parts, affording two lanes of travel for each of the parts. The northern lanes are for vehicles travelling in a westerly direction, while the southern lanes are for vehicles travelling in an easterly direction. North Twenty-second Street to the south of the Boulevard, is a two lane travel street. To the north of the Boulevard, North Twenty-second Street is a four lane street; the eastern half thereof is paved and is a continuation of the street to the south of the Boulevard; the western half was graveled at the time of the accident. Thus, for all practicable purposes, North Twenty-second Street can be considered as a two lane -street, both to the north and south of the Boulevard. Florida Boulevard is a heavily travelled street, it being the main artery of the traffic leading from Baton Rouge to the Airline Highway. North 22nd Street is also heavily travelled, being one of the streets leading to industries to the north of Baton Rouge. Traffic at the intersection of the two streets is controlled by a semaphore light overhanging at about the center of the intersection. There i-s a street light on the northwest corner of the intersection; there were two sign boards on the southeast corner, one of the sign boards being a Community Coffee sign which was lighted by overhanging lights and the other was a Weil’s Department Store neon sign. The point of collision of the two vehicles was about six feet to the northwest of the semaphore light.

Plaintiff was driving his father’s 1-937 Chevrolet Sedan automobile in a westerly direction on the south lane of the north ■half of Florida Boulevard. The defendant was driving his 1941 Ford Sedan in an easterly direction on the north lane of the south half of Florida Boulevard. Prior to, on the approach and at the time of the accident, -the traffic semaphore exhibited a green or “go” light to traffic going easterly and westerly on Florida Boulevard. At the time of the collision, the defendant was in the process of making a left turn from Florida Boulevard into North 22nd Street with the intention of proceeding-north on North 22nd Street, and had completed his turn to the extent that the front end of his automobile was just south of the center of the south -lane of the north half of Florida Boulevard and just to the northwest of the semaphore. Approximately the left front end of plaintiff’s automobile struck the right front fender of defendant’s automobile. The damages to the two automobiles, as well as the fact that the automobiles were displaced very little if any at all, as evidenced by the photographs filed herein, indicate that both vehicles were travelling at a moderate rate of speed. Neither driver applied brakes before the two vehicles collided. In fact, plaintiff, according to his testimony, did not see the defendant’s automobile until his car struck it, while defendant only saw plaintiff’s approaching automobile after he had started his left turn.

The accident occurred at approximately 8:50 P.M., following a rain and at a time when it was still misty and visibility was somewhat obscured by the mist that was falling. Defendant testified, and he is corroborated by his guest in his automobile, that he was travelling in an easterly direction, in the northern lane 'of the south half of Florida Boulevard, at about the rate of twenty-five miles per hour, and that as he approached the intersection, the light being green or “go,” he reduced his speed to about ten miles an hour, looked around to see if anybody was coming, and seeing none, he proceeded to turn. Just as he started to the left, all of a sudden his lights shone on the windshield of plaintiff’s car, without any lights, in front of him. There was nothing he could do to avoid the accident. Plaintiff’s car was right on him. He estimates his rate of speed at about ten miles per hour and that of defendant’s car at about -thirty-five miles per hour at the time of the collision. He states that his car was equipped with good lights, which were then burning; that there was nothing to prevent him from -seeing in front of his car a distance of a hundred or one hundred and twenty-five feet. He estimates that plaintiff’s automobile was seme thirty or forty feet away at the time that he first saw it.

It is shown that -this intersection was well lighted at the time of the accident. The condition of the weather then prevailing undoubtedly cut down the visibility resulting from the lights at the intersection, somewhat, however not to such an extent as to prevent the defendant from seeing the plaintiff’s automobile, whether it had lights or not. Prior to the collision, it can be said that plaintiff and defendant were approaching each other as on a two lane street. According to defendant’s own testimony, he should have perceived plaintiff’s automobile approaching at a distance of one hundred or one hundred twenty-five feet. He is -charged with having seen what he should have seen. The reason given by the defendant and his guest as to why they did not see plaintiff’s car before making the turn is not very convincing.

Furthermore, the evidence shows that •the defendant started to make his left turn before he had reached the center of the intersection as he was required to do.

The evidence convinces us that defendant was guilty of negligence in attempting to make a left turn into North 22nd Street in the face of plaintiff’s oncoming automobile. As many times expressed by us: “The law requires a driver to ascertain before making such a turn that there is no traffic approaching from either direction which will be unduly or unnecessarily delayed and requires him to yield the right of way to such approaching traffic. And when a driver intends to turn to his left to enter an intersecting road, he shall approach the intersection in the lane for traffic to the right of and nearest the center of the highway, and in turning shall pass beyond the center of the intersection, passing as closely to the right thereof as practicable before turning the vehicle to the left." Act No. 286 of 1938, Section 3, Rule 9, paragraph (a) and (b), Dart’s Gen.Stat. Section 5214.

Being of the opinion that the defendant was negligent, the next and most serious question is whether or not the plaintiff was guilty of any negligence contributing to the accident. The trial judge found the plaintiff guilty of such negligence.

As did the trial judge in his reasons for judgment, we find that the testimony of plaintiff is very evasive and not olear. We will attempt to give a resume of his testimony as we understand it- The plaintiff testified that some ten or twelve blocks away from the scene of the accident, he purchased gasoline at a filling station, at which time the filling station attendant wiped his windshield and his head lights; that he left the station with his lights burning. He reached a semaphore light and stopped. Thereafter, on the change of light, he proceeded west on Florida Boulevard, on the south lane of the north half of said Boulevard at a moderate rate of speed. Upon approaching the Boulevard and North Twenty-second Street intersection, he perceived the semaphore light showing green and proceeded onward in his western course, “looking straight ■ahead, watching the traffic light.” When he got under the light, he was hit. He did not see defendant’s automobile before the collision. The excuse he gives for not seeing the defendant’s automobile is that he was watching the traffic light.

There is a conflict in the evidence as to whether plaintiff’s lights were burning prior to and at the time of the accident. Plaintiff is corroborated by the filling station attendant that the -lights were burning and by the mechanic who examined plaintiff’s automobile a day or two after the accident and who testified that plaintiff’s lights were damaged, and t'he bulbs broken and when the bulbs were replaced the 'lights burned. As against this, we have the testimony of defendant and his guest that plaintiff’s automobile was without burning lights prior to the collision. However, whether he had lights burning or not, the fact remains that the intersection was well lighted, affording each driver a clear view of the intersection and those about to enter the intersection.

Plaintiff’s main contention to avoid the plea of negligence is that he was favored with a green light and should not be held to that same high degree of care and vigilance as if no such system prevailed, and he cites many cases in support of his contention.

In Buckley v. Featherstone Garage, Inc., 11 La.App. 564, 123 So. 446, 450, the Court of Appeal for the Second Circuit, through Judge Odom, then a member of that Court and subsequently a member of the Supreme Court, said: “ * * * In a city where traffic is controlled by 'the signal light system, neither pedestrians nor vehicles are permitted to enter an intersection on the wrong signal, and to do so is negligence. But the driver of a vehicle who is rightfully in the intersection owes a duty to those who may be negligently therein, and that duty is not only to avoid injuring them when and if their peril is discovered, if he can reasonably do so, but, further, to use due diligence to discover their presence.” The doctrine announced in that case has been repeatedly cited and followed in other cases involving a collision in which one of the participants had entered the intersection on a favorable light. The latest case to which we have been referred is the case of Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292, 294. In that case, the Supreme Court, through Justice Rogers, said: “(2-4) It can not and will not be disputed that a motorist, who recklessly and without exercising some degree of caution enters an intersection on a favorable light, is not free from negligence if he collides with another motorist who enters an intersection on an unfavorable light- And it can not and will not be disputed that a motorist cannot, in the face of imminent danger, rely upon the right of way accorded him by law. But it also can not be disputed that under the traffic light system a motorist, who i-s proceeding on a proper signal, should not be held to the same degree of care and vigilance as if no such system prevailed. He has the right to assume that the signals are understood and will be observed and he is not required to anticipate that pedestrians or other motorists will, in violation of law, enter a crossing on a wrong signal. The danger at such crossing is less than if there were no such signals and therefore less care is exacted. Clark v. DeBeer, 188 So. 517, 520, decided by the Court of Appeal for the Second Circuit. In that case a motorist traveling on a green light, at a street intersection, struck a bieydis't who was running against a red light. The Court of Appeal, in its opinion, correctly observed: ‘She (the motorist) observed no one approaching, so she directed and continued her attention in front of her and proceeded forward. It was not encumbent on her to persist in looking from side to side as she progressed. Her legal duty, in view of the fac-t that she had the right of way, was to operate her car cautiously and carefully at a moderate speed; to be reasonably diligent in her driving and to maintain a general observation of the intersection.’ ”

We have the observation of Judge Mc-Caleb, in his dissenting opinon in the Kientz-Dennery case, 17 So-2d 506, 513, a former judge of the Orleans Court of Appeal, now a justice of the Supreme Court, and which observation was quoted with approval by otir Supreme Court in the Kientz-Dennery case, supra, tíhusly: “We are living in an advanced stage of the motor age. Heavy and congested vehicular traffic on the streets and highways is a daily rule rather than an exception. In these circumstances, it is vital to the public interest .that' the traffic rules and regulations be adhered to strictly (particularly with reference to the traffic semaphore system) as the motorist is, to a large extent,' compelled to' operate his car in the belief that the ' law will be obeyed by others. Hence, in gauging the fault which is attributed to one, who was operating his car in obedience to positive law, the courts should :be convinced that the dereliction was most substantial and that it was such a direct factor that, without it, the accident would not have occurred.”

The defendant contends that plaintiff was not keeping a proper lookout and failed to, look in either direction before entering the intersection. Although plaintiff admits that he did not look in either direction upon entering the intersection it clearly appears from the record that had he looked in either direction, he would have seen defendant travelling east in his lane of travel. He could not anticipate that defendant would “cut the corner” and make a left turn. He had no cause, at that time, for alarm and there was no reason for him to believe that it would be dangerous to continue in his travel.

Considering the jurisprudence established by the above cited cases, our conclusion is that the plaintiff was not negligent and that the sole cause of the accident was due to the negligence o'f the defendant.

The demand of plaintiff was for $5,000 for his physical injuries, pains and sufferings, plus $315 for doctor’s and X-ray bills.

As to his claim for doctor’s and X-ray bills, we do not find any proof to substantiate that claim, except his testimony that he was charged $5 for a visit to an eye specialist in Washington, D. C-He does not state that he paid the $5. This doctor’s testimony was not taken, nor was a bill from the doctor produced. The proof is not sufficient to justify an award. The record is barren of any proo'f that plaintiff has incurred any medical expenses. He was seen by Doctors H. H. Hutchins and Waldo Bernard. Although 'both of these doctors testified, they were not questioned as to their charges, nor did either produce any bill therefor.

The plaintiff claims the sum . of $2,500 for the partial permanent loss of sight in his left eye. The evidence is that he received an abrasion in the corner of the eye which healed without leaving any effect more than a scar. His vision tested 20-30 in comparison with 20-20 which is perfect vision- He was advised by his physicians to consult an eye specialist. He testified that he saw a Dr. Curtis in Washington, D. C. He did not produce the testimony of this doctor nor a report of this doctor’s findings. This claim cannot be allowed.

As to remaining claims for scars, pains and sufferings, we have the testimony of his two physica-ians that the wounds received by him have healed satisfactorily and the only remaining result consists of scars which they consider to be permanent. They are not large scars and are not disfiguring in any marked degree. The injuries apparently involved some pain. For the pains, the injuries and the resulting scars, we believe that an award of $500 is sufficient and ample.

For these reasons assigned, the judgment appealed from is annulled, reversed and set aside, and accordingly it is now ordered that there be judgment in favor of the plaintiff, Cadmus A. Samples and against the defendant H. J. Strait in the sum of $500, with legal interest thereon from judicial demand, until paid, and all costs.


author: LeBLANC, Judge.

text:
    RAMSEY v. FONTENOT.
    No. 3029.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.
    Glenn S. Darsey and Scallan E. Walsh, both of Baton Rouge, for appellant.
    Cangelosi, Hayes & Lane, of Baton Rouge, for appellee.
   LeBLANC, Judge.

The plaintiff in this case is a realtor' conducting his business in the city of Baton Rouge and in the Parish of East Baton Rouge. In the month of February, 1941, he bought a tract of land containing 76.09 acres in the Sixth Ward of that parish for the purpose of subdividing and plotting it into streets, squares and lots for the uniform and systematic development of same as residential home sites. He called it “Walnut Hills.”

In order to carry out his purpose he promulgated and established certain building restrictions and had the same recorded in the conveyance records of the parish and, as he sold each lot, the purchaser acquired the same with full knowledge of the said restrictions which usually were incorporated in his deed, and he agreed to be bound by the same in constructing a home on the property he bought.

Under restriction No. 3 it is provided that “no building shall be erected, placed or altered, on any building plot in this subdivision until the building plans, specifications, and plot plans, showing the location of such building, have been approved in writing, as to conformity and external design with existing structures of the subdivision, and as to location of the building with respect to topography and finished ground elevation, by the affiant and owner, John H. Ramsey * *

Under restriction No. S it is provided that where the lots sold measured 70 feet or more in width but less than 160 feet in depth, every part of any single family residence, including the steps adjacent thereto could not be built “nearer than 25 feet to the front line of said lot, nor at a greater distance than 40 feet from the front line of the said lot * *

In his petition plaintiff alleges that on June 14, 1945, by act of sale recorded on June 18, 1945, he sold to the defendant herein, John B. L. Fontenot, a certain lot in his subdivision measuring 75 feet front on a street called Ramsey Drive by a depth of 125 feet; that on the date of the sale all of the building restrictions established by him were in force and effect and the property sold to the defendant was subject thereto and that the act of sale itself provided that the property was sold and acquired subject to the said restrictions.

He then alleges that on or about September 17, 1947, the defendant, through his agents, employees and contractors, commenced the construction of a residence on the property he had acquired, in violation of the building restrictions established and particularly in violation of restriction No. 3 with reference to the plans and specifications of the building having to be submitted to him and in further violation of restriction No. 5 with reference to the location of the building on the building site at a given distance from the front line of the property. He avers that he first became aware of the construction of the building on September 21, 1947 and that on that day he communicated with the defendant by telephone directing his attention to the restrictions and requested that he submit his building plans in accordance with the same; that on that afternoon the defendant called at his residence, submitted certain building plans of a proposed construction which had already been commenced, after which he advised him that they were not acceptable and that his written approval would not be given at that time, all as required in restriction No. 3. He alleges further that although he offered to consult an architect himself with reference to said plans, with a view of changing and altering the same in a manner that would be acceptable to him, the defendant failed to co-operate with him and continued the construction of the building.

Further, in addition to his charge of violation of restriction No. 3, as above stated, plaintiff alleged a violation of restriction No. 5 in that defendant also caused a part of the building to be constructed nearer the front property line than 25 feet.

He then sets out in detail, the remaining ownership of some 85 lots in the subdivision, the sale of which would be greatly affected if the defendant be permitted to continue the construction and erection of his residence in violation of the restrictions established by him and that he has no adequate remedy at law to protect his rights and property and that a writ of injunction is necessary in the premises; that a temporary restraining order should issue for the reason that a hearing on the matter and a decision could not be rendered in due course, to prevent him from suffering irreparable injury, loss and damage as a result of the defendant’s violation and continued violation of the said restrictions.

The prayer of his petition is for a rule nisi asking that the defendant be made to show cause on a certain day why he and his agents and employees “should not be restrained, prohibited and enjoined from proceeding further with the construction and erection of the residence or building which he or they have commenced on the lot or parcel of ground * * * owned by him and from violating the building restrictions imposed upon and affecting said property until compliance with the building restrictions applicable thereto, particularly restrictions No. 3 and No. 5 has has been made — or upon failure to comply with said building restrictions, particularly No. 3 and No. 5, he the said John B. L. Fontenot, his agents, employees and contractors should not be ordered and directed to demolish and remove said residence or building which he or they have commenced to construct and erect on the above described property.”

The petition for the injunction as prayed for was filed October 20, 1947 and on the following day the district judge granted a temporary restraining order and at the same time issued a rule nisi on the defendant which was made returnable at 10:30 o’clock a. m. on October 27, 1947.

For return to the rule, the defendant appeared and filed an exception of vagueness on the ground that the petition for injunction did not allege why and in what detail and manner the plans and specifications alleged to have been submitted by him to the plaintiff were not acceptable, nor did it state why the written approval could not be given at the time, and further that the petition does not state what changes or alterations in such plans would have been acceptable to the plaintiff in order to obtain his written approval. Further that the petition does not allege in what manner the residence does not conform with existing structures nor does it state in what manner the residence should have been placed upon the lot in order to conform with the same. Also on the same day defendant filed a plea of laches and estoppel on the ground that plaintiff had waited too long to commence this suit from the time he had actual knowledge as to the nature of the residence to be constructed and from the date of the actual beginning of the work on the residence itself. On the same day also the defendant filed an exception of no right of action and of no cause of action and also a motion to dissolve the temporary restraining order. The motion to dissolve was based on failure of plaintiff to have complied with several provisions of the statute under which restraining orders can be obtained and on the further ground that immediate and irreparable injury would not and could not result to the plaintiff as the plaintiff had already suffered such injury or loss, or damage as he claims, before this suit was filed and would continue to suffer the same unless and until the demolition of the said building was ordered, and this, the temporary restraining order did not direct in any way.

On the same day that the rule was made returnable, some seventeen owners of lots in the subdivision intervened in the suit, joining the plaintiff in his demands.

The motion to dissolve the temporary restraining order was heard and tried on the day that it had been fixed and was dissolved and set aside, judgment to that effect having been signed the same day, in open court. Thereafter, on October 28, 1947, the plaintiff, by supplemental petition, obtained another restraining order from another judge of the district court of the parish. That order was continued in effect from time to time and in the meantime some additional property owners intervened on plaintiff’s side in the suit.

On November 3, 1947, in answer to the last rule issued against him, the defendant appeared and again moved to dissolve the temporary restraining order on the same grounds heretofore urged by him. The temporary restraining order expired again from time to time and was extended until December 18, 1947. Finally the matter was brought to trial on the return to the rule filed on behalf of the defendant in which again the same pleas and exceptions were advanced. The rule was heard on January 5, 1948 and testimony taken during several of the following days and on January 27, 1948 the district judge, in a written opinion, ordered the restraining order to be dissolved and denied the application for a preliminary injunction. The appeal made to this court is from the judgment so rendered and signed.

A great deal of time and effort was devoted to a discussion of the legality of building restrictions such as plaintiff has promulgated for his home-building site and' of their reasonableness, but that does not seem to be questioned by the defendant in this case. The only issue is whether there has been a violation, as charged in plaintiff’s petition, of restriction No. 3 and restriction No. S.

Plaintiff seems to have been given free rein by the district judge in presenting all the testimony he cared to, and still we do •not find where he has answered the one and only question that is paramount and that is in what way and in what manner has this defendant failed to comply with restriction No. 3 which, as we view it, is the only violation of any restriction he is now charged with. Restriction No. 5 has to do with the distance the building was to be constructed from the front line or rear line of the property and, as it appeared, after the foundation for the building had been laid that the steps would encroach upon the 25 foot-length from the front line, defendant at once corrected that feature by changing the steps from the front of the entrance porch to the side, thus complying with the restriction in that respect.

With regard to restriction No. 3, plaintiff has yet to answer counsel for the defendant, and the court itself which questioned him quite frequently on the subject, in what manner or in what respect the building failed to conform in its external design with 'existing structures in the subdivision. It is rather significant that several of his own expert witnesses, trained men in that field, according to him, testified after looking at a photograph of the proposed residence, or of the residence itself, and comparing it with pictures of another residence, that it did conform and most of them found it to be a rather attractive building in its class.

As far as plaintiff’s complaint that the defendant violated the restriction by having failed to submit his plans to him for his approval, there is, in the first place, a question of fact presented. Plaintiff finally-had to admit that defendant did submit a picture of the home he contemplated building with the floor plan laid out, and as we read the page of the pamphlet from which this picture was taken there was sufficient information to acquaint the plaintiff with the sort of house it was going to be. Moreover, it seems -to us that a picture of the house as shown, conveyed a better impression especially as to external design, to him, than would have a lot of blue prints containing building plans and details of construction, along with other specifications. Besides, there is no reason to disbelieve the defendant’s testimony, that on the day these plans were submitted to him, plaintiff seemed to be satisfied and raised no objection whatever to them. In fact for several days thereafter he never uttered a word of objection and finally when pressed by the defendant for permission to start the construction of his building, which he says was urgent because it was to be the home of his daughter in law who was to give birth to a child in the month of December, he says that plaintiff finally told him to go ahead. There appears to have been some objection on his part to the asbestos siding which was to be used on the building. In order to please the plaintiff on this point, defendant went to a good bit of .trouble to obtain cypress weatherboard siding which he did, and for which he had to pay $137 over and above the contract price for his house with asbestos siding.

Plaintiff stresses the point about plans which he says he had his architect make in order to revise the exterior appearance of the house to make it conform with the other structures but he never submitted these plans to the defendant in spite of frequent requests for same. In testifying, he repeatedly charges defendant with having purposely rushed the work on his house in his effort to purposely violate the restriction and yet he has not to this date shown him the revised plans which he says would have suited him. Why he did not avail himself sooner than he did, of the only recourse he had to stop defendant, by applying -to the court for an injunction, has never been satisfactorily explained.

Plaintiff also stresses the point that restriction No. 3 called for his approval in writing of the plans he had submitted but in this connection it is significant to note that he himself testified that he had “lots of times” before permitting others to build on verbal approval and why he should now be insisting that in this case there should have been strict compliance in writing, we cannot understand.

What we have said so far forms the sum and substa-nee of this case. In his dilemma at not being able to tell the court in what manner he considered the restrictions had been violated by the defendant, plaintiff finally admitted that nothing short of an entire demolition of the building or its removal by the defendant to some other property would satisfy him. But this of course he did not ask the court to order defendant to do, and obviously the court itself could and would grant him no such relief.

In as much as the temporary restraining order was dissolved and a preliminary injunction denied by the judgment of the lower court, defendant resumed work on the construction of his house which, we understand, has long since been completed. His counsel now raise the point that since there is no more construction left to be done, a court order restraining further construction would be an idle and a futile gesture. In other words, they contend that there is only a moot question left which the court is not interested in since “courts will not decide moot or abstract questions of law.” It is also the law, they urge, that “rights already lost and wrongs already perpetrated cannot be corrected by injunction.” We are strongly inclined to agree with counsel and believe that this appeal might properly be disposed of on that point. See Kean’s, Inc. v. Willoughby, La.App., 149 So. 237; Forrest v. Messenger, La.App., 20 So.2d 766. However, as our consideration of the record has otherwise led us to the conclusion reached that the judgment of the lower court is correct and should be affirmed, we prefer to pass on the issues involved in the case and have decided to dispose of them on their merits.

For the reasons stated, the judgment appealed from is affirmed at the costs of the plaintiff, appellant herein.


text:
    JAMISON v. DIER.
    No. 3022.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.
    Johnson & Kantrow, of Baton Rouge, for appellant.
    Kizer, Heaton & Craig, of Baton Rouge, 'for appellee.
   DORE, Judge.

On May 31, 1946, at about 3:30 P.M., a collision occurred between an automobile driven by the minor son of defendant, Blanche Dier, and a bicycle being ridden by Richard Jamison, Jr., the minor son of the plaintiff herein. The collision occurred in East Baton Rouge Parish, at the northwest corner of the intersection of Evangeline Drive, formerly known as North Pligh-land Drive, a paved street running east and west, and Walnut Street, a street running north and south, gravelled on the north of Evangeline Drive. The petition alleges that the minor son of defendant was driving an automobile west on the right-hand side of Evangeline Drive and that the plaintiff’s minor son was riding his bicycle on the north side of said Evangeline Drive, to the right and north of the paved portion thereof, and that the bicycle was struck by the automobile throwing Richard Jami-son, Jr., into the ditch on the right of the north side of the street, causing serious and permanent personal injuries to him; that the collision was caused .entirely by the gross negligence of the driver of the automobile and specifically (a) in failing to keep a proper lookout, (b) in driving the automobile along the extreme north side with the right part of the automobile extending over onto the ■ shoulder, (c) in 'failing to see the Jamison boy on his bicycle on the right side when he should have seen him, or having seen him, failing to avoid striking the bicycle, (d) in failing to avoid striking young Jamison and continuing on his way after striking him without making any effort to stop until someone yelled to him, (e) that the driver of the car did not have the car under his control or by his inexperience did not know how to avoid striking the Jamison boy, (f) in operating an automobile at a dangerous and reckless rate of speed and without keeping a proper lookout. Petitioner alleges that as a result of the accident petitioner’s minor son has suffered damage for injuries,, disability, pain and suffering, etc., in the amount of $5,000, and that petitioner, as father of the minor son, has suffered damage in the amount of $318.05; $25 for damage to the bicycle and the remainder for hospital and medical expenses.

The answer is to the effect that the accident was caused solely by the petitioner’s minor son, Richard Jamison, Jr., in entering the intersection of Walnut Street and Evangeline Drive without keeping a proper lookout and with disregard of the traffic thereon; that, the driver of the automobile was driving in a careful and proper manner and was free from any negligence whatsoever, and that the accident was caused by plaintiff’s minor son in running into defendant’s automobile. In the alternative, the defendant pleads that if any negligence is found on the part of his minor son, which is denied, it should be found that plaintiff’s minor son was guilty of -contributory negligence which was a proximate cause of the accident and which bars recovery herein.

After due hearing of the case the District Court, without assigning any written reasons, dismissed the case at plaintiff’s costs and plaintiff has appealed.

The case involves questions o’f fact only and it is fundamental that the judgment below should not be reversed unless manifest error is found in the conclusion of facts of the trial judge. Since the trial judge has not submitted written reasons, we are unable to tell what specific conclusions he reached, but, since the testimony is highly contradictory and irreconcilable, it is obvious that he must have believed the defendant’s witnesses.

On the question of liability the plaintiff’s case is based on the testimony of Richard Jamison, Jr., Willie Lemings, Edwin Whitaker, Robert Haley and Mrs. E. ,E. Vick.

Richard Jamison, Jr., a 12-year boy, testified- that prior to the accident he left his home on the south side of Evangeline Drive, a distance of about a block and a half from the scene of the accident, there being one intersecting street besides Walnut Street between his home and the scéne; that he travelled west on Evangeline Drive and went over to see his friend, Jerry Vick, another little boy who lived on the north side of Evangeline Drive- about 2Ü0 feet west of Walnut Street; that when he arrived at the Vick house he knocked and found that no one was there, and thereupon turned back and went to the Lambert store located on the southeast corner of the intersection of Evangeline Drive and Walnut Street; that the said Lambert store faces north and has a shed in front, with gasoline- pumps on the front thereof; that at this store he met two of his friends, Edwin Whitaker, bearing the nickname of “Honky,” and Robert Haley. He states that besides “Honky” Whitaker and Robert Haley, that he saw Willie Lem-ings, who worked- at the store, and also some other people. He testifies that he talked to young Whitaker and young Haley for some five minutes and that he thereupon decided to go back to the Vick home; that during his conversation with the other two boys they sat on boxes underneath the shed and'he sat on his bicycle; that as he left the store he rode out on the east side of the shed and then across over to the north of Evangeline Drive and was riding on the north or right-hand side of said Drive, having gone about eleven yards on the north side after crossing Evangeline Drive, when he was struck by the automobile and thrown in the ditch at the northwest corner of the intersection of Walnut and Evangeline Drive. He states that he arrived at the figure of 11 yards by having stepped off on the morning o-f the trial from the point where he started west on the north side of Evangeline Drive to the point of contact.

Young Haley and young Whitaker corroborated the Jamison boy’s testimony with reference to his visit at the Lambert store, but their testimony ás to how long he stayed there is uncertain and indicates that he was under the shed for a period of much longer than five minutes, or approximately half an- hour. They both testified that he left the shed on the east side and circled into Evangeline Drive towards the north side, but neither saw the actual accident and neither saw the Dier automobile until after the accident. They both testified that the bicycle and the boy were thrown on the north shoulder of Evangeline Drive some few feet from the western edge of Walnut Street.

Lemings, a young man who was working for the Lambert store, testified that he was standing underneath the shed, near the pumps, talking to a Mr. Kohler (defense witness) at the time of the accident for approximately a half hour before; that as he came out of the store he saw young Jamison sitting on his bike talking to Whitaker and Haley, who were sitting on boxes; that young Jamison left the shed and rode to the north side of Evangeline Drive, and as he was proceeding west thereon, the Dier automobile approached from the east on the south side of Evangeline Drive and turned to the north side thereof, apparently because a bus was coming from the opposite direction about half a block away, and that shortly thereafter the Dier automobile struck the bicycle, either on the rear or left side of said bicycle and continued to go on a distance of about 120 feet; that the driver of the automobile stopped when he, Lemings, and Mr. Kohler yelled at him; that he and Kohler went to the scene, and, as he lifted the bicycle off of young Jamison, Mr. Kohler picked up the boy and took him to the Dier automobile, which had in the meantime backed close to the scene. Lemings states that he laid the bicycle aside and opened the front door of the automobile to assist Kohler in placing the boy therein; that the automobile was a two-door sedan and that it was occupied on the front seat by young Dier at the wheel, and Mrs. Dier, his mother, next to him, and that in order to get the boy inside on the back seat it was necessary for Mrs. Dier to push forward and have the folding seat moved forward. Lemings testified further that after Kohler placed the boy on the back seat, he shut the door and went back to the store, and that he, Lemings, picked up the bicycle and carried it to the shed; Lemings also testified that the bus driver was coming out of the store when he arrived there and that he asked him where the Jamisons lived, and that he, Lemings, told him he was going there, and the bus driver agreed to drop him at the Jamison house.

Mrs. E. E. Vick testified that she lived on the north side of Evangeline Drive approximately 200 feet west of Walnut Street; that when the collision took place she was standing on the porch of a Mrs. Norman, who lived next door to her house on the east. She states that she had gone to Mrs. Norman’s house to inform her of an accident in which Mrs. Norman’s daughter had been involved, and that she had been on the porch about half an hour before the accident and that when the accident occurred she was facing east and was with Mrs. Norman’s son and her own son, who were also on the porch, but did not witness the accident because they were facing west. She states that she saw the Jamison boy sitting “on a box or something” and saw Willie Lemings talking to a man in front of Lambert’s store and that she saw the Jamison boy get on his bicycle and leave; that he crossed over the Drive and went west, and that he was struck by the car as he was crossing Walnut Street on the north side of Evangeline Drive.

The defense is based on the testimony of Mr. Kohler, the man who was standing in front of the Lambert store, Mr. Brown, the bus driver, Mr. Blanche Dier, Jr., the son of the defendant, Mrs. Blanche Dier, and Jesse Dier, the defendant’s minor son, and driver of the Dier automobile.

Mr. Kohler testified that he was an insulation man for the General Gas Corporation and had been living for 15 years on Bradley Lane near the Air Base; that on the day of the accident, he was returning 'from work on a bus and that he got off at Lambert’s store where he inquired about a Mr. Landry and that a young fellow (presumably Lemings) told him where Landry lived; that he thereupon went to Landry’s home, and not finding him there, he returned to the Lambert store to catch a bus; that he was standing on the Lambert porch across from where the accident happened; that he stood there some 20 or 30 minutes and that he saw the accident; that young Jamison was coming on a bicycle heading south on Walnut Street, and that, in effect, he ran into the automobile. He states that he did not see the actual impact because the Dier automobile was between him and the bicycle, but by his observation he reconstructs the accident to the effect that the bicycle ran into the side of the automobile. He denies that the Lemings boy was anywhere around, stating that he had gone out to deliver groceries, and also denies either young Jami-son or Whitaker or Haley were underneath the shed as testified by them. He states further that the Dier automobile drove only about 20 or 25 feet after the collision, and that he was the first to arrive at the scene; that lie found the bicycle laying on top of the boy; that the boy’s leg was tangled up between the sprocket wheel and the arm; that he picked up the boy and put him in the back part of the car; that the lady in the car asked him if he could find the boy’s mother, and that he said he did not know her. He testified further that the only occupants of the car were the young boy driver and the lady, and that there was no one in the back of the car. It may be noted that Lemings in his testimony stated that when he saw the Dier car pass by the Lambert store it was occupied by people in the front and in the back. Kohler further testified that he picked up the boy at the spot about 10 feet from the ditch on the west side of Walnut Street on the north side of Evangeline Drive. He emphatically denies having been accompanied to the scene by Lemings or having hollered to the driver of the Dier car to stop.

Gilbert Brown, the bus driver, testified that he did not actually see the collision, but was at the scene; that he had stopped at the Lambert store to discharge some passengers; that it was raining and the road was very wet and that his windshield was not clean and therefore he could not see anything until after the accident; that he thought he knew the boy on the bicycle and therefore he went to the car and that the driver asked him to notify the Jamison family; that he thereupon made inquiry at the Lambert store about the location of the Jamison home and that he found out from Lemings, and took Lemings there to notify the Jamisons. He states further that the automobile, when he arrived at the scene, was parked just west of Walnut Street, and that at that time the injured boy was on the back seat, and he was informed was to be taken to the hospital; that there were no people around the car, but there were 10 or 15 people at the Lambert store across the way.

Blanche Dier, Jr,, testified that he was 22 years of age, a licensed Minister of the Gospel (Istrouma Baptist Church) attending L. S. U., and that he and his mother went to the Lambert store the morning after the accident and spoke to young Lem-ings about the accident. He states “I asked Lemings if he saw the accident, and he said ‘Oh, no, I could not see the accident because it was on the opposite side of the street from me and it was raining.’ ” He further states that Lemings told him that the Jamison boy was coming out of the street, which is north of Evangeline Street; that he was riding his bicycle south on that street. It might be noted that it was shown that Lemings was subprenaed by the plaintiff and not by the defendant.

Mrs. Blanche Dier testified that at the time of the accident she was riding next to her son Jesse Dier, who was driving the automobile; that at the time of the accident her son was not quite 18 years of age. She states, in effect, that they were driving on the north side of Evangeline Drive, heading west and that just as they were about to pass Walnut Street something hit the car in the back; that, in effect, the bicycle ran into the side of the automobile. She states that some man put the boy in the back seat of the car and that she and her son took him to the Lady of the Lake Hospital. She states that after the man put the hurt boy in her car, he closed the door and left and that the only other person who came to the car was the bus driver. She is positive that Lemings did not come to the scene. She states further that on her way to the hospital the injured boy told her that he was coming out of the street, it was raining, and he was in a hurry and he had slipped off from home and he had asked his mother if he could go to the picture show and she told him he could not and he said he was coming out of that street and his chain slipped and he could not stop. He said “I had to hit you.”

The testimony of Jesse D. Dier was taken by deposition, and the sum and substance of his testimony is in corroboration of his mother’s testimony. He states that he was driving along at about 20 or 25 miles per hour and that it was raining pretty hard and that he was keeping a close lookout; and that just as he got to this little road (Walnut Street) this little boy hit the side of the car; that young Jamison, the little boy, told him that his chain slipped and that is why he hit. He states that the car did not strike the bicycle but that the bicycle struck the car on the right side between the right front fender and the right rear fender just about where the door closes, and that the accident occurred on the north side of Evangeline Drive, at Walnut Street. He states further that he was driving on the right-hand side of Evangeline Drive; that he did not see the boy on the bicycle coming and that he could not have turned to his left immediately before the collision because he was meeting the city bus coming from the opposite direction.

As stated before, it is very evident from a review of the testimony that two irreconcilable versions of- the accident are created, one by the testimony of the witnesses of the plaintiff, and the other by the testimony of the witnesses of defendant. It may be noted that the bicycle involved in the accident was produced in evidence and that the damage to the bicycle is on its right side, which would seem to corroborate the version that the bicycle ran into the car as he was trying to swing around the back thereof, instead of the car having struck in the rear or on the left of the bicycle. In any event, it does not appear that the plaintiff has proved that the accident was caused by the sole negligence of young Dier. To reach such a conclusion we would have to disregard entirely the testimony of Mr. Kohler, as well as Mrs. Dier and her young son, and the physical facts, and we would have to accept at full value the testimony of young Jamison, Whitaker, Haley, Lemings and Mrs. Vick. As to the testimony of young Jamison, it may be observed that while he states he went over to the Vick’s home to see Jerry Vick, he admits that he failed to see Mrs. Vick standing on the front porch of Mrs. Norman’s house, directly cast of the Vick home on the same side of Evangeline Drive. Either Mrs. Vick was mistaken in stating that she was at that place at that time, or young Jamison did not go to the Vick home as he said he did. It may also be observed that on cross-examination young Vick admitted that “Honky” Whitaker and his two brothers lived on Walnut Street, north of Evangeline Drive; and that in visiting the Whitaker home he usually traveled north on Walnut Street, There is no proof that he took that route that day, but there is some basis for believing the testimony of the witnesses that he had been on Walnut Street and was travelling south with the idea of crossing Evangeline Drive at the time of the accident.

In any case, from the contradictory evidence adduced at the trial we cannot find any manifest error at the obvious conclusion of the trial judge that plaintiff has failed to sustain the burden of proof. We must therefore affirm the judgment.

For these reasons the judgment appealed from is affirmed.