author: McBRIDE, Judge.

text:
    HARVEY CANAL LAND & IMPROVEMENT CO. v. KOCH-ELLIS MARINE CONTRACTORS, Inc.
    No. 18726.
    Court of Appeal of Louisiana. Orleans.
    March 1, 1948.
    Rehearing Denied April 12, 1948.
    Writ of Certiorari Denied April 26, 1948.

      Dart, Guidry & Price, of New Orleans (Henry J. Read, of New Orleans, of counsel), for plaintiff and appellant.
    Cobb & Saunders, of New Orleans (Charles D. Marshall, of New Orleans, of counsel), for defendant and appellee.
   McBRIDE, Judge.

Plaintiff, Harvey Canal Land and Improvement Company, brought this suit for $115, alleging that it is the owner of certain real property in Jefferson Parish, Louisiana, through which flow the waters of the Harvey Canal, a portion of the In-tracoastal Waterway owned by the United States of America. It is further alleged that for a distance of 3000 feet plaintiff’s land lies immediately adjacent to the waters of the canal, and that during the period from February 9, 1942, through August 17, 1945, the defendant, Koch-Ellis Marine Contractors, Inc., which operates vessels through the canal, moored certain of its boats and barges to plaintiff’s property; that plaintiff had previously informed defendant it would make a uniform daily charge of $2.50 for each vessel so moored; that defendant continued to use plaintiff’s property after receiving this information, and thereby acquiesced in the said mooring charge levied by plaintiff.

Defendant interposed an exception of no cause or right of action, but the record does not disclose whether the lower court made any disposition thereof, except that it shows “as this exception relates more to the merits of the controversy, it will be so considered.”

The defendant denied that the canal is immediately adjacent to plaintiff’s property, and while admitting that certain of its boats and barges did stop along the canal, it denied that they rested against any property of plaintiff. Defendant further denied acquiescence in the charges, and averred that whatever use it had made of the banks of the Harvey Canal was a use to which the general public is entitled under the laws of Louisiana.

After a trial on the merits in the court below, there was judgment in defendant's favor dismissing the suit — plaintiff has appealed; The trial court rendered written reasons for judgment, and the matter was adjudicated on the basis of Civ. Code, art. 455, which provides that the use of the banks of navigable rivers and streams is public, and accordingly everyone has a right freely to bring his vessels to land there.

The record shows that plaintiff is the owner of a parcel :of land situated in the Parish of Jefferson, in Section 44, Township 14 South, Range 24 East, bounded on the east by the Intracoastal Waterway known as Harvey Canal owned by the United States of America, or by the right-of-way of said canal, on the south by the 80 arpent line, on ’the west by the property of various persons, and on the north by the property of The Texas Company and various other persons; that commencing at the line of The Texas Company’s property on the north, plaintiff’s land runs southerly for 3000 feet immediately adjacent or in close proximity to the waters of the canal.

It appears that on March 10, 1924, Harvey Canal Land ánd Improvement Company conveyed the Harvey Canal to the United States of America, together with a strip of land having a width of 300 feet between parallel lines, the westerly boundary thereof being 160 feet from the center line of the Canal as it was then located, and the easterly boundary being 140 feet from the center line of the canal; that this right-of-way had a length of 3000 feet, the whole depth of plaintiff’s property.

Some time after this transaction the federal government widened the Harvey Canal to almost the complete width of the right-of-way, the result being that the property presently owned by plaintiff at some points is immediately adjacent to the waters of the canal. Samuel B. Stewart, plaintiff’s manager, testified that the bank line of the canal has also constantly eroded, which could be accredited to wave wash and to towboats and barges knocking off “chunks” of the bank.

Plaintiff, for the past several years, has kept its property open so that vessels traversing the canal might moor thereto, and for such services plaintiff has customarily made a daily charge of $2.50 per vessel, which it claims is the uniform rate assessed against the various barge and towing companies utilizing the canal.

' Until May 15, 1945, it appears that plaintiff did not know what the true facts were respecting the location of its property with reference to the waters of the canal, but on that date a survey was made at the behest of plaintiff by Alvin E. Hotard, Civil Engineer and also Engineer of the Parish of Jefferson, a blue print of which is in evidence. The survey shows that plaintiff’s land is bounded on the north by the property of The Texas Company, and runs in a southerly direction for a distance of 3000 feet to a point designated on the survey as “U. S. E. D. Sta. 94 and 90.” About 1000 feet south of stations 94 and 90 there is located a drainage canal and pumping station. This 1000 foot strip fronts the Harvey Canal, b%t it is not owned by the plaintiff'.

The itemized statement declared upon shows that between the dates alleged certain of defendant’s tugs and barges had been moored along the canal, and that there is due plaintiff the sum of $115. Plaintiff attempted to prove the correctness of its 'bill by the testimony of one William C. Hatch, who has been its employee since February 1942. Pie testified that his duties consisted of checking and making reports of tugs, barges and other floating equipment which tied up along the banks of the Harvey Canal. He stated that he lives in a small house near the canal on plaintiff’s land, and that whenever he noticed a vessel tied up to the bank he would immediately notify plaintiff’s office, and plaintiff in turn would bill, the owner or operator of the vessel- for the mooring charges. Hatch testified that the itemized statement is correct, and that defendant’s vessels had been moored along the canal on the dates shown.

On cross examination this witness was interrogated regarding the locations of the moorings, and his testimony respecting that point is as follows:

“Q. Did these barges tie up at one time at one place, and another time at another place? A. Yes.
“Q. And that happened all up and down the property? A. Yes.
“Q. Where did the property begin, that we are talking about? A. On the North end is the Texas Company’s property, called there Production Department.
“Q. What is the property on the South ? A. The Harvey Drainage and Waterworks Canal. ■
“Q. I understand that you have taken the numbers of all the boats and barges that moored from the Texas Company’s property line on the North, clear down to the drainage canal on the South? A. Yes.
“Q. Would you be able to tell us how many had'moored to the banks in the immediate vicinity of the drainage canal on the South? A. I have no recollection.
“Q. Your records don’t show if any of these barges or boats used any particular portion of this property? A. No sir.”

Hatch appears to have been overzealous in promoting the interests of his employer. From the quoted testimony it will be seen that he not only recorded the vessels that were moored to plaintiff’s property, which it is claimed is adjacent to the waters of the canal, but his tabulated list also included vessels that were tied within the 1000 foot strip between the southern end of plaintiff’s property and the drainage canal. It is obvious that a charge has been levied against defendant for vessels moored not only to the property of which plaintiff claims ownership, but also to property which plaintiff admits it does not own, and under the circumstances plaintiff has not made its claim certain. The familiar rule of law is that to be entitled to a recovery a litigant must make his claim certain.

Pretermitting all other defenses raised by defendant, plaintiff has been unsuccessful in showing just what vessels were moored to its property, and it is our opinion that the demand should be rejected as of nonsuit.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended so as to dismiss the demands of plaintiff as of nonsuit, and as thus amended the judgment is affirmed, at appellant’s cost.

Amended and affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    ST. CYR v. BOLAND.
    No. 18614.
    Court of Appeal of Louisiana. Orleans.
    March 1, 1948.
    Maurice B. Gatlin and Harry R. Hill, both of New Orleans, for plaintiff-appellant.
    Richard A. Dowling, of New Orleans, for defendant-appellee.
   McBRIDE, Judge.

Albert St. Cyr, the plaintiff, brought this suit against Daniel Boland, averring that he advanced the sum of $500.00 to Boland, and that, effective May 1, 1945, said parties began the operation of a partnership business. Plaintiff claims that he was notified by Boland, on September 5, 1946, that he, plaintiff, no longer had any interest in the business, and that Boland had possession of the business and was operating it as his own. Judgment is prayed “decreeing petitioner to be a co-partner with said Daniel Boland and owner of an undivided one-half interest in and to the business known as Orleans Avenue Cleaners, located at No. 2546% Orleans Avenue in the City of New Orleans.”

At the instance of plaintiff, a temporary restraining order was issued enjoining defendant from disposing of or encumbering the business. Defendant filed an exception of no cause or right of action as to the allegations of the petition seeking a temporary or permanent injunction. The record is silent as to any disposition of this exception.

Defendant then answered, alleging that he owns the business; he denies that any partnership arrangement was ever made with plaintiff.

The case was heard on its merits in the court below, and there was judgment in favor of defendant dismissing plaintiff’s suit, but the judgment reserved unto plaintiff the right to sue defendant “for any money loaned.” From said judgment, this appeal has been taken by plaintiff.

The cause was assigned for hearing before us, and counsel for both parties submitted briefs and argued the case.

There is no allegation in the petition setting forth the valuation of the alleged partnership business, but we notice that the evidence shows that the business in which plaintiff claims his undivided one-half partnership “is worth over $6000.00 and something.”

The bfisiness is the subject matter of this suit, and whereas the record shows it to be worth more than $6,000.00, we have no jurisdiction, under Constitution 1921, Art. 7, secs. 10, 29, which limit our jurisdiction to matters involving not more than |2,000.00, exclusive of interest.

In view of Code of Practice, Art. 92, which provides that consent cannot vest jurisdiction, an appellate court is bound to notice its lack of jurisdiction ratione ma-teriae in any case. Pawnee Land & Lumber Co. v. Guillory, 144 La. S97, 80 So. 890. We'said, in Foundation Finance Co., Inc., v. Robbins et al., La.App., 144 So. 293, 294: “This rule, * * * results from the fact that jurisdiction ratione ma-teriae cannot be created by consent of the parties. Code Prac. Art. 92. The rule would be of no effect if want of jurisdiction could not be noticed by a court ex proprio motu. * * *”

We are vested with discretion by Act No. 19 of 1912 to transfer to the Supreme Court any case in which the amount involved exceeds our maximum jurisdictional amount, and exercising such discretion we conclude that this matter should be so transferred.

It is ordered, adjudged and decreed that the appeal herein be transferred to the Supreme Court of Louisiana, which transfer is to be made within sixty days after this judgment, becomes final, and if not made within that time, then the appeal is to stand dismissed; appellant is to pay the costs of the appeal to this court, and all other costs involved are to await the final determination of the- matter.

Appeal transferred to the Supreme Court.


author: JANVIER, Judge.

text:
    McCLUNG v. DELTA SHIPBUILDING CO., Inc., et al.
    No. 18763.
    Court of Appeal of Louisiana. Orleans.
    March 1, 1948.
    Writ of Certiorari Denied March 22, 1948.
    For former opinion, see 33 So.2d 438.
    Dart, Guidry & Price, of New Orleans (Edward F. Wegmann and Henry J. Read, both of New' Orleans, of counsel), for plaintiff-appellant and appellee.
    Christovich & Kearney, of New Orleans (Mark W. Malloy, of New Orleans, of counsel), for Delta Shipbuilding Co., Inc., and Fidelity & Casualty Co. of New York, defendants and appellees.
    H. L. Hammett, of New Orleans, for Delta Shipbuilding Co., Inc., and American Motorists Ins. Co., defendants and appellants.
   JANVIER, Judge.

In their brief in support of an application for rehearing counsel for plaintiff cite two cases, Daniels v. Shreveport Producing & Refining Corporation, 151 La. 800, 92 So. 341, 342, and Reynolds v. Forcum-James Co., La.App., 158 So. 606 as authority for the view that we cannot remand this case for the introduction of further evidence tending to show what was the true condition of plaintiff when the judgment was rendered in the district court.

There is a vast distinction between evidence tending to show that when the judgment was rendered below the condition of plaintiff was not such as to. justify such a judgment and evidence tending to show that since the judgment was rendered below the condition of the plaintiff has improved or deteriorated.

In the former situation the evidence, if convincing, would show that the judgment when rendered below was incorrect, whereas in the latter situation the evidence would show that, whereas the judgment when rendered below was correct, the condition of the plaintiff has since changed. If the condition has changed since the judgment was rendered then the award may be modified only after the expiration of six months as provided in Section 20 of the statute. Act No. 20 of 1914, § 20, as amended, Act No. 85 of 1926, § 1.

In the Daniels case it was contended “that plaintiff’s wage-earning capacity has increased since the trial.” In the Reynolds case the motion to remand (made by plaintiff) was based on the statement “that the incapacity of the employee has been subsequently increased.” In neither case was it contended, in so far as the motion to remand was concerned, that the judgment when rendered did not reflect the true condition of the plaintiff.

Here it is not contended that the new evidence, the introduction of which is sought, will show that the condition of the plaintiff has changed since the trial below, but it is asserted that it will show that his condition is such that it could not possibly have been as bad as it was contended that it was at the time of the trial. If this is true and yet the defendants must wait six months before they will be permitted to ask for a modification, then for that period they will be required to make payments under a judgment which at the time it was rendered was incorrect.

In a situation in which it is contended that though the judgment when rendered may have been correct, a change in condition has since manifested itself, it is apparent that at least when the judgment was rendered it was correct. If so, then the statute provides that in order to prevent the continual repetition of attempts to modify such a judgment either party must wait at least six months.

Counsel say that the statute provides that even if a judgment is obtained through error, fraud or misrepresentation, it cannot be modified until after the expiration of six months. We think that that portion of the statute refers to a judgment which has become final. It does not mean that when a judgment is under review on appeal an appellate court may not, in its discretion, remand the matter for introduction of such evidence as may show that the judgment should not have been rendered.

A third case on which plaintiffs rely as supporting the contention that we may not remand the case for additional evidence is Black v. Louisiana Cent. Lumber Co., 161 La. 889, 109 So. 538. There the Supreme Court merely affirmed the ruling of the Court of Appeal which had refused to remand that particular case for the introduction of “additional evidence of the plaintiff’s ability to work.” Whether this evidence was to show a changed condition or what was the true condition at the time the judgment was rendered does not appear. In that case the Supreme Court referred to the Daniels case and said that it, in effect, overruled Pye v. Southwestern Gas & Electric Co., 147 La. 537, 85 So. 232, and Bourgeois v. Union Bridge & Construction Co., 149 La. 669, 90 So. 17. Those two cases, as we read them, held that a remand might be ordered even for the purpose of permitting the introduction of evidence showing a change in the condition of the plaintiff since the rendition of the judgment. In the Pye case the motion to remand was based on the statement “that the incapacity claimed * * * has entirely disappeared”. And in the Reynolds case it was contended that twenty-two days after the trial the plaintiff had secured employment.

As we read the statement in the Black case as to the overruling “in effect” of these two cases, we interpret it as meaning that where it is contended that there has been a change in the condition of the plaintiff after the rendition of the judgment but while the matter is pending on appeal, there may not be a remand for the introduction of evidence tending to show such change. Nothing in any of these cases seems to us to prevent an appellate court, in its discretion, from remanding a case in order that there may be introduced evidence tending to show that the judgment which is on review in the appellate court was incorrect when rendered in the district court.

The application for rehearing is refused.


text:
    CADE v. TAFARO et al.
    No. 18778.
    Court of Appeal of Louisiana. Orleans.
    March 1, 1948.
    Rehearing Denied March 15, 1948.
    F. Irvin Dymond, of New Orleans, for plaintiff and appellee.
    Miller & Bloch, of New Orleans, for defendant and appellant, Joseph Tafaro.
   McBRIDE, Judge.

Nenie Cade, the pliantiff and appellee, was the lessee under a month to month verbal lease of the premises 2230 Clio Street, which were owned by Joe Tafaro. On August 31, 1946, at about 9:30 o’clock, a. m., plaintiff was injured when she was struck by a plank which fell from the ceiling of the porch, and she brings this suit for damages amounting to $4,617.75 for personal injuries and the loss of certain earnings, against Tafaro, the landlord, and his public liability insurance carrier, London & Lancashire Insurance Company, Ltd.

The corporate name of the insurance carrier was incorrectly stated in the petition— its correct name is London & Lancashire Indemnity Company — and by agreement of counsel the suit was abandoned as to London & Lancashire Insurance Company, and the corporation, under its correct name, was never made a party defendant in the suit.

Joe Tafaro answered the suit denying the alleged injuries and averring that plaintiff knew of the defective condition of the ceiling and was guilty of contributory negligence, such as to bar a recovery, by reason of her continued occupancy of the premises. He further claims that he knew nothing of the defect in the ceiling and had no opportunity of learning thereof, because vicious dogs kept by plaintiff prevented his entry into the premises for the purpose of making an inspection.

An intervention was filed by the Board of Administrators of Charity Hospital of Louisiana in New Orleans, in which it is alleged that hospitalization and medical treatment to the amount of $111.75 had been furnished plaintiff as a result of her injuries, and a judgment for that amount against both plaintiff and defendants was prayed for.

This appeal has been taken by Joe Tafaro from a judgment of the lower court in favor of plaintiff for $1,000, and in favor of the intervenor, and against him, for $111.75. Plaintiff answered the appeal, praying for an increase in the award to $2,500.

There is no doubt that plaintiff suffered injuries on the date alleged. At about 9:30 o’clock in the morning she opened the blinds leading to the upstairs front porch of the leased premises, and stepped upon the porch. Just as she did so, one end of a plank in the ceiling over the porch became detached, and the loose end swung downward and struck her on the head and about the shoulders. Besides the plaintiff’s testimony regarding the occurrence, one Eddie Glenn, who was walking along the sidewalk on the far side of Clio Strec-L, opposite the leased premises, saw the board swing down from the ceiling and strike plaintiff’s head. Glenn stated that he thereupon crossed the street to plaintiff’s house and attempted to enter it to reach the upper porch, so that he could assist her. He found the front gate fastened and was never able to get into the house. However, he testified that a short time thereafter a Charity Hospital ambulance arrived and plaintiff was placed into it and taken away. That the board did break loose from the ceiling is admitted by Joe Tafaro. He testified that after being notified of the accident he visited the premises and found a board from the ceiling hanging down by one end; that it was a plank about % of an inch by 6 inches, and 12 feet long; that the height of the ceiling was 10 feet, 1 inch from the porch floor. He pulled the board entirely from the ceiling and laid it on the porch.

The difficulty in this case emanates from the unsatisfactory method employed by plaintiff in the endeavor made to prove the natu're and extent of her injuries. She relied to a great degree upon her own testimony to prove that which should have been shown by medical experts. Plaintiff testified that she remained in the Charity Hospital for sixteen days. In this she is supported by the intervention of the administrators of the hospital, which asserts that she was hospitalized for sixteen days. However, counsel for plaintiff did not see fit to summon as witnesses the five doctors who plaintiff says treated her in the hospital, nor did he offer in evidence a certified copy of the hospital record, which under the provisions of Act 90 of 1938 would have constituted prima facie proof of its contents.

Taking the record as it is, we find that plaintiff was knocked unconscious by the blow from the board. At one point in the testimony she claims that she remained unconscious for fifteen minutes, and in another statement she testified that she did not “come to” until after reaching the hospital. She remained in the hospital for sixteen days, but what treatment was accorded her, or what the findings of the hospital physicians were, we are at a loss to know. Plaintiff, a Negress 37 y4ears of age, described the treatment as follows:

“Q. What type of treatment did you receive at Charity Hospital? A. Well, they had an iron on my neck and had my bed hoisted up. They had my head in a brace and iron on the back of my neck and my bed hoisted high.
“Q. How long did you remain Under that type of treatment? A. Two weeks and a half.”

We also find many discrepancies and inconsistencies in her testimony. In the petition she claims an item of $306 for the loss of earnings. She testified that she was employed by the Central Laundry at a wage of $18 per week, and that the injuries disabled her to the extent that she could not work after the accident and lost wages to the amount claimed, calculated up to the date of the filing of the suit. On cross-examination, however, she admitted that her employment with the laundry ceased in January 1946, long before the accident on the porch.

Her petition also alleges that she had notified her landlord several times about the defective condition of the porch ceiling, but on the witness stand she testified that she did not know of the dangerous condition of the ceiling, and that her only complaint concerned the bad condition of the floor and bannister of the porch.

Plaintiff also attempted to exaggerate the circumstances surrounding the accident. To Dr. Kisner she made the statement that “the roof of a porch caved in,” and she told Dr. Maurer that the “front porch caved in on her.” The testimony of these physicians will be analyzed later.

Not long after being discharged from the hospital, we gather, plaintiff consulted her attorney regarding the institution of a suit against the landlord for damages. Evidently plaintiff's attorney made demand on behalf of his client, for counsel for both parties admitted that plaintiff was examined by two physicians, Dr. Dan Dysart Baker, the physician for defendant Tafaro’s insurer, and by Dr. Wendell Kisner, a physician acting at the instance of the attorney for plaintiff. It was agreed between counsel for each party that the insurance carrier would furnish plaintiff’s counsel with a copy of Dr. Baker’s report, and that the claim adjuster for the insurer would be given a copy of Dr. Kisner’s report.

The two physicians made their examinations, and copies of the reports were interchanged as agreed. However, another unusual circumstance occurred — -on the trial of the case below, plaintiff failed to produce Dr. Kisner, who made his examination of her at the request of her counsel, as a witness. At the trial defendant’s counsel, when Dr. Kisner did not appear as a witness, offered in evidence a copy of Dr. Kisner’s report. Plaintiff strenuously objected to the admission of the report as evidence, upon the ground that it was hearsay. The trial judge admitted the report, and considering the agreement of the parties to interchange the reports of the examining physicians, we think that the court’s ruling was correct.

The disputed report, which is dated November 6, 1946, contains among others, the following statements:

“The patient is a well developed fairly well nourished colored female. Her blood pressure is 160/90. Head: a perforated tympanic membrane of the right ear is present; no evidence of injury of the head can be found. Neck: there is some stiffness and limited range of motion of the neck in all directions. The patient complains of tenderness and pain over the spinous processes of the fifth and sixth cervical vertebráis. Thoraz: the patient complains of tenderness over the left scapula on palpation. There is a normal range of motion of the left shoulder and left upper extremity. No abnormal reflexes are present.
* * * * * *
“Diagnosis: This patient has undoubtedly suffered a severe sprain of the neck and contusion of the left shoulder. There is no evidence of fracture of the cervical spine or shoulder. There is a perforation of the right eardrum but I am not able to say how long this has been present.
* * * * * *
“P. S. This patient still has a disability as a result of her injury but this should clear up eventually. There is a tendency on the part of the patient to exaggerate her symptoms.”

Dr. Baker testified that he made his examination on September 23, 1946 (23 days after the accident), and that most of plaintiff's injuries were on the right side of the head; that there was no swelling, discoloration or marked tenderness. He stated that plaintiff complained of pain, but that there was no limitation of movement of the head, or of the upper or lower extremities.

Dr. E. H. Maurer, who made one examination of plaintiff, and that six months after the accident, appeared as her witness and testified that she complained of headache, dizziness, vertigo, and pains in the neck and right arm, which were purely subjective. He interpreted X-rays, which had been taken of plaintiff by a Dr. Ane, as showing a ruptured intervertebral disc, and stated that this condition caused neurological symptoms. His opinion was that the condition could have been caused by a blow on the head, but admitted on cross-examination that plaintiff had an arthritic condition which had probably existed for some time.

As we have stated, this whole record is unsatisfactory, and plaintiff’s testimony, to say the least, is highly suspicious. No explanation was made of the failure to call the hospital physicians as witnesses, or to produce the hospital records. Nor was Dr. Kisner, who had been employed by plaintiff’s attorney, called upon to give testimony as to his findings and opinion. But though we regard the claims and statements of Nenie Cade with suspicion, in view of her self-contradictions and exaggerations, and her failure to produce evidence which appears to have been readily accessible, the fact still remains that she was injured on the porch on the date alleged, and was immediately afterward removed to the hospital, where she remained, according to her testimony which is corroborated by the allegations of the hospital’s intervention, for sixteen days. It also appears from the testimony of the two physicians who did appear as witnesses, and from the report of Dr. Kisner, that plaintiff did show symptoms of having been injured. The record does not reflect what the diagnoses of the hospital physicians were, nor are we informed as to the nature of the treatments accorded plaintiff in the hospital. We believe that testimony from these physicians, and the reports of the hospital, would have been most helpful in arriving at a determination of the exact nature of plaintiff’s injuries, and the duration and extent thereof, and particularly whether they are permanent as plaintiff claims. In view of this, our opinion is that the lower court, who saw and heard the testimony, and had the opportunity of observing plaintiff, did substantial justice in awarding her $1,000, and there is no warrant for increasing the award as prayed for in the answer to the appeal. Much discretion is vested in the trial court in assessing damages in a case such as this.

Joe Tafaro, the landlord, is liable to plaintiff for her injuries due to the defectiveness of the leased premises. C.C. Arts. 2692-2695.

We do not find that plaintiff was guilty of contributory negligence. Her testimony is to the effect that she did not believe that the ceiling was in such bad condition that it would collapse, and under that circumstance she, as a tenant, cannot be held guilty of contributory negligence in continuing to live in the leased premises. Mitchell v. Travelers’ Indemnity Co. et al., La.App., 21 So.2d 198; Estes v. Ætna Casualty & Surety Co., La.App., 157 So. 395; White v. Juge, 176 La. 1045, 147 So, 72; Labat v. Gaerthner Realty Co., Inc., La.App., 146 So. 69; Viola v. Convery, 10 La.App. 85, 122 So. 90; Divas v. Noto, 17 La.App. 177, 134 So. 275.

There is absolutely no merit in Tafaro’s defense that his fear of the vicious d'ogs prevented his inspecting the leased premises. He admitted on cross-examination that he had never requested plaintiffs permission to enter the premises.

The allowance made to the Administrators of Charity Hospital is not at issue— on page 7 of the transcript there appears an agreement stipulated by counsel that the hospital bill is due.

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

Affirmed.


author: L. W. BROOKS, Judge ad hoc.

text:
    LAMPKIN v. KENT PILING CO., Inc.
    No. 2981.
    Court of Appeal of Louisiana. First Circuit.
    March 9, 1948.
    Rehearing Denied April 12, 1948.
    See 34 So.2d 636.
    S. S. Reid, of Amite, for appellant.
    Brumfield, Hebert & Rush, of Baton Rouge, and L. B. Ponder Jr., of Amite, for appellees.
   L. W. BROOKS, Judge ad hoc.

.Cornelia McGowen Lampkin, the widow of Frank Lampkin, in her own behalf and in behalf of her minor children, Percy Griffin, Rosa Jane Griffin and Charoline Griffin, children of her previous marriage to Charles Griffin, deceased, sued Kent Piling Company, Inc., under the Workmen’s Compensation Act, Act No. 20 of 1914, as amended, to recover compensation at the rate of $7.88 per week for a period of 300 weeks, plus $65 for burial and contingent expenses in connection therewith.

She alleged that on or about March 22, 1940, her husband, Frank Lampkin, suffered an accident within the meaning of the Workmen’s Compensation Act, resulting in his death which was due either to heart disease or cerebral hemorrhage caused directly by overexertion or excessive heat. Alternatively and in the event that the Court should find that Lampkin was suffering from a pre-existing heart condition, then she averred that the excessive heat and severe strain were the activating or contributing cause of his death.

By supplemental petition the plaintiff increased her demand for compensation from $7.88 per week to $8.19 per week and made Consolidated Underwriters, the alleged workmen’s compensation insurer of the named defendant, a party defendant.

The District Judge found that Frank Lampkin’s death was the result of an accident within the meaning of the Act and awarded compensation to the plaintiff and - against the defendant, Kent Piling Company, Inc.

No mention is made in the judgment or in the Judge’s opinion of Consolidated Underwriters and the record is not clear as to why judgment was not rendered against it also. However, since the plaintiff has not complained of this omission, the reason therefor cannot be considered by this Court.

The defendant, Kent Piling Company, Inc., appealed from the adverse judgment. The only questions before this Court are (a) whether the deceased, Frank Lampkin, suffered an accident in the course and scope of his employment within the meaning of the Workmen’s Compensation Act, and (b) if so, whether or not the award is correct, particularly as regards the payment of interest on the installments.

Frank Lampkin was 42 years old when he died. He had always enjoyed good health and there is no indication that he was suffering from heart disease or high blood pressure prior to his death. On the day of his death he reported for work at 12 noon. About 2:30 P.M. that day he was stricken while in the discharge of his duties as fireman for Kent Piling Company, Inc., and died immediately. His duties required him to fire two boilers. After reporting for work he cleaned out the fire 'box, removing the ■clinkers therefrom, which the record shows were red hot when removed. This required from three to five minutes. Thereafter, he ascended a stairway about six or seven feet above the ground and walked upon a platform which was partially enclosed and was covered with a low-hanging roof. He fed wood shavings into the furnace, using a large shovel for this purpose. Simultaneously, sawdust was fed into the furnace from the defendant’s sawmill through a chute. He was standing on the platform about three feet from the open door of the furnace with the shovel in his hand when stricken. The record does not show the temperature on the day of the accident at the point where he was standing, but when the case was tried on July •8, 1946, it was 110° F. The presumption is, of course, that the temperature in March was lower than it was in July. However, the evidence shows that when Lampkin was stricken he was perspiring. There is some conflict in- the testimony of the witnesses as to whether or not he was perspiring freely. Some witnesses testified that his body and clothing were wet with perspiration above his belt line; whereas, Mr. H. S. Dunn, plant superintendent for Kent Piling Company, Inc., testified that “It was a cold day and he just was perspiring a little, if any.”

The evidence shows that the immediate cause of Lampkin’s death was coronary sclerosis, which, we understand, is a narrowing of the blood vessel supplying the heart muscle. If this results in closure, then death results immediately; otherwise, the stricken person often survives.

Dr. L. L. Ricks of Amite, the Parish Coroner, signed the death certificate and stated that the cause of Lampkin’s death was coronary sclerosis. According to Dr. Ricks, a person may have this disease unknown to him. In his opinion, any kind of exertion or overheating of a person with this disease would cause immediate death. Dr. Sam Hobson of New Orleans, a specialist in heart diseases, attended the trial, listened to all the testimony and testified on behalf of the defendant. He expressed the opinion that Lampkin died of a coronary disease, probably a thrombosis, and that overheat was not a contributing cause of Lampkin’s death “unless it was extremely hot in the place, say around 110° or more.” On cross-examination he admitted that exertion or excessive heat could cause an occlusion and that “exertion is bad” for anyone having heart trouble.

Drs. W. Shewen Slaughter, James R. Godfrey and John T. Lewis, reputable physicians and surgeons, all of Baton Rouge, executed affidavits which were filed in the record as their testimony. Three almost identical hypothetical questions were propounded to these Doctors and they all stated that excessive heat and exertion could and probably would contribute to the death of a person suffering from heart disease. If the afflicted person had coronary sclerosis and overexerted himself or became overheated, just prior to death, these Doctors stated unequivocally that such conditions either caused or contributed to his death.

In Murray v. Mengel Co., La.App., 1942, 9 So.2d 818, 821, this Court said:

“It is now well established in our jurisprudence that, if excessive heat, heavy lifting or straining, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition, the legal requirements are present to constitute an accident, and the injury is compensable. Wright v. Louisiana Ice & Utilities Co., 19 La.App. 173, 138 So. 450; Ozbolt v. Weber-King Mfg. Co. et al., La.App., 193 So. 383; Nickelberry v. Ritchie Grocer Co. et al., 196 La. 1011, 200 So. 330.”

The District Judge found that the duties Lampkin was performing when stricken, and the excessive heat in the boiler room, contributed to his death or brought on the heart attack. We find no manifest error in his finding; in fact, it is our opinion that the combination of the strain, exertion and excessive heat brought on the fatal heart attack. Lampkin may have been suffering from heart disease before the date of his death. If so, his dependents would nevertheless be entitled to recover compensation because the aforesaid conditions certainly aggravated his condition and accelerated his death.

Learned counsel for defendant-appellant relies upon Daniels v. Union Oil Mill, Inc., La.App.2d Cir., 1935, 161 So. 614; Kirk v. E. L. Bruce Co., La.App.2d Cir., 1939, 190 So. 840, certiorari denied; Nickelberry v. Ritchie Grocer Co., 1940, 196 La. 1011, 200 So. 330; Mitchell v. Employers’ Liability Assurance Corporation, Ltd. of London, La.App.2d Cir., 1941, 5 So.2d 152, and Siscoe v. Cooley et al., La.App.2d Cir., 1942, 9 So.2d 313, certiorari denied. In each of these cases the demands of the plaintiff were rejected.

In our opinion these cases are distinguishable from the instant case.

In Daniels v. Union Oil Mill, Inc., supra, the plaintiff contended that her husband’s death was caused by becoming overheated and by overexerting himself while performing his regular duties for defendant. The Court found, however, that the day was not -shown to have been unusually warm for the time of year and there was no proof in the record to show the cause of the death of the deceased.

In Kirk v. E. L. Bruce Co., supra, the claim was also made that the deceased’s death was due to overexertion and undue strain in his efforts to do his work which brought on exhaustion and heart failure. The testimony, however, showed that the deceased, who was apparently in good health and whose duties were of a supervisory nature, had not overexerted himself. When he was stricken, he was seated on a log giving instructions to workmen under him. The Court stated that the minor exertion by him the morning of his death was less than his customary exertion daily in operating loading machinery which was concededly light work.

In Nickelberry v. Ritchie Grocer Co. et al., supra, the plaintiff did not allege or claim that the falling of a beam or the lifting of heavy objects at the time of the alleged accident caused injury to his heart or accelerated a pre-existing heart condition. After reviewing the medical testimony, the Supreme Court said [196 La. 10, 11, 200 So.2d 333]:

“All the physicians who testified in the case concur in the conclusion that plaintiff’s condition is the result of the progress-of the orginal disease, the beginning of which- possibly dates back a year or more-
‘.‘The case therefore presents a situation where the plaintiff admittedly is suffering from a disease of the heart. When the disease began, what was its origin, and the rapidity with which it has progressed, are all matters of pure speculation. The mere fact that a workman develops heart disease while employed by another does not entitle him to compensation. The employer is not the insurer of his employees. There must be an accident to furnish the basis of any such claim, that is to say, something sudden, undesigned or unexpected and that accident must either cause or aggravate the disease which is the cause of the disability.”

In Mitchell v. Employers’ Liability Assurance Corporation, Ltd., of London, supra [5 So.2d 153], the deceased’s death was caused by the rupture of a duodenal ulcer of a progressive nature and of long standing. On the day of the alleged accident the deceased was sitting down near a work bench at the site of his employment and complained of pain in his stomach. He was given a dose of soda and possibly some medicine and then sent in an ambulance to get his tools. After reaching the place where his tools were kept, he was severely stricken with a stomach ailment. An ambulance was again called, and he was carried to the first aid department, which sent him to a charity hospital, where he was operated on and later died. The Court observed that according to the medical testimony the rupture did not occur until a short time before the ambulance was called to carry the deceased to the charity hospital ; that, moreover, the medical testimony was convincing that whenever a rupture occurs it causes immediate shock and severe pain and that it would have been impossible for deceased to continue any kind of work after such an attack. Therefore, the Court said it is certain that the deceased did not receive an injury while working for his employer on the morning of the alleged accident. However, the Court recognized the rule that “If the rupture had occurred while deceased was in a strained position prying off a plank or while he was carrying a heavy piece of timber, the doctrine laid down in the case of Fleda Jackson v. Traveler’s Insurance Company, La.App., 151 So. 790; Id., 180 La. 43, 156 So. 169, and Renfrew v. Caddo, Parish Police Jury, La.App., 155 So. 291, and other cases holding the same might apply; but since the rupture did not occur at such a time they are not applicable.”

In Siscoe v. Cooley et al., supra [9 So.2d 314], it was contended that Otis L. Siscoe, plaintiff’s husband, died while in the discharge of his duties as an employee of Monroe Steam Laundry. He was 56 years old and employed as an engineer with the Laundry. His duties were primarily supervisory. However, during the day on which he was stricken he had done some manual labor such as removing rust from a boiler arid painting. Shortly before 2 o’clock he ceased painting, walked into a room and ten minutes later was found in a helpless condition, lying on the floor next to the marking machine. He breathed deeply three times and then expired. A physician who arrived a few minutes later concluded that the deceased died from heart disease. In denying the plaintiff compensation the Court said that it did not appear that the decedent exerted any physicial efforts in connection with the employment which could have aggravated the heart ailment and accelerated his death. He was performing no heavy work and it was not clearly shown that he endured excessive heat while discharging his duties. However, the Court recognized the rule that “if excessive heat, or heavy lifting, or straining, although usual and customary, causes or contributes to a 'physical breakdown or accelerates its happening, the legal requirements necessary to constitute an accident are present and such cases are com-pensable.” Compensation was denied because there was no causal connection between the employment and the death.

The record shows that Cornelia McGowen Lampkin and Frank Lampkin were legally married and that the latter was supporting his three stepchildren in a home common to all of them. Percy Griffin was born on October 8, 1922 and, therefore, became 18 years old on October 8, 1940. Rosa Jane Griffin was born on August 7, 1924 and was married on October 6, 1941. Charoline Griffin was born on August 24, 1926 and was married on October 6, 1942. Under the Workmen’s Compensation Act a child’s dependency ceases when that child reaches the age of 18 years unless he is physically or mentally incapacitated from earning. Section 8, subd. 2(D). Act No. 242 of 1928, p. 359. There is no evidence of physical or mental incapacity of Percy Griffin. Hence, he ceased to be a dependent on October 8, 1940. The marriage of a dependent also terminates payments to such dependent. Section 8, subd. 2(F). Hence, Rosa Jane Griffin could not be considered a dependent after October 6, 1941 and Charoline Griffin could not be considered a dependent after October 6, 1942.

“Payment to such dependents shall be computed and divided among them on the following basis.
“1. If the widow or widower alone, thirty-two and one-half per centum of wages.
“2. If widow or widower and one child, forty-six and one-quarter per centum of wages.
“3. If widow or widower and two or more children, sixty-five per centum of wages.
“ * * Section 8, subd. 2(E)

The plaintiff’s wages were $12.60 per week. Therefore, the widow is entitled to recover for herself and for the use and benefit of her children $8.19 (65% of $12.60) per week from March 22, 1940, until October 6, 1941, and $5.83 (46%% of $12.60) per week from October 7, 1941, to October 6, 1942, and for hers.elf alone $4.10 (32%% of $12.60) per week from October 7, 1942, during a maximum period of 300 weeks from March 22, 1940. Each of said installments shall bear interest at the rate of 5% per annum from its maturity until paid. The widow is also entitled to recover $65 for burial expenses. As this finding is slightly different from the judgment of the District Court, the said judgment is amended accordingly. As thus amended, the judgment is affirmed at the cost of defendant-appellant.

Judgment amended and affirmed.

ELLIS, J., recused.


text:
    HAYNES v. LOFFLAND BROS. CO. et al.
    No. 18786.
    Court of Appeal of Louisiana. Orleans.
    March 1, 1948.
    Rehearing Denied March 15, 1948.
    Writ of Certiorari Granted April 26, 1948.
    Fred G. Benton and Wilson B. Hol-combe, both of Baton Rouge, for appellant.
    St. Clair Adams & Son, of New Orleans (P. A. Bienvenu, of New Orleans, of counsel), for appellees.
   JANVIER, Judge.

This suit, under the Workmen’s Compensation Laws of Louisiana, Act 20 of 1914 as amended, is brought on behalf of a minor, Billy Louis Thomas, by his mother, who is now Mrs. Viola Geffert Haynes. The defendants are Loffland Brothers Company and Insurors Indemnity and Insurance Company, the former the employer of the deceased employee at the time of his death, and the latter the insurers of the said employer.

The suit is based on the death of the father of the minor while he was in the employ of Loffland Brothers, the death resulting from an accident which occurred in the course of and arose out of his employment in the hazardous business -of his employer. The accident and the ensuing death occurred on August 12, 1945.

The sole defense is based on the fact, which is not in dispute, that the child was not living with the father at the time of the father’s death, and was not receiving support from the father at that time.

There was judgment dismissing the suit and plaintiff has appealed.

As we have said, the facts are not in dispute in any essential detail. The father, Louis F. Thomas, and the mother, now Mrs. Viola Geffert Haynes, were married in 1937. The minor, Billy Louis Thomas, was born to these parents on June 13, 1939. The parents were divorced in January, 1941, and under the terms of the decree of divorce the custody of the minor was awarded to the mother, and the father was ordered to pay to the mother, for the support of the minor, $15 per month. The mother has retained custody of the minor ever since that time. From the time of the divorce until the death of the father the child never lived with the father and no contribution for his support was made by the father.

The mother, in an attempt to communicate with the father, shortly after the divorce, in order to persuade or force him to contribute to the support of the child, wrote to his brother and his mother several times, but, she says, that she “could not find out where he was.” He entered the Military Service of the United States and she went to the Army Base at which she heard he had been stationed, but says that he had been moved to another post, and she, therefore, wrote more letters to his mother and to his brother and finally obtained, what she thought was correct information to the effect that he had been sent overseas with the armed forces and was reported missing in action.

This information was not correct as she discovered when, at about Christmas time 1944, the father came to see the child at her mother’s house. During that visit she asked the father to comply with his obligation to contribute to the support of the child the amount called for by the divorce decree, and she says that “He agreed with my mother that he would start sending the baby money to support him.” He did not keep this promise but, according to the wife, “wrote me a nasty letter.”

On the recommendation of her lawyer the mother appeared before the Grand Jury of DeWitt County, Texas, and obtained from that body an indictment against the father for nonsupport. This was on June 26th, 1945. This indictment had no effect. He failed to contribute to the support of his child and was killed in the course of his employment one month and a half later, on August 12, 1945.

The record shows conclusively that the mother found it very difficult to support the child and, as a matter of fact, the child, at all times, remained in great need of support from his father.

It thus appears that from the time of the divorce until the death of the father, the mother exerted all reasonable effort to force the father to provide financial aid for the support of the child, and that during all that time it was not only the natural duty of the father to do so, but it was made doubly his legal duty by the divorce decree and, later, by the indictment of the Grand Jury.

Under such circumstances what liability, if any, in favor of the child, is placed upon the employer and the employer’s insurers by the Louisiana Workmen’s Compensation Laws?

The statute, in Section 8, subsection 2, provides that there shall be paid to the legal dependents “actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided, for a period of three hundred weeks * * Act No. 242 of 1928, p. 358. The statute also provides that there is a conclusive presumption of dependency in favor of children living with the father, but in paragraph “D” of the same subsection of Section 8, it is provided that “in all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death; * *

The child was not living with the father, consequently, there is no presumption that he was dependent upon the father and the question of dependency must be determined “in accordance with the facts * *

Our attention is further directed to another provision which appears in an amendment to the statute, made by Act 85 of 1926, in which it is provided that:

"In all cases provided for under this Section the relation or dependency must exist at the time of the accident and at the time of death, and the mere expectation or hope of future contributions to the support of an alleged dependent by an employee, shall not constitute proof of dependency as a fact.” § 8, subd. I, p. 118.

Counsel for plaintiff insist that, under these various provisions, the necessary dependency is shown where the child has actual need, and there is also shown' the legal obligation to provide support and, that this is particularly true, where those in charge of the child are shown to have exerted all reasonable effort to force the parent to comply with this obligation.

Counsel for defendants, on the other hand, maintain that the necessary dependency is not shown' unless it appears that prior to the death of the parent there had been actual contribution to the support of the child. They say that, regardless of the need and of the l«gal obligation and of the efforts made to force contribution for the prior support of the child, unless there were actual contributions, there can be no judgment for compensation.

There is no doubt in our minds that prior to'the enactment of the amendment of 1926, the statute, with its amendments up to that time, had been interpreted as counsel for plaintiff would have us interpret it now.

We have several cases in mind. On Gregory v. Standard Oil Company of Louisiana, 151 La. 228, 91 So. 717, plaintiff places great reliance. In' that case, a father and a mother brought suit to recover compensation for the death of a seventeen year old son. They were “in needy circumstances”, but prior to his death the son had not made any “contributions” to them nor given them “pecuniary aid”. He had left home “promising” to send them some of his monthly wages, but had been killed while at work. '

The Supreme Court held that, nevertheless, the parents were actually dependent upon the son and that, therefore, they were entitled to compensation for his death. But at that time the statute had not been amended by the Act of 1926, and all that was required was that “the relation or dependency must exist at the time of the accident and at the time of death.” See sub-paragraph “n” of paragraph 2 of Section 8 of Act 247 of 1920, p. 472.

We have no doubt that as a result of the Gregory case, which was decided by the Supreme Court in 1922, the Legislature, in 1926, enacted Act 85, in which that provision was amended, so that now it is required that unless there is a conclusive presumption of dependency, as in the case of a wife and children living with the father, dependency must be proven to have existed “at the time of the accident and at the time of death, and the mere expectation or hope of future contributions * * * shall not constitute proof of dependency as a fact.”

In Bradley v. Swift & Company and Balthazar v. Swift & Co., 10 La.App. 25, 119 So. 906, 120 So. 896, we held that a father, who had never been financially aided by his son, could, nevertheless, recover compensation for the death of the son because, under Article 229 of our Civil Code, a son is under the legal duty to contribute to the support of a parent in need, and, therefore, had the son not been killed the father would have continued to have the expectation that the son would comply with his moral and legal obligation and contribute to the support of the father.

But here too was a case in which the accident and death occurred prior to the enactment of the amendment of 1926.

Since the amendment we feel that the situation is quite different and, that, however great the need may be, there can be no recovery unless there is shown, not only the legal duty to contribute, but also the fact that actual contributions have been made.

Miss Mayer, in her excellent work entitled. “Workmen’s Compensation Law in Louisiana”, seems to hold a, different view. On page 108 of that book, as revised through December, 1936, she refers to the Gregory case and also to the Swift case and, in a note, says that the Act of 1926 “is a rephrasing of the clause existing at the time the Gregory case was decided”. She then adds:

“Whether this addition works any change in the law under the Gregory case has never been passed on by the Court. In' view of Act 229 of the Civil Code, proof of necessitous circumstances would seem to be tantamount to dependency whether actual contribution be made or not.”

A case, in which the facts are almost identical with those before us, is Moy et al. v. Schuylkill Products Company et al., 209 La. 782, 25 So.2d 542, 543. The essential facts here are so nearly the same as those found in that case, that that decision, if not controlling here is, at least, most persuasive.

There, a wife and two minor children sought recovery in compensation for the death of the husband and father. The Court found that the father had not been living with the wife and the children and that, therefore, there was no conclusive presumption of dependency. The Court then investigated the evidence as to whether dependency had been shown by proof of the fact that the father, prior to his death, had been actually contributing to the support of the wife and children, and said that apparently the father and husband had failed to contribute to their support, and then the Court said, we think very clearly, that only by showing that the wife had actually “coerced” the husband into making contributions to their support, could the necessary dependency be shown.

“However unfair it may seem that these unfortunate children1 should be made to continue suffering because of the unworthiness of their father, simply because their mother or some one else on their behalf did not coerce him by means of legal proceedings to fulfill the duties legally imposed upon him as their father, our lawmakers did not provide for such a case under our compensation law and we are powerless to prevent the perpetuation of this injustice that has been brought upon them through no fault of theirs and that must, in the future, be continued in similar instances until the legislature, in its wisdom, may see fit to correct the same, since this is a matter that falls exclusively within the province of that branch of our government.”

We note the use of the word “coerce” and think that it connotes more than an unsuccessful effort to force a result. In other words, the Court did not mean that it will be sufficient if an attempt is made to force the husband or father to contribute. What it clearly means is that actual dependency is not shown by the mere effort to make the husband or father contribute. The attempt must produce the result and there must actually be the receipt of support or the dependency, which is necessary, is not shown, and when we again direct our attention to the amendment of the statute, does it not appear that that is actually what it expressly requires. It requires that there must not only be “legal dependency,” which we understand to mean the right to demand support, but that there must also 'be “actual dependency,” which we understand to mean that there must be a showing of the actual receipt of support. And when we couple this with the further requirement that “the mere expectation or hope of future contributions” shall not be sufficient, does it not become absolutely clear that there is no dependency shown except by proof that prior support was actually received.

The latest expression emanating from one of the Courts of this State concerning the question of whether need is sufficient to establish dependency where no actual contributions have been made, appears in Slaughter v. Liberty Mutual Insurance Company, La.App., 33 So.2d 86, 87, in which a wife, who, for many years, had been regularly supported by her husband, was abandoned by him. The Court found that for a year or two prior to the time at which he was killed he had not made any contributions to his wife’s support, though she obviously was in desperate need of financial assistance. The Court said: men’s Compensation' Law lay down the rule that where the wife was living with her husband at the time of the accident and death, a conclusive presumption arises that she was wholly and' actually dependent upon him for support, but the law (par. D) goes farther and declares that in all other cases ‘the question .of legal and actual dependency in whole or part, shall be determined in accordance with the facts as they may be at the time of the accident and death.’ The weakness of this law lies in the fact that a husband, with impunity, may choose and follow a course that makes it impossible, in the event of his death, for his abandoned wife (widow) to hold his employer responsible for payment of compensation that otherwise she could demand and receive.

“Sub-section 2, paragraphs (A), (D) and (K) of Section 8 of the Workmen’s Compensation Law, Act No. 20 of 1914, as amended by Act No. 242 of 1928, pp. 359, 361, is the law that controls in this case and is the law that the lower court applied to the facts. These provisions of the Work-
“The trial judge, with deep feelings of regret, was, in view of the prevailing provisions of the Workmen’s Compensation Law, reluctantly forced to deny to plaintiff the relief sought by her. He pertinently observed, as did the Supreme Court in Moy v. Schuylkill Products Company, et al., 209 La. 782, 25 So.2d 542, 543, that the weakness of the law was a matter that addressed itself to the Legislative branch of the state government for attention, and not to the Judiciary.”

In Edwards v. Standard Gin & Mfg. Co., 12 La.App. 153, 125 So. 593, our Brothers of the Second Circuit considered facts which presented the legal question now under consideration. A mother and father sought compensation for the death of a son on the ground that they had been dependent upon him for support. Several years before his death the son had contributed “something” to the support of his parents but, for at least two years prior to his death, he had made no contribution. The attention of the Court was called to our decision in Balthazar v. Swift, supra, and apparently it was argued that since there might have arisen the obligation in the son to support his aged parents, the necessary dependency was shown. The court “questioned” the correctness of our opinion in the Balthazar case, but said that even if that decision was, in fact, correct, the law that we had there applied had been changed by the amendment of 1926 (Act 85), and held that, under that amendment, it must be shown that actual prior contributions were made or the claim of dependency must fail.

We see no distinction here between the facts of this case and those there considered except .that here the wife did exert all reasonable effort to “coerce” the father into contributing’ to the support of the minor. It is unfortunate that she was not successful, but we think that the law is plain that since she was not successful, in other words, since there were no contributions, the necessary dependency has not been shown.

We cannot do more for the minor than the law seems to us to warrant.

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

Affirmed


author: DORE, Judge.

text:
    CUCCHIARA et ux. v. ROBINSON et al.
    No. 2987.
    Court of Appeal of Louisiana. First Circuit.
    March 9, 1948.
    Rehearing Denied April 12, 1948.

      Ponder & Ponder, of Amite, for appellants.
    Reid & Reid and Jos. M. Blache, Jr., all of Hammond, for appellees.
   DORE, Judge.

Plaintiffs, husband and -wife, brought this suit against Mrs. Evelyn N. Robinson and her husband, John M. Robinson, seeking by mandatory injunction to have these defendants remove any obstructions such as hedgerows or fences that they have upon an alleged public street in the City of Hammond. In the suit, they further seek mandatory injunction against the City of Hammond ordering and commanding the said city to open the said alleged street for a width of 60 feet.

The defendant City of Hammond filed an answer to plaintiffs’ demand in the nature of a general denial. The defendants Robin-sons filed exceptions of no right and of no cause of action. These exceptions were sustained by a written judgment on June 30, 1947. Thereafter, on September 30, 1947, the City of Hammond likewise filed an exception of no right or cause of action. This exception was argued and submitted, and on October 24, 1947, according to the minutes, the exception ' was maintained. However, there is no signed judgment sustaining the exception. Plaintiffs have appealed from the judgment in favor of the Robinsons of date of June 30, 1947. Therefore we are concerned, on this appeal, only with the correctness of this judgment.

In determining the question of whether or not plaintiffs’ petition discloses a cause or right of action, all well pleaded facts contained in the said petition are to be taken as proved. In the petition it is alleged that plaintiffs are the owners of a certain lot or parcel of land in the City of Hammond containing 5.27 acres; that the said lot or parcel of land forms Block 156 of Cate’s Addition to the City of Hammond; that a map of said subdivision was duly recorded in the Conveyance Records of the Parish of Tangipahoa and was adopted, recognized and declared to be the official map of said Cate’s Addition by the City of Hammond by an ordinance duly adopted and recorded in the Conveyance Records of the Parish of Tangipahoa; that the said map shows that there was a dedication to the public for public good and public purposes a certain Robert Street measuring 60 feet in width running in a westerly direction between and dividing blocks 155 and 156, extending to the western limits of the said blocks; that the said street is now open and improved by the City of Hammond up to the eastern limits of the said blocks 155 and 156; that the defendants, Mrs. Evelyn N. Robinson and or her husband, John M. Robinson, are the owners of Block 155 of the said Cate’s Addition to the City of Hammond, and, as such, have hedgerows as fences across and are claiming a part of the said Robert Street; that plaintiffs have subdivided Block 156 into lots fronting onto Robert Street, but they have been unable to sell any of these lots or have access for use of their property due to defendants Robin-sons claiming part or all of the said Robert Street separating blocks 155 and 156 and the obstructions placed across the said street by the said defendants.

. In the case of Kemp v. Town of Independence, La.App., 156 So. 56, we held that the recordation of a plan or plat of land and the acceptance thereof by a municipality was sufficient dedication to recognize the ownership of streets so dedicated to the said municipality, and that such streets so dedicated were from the moment of dedication out of commerce and not subject to individual or private ownership and the form of dedication is of no consequence. We further held that “where the land is dedicated, as a street, for public purposes * * *, from the moment of the dedication, the owner is completely and irrevocably divested of his title thereto and the title thereupon is vested in the public for common use, as are public thing’s, under the provisions of Article 454, C.C. and which are subject to the administration of cities, towns, villages, or municipalities where such streets happen to be situated.”

Under the facts as alleged, in this case, and in accordance with our holding in the Kemp case, supra, and the cases therein cited, we are firm in the conclusion that the strip of land on Robert Street through its whole length, necessarily including its portion dividing Blocks 155 and 156, has been dedicated to public use.

In oral argument and in brief, defendants Robinsons’ sole contention is that it rests solely within the discretion of the City of Hammond as to when a street should be opened. In other words, that the control of the streets of the City of Hammond is vested in the Commission Council of that city. In effect, they challenge the right of plaintiffs to maintain the suit to cause obstructions to be removed from a public street. It may be true that the control of the streets of the City of Hammond is vested in the Commission Council of that city and that it lies solely in the discretion of that council as to the opening of a street, yet the fact remains that Robert Street is well laid off on the official map of the Cate’s Addition, which it is alleged has been recorded and accepted by ordinance of the City of Hammond. It does not lie within the province of the defendant to champion the defense of the City of Hammond. However, it is now settled that a private person can maintain a suit to cause obstructions to be removed from a public street whenever he shows some injury peculiar to himself. Howcott v. Ruddock-Orleans Cypress Co., 146 La. 318, 83 So. 586, and the cases therein cited. In this case, plaintiff has alleged some injury peculiar to himself, and has the right to prove it.

The exceptions of the defendants, Robin-sons, should have been overruled.

For these reasons, the judgment appealed from is annulled, reversed and set aside. The exceptions are overruled, and this case is hereby remanded to the lower court for further proceedings; the costs of this appeal to be paid by defendants-appellees, and all other costs to await the final termination of the case.


author: LeBLAN C, Judge.

text:
    WATSON v. YOUNG et al.
    No. 2985.
    Court of Appeal of Louisiana. First Circuit.
    March 9, 1948.

      Ponder & Ponder, of Amite, for appellant.
    S. S. Reid and F. E. Burch, both of Amite, for appellees.
   LeBLAN C, Judge.

On April 11, 1946 Mrs. Nancy Sylina Young Hardy executed a last will and testament in olographic form in which she bequeathed to her nephew, William Iverson Watson, plaintiff in this proceeding, all the property she died possessed of and appointed him executor without bond.

Mrs. Hardy, the testatrix, died at her residence in the Parish of St. Helena on November 8, 1946. On January 9, 1947, the legatee under the will petitioned the district court for probate thereof. The will was duly probated and the legatee appointed executor in accordance with its terms as is shown by an order of court dated January 17, 1947. An inventory of the assets of the succession showed that the principal item was real estate consisting of 100 acres of land in Sec. 48, T. 4 S., R. 6 E., in the Parish of St. Helena which wa9 appraised at the sum of $1,000. Movable property consisting of livestock, farming tools and household furniture was appraised at the sum of $325.

Shortly before all of this had taken place, that is, on November 20, 1946, Tom E. Young, one of the defendants in this proceeding, had presented the district court with a last will and testament in the non-cupative form by public act, appearing to have been made by Mrs. Hardy on November 4, 1946, in which he was made the residuary legatee of her estate. In his petition he had asked that the will be probated and that he be appointed testamentary executor. On the same day an order was issued by the court homologating that will and on December 9, 1946 on petition of the said Tom E. Young, of Dinah Warner, Buddy Warner and Mrs. Laura Watson to be recognized as legatees thereunder and sent in possession of their respective legacies, judgment was signed so recognizing them.

The judgment of court sent them in possession, each in his or her respective share of the same land which had been bequeathed to the legatee under the will of April 11, 1946, and the purpose of this suit which has been instituted by that legatee is to have the will of November 4, 1946, declared null, void and of no effect and also to have the will of April 11, 1946 recognized as being- valid and that he be recognized under the said last will as the owner of all property left by the decedent at her death.

The grounds on which the will of November 4, 1946 is attacked are the following: (1) That the same was not dictated by the testatrix to the Notary before whom it was executed a9 is required by Article 1578 of the Revised Civil Code, but on the contrary that the Notary wrote the formal portion of the said will and then he wrote the disposing portion from a written memorandum handed to him before or at the time of the making of the said will by a third person; (2) that at the time of the signing of the said will, the testatrix did not have the mental capacity to understand what was transpiring and she did not have the physical capacity to dictate the said will as required under Article 1578 of the Civil Code; (3) that while the said will was being written by the Notary, and immediately before and after, the testatrix uttered no word whatever as she was physically unable to speak at that time; and (4) that when requested to sign the said purported will the testatrix did not understand what she attempted to sign, and that she was held in a sitting position by others and was assisted in placing her signature to the said document.

To the plaintiffs petition, all the legatees made defendants appeared, and in a joint answer denied all of the allegations made by the plaintiff and affirmatively averred that the will of November 4, 1.946, executed before Charles C. Reeves, Clerk of Court of the Parish of St. Helena, under which they were made legatees, is valid and legal in every respect; that it revoked all former wills and consequently all the proceedings of probate attempted to be carried on under the will of April 11, 1946 are null and void and of no effect and should be erased from the records of the court. Further answering the defendants alleged that the plaintiff was fully aware of the validity of the proceedings taken for the probate of the decedent’s last will and testament and despite his knowledge has persisted in having a will which had been revoked probated, all of which caused expense and inconvenience to them for which they are entitled to recover the sum of $100 in reconvention against the plaintiff, as well as the further sum of $100 for attorney’s fees in defending this proceeding.

Upon trial of the case on the issues as thus made up, the district judge rendered judgment in favor of the plaintiff, decreeing the nullity of the purported last will and testament dated November 4, 1946 and recognizing the validity of the will dated April 11, 1946. The judgjnent further reserved to the plaintiff the right to claim from any of the purported legatees under the said will of November 4, 1946, any of the property belonging to this succession and in the event that it be not returned in kind he be reserved the right to claim the value thereof. The judgment rendered was signed in open court in the Parish of Tangipahoa on November 25, 1947, presumably by an agreement between counsel, and provides that the Clerk of Court of the Parish of St. Helena be notified of the decision of the court. The agreement apparently further provided that the court couíd grant an order of appeal to the party or parties aggrieved by the judgment.

On December 8, 1947 as appears from an extract of the minutes of the court an order was issued as follows: “Let order of appeal be granted to party cast in this-case upon furnishing bond as required by law returnable to Court of Appeal on- or before January 2, 1948.” On December 19, 1947 Tom E. Young, one of the defendants, filed a bond in the sum of $250 for a devolutive appeal.

Motion to Dismiss Appeal

The transcript of appeal was lodged in this court and the case was fixed for argument on the docket for February 3, 1948. On that day counsel for the appellee filed a written motion to dismiss the appeal on the ground that the judgment not being a monied judgment, the amount of the bond had to be fixed in the order of appeal if the appeal is considered as suspensive, and this the order does not do and, that if, on the other hand, the appeal is considered devolutive, it was likewise necessary for the court to fix the amount of bond and no such amount was fixed in the order granted.

Counsel for appellee resists the motion to dismiss on the ground that it was filed too late. He contends that the motion should have been filed within three days after the filing of the transcript in the Court of Appeal as otherwise the right to have the appeal dismissed is waived.

There are numerous decisions on the point involved and as we read them it seems that there is a difference in following the strict provisions of the three day limit, depending on whether the motion to dismiss is one which strikes at the very life or the basis of the appeal, or one which, attacks the appeal on the ground of some irregularity in the order granting it or in. the bond furnished by the appellant or some-other matters relating to the appeal. If the motion to dismiss is based on the right, of appeal itself either because the court is. without jurisdiction or the judgment is. one that is not appealable, the decisions-hold that the three day limit does not apply and that the motion to dismiss may be filed after that period. On the other hand if the motion is based on some in-formalities or irregularities in the order of appeal the decisions are to the effect that it must be filed within three days after the return date.

In this case as already stated the motion to dismiss is based on the ground that the order of appeal does not fix the amount •of the appeal bond and in that connection we find a case decided by the Court of Appeal of Orleans Parish passing on this •exact point and holding that the motion to dismiss based on the same ground as the one here urged, and which was filed several months after the transcript had been filed came too late. That is the case •of Power v. Christina, 7 La.App. 651. The ■situation presented was strikingly similar to the one we have before us as the •order of appeal merely granted a suspensive appeal to the defendant, returnable on a certain day “upon furnishing bond with good and solvent securities in accordance with law.” The judgment not having been •one for money, it was necessary that the court should have fixed the amount of the bond and the motion to dismiss was based on that omission. In discussing the proposition the Court of Appeal cited a host of cases showing the difference in matters of this kind where the motion has to be filed within three days after the transcript, is filed and those where it may be filed at a later date. In discussing the situation as presented before it, the court stated: “It cannot be said that the appellant had no •order of appeal, for the order is there. All that can be said is that the order contains an error or omission in not fixing the amount of the bond. That error or omission is protected by the prescription •of three days in accordance with the authority quoted above.”

In the case of Coreil v. Town of Welsh, 120 La. 557, 558, 45 So. 438, one of the grounds on which the motion to dismiss was based was that the appeal bond was illegal, being for an amount alleged to have been less than the law required. In disposing of that ground the court stated: “The alleged illegality of the appeal bond, it is easily disposed of; for it is settled that a motion to dismiss for informality in the appeal bond, insufficiency of the bond, or irregularity in the order of the appeal, or want of the latter, must be filed within three days after the record is filed.”

The case of State v. Callac, 45 La.Ann. 27, 12 So. 119, is cited and on examination we find that it contains language almost similar to that just quoted.

In Haydel et al. v. Major, La.App., 19 So.2d 628, the Court of Appeal of Orleans Parish again had a similar motion under consideration. In that case the motion to dismiss the appeal was sustained. It was based on the proposition that in as much as the appeal had been taken during a term of court subsequent to the one in -which the judgment was rendered, omission to pray for citation of appeal, or to cause the appellee to be cited was fatal to the appeal. The court in that case held that citation of the appeal was necessary to the appeal and that jurisdiction of the appellate court could not attach to the person of the appellee until citation had been issued and served. In discussing the question at issue the court again made the distinction between those cases where the motion strikes at the foundation or the right of appeal and those where it relates to some informality in connection with the order of appeal or the bond for appeal, and the reason that it sustained the motion to dismiss was because the matter involved was one which affected the very right of appeal or the jurisdiction itself of the appellate court.

We are satisfied that in the case before us, under the decisions cited, the motion to dismiss, having been filed two weeks after the transcript had been lodged in this court, it was filed too late and consequently it is hereby overruled.

On the Merits

On the merits of the case we are concerned with a question of fact on which we are to determine whether in the execution of the will that is attacked, the requirements of Article 1578, R.C.C., were complied with.

That Article relates to noncupative wills by public act and it provides that such a will must be received by a Notary Public in the presence of witnesses and moreover that it must be “dictated by the testator, and written by the notary as it is dictated.” It is with this last requirement that we are particularly concerned in the case.

This testatrix had made her last will and testament on April 11, 1946, seven months preceding the time when the will that is under attack was executed. The first will was in olographic form and there seems to be no question but what it was properly drawn and is a perfectly valid will unless it was revoked by the later will. There is no suggestion on the part of any one that at the time she made the will in April, 1946, the testatrix was not in sound health with the possible exception of a heart ailment. There is nothing whatever to indicate that she was prompted by any other motive but her own in having made that will.

The circumstances under which the will of November 4, 1946 was made were entirely different. At that time she was apparently in a serious condition physically as she died only four days later. The testimony leaves us with the impression that the suggestion to make a new will did not come from her but was prompted by someone else. She evidently was too feeble to write a will herself and that is why it became necessary to have one drawn in noncupative form by pirblic act. The Notary who drew up the will was the Clerk of Court of the parish and he was also one of her nephews. Word reached him on the morning of the date of the will that he was wanted at the home of the testatrix for the purpose of having it executed. The message appears to have been either given or sent to hjim by Mrs. Annie Reeves Morgan, his sister, a niece of the testatrix, and also of the principal legatee under the will, Tom E. Young.

There were several people at the house of the testatrix when the Notary arrived. He testified that he spoke to his aunt and told her he understood she wanted him to prepare her will and she told him that she did. He thought she was in physical and mental condition to do so and no one seems to. dispute the fact that he was perfectly honest and sincere in all that he says and did. After speaking to her and finding out that she wanted him to. prepare the will he brought his typewriter in the room and placed it on a table next to the bed where she lay. He prepared the formal part of the will and then he says some one handed him a slip of paper on which he found written the various bequests she wanted to make. He says he does not recall who gave him that slip of paper but we feel satisfied that what he wanted to say was that it was given to' him by some one other than the testatrix herself and that it was not written by her. After receiving the slip of paper he says that he asked the testatrix if that was-what she wanted to put in the will and' that she said yes. He then copied into the disposing portion of the will what was written on that paper. He then finished writing the remaining part of the will and read the whole of it before the witnesses who had been summoned and presented it to the testatrix for her signature. He says that she was able to sign and although some one attempted to help her in doing so she would not let them.

A part of the testimony of the Notary is contradicted by the testimony of several of the other witnesses, especially that part wherein he said' he asked the testatrix if what was contained on the slip of paper expressed her wishes and she said yes, also that he read the will over to her and asked her if that was her will and she again said that that was what she wanted and also to that part which relates to her signing the will. Several witnesses testified that this lady was so weak that she had to be propped up with several pillows and that she could not even finish signing her name. Although as we have said,, he did not seem to remember who had handed him the slip of paper on which the bequests were written, it is shown by the testimony of Mrs. Morgan herself that she is the one who had written them although she says she did so at the request of the testatrix.

We think therefore that we can accept as the facts in the case that this old lady was very feeble and that she certainly did not dictate the will to the Notary in so many words and that all he did was to copy from this slip of paper what he found written in the hand of another person and that at most he asked the testatrix if that was what she wanted and she said yes. Under those facts we ■don’t think that there was a compliance with the formalities and the requirements of Article 1578 of the Code which prescribes that the “testament must be dictated by the testator, and written by the notary as it is dictated.” We are aware that there are some decisions of the Supreme Court holding that under certain .situations and facts under which such a will was drawn, even though there was not an absolute compliance with the letter of the law itself, the substantial compliance found was held to be sufficient. Such a case is Succession of Beattie, 163 La. 831, 112 So. 802, in which it was shown to the court that the testatrix had in effect dictated her will to the Notary who made mental notes thereof and then reduced them to writing in the will itself. The verbiage used by him may not have been her exact words but in as much as it substantially conveyed the wishes she had expressed, it was held that there was ■sufficient compliance with the requirements •of the law with regard to the dictation and the will was upheld. That case is the one relied on principally by the defendants who are trying to uphold the will in this case. 'We believe however that the facts are different because in that case the testatrix did .speak to the Notary herself and expressed ■orally to him her wishes in regard to her bequests whereas in this case the Notary merely copied what was written on a slip ■of paper by some one else and satisfied himself by asking the testatrix if that was what she wanted.

A case which we believe is more in point and which we think should govern us in deciding the one before us is that of Succession of Theriot, 114 La. 611, 38 So. 471, 473. The facts, if anything, were stronger from the standpoint of those who were trying to uphold the will. In that case also the Notary copied the bequest in the will from written memoranda but the memoranda had been handed to him by the testator himself and that is why we say the case is stronger from the standpoint of the validity of the will. Quoting from the opinion of the court in its comments on the facts, we find that “the testator was an old man and very deaf. When the notary approached his bedside, the decedent handed him a piece of paper on which certain testamentary dispositions had been written, saying at the same time, ‘comme ca’ (like that). This was all that was said by the testator during the confection of the instrument, and all the witnesses concur in the statement that he was too deaf to hear anything that was said by the notary.”

The Court found, as we do in this case, that the Notary acted in perfect good faith and stated that “he considered that the acts and declarations of the testator were equivalent to a dictation. He went so far as to say that the language of the testament came from the lips of the testator, and not from the written paper. But it is manifest from his testimony that the language came from the paper.” It is equally obvious from the testimony of the Notary in this case that the language of the testament came from a slip of paper that was not even handed to him by the testatrix but by a third party who by her own admission had prepared it herself. We can well adopt the concluding words of the Supreme Court in the cited case on this point which are as follows: “It would be useless to pursue the subject further, as it is indisputable that the testament was not dictated by the testator in any manner, form, or shape, and was therefore a nullity.”

Judgment affirmed at the costs of the defendant, appellant herein.