author: LeBLANC, Judge.

text:
    HARMON v. McDANIEL et al.
    No. 3121.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1949.

      Welton P. Mouton, Lafayette, for appellant.
    Chappuis & Chappuis, Crowley, for ap-pellees.
   LeBLANC, Judge.

The plaintiff, Avery Harmon, a Negro past the age of sixty years, who was employed by the defendant, G. Curtis McDaniel, as a common laborer, has instituted this suit to recover workmen’s compensation from his employer and the latter’s compensation insurance carrier, Maryland Casualty Company of Baltimore, Maryland, for total permanent disability. In his petition he alleges that on the morning of January 22, 1947, whilst he was engaged in performing some of his duties, he suffered an injury to his right ankle while handling a slab of concrete and that since then he has been unable to do work of any reasonable character such as the work he is fitted to- do. He was paid compensation until September 1, 1947, at which time he was discharged by the doctor who was attending to his injury as being able to return to his duties. Further compensation was refused and the object of his suit is to recover the balance that is due him for his permanent and total disability as alleged. Fie also seeks to recover for medical services rendered to him by physicians who saw him and examined him after he had been discharged by the attending physician who had been employed by the defendants.

There is no dispute regarding the plaintiff’s employment and the accident in which he sustained the injury to his ankle nor is there any dispute regarding the amount of wages he received. The principal defense to the suit is that plaintiff had recovered in September, 1947, when he was discharged by Dr. H. L. Gardiner, defendant’s attending physician, and was able to resume his duties. There is a further defense made on the ground that plaintiff had agreed to a compromise lump sum settlement of his claim for compensation during the month of October, 1947. On both of these defenses the lower court was concerned with a factual situation and on both points the judgment was adverse to the defendants’ contentions. Plaintiff was awarded compensation as he had prayed for at the rate of $15.60 per week as for total and permanent disability, less the amount of compensation which he had been paid, and also the fees of the doctors who examined him and testified in his behalf, which were taxed as costs. From that judgment the defendants have taken this appeal.

Taking up first the defense based on the ground that the plaintiff had recovered from his injury in September, 1947, when he was discharged by Dr. Gardiner, we find that the medical testimony on this point preponderates in favor of the plaintiff.

His injury, according to Dr. Gardiner’s, report, consisted of a laceration of ligaments and fracture of the internal malleo-lus of the right ankle. Dr. Gardiner’s treatment consisted of an application of a plaster cast on January 22, 1947, the date of the accident, which he removed on March 25, 1947. The removal of the cast was followed by diathermic treatments given daily and he was finally discharged on September 1, 1947. This is about the sum. and substance of Dr. Gardiner’s report. In testifying as a witness, Dr. Gardiner says that during the time he was taking his-treatments, plaintiff did complain of soreness in the right ankle and that is why he continued the treatments for such a long period. He says that he wanted to give him the benefit of every doubt. When asked if he found any arthritis in the ankle, he says not at the time he treated him. As we-understand the testimony he has not seen the plaintiff or examined him since he discharged him in September, 1947.

Dr. Gardiner gives the impression that this man is exaggerating his symptoms at this, time and seems to base his opinion on the fact that he is feigning a limp. He seemed to have had some doubt as to the plaintiff’s honesty about this at the time he was treating him and testified that he followed him from his office on a couple of occasions and found that after he got a half block away he walked without a limp-This caused him to have some suspicion about the complaints he made of pain and that is why he decided to discharge him as being able to return to work on September 1, 1947. The doctor would not say that plaintiff was a malingerer but he does state. that he thought his complaints were exaggerated.

After plaintiff had been discharged by Dr. Gardiner, he was sent to be examined by Dr. Jack Wickstrom at Lafayette. This doctor first examined him on October 7, 1947. His clinical examination revealed noted variation in the right ankle from a normal ankle and he therefore requested an x-ray examination which was made by Dr. John M. Miles. In interpreting the x-rays, Dr. Wickstrom’s report indicates that he found a definite disability in the right ankle in as much as there was a mal-united bi-malleolar fracture of that ankle •and although he found no evidence of any arthritic change at the time, it was his opinion that some arthritis would develop which would result in narrowing the joint and he would have persistent pain because of the irregularity of the joint surface in the medial malleolus. His report showed his opinion to be that the plaintiff would be able to return to his former duties of a laborer but that he would have persistent pain in his ankle especially with fatigue and prolonged standing or walking. In his first report this doctor estimated the patient’s disability as being approximately 15 per cent which at first glance might mean that his total disability was only 15 per ■cent but in a subsequent report dated October 17, 1947, he stated that in rating the disability as he did he felt that the 15 per cent disability related to his foot and ankle. In other words, we take it that what he meant was that he did not rate the dis•ability at 15 per cent total disability but that was the percentage of disability to the foot and ankle. In this last report he again states that if the patient returns to his former duties as a laborer and has to undergo prolonged standing or walking he will have persistent pain in his ankle due to traumatic arthritis which he found present at that time and which he says will probably become worse as he grows older.

In testifying as a witness, Dr. Wickstrom stated facts very much along the same line as those given in his report .and appeared to be a little firmer in his opinion that this man is suffering from his injury due to the way in which the bony ■union took place at the healing of the fracture and because of the traumatic arthritis which is present. In referring to the union of the bone and in using the word “mal-united”, he explained that to mean that the position of the fragments, if they have, united, “is not anatomically correct”. He candidly admitted that he had to rely on the patient’s own statements regarding the amount of pain he suffers, but he appears to be convinced that he does have considerable pain and his testimony regarding the nature of the injury convinces us that he understands the case very well. His experience and qualifications are somewhat questioned by counsel for defendants but he impresses us as being very well qualified as an expert in his line and since he specialized in orthopedics, we would say that his testimony in this case is entitled to greater consideration than that of Dr. Gardiner who is an older physician and more experienced in general practice, but who makes no claim, as we understand, to having specialized in any particular branch in the practice of medicine.

Dr. Wickstrom’s testimony is supported to some extent by that of Dr. John M. Miles, who made the x-ray plates at his request. He also, found a slight irregularity of the surface of the tibia and whilst union of the bones was good, he also stated that the picture showed the slight displacement which he had mentioned before and also a slight swelling of the soft tissue around the ankle joint. This soft tissue he said, could be present in arthritis in injuries of this kind. He would not make a positive statement that there was arthritis in this case, but neither could he rule it out in the presence of the swelling of the soft tissue.

The foregoing comprises all of the medical testimony in the case and as we have stated, it clearly reveals a strong preponderance in favor of the plaintiff’s disability on account of the injury to his ankle.

When we come to consider the lay testimony we find it to be all on the side of the plaintiff. Quite a large number of witnesses testified that this man had been a conscientious, hard working individual all of his life and that since his injury he had been unable to do any more hard labor. He tried on one or two occasions but wasn’t able to stand more than one or two days work at a time. The testimony of all these witnesses is criticized on the ground that they were all closely related to the plaintiff and were prejudiced in his favor, but this we do not find to be so. It is true that his wife is one of these witnesses and so were two of his sons and a son-in-law, but they did not show any particular bias as far as we can see. There were some others who testified who were not related to him and their testimony was all along the same line.

The plaintiff’s testimony is severely attacked by counsel for defendants and whilst he did make statements which are open to being questioned, we have to take into account the fact that he is an illiterate and ignorant Negro who is not accustomed to the ways of the courtroom and to being cross-examined on the witness stand. Much is made of the fact that was brought out that he may have collected social security payments sometime long before his accident when he was actually working, and for this, he is charged with dishonesty. We have some doubt that the man meant to state that he collected the two payments which amounted to two checks of $20.00 each at a time when he was actually working and earning wages from his employer. But even so, that has nothing to do with this case except that it may affect his credibility and his veracity. There is enough testimony however, without having to consider his own, that he is presently disabled within the terms and the meaning of the workmen’s compensation law.

With regard to the second defense, no extended discussion seems to be necessary. The compensation insurance carrier no doubt made a strong effort to try to have a compromise settlement of this claim, even going to the extent of preparing the necessary papers and issuing the check for the amount which it is stated was actually agreed upon. Whilst the papers were signed by the insurance company they never were signed either by the plaintiff or by his attorney and the latter denies definitely that any agreement was ever reached.

The case was correctly decided in the lower court and for the reasons herein stated, the judgment appealed from is affirmed. '


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    JARRELL v. TRAVELERS INS. CO.
    No. 3120.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1949.
    Wood & Wood, Leesville, for appellant.
    Fraser & Fraser, Many, for appellee.
   DORE, Judge.

This is a workmen’s compensation suit, wherein the plaintiff alleges that on or about July 19, 1948, and prior and subsequent thereto, he was employed by Noonan C. Skinner, operating under the trade name of Vernon Stock Yard, at Leesville, Vernon Parish, La., at a daily wage of $3, and that on that date he sustained an accidental injury which rendered him totally and permanently disabled under the terms and provisions of the workmen’s compensation statute. Plaintiff contends that because his daily wage scale was $3, his weekly wage must be computed on the basis of a six-day working week, and that consequently he is entitled to workmen’s compensation on the basis of 65% of $18 per week, that is, $11.70 per week, for a period not to exceed 400 weeks. He has sued the insurer of his employer claiming compensation as set forth above, plus interest on delinquent instalments from due date, plus all costs, including expert fees.

■ The defendant admitted the employment by its assured, but contended that the employment was under a special contract which called for work only one day during the week at the wage of $3 for that day. It also admitted that plaintiff suffered an injury when he was gored on the right arm by a Brahma cow at his employer’s stockyard while tending to the gate which led into the selling pen, but denies that such injury caused a permanent and total disability. Defendant prayed that plaintiff’s suit be dismissed at his costs, and, in the alternative, if a compensable disability was found to exist that the award be limited to the minimum of $3 per week on the ground that his weekly wage was $3.

After trial of the case, the District Court found that plaintiff had sustained an' injury as alleged. He further found that plaintiff’s contract of employment by the assured called for a wage of $3 on the day of the cattle sale, which was once a week, and for no further wage, and that accordingly he could not recover beyond the minimum of $3 per week for a period of not exceeding 400 weeks. He accordingly rendered judgment for plaintiff for compensation at $3 per week for a period not to exceed 400 weeks, plus interest on delinquent in-stalments, and all costs including expert fees. The plaintiff has appealed, again contending that the weekly wage should be computed on the basis of 6 days a week at $3 per day and the compensation rate calculated on that wage. The defendant has not answered the appeal, bixt in its brief prays that the judgment below be affirmed.

Before this court, the only question involved is whether or not the lower court committed any error in concluding that the compensation should be computed on the basis of a contract of employment for one day only per week at the rate of $3 per day.

Plaintiff testifies that he was employed by Mr. Skinner to tend to the cattle gate on the day of the cattle sale once per week at the wage of $3; but he states further that he was employed at various other times by the assured at various tasks in and about the stockyard and at varying rates of compensation ; that he was also employed by the assured at various times to go out and haul cattle to the cattle barn for the assured. His testimony is to the effect that he earned anywhere up to $35 per week in the employ of Mr. Noonan.

In corroboration of his testimony he produced several witnesses who stated that they saw him around the stockyard on numerous other days besides the day of the cattle sale, and other witnesses who testified that at various times he cashed checks from the Vernon Stock Yard or N. C. Skinner. . It is shown, howev.er, that plaintiff owned his own-cattle truck, and hauled cattle for various individuals, and also bought, cattle for another individual with whom he obviously was operating in partnership. Moreover, Mr. Noonan testified positively that he employed plaintiff to tend the gate at the $3 merely for the purpose of the cattle sale once a week; that any other work that plaintiff did in connection with the stockyard had no connection with this employment, and was performed by plaintiff ás an independent contractor for himself personally. If he hauled cattle for defendant, it was only occasionally. Furthermore, plaintiff did not see fit, as set forth in the written opinion of the trial judge, to require the production of the records of the Vernon Stock Yard. Fie could have requested the defendant to produce his books and cancelled checks and in the event of refusal he could have obtained a writ of duces tecum, but relied entirely on the corroboration of his various witnesses to show some possible further employment based on his presence at the stockyard at various times and the cashing of checks therefrom in addition to his wage of $3 on sale days. The evidence on which he relied to show employment of more than the one day per week merely shows a possibility or probability of such employment, and not the certainty required under the burden of proof resting upon him.

The trial court came to the conclusion that plaintiff had failed to prove to a legal certainty any wage beyond that covered by his employment as gate tender once a week, and we cannot find any error in such finding.

For these reasons, the judgment appealed from is affirmed.


text:
    FRANKLIN v. BON AMI LUMBER CO., Inc.
    No. 3123.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1949.
    Kay & Kay, DeRidder, for plaintiff-appellant.
    Moss & Graham, Lake Charles, for defendant-appellant.
   DORE, Judge.

This is a suit under the Workmen’s Compensation Act, Act No. 20 of 1914, as amended, wherein it is alleged that on and before November 21, 1947, the plaintiff was employed by Bon Ami Company at its sawmill in the Parish of Beauregard, and that on or about November 21, 1947 at 4:00 P.M. or a little thereafter, plaintiff sustained an accident in the course and scope of his employment which resulted in injuries which rendered him totally and permanently disabled from performing work of a reasonable character. It is shown that plaintiff is a common laborer and was at the time of his alleged injuries earning a weekly wage of about $38.00. He sets forth in his petition that he has never received any compensation nor medical benefits and prays for judgment at the rate of $20.00 per week for a period not to exceed 400 weeks plus legal interest on delinquent in-stalments from due date plus $500.00 for medical expenses.

The defendant, in its answer, admits the employment of plaintiff as a manual laborer in its sawmill but denies all the other material allegations of plaintiff’s petition. The answer sets forth that plaintiff did suffer a minor accident on October 24, 1947, which accident resulted in no com-pensable injury and that moreover, any claim arising from said accident is preempted because of it having occurred more than one year prior to filing of this suit. The answer further sets forth that no accident or injury was sustained by plaintiff on November 21, 1947, on which date he was discharged from his job in the defendant sawmill. In the alternative, the defendant shows that should it be found that plaintiff did sustain an accident on November 21, 1947, while in defendant’s employ, that the only accident ever sustained by plaintiff was a bruise on the right side of his abdomen which caused no loss of time or disability whatsoever.

After trial of the case, the District Court, for written reasons assigned, granted judgment in favor of plaintiff in the sum of $20.00 per week not to exceed 400 weeks, together with interest on each unpaid weekly instalment from due date, together with all cost9, including expert fees. On rehearing, the District Court amended its judgment by limiting the compensation to a period not to exceed 100 weeks from November 21, 1947. Defendant has appealed.

The testimony in this case is contradictory with reference to every item thereof except the actual employment.

There are three issues in the case: First, and most important, is whether or not plaintiff sustained any accident in defendant’s employ on November 21, 1947. The second issue is if the accident was sustained, whether or not it resulted in a compensable disability. Third, if the accident was sustained and resulted in a compensable disability, what is the extent of that disability.

The evidence with reference to the first issue as to whether or not an accident was sustained by plaintiff on the date and at the place alleged consists of the testimony of the plaintiff himself and two alleged coworkers as to the actual occurrence of the accident plus the contradiction of said testimony by Mr. Turner, the plaintiff’s foreman, and Mr. Deal, Superintendent of the sawmill plant.

Plaintiff testifies positively that at about 4:30 in the afternoon, he and Hardy Willis and Hershey Vaughn were working together at the re-saw or rip-saw handling large timbers which measured 2 by 12 and 14 to 20 feet in length and weighing about 200 pounds; that while he and Vaughn were engaged in fitting one of these heavy timbers to the saw, with Vaughn at the front end thereof and plaintiff at the rear end, Vaughn slipped and caused plaintiff to stumble and as a result, the timber struck plaintiff in the abdomen and caught inside his belt, jerking him down on his buttock; that the timber was thereupon removed from plaintiff by Hardy Willis, and plaintiff, as a result of the accident, suffered pain and nausea and upon being lifted to his feet walked away a short distance and rested for the remainder of the day leaning against a post.

Plaintiff further states that while he was in his resting position, Mr. Deal came by and told him to do certain work but that he, plaintiff, then and there told Deal that he had been injured.

Plaintiff’s version of the accident is corroborated entirely by Vaughn and Willis, including the fact that he had a conversation with Mr. Deal shortly after the accident occurred. Both of these witnesses state that they do not know what the con-vesation was about because they could not hear what was being said due to the noise made by the saws.

Mr. Deal denies that he had any such alleged conversation with the plaintiff and ■both he and Mr. Turner, the Foreman, state that they were in and around the sawmill where plaintiff was working during the afternoon and that neither saw nor heard anything about the alleged accident. They testify further that plaintiff was not working at the re-saw or the rip-saw but was working on a double end trimmer; that Turner told Deal that plaintiff was too slow to do the work and that he should be discharged and that accordingly Deal wrote out a check for plaintiff’s time and gave it to Turner for the purpose of discharging plaintiff. Turner states that he gave the check to plaintiff at the double end trimmer at about 4:45 o’clock P.M. and told him that he was discharged.

Plaintiff admits that he was given a check and he was discharged, but states that the check was given to him after working hours at the bus on their way home. He is corroborated again by Willis and Vaughn, who state that they were present at the scene until closing time and that they did not see Turner give plaintiff the check as testified by Turner. Willis states that he saw Turner give a check to plaintiff at the bus or truck used to return the employees to their homes.

It is admittted by Turner that while plaintiff has been employed at the sawmill at various jobs for some three months, no^ complaint was ever made to him about his work until the actual discharge on the day of the alleged accident.

Turner testified further that on the actual evening of the accident at about 6:30 he ran across plaintiff in town and that plaintiff at that time told him that he didn’t mind having been discharged and that he was going to Longville to work; that plaintiff never mentioned anything about the accident or injuries to him at the time nor at any other time until some two or three weeks later.

Deal also testifies that he had no information with reference to the alleged accident either through his foreman, Turner, or anyone else until the petition in this suit was filed. He admits that he did receive a letter from the attorneys for plaintiff but that this letter was turned over to the adjuster for his insurance company.

It is testified by plaintiff and corroborated by his step-son, Fred Rainwater, that on the night of the accident he spent the night at his home in bed suffering great pain in his back and abdomen and that Fred Rainwater applied hot compresses on the places wherein he complained of pain. There is some doubt cast upon this testimony by the testimony of Mrs. W. J. Valdays, witness for plaintiff, called on rebuttal, who testified that she lived in the same house as plaintiff and who states that she was present with plaintiff and his wife on the night of the accident until about 10 :00 in the evening when everyone went to bed. She docs state that it seems to her that Fred Rainwater was there but is rather uncertain on that point and she testifies however that she got up at 3:00 o’clock in the morning and at that time the plaintiff’s wife had just made coffee for him and had hot towels on his back. She further testifies that plaintiff was in effect confined to his home from the date of the accident until after Christmas of the same year except for visits to the doctor.

Plaintiff testifies that on the morning after the accident, to-wit on November 22, 1947, he went to see Dr. J. D. Frazar about his trouble and he is corroborated in that respect by Jesse Rainwater, another step-son, who states that he took him to the Frazar clinic. Dr. Frazar admits that he saw the plaintiff on November 28, 1947 in the evening just before he closed his office and that at that time plaintiff complained of pain in his abdomen and in his back and that plaintiff was obviously suffering pain and that accordingly he gave him medicine to relieve the pain. He states that he told plaintiff that he would like to have an order from his employer to have X-rays taken of his back and that his records show that an X-ray was taken on December 4, 1947; that “the only thing the X-ray revealed was, he had this spinal process of the vertebra,, extended up and contacted the pelvis on each side, butterfly, I call it.” Dr. Frazar states that the condition was not caused by the accident but that the accident possibly aggravated the pain or caused the pain. This doctor admits on cross-examination that his testimony is based on his records only and that it is possible that plaintiff did call on him on November 22, as testified by the plaintiff but that his records do not show this nor does he recall it. He does not recall whether or not he received authority from the company to take an X-ray of plaintiff’s back but admits that he probably did or else the X-ray would not have been made. He further testifies that he had no knowledge that plaintiff had been discharged at the time he examined him.

It may be noted at this point that it is admitted that plaintiff suffered a minor injury on Ocober 4, 1947 when a stick flew from one of the saws and struck him on the stomach or chest, and it is implied by defendant that the only examination made by Dr. Frazar was because of this injury. However, while it appears that he was examined for this minor injury, it seems admitted that he never lost any time from his work on account of it and that he never made any further complaint based on that particular accident. It dees not seem that the examination by Dr. Frazar on November 28th or the X-ray of December 4th had any reference to that áccident.

It is admitted that plaintiff, after his alleged accident, worked for another sawmill, to-wit the Beauregard Lumber Industries from about March 1st until August 12, 1948. In connection with that work witness J. O. Slaydon testifies that he was working with the mill construction gang doing ordinary labor. Being a bookkeeper, witness Slaydon admits that he had no knowledge of the outside work; that he only knew that he was working in a mil' construction crew under a Mr. Duke; that in so far as losing time on the job, it wasn’t over a day or two at a time; that he got “pretty full pay days” all the time.

With reference to this last job of plaintiff, we have the testimony of W. P. Wilson, who testified that he worked with plaintiff on this job and that during this time he complained of his back hurting him all the time and testified further with reference as to whether he had a heavy job or a light job, as follows, “They kept him on the ground picking up scrap and things like that. They never did use him on top of the building.”

With reference to the disability of plaintiff, we have the testimony of Dr. Frazar, the first doctor who examined him, which has been reviewed above, to the effect that plaintiff was treated by him, according to his records, first on November 28, 1947, and possibly before that, and was X-rayed on December 4th. Dr. Frazar states that plaintiff was obviously suffering pain and gave a history of an accident in November and that the X-ray revealed a spinal process which could very well have been aggravated by the alleged accident although, in his opinion, not caused thereby. Dr. Frazar testifies further that he treated plaintiff, according to his records, about four times.

Dr. Thomas R. Sartor called by plaintiff testified that he examined and treated him professionally in about December, 1947 and that after his examination and consultation he diagnosed plaintiff’s condition as, “I believe probably arthritis of some kind of the lower back.” He states for his condition he prescribed salicylates for relief and also prescribed hard bed sleeping. He states with reference to his opinion as to the cause of his condition, “Well, I don’t know, other than the history he gave of an injury.” He states that the condition could have been caused by an injury; that the condition was of -traumatic origin and that at the time of his examination, plaintiff’s condition was such as to prevent him from doing hard manual labor. He further testified that he recommended to plaintiff that he go to the State Charity Hospital so that an X-ray study of his back could be made but that as far as he knows, plaintiff never did this. Dr. Sartor does not appear to have seen plaintiff more than twice.-

It is noted at this point that this is the only doctor who plaintiff consulted or sought medical aid, advice or treatment and then only twice. His only excuse for not following Dr. Sartor’s recommendation to go to the State Charity Hospital at Shreveport was the lack of funds. The only outlay of funds by plaintiff would have been his train or bus fare from DeRidder to Shreveport, which appears to us- to be nominal if plaintiff had been in earnest in seeking medical aid and benefit. He should have shown that he had made an earnest attempt to follow Dr. Sartor’s advice.

Dr. Luke Marcello testified that he made, a complete physical examination of plaintiff including X-ray of the thoracic lumbar spine on about December 20, 1948 and that at that time he found no disability. He states that plaintiff gave a history of having been struck in the abdomen on the right side some time in November, 1947; that his main complaint was pain in the right side of the stomach; that he also complained of some pain in the -back, which was the reason for making the X-ray; that the X-ray showed nothing of significance. He testifies that the X-ray did not disclose any injury to the ligaments or muscles and in effect maintains that any disability plaintiff may have had at that time was purely subjective; that objéctively, he found no reason for the pain of which plaintiff complained. He was-of the opinion that plaintiff was fully able to do hard manual labor on the date' of his examination.

It is obvious from the review of the ■testimony that the witnesses on one side or the other have not testified truthfully especially with reference to the actual occurrence of the accident on November 21, 1947. The minor accident on October 24, 1947 has been injected into the case by the defendant’s answer apparently to show a-background for a possible' faked claim by plaintiff on the subsequent date; but, in view of the fact that it is admitted by all parties that the accident of Oct. 24th was slight and caused no loss of time by plaintiff and was known to his employer and' to his employer’s doctor, Dr. Frazar, it does not seem very material herein. The serious question is whether or not plaintiff and his corroborating witnesses, Vaughn and Willis, are telling the truth as to what occurred at the sawmill at about 4:30 P.M. on November 21, 1947. In that connection, counsel for defendant brings out the fact that it is undisputed that on that particular afternoon the plaintiff was discharged and counsel in effect implies that as a result of this discharge plaintiff has cooked up this claim for compensation. On the other hand, the discharge of plaintiff was made on the ground and theory that he was too slow to do the work for which he was called upon and yet it is admitted that no complaint was ever previously made to him with reference to his work although he had been working for some three months. It is peculiar that he should have been discharged on that one particular day without any previous warning.

It may be noted further that it is admitted by Mr. Deal that he received a letter from the attorneys for the plaintiff prior to the filing of his suit and that, for reasons of his own, he paid no particular attention to that letter but turned it over to the adjuster for his insurer.

For us to conclude that the plaintiff sustained no accident on November 21, 1947, as alleged, we would have .to find that he and his coworkers, Willis and Vaughn, deliberately lied and the only basis to find this would be that Mr. Turner was present at the alleged time and was able to see whether an accident happened or not and that no such accident happened. We would also have to find that plaintiff lied in his testimony with reference to his conversation with Mr. Deal and that Mr. Deal told the truth when he said that no such conversation occurred on the afternoon of the alleged accident.

In support of plaintiff’s' contentions we do have the positive testimony of his stepsons, of Mrs. Valdays and of witness W. P. Wilson that he complained of a painful back subsequent to the date of alleged accident; that he was confined to his home for approximately one month and a half. We also have the testimony of Dr. Frazar to the effect that he treated him at least from November 28, 1947 and some four or five times thereafter and discharged him on or about December 18, 1947; that plaintiff was obviously in pain during that period. On the other hand, as contended by counsel for defendant, it is difficult to see why Mr. Deal, the superintendent and Mr. Turner, the foreman, should deliberately testify against this plaintiff in order to defeat his claim for compensation if he were justly entitled thereto, if in fact they were protected by insurance as they state.

It is difficult to imagine a case with more contradictory evidence in so far as the actual occurrence of the accident is concerned. Nevertheless, apparently the trial Judge, who heard the witnesses, believed that the accident actually occurred as testified by plaintiff and his witnesses, or else he would have dismissed the case at the outset. The question before us is whether or not he committed any manifest error in believing the plaintiff and his witnesses, which we cannot do under the existing circumstances.

In so far as the amount of disability sustained is concerned, the evidence is not very clear, but seems to preponderate in favor of plaintiff to the effect that he was disabled from performing hard manual labor after the accident. It is true that he performed manual labor subsequent to his alleged accident for a period of some five months 'but it appears from the evidence that this manual labor was performed while plaintiff was suffering pain and was work ot a light nature and was performed because of necessity. In view of these circumstances, we find that the disability of plaintiff was actually caused by the accident. However, we find that such disability had ceased to exist on December 20, 1948, the date plaintiff was examined by Dr. Mar-cello, and that plaintiff is entitled to compensation from Nov. 21, 1947 to that date. The plaintiff has failed to prove any medical expenses.

For these assigned the judgment appealed from is amended by reducing the period of compensation of one hundred weeks to a period from November 21, 1947 to December 20, 1948, and as thus amended the judgment is affirmed.


author: LE BLANC, Judge.

text:
    DOWDEN v. WHITTLESSEY et al.
    No. 3118.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1949.
    James C. Terrell, Jr., Leesville, for appellant.
    Wood & Wood, Leesville, for appellee.
   LE BLANC, Judge.

Mrs. Lessie Mae Dowden, the plaintiff, sustained injuries resulting from an accident at the time she was á paid passenger in one of the buses of the defendant, East Texas Motor Coaches, owned and operated by Forest S. Whittlessey. She boarded the bus at Leesville, Louisiana, at about 9:30 on the morning of April 28, 1947, her destination being Pineland, Texas.

After the bus left Leesville it traveled on a paved highway for a distance of approximately one mile, after which it traveled on a loose graveled highway. It had hardly gone a mile further when for some reason that is not accounted for, as far as the record disclosed, the driver lost control and the bus landed in a ditch along side the highway. The front right wheel of the bus broke aloose and in the impact that resulted the plaintiff was thrown from her seat and claims that she sustained the injuries she now complains of.

The ¿«ver of the bus is charged with negligence in several particulars but it is unnecessary to consider any of them because liability is now conceded by the defendant. The charge that the bus was bejng (jrjven aj- a very fast rate of speed haye some bearing on the question relating t0 the severity of the impact which caused the plaintiff t0 be thrown to the floor of the bus as she contends she was thrown bodily, and landed in a sitting position. This is important because her principal complaint now is that she is suffering from a back condition which wás brought about by the severity of the blow at the time she was thrown to the floor of the bus. She also sustained some slight injury to her left knee. She ha.d claimed the sum of $2,500.00; $1,000.00 being for pain and suffering, $1,000.00 for injuries to her back and $500.00 for injuries to her left leg and knee. After trial in the lower court she was awarded the slim of $1,500.00 for the injury to her hack including pain and suffering, and the sum of $165.00 for the injury to her knee. The defendant has appealed. Plaintiff has not answered the appeal so we are concerned only with the question whether the award made is excessive and should be reduced to nominal damages as claimed by the defendant who contends that plaintiff’s present back condition is not due to the accident..but to some female trouble she suffered from long before.

Whilst, as just stated, there is no dispute that plaintiff was thrown to the floor of the bus, the main contention of defendant seems to be that the impact was so slight that plaintiff was merely thrown on her hands and knees and did not suffer any injury to her back by reason of the fall. Plaintiff’s testimony is that she was thrown violently to the floor after having scratched her knee and leg on the back of the seat in front of her. She maintains that she landed in a sitting position. The driver of the bus who would at first have it to appear that she landed on her -hands and knees on the floor admits that he did not see her fall. His testimony is not sufficient, in our opiiiion, to contradict the plaintiff’s. Other than this, there is very strong conflicting testimony with regard to the manner in which she landed on the floor of the bus. Plaintiff produced a witness in the person of Reverend M. B. Adkins, a Baptist minister who, according to her, and according to his own testimony, was on the bus that morning and occupied a seat across the aisle from her. Reverend Adkins testified to the same effect as did the plaintiff. The defendant, on the other hand, produced a witness by the name of Fletcher Johnson who testified that he was on the bus also that morning •and that he was the only white male passenger. The bus driver did not take the names of the passengers after the accident. Johnson testified that plaintiff did not fall in the manner she said she did and here of course arises the conflict between his and Reverend Adkins’ testimony. The trial judge believed the testimony of Reverend Adkins and naturally disbelieved the witness Johnson.

•Mrs. Dowden was taken back to Lees-ville after the accident and resumed her •journey to Pineland on an afternoon bus of the same company. She states that she suffered from the injury to her knee but it wasn’t that serious that she wasn’t able to make the trip. She states further however, that that same night, at Pineland, she began to suffer from pains in her back and these • pains have grown more intense right along and persist until, this time. Stress is laid on a remark she is said to have made to the driver of the bus, according to his testimony, that she wasn’t seriously injured in the accident. Pie says that he drove the bus on which she returned to Leesville from Pineland and that at one of. the stops on the trip, while he and she were drinking a coke, she again told him that she had not sustained any serious injury.

,: It may well be that on the day of the •accident, she did not think that she had received more than a slight, injury to her knee.and leg, but certainly in the light of the. testimony that appears in the record, she is now suffering from a rather bad .back condition. The defendant insists that .that condition is the same that she had before the accident and Results from some female trouble she had and for which she had been advised, frequently before that she should undergo an operation.

There is no doubt that she did have female trouble which she 'admits herself, but neither is there any doubt, according to the medical testimony in the case, that her present,condition-was aggravated as a result of the accident which she sustained in this bus accident. The testimony of Dr. W. E.. Reed who attended her after the accident, and who also operated on her, is to the effect that this lady’s main trouble was a displacement of the uterus, as disclosed in the operation which he performed, and when' he was asked if that could have been caused by her having fallen in a sitting position rather forcibly, he states that it could and adds that it would “certainly. aggravate an already fallen and misplaced uterus.” Further on he elaborates on the point by stating that any woman who has borne a child naturally will have some falling of the womb, which he granted that she had, but again he states that the accident she had, in falling as she did, would aggravate the existing condition.

Dr. Reed had some X-ray pictures of Mrs. Dowden’s back, made and he detected that she had a sacro-illiac sprain which he thought was undoubtedly caused by some force or trauma. According to his testimony there can hardly be any doubt therefore that this accident had some causal connection with the plaintiff’s present back condition.

Dr. John B. Younger testified that he had attended Mrs. Dowden three years previously and had delivered one of her babies when they lived at Kurthwood, Louisiana. Prior to April, 1947, he treated her for a disease of the female organs and advised her that she should undergo an operation. He says that she had an acute pelvic infection with recurrence and she also had a maladjusted coccyx bone. On cross-examination he was asked whether considering her condition as he knew it, and then assuming that she was thrown violently in a sitting position on the floor of a bus during an accident, the injury she received would alone' aggravate any female disorder she may have had before, and he answered: “Possibly so.” 'Again he wás asked if that injüry would n'ot tend to make the uterus to be in a more dropped position than it was, to which he answered that it was difficult to state and added: “It would be no more so than an aggravation brought on by any other force or exercise.” Counsel for defendant takes this last answer to qualify the doctor’s testimony in such a way that any kind of exercise the plaintiff may have taken would have aggravated her condition. As far as this record shows however, there is nothing to indicate that she has had any other unusual force applied to her body than the one she sustained in the accident and neither does it reveal that she has taken any undue exercise which ' might have aggravated the condition.

The only other doctor who testified is Dr. Joe E. Broyles. He was called as a witness for the defendant. ' He took X-rays of the plaintiff’s lumbar-sacrál region and of the coccyx. He was tíriablé to detect any separation of the sacro-illiac region as was found by Dr. Reed, tie did notice a displacement of the distal segment' to the right with what appeared to be somd bony formation, but was unable to' say1 whether this was a fracture or á disl'oca= tion or.how old any injury she may have had was. He examined her shortly after the accident and says that she did not complain of- having her back hurt, and he couldn’t attribute anything of her symptoms to the accident. The sum and substance of this doctor’s testimony amounts to a disagreement with the findings of Dr. Reed but as Dr. Reed’s testimony seéttls tó be corroborated, to some extent, by that of Dr. Younger, we reach the conclusion that the preponderance of the medical testimony is in 'favor of the plaintiff on this important point in the case. W'e may well assume therefore that she had some female organ -trouble before the accident, which caused her to suffer some pain,, 'no doubt, but certainly it appears, from the preponderance- of -the' m.edical testimony, that the .fall she 'had-.im the accident aggravated. her condition for which. she is entitled to recover damages.

Her demand was hot unreasonable and certainly' the amount of the award made by the district judge-is not-excessive.

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


author: MOISE, Justice.

text:
    215 La. 626
    HINTERLANG v. USNER et al.
    No. 39043.
    Supreme Court of Louisiana.
    May 31, 1949.
    Walter G. Wedig, Walter G. Wedig, Jr., New Orleans, for defendants and appellants.
    Warren M. Simon, Elmer D. Flanders, New Orleans, for plaintiff and appellee.
   MOISE, Justice.

Defendants are appealing from a judgment in the sum -of $2375, the balance due on a promissory note, with interest and attorney’s fees, in favor of the plaintiff, with recognition of her special mortgage and vendor’s lien on the property described in the notarial act of sale and chattel mortgage dated October 17, 1946.

Petitioner alleges that she sold to defendants, by authentic act of -sale and chattel mortgage, the business known as A-l Delivery Service for the price of $4,000, on terms of $1500 cash and the balance represented by a promissory note in the sum of $2500, bearing 6% interest per annum, payable in monthly installments of $208.33, beginning -on December 10, 1946. There is included in the sale a 1940 International Truck, Model D,-Motor No. 96288. The defendants made a payment of $125 on the first installment and thereafter -refused t-o make further payments to plaintiff. After amicable demand, plaintiff instituted t-his suit.

The defendants answered, resisting the demand on grounds of fraud and misrepresentation, which misrepresentations they aver induced them to purchase the business.

On the trial -on the merits, the district . court found that the defendants had not established their defense with reasonable certainty and rendered judgment against them.

The question- now before us for decision is -one -o-f fact. . .

After a careful .analysis of -the record and more particularly the averments ■relating to fraud and misrepresentation found in the answer, we feel satisfied that it would serve no useful purpose to set out in -detail all of the testimony in this •voluminous record but will -concentrate our discussion on matters of substance.- We find that defendants have not established proof o-f their averments as to fraud and misrepresentation and that their testimony i-s -conflicting. The certainty of proof of their charges has been voided by their -own statements -and other averments have been rendered ineffectual by a preponderance of evidence submitted by the plaintiff.

The defendants charge that they were -led to believe that the business sold to them had about 50 customers but that there were only 30. Defendant Fa-rrell’s testimony, however, -fixes the number of customers at 58. Defendants claim that they were told that the truck used in the business was a 1% ton truck, yet the -chattel mortgage which they signed was for a % ton truck; -and they declare that -on -the night when the -final -agreement was made the truck was in the garage with only the rear end -showing. The evidence, and particularly the testimony of -three witnesses fo-r the plaintiff, is to the effect that the truck was in the driveway and that one of the witnesses drove the defendant Farrell around the block in the truck on that night. , The defendants claim that they made the 'reduced installment payment of ‘$125 because plaintiff had agreed .to a reduction of $1,000 in the sale price of the business. The plaintiffs testimony is that she agreed to make -this deduction provided defendants paid to . her the amount due on the note in cash. The defendants claim that they were told 'that the business was supposed to be yielding, from $500 to $700 per -month. The plaintiff and her witnesses testified that she -stated to them that the business wa-s ‘‘grossing close to $500.00” a month. The defendants charge that the plaintiff never gave them a list of custom-, ers. The plaintiff states, and she is un-contradicted, that she actually -sent them to customers as they telephoned and that her driver rode around the route -on the first day after they purchased -the business -and that he and the defendant Usner contacted all of the customers. Defendant Usner admitted that the plaintiff gave them the names and addresses of the customers as they telephoned her and requested service.

Defendant Farrell testified that the truck sold to them was nothing but a wreck, the fenders were off -and just about everything was wrong with it. The fact is developed by the evidence that on the night of the negotiations, plaintiff agreed to 'buy (and did later buy) two new fenders for the truck. . Defendant Usner testified that plaintiff did not agree to make any other repairs on the truck. He stated that when he received it on the morning of the sale, he did not mention anything to Farrell about it being a ton and a half, or two ton, or a half ton truck, -and -that it was the -same truck' that the plaintiff showed them the night before.

Ar.ti-cle 1848 of the Revised Civil Code provides in part that “Fraud, like every other allegation, must be proved by him who alleges it, * * *. The maxim that fraud is not to be presumed, means no more than that it is not to be imputed without legal evidence.’1 (Italics mine.)

It is not within the province of any -court to relieve a litigant of a bad bargain. Its only province is to render judgment in conformity with the ■ law and evidence. Our -study -of the fa-cts of this case convinces us that the trial judge’s findings are ■correct and we will, therefore, affirm -his judgment.

For the above reasons, -the judgment of the district -court is affirmed at defendants’ -costs.

O’NIELL, -C. J., takes no -part.


author: PONDER, Justice.

text:
    215 La. 631
    SAMPOGNARO v. SAMPOGNARO.
    No. 38895.
    Supreme Court of Louisiana.
    May 31, 1949.

      Joseph C. Brocato, Shreveport, for defendant-appellant.
    Dhu Thompson, Monroe, for plaintiff-ap-pellee.
   PONDER, Justice.

The plaintiff brought suit against the defendant, his wife, for divorce under the provisions of Act 430 of 1938 alleging that he and his wife had lived separate and apart for more than two. years. He asked for custody of their two minor children and a dissolution and settlement of the community. The defendant reconvened and asked for the custody of the children, for alimony in the amount of $150 semimonthly, and attorney’s fees. The trial judge gave judgment granting the plaintiff a divorce, awarding him the custody of the children, awarding the wife alimony in the sum of $25 per month, and awarding her $50 for attorney’s fees. The defendant was granted the right to see the children .at reasonable times and places. The defendant has appealed.

The only issues urged on this appeal are the controversy over the custody of the children and the amount of alimony to be awarded.

We have entertained appeals from two suits between these parties on prior occasions. In the first appeal, where the parties sought separation on different grounds, we affirmed the judgment of the lower court rejecting the'demands of both parties. We stated in our opinion in that case that perhaps the refusal of the husband to receive his wife on her return to the domicile constituted abandonment. Sampognaro v. Sampognaro, 211 La. 105, 29 So.2d 581. The second appeal was taken from a judgment of the lower court rejecting the defendant’s demand for separation on the ground of abandonment. We dismissed that appeal because a judgment hád been rendered in the present suit granting an absolute divorce while the suit for separation was pending. Sampognaro v. Sampognaro, 213 La. 814, 35 So.2d 742.

The evidence adduced in these prior suits was admitted in the trial of this case. From our examination of the evidence^ we find nothing to reflect on the moral fitness of the defendant. The defendant lives with her father, who is in good financial circumstances. .The home she lives in and the environment is good. The same may be said of the home of , the plaintiff. In fact, it appears that the children would be well cared for in either of these homes. The trial judge was of the opinion that it was to the best interest and advantage of the children to award their custody to the father. The children are boys, now seventeen years and fourteen years of age. " The trial judge lays stress on the fact that the mother sent the children back to the father when he had sent them to visit her because she did not have accommodations for them. This happened sometime ago. At that time her father’s house was crowded and there was not room for them. Since that time, the defendant’s brother and his family have moved from the home of the defendant’s father. It appears that there is ample accommodations for the children at this time. It should not operate against the defendant because she was not able at one time to accommodate them.

We are reluctant to upset a judgment of a trial court in matters involving the custody of children. However, under the well settled jurisprudence of this state, the mother has the paramount right to the custody of the children, unless she be morally unfit or it is to the greater advantage of the children for them to be entrusted to the care of their father.

A review of the decisions of this Court reveals that the custody of children is awarded to the father in exceptional cases where it would be to their greater advantage. The general rule is that the mother’s right to the custody of the children is preferred to that of the father and it is only in exceptional cases where it is to the greater advantage of the children that their custody is entrusted to the father. Ard v. Ard, 210 La. 869, 28 So.2d 461.

From our review of the record, we do not find this to be one of those exceptional cases where it would be of greater advantage to the children to award their custody to the father. They would be well cared for in either home and the environment is equally good. Under the evidence in this case, there is no substantial reason to deny the mother the custody of these children.

Whenever we are unable to concur in the conclusions reached by the trial court that it is to the greater advantage to the children to be entrusted to the care of their father rather than the mother, the mother is entitled to have the decree annulled and their custody awarded to her. Willis v. Willis, 209 La. 205, 24 So.2d 378.

The evidence shows that the father is receiving a salary of $184 per month, without any tax being deducted. The trial court allowed the defendant $25 per month, which would indicate that it did not find the wife at fault. We have examined the record and it would appear that if there is fault it is equal on the part of both parties. Since we have arrived at the conclusion that the defendant is entitled to the custody of the children, the alimony should be increased. Under the evidence in this case, $75 per month would be a reasonable amount.

In the closing paragraph of the appellant’s brief it is stated that the attorney’s fees awarded by the lower court should be increased to $250. No reason is advanced for the increase and no authorities are cited to that end. The record contains no testimony as to the extent and value of the services of the attorney. Under such circumstances, we see no reason to disturb the judgment of the lower court in this respect.

For the reasons assigned, the judgment of the lower court is reversed and set aside insofar as it awards' the custody of the minor children to the plaintiff; the award of alimony is amended so as to order the plaintiff to pay the defendant $75 per month for the support of herself and her two children. The custody of the two minor children, Joseph and John Sampognaro, is hereby awarded to the defendant, Sarah Cor-daro Sampognaro, with the right of the plaintiff to see the children at reasonable times and places. All costs to be paid by the plaintiff, appellee.

O’NIELL, C. J., takes no part.


text:
    215 La. 637
    STATE v. SHELBY.
    No. 39391.
    Supreme Court of Louisiana.
    May 31, 1949.

      Warren Hunt and John C. Morris, Jr., Rayville, for defendant and appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Harry N. Anders, District Atty., Winnsboro, for ap-pellee.
   PONDER, Justice.

The defendant was convicted of the crime of simple burglary and sentenced to serve nine years in the Penitentiary. He has appealed from the conviction and sentence.

During the course of the trial three bills of exceptions were taken to the rulings of the trial court. A motion for a new trial and . a motion, in arrest- of judgment were filed by counsel for the defendant after the conviction and before the sentence was imposed.

Bill of exception No. 1 was taken to the overruling of an objection to the following question propounded to one of the State’s witnesses by the district attorney, viz: “In your official capacity as Marshal, were you advised of the recovery of those tires?” This question was asked after the witness had testified that the tires had been recovered of his own knowledge. Counsel for the defendant contends that the question elicited hearsay evidence. The question was answered, “Yes, sir.” The question does not seek to elicit any statements made to the witness but merely the fact that he had been advised of the recovery of the property that had been stolen at the time of the burglary. The witness was merely testifying to a fact and it is well settled that such does not constitute hearsay evidence. It has .been held that testimony that certain information was given was original evidence but the information itself would be hearsay. State v. Morgan, 142 La. 755, 77 So. 588. Testimony that certain instructions were given is not considered hearsay evidence. State v. Thomas, 159 La. 1076, 106 So. 570. The testimony of a coroner that the body was identified is not considered hearsay. State v. Scarborough, 167 La. 484, 119 So. 523.

Bill of exception No. 2 was taken to the overruling of an objection to a question propounded to a State witness by the district attorney, viz.: “On the morning of December 23, 1948, did you have cause to investigate the contents of a black 1941 Plymouth Coach, with Mississippi license 470-207?” Counsel contends that the. question was leading and prejudicial to the de~ fendant. A leading question is defined in Article 373 of the Code of Criminal Procedure as one which suggests to the witness the answer he is ■ to deliver. The question does not suggest the answer and ■it may be answered “Yes” or “No.” A question that may he answered “Yes” or “No” is not considered leading. State v. Dundas, 168 La. 95, 121 So. 586.

■ Bill of exception No. 3 was taken to a portion of the charge given by the trial judge to the jury, viz.:

“If you find that a simple burglary has been committed as charged, and that a theft was committed in connection with said crime, and if you find that property taken, from the building at the time of the burglary was shortly afterward found in possession of the accused, then you are authorized to draw a presumption of guilt of the burglary from such possession. This proposition of law is very well set forth; as.; the law presumes guilt from the possession of property recently stolen and not accounted for.”

Counsel for the defendant contends that the recent possession of stolen goods does not create a presumption of guilt of the crime of simple burglary. He points out that Article 432 of the Code of Criminal Procedure provides that such possession creates a presumption of theft and contends that such possession does not create a''presumPti°n of burglary. The charge given by the trial judge was proper under the evidence in this case because there was no attempt made to explain the possession. It was denied that the defendant had possession of the property at any time. Under the charge it was incumbent upon the State to prove an intent to steal or an intent to commit a forcible felony because simple burglary is an unauthorized entering with such intent. The recent possession of property taken at the time of the burglary creates a presumption that the property was stolen. Such being the case, it would at the same time create a presumption that the defendant was guilty of the burglary because the property was stolen at the time of the unauthorized entering. This Court in the case of State v. Pace, 183 La. 838, 165 So. 6, in discussing a bill of exception taken to the district attorney’s argument to the jury during the trial of a breaking 1 and entering charge, stated that the law expressly declares that the unexplained possession of stolen property creates a presumption of the possessor’s guilt.

In the motion for a new trial the defendant alleges that the record contains no evidence of the guilt of the accused in that it was never shown that the accused was within the state or town where the burglary was committed. Counsel contends that the court was without jurisdiction ra-tionae personae and that the venue had not been proven. It is also urged in this motion that it was not shown that the defendant had possession of the stolen property and that the presumption arising from possession was not applicable to this case. The evidence shows that the store was burglarized at Delhi some time during the night. Early in the morning, just before daylight, two officers saw a car parked on the streets of Jackson, Mississippi, seventy-five miles away, which attracted their attention because it was overheated. When the officers approached the car the defendant and another party, standing across the street, fled. Upon examination, the stolen merchandise was found in the car. The car was identified as being the property of the defendant. It is only when there is no evidence produced to prove a charge that this Court will disturb the verdict of jury. We cannot consider the sufficiency of the evidence if there is any evidence tending to prove the charge.

The motion in arrest of judgment is directed at the overruling of a motion for a new trial and the assertion that the record presents errors patent on its face without pointing out what those errors are. We have examined the record and do not find any error and the evidence cannot be considered under this motion.

For the reasons assigned, the conviction and sentence are affirmed.

O’Niell, C. J., takes no part.


text:
    215 La. 643
    STATE v. DEAN.
    No. 39366.
    Supreme Court of Louisiana.
    May 31, 1949.
    Robert S. Link and Kermit Frymire, New Orleans, for appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Herve Raci-vitch, Dist. Atty., and Robert E. Le-Corgne, Jr., Asst. Dist. Atty., New Orleans, for appellee.
   MOISE, Justice.

The defendant was convicted of the crime of simple burglary, Article 62, Louisiana Criminal Code. On proof that he was a fourth offender, he was sentenced to the penitentiary for life. He has appealed.

The record does not disclose that any bill of exception was filed, nor does it appear that there is any error patent on the face of the papers.

The State filed a motion to dismiss the appeal because of the above recited facts, correctly arguing that there is nothing before the court for determination.

The defense counsel admitted in argument that the defendant received a fair trial but he has asked this court to exercise its supervisory jurisdiction and remand this case for a new trial, in accordance with Article 509, par. 5, of the Louisiana Code of Criminal Procedure. In this Article, the Legislature was fixing the procedure to be followed for a new trial in the lower courts. Our supervisory jurisdiction now invoked comes into being not through the Legislature but by constitutional enactment. We are powerless to afford any relief because the law is well settled that where “The record does not show that any bill of exception was reserved during the trial in the lower court, arKl * * * in the absence of .a bill of exception the judgment of the lower court will not be reversed except when there is error patent on the face of the record. We find no such error in this case.” State v. Asher (and authorities therein cited) 213 La. 131, 132, 34 So.2d 399, 400.

The conviction and sentence are affirmed.

McCALEB, J., concurs in the decree.

O’NIELL, C. J., takes no part.


text:
    215 La. 645
    STATE ex rel. CODY v. CALDWELL PARISH SCHOOL BOARD.
    No. 39213.
    Supreme Court of Louisiana.
    May 31, 1949.

      J. B. Thornhill, Monroe, for relatrix-appellant.
    Cameron C. Minard, Columbia, for respondent- app ellee.
   PONDER, Justice.

In these mandamus proceedings the re-latrix sought to compel the Caldwell Parish School Board' to employ her as a teacher for the school session of 1948-1949 or, in the alternative, to pay her the salary which she would have received had she been so employed. She is appealing from a judgment of the lower court rejecting her demands.

On April 6, 1948, the Caldwell Parish School Board, at a regular meeting, adopted a resolution requiring all school teachers and bus drivers in its employ to sign agreements of employment on or before June 1, 1948, for the purpose, as stated in the resolution, of determining whether there would be any vacancies and thereby enabling the board an opportunity to fill the vacancies before the beginning of the school session oi 1948-1949. The Parish Superintendent of Education was authorized and directed, in this resolution, to prepare the agreements and present them to the qualified personnel and required to fill any vacancies that might occur. The resolution, with the other proceedings of the board, was published in the official journal of the parish. About the middle of May, 1948 the superintendent prepared the contracts in duplicate form and delivered them to' the principals of the various schools with instructions to inform the teachers and bus drivers that the agreements were to be signed and returned to the School Board not later than June 1, 1948. A duplicate copy of each agreement was signed by the superintendent which was to be retained by the teacher or bus driver. The contracts for the teachers o-f Qarks High School, where the relatrix was employed as a teacher, were delivered to the principal of that school. The day following the receipt of the contracts, about the 15th or 16th of May, the principal delivered the contract forms to the teachers at an assembly of all of the teachers of that school with the request that they be executed and returned to him the next day, if possible. All of the teachers, except the relatrix, promptly executed and returned the contracts. The relatrix did not sign and return her contract until June 21, 1948.

The relatrix is a permanent teacher having had nine years experience of teaching in that parish and holds a life time certificate issued by the Department of Education. She has served two periods of teaching employment with the defendant, the first being in excess of three years, after which she voluntarily resigned and secured employment elsewhere for a short time. She re-entered the employment of the defendant sometime in 1945 and taught for three consecutive sessions of school. The School Board had required all teachers to enter into written contracts before June 1st of each year prior to the adoption of the resolution which we have under consideration. The relatrix had signed contracts on prior occasions with the defendant before June '1st of prior years in conformity with this rule of the defendant.

At the time thp principal presented the contract to the relatrix she was undecided as to whether she would teach in that school during the following session. She testified that the principal of the school presented her with a contract about uie middle of May and asked her to sign it and return it as soon as possible; that at that time the conditions in her home were unsettled because her father did not know whether or not he would be transferred to another place; that it was imperative for her to stay with her parents because of their age and condition of health; that she did not know what she was going to do; that the principal reminded her again before school was out that she must sign the contract; that she did not know of the resolution; that she and her parents decided that perhaps things would be settled before the School Board met in July, at which time she would be able to know whether she could teach in that school during the ensuing year; that she did not think that it would be fair to the School Board to sign the contract and later inform them that she could not teach; that she had been informed over the telephone on June 22nd, the day after she had filed her contract, that her place had been tentatively filled.

The principal of the school testified in effect that two or three days after he had delivered the contracts to the teachers he noticed that all of them had returned signed contracts except the relatrix; that he called the relatrix in his office and brought to her attention the fact that her contract had not been returned; that the relatrix told him she was thinking about it; that some three or four days later he mentioned the matter to the relatrix and was informed by her that she did not know what to do; that he discussed the matter with the superintendent and was instructed by him to inform the relatrix that June 1st was the deadline; that he told the relatrix on the last day of school, May 27th or 28th, that she had evaded answering him and as principal of the school he had a right to know what she was going to do; that he informed her he wanted her back as her work was satisfactory and wanted her to sign the contract by June 1st as that was the deadline; that she informed him that she wanted the job back but did not know what was going to happen to her father; that he suggested to her that she sign the contract and return it by June 1st in order to be safe and should conditions prevent her from teaching that she could resign or obtain a leave of absence ; that the relatrix informed him that she did not wish to do this unless she was certain she would teach.

As will be observed there is a conflict in the testimony. The trial court accepted the testimony of the principal and we see no reason to disturb its findings since the resolution was duly published and the relatrix had signed similar contracts on prior occasions on or before June 1st of preceding years in conformity with a rule of the board.

Counsel contends that the relatrix, being a permanent teacher, is automatically an employee of the School Board and that no written contract is necessary or required. He relies on Section 48, Act 100 of 1922, as amended, as authority that the relatrix is automatically an employee of the defendant and Act 353 of 1948, amending Section 49 of Act 100 of 1922, as authority that a written contract is not necessary or required. He cites the case of Picou et al. v. St. Bernard Parish School Board, La.App., 132 So. 130 to support his contention. This case is not in point. In the Picou case the teacher was appointed and notified but did not send her written acceptance until twelve days thereafter. The School Board sought to withdraw its offer and refused to accept the contract. It was held that twelve days was not an unreasonable delay in the acceptance of the appointment. There was no rule or resolution of the board requiring the confection of an agreement on or before a particular date as required by the resolution involved herein. The relatrix was given ample opportunity to enter into an agreement of employment for the school session with the defendant and by her own act, in refusing or neglecting to sign the agreement in conformity with the administrative rule, she thereby voluntarily terminated her employment. Her failure to comply with the resolution was notice to the board that she would not teach the ensuing year.

■ The School Board has the right to adopt reasonable rules in aid of its administrative authority. The tenure law does not deprive the board of its general authority to supervise its teachers ■ or its right to adopt reasonable rules necessary for the proper administration of the schools. It was never contemplated that the tenure law could be employed for the purpose of defeating the functions of a School Board nor as a means of ignoring or refusing to obey rules of the board adopted in aid of its administrative authority. Reed v. Orleans Parish School Board, La.App., 21 So.2d 895.

A mere reading of the resolution indicates that it was adopted in order that competent teachers may be supplied for the schools of the parish in event that some of the teachers would not be available. The board evidently placed the time limit within which the agreements were'to be filed in order that it might have sufficient time to secure competent teachers in event of vacancies. If the board did not have authority to adopt rules of this nature it would greatly hamper the administration of the school's.

We are not presented with a case where a teacher is sought to be discharged. The school authorities had no desire to deprive the relatrix of her right to teach in the school but merely required her to comply with a.resolution adopted in aid of its administration. They did not require her to do any act other than that required of the other teachers.

The provision in Section 49 of Act 100 of 1922, as amended, is to the effect that this section of the act shall not be construed as requiring written contracts with permanent teachers. It does not prohibit School Boards from requiring written contracts with permanent teachers but merely states that the section of the act requiring written contracts shall not be construed as requiring such of permanent teachers. The School Board has the right to enter into binding agreements with its teachers covering a session of school. Whether the agreement is oral or written would not make it less binding on the teacher. or the board. It would be unreasonable to construe this provision of the act as prohibiting the School Board from requiring written agreements with permanent teachers ■ in order that it .may have a record and avoid the vexation of disputes arising over the substance of oral agreements.

It is contended that the defendant, after the relatrix had failed to timely sign the agreement, had only two legal means of proceeding against her, viz: either by preferring charges of willful neglect of duty, or taking disciplinary action. Counsel for the relatrix cites Sections 48 and 57 of Act 100 of 1922, as amended, and a number of decisions of this Court dealing with resolutions of School Boards which barred teachers from continuing in their positions after marriage. There was no attempt made in this case to discipline or discharge the relatrix. It is regrettable- that she could not make up her mind to teach before the time fixed in the resolution which was adopted for administrative purposes, but this cannot excuse her from complying with a rule, reasonable in its nature and necessary for the proper administration of the schools. The decisions dealing with resolutions affecting married teachers are of an entirely different nature and were adopted for an entirely different purpose. Such rules discriminate against married teachers. The resolution in this case applies equally to all teachers and it is not designed to exclude any. Its purpose is to aid the board in the proper administration of its affairs.

It is contended that, if the failure of the relatrix to sign the contract timely is to be considered a resignation, she has signified her withdrawal of the resignation before it was acted on by the board. Authorities are cited to the effect that a resignation is not effective until it is accepted by competent authority.

The superintendent had ample authority to enter into the agreements within the time limit fixed in the resolution. The failure to comply with the resolution within the accepted time not only operated as a voluntary termination of the relatrix’s services but also operated as a forfeiture of her right to later come in and accept employment or withdraw her resignation, if it be so termed. The time limit was -fixed to close the matter of employment. If the relatrix could force her employment 'by any means after the time limit expired it would defeat the purpose for which the resolution was adopted.

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

O’NIELL, C. T., does not take part.


text:
    215 La. 655
    STATE v. POLLARD et al.
    Nos. 39291-39293.
    Supreme Court of Louisiana.
    March 21, 1949.
    Rehearing Denied May 31, 1949.
    J. B. Thornhill, Monroe, Carstarphem & Carstarphen, Shreveport, Thompson,.. Thompson & Sparks, Monroe, and ITarvey L. Carey, Shreveport, for defendants.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E„ Culligan, Asst. Atty. Gen., Cameron C. Mi-nard, Dist. Atty., Columbia, for the State.
   PONDER, Justice.

Marvin Pollard, William H. Smith and Ernest Durward Black were indicted on November 16, 1948 in the Parish of Caldwell with “having' committed a theft of Twenty Five Thousand Six Hundred Nine and fifty two one-hundredths Dollars in the lawful money of the United States of America.”

Before arraignment the defendants interposed separate pleas to the territorial jurisdiction of the lower court based on the ground that the crime charged, if committed, was not committed in Caldwell Parish. They interposed pleas attacking the constitutionality of Article 13 of the Code of Criminal Procedure, as amended, on the ground that, if a substantial element of the offense charged was committed in Caldwell Parish, the provision of the article authorizing the trial of an accused in any parish where a substantial element of the crime has been committed is unconstitutional and violative of Sections 2 and 9 of Article 1 of the Constitution of Louisiana and violative of the due process clause of the Federal Constitution. Amend. 14. The pleas were submitted to the lower court on a stipulation of facts relied on by the State to establish the jurisdiction of the lower court, which reads as follows:

“1. The District Attorney declares that the charge is brought under that provision of Article 67 of the Criminal Code relating to fraudulent conduct, practices and representations.
“2. The State alleges the fraudulent scheme to have been perpetrated entirely in the Parish of Caldwell, in that the road work was done in the parish, the project engineer’s office was located in the Parish, the records of the project engineer, which were allegedly falsified to perfect the scheme, were prepared and made in the Parish of Caldwell, and that the partial and first estimate under which the alleged fraud took place was prepared in and sent from the Parish of Caldwell.
“3. The State will attempt to show by competent proof that the Contractor, Marvin Pollard, his job superintendent, William H. Smith, and the project engineer, Ernest Durward Black, were all a party to the scheme and that all acts of a fraudulent nature performed by the parties were done in the Parish of Caldwell, except it is admitted that the contract was entered into in East Baton Rouge Parish, the check for payment of the partial first estimate was prepared in East Baton Rouge Parish, drawn upon a bank located in East Baton Rouge Parish and was delivered to the contractor in Bossier Parish.
“4. The Defendants claim that if the claim set forth by the District Attorney, as above stated, were true, which of course is not admitted, and even if the State could prove said allegations, the District Court of Caldwell Parish would be without jurisdiction because, if the alleged offense had been committed, it was not committed within the territorial limits of Caldwell Parish.
“5. It is admitted by the District Attorney and the Attorneys for the Defendants that the contract referred to was signed by the Department of Highways and Pollard, contractor, in the City of Baton Rouge, Louisiana, where the office of the Department of Highways is maintained.
“6. That a check in the amount of $69,-604.05 was issued under the contract to Pollard, contractor, and said check was issued and signed in the City of Baton Rouge, Louisiana, and was delivered to the offices of the contractor at Bossier City,' in the Parish of Bossier, Louisiana, and the said check was deposited to the credit of Pollard, contractor, in the Bossier Bank & Trust Company, Bossier City, Louisiana; that the Bossier Bank & Trust Company cleared said check through the ordinary banking channels and said check was paid by the American Bank & Trust Company on whom it was drawn at its banking house in Baton Rouge, Louisiana, on October 18th, 1948.
“7. That the check so issued was only a partial payment based on the partial and first estimate by Ernest Durward Black, project engineer, and that full settlement by the Department of Highways has not been made to the contractor.
“8. That Horton-Pollard Contractor maintained no office in Caldwell Parish but its office was in Bossier City, Louisiana; that Marvin Pollard was, on September 1, 1948, and at all times since, and is now a resident of the Parish of Caddo, Louisiana; that William H. Smith, on September 1st, 1948, was, and at all times since, and now "is a resident of Bossier Parish, Louisiana, and Ernest Durward Black was, on September 1st, 1948, and at all times since, and now is a resident of Jackson Parish, Louisiana.”

The lower court overruled the pleas and defendants excepted to the rulings and reserved bills of exceptions. The defendants have invoked our .supervisory jurisdiction to review the rulings of the lower court.

The first contention advanced by counsel for the defendants is to the effect that no substantial element of the crime was committed in Caldwell Parish. They take the position that the facts relied upon by the State as constituting an essential element of the crime are merely evidence of preparation to commit the offense.

The facts relied on by the State to establish a substantial element of the crime are, viz.: First, the road was wholly within Caldwell Parish; second, the materials were omitted from the project, thus the shortgage of the contractor was completed in Caldwell Parish; third, the records of the project engineer, alleged to be falsified to perfect the scheme, were kept there; and fourth, that the partial and first estimate, under which the alleged fraud was perpetrated, was made there and sent from that parish.

Article 13 of the Code of Criminal Procedure provides: •

“All trials shall take place in the parish in which the offense shall have been committed, unless the venue be changed; provided that where the several acts constituting a crime shall have been committed in more than one parish, the offender may be tried in any parish where a substantial element of the crime has been committed.”

It is provided in Section 9 of Article 1 of the Constitution that “All trials shall take place in the parish in which the offense was committed, unless the venue be changed.”

Crimes in this State are statutory. Prior to the adoption of the short form of indictment, the true test was that the indictment should contain every element of the offense intended to be charged and should sufficiently apprise the defendant of what he must be prepared to meet.

Article 227 of the Code of Criminal Procedure provides:

“The indictment must state every fact and circumstance necessary to constitute the offense, but it. need do no more, and it is immaterial whether .the language of the statute creating the offense, or words unequivocally conveying the.meaning of the statute, be used.”

This article is nothing more than a codification of the' basic law of this state and the jurisprudence relevant thereto as it existed at the time the Code of Criminal Procedure was adopted. It goes to the effect that 'by following the language of the statute or use of words conveying the meaning of the statute all the elements of a crime are set forth. In other words, the essential elements of a crime are those set forth in the' statute. The law in this respect was not changed by the adoption of the Criminal'Code because it is provided in Article 7 of the Criminal Code as follows : “A crime is that conduct which is defined as criminal in this Code, or in other t acts of ' the legislature, or in the co'nstitution of this state.” The notes under this article of the Criminal Code state, “This article makes it clear that the Code continues the tradition that the Louisiana criminal law is purely statutory, there being no other crimes than those defined in the Code or other statutes of the state.”

Theft is defined in Article 67 of the Criminal Code as follows:

“Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.”

We must ascertain the elements of the crime from the statutory definition. This article'of the Criminal Code was designed and framed to cover and include the previous crimes of larceny, embezzlement, obtaining by false pretense, confidence game, etc. The offense is the talcing or the misappropriation of a thing of value with the intent to deprive the owner permanently of it either without his consent or by means of fraudulent conduct, practices or representations. In this case the money claimed to be taken and misappropriated was the property of the Department of Highways whose offices are located at Baton Rouge. The money was obtained through a fraudulent estimate received by the department in Baton Rouge. Upon receipt of the estimate the Department of Highways mailed the check to the contractor in Bossier Parish where it was deposited to the contractor’s account. The taking or misappropriation could not have occurred in Caldwell Parish because the check was issued in Baton Rouge and deposited in Bossier Parish. The facts relied on by the State as constituting a substantial element of the crime are merely the preparation of a fraudulent scheme which was consummated in Baton Rouge by inducing the Department of Highways through a fraudulent estimate to part with the money. What induced the Department of Highways to part with the money was its reliance on the estimate it had received in Baton Rouge. The devising and arranging of the means necessary for the commission of a crime are nothing more than preparation for the commission of the offense. The manner or means employed in the perpetration of an offense are not an essential element of a crime except where they are made so in the statute defining the offense. The manner and means employed in the commission of a crime are varied and were they considered elements of an offense it would bring about chaos and there would be no standard to govern the courts in determining the elements of an offense.

The State contends that the prior jurisprudence dealing with the crimes of embezzlement, obtaining by false pretense, and confidence games are not applicable. It would appear that the language used in defining the crime of theft covers all of these offenses and by so doing did not contemplate that the prior jurisprudence in this respect would be affected. Be that as it may, the facts relied on by the State merely show a preparation to commit the crime which is not an essential element of the crime of theft as defined in Article 67 of the Criminal Code.

The State contends that the facts relied on are sufficient to support a conviction of an attempt to commit the offense which would be responsive to the charge. On the other hand, the defense points out that even though attempt to commit the offense would be responsive to the charge that the defendants are not charged with an attempt to commit the crime. It is pertinent to observe that mere preparation is not sufficient to constitute an attempt to commit a crime. Article 27 of the Criminal Code. In the notes under this article of the Criminal Code, it is pointed out that preparation has been generally defined as the devising or arranging of the means necessary for the commission of the crime. A mere reading of this article of the Criminal Code shows that in order to constitute an attempt there must be an act which tends directly towards the commission of the crime which will apparently result in its commission unless frustrated by extraneous circumstances.

Since we have arrived at the conclusion that no substantial element of the crime was committed in Caldwell Parish there is no necessity for us to pass on the constitutionality of Article 13 of the Code of Criminal Procedure or the other issues raised in this case.

For the reasons assigned, the judgment of the lower court is reversed and set aside. The indictment is annulled and the defendants are herewith discharged.

HAWTHORNE, J., concurs in the decree.

O’NIELL, C. J., takes no part.