author: TALIAFERRO, Judge.

text:
    HALL v. SHREVEPORT MEDICAL ARTS BLDG. CORPORATION et al.
    No. 7310.
    Court of Appeal of Louisiana. Second Circuit.
    March 30, 1949.
    Cook, Clark & Egan, of Shreveport, for appellants.
    Lee & Emery, of Shreveport, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff was injured on May 20, 1947, when an electric elevator of his employer, Shreveport Medical Arts Building Corporation, went out of control, rapidly ascended, and finally came to abrupt stop after ramming the upper portion of the shaft. He was operating the elevator at the time.

Within a brief time after the accident, Dr. A. P. Crain, whose office is in the employer’s building, was summoned to render professional assistance to plaintiff. He had X-ray pictures made of different portions of his body, all of which were negative as to bone fractures or breaks. After this was done, and after having made a physical examination of him, Dr. Crain directed that he be carried to the North Louisiana Sanitarium in the City of Shreveport, where he remained as a patient until May 23rd. With Dr. Crain’s consent, on that date, plaintiff was removed to his own home and thereafter continued to be under Dr. Crain’s observation and treatment. He visited the doctor’s office frequently. After the lapse of some six weeks, Dr. Crain decided that it would be well to have the advice and opinion of Dr. Gene Caldwell, a well known orthopedic surgeon of said city, as regards plaintiff’s condition, and directed that he report to Dr. Caldwell for examination. Dr. Caldwell’s diagnosis agreed with the X-rays previously taken, but thinking that perhaps there was some injury to the lower part of the spinal column and of the sacroiliac joints, he recommended that what is called “Russell” traction be applied for eight or ten days. This was done on July 6, 1947, after plaintiff had gone to the sanitarium the second time on Dr. Crain’s advice. He soon grew tired of the discomfort, and, as he says pain resulting, and over the protest of attending nurses, had his wife remove the traction appliances and he then returned home.

Plaintiff alleged that he endeavored to stop the ascent of the elevator by throwing the cut-off switch and to do so it was necessary that he stoop over and while in this position the elevator came to a sudden and abrupt stop; that from the suddenness of the stop his head was jerked, his neck snapped and his body in other respects was badly jarred and shaken, particularly the lower part of his back and sacro-iliac region; that he was dazed from the impact and intense pain in those regions of his body quickly developed and have persisted since the accident; that he has not recovered the use of his limbs and, as a final consequence of all of said injuries, disability to work became and is now total and permanent. He sued for workmen’s compensation .on that basis, less eight weekly payments of $17.81 each, and for medical and hospital expenses incurred and to be incurred, to finally restore him to normal physical condition, the amount of which, he alleges, will exceed $500.

The employer and its insurer, Standard Accident Insurance Company, were made defendants. The answer of these defendants narrows the controversial issues to that of the alleged injuries, their nature and possible duration. It is alleged in the answer that plaintiff left the sanitarium against the advice of attending nurses and without Dr. Crain’s knowledge and had since continuously refused to accept any offer of treatment by defendants; but, it is not affirmatively asserted that his disability, if any, is now due to the fact that he refused to follow the advice of Dr. Crain. Defendants, of course, resist the suit primarily on the ground that defendant has fully recovered from all injuries from, the accident and is now able to operate the elevator or do other work of which he was capable prior thereto.

Defendants further alleged that they expended $179 for hospital and doctors’ bills in the effort to determine plaintiff’s true condition and to relieve same by appropriate treatment.

There was judgment for plaintiff for compensation at $17.81 per week, during disability not exceeding, however, four hundred weeks, less eight payments made; and for $500 as medical and hospital expenses, less a credit of $158.50, consisting of payments on those accounts made by the defendant. The defendants appealed.

The day following his departure from the sanitarium plaintiff went to his family physician, Dr. Leroy Scott, for treatment. At that time he' was complaining principally of pain in the lower portion of his back,' and to some extent of pain in his left leg. Based upon physical examination considered in the light of the character and locus of the complaints of pain, his physical movements and negative X-ray pictures, Dr. Scott diagnosed plaintiff’s ailment as being sprains of the ligaments and muscles about the lumbo-sacral area. He prescribed infra-red radiation which was applied daily for a time and at time of trial, June 17, 1948, “once in awhile as he comes in”. This treatment, in Dr. Scott’s opinion, had materially improved plaintiff’s condition, but had not fully eliminated the pain and suffering. Dr. Scott testified that as further basis for his opinion, the response to various motions he put plaintiff through, “and the points he complained of pain have been the points upon which I have based my judgment as to his injuries. He has been consistent with that all along.” This included his manner of walking and the manner in which he held himself. The doctor further said:' “All those things are evidence of it * * * I tried to see whether or not he was malingering and I don’t think so.” Dr. Scott’s opinion as to the duration of the disability was not sought by either side.

Dr. G. H. Cassity physically examined plaintiff on July 11, 1947, and on June 15, 1948. He agreed fully with Dr. Scott’s diagnosis of plaintiff’s injuries but went further to say that his eight or twelve infected teeth “may very well be aggravating the back pain, and also prolonging it.” He was certain plaintiff could not work, on account of the back condition and that which he thought existed in the sacral joint; and that such disability may persist for a year or more. He further stated that if the infected teeth are not removed the disability may become permanent in six more months, due to the likelihood of infective arthritis developing- in the lower half of the spinal column. He was sure plaintiff’s condition had materially improved between the two examinations made of him, a period of some eleven months.

Dr. Carson Reed physically examined plaintiff -on June 16, 1947. He found subjective -symptoms to support plaintiff’s professions of pain in the lower part of his back, after putting him through different movements to check his reactions, and was of the opinion that he could perform light work if it did not require prolonged standing or walking. He agreed with Dr. Cassity that the infected teeth could be playing an important part in the continuation of pain and consequent disability, and was disposed to believe that plaintiff was to some extent exaggerating the conditions of which he complained. But, he added, if the pain of which plaintiff complains really exists, he is not able to do gainful work. Dr. Reed was not asked to give opinion as to the duration of plaintiff's disability.

Dr. S. W. Boyce also examined plaintiff a few days prior to the trial. His examination was thorough and extensive. He found a narrowing of the intervertebral disc between the fourth and fifth lumbar vertebrae, which he believed to be traumatic in origin and to account for the complaints of radiating pain down the left leg. He found subjective symptoms, the same as were found by other physicians who testified for plaintiff, plus spasms of the gluteal muscles of the left leg and suggested several treatments that might relieve the mentioned conditions, the first of which would be the removal of the teeth. He makes it clear that the clinical conditions he found in plaintiff are curable, and perforce, his disability not permanent. The following answer by Dr. Boyce pretty well sums up his opinion of the case, to wit: “The symptoms this man has are a logical sequence of the injury which he complains of, and the findings which I find.”

He did not believe plaintiff physically able to engage in hard work.

Dr. Crain, who testified for the defendants, found on first examination of plaintiff, which was immediately after the accident, that he had suffered a slight concussion and a muscle strain or sprain of the-lower part of the back, and injury of his. neck. He thought plaintiff was exaggerating the seriousness of the pain and the disability he professed to have and felt sure that he had recovered from whatever injury he did receive in the accident. He testified that the Russell traction was applied mainly to take strain off of the back and to determine whether or not plaintiff had a ruptured disc. He also testified that: plaintiff, after leaving the sanitarium, in the manner herein related, solicited further treatment from him but he declined to do-so as he had consulted another physician.

Dr. Caldwell’s first examination of plaintiff was on June 30, 1947, and he again examined him on October 28, 1947, and again on June 7, 1948. It was Dr. Caldwell’s opinion, after first examining plaintiff, that he was suffering from the effect of the accident and he did not observe very much change in his condition to-the time of the second examination, but it was his opinion, when he examined him the third time, that he had completely-recovered from the ill effects of the accident, and was able to return to work. On the first examination Dr. Caldwell was impressed with the possibility that plaintiff was suffering from herniated intervertebral disc, and in an effort to determine whether or not his impression was correct, he prescribed application of the Russell traction-. Concluding his testimony, Dr. Caldwell said: “I was unable to find sufficient positive objective clinical or x-ray signs to> justify his subjective complaints.”

Plaintiff candidly admits that the pain in his head and neck under treatment has disappeared and that impairment of his eyesight, which immediately followed the accident, had ceased. But he contends and testified that the pain in the left leg and about the sacro-iliac region has continuously persisted and is of such severity that he cannot perform any work that would require him to stand or walk continuously. However, he also admits that this disabling pain, at the date of trial, ■was not as intense and severe as it had formerly been.

The record does not reveal plaintiff’s •age when hurt, but we infer that he is ¡not beyond middle age. Dr. Caldwell’s record describes him as being “a well developed, well nourished negro man.” It is not shown that he, prior to this instance, was involved in an accident nor that he has heretofore made claim for workmen’s compensation. He evinces a desire to be restored to sound health.

It is argued that because he left the sanitarium, under the circumstances herein mentioned, plaintiff thereby refused to accept professional treatment tendered by the defendants. It is not seriously contended that had he accepted said treatment he would have recovered from his injuries any sooner than he will by having followed the course adopted by him.

It will serve no useful purpose and it is not necessary to a correct decision of the case to make a ruling on the merits of these questions. .Plaintiff testified that he was suffering intensely from several blisters, one or more of which had burst, caused by the Russell traction, and that nothing was done to relieve the pain, although the attention of nurses and physicians had by him been called to the situation. In open court the judge had plaintiff expose his left leg, then over a year after the accident, which revealed several scars, mute though positive evidence that the blisters were not of a trivial character.

While we are well aware that claimants to workmen’s compensation frequently do exaggerate their professions of pain and consequent disability following an accident in which they are involved, yet this observation does not warrant a court to condemn every claimant who so contends, as being guilty of such insincerity. The facts of each case, of necessity, must govern. Here, we have a well developed, physically sound man involved in an accident of unusual character. He suffered some heavy bodily- jarring from the terrific impact. .We would expect serious consequences from an accident of this character. It is admitted by all physicians who examined plaintiff that total disability followed the accident. He 'says he has not recovered sufficiently to resume work and in this claim he is supported by the opinions of the majority of the doctors against whose sincerity and integrity no question can arise. And of special importance on this embattled issue is the testimony of Dr. Scott, his family physician, who has treated and observed him and his movements regularly for over a year, and under whose treatment the patient admits material improvement. As pain is a subjective symptom, its existence or non-existence is not susceptible of proof. All doctors agree that where reasonable basis can be found to support a claimant’s profession of disabling pain, his sworn testimony to support the profession should have serious consideration, and not be arbitrarily rejected, as he alone knows whether the pain exists.

We -are of the opinion that plaintiff made out a case of only total temporary disability. The record leaves tls quite certain that he will regain sound health and physical condition long before the expiration of four hundred weeks from the date of the accident. Jones v. Chicago Mill & Lumber Company, La.App., 15 So.2d 826.

It is shown that defendants expended $158.50 while treating plaintiff and that he is due Dr. Scott $357 for professional services. Therefore, the statutory limit of liability for hospital, medical and physicians’ expense has been exhausted.

Therefore, for the reasons herein assigned, the judgment from which appealed is amended by awarding plaintiff compensation at the rate of $17.81 per week, during disability, but not exceeding three hundred weeks, less a credit of eight weeks compensation heretofore paid; and, as thus amended, the judgment is affirmed. Plaintiff i's cast for costs of appeal; all other costs shall be paid by the defendants.


source: Caselaw Access Project

author: KENNON, Judge.

license: Public Domain

text:
    ATTAWAY v. FIDELITY & CASUALTY CO. OF NEW YORK, et al.
    No. 7286.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.
    Rehearing Denied March 30, 1949.
    Blanchard, Goldstein, Walker & O’Quin and Ben C. Dawkins, Jr., all of Shreveport, for appellants.
    Bullock & Bullock, of Shreveport, for ap-pellee.
   KENNON, Judge.

Alleging that the accidental death of her husband arose out of his employment with the defendant, J. B. Beaird Company, Inc., plaintiff filed this suit against that company and its insurer for three hundred weeks compensation and for funeral expenses.

The petition set forth that the fatal accident occurred on March 29, 1947 at about 7:30 a. m. while plaintiff’s deceased husband was enroute to the Beaird plant, while within approximately 100 feet of the entrance thereto, and while crossing the tracks of the Kansas City Southern Railway Company, which railroad was immediately adjacent to the Beaird company’s plant and was connected thereto by means of rail switches.

The answer admitted the employment of plaintiff’s husband and that he was killed at the crossing of the Kansas City Southern Railway on 63rd Street in Shreveport, Louisiana while driving his own automobile, but denied the allegation that the accident arose out of decedent Attaway’s employment ■ and the -allegation that at the time of the fatal injury he was pursuing the usual and least hazardous means of reaching his place of employment.

The District Court, in a well considered written opinion, gave judgment in favor of the plaintiff and the case is before us on a suspensive appeal by both defendants.

The principal -facts on which the case was decided are not in dispute.' Plaintiff’s husband, Carl F. Attaway, was employed by the J. B. Beaird 'Company, Inc. as a stationary engineer. The Beaird company employs several hundred men and is engaged in the manufacture of industrial articles necessitating the constant use of railroad facilities and its premises in the City of Shreveport are bounded on the east by the right-of-way of the Kansas City Southern Railroad. On the south 63rd Street is the boundary of the Beaird premises. The northwest corner of the intersection of 63rd Street and the railroad right-of-way is the southeast corner of the Beaird company plant premises. From the nearest point of the intersection where the accident occurred, it is fifty feet to the nearest corner of the building where the deceased employee worked, and some 650 feet around the street to the employee’s entrance to the Beaird premises.

The deceased employee lived at 1443 Be-•una Vista Street, some six miles distant from and west of the Beaird plant, and west of the Kansas City Southern tracks which run alongside the Beaird plant. The railroad crossings over several of the routes available to the decedent were protected by automatic signaling devices. The railroad crossing on 63rd Street contained no automatic signal devices.

The testimony is in conflict as to whether the route the deceased used on the morning of the accident (which included Southern Avenue and the 63rd Street railroad •crossing) was the customary one for him. This point is not decisive since the 63rd Street crossing was customarily used by ■many of the Beaird employees to the knowledge of and without objection from the •company or its officers.

The deceased customarily entered the plant between 7:30 and 7:45 a. m. in order to have certain engines for which he was responsible started and in operation by •8:00 a. m. On the morning of the fatal accident, he was expected at the plant by ■8:00 a. m. The accident occurred around 7:30 a. m.

The learned District Judge considered ■•the decisive question in the case to be, “Was this accident, considering time, place and circumstances, one arising out of and in the course of deceased’s employment, within the reasonable intendment of the statute?” In support of his decision in favor, of plaintiff, he cited Walker v. Lykes Brothers-Ripley Steamship Company, Inc., La.App., 166 So. 624; Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532; Bountiful Brick Co. v. Giles, 276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507, 66 A.L.R. 1402.

In both the Giles and Parramore cases the Supreme Court of the. United States approved a judgment of the Supreme 'Court of. the State of Utah awarding compensation to the dependents of an employee killed while crossing railroad tracks lying immediately adjacent to and connected by means of switches to the employer’s premises.

The Louisiana Courts have followed the general rule that the injury suffered by an employee in going to or returning from his place of employment is not compensable except in cases where an employee is injured while riding to or from his work in the vehicle of his employer. In the Walker case, supra, the Court set forth a further exception to the general rule in the following language [166 So. 626]: “The other exception to the general rule exists when the injury takes place before or after working hours outside of, ■but within close proximity to, the premises of the master, and results from a hazard to which the employee, by reason of his employment, when considered in connection with the situation of his employer’s premises, is subjected to a greater risk than the public in general. For this exception to be invoked, the means of customary ingress and egress to and from the master’s premises must be such as to compel the employee to submit, by reason of his employment, to greater hazards than the public in general, although such risks may exist, in some measure, with respect to the general public. Moreover, it has been held in these cases that a continuance of the course of the employment is extended in allowing the employee a reasonable time, before or after working hours, to enter or leave the premises, or hazards adjacent thereto, and, if injury occurs under these circumstances, liability attaches to the employer for compensation. The Supreme Court of the United States has recognized this precept in the cases of Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532, and Bountiful Brick Co. v. Giles, 276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507, 66 A.L.R. 1402.”

In the Walker case, supra, the Court found that there was a dangerous roadway on the front of the dock shed in which the plaintiff worked and that defendant’s employees, in going to and departing from work, must necessarily cross this dangerous passageway. On the day of the accident, plaintiff had successfully crossed this roadway and had proceeded more than 1,000 feet away from defendant’s premises. He re-entered this roadway while intent upon hailing a ride and the injury resulted. The Court found that, having successfully surmounted the obstacles surrounding his place of employment, he had bared himself to a new risk at a different location for his own purposes and held that the course or term of employment had been concluded before the accident occurred.

As stated in the excellent discussion of this principle found in the Walker case, a study of the cases reveals that no exact formula can be laid down which will automatically solve every case. The conclusion in each case must depend upon the particular facts involved. However, these facts must be governed by the application of established rules of jurisprudence, one of which is that the employer is responsible for an injury which occurs to an employee at the public crossing lying adjacent to his place of employment and at a time just prior to his expected entry onto the premises for the purpose of immediately beginning the duties of his employment, provided the proximity of the employer’s premises to the public passageway be a necessity — or at least a logical requirement— to the convenient conduct of its business. This is true even though the public generally is also subject to the hazards of the crossing at which the injury occurs. The rule appears to be that, granting that injury occurs on premises adjacent to those of the employment and within a reasonable time before or after working hours, it is-sufficient that the employee’s exposure to-the hazard by reason of his employment be only, in some measure, greater than that which exists with respect to the public generally. In the case before us, the nature of the J. B. Beaird 'Company’s business was such as to require the use of railroad cars. Its location adjacent to the railroad was, to-say the least, highly convenient and almost necessary.

The principle of law before us was discussed in the recent case of Babineaux v. Giblin, et al., La.App., 37 So.2d 877, 879, in which the Court recognized the genera! rule that an injury suffered by an employee away from his employer’s premises does-not arise out of and in the course of his-employment, but recognized the three exceptions to the general rule as were set forth by the Orleans Court of Appeal in the Walker case. First, when the employee’s duties are such as require him to leave the premises of his employer and go from place to place in carrying out the duties of his employment. Second, instances in which the employer furnishes the means of transportation. This opinion describes the third exception- — -the one most nearly applicable to the case before us — in the following language: “The third exception is where the accident occurs near or immediately adjacent to the premises of the employer in the route of ingress or egress used by the employees.”

Examining -the circumstances surrounding plaintiff’s husband’s injury with reference to the time, place and circumstances-surrounding his employment with the defendant Beaird company, we find, in point of time that his fatal injury occurred within a matter of minutes before he would: have been engaged in the duties of his employment. As to place, the injury occurred on the railroad right-of-way which was adjacent to the employer’s premises, within a few hundred feet of the employees’ entrance to the plant and within fifty feet of the spot where — had deceased safely crossed — he would have been soon engaged in the duties of his employment. He was following one of the customary means of ingress and egress to and from the master’s premises and since the location ■of the premises along the railroad was not 'by accident but required by the nature of his employer’s business, it follows that he was, when leaving or about to enter his place of employment, subject to a greater 'hazard, in some measure, than that which «existed to the general public.

Under these circumstances, the District Court correctly ruled that the injury ■to plaintiff’s husband, though not on the ■employer’s premises, came within the above ■quoted exception to the general rule, recognized by the United States Supreme Court •■and by the Courts of this State.

The judgment appealed from is affirme’d, -■with costs.


author: HARDY, Judge.

text:
    STILES v. INTERNATIONAL PAPER CO.
    No. 7285.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.
    Rehearing Denied March 30, 1949.
    R. D. Watkins, of Minden, for appellant.
    Madison, Madison, Files & Shell, of Bastrop, and D. W. Stewart, Jr., of Min-den, for appellee.
   HARDY, Judge.

This is an action for workmen’s compensation, to which defendant interposed an exception of no cause nor right of action and a plea of prescription. Both the exception and the plea were sustained 'by the Judge of the District Court, and judgment was rendered rejecting .plaintiff’s demands. From this judgment plaintiff has appealed.

The basis of the exception of no cause nor -right of action is predicated upon the proposition that plaintiff did not allege an “accident” within -the contemplation of the workmen’s compensation statute. Act No. 20 of 1914, as amended.

A summary of the pertinent allegations of plaintiff’s .petition bearing upon this point discloses allegations to the effect that plaintiff while performing his duties as a laborer in the course of his employment became ill on September 17, 1945; that examination disclosed that he was suffering ifrom an -abscess in the upper portion of his left lung and -an enlarged heart “occasioned by the great amount of dust inhaled by him while i-n the employment of petitioner at the power house and further by ■reason of his physical labor in pushing a -cart”; that plaintiff was under treatment and was paid compensation until M-ay 13, 1946, at which -time he undertook to do ■light work for the defendant company at the suggestion o-f the company’s doctors; •that he so continued in employment until September 12, 1946, when he was “again forced to quit because of severe pains in his chest; that examination disclosed a healing of the abscess but a definite enlargement of the heart, caused by the extreme manual labor of plaintiff in the performance of his work as a laborer”. Finally, Article 8 of plaintiff’s petition reads as follows:

“Petitioner now alleges that he is totally and permanently disabled from the injuries received to his heart, resulting from the great amount of dust inhaled during his employment and the heavy physical labor in pushing a cart; that he was examined by the doctors -employed by the Company prior to his employment and was pronounced physically fit to- do the work assigned to him; that his continued attempt to work after the injury above alleged to have received in September 1945 has aggravated the condition of his heart and on information now alleges that his heart has become permanently affected and that he will never be able to perform any manual labor which will -cause him any exertion, -and for this reason alleges that he is permanently disabled to pursue the duties of his -former employment with the defendant.” (Italics by the Court.)

We think the Court erred in maintaining defendant's exception. The direct question here involved was discussed in the opinion of this Court in Dortch v. Louisiana Central Lumber Company, La.App., 30 So.2d 792, 796, in the course -of which Judge Taliaferro made -the following observation :

“It is now well settled that to constitute an accident within the meaning of the Workmen’s Compensation Law in cases where the work of the claimant entails regularly heavy physical effort, it is not necessary that the injury from which disability follows be the result of unusual physical effort. If a diseased organ -gives way while -the laborer is performing his usual and customary heavy duties, and -disability results, it is compensable. This doctrine is affirmatively established by the following cases, viz.: Jackson v. Travelers’ Insurance Company et al., 180 La. 43, 156 So. 169; Renfrow v. Police Jury of Caddo Parish et al., La.App., 155 So. 291; Biggs v. Libbey-Owens-Ford Glass Company, Inc., et al., La.App. 170 So. 273; Nickelberry v. Ritchie Grocer Company et al., 196 La. 1011, 200 So. 330; Hill v. J. B. Beaird Corporation, La.App., 19 So. 2d 295.”

Applying the rule above stated, we ■think plaintiff has sufficiently alleged a basis of fact which would bring the occurence of September 17, 1945, within the judicial interpretation o-f an “accident”.

Proceeding -to a consideration -of the plea of prescription, we find that defendant urges the application of the period of one-year prescription upon the ground that compensation payments to plaintiff had terminated on May 13, 1946, well more than, ■a year prior to the filing of plaintiff’s petition on September 8, 1947. While this is an obvious fact, it is nonetheless true that -plaintiff has alleged a resumption of light-work in the employment of defendant in accordance with the suggestion of -the company doctors, in which light employment, he continued until “on -or about September-12, 1946”.

We th-ink it is well settled that the payment of wages either in the nature or in lieu of compensation is sufficient to in-' ■terrupt the running of the period of prescription or pre-emption here relied upon.. Cases on this point were commented upon in the -opinion of Justice H-amiter in the-Supreme Court case -of Arnold v. Solvay Process Company, 207 La. 8, 20 So.2d 407, in which k -was observed that payments ■made to an employee’ for the performance of light services constitute a recognition by -the parties that the employee had a just, claim 'for disability benefits, and, further, that such payments interrupted the foreclosing of the employee’s right to sue. This proposition is supported by pronouncements in Carpenter v. E. I. Dupont De Nemours & Co., La.App., 194 So. 99, and Heard v. Receivers of Parker Gravel Company, La.App., 194 So. 142.

Consideration of the allegations of plaintiff’s petition, in the light of the jurisprudence noted, constrains us to hold that the plea of prescription was also improperly sustained.

For -the reasons assigned the judgment appealed from, maintaining the exception of no cause nor right of action and the plea of prescription and rejecting plaintiff’s demands, is annulled, reversed and -set aside, and the suit is now remanded to the Honorable the Twenty-Sixth Judicial District Court in and for the Parish of Webster for further proceedings. Costs of this appeal are taxed against defendant-appel-lee.


text:
    HOLICER GAS CO., Inc. v. WILSON et al.
    No. 7309.
    Court of Appeal of Louisiana. Second Circuit.
    March 30, 1949.
    Carstarphen & Carstarphen, of Shreveport, for plaintiff-appellant.
    Irion & Switzer and Harry A. Johnson, Jr., all of Shreveport, for defendant-appellant.
    Booth, Lockard & Jack, all of Shreveport, for warrantor-appellee.
    Blanchard, Goldstein, Walker & O’Quin, all of Shreveport, for garnishee-appellee.
   TALIAFERRO, Judge.

There is involved in this case the ownership of one five-hundred gallon butane gas. tank that was placed on land of A. A.. Booras, in Caddo Parish, Louisiana, to-service his home and other buildings, under a written lend-lease agreement which was-not placed on record.

On September 2, 1947, Booras sold the land on which the tank was located to Glenn V. Wilson. There is no specific reference to the tank in this act of sale. Thereafter, plaintiff demanded of Wilson that he either purchase gas from it, as was. stipulated in the contract with Booras, or return the tank. He refused to accede to either demand and this suit was instituted against him to have plaintiff’s alleged ownership of the tank recognized and possession thereof restored to it.

Defendant does not challenge plaintiff’s position with respect to the nature of the contract under and by which the tank was placed on Booras’ premises, but contends and argues that the tank, after being placed on the land, became a permanent improvement 'for the service of the premise's; that it thereby became an immovable by nature and destination and passed to defendant in ownership by the act of sale to him from Booras; that he purchased the land with all improvements thereon without notice of the contract between Booras and the plaintiff and is protected in his ownership of the tank by the registry laws of the state.

Defendant called Booras in warranty and prayed for judgment against him for the value of the tank and for attorney’s fee in the event plaintiff should succeed in its demand. Booras, being a non-resident, jurisdiction upon him was effected by attachment of his checking account in a Shreveport bank, which was impleaded as garnishee. However, without reservation through counsel, he came into court and answered the call in warranty. He challenged the correctness of defendant’s position in the case and joins the plaintiff in its contentions with respect to ownership of the tank. He avers that he never did own the tank and did not sell, nor did he intend to sell the same to the defendant; that the movable character of the tank has not undergone any change. He additionally avers that on June 14, 1948, after this suit was filed and served, defendant sold the property on which the tank is located to one Thomas E. Brown, deed thereto being recorded in the conveyance records of Caddo Parish; and, therefore, neither he nor defendant is in possession of the tank and are not in a position to deliver possession thereof to the plaintiff should the court decree it to be the owner thereof.

The demand of the plaintiff was rejected and its suit was dismissed. It and the defendant prosecute appeal from said judgment.

On trial it was established by introduction of the act of sale between them that defendant sold the land and premises on which the tank is located to said Brown several weeks after this suit was filed, and therein no mention of the tank is made.

It is admitted that notice of lis pendens was not recorded when or after the suit was filed.

As the warrantor and the defendant insist that defendant Wilson no longer has possession of the tank, a decree of the court ordering him to deliver possession thereof to plaintiff would be ineffective, as Brown is not a party to the suit, and judgment against Wilson and/or Booras would not be binding on him, we address ourselves first to this question.

Neither defendant nor the warrantor cites authorities on this phase of the question. Plaintiff has not in brief or otherwise discussed the issue.

In view of the situation, as stated above, our duty is clear. It would be vain and idle for us to proceed to a decision of the case as presently constituted. There is non-joinder of defendants. Brown i's a necessary party to the suit and until he has been impleaded no further action in the case can be properly taken.

The general rule that the question of non-joinder of parties should be tendered in limine has not a controlling influence where the absence of a necessary party to a suit is, from the record, manifest to the court. The court, in such circumstances, may take notice of such fact and direct such procedure as, in its judgment, will bring before it all persons whose interest will be directly affected by the judgment to be rendered in the case.

In De Hart et al. v. Continental Land and Fur Company, Inc., et al., 196 La. 701, 711-712, 200 So. 9, 13, Justice Odom, as the court’s organ, said: “The lack of proper parties in this case is shown by the pleadings. When the absence of a necessary party or parties is apparent from the record, the court may take notice of that fact on its own motion and may refuse to proceed further with the case.”

The following array of authorities is cited to support this holding of the court, to wit: “Cucullu v. Walker, 16 La.Ann. 198; Ashbey v. Ashbey, 41 La.Ann. 138, 5 So. 546; Burney’s Heirs v. Ludeling, 41 La.Ann. 627, 6 So, 248; Willis v. Wasey, 42 La.Ann. 876, 8 So. 591, 879; Blum & Co. v. Wyly, 111 La. 1092, 36 So. 202; Succession of Todd, 165 La. 453, 115 So. 653; Harvey v. Engler, 184 La. 858, 168 So. 81.”

For the reasons herein given, the judgment from which appealed is reversed, annulled and set aside; this case is now remanded to the lower court with direction that Thomas E. Brown, vendee of Glenn v. ’ Wilson, be made a party defendant and be served with process; and that the case thereafter be proceeded with in keeping with the views herein expressed and law applicable thereto.

It is 'further ordered that costs of appeal be and they are hereby assessed against plaintiff and defendant in equal proportions and that fixing of liability for all other costs be suspended until final judgment in the case.


text:
    LEON v. KILPATRICK LIFE INS. CO., Inc.
    No. 7312.
    Court of Appeal of Louisiana. Second Circuit.
    March 30, 1949.
    Morgan, Baker & Skeels, of Shreveport, for appellant.
    Browne, Browne & Bodenheimer, of Shreveport, for appellee.
   KENNON, Judge.

Alleging that the defendant insurance company had issued a policy insuring his daughter against certain medical and hospital expenses and that defendant had refused to pay expenses totaling $180 incurred by his daughter and covered under defendant’s policy, plaintiff filed suit for $180 together with a similar amount as penalties and for attorney’s fees and costs.

The defendant admitted the issuance of the policy, but alleged that the premium due on May 15, 1948 had not been paid until May 29, 1948 and that consequently, the insured’s sickness, which began on May 25, 1948, was not covered under the provisions of the policy, which contained the following condition: “If default be made in the payment of the agreed premium for this Policy the subsequent acceptance of a premium by the Company, or any of its duly authorized Agents, shall reinstate the Policy but only to cover such loss as may begin fifteen (15) days after the date of such acceptance of premium payment.”

The Judge of the City Court rendered judgment for the medical expenses sued for, but rejected plaintiff’s claims for penalties and attorney’s fees. From this judgment, defendant has prosecuted a devolu-tive and suspensive appeal to this Court.

Defendant on May IS, 1946 issued the policy to plaintiff covering medical benefits as alleged. The premium receipt book in the record shows that premium payments were made monthly. During the first four months the payments were made before the 15th day of the month. Half the twenty monthly payments preceding the date of claim were made after the 15th. Defendant’s contention is that since the policy contained a provision that no agent ■of the company has authority to change same or waive any of its provisions, the acceptance of the premiums after the due date had the effect of renewing the policy but only as to the losses that had their beginning fifteen days after the date of the acceptance of each late premium payment.

Some of the payments — due on the 15th —were paid on the 2Znd, 23rd or 25th, and listed under “date paid to” as a premium to the 15th of the following month. Thus, on the one made on the 25th, there was no protection during the ten days last past, as the premium was overdue, and no protection for the next fifteen days, so that the policy protection for the $3.75 premium accepted on the 15th would have been limited to the five days between the following 10th and 15th. If this provision were accepted, the effect would be to leave the policy holder unprotected during more than half of the twenty months for which he had paid — each month — a premium of $3.75.

Under these circumstances, it is likely that the action of the company in accepting late premium payments during half the twenty months preceding the claim would amount to an actual waiver of the time limit. However, we find it unnecessary to base our decision on the general rule that the habitual acceptance •of premiums after the due date constitutes a waiver of the time limit, because the Legislature of Louisiana covered such a ■situation by Section 7 of Act No. 136 of 1938, as amended and re-enacted by Act No. 339 of 1942. Among the conditions made applicable to all hospitalization policies by this Act (paragraph 4, Section 7), is the proviso that no policy shall be lapsed or forfeited for non-payment of premiums unless thirty days notice in writing has been given to the policy holder. (The same provision is carried in the Louisiana Insurance Code, Chapter 8, Section 8.02).

There is no evidence in the record that any such notice was given to the plaintiff nor is there contention made by defendant that any such notice was given.

Having given no notice to the insured, the defendant cannot escape liability under a policy upon which it had collected monthly premiums for a two year period preceding the sickness out of which the claim sued upon arose.

No answer to the appeal was filed and we therefore find it unnecessary to consider plaintiff’s original claim for attorney’s fees and penalties, which were rejected by the City Court.

The judgment appealed from is affirmed, with costs.


author: PER CURIAM.

text:
    DOLL v. DEARIE et al.
    No. 19087.
    Court of Appeal of Louisiana. Orleans.
    March 28, 1949.

      See also 37 So.2d 608.
    Marion G. Se-eber and Delvaille H. Theard, both of New Orleans, for plaintiff-appellee.
    Fred G. Veith, of New Orleans, for de-fendan'ts-appellants.
   PER CURIAM.

Emile M. Doll, plaintiff-appellee, acquired from the State of Louisiana two lots of ground, in Square No. 1308, Third District of the City of New Orleans. The State had acquired the property at a tax sale -made in .the name of Mrs. R. G. Dearie, the' tax debtor. The sale to Doll was made pursuant to the provisions of Act No. 237 of 1924, as amended. Doll instituted suit against the four heirs of Mrs. Dearie seeking to have his tax title quieted.

One of the defendants filed in the court below a letter which the court construed to be an answer. Thereupon Doll submitted by rule the question of his right to a judgment on the petition and answer (which proceeding is authorized by Act No. 157 of 1912, as amended), and obtained judgment as prayed for, with costs, from which the defendants have prosecuted this devolutive appeal.

Doll now moves to dismiss the appeal upon the ground that the Dearies, after the appeal was perfected, collected from the Treasury Department of the State of Louisiana, under the provisions ‘of Section 7 of Act No. 237 of 1924, as amended, the sum of $426.91, that amount being the surplus proceeds of the sale made by the State to Doll. It is Doll’s contention that in receiving the funds the defendants acquiesced in the judgment.

Appellants have answered the motion for dismissal, alleging -that they do not question the validity of the title acquired by Doll from the State;' their position is that the proceeding instituted by Doll to quiet the tax title was unauthorized by law, and that the judgment is without any legal foundation whatever.

Appellants cite Doll v. Meyer, 214 La. 444, 38 So.2d 69, 72, wherein the Supreme Court considered an identical situation and, on rehearing, -said: “* * * The judgment of the lower court purporting to quiet the title is of no effect because it is not authorized by law.”

If it be true, as alleged by Doll, that the Dearies collected the surplus remaining from the State’s sale of the property, that, we think, can only be construed as an acquiescence in the sale made by the State to Doll, and not as an acquiescence in Doll’s judgment against the Dearies quieting the tax title 'by which the State acquired, which judgment the defendants contend is without legal foundation and of no legal effect. In passing on a motion to dismiss,. the appellate court should not trench on the merits of the case, and of course, therefore, we do not decide whether Doll’s proceeding was authorized or what legal forcé reposes in the judgment.

It is universally established that the right of appeal should always be entertained with favor, and that an appeal will be dismissed only where the appellee shows himself clearly entitled to that relief. In cases of doubt, the interpretation will be liberally in favor of the appellant.

We believe that appellants should be heard on their appeal, and, therefore,' the motion to dismiss is denied.

Motion denied.


text:
    EASTMAN v. GAMBLE.
    No. 7315.
    Court of Appeal of Louisiana. Second Circuit.
    March 30, 1949.
    Algie D. Brown, of Shreveport, for appellant.
    Joseph H. Stephens, of Shreveport, for appellee.
   KENNON, Judge.

Plaintiff filed this suit to collect $148.95 allegedly due his wife for commissions earned while serving as a real estate saleswoman for the defendant, doing business as the Gamble Realty Company.

$122.50 of the amount was claimed as a commission on a sale covering property Municipal No. 1511 Arlington Street, Shreveport, Louisiana. The remainder plaintiff claimed was due for commission on a sale to a Mrs. T. R. Chandler.

Defendant in answer admitted that there was a balance due Mrs. Eastman of $6.95 for commission due her on the sale to Mrs. T. R. Chandler and tendered that amount to her with costs at the time answer was filed, but denied that any other commission was due Mrs. Eastman.

The answer admitted that a written contract was brought in by Mrs. Eastman dated October 7, 1947 covering the property on Arlington Street, but alleged that the sale under the contract was never completed because the seller refused to complete the sale on the terms of the contract as turned in by Mrs. Eastman, and that consequently her attempt to sell the property “fell through.” The answer further admitted that a sale was completed on December 1st between the parties to the October 7th contract, but set forth that the sale was on different terms and that defendant’s commission was included with $500 advanced by his son in a second mortgage note and-that all payments on the note made prior to the filing of the answer, had, by agreement, been applied to his son’s portion of the note, and set forth that, even should the Court find a commission due Mrs. Eastman, her demands were premature.

The Judge of the City Court gave judgment in favor of plaintiff for $129.45 ($122.50 plus $6.95), and defendant’s appeal from that judgment is now before us.

Mrs. Eastman testified that she was working for defendant under an arrangement whereby she was to receive one-half of the usuail 5% real estate commission on real estate listed for sale with defendant and sold through her efforts; that the Arlington Street property was so listed; ■that she was still in the employ of Mr. Gamble on October 7th when she, in response to a telephone calí, carried the prospective purchasers to the Arlington Street property where, after bringing the parties together, she prepared a contract for sale of the property and received a $40 payment “to seal the contract” and that she turned the contract and $40 over to defendant in his office and that the one-half of the commission due her on this sale—after deducting $25 admitted by both parties to be due to a Mrs. Barlow for securing an exclusive listing—amounted to the $122.50 awarded her by the City Court for her efforts in the Arlington Street property sale.

Mr. Gamble testified that the contract and $40 were turned over to him as contended by plaintiff, but that subsequently, he found that the owner was unwilling to sell for the $1,000 down payment set forth in the contract; that Mrs. Eastman left his employ on the afternoon of the day the contract was signed and that the sale was consummated between the same parties only after he had arranged for a first mortgage loan and for his son to advance $500 in cash, and after he had consented to have $245 due him (his commission) included with his son’s second mortgage note.

Mrs. A. A. McKeivie, a member of the real estate board, testified that it was usual for the management to “work out the sale” and usual for the salesman to earn a commission “if she brings the buyer and seller together and brings them to the office iji ífí

Mrs. Sally Dillion Lewis testified that she was employed as a saleswoman by defendant and'answered “yes” to the question by counsel for defendant: “Is it the rule (in the Gamble realty office) that the salesman has to take the transaction through and complete it before any- commission is earned?” However, it developed on cross-examination' that she began work November 1, 1947. Proof of the rules and practices followed by M'r. Gamble after plaintiff had obtained the contract and left his employ would not be as persuasive as similar evidence covering the time prior to the date of the contract forming the basis for the current suit.

The record shows that the sale on December 1st was completed between the same parties, and for the same total purchase price set in the October contract signed through Mrs. Eastman’s efforts. Defendant retained half the 5% commission on sales made by his salesmen, including Mrs. Eastman, and was furthering his own business when working out loan arrangements satisfactory to both parties.

We find that it was through Mrs. Eastman’s efforts that the parties were brought together and the essentials of the sale were agreed upon and reduced to writing and signed. Under her agreement with Mr. Gamble, her employee half of the commission was earned, provided the sale'was consummated and the commission received by her employer.

The record does not disclose any agreement that Mrs. Eastman’s right to commissions would be forfeited on leaving defendant’s employ. Under these circumstances, she was entitled to collect the agreed one-half of the 5% commission due Mr. Gamble on sales made by her as saleswoman before leaving his employ and subsequently completed "by him as broker. Barilleau v. Paquet, La.App., 159 So. 418.

Since the evidence shows that it was the custom in defendant’s office for salesmen to receive their one-half commissions only as the whole w.as actually received by Mr. Gamble, we deem it equitable that plaintiff ¡should be paid her portion of the commission only as the installments covering Mr. Gamble’s commission on the Arlington Street property are received by him.

The judgment appealed from is affirmed insofar as it awards plaintiff the $6.95 admittedly due. The remainder of the judgment is affirmed but subject to the •condition that defendant shall have the right to a stay of execution for any portion of the commission due plaintiff that has not been actually collected by defendant.

Costs of both Courts to be divided equally between plaintiff and defendant.


text:
    RAWLS v. ATLAS ASSURANCE CO., Ltd.
    No. 7317.
    Court of Appeal of Louisiana. Second Circuit.
    March 30, 1949.
    Gahagan & Pierson, of Natchitoches, for plaintiff-appellant-appellee.
    Morgan, Baker & Skeels, of Shreveport, and Watson & Williams, of Natchitoches, for defendant-appellant-appellee.
   KENNON, Judge.

Alleging that 'defendant had issued a policy of insurance on his-1940 Chevrolet truck and that same had been destroyed by fire on August 25; 1947, plaintiff filed this suit for $500, value of truck, together with 25% additional as penalties and $100 as attorney’s fees.

Defendant admitted the issuance of a policy covering plaintiff’s truck and that same was damaged by fire as alleged, but set forth that plaintiff had admitted that he set fire to his own truck and burned it in prder to collect insurance, and that this action made the policy null and void.

The answer further set forth that plaintiff had accepted $187.50 (the salvage value of the damaged truck, less $12.50 towing charges) in full settlement of his claim. Plaintiff’s claim for penalties and attorney’s fees was contested on the ground that no proof of loss had been filed as required by Act No. 59 of the Extra Session of 1921.

■ The District Court rendered judgment in favor of plaintiff for $275, which, on rehearing, was reduced to $225, and denied his demands for penalties and attorney’s fees. From that judgment, both plaintiff and defendant prosecute this . appeal.

The District Judge gave excellent reasons in his written opinion for holding that the defendant had failed to prove the charge that Rawls had intentionally set fire to the truck. We agree with this conclusion, believing it sufficient to note that there were no witnesses introduced who ■saw Rawls commit such an act and no corroboration of any sort of the adjuster’s statement that Rawls had made such a confession to him. On the contrary, the record contained a statement from Rawls in the handwriting of the same adjuster, containing no hint of intentional burning,. and setting forth the details of the accidental burning claimed by Rawls, whose testimony was supported by his fifteen year old son who was called to help put out the fire.

The record supports the finding of the District Judge that the value of the truck at the time of the loss was $400.

We next consider the question of penalties and attorney’s fees. Act No. 59 of the Extra ^Session of 1921 provides that in cases of this sort, an insurer must pay the amount due under the policy within sixty days of the date “upon which it received the proofs of loss offered by the assured,” and upon failure to so do, the company shall be liable for 25% penalties on the total amount of the loss, together with reasonable’ attorney’s fees, and that no such penalties or attorney’s fees shall be due in the event the insurance company pays the assured within sixty days “from date upon which it received the proofs of loss”. The record shows that blank forms- for proof of loss were mailed by the company and received by plaintiff in September, 1947 and that these were never signed and-returned by the plaintiff. Suit was instituted in November, 1947. Under these circumstances, the District Court correctly denied plaintiff’s claims for penalties and attorney’s fees. Fields v. Union Automobile Insurance Company of Los Angeles, Cal., 17 La.App. 78, 135 So. 276.

The judgment appealed from is affirmed. Costs of appeal to be paid by defendant.


author: TALIAFERRO, Judge. PER CURIAM.

text:
    BRITT v. LEADERBRAND.
    No. 7305.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.
    Rehearing Denied March 30, 1949.

      C. B. Prothro, of Shreveport, for appellant.
    LeRoy Smallenberger, of Shreveport, for appellee.
   TALIAFERRO, Judge.

Plaintiff, a commercial co-partnership, composed of Grover H. Britt and T. R. Britt, on January 24, 1947, purchased from the defendant, Ralph L. Leaderbrand, doing business in the City of Shreveport, Louisiana, under the trade name of Southern Mercantile Company, a large sized secondhand Hill 2-compartment cooler, for use in the conduct of plaintiff’s retail meat and vegetable business in said city. The cooler had been in use for some years at Barksdale Field by the Government, and was acquired by the defendant a brief time prior to its sale to the plaintiff. It was installed in plaintiff’s place of business by one Henry J. Smith, defendant’s agent.

The cooler was designed to accommodate meats and vegetables, one compartment being dedicated to each commodity. Meats, it is shown, to be preserved against deterioration and discoloring must be exposed to a temperature of from 32 to 34 degrees Fahrenheit.

Very soon after the cooler was installed it failed to maintain temperature adequate to preserve meats placed therein. This condition, each time it arose, forced plaintiff to transfer meats placed therein into a refrigerating counter to prevent •them from becoming unsalable.

Grover H. Britt several times endeavored to get in touch with Mr. Leader-brand to acquaint him with the cooler’s lack of functioning, but was unsuccessful. Pie did finally contact Mr. Smith, his agent, and complained to him of conditions. Smith undertook to correct the deficiency in the cooler’s functioning by making adjustments without supplying new parts. His first visit for this purpose was made six or seven days after the cooler was installed. At that time he found the temperature too high for meat preservation and finally succeeded in bringing it down to proper registration. His last attention to the cooler was about forty-five days after its installation. He then made repairs (the character of which is not shown) and, as testified by him, to the best of his knowledge, left the cooler in “good shape.” No charge was made for his services.

Notwithstanding Smith’s efforts and attention, the cooler continued to give trouble. On February 24th, one month after installation, plaintiff engaged the Howse Refrigeration Service to bring about satisfactory operation of the cooler. Mr. Howse, of this company, found that proper temperature was not being maintained and believing the trouble was due to the motor’s condition, removed it and carried it to an electrician for repairs. This consumed four hours, after which the motor was restored to place. A charge of $21.75 was made for this service, but the benefits derived therefrom, if any, were short lived because Mr. Howse on April 14th was again asked to give the cooler further attention. He did so and an additional expense of $27.18 was incurred. It is here unnecessary to give the nature of the repairs done on this occasion as no substantial change in the situation was wrought therefrom.

We conclude from the testimony that Smith’s last effort to correct the cooler’s unsatisfactory condition was prior to the second attempt by Howse to do so. Smith testified that he found evidence that someone had “tampered” with the cooler.

Finally, as the box persisted in its lack of efficient functioning, plaintiff employed Mr. E. A. King, evidently a competent mechanic, to ascertain the cause of the cooler’s condition and to correct same if possible. He did both. Several repairs and replacements were made, the main ones being the installing of two valves and a new and larger line of copper tubing. The motor was also found to be in bad shape due to burning, and this, too, was repaired.

It is evident from the extent and character of work done by Mr. King and the replacements necessary to attain desired service from the cooler, that someone prior to that time had rendered incompetent service to it. From the time King did his work to the date of trial the cooler gave highly satisfactory service. King’s charges for labor and replacements amounted to $154.68, which was paid by the plaintiff, as well as the charges made by Howse.

Plaintiff instituted this suit to recover from the defendant judgment for the amounts expended by it to the end that the cooler would render the service for which it was purchased, being $203.61.

It is alleged by plaintiff that the cooler’s condition, rendering it necessary to incur said expenses, existed at the time it was purchased from the defendant; that without incurring said expense the cooler was useless for the purposes for which it was desired and purchased; that had the cooler’s revealed condition been known to plaintiff it would not have been bought because a dependable box of the kind is indispensible to the successful conduct of a retail meat business.

Defendant generally denies the allegations of the petition, but admits that its agent, Smith, did receive one service call from plaintiff, soon after the box was installed, the complaint being that adequate temperature was not being maintained; that Smith found that all adjustments had been tampered with but he made the necessary corrections; that if the cooler failed to any extent to- render the service expected of it, it was due to plaintiff’s negligence in trying to make the adjustments itself or refusing -to avail itself of the services of defendant’s mechanic, or by having unskilled and untrained mechanics attempt to remedy the shortcomings.

Judgment was awarded plaintiff for $109.68, from which i-t prosecutes this appeal.

Immediately prior to taking of testimony defendant filed exceptions of no cause and no right of action, which were argued and by the court referred to the merits of the case. These exceptions are predicated upon the alleged ground that the petition does not affirmatively disclose that defendant was put in default after it was discovered that the contract of sale had been passively breached by failure of the cooler to adequately function. The lower court evidently concluded that the exceptions were not well founded, or else it would not have rendered judgment on the merits of the case. The exceptions are urged in brief in this court. As we view the record in the light of the established pertinent jurisprudence, the exceptions are not before us for consideration. Defendant did not appeal and has not answered the appeal perfected by the plaintiff. In these circumstances, the judgment and, of necessity, prior rulings on matters and questions concluded by it, may not, in appellee’s favor, be revised or amended by this court. Jones v. Chicago Mill & Lumber Co., La.App., 15 So.2d 826, and cases therein cited.

There remains for consideration only the adequacy of the amount of the judgment. Appellant contends that it should be amended by increasing -the amount thereof to that for which it sued.

This action is in reality one in diminution of the purchase price, otherwise known as quanti minoris. Bearing thereupon are articles Nos. 2541 and 2542 of the Civil Code, which read as follows:

“Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to -the reduction of the price.
“The buyer may also content himself with resorting to this action, when the quality, which the thing sold has been declared to possess and which it is found to want, is not of such importance as to induce him to demand a redhibition.”

In such a case the standard of responsibility of a bona fide seller, such as we find defendant to be, is the difference in value at date of sale between a sound and unsound article. Stating the principle differently, it may be said that measured in dollars and cents the amount necessarily expended to put the article in the sound condition tacitly, if not expressly, guaranteed by the good faith seller, is the difference between a sound and unsound article. See: Iberia Cypress Co., Ltd. v. Von Schoeler 121 La. 72, 46 So. 105; William S. Peterkins v. George Martin 30 La.Ann. 894; Pere v. Dalgarn 3 La.App. 775-778.

It is not seriously denied by the appellee that the cooler, immediately after being installed, developed deficiencies that rendered it unfit for the use and purposes for which, to appellee’s knowledge, it was purchased. Smith, Howse and King all testified that when they reported, at plaintiff’s request, to ascertain the cooler’s condition, each found that it was not maintaining proper temperature to preserve meats. Each then tried his hand at repairing it.

To allow the cooler to remain in the condition found by each of these workmen would have necessitated non-use of it, or would have, if used, made certain the spoiling of meats placed therein with con-1 sequent loss to the owner; and, in addition, he would have been exposed to suits for damages by customers to whom any of the meats were sold.

In view of the foregoing circumstances, the reasonable or logical course to have taken was to bring the matter to defendant’s attention and, failing in this, to contact its service man, Smith, as was done. Had defendant been contacted he would doubtless have called upon Mr. Smith to give the cooler his best attention. Smith having failed to put the cooler in proper running order, plaintiff was within its own rights when it 'looked elsewhere for assistance. Not being an experienced refrigerator mechanic, it had to rely upon advice of those who professed to be competent in such business. If it erred in selecting Mr. Howe, the expense incurred thereby should not fall upon it. The proximate cause of the loss was not due to any lack of care on plaintiff’s part but to defendant in selling an unsound article and not repairing same after several opportunities to do so.

Briefs of counsel do not enlighten us as to why the court gave judgment for an amount that does not correspond with the charges of either King or Howse. The minutes show that the amount of the judgment was intended to cover “cost of labor and materials for replacing valves and tubing.” This, of course, has reference to the expense bill of Mr. King.

We can perceive of no good reason for dividing King’s bill. Evidently the entire amount of same was necessary to put the cooler in first rate running order. Certainly we would not be warranted in arbitrarily holding that any part of this bill was incurred unnecessarily. No effort whatever was made by the defendant to prove such to be true.

For the reasons herein given, the judgment from which appealed is amended by increasing the amount thereof to Two Hundred Three and 61/100 ($203.61) Dollars, with interest at legal rate from judicial demand; and, as thus amended, said judgment is affirmed with costs.

On Rehearing.

PER CURIAM.

In the opinion in this case we erroneously stated that the appellee had not answered the appeal. Counsel for appellee has directed our attention to the error, and we now gladly correct same in justice to him and to keep the record straight.

The application for rehearing is denied.


author: FOURNET, Justice.

text:
    214 La. 1023
    HAND v. HAND.
    No. 38941.
    Supreme Court of Louisiana.
    March 21, 1949.
    Edward A. Generelly, of New Orleans, for plaintiff in Rule and appellant.
    Richard A. Dowling, of New Orleans, for defendant in Rule and appellee.
   FOURNET, Justice.

Peter Hand, from whom Mrs. Eunice Kernan Hand obtained a judgment of divorce on May 26, 1947, granting her custody of their minor child, Kernan Hand, and awarding her alimony for herself and child in the amount of $100 a month, filed a motion in Court on June 18, 1947, asking that this monthly amount be reduced to $50, claiming that his only income is $37.50 a week, less social security deductions. From a judgment reducing the alimony to $85 a month Hand prosecutes this appeal.

.The. evidence in the record reveals that although the appellant did testify that at the time he filed the motion for the reduction of the alimony he was only making $37.50 -a week, less deductions, and that from that date until the trial of the motion, October 10, 1947, his only other income was an advance of $140 made, by. the Charbonnet Realty Company, his employment by that company being on a commission basis only and he having made no sales, he has real estate valued at $22,000, against which there is an outstanding mortgage of $12j000, and his gross income for' 1946 was $9,797.44 with a net to him of $7,604.41, while in Í945 it was $28,000'. While the motion for the reduction of alimony was pending he 'sold a Cadillac automobile for $1,000 cash.

The record also shows that a little over a month after he filed the motion and while action thereon was pending, Hand contracted another marriage, with Miss Josie Albano. She testified that in July of 1947 (about the time of the marriage) she purchased 15 shares of stock in the Charbonnet Realty Company for $1,500 cash (this- is the company that advanced him $140 although he claims to b'e working for it on a commission -basis and admittedly ■had made no- sales) with money accumulated by her from cash gifts from her father which she kept in a bank box at the Whitney National Bank. When questioned about these gifts she was able t'o identify definitely only one such gift, i. e.„ a cash gift of $500 to her at Christmas in 1945, her testimony with respect t'o other cash gifts being rather vague. She also testified that her father gave her the 1947 Ford car she owned at the time. Her father was not called in corroboration of any part of this testimony.

In view of the foregoing, we cannot say ■the trial judge manifestly erred in fixing the alimony at $85 a month.

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

O’NIELL, C. J., takes no part.


author: HAMITER, Justice.

text:
    214 La. 1026
    STATE v. POPE.
    No. 39167.
    Supreme Court of Louisiana.
    March 21, 1949.
    Rehearing Denied April 25, 1949.
    Ponder & Ponder, of Amite, and Pugh & Pugh, of Denham Springs, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Joseph A. Sims, Dist. Atty., of Hammond, Duncan S. Kemp, Jr., of Amit-e, and M. C. Rownd, of Springfield, for appellee.
   HAMITER, Justice.

.The defendant, Albert Pope, appealed from his conviction of the crime of aggravated battery (a felony), as well as from a sentence of five years and six months at hard labor in the state penitentiary, and submits for our consideration numerous bills of exceptions.

On-.thé hearing-of the appeal defense counsel complained, under several of the bills, that the accused was ordered to trial without a valid arraignment. They urged, in this connection, that the minutes of the trial court do not affirmatively show that the defendant was present when his then attorney waived the reading of the. indictment and pleaded not guilty, all as is required by the following provisions of the Louisiana Code of Criminal Procedure:

Article 257. “If the charge bé a felony, defendant can plead only in person; if a misdemeanor, he may plead through counsel.”

Article 258. “Though the charge against the defendant be a felony, he may, if present in person, waive in person or through counsel, the reading of the indictment and then and there plead.”

And in a subsequently filed brief defense counsel insist that the omission from the minutes of an affirmative showing of presence constitutes reversible error under our decision in State v. Coston, 113 La. 717, 37 So. 619.

The jurisprudence of this state is to the effect that one tried for a felony must be personally present' -in court at every important stage of the trial from the moment of his arraignment to his sentence; otherwise a verdict against him and the sentence will be set aside. Further, the minutes of the court must affirmatively disclose that he was present. State v. Thomas, 128 La. 813, 55 So. 415; State v. White, 156 La, 770, 101 So. 136; State v. Futrell, 159 La. 1093, 106 So. 651; State v. Layton et al., 180 La. 1029, 158 So. 375,

. The minutes.of■ May,3, 1948, respecting the arraignment of this defendant, recite: “This day the accused was arraigned, and through his attorney, waived the reading of the indictment, and plead not guilty, the case was then assigned for trial Tuesday, June 8, 1948. The defendant was then served with a-copy of the Jury Venire and the counsel for the defendant was given until Friday morning to file any motion.”

While the entry furnishes the impression that the accused was present when arraigned, it does not affirmatively show that fact, as is necessary. And in view of this deficiency the Coston case, cited and relied on by defense counsel, seemingly is authority for setting aside the verdict and sentence, although the holding therein was based also on other ascertained errors. See too State v. Layton et al., supra.

There are other decisions, however, announcing a different course to be followed, they being to the effect that where it appears that very probably the accused was actually presént, but the minutes fail to definitely so declare, this court of its own motion, before considering the merits of any of the bills of exceptions and without setting aside the verdict and sentence, will remand the 'case to the district court. On the remand an, opportunity is afforded the state to prove, contradictorily with the defendant, that he was present, and, if such is shown, to have the minut.es corrected accordingly.

Of the two courses unquestionably,-the latter is the sounder. If an accused was actually present he in no manner has been prejudiced by a mere failure of the person preparing the minutes to record that fact. Moreover, the same procedure has been followed in correcting the minutes generally so as to disclose the true facts respecting all important steps in the prosecution of an accused. State v. Oliver, 151 La. 659, 92 So. 217; State v. Obey, 193 La. 176, 190 So. 371; State v. Peyton, 193 La. 354, 190 So. 579.

For the reasons assigned, and without disturbing the’ verdict and sentence, it is ordered that this case be remanded to the district court for the purpose of enabling the state to show contradictorily with the defendant whether or not he was present when arraigned on May'3, 1948, and if he was present to have the minutes corrected so as .to affirmatively., disclose that fact. The transcript is to be returned to this court within 60 days from the date of this order.

O’NIELL, C. J., takes no part.

PONDER, J., recused.


author: MOISE, Justice. McCALEB, Justice PER CURIAM.

text:
    214 La. 1031
    DODGE v. BITUMINOUS CASUALTY CORPORATION.
    No. 38912.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Rehearing Denied March 21, 1949.

      Durrett & -Hardin, of Baton Rouge, and Seth Lewis, of Opelousas, for defendant, appellant, and applicant.
    A, V. Pavy, of Opelousas, for respondent.
   MOISE, Justice.

This is an ex delicto action to recover property damages against the insurer of a Ford truck. Plaintiff’s car was involved in a collision about a half mile from Sunset; Parish of St. Landry, La., on December 6, 1945, at about 7 p. m., when he collided with the truck which, without flares, lights or other warning signals, wáá parked in the same path on the highway in which he was travelling. The petitioner alleges that he did not see the parked truck until he was right upon it and that it was dark and visibility was affected by traffic approaching from the' opposite direction and he .could not' have possibly avoided the collision.

The defendant answered the petition and, in the alternative, charged that the plaintiff was guilty of contributory negligence. Thereafter, the defendant ■ filed 'an .exception of no cause of action, which was referred to' the merits. After hearing, the district court gaye judgment for the plaintiff. An appeal was taken to -the Court of Appeal and with a slight -adjustment the judgment was affirmed. Defendant applied for and writs were granted by this Court. The matter is now before us for review.

The exception of no cause of action filed by the defendant is re-urged here and, alternatively, on the merits and considering the evidence, .defendant contends that'as a matter of law plaintiff was guilty of contributory negligence and that it should have judgment, in reconvention, as prayed for against the plaintiff.

As a general rule, contributory negligence being a special defense cannot be pleaded on an exception of no cause of action, since negligence is a question of fact which must be determined by a trial on the merits. There is, however, an exception to this general rule. For example, if the inference can be drawn from the facts alleged by the -plaintiff showing him to have been guilty of. contributory negligence, this negligence can be determined as a matter of law 'by the judge. McMahon, Exception of No cause of Action in Louisiana, 9 T.L.R. 17, 22 (1934). The first clear rule on this subject was formulated in Gibbs v. Illinois Central R. Co., 169 La. 450, 125 So. 445. In that case the court held that an exception of no cause of action based on plaintiff’s contributory negligence should not be maintained unless the facts alleged by the plaintiff show affirmatively that he was guilty of negligence and that such negligence was the proximate cause -of the accident. This rule places the determination of each case on a trial on the merits rather than on paper pleadings. A decision on the exception of no cause of aotion is not a fair way to determine the rights of litigants, since the facts alleged in each case raise several problems materially affecting those rights which can best be solved by the hearing of ■evidence in the case.

In West v. Ray, 210 La. 25, 26 So.2d 221, 224, the Court stated:

“We conclude therefore that an affirmative defense, presented' through exceptions or motions tried or triable only on the face of the petition, should not be sustained unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based.”

The record shows that the petition .as amplified by the evidence fully embraces the charge of negligence against the defendant. The plaintiff was driving his .automobile at a legal rate of speed on the paved highway, it was nighttime, his lights were burning, and he was keeping a careful lookout ahead. The truck was stationary on the highway, without lights and without flares, as required by law, and was parked at an angle of about 45° on the paved highway, extending about 4 or 5 feet into the lane of traffic in which the plaintiff was travelling. The plaintiff’s visibility was affected by the oncoming traffic with lights burning, approaching from the opposite direction 'and he did not see the un-ligbted parked truck until he was right on it and could not have avoided the collision because to swerve around the truck would have brought him head-on into an oncoming car. Mrs. Antoon, a passenger in the oncoming car, with headlights burning, was produced as a witness. She testified that there were neither lights, 'flares nor signals of any kind to warn the public that the parked truck was standing on the paved highway. The defendant offered no evidence to establish his alternative defense of contributory negligence.

From a chronological study of the respective acts of the Legislature relative to the issue of law in this litigation, we find that the Legislature in enacting into law the Rules of the Road, was trying to remd edy the unsafe condition of the public highways of the State and to malee them safe for the public. When the supreme law-making power of the State is legislating within constitutional limitations on the law of the road, it speaks on that subject with authority to the executive and the judicial branches of the government, as well as to the entire population of the State. Section 5 of Act No. 232 of 1926 provided that a truck standing on the roadside from one half hour after sunset to one half hour before sunrise “ * * * shall have the tail light, or a parking light mounted on the left rear fender, burning at all times.” This Act was repealed, insofar as its provisions conflicted therewith by Act. No'. 296 of 1928. In this latter Act the Rules of the Road were assembled under Title II. Section 50 “Required Lighting Equipment,” mentions the period of time from one half hour after sunset to one half hour before sunrise, and specifies “lighted front and rear lamps or reflectors”. However, no mention is made of a stopped or parked vehicle except >in Section 26, which clearly covered stopping during daylight hours only. Act No. 21 of 1932, which repealed the 1928 Act but includes many provisions of the repealed Act verbatim, remedied this condition. Section 26 of Act No. 296 of 1928 became Rule 15, § 3 of the 1932 Act, with the following modifications: To subdivision (a) was added the proviso that if a vehicle were left parked during the hours of darkness, there should be displayed thereon appropriate signal lights sufficient to warn approaching traffic; and then comes a most pertinent provision fitting with plastic-adaptation the Rule of the law for the road, which must be given great weight in a determination of responsibilities for an accident. To subdivision (c) was added the following: “* * * it shall be the duty of the owner or driver of any such vehicle to remove the, same as soon as possible an'd until removed to protect traffic from same at his responsibility.” Act No; 21 of 1932 was repealed by Highway Regulatory Act No. 286 of 1938. This Act parallels the former law and Rule 15 remains the same except for some few minor details. Since the Act of 1938, ho subsequent amendment has affected the potency -of Rule 15.

In the instant case the driver of the parked truck failed to comply with the above quoted law enacted as a Rule of the Road. The responsibility to protect traffic 'on the road is fixed by statute.- The liability for any injury or damage is therefore upon -the defendant.

We have observed that heretofore, in sustaining -an exception of no cause of. action, it appears that the Court did not consider this Rule 15, in certain collision -cases.

In addition to the above, Act No-. 164 of 1936, amended by Act No. 215 of 1942, requires that trucks on the highways are to be -equipped with portable flares and the manner in which said flares -are to be displayed is therein set forth. The flares are to be visible for a distance of five hundred feet.

Where there is no law on a subject the court may adopt -theoretical standards from common sense experience for the insuring of the safety of the road, but all must be tested by concrete factors — the law- and the evidence. The letter of -the law must not be disregarded under the pretext of pursuing its spirit.

It is our conclusion that the evidence herein affirmatively shows that the defendant was guilty of negligence and that such negligence was the proximate cause of the collision.

For the reasons assigned, the writ of certiorari is recalled -and the judgment of the Court of Appeal is affirmed at defendant’s costs.

-HAMITER, J., concurs in the decree.

O’NIELL, C. J., does not take part. •

McCALEB, Justice

(dissenting). .

The question for decision in this case- is whether plaintiff, in colliding with the rear of the unlighted parked truck, was guilty of negligence which contributed to the accident. Albeit, certiorari was granted for the specific purpose of considering whether the opinion of the -Court of Appeal conflicts with'our decision in Louisiana Power & Light Company v. Saia, 188 La. 358, 177 So. 238, which is neither discuss-ed no-r even cit-ed in the main opinion.

As I understand it, the result reached herein is predicated on two v-iews, (1) that-neither plaintiff’s petition nor the proof submitted by him exhibits contributory negligence on his part and (2) that, in any event, his fault is of- no moment because-subdivision (c) of Rule 15 of the Highway Regulatory Act, Act No. 286 of 1938, renders defendant liable under all circumstances and conditions. I will consider th-es-e rulings in their reverse order.

Rule 15 of the Highway Regulatory Act of 1938 prohibits the parking of vehicles-on highways when it is practicable to leave-them standing off the paved o-r travelled portion of -the thoroughfare. And it provides that, if the vehicle is parked a half hour after sunset or before sunrise, it shall display appropriate signal lights thereon .sufficient to warn approaching traffic of its presence. Subdivision (c) of the rule,, on which the majority strongly relies, declares that the rule shall not apply to a disabled vehicle which is compelled to stop* on the highway and provides that, in such cases, th-e owner or driver thereof shall be obkged to remove it as soon as possible and that “until removed to protect traffic from same at his responsibility.”

In the case at bar, there can be no doubt th-at defendant was guilty of. negligence. No one questions this, as the truck was parked at an angle on the public highway without lights. But this does -not mean that plaintiff is entitled to recover without showing that, due to the surrounding conditions and • circumstances, -h-e was not able to detect its presence in-time to bring his car to -a stop. Yet the decision herein, -employing subdivision (c) of Rule 15 of the Highway Act -as a predicate, indicates that plaintiff must ■ recover because defendant’s' violation rendered it absolutely liable, irrespective of plaintiff’s fault. This ■conclusion ■ has the effect of abolishing the law of contributory negligence in cases-involving a violation of Rule 15 of the Act. I cannot believe that the Legislature intended such a result.

The majority also resolved that plaintiff’s petition and the evidence offered by him exhibited a freedom of negligence on his part. To this, I cannot agree as it is my view that the allegations of the petition, and more particularly the proof adduced in support thereof, are insufficient to take the case out o-f the rule approved in Louisiana Power & Light Company v. Saia, supra, that, where a motorist runs into the rear of. a parked vehicle, he must affirmatively show; the presence of unusual circumstances and conditions in order to be excused from negligence, even though the accident occurs at night. Compare Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377.

In the Saia case, plaintiff’s automobile ran into a parked and unlighted truck and trailer on U. S. Highway 90 during the night time. It alleged in its petition that, although its driver was exercising due care in observing the highway ahead of him, he was unable to and did not see the unlighted truck and' trailer in time to avoid striking it. In holding that the petition showed that plaintiff’s driver was guilty of contributory negligence, in that he had violated Section 9, Subd. (g) 1 of Act. No. 21 of 1932, the State Highway Regulatory Act (then in force), requiring every vehicle to be equipped with -burning headlights of sufficient strength to make clearly discernible any person on the highway for a distance of 200 feet ahead, the court sa-id [188 La. 358, 177 So. 239]:

“In applying this provision of the statute,' the courts havé concluded that a motorist is held to have seen an object, which, by the use of ordinary care and prudence, he should have seen in time to avoid running into it, and that the driver of an automobile is guilty of negligence in driving at á rate of speed greater than that in which he could stop within the' range of his vision. O’Rourke v. McConaughey, La.App., 157 So. 598-606; Hutchinson v. [T. L.] James & Co., La.App., 160 So. 447; Sexton v. Stiles, 15 La.App. 148, 130 So. 821, 828; Blahut v. McCahil, La.App., 163 So. 195; Goodwin v. Theriot, La.App., 165 So. 342; Waters et al. v. Meriwether Transfer Co., 18 La.App. 18, 137 So. 578.
“It does not appear from the record that the plaintiff at any time offered an amendment to its petition to explain that there were any unusual circumstances which might have puzzled and confused the driver, as a prudent and careful operator, and prevented him from seeing -the parked' vehicle. * * * ”

In the instant case, plaintiff has not exhibited any unusual circumstances which prevented him from observing the parked truck in time to avert a collision. The sole allegation of his -petition is that “said parked truck was not visible to petitioner when cars approached from the opposite direction, petitioner representing that at the time of the collision be was driving his -automobile at a moderate speed, headlights burning properly, was keeping a careful lookout ahead -and said parked truck suddenly loomed up in front of him, * * If plaintiff’s headlights were burning properly and he was keeping a careful lookout, there was no reason why he could not see the truck, unless it be that he means, by his allegation that the truck was not visible “when oars approached from the opposite direction,” that he was blinded by the headlights of those cars. But he does not allege this and he has at no time offered to amplify his petition in that respeot. His averment that he was keeping a careful lookout is merely a conclusion; the law charges him with the duty of seeing that which could be seen by a prudent motorist.'

But, even if it be generously assumed that the allegations of the petition are sufficient to eke out a cause of action, plaintiff’s evidence falls far short of exhibiting any excuse for his failure to see the parked truck. When questioned about the accident, plaintiff stated as follows:

“■Well, I was going to Bellvue. Was driving between forty and forty-five mile's an hour, and I carne upon a truck bn the highway about a half mile from the city limits. I came upon a stopped truck in the road, and I threw my brakes on because this truck was sitting on the road without any flares, no signal, or no warning of no kind, and I was up on it when I saw it. So I started to swerve out to miss the truck, but there were some cars approaching, so instead of having a head-in collision, I had to hit the truck, and after the accident there was Mrs. Antoon and Mrs. Henry Monteilh — was coming in the opposite direction.” (Emphasis mine.)

Thus, it is manifest that plaintiff does not attempt to explain why he was unable to see the parked truck — he simply makes the bald statement that he did not see .it. He does say that, after the accident, a car containing two ladies was coming in the opposite direction but at no time during his examination did'he testify that he was blinded by the headlights of that or any other car; that the night was foggy or that there was any other reason why .he could not, by exercising the ordinary prudence required of every motorist, see the parked truck in time to avoid striking it.

Indeed, the facts of the case reveal that plaintiff was driving on a perfectly straight and level road of usual dimensions with gravel and dint shoulders on each side some eight or nine feet wide — and he testified that his headlights were burning properly. Under such conditions, in the absence of a showing that he was blinded by the headlights of cars coming from the' opposite direction; it is patent that he is guilty of negligence in failing to see the parked truck and stop his car,, which was travelling at 45 miles per hourj short of a collision. That his negligence bad causal connection with, and was a contributing factor to, the accident can hardly be gainsaid.

I respectfully dissent. ’ •

On Application for Rehearing

PER CURIAM.

The defendant urges strenuously in support of its application for rehearing that the majority opinion in the instant case is erroneous because it failed to take into account the plea of contributory negligence, and because it erroneously interpreted Rule 15(c) of Section 3 of Act No. 286 of 1938 to mean that one.who stops and -parks a vehicle on the highway at night, and leaves it standing unlighted, is an insurer of a motorist who collides with such vehicle. The court did take into account the plea of contributory negligence and found from the facts of this case that the plaintiff was free of negligence. If there was any inference in- the opinion that the defendant was the insurer,of the plaintiff in this case, it was unintentional, for we ..consider that whether a plea of contributory negligence is valid in such a collision case is dependent upon the facts of each particular case.

Rehearing refused.

McCALEB, J.; dissents from the refusal of a rehearing.

       The majority opinion declares: “The plaintiff’s visibility was affected by the oncoming traffic with lights burning, approaching from the opposite direction * * y fa;i f0 gn(j any evidence in the record to support this statement.