text:
    HUTTO et al. v. ARBOUR et al.
    No. 2267.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Writ of Error Refused Jan. 5, 1942.

      Fred G. Benton, of Baton Rouge, St. Clair Adams & Son, of New Orleans, Dur-rett & Hardin, of Baton Rouge, and Obier & Middleton, of Plaquemine, for appellants.
    Starring & Walsh, of Baton Rouge, for appellees.
   OTT, Judge.

Mrs. Mary Evelyn Hutto, wife of Charles B. Hutto, and her minor daughter, Mary Evelyn, were driving west on Convention Street in the City of Baton Rouge in a Dodge Sedan around seven o’clock P. M. on May 31, 1937, when the car which Mrs. Hutto was driving was struck on the rear by a truck of the “wrecker type” going south on North 16th Street and driven by the defendant Arbour. The collision occurred after Mrs. Hutto had gotten about three fourths across the intersection of these two streets.

This suit is by Mrs. Hutto for damages in the sum of $13,000 on account of injuries which she claims to have sustained in the collision; by her husband, Charles B. Hut-to, in his own behalf for $541,25 for damage to the car driven by his wife and for medical and other expenses incurred by him on account of injuries suffered by his wife and daughter, and on behalf of his minor daughter for personal injuries which she is alleged to have sustained in the sum of $1,000. The Fulton Fire Insurance Company joined in the suit and asked to be paid a sum up to $216.25 out of any amount awarded Charles B. Hutto for damage to his car by reason of a subrogation from him to the company to cover the payment by the latter to the former of that amount under an insurance policy for damage to the car in the collision.

The defendants against whom a judgment in solido is sought for said amounts are: G. D. Arbour, the driver of the wrecker-truck ; Sidney J. Babin, the Iberville Motor Co., Inc. (hereafter called the motor company) and the Massachusetts Bonding and Insurance Company (hereafter called the insurance company). The grounds on which each of these defendants is sought to be held liable are as follows:

Arbour on the ground that he was negligent in operating the wrecker-truck in that he entered the intersection at an excessive speed, failed to have the truck under control and failed to accord Mrs. Hutto the right of way over the intersection which she entered first and had pre-empted, and failed to take the necessary precautions to keep from striking her. Babin and the motor company are sought to be held liable for the acts of Arbour on the ground that at the time of the accident he was on a mission for Babin and the ihotor company in picking up a burned truck to be taken’to a used car parts lot operated jointly by them; and the insurance company is joined in the suit by reason of a policy issued by it to the motor company to protect the motor company against liability incurred in its business of automobile dealer or repair shop.

Arbour made no appearance and judgment went against him by default. As to the other three defendants, answers were filed and the case tried, resulting in-a judgment against all four defendants in' favor of Mrs. Hutto for $2,000, in favor of the daughter, Mary Evelyn for $250, and in favor of Charles B. Hutto for the sum of $536.35, with a recognition of the subrogation in favor of the said Fulton Fire Insurance Company for $216.25 out of the amount awarded Charles B. Hutto. Th'e motor company and the insurance company have perfected a suspensive and devolutive appeal, and Babin has perfected a devolu-tive appeal only. Arbour has taken no appeal, and, of course, we are not concerned with the judgment rendered against him.

Various exceptions of misjoinder, improper cumulation of causes of action and vagueness were filed by the appellants in the lower court and were overruled by the court. These exceptions are not pressed in this court and must be considered as abandoned.

The motor company and the insurance company filed a joint answer in which they deny that Arbour was acting as agent or employee of the motor company, or in its behalf, at the time of the accident, but aver that he was acting,as the agent of and on the business of Babin. They admit that both Arbour and Babin were employed by the motor company as mechanics, but deny that the company had any interest in or control over the operation of the used car parts lot which was owned and operated by Babin separate from his employment as a mechanic and as a separate business of his own, and that Arbour at the time of the accident was on a mission for Babin in connection with said separate business. They admit the issuance of a policy by the insurance company to the motor company, but aver that the policy only covers the liability of the motor company in the operation of its business as an automobile dealer or repair shop. They deny that the wrecker being driven by Arbour at the time of the accident belonged to the motor company, but averred that it was owned by Babin. In the alternative, and in the ¿vent it is found that the motor company is liable for the acts of Arbour, they deny negligence on the part of Arbour and aver that Mrs. Hut-to was guilty of contributory negligence which contributed 'to the accident in driving across the'intersection at an excessive speed, in failing to recognize Arbour’s right of way, and in failing to take the necessary precautions before entering the intersection and in darting into th.e intersection directly in front of the wrecker.-

Babin filed a separate answer and is represented by different attorneys. In addition to admitting that he and Arbour were employed by the motor company as mechanics and denying any negligence on the part of Arbour, he made the following allegations in his answer to paragraphs four and nine of the petition which reflect his position in the matter:

“In answer to paragraph four respondent shows that prior to the 31st day of May, 1937, respondent and the Iberville Motor Company, Inc. operated a lot in the •Parish of Iberville at which junk cars were dismantled, and parts resold in the name of ■“Babin Used Car Parts Lot” but that some time prior to May 31st, 1937, the said Iber-ville Motor Company, Inc. sold to respondent its interest in the junk cars on the lot' for the sum of $105.00, and thereafter and ■on May 31st, 1937, the further and only inJ terest of the Iberville Motor Company, Inc. under said sale was a right to dispose of their junk cars on said lot, either by sale to respondent, Sidney J. Babin, at a low price, or simply by placing the said junk cars there without any cost to the Iberville Motor Company, and a further right on the part of the Iberville Motor to receive out of said dismantled cars such parts as were necessary in the repair of the Iberville Motor Company’s second hand cars, without paying anything for these parts.
“In answer to paragraph nine respondent shows that the said G. D. Arbour was a regular employee of the Iberville Motor Company, and that he was the regular driver on the wrecker truck in question, regardless of the hour of the day the wrecker was called out, and that on the day in question he left the Iberville Motor Company, Inc. with the said wrecker with the knowledge and consent of the Iberville Motor Company, about fifteen minutes or a very short time before the end of his regular working ho.urs, and that his purpose in coming to Baton Rouge, Louisiana, was to pick up the junked truck in question with the understanding that this truck was to be returned to the lot operated by respondent; and that the said wrecker made the trip to Baton Rouge and was to return the said junked truck without any charge to respondent under the foregoing arrangement whereunder the sole and only interest of the Iberville Motor Company therein was to select out of the parts of the junked truck after it was dismantled on respondent’s lot such parts as the Iberville Motor Company could use in its own business and purposes.”

In determining whether or not the motor company and its insurer are liable for the alleged negligent acts of Arbour, it is of course necessary to determine whether or not at the time of the accident he was on a mission for the motor company and in furtherance of its business as an automobile dealer or repair shop, or in connection with matters incidental thereto; There is no question but that up to March, 1936, the motor company and Babin operated aqunk shop lot near Babin’s residence either as partners or under some arrangement for their joint benefit. In March of that year, however, Babin purchased all the used cars and parts of cars and trucks then stored on said lot, with the privilege on the part of the motor company of using without cost to it of said parts in the repair of cars in its regular business.

It is contended by plaintiff that the motor company and Babin continued the course of dealing after this agreement was made by which the motor company continued to sell Babin used cars and take parts from the lot for use in repairing its cars in much the same manner as was done before Babin purchased the used cars and parts on the lot belonging to the motor company; that the wrecker which Arbour was driving at the time of the accident belonged to the motor company and was driven by Arbour for the motor company whenever wrecker service was necessary; that the trip made by Arbour to Baton Rouge with the wrecker at the time of the accident was for the purpose of picking up a wrecked truck to be brought to this lot and dismantled, with the privilege on the part of the motor company to use any of these parts in its repair business in the same- manner as it was and had been using parts from other cars from this lot, and therefore the mission of Arbour was for the joint benefit of Babin and’ the motor company.

The evidence shows that the wrecker which Arbour drove to Baton Rouge was built by the motor company from the chassis of an old truck taken from Babin’s junk lot, and this wrecker was used by the motor company in its wrecker service and was also used at times to bring used and junked cars to Babin’s lot. The motor company obtained a 1937 license for the wrecker as owner, and Arbour drove the wrecker for the motor company whenever it was necessary to pick up a wreck, and at times and as an accommodation to Babin, he would pull in a used car to the junk lot without charging Babin anything for the service.

Between the time of the agreement between Babin and the motor company in March, 1936, and the date of the accident, a rather loose course of dealing took place between the motor company and Babin with reference to the sale of used cars by the former to the latter and the use and purchase of parts from the lot by the motor company. There is no question but that the motor company continued to send many of its used or junked cars to Babin’s lot and got parts therefrom more or less regularly for use in its repair business. There is a lot of evidence in the record tending to show that the motor company for several months prior to the accident charged Babin with the used cars given him and gave him credit for parts taken from the lot. Without going into the details of these various transactions, we think there were times when the motor company got parts from this lot without paying for them; that both Babin and the motor company were not 'very particular in keeping up with the transactions between them in this respect, each rendering service for the other in many cases as a mere accommodation.

However loosely they may have carried on their relations with reference to the operation of this junk lot, it is clear that Babin and the motor company had no partnership relationship in respect thereto, nor did the motor company participate in any of the profits derived from the junk lot. The principal advantage that the motor company obtained from the operation of this junk lot was in the convenient method afforded it of disposing of its used cars and getting parts for use in its repair shop. The vital and controlling factor is the connection the motor company had with Ar-bour and the mission he was on when the accident occurred.

All of the evidence shows that Babin sent Arbour to Baton Rouge to pick up the burned truck and bring it to his junk lot; that Babin gave Arbour the money to pay for the burned truck and paid Ar-bour for expenses in crossing the river going to and returning from Baton Rouge. Arbour did not charge for the trip as he had accommodated Babin, a fellow employee, on several occasions. It is true that Arbour left some fifteen minutes before his regular quitting time at the motor company and got permission from the shop foreman to leave and take the wrecker which was being used by the motor company to make the trip. He did not go on this trip under any orders or instructions from the motor company or any of its agents, nor did he make the trip on time paid for by the motor company. An employee of Babin working at the junk lot made the trip with Arbour to help him pick up the wreck.

Assuming that the motor company was the owner of the wrecker for the purposes of this case, the mere fact that it gave Arbour permission to use the. wrecker on a mission in the interest of Babin and as an accommodation to him would not render the motor company liable for the negligent acts of Arbour on this trip, as the latter was not acting within the scope of his employment with the motor company in making this trip. The criterion by which to fix liability on the employer is not the ownership vel non of the car driven by the employee, but whether or not at the time of' the accident he was acting within the scope of his employment and in the furtherance of his employer’s business. Roy v. Houlihan et al., La.App., 182 So. 333; Hunt v. Chisholm, La.App., 183 So. 132.

The situation was that of one in the general service of another (Arbour in the general service of the motor company as a mechanic) being transferred, with his consent, to the service of a third person (Babin) so that he became the servant of the third person and ceased to be the servant of his general employer, in which case the general employer is not liable for the acts of the servant. For a concise statement of the law on this point, see Vol. 5 Blashfield’s Cyclopedia of Automobile Law and Practice, pp. 71-74, §§ 2941 and 2942. Of course, as is stated in the last para.graph of Section 2941, “a servant may-have two employers at a given time under certain circumstances, and one owning or ordinarily controlling the use of an automobile may become liable for injuries caused by the negligence of another in charge thereof, though not exclusively his servant at the time of the accident.” But such a situation is not presented here.

The motor company not being lia'ble for the acts of Arbour, its insurer is also not liable under the clear provisions of the policy, as the acts of Arbour were not in connection with the operation by the motor company of its business of automobile dealer and repair shop, nor in any matter incidental thereto or connected therewith. As to these two defendants, the judgment will have to be reversed and the suit of all plaintiffs dismissed.

The negligence of Arbour is practically conceded, and if it were not conceded, it is so obvious as to require little discussion. He approached the intersection at too fast a speed and without keeping a proper lookout and without taking the necessary precautions to keep from striking the car driven by Mrs. Hutto. She entered the intersection first at a moderate rate of speed and was almost halfway across when Arbour entered the intersection and struck the rear part of her car after she had gotten at least three fourths across. As Mrs. Hutto had entered the intersection and was proceeding across it when Arbour approached it, she had a right to proceed across regardless of which street was given the right of way either by a city ordinance or the state law. See Welsch v. Laundry, 13 La.App. 20, 127 So. 751.

Babin did not file a plea of contributory negligence against Mrs. Hutto, and as the suit will have to be dismissed as to the motor company and its insurer, it is not necessary to consider the plea of contributory negligence filed by these two defendants. A plea of contributory negligence is a special plea and must be specially pleaded by the one desiring to avail himself of it. We might state, however, in passing, that we have given consideration to the evidence bearing on the alleged contributory negligence of Mrs. Hutto and do not find that she was guilty of such contributory negligence as would bar her recovery. As Babin is responsible for the negligence of Arbour, he will have to respond for the damages caused by this negligence.

The principal injury received by Mrs. Hutto was an incomplete fracture of the lower portion of the left humerus above the external condyle and a fracture of the eighth and ninth ribs on the left side, without displacement. She was in the hospital for two weeks and remained in bed at home for about three additional weeks during which time she was regularly attended by a physician. These fractures evidently healed completely after two months or so as X-rays made after that time showed no sign of fracture. No permanent effects resulted from the injury unless it is arthritis in the left arm,- but we do not think' Mrs. Hutto has sufficiently connected that disease with the injuries if she suffers from it. We do not think that the injuries were sufficiently serious to justify an award of $2.000, and the amount will be reduced to $1,000 which is more in line with awards in similar injuries.

There is not sufficient proof in the record to justify any award to the daughter, Mary Evelyn Hutto. She apparently suffered minor cuts over her eye and on her cheek. The doctor who attended Mrs. Hutto on the night of the accident thought' the daughter had some minor bruises, but he did not remember if he had treated her. The daughter did not even take the stand and testify as to her álleged injuries and no explanation was made for the failure to testify. We think the award in her behalf is not supported, by sufficient evidence and should be disallowed.

As to the amount allowed Charles B. Hutto individually, we think this amount is fully supported by the evidence and see no reason to disturb this award nor the amount allowed under the subrogation made to the Fulton Fire Insurance Company.

For the reasons assigned, it is ordered that the judgment in favor of all plaintiffs against the Iberville Motor Company, Inc., and the Massachusetts Bonding and Insurance Company, be and the same is hereby reversed and set aside and the suit as to these two defendants is hereby dismissed; that the judgment in favor of Charles B. Hutto for and in behalf of his minor daughter, Mary Evelyn Hutto, be and the same is hereby reversed and set aside and her claim for damages is dismissed; that the judgment in favor of Mrs. Mary Evelyn Hutto against Sidney J. Ba-bin is hereby amended so as to reduce the amount of the award from $2,000 to $1,000, and as thus reversed and amended, the judgment in all other respects is hereby affirmed.


source: Caselaw Access Project

author: LE BLANC, Judge.

license: Public Domain

text:
    MATLOCK v. STATE.
    No. 2287.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Writ of Error Refused Jan. 5, 1942.
    Arthur B. Hammond, of New Orleans, and Tom M. Hayes, Jr., of Baton Rouge, for appellant.
    Ellis, Ellis & Barranger, of Coving-ton, for appellee.
   LE BLANC, Judge.

The plaintiff, having obtained the necessary legislative authority by virtue of Act 354 of 1940, instituted this suit against the State of Louisiana seeking to recover damages for personal injuries and other damages incidental thereto, in the total sum of $57,012. The claim arises out of an accident which occurred at about 12 o’clock midnight on December 3, 1938, on a bridge some few hundred yards west of the Town of Abita Springs in the Parish of St. Tammany. His suit against the State is predicated on the negligence of the then Louisiana Highway Commission which was charged by law with the maintenance, repair and inspection of State highways and bridges, in its failure to have maintained in proper state of repair and condition the bridge on which the accident took place.

In his petition plaintiff alleges that the highway running east and west between ■the towns of Covington and Abita Springs, being part of Highway No. 58 of the State of Louisiana, is a much travelled road to the knowledge of the Highway Commission whose officials and employees should have known their duty to maintain the same in a safe and passable condition and not permitting the bridge to become a “death trap” as it is referred to by him.

He avers that on December 3, 1938, he was driving a new Chevrolet truck owned by his employer, Modern Gas Company, Inc., going from Covington in an easterly direction towards Abita Springs and that the said truck was equipped with proper lighting facilities for the purpose of driving at night and that he was occupying the proper side of the highway, going at a reasonable and lawful rate of speed. He avers further that at about a quarter of a mile from the center of the Town of Abita Springs, there were two bridges, the first or most western being a wooden bridge which at the time had a guard rail on the left or north side but none on the right or south, and the other was a concrete bridge over the Abita River with a concrete rail or guard on each side, and that a distance of about 170 feet separated the two bridges.

He then alleges that the first or most western bridge was, at the time of the accident, in a very bad condition and was wholly unsafe. Specifically, he avers that one of the stringers or supporting timbers on the southern side had broken loose completely more than sixty days before the accident. There was a sagging and twisting of the surface contour of the bridge, causing the planking to be loosened and a deep depression to be created on the southern side which was the direction in which he had his car. That the sagging caused the southwestern half of the bridge or that side from which he was approaching it, to kick up above the surface of the highway and that a loose gravel fill was placed as a sort of approach which rose some inches higher than the edge of the bridge and some 15 to 17 inches higher than the surface of the highway. He alleges further that the condition as described was not visible to motorists approaching the bridge who were not familiar with its condition, all of which the State of Louisiana, through the Louisiana Highway Commission, its officers, agents and employees, had knowledge of.

He alleges that he was unfamiliar with the dangerous condition there existing and that there were no lights, warning signs or signals of any kind to give him notice and that the failure to place such lights, signs or warnings, constituted the grossest type of negligence, on the part of the Highway Commission, its officers, agents and employees.

He then describes the manner in which the accident took place, averring that as he struck the dangerous fill at the western approach to the bridge, his truck was thrown into the air, bounding heavily, on to the sagging portion and causing him to strike the top or other interior part of the truck with his head, and rendering him immediately unconscious, thus losing control of his truck which afterwards ran along the highway until it struck the northwestern corner guard of the concrete bridge further east before coming to a stop.

Plaintiff then alleges that for several months prior to the occurrence of his accident, numerous officials, citizens and motorists had repeatedly notified the Louisiana Highway Commission through its agents, officers and representatives that the said bridge should be fixed and properly repaired; that the Governor of the State was communicated with and that delegations called on the Chairman of the Louisiana Highway Commission to have the situation remedied, all of which requests were ignored until after the accident happened. He alleges that the sole, only and proximate cause of the accident was the unexpected defects in the highway and bridge with which he was not familiar and the lack of any signs to give warning of the same.

He then sets out in detail the nature and extent of his injuries which are of the most severe andi serious character and for which he is entitled to recover the damages he seeks. These damages he itemizes as follows: Loss of wages from the date of the accident to the date on which suit was filed, 92 weeks at $18.50, making the sum of $1,702; future loss of wages and earnings, $25,000; pain and suffering, $15,000; permanent injury, $15,000; drugs and accessories, $40; medical expenses, $270.

The answer of the defendants constir tutes practically a general denial but after the case had been assigned for trial on one or two occasions, and it had been agreed tjiat the testimony of the plaintiff and certain witnesses residing in the City of New Orleans would be taken out of Court by consent, the defendant filed a supplemental answer in which • it reiterated its denials as made in the original answer and in the alternative pled that in the event the court should find that there was any negligence on the part of the Louisiana Highway Commission making it legally liable in damages to the plaintiff, that the plaintiff himself was barred from recovery for such damages due to the fact that he himself was negligent and that his negligence was the proximate cause of his injury. The negligence charged against him consisted in (a) driving at an unlawful and illegal rate of speed contrary to the laws of the State of Louisiana and more particularly to the provisions of Act 286 of 1938, and also contrary to the laws and ordinances of the Town of Abita Springs and more particularly Ordinance No. 45 of the said town for the year 1916; (b) driving in a reckless and illegal manner without using due care to keep his automobile under proper control and in not keeping a proper lookout for any obstructions which may have been in the road and (c) having knowledge of the defective condition which he alleges existed in the highway or bridge, whether the same was caused through tire negligence of the Highway Commission or not and failing, in the face of such knowledge, to use due care to protect himself from injuries which may result therefrom.

Although there was no motion filed by the plaintiff to strike out the supplemental answer of the defendant,- objections were made thereto when the casé was taken up for trial in open court and its filing seems now to be a controverted issue in the case, it being strenuously urged that issue having already been joined by the former pleadings and the case having been assigned for trial, it was filed too late.

The test to be applied in permitting or refusing a plaintiff to file amended pleadings, after issue has been joined, is-laid down in Article 419 of the Code of Practice which gives the Court discretion in permitting him to do so “provided the amendment does not alter the substance of his demand by making it different from the one originally brought.” By the terms of Article 420 the defendant is also granted the right to amend his answer, “subject to the same rules.” The amendment to the answer filed by the defendant in this case was an alternative plea which in our opinion did not have the effect of altering the substance of the defense as presented in the original answer. That defense was a denial of the negligence charged against it and of its consequent liability in damages on account of such negligence as had been alleged. The plea of contributory negligence, made in the alternative, was not inconsistent with that defense; it merely raised the further issue that even if the negligence alleged against it would be shown to exist that it could none the less be possible for the plaintiff to recover because he himself had been negligent in such manner as contributed to the accident and resulting injuries. The sole and only question which could arise under this plea would have to relate to the negligence charged by the plaintiff which is denied by the defendant, which shows after all that the issue involved is one of negligence purely and on that issue is the case to be decided. There are some cases, notably a recent one decided by this Court, Moore v. Davis, 196 So. 566, in which the defendant was refused permission to file a supplemental answer setting out a plea of contributory negligence, but in that case, the testimony of the plaintiff and the defendant had already been taken and to permit the filing of the supplemental answer at that time might have necessitated the taking of additional testimony including that of the plaintiff, who had already returned to her home in Chicago and might have to- come back to Opelousas to testify. It was held that the plea of contributory negligence being a special defense, plaintiff is entitled to know what it consists- of prior to the trial of the case. Whilst it is true that in the present case an assignment for trial had been made, no testimony whatever had as yet been taken and plaintiff 'was made aware of what was contained in the plea before the case actually went to trial. Under the circumstances we do not think that there was an abuse on the part of the trial judge of his discretion in permitting the amended answer to be filed.

Having disposed of this matter we come now to a consideration of the issues that are presented on the pleadings as thus made up. These may be said to involve the responsibility with which the Louisiana Highway Commission was charged with the maintenance in safe and proper condition of the bridge at which this accident occurred, and the manner in which it discharged its duties; the negligence as alleged on the part of the said Commission, assuming that the bridge was not maintained in proper condition of repair, to have proper warning signs to vehicular traffic approaching it; the duty of an automobile driver on the highways in observing the proper speed limit, in keeping his car under proper control and maintaining a proper lookout for obstructions or other dangers on the highway, and his duty to do so especially in a situation where he is charged with having knowledge of the existence of such obstructions or dangerous condition. On these issues the trial judge, after a lengthy hearing, handed down an opinion for the record in which he resolved the issue of negligence against the Highway Commission, the plea of contributory negligence in favor of the plaintiff and awarded the latter damages in the sum of $17,926, with legal interest from date of judicial demand. From a judgment so decreeing, the defendant Highway Commission has taken and is now prosecuting this appeal. Plaintiff has answered the appeal asking that the judgment be amended by increasing the award to the sum originally demanded by him.

In the month of August, 1938 there was a flood in the neighborhood of this bridge and the south walls supporting the culvert were washed out. It became necessary for the Highway Commission to construct a temporary wooden bridge over the damaged culvert and this it did by laying timbers measuring 4 inches by 12 inches, 12 inches apart, lengthwise over the crossing and then laying 3 x 12 planks across the timbers, the whole making an elevation from the flooring of the bridge of 7 inches. In order to connect the structure as thus made with the road on each side of it, there was a fill made with gravel and clay some 3 or 4 feet long and the evidence fully shows that these fills were higher than the bridge to the extent of some 9 inches or more. There is considerable testimony to the effect that in the course of time the wooden structure settled and that the bridge sagged in the middle especially in the south portion. This is clearly apparent from a photograph taken of the bridge and which has been filed in the record. The sagging condition is disputed by some of the witnesses who testified for the defendant but the vast preponderance of the testimony shows that that was the condition and that there was a drop of some 2 or 3 inches.

Having in mind the situation which existed, the question then arises, Did the Louisiana Highway Commission discharge the duty imposed upon it by law to maintain and repair that bridge and keep it in proper condition at all times ? That duty is clearly imposed upon it under sections 17 and 28 of Act 95 of 1921, Ex.Sess., as amended. Counsel for the defendant do not presently dispute that such an obligation or duty exists but they strenuously contend that as long as it is discharged and performed in a reasonable manner, the law has been satisfied, and that so far as its obligations existed with regard to the bridge involved in this case, it had reasonably* performed its duty and that the bridge was in a reasonably safe order of repair and condition for traffic using it.

We regret to have, to state that we cannot agree with counsel that the Commission had discharged its full duty in the way of repairing and maintaining this bridge in a reasonably safe condition, as is shown by an abundance of testimony found in the record. 'The very fact that the accident in this case which caused the death of one person and the severe injuries sustained by another, affords some proof at least that the condition wasn’t safe to permit travel over the bridge by an automobile truck at a rate of speed of approximately 40 miles per hour, assuming as the testimony tends to show, that the plaintiff had slowed down the speed of his truck. from 45 miles after he first observed the contour of the bridge a short distance before striking it. A bridge on a highway travelled as much as this one seerris to have been, which cannot stand traffic going at as much as 40 miles per hour, cannot in our opinion be said to have been in a reasonably safe condition for traffic which had to cross it.

But quite- a number of substantial citizens of the community, including some public officials of the town and parish, testified in this case regarding the condition of the bridge, and reading their testimony as a whole, the court cannot be left with any serious doubt that it was in a really bad condition, one that required the attention which ■ they seemed to have frequently requested of the Louisiana Highway Commission in vain until after this unfortunate accident had happened.

It is shown that numerous complaints were made and that delegations, headed by the State Representative of the Parish of St. Tammany, called on the Chairman of the -Highway Commission himself, directing his attention to the situation but nothing was done. It is urged on behalf of the defendant that these conferences had to do with the situation concerning the whole highway and the requests were for general improvements and whilst the testimony of some of the witnesses does indicate that such demands or requests were made, nevertheless the primary purpose of these interviews and all other complaints were' to have the condition existing at this bridge remedied.

There is testimony that an accident had happened previous to the one in which plaintiff was involved and several of the witnesses to whom we have" referred who crossed this bridge either daily or sevei'al times a week testified as to the careful manner in which they had to approach it in driving their automobile, some of them referring to the fact that invariably they had to almost stop and shift gears before they attempted to go upon it.

Not only does - the testimony convince us, as it did the district judge, of the failure of the Louisiana Highway Commission in its duty in properly repairing and maintaining the bridge in safe and proper condition but it further satisfies us that it did nothing to warn traffic on the'highway of the situation of danger that existed. Practically all the same witnesses who testified regarding the actual condition of the bridge stated that there were no signs of warning of any kind to give notice of that danger. In this connection the defendant offered the testimony of some of the members of the bridge crew engaged in that district, to the effect that there was a danger sign posted some 400 feet or more west of the bridge on the south or right side of the highway. This sign is described as having been of a diamond shape with large red letters spelling the word “Danger”. We are not strongly impressed with the testimony of the witnesses that the sign which they referred to was actually posted where they said it was at the time of the accident. The one who seemed to insist that it was, finally qualifies his statement by stating that “it must have been.” But the important point in relation to this sign is that it seems to have had no connection whatsoever with the dangerous situation which existed surrounding the bridge and the approach to it. The testimony shows rather positively that the purpose of this sign was to warn traffic on the highway of its approach to an intersecting road known as the Range Line Road which led to a summer hotel situated off of the- highway. Situated as it was some 400 feet or more from the bridge and around a curve leading from the bridge, it could serve no purpose whatsoever in warning the travelling public that there was a bridge around that curve and that it was in such condition as existed at the time of this accident. In its failure to have properly guarded or protected the public in approaching the danger created by this bridge on the highway, the Commission was again negligent and therefore it was properly held liable to the plaintiff in damages unless the district judge was in error in overruling its plea of contributory negligence.

On this plea as we have seen, plaintiff is charged with negligence in three respects : (a) Driving his car at an excessive rate of speed in violation both of the State Highway Regulatory Statute and of the Ordinance of the Town of Abita Springs, (b) in not having his car under control and keeping a proper lookout and (c) in not properly guarding against the situation of danger or defects in the road of which' he had knowledge.

The evidence discloses that plaintiff was driving a Chevrolet truck loaded with some 1500 lbs. of piping, pipe fittings and tools. He had a business call which took him to Picayune, Mississippi, and on the afternoon before the accident happened he decided to drive to Covington to visit with his father and mother and go from there to Picayune. He was accompanied by a lady by the name of Ann Walker. He left Covington at approximately 11:45 that night and drove along Highway No. 58 going at a speed approximately 45 miles per hour, according to his testimony. The lights on his truck were in 'good condition and apparently he had the normal vision of an automobile driver which is projected by such headlights. He is not positive how far away he was from the bridge when he saw its outline but was unable to discern what its condition was. He released his foot from the accelerater on the truck which had the effect of slowing its speed down to about 35 miles an hour. That is the last thing he remembers as he apparently struck the bridge immediately thereafter and was knocked unconscious. He remembers absolutely nothing that happened afterwards' until he found himself in the Charity Hospitál in New Orleans. The lady in the car with him was killed instantly.

A witness by the name of Arthur Martin, a barber who lived on the highway west of the bridge and who was walking home, testified that he met the truck when about 150 to 200 feet from the bridge on the Covington side. He says that it was going about 40 or 45 miles at the time and knowing the condition that existed at the bridge, and no doubt out of a sense of apprehension for what might happen, he turned around and as he did so it appeared to him that the truck slowed down its speed. It nevertheless hit the bridge and went up in the air. He ran to the scene and when he reached there he found a man lifting the lady from the cab of the truck and another assisting Matlock who was jammed in a stooping position between the seat and the running board, in an unconscious condition. The truck came to a stop against the rail on the left-hand side of the concrete bridge further east towards Abita Springs. The distance between the eastern end of the wooden bridge and the concrete bridge is shown to have been 226 feet.

Under the facts as thus presented the question that arises is whether the speed at which plaintiff was driving the truck was excessive and in violation of either the state statute or the Ordinance of the Town of Abita Springs, and thus a contributing cause to the accident.

The defendant in support of its plea that the speed constituted a violation of the Town Ordinance of Abita Springs, annexed thereto a copy of an ordinance fixing the rate at 12 miles per hour. Ac- ■ cording to the title of this ordinance it is one “regulating the operation and speed of automobiles for the year 1916.” In the body of the ordinance itself we find nothing which indicates that it expired by limitation at the end of that year. Why the year was specified in the title is not explained and we are unable to understand what is meant by it. Be that as it may, it-appears to.be an ordinance fixing the maxi- ■ mum rate of speed upon the public highways within the corporate limits of the-town at ■ 12 miles per hour and provides further that at • all street and alley crossings, the .speed should be reduced to 7 miles. It is not disputed that that portion' of the highway at which the bridge on which the accident occurred is within the corporate limits of the Town of Abita-Springs. The testimony of the officials and those charged with the enforcement of the ordinance is to the effect that although it has never been specifically repealed, its provisions were not being enforced in the year 1938 at the time this accident occurred. In view of our modern system of highways and the large increase in automotive traffic since the year 1916, we doubt very much that any town or municipality of the size of Abita Springs attempts to enforce a speed regulation of anything like 12 miles per hour. Moreover, at the point on the highway where this bridge was situated the driver on the highway was still in open country and there wasn’t a sign of any kind to indicate to him that he was within the corporate limits of the Town of Abita Springs and that his speed was controlled by any loeal ordinance. Conceding that the ordinance was still in effect, we do not think that any Court would be justified in convicting any one or holding any one liable for negligence for its violation when it is so clearly apparent that its provisions were not enforced by the officers of the municipality charged with its execution.

Counsel for defendant urge t.hat if the speed limit as fixed under the ordinance did not apply that plaintiff nevertheless was guilty of violation of the provisions of subsection (c), rule 4 of section 3 of the state statute, Act 286 of 1938, which fixes a speed limit of 25 miles per hour upon certain parts of the highways of the State. It appears however that this regulation applies on those highways within or through any town or village of the State which is not incorporated and as Abita Springs is and was an incorporated town at the time of the accident, that provision does not apply. It would seem therefore that the only restriction on the plaintiff’s driving at the time is that found in paragraph (a) of rule 4 of the same section of the statute which prescribes that no one shall drive or operate a motorcar or other vehicle on the highways of the State “at other than a careful, prudent, reasonable and proper speed, having due regard to the traffic, surface and width of the highway, the location and neighborhood, and any other conditions or circumstances then existing, and no person shall, under any circumstances or- conditions, drive any vehicle upon the public roads, highways or bridges of this State, at such a speed as will endanger the life, limb or property of any other person.”

We have already given, a description of the surrounding territory having omitted only to mention the width and the surface of the highway which was shown to be a standard 18 foot road with a hard black top surface, and whilst not new, was nevertheless in good condition. Travel-ling as he was, near midnight, with no traffic on the highway at that time, and with his lights in good condition, it can hardly be said that plaintiff's speed of 40 or 45 miles per hour was excessive. Whilst there was a curve in the road some distance from the bridge it is not indicated in the testimony that it was a sharp or dangerous curve in any manner and he seems to have experienced no difficulty in negotiating it prior to his approach to the bridge. In the case of Lavergne v. Pedarre, 165 So. 17, this Court held that a speed of some 40 to 45 miles an hour on Highland Road, the principal thoroughfare leading from the City of Baton Rouge to Louisiana State University, at about 10 o’clock at night, and on which traffic was governed under the same provisions of the statute as we find to apply in this case, was not excessive and the driver of an automobile whose car collided with another coming out of an intersecting street was not liable to the guest' passengers in his car on the ground that he was negligent. Neither in this case do we think that plaintiff was guilty of negligence since he was operating his truck two hours later in the night on a highway which by comparison is not near as important. It is lirged that the distance the truck trav-elled after striking the defective bridge before coming to a rest is an indication of the excessive spéed at which it must have been going. It must be remembered however that plaintiff was rendered unconscious the moment he struck the bridge, that he lost control and necessarily made no effort to try to stop the truck as it went headlong on its own course until it struck the guard rail on the concrete bridge. That, in our opinion, is a sufficient explanation why the car was not stopped, or did not stop by itself before, and it affords no proof whatever of a greater rate of speed than that at which plaintiff admits he was going at the time that he struck the bridge.

The next charge of negligence aimed at the plaintiff is his failure to keep his' car under proper control and to .have maintained a proper lookout for dangers or obstructions on the highway. In this respect, there is less proof of negligence on his part than in the charge of violating the speed regulations which we have just discussed. Plaintiff testifies that he was keeping a proper lookout ahead, that the lights on his car were working as they should and that immediately upon seeing the single rail of the bridge, he reduced its speed to what he estimates was about 35 miles an hour. As has already been stated there was absolutely no sign on the highway of any kind to give him a warning of this dangerous situation and there were no intersecting roads or streets close enough of any consequence to cause him to do any more than he did. The danger sign posted some 400 feet or more away, as we have already indicated, was not a sign intended to give warning of the defective condition in the bridge and from the manner in which he approached that sign, considering its location, it is doubtful whether the beams from his headlights brought it to his attention at all. The weather was clear and otherwise there were no circumstances which required him to exercise greater care in having his car under control and to keep a better lookout ahead than he did.

The last point raised in the plea of contributory negligence is the one on which plaintiff is charged with failure to have taken proper steps to guard himself in face of his knowledge of the defective condition of the bridge hut the only proof of any knowledge on his part is his own testimony that he was unfamiliar with the road, having travelled over it very infrequently and the last time, as he remembers, being more than a year before the accident happened, which of course was before the washout had taken place and the bridge had become defective and in the condition it was on the night he was injured.

A careful consideration of all the testimony leads us to the same conclusion as that reached by the district judge that the defendant has not supported its plea of contributory negligence against the plaintiff by competent and satisfactory proof and he is therefore entitled to recover damages.

It would serve no useful purpose for us to go into a detailed discussion of the gravity and severity of the many injuries sustained by the plaintiff as a result of this accident. Suffice it to say that he has been confined to the Charity Hospital in a plaster cast almost continuously since it happened. He has undergone any number of operations for the removal of pieces of bone in his hip which have become infected due to the formation of pus in the joint. He almost lives with drains in his side to take care of the pus formation in his body. The probabilities are that he will never recover sufficiently to be well again and that if he should he will never have the use of one of his legs. That his suffering must have been agonizing at the time of the accident and afterwards is well brought out in the statement of Dr. L. C. Heintz to whom he was taken on the night of the accident and who took him to the hospital and kept in touch with him afterwards, when he says that “he suffers as much as or more than anyone he has ever seen during his entire practice,” which covers a period of 34 years. Plaintiff himself states that he never ceases suffering. He was at the time of the accident about 26 years old and was earning wages of $18 per week. He was married and had a child but he and his wife were separated and apparently he was not taking care of the child. The district judge awarded him the amount of wages he earned per week for the loss of time up to the date of the demand by his petition and which amount is $1,656 and $10,000 for the loss of future wages and earnings and for his permanent injury. We are inclined to believe due to the fact that he is not supporting his wife and child and has no other dependents, that the award of $10,000 may be a bit too liberal and have decided to reduce it to the sum of $8,000. For pain and suffering the district judge awarded him the sum of $6,000 which we also believe should be reduced to the sum of $5,000. The remaining award of $270 was for the services of Dr. L. C. Heintz which is supported by Dr. Heintz’ testimony. The reductions we have made amount to $3,000 and the judgment will be amended in conformity therewith.

It is for the reasons herein stated now ordered, adjudged and decreed that the judgment appealed from be and the same is hereby amended by reducing the amount of the awdrd from the sum of $17,926 to the sum of $14,926, and that as thus amended it be affirmed.


author: OTT, Judge.

text:
    EDWARDS v. CITY OF HAMMOND.
    No. 2282.
    Court of Appeal of Louisiana. First Circuit
    Oct. 8, 1941.

      Reid & Reid, of Hammond, for appellant.
    Leon Ford, Jr., of Hammond, for appel-lee.
   OTT, Judge.

On May 12, 1938, the Mayor of Hammond issued to plaintiff a permit to erect a. filling station on the right of way of the Illinois Central Railroad Company between Morris and Hanson Avenues which cross said railroad at right angles in the City of Hammond, the material to be used and the building to be erected to comply with all fire and zoning ordinances of said City. On October 19th following and before the erection o.f the building had begun, the Mayor wrote plaintiff a letter advising him that a great number of citizens had protested the granting of said permit to erect said filling station on the property of the railroad on the ground that said building would constitute a public hazard and that, in the exercise of its police power, the City was revoking said permit.

In April, 1939, plaintiff filed this suit setting up the above facts and alleged that the attempt to revoke said permit by the City of Hammond was unfair to him and discriminated against him; that the filling station he was preparing to erect on the property he had leased from the railroad would conform to the fire ordinances of the City, and the building would be more than 25 feet from Morris Avenue and would not create a traffic hazard; that there are two filling stations located across West Railroad Avenue from the place where he proposed to erect his station. He asked for an injunction to prevent the City from interfering with the erection of said filling station, and in the alternative, and in case the court should find that said building permit was revoked, that a writ of mandamus issue directing the City to issue him a permit.

An exception of no cause or right of action was filed by the City and sustained by the court, but through some agreement between counsel, the exact nature of which does not appear from the record, this ruling was either withdrawn or disregarded and the City filed an answer and the case was tried on the merits. In its answer, the City denied that any legal permit had ever been issued to plaintiff for erecting said filling station for the reason that no proper application had been made therefor with specifications showing the kind of building to be erected, and the Council had never acted on any permit as required by the ordinance of the City; but the City admitted that it had notified plaintiff that any purported permit issued to him had been revoked.

The City further alleged that it had passed a zoning ordinance zoning all territory within the City, except the right of way of the railroad on which the proposed filling station was to be erected, and this right of way was not included in the zoning ordinance for the reason that this land belonged to the United States Government and is restricted by Federal law to use as a railroad right of way and cannot be used for any other purposes; that the railroad has no right to lease any part of its right of way for a filling station. The City also alleged that the erection of said filling station would constitute a public hazard and endanger traffic crossing the railroad track on the adjacent streets, and that it was within the police power of the City to prevent this traffic hazard.

Judgment was rendered in favor of the City, and the plaintiff has appealed.

Act 237 of 1920 which amended and reenacted other acts on the same subject matter, authorizes all municipalities exceeding five hundred population to establish fire limits and regulate the construction of buildings, the thickness of walls and the material to be used in buildings constructed or repaired in said fire limits. Section 4 of said act authorizes such municipalities to require building permits and permits for repairs, which permits shall be granted according to uniform rules and shall never be refused when the application setting forth the character of the building to be constructed, or the nature of the repairs, conforms to the requirements of the ordinances passed in pursuance of the act.

The City of Hammond has an ordinance prohibiting the erection of any building within the corporate limits of the City without first having obtained a permit so to do from the Mayor and Board of Aider-men. Provision is made in the ordinance for obtaining such a permit by presenting written plans and specifications of the proposed building and setting forth the proposed location thereof. This application is then to be acted on by the Mayor and Board of Aldermen at a regular or special meeting.

It is obvious that the permit is required under the above mentioned act and ordinance as a protection against fire hazards and has no reference to traffic or other hazards affecting public safety. No claim is made by the City that the filling station which plaintiff proposes to erect does not conform to uniform regulations prescribed for granting a permit, or that said building would constitute a fire hazard. In fact, plaintiff testified, and it is not disputed, that the building which he proposes to erect will be composed of brick and stucco and will conform to all the ordinances of the City.

It is true that no formal application was made with plans and specifications, but it is shown that permits were granted in most cases without detailed plans and specifications. The Mayor and one of the commissioners were familiar with the kind of building plaintiff proposed to erect and where it was to be located. These two constituted a quorum of the Council, and considering the custom that prevailed, the Mayor was justified in issuing plaintiff a permit as he did to erect the proposed filling station.

The City of Hammond has also adopted a zoning ordinance under authority of Act 240 of 1926 whereby three districts are created in the City in which the use of buildings and property therein is restricted to one of three uses, residential, commercial and industrial. However, it is admitted that this zoning ordinance cannot affect the question involved in this suit as the land on which plaintiff proposes to erect said filling station is not included in any of the zones described in the ordinance. It is argued that the Commission Council of Hammond could effectively zone the area in which the filling station is proposed to be located, and force the plaintiff to remove the station therefrom after it has been erected. That may be true, but we must decide the case on the situation as it exists now and not what the situation might be in the future.

The City has invoked its general police power to support its action in revoking the permit and in refusing plaintiff permission to construct this filling station. It is claimed that the station will create a greater hazard to traffic crossing the railroad tracks on Morris Avenue. The evidence shows that the station is to be located between the railroad track on the east, West Railroad Avenue on the west, Morris Avenue on the north and Hanson Avenue on the south. The station itself will' be one story and only 16 feet wide, about 100 feet south of Morris Avenue, 21 feet from the railroad track, with an open canopy 24 feet between the station and West Railroad Avenue (a state highway) which the station faces on the west. It is claimed that several accidents have occurred at the crossing on Morris Avenue and that this station will increase the hazard at this crossing by obstructing the view of fast trains operating on the railroad. We fail to see how this small building located a hundred feet below this crossing and 21 feet from the railroad tracks could so obstruct the view at this crossing as to prevent a motorist or pedestrian from seeing a train approaching on the track. If the power of a municipality to regulate railroad crossings could be extended so as to prevent .the erection of a building 100 feet from the crossing, the effect would be to deprive the owner in many cases of the right to use his property without any zoning ordinance making the regulations uniform.

With reference to the defense urged by the City that the railroad company has no right to lease part of its right of way for the operation of a filling station, we agree with the ruling of the trial judge that this is res inter alios acta; that it is no concern of the City as to whether or not the railroad had a right to grant plaintiff a lease on its right of way, as that is a matter which concerns the railroad, the Government and the plaintiff.

We understand that the exception of no cause or right of action is based on the ground that the right of way of the railroad through Hammond was granted by acts of Congress and the Legislature of this State; that the land belongs to the Government and the effect of granting the railroad only a right of way over this land was to confine its use to that of railroad purposes, and thus take this right of way out of the control of the City for zoning and other restrictive regulations. While there is a copy of the Act of Congress of August 2, 1852, in the record, granting a right of way to railroads over public lands, there is no evidence in the record to show whether or not the land on which the Illinois Central Railroad runs through Hammond is part of the public land covered by this act. In any event, we do not think the City has a right to raise this question in this case. If the right of way of the railroad and the operation of any business thereon is beyond the control of the City, then obviously it cannot interfere with plaintiff in the erection of a building and the operation of a business thereon. On the other hand, if the City does have the power to regulate and control the construction of buildings and the operation of businesses on said right of way, it has not passed any ordinances or made any uniform regulations affecting same. The exception was therefore without merit and should have been and is now overruled.

We think the plaintiff, under the facts shown by the record, is entitled to have the permit reinstated and given full force and effect. See State ex rel. Hundley et al. v. City of Alexandria, 164 La. 624, 114 So. 491; State ex rel. Calvary Baptist Church v. City of Alexandria, 164 La. 628, 114 So. 492.

For the reasons assigned, it is ordered that the judgment appealed from be and the same is hereby avoided, annulled and reversed; and, it is now ordered that the permit issued to plaintiff by the Mayor of Hammond on May 12, 1938, to construct a filling station on the property therein described and in accordance with the fire ordinances of the City of Hammond be and the same is hereby re-instated and declared to be in full force and effect from the date thereof. It is further ordered that the City pay all cost of this suit.


author: LeBLANC, Judge.

text:
    CAMPBELL v. F. HOLLIER & SONS.
    No. 2260.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Roland B. Reed, of Ville Platte, for appellants.
    J. Y. Fontenot, of Opelousas, for appel-lee.
   LeBLANC, Judge.

The defendants in this case were cast in the judgment rendered against them and in favor of the plaintiff, for damages in the sum of $125. The judgment was rendered, read and signed by the district judge, in open court, on December 21, 1940. On December 28, 1940, through their attorney, they presented a petition to the district court in which they averred that the judgment rendered against them was contrary to law and to the evidence adduced, that they were aggrieved thereby and desired to appeal therefrom, suspensively, to this court. They accordingly prayed for an order granting them a suspensive appeal, fixing the return day thereof as well as the amount of the bond to be furnished by them. Acting on their petition, an order was granted by the Clerk of the district court on the same day, making the appeal returnable on February 20, 1941, upon their furnishing bond, with good and solvent security, in the sum of $200. The order also directed that a copy of the petition and order and citation of the appeal be served on the plaintiff. Service as directed was made by the Sheriff on the plaintiff, in person, on December 31, 1940.

It would seem that the defendants were most meticulous in following the provisions of Article 573 of the Code of Practice and those of Article 575 also in carrying out their intention to ask for and obtain a suspensive appeal to this Court from the judgment which had been rendered against them. Article 581 of the Code of Practice prescribes that before delivering the copy of the petition of appeal to the Sheriff for service, the security, as directed in the order of appeal, shall have been given, and then service shall be made on the appellee according to the provisions of Article 582.

We find a letter in the record addressed to the Clerk of Court by counsel for plaintiff, dated December 28, 1940, the same day on which the order of appeal was granted, in which it is stated that due to the serious illness of the district judge, he had agreed with counsel for defendants to a delay “for the filing of a suspension of appeal”, which we take to mean was for a delay in filing the appeal bond. It may be that the letter was intended to dispense with the essential requirement of the bond before service and citation of the appeal, but certainly it could not have been, and was not, intended to dispense with the giving of the bond itself as it only provides for a delay in furnishing one. No time limit is fixed for the delay, but even so it was absolutely necessary that a bond be given in order to perfect the appeal. A most careful and diligent search of the record fails to disclose the filing, at any time, of any such bond.

In Vacuum Oil Co. v. Cockrell, 177 La. 623, 148 So. 898, it was held that the furnishing of the bond was a prerequisite to the issuance of citation of appeal and the Court further stated: “Whether the appeal be by petition or by motion until the bond is furnished there is no appeal.” (Italics ours.) In York v. Baton Rouge Electric Company, 13 La.App. 329, 127 So. 431, 432 this Court stated: “It is well settled that an order of appeal is not effective, unless it is followed by an appeal bond, and, until the bond is filed, appellate jurisdiction does not attach nor take effect.” Several cases are cited as authority.

We deem it proper to state that there has been no motion to dismiss the appeal filed in this case, but as was said by the Court in the case of Gagneaux v. Desonier, 104 La. 648, 29 So. 282, in considering the question of the dismissal of an appeal for lack of an order of appeal, we are of the opinion that the absence of an appeal bond, the order fixing which is also a jurisdictional fact, is likewise a matter which should be noticed ex officio by the appellate court, and acted on ex proprio motu.

For the reasons stated, it is ordered that the present appeal be and the same is hereby dismissed at the costs of the defendants herein.


text:
    DUDLEY v. MARTIN.
    No. 2284.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Morrison, Sims & Phelps, of Hammond, for appellant.
    J. H. Inman, of Ponchatoula, for appel-lee.
   LeBLANC, Judge.

This is a suit for compensation brought by a mother who claims to have been dependent, within the meaning of our State Compensation Statute, Act No. 20 of 1914, upon the earnings of her deceased son who was employed by the defendant at the time he lost his life by accident during the course and scope of his said employment. In her petition she alleges that her said deceased son was unmarried and is survived by no descendants; that at the time of his death he resided with her and supported her and consequently she is entitled to receive compensation from his employer, defendant herein, at the rate of $7.80 per week which is 65% of his weekly wages of $12, for a period of three hundred weeks. In addition she claims the sum of $150 for funeral expenses of her deceased son.

The defendant answered admitting the nature of plaintiff’s deceased son’s employment and his death by accident, but denied that she was in any manner dependent upon him for her living and that he lived with or contributed to her support. He avers that on the contrary the decedent was, and had been living with a concubine with whom he was having children and that his entire earnings were consumed in maintaining the household which he had thus established.

The question of dependency seems to have been the only issue presented in the lower court and concededly the only one now before this court. The district judge resolved the question against the plaintiff and dismissed her suit. From the judgment so decreeing she has taken this appeal.

The testimony indicates that the plaintiff is a negro woman about fifty years old. She was legally married to the father of her deceased son, Andrew Dudley, who was one of three children. The other two, another son and a daughter are still living. At the time her son Andrew was employed by the defendant, she was living with a man named Charlie Young. What their relations were is not shown positively but it appears doubtful that he was supporting her as his wife for there is proof to the effect that she worked on a strawberry farm during part of the time she lived with him. Plaintiff, of course, testified to the generous contributions made to her support, in groceries and cash money as well, by her deceased son. She produced several witnesses who testified in support of her claims. Some of these, it may be said, were negro women who are also former concubines of her son and whose testimony is so exaggerated that it is hardly worth the while to consider it. Her son, Ivy Dudley, also testified as her witness and his testimony, it must be said, is a bit more impressive. He states that he and Andrew both helped their mother principally by buying groceries for her. He was married and supporting his wife and could only give his mother about $2.50 in groceries every two weeks. He says that Andrew gave her more than he did. Jeff August, on whose farm the plaintiff picked strawberries also testifies that Andrew brought his mother groceries when she was living at his house.

It is shown thatv Andrew Dudley at the time he died, was living in concubinage with a woman named Mabel Williams. She had two children of her own and of their illicit relation there was born a child who was still an infant when Andrew died. They occupied a room in the house of her stepfather Billy Hamp, and with her mother, Lula Hamp, they all lived together. He earned approximately $12 per week and it appears that he paid $1 each pay day, or at the rate of about 50¿ per week for his share of the transportation to and from work in a car belonging to one of his fellow employees. It is the defendant’s contention that it took all the net remaining part of his earnings to maintain the family he had established with his common law wife and that there was nothing left with which he could make any contribution to the support of his mother.

Several witnesses testified for the defendant but their testimony is all of a negative character and to the effect that they never saw Andrew give anything in the way of cash or groceries to the plaintiff, or merely, that he had told them that he did not contribute to her support. The two who were in a position to know the circumstances surrounding the maintenance of the household he occupied, were his concubine’s mother and stepfather, Lula and Billy Hamp. They were also called as witnesses by the defendant and if their testimony is to be given any consideration whatsoever there is clearly established a preponderance of proof in favor of the plaintiff that her deceased son did assist her at least to the extent of giving her groceries more or less regularly. The defendant, in making them his witnesses, vouched for their veracity, he did not even try to impeach their statements and certainly their testimony cannot lightly be brushed aside. The district judge if he had reason to disbelieve them or all of plaintiff’s witnesses did not make them known in the record as he did not file a written opinion. Under our appreciation of the facts as shown we find ourselves constrained to disagree with his findings.

Plaintiff has not shown any definite amount regularly contributed to her support by her deceased son but she has shown that she was partially actually dependent upon his earnings at the time of the accident which caused his death, within the meaning of subsection 2, section 8 of the Compensation Statute as amended by Act 242 of 1928. Under that provision of the statute, when the actual amount of the contribution is known there is a formula on which the weekly rate of compensation due the dependent can be worked out. In the absence of proof of any definite or regular amount of contribution, it is, in our opinion, the minimum rate of weekly compensation of $3 as fixed by subsection 3 of section 8 of the act, as amended by Act 242 of 1928, which should prevail. There is no proof found in the record regarding the demand for funeral expenses in the sum of $150, nor is it shown by whom any funeral expenses whatsoever were paid. This item, we do not think can be allowed.

For the reasons stated it is now ordered that the judgment appealed from be and the same is hereby reversed and set aside and it is further ordered that there be judgment in favor of the plaintiff, and against the defendant ordering and decreeing the said defendant to pay plaintiff conpensation at the rate of $3 per week for the period of three hundred weeks from April 25, 1939, until paid, with interest at the rate of 5% on each weekly payment from the date it accrued until paid in full. It is further ordered that the defendant pay all costs.


text:
    HANO v. NATALBANY LUMBER CO., Limited.
    No. 2280.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    J. E. Huckabay and C. E. Fernandez, both of Baton Rouge, for appellant.
    Carroll Buck, of Amite, for appellee.
   OTT, Judge.

Plaintiff asks for compensation in the sum of $7.80 per week for a period of 400 weeks plus $25 medical expenses, less the amount already paid him, for total permanent disability resulting from two injuries which he claims to have received while working for the defendant, one on August 30th and the other on December 3, 1937. The first injury was received when a tractor ran over his right foot injuring it and bruising his left leg, and the second injury consisted of a double hernia which he claims to have received while lifting a cross-tie as he was assisting in unloading a “drag line” from a flat car.

The defendant admits that plaintiff received an injury on August 30, 1937, when the tractor ran over his foot, which injury consisted of a fracture of the first metatarsal bone of his right foot and contusions of his left leg near the ankle, and that he was paid full compensation for said injury to December 1, 1937, on which date it is alleged he had fully recovered from the injury and returned to work voluntarily. The defendant denied that plaintiff sustained a hernia on December 3, 1937, and avers that he had been suffering from a hernia long prior to that time which hernia was not connected with any injury received by him while working for the defendant. It is admitted by the defendant company that it paid plaintiff compensation for the disability resulting from the hernia to February 15, 1938, and that it furnished plaintiff an operation for the hernia the latter part of January, 1938, but this was done as an act of charity to plaintiff and not under any admission of liability ; that if plaintiff did sustain a hernia while in its employ, he was cured of the hernia by the operation and suffers no further disability therefrom.

From a judgment rejecting his demands, plaintiff has appealed.

The evidence shows that the tread of a heavy tractor ran over plaintiff’s right foot between the ankle and toes, fracturing the first metatarsal bone and striking and bruising his left leg above the ankle. He testified that the tractor also struck his right leg just above his ankle. He was taken to Dr. Catchings, the company doctor at Woodville, Mississippi, near where plaintiff was working when injured, the same day of the injury, and this doctor made an X-ray of plaintiff’s feet. The only injury found by this doctor was a fracture of the first metatarsal bone of the right foot and a contusion of the left leg, but no fracture of that leg. The right foot and ankle were put in a plaster cast until November 6, 1937, a little over two months, at which time the cast was removed and weight bearing permitted on this leg. The doctor testified that at that time the injury appeared well healed and the foot was in good position with good functional results. The injury to the left leg was minor in nature and there is no question but that the injury to this leg has completely healed.

Plaintiff went back to work on December 1st, a little less than a month after the cast was taken off. He says his leg was not well at that time; that his leg would swell and cause pain; that he went back to work because the foreman wanted him to come back. He testified that on the .third day after he returned to work, he picked up a heavy cross-tie and felt a severe pain like something tearing. He told the foreman that his side was hurting but continued working for the remainder of the day, and on the way home that night riding in the truck with some other men the pain became so severe that he had to make a bandage out of a handkerchief with which to tie up his side. He was sent to Dr. Lorio by the company doctor for an operation, and the operation was performed by Dr. Lorio the latter part of January, 1938.

Dr. Lorio testified that he performed an operation on plaintiff for a bi-lateral hernia and that the operation was a complete success; that both hernias were definitely cured; that he examined the plaintiff just before the trial and found no sign of hernia. Plaintiff testified, however, that his side hurts when he tries to work.

There is considerable doubt from the testimony whether or not plaintiff sustained a hernia when lifting the cross-tie as he claims. There is evidence showing that he had a left inguinal hernia several years previous to this date. He was in the Charity Hospital in 1932, and the reports of the hospital show that he was then thought to have a left inguinal hernia, at least he was found to have relaxed inguinal rings. At the time plaintiff claims to have received the hernia, he showed no symptoms usually found where a hernia is caused from a strain or trauma, such as nausea, pallor, etc. It may be, and probably is true, that the strain in lifting the tie aggravated the pre-existing hernia. But assuming that such was the case, or that the strain caused a hernia or hernias, according to the testimony of Dr. Lorio, the operation cured the hernias and plaintiff is in a better condition now in that respect than he was before sustaining the hernias. If he now has weak inguinal rings, as one doctor testified, he is now in no worse condition than he was before he claims to have received a hernia in lifting the tie. We can therefore eliminate the hernia as a basis for his claim for compensation.

Plaintiff testified that his right ankle swells and gives him pain when he tries to work. He endeavors to connect this condition of his right leg with the injury caused by the tractor in August, 1937.

Dr. Watson examined plaintiff in February, 1939. He found that his right leg was slightly crooked; that the ligaments of his ankle were somewhat stiff and the blood vessels under the knee were enlarged and distorted. Dr. Watson was of the opinion that if plaintiff could not use his right foot any better than he claimed he could, his ability to work was impaired.

Summing up the testimony, we find that there is a slight swelling and stiffness in plaintiff’s right ankle when he uses his foot for a considerable length of time. He apparently has varicose veins in his legs, but there is nothing to indicate that these were caused by the injury to his foot when the tractor ran over it in August, 1937. Plaintiff also appears to have some signs of tuberculosis, but whether or not he has this disease, it certainly does not appear that the injury to his foot caused it or had anything to do with it.

Dr. Williams made X-ray pictures of plaintiff’s right foot in September, 1938, which showed an old healed fracture of the right fibula just above the ankle joint which has left a slight deformity. It is contended by plaintiff’s counsel that this old fracture is a result of the injury to plaintiff’s foot in August, 1937, and that the present condition of his ankle and his right foot is caused from that fracture; that the deformity, stiffness and swelling all result from that accident. However, as already stated, according to Dr. Catchings there was no fracture of the fibula above the right ankle when he examined the plaintiff just after his foot had been run over by the tractor, or at least, he did not notice any such fracture. It does seem that if there had been a fracture of a bone in plaintiff’s right leg above his ankle, this doctor would have seen and known about it. In fact, the doctor says if there had been an injury in the right ankle it would'have shown in the picture.

It is significant that plaintiff never complained of any injury to his right leg above his ankle when Dr. Catchings took the pictures and treated him for the injury to this foot. There was then either no fracture of the leg above the ankle or else he did not know about it which latter theory seems improbable. Moreover, he went back to the Charity Hospital in March, 1938, for treatment and the reports of the hospital show that he then made no complaint of any pain or trouble in his right leg, nor was any swelling or stiffness of this leg indicated in the examination and diagnosis made by the hospital authorities.

This unfortunate plaintiff recites a list of injuries which he received prior to the two on which he now relies as a basis for compensation making it difficult to understand why he is not in an even worse condition than he is now in. He was kicked in the back by a mule; had his skull fractured; a skidder line broke and hit his ankle (so far as we know this may have had something to do with the present condition of his ankle); he was ’scalded by the bursting of a water hose; a rehaul .skidder tied around him and pulled him through the woods; a mule threw him and stuck a stick in him; and, finally, he received the two injuries which form the basis for his present claim for compensation.

It appears that plaintiff’s employer has treated him fairly and has resolved the doubt as to his last alleged injury in his favor and paid him compensation and gave him an operation for the double hernia which might not have been caused by an injury received while working for the company.

Plaintiff’s wife testified that both of his ankles swell when he attempts to work, the right much more than the left. There is also evidence that he limped on one of his feet before the tractor injury. These facts indicate that the condition of his feet could have resulted from other causes.

Plaintiff bore the burden of proving that whatever disability he now suffers has a causal connection with the injuries he claims to have received in August and December, 1937. The proof of this connection is not sufficient to form the basis of a judgment for compensation, and we are not in position to hold that the trial judge was in error in rejecting his demands.

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


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    CUTRER v. SPRING.
    No. 2285.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.

      Ponder & Ponder, of Amite, and Rownd & Tycer, of Hammond, for appellant.
    Mary Purser, of Amite, for appellee.
   OTT, Judge.

The plaintiff alleges that she is entitled to have restored to her the possession of twelve acres of land in Tangipahoa Parish, which property she describes in her petition and which she acquired from S. A. Hayden per act recorded in the conveyance records of said parish. She alleges that on February 20, 1939, the defendant went upon said property and took possession of same by force and violence, tore down and removed her house situated thereon, struck and beat her husband and ran him from said premises when he attempted to prevent the defendant from taking possession of said property and removing the house therefrom. She asks to be restored to the possession of the property and that she be awarded damages against the defendant in the sum of $400 for the value of the house which defendant tore down and removed from said land, $200 for mental anguish, suffering and humiliation caused her on account of the said violent and unlawful acts of the defendant, and $100 for attorney’s fees.

The defendant filed an exception of no right or cause of action and in support of the exception of no right of action filed in evidence over the objection of plaintiff’s counsel a certified copy of the deed from Hayden to the plaintiff referred to by the latter in her petition. The exception was sustained and plaintiff’s suit dismissed. She has appealed.

The exception is based on the ground that plaintiff has failed to allege or prove that the land of which she claims to have been dispossessed and the house removed therefrom and for which she seeks to recover the value were her separate and parapher-nal property and under her separate administration ; that the land and the house thereon are presumed to belong to the community existing between her and her husband and that he, as head and master of the community, is the proper person to vindicate the rights of the community and bring suit and have restored the possession of the land and recover for the house removed therefrom by the defendant.

The petition shows that plaintiff is married and the deed introduced in evidence and referred to in her petition as the basis-of her ownership also shows that, while the property was purchased in her name, she is declared to be the wife of Cecil A-Cutrer, and there is no declaration in the deed that she was purchasing the property with her separate funds.

The plaintiff contends that the question of title is not an issue in the case; that the defendant has no right to raise the question of title or the right of plaintiff to he .restored to the possession of property of which she has been wrongfully dispossessed, as this is purely a possessory action and a collateral attack on plaintiff’s title is not permissible.

Article 47 of the Code of Practice provides that the persons entitled to bring the possessory action are those who possess as owners, persons entitled to the usufruct or use of the real property, and others having real rights growing from such real estate. While the question of title is not an issue in a possessory action, yet if the plaintiff in such an action bases his right to resort to the action to be restored to the possession of the property which he possessed as owner and refers to a title under which the quality and character of his possession is fixed, the title does then become relevant to show the nature and quality of the possession which was disturbed. If the title on which the possession is based shows that the plaintiff does not possess as owner, or in one of the other qualities necessary to give a right to resort to this form of action, the court will give effect to the title and deny the plaintiff the right to resort to the possessory action. Sallabah et ux. v. Marsh, 34 La.Ann. 1053; Williams et al. v. Harmanson, Agent, et al., 41 La.Ann. 702, 6 So. 604.

Therefore, the plaintiff having alleged that she was in possession of the property as owner under a title, this title becomes relevant for the purpose of showing the quality and 'character of her possession. If this title shows that she is not entitled to possess as owner, or in any of the other capacities required for bringing a posses-sory action, her suit must fall. As already stated, the title shows that the property belongs to the community existing between her and her husband, and consequently she is not the owner of it.

Under Article 2404 of the Civil Code, the husband administers the community property and has charge of its affairs. The husband is not only the proper person to sue and stand in judgment when community property is affected or community rights are to be vindicated, but he also has under his control the personal and pos-sessory actions to which his wife is entitled. C.P. art. 107; Mitchell v. Dixie Ice Co., Inc., 157 La. 383, 102 So. 497.

We therefore conclude that, in so far as the plaintiff’s action seeks to recover possession of the community property, the twelve acres of land, and to recover the value of the house belonging to the community and alleged to have been unlawfully taken from said land by the defendant, she has failed to show a right of action in herself. Obviously, the defendant has an interest in knowiñg that, if he is ordered to restore possession of the property and pay damages for the house, that he surrenders the possession and pays the damage to the right person and to one who can stand in judgment and thus protect him against a similar action by the husband.

In so far as plaintiff’s claim for damages on account of mental anguish, suffering and humiliation is concerned, this is her own separate damage recoverable by her alone under Act 68 of 1902, amending Article 2402 of the Civil Code. Martin v. Derenbecker, 116 La. 495, 40 So. 849. But she cannot engraft this claim onto a pos-sessory action which should be brought by the husband. We have therefore concluded to enter a nonsuit on this claim.

For the reasons assigned, it is ordered that the judgment appealed from be and the same is hereby amended so as to dismiss the claim of plaintiff for damages on account of mental anguish, suffering and humiliation as in case of nonsuit; that in all other respects, the judgment be and the same is hereby affirmed; appellee to pay the cost of the appeal, and appellant to pay all other cost.


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    MORGAN v. ECHOLS.
    No. 2292.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    C. G. Spaht, of Baton Rouge, for appellant.
    Breazeale & Sachse, of Baton Rouge, for appellee.
   OTT, Judge.

In the prayer of his petition, plaintiff asks for damages against the defendant in the sum of $3,334, made up of three items of damage: the loss of the use of a residence owned by plaintiff on account of drilling operations carried on by defendant under an oil and gas lease, in that an oil well was placed within 45 feet of this residence contrary to the terms of the lease and a subsequent modification thereof, these drilling operations causing so much noise, bad odors, filth and loss of privacy as to render the dwelling totally unfit for occupancy as a residence, for which he claims damages in the sum of $1,500; damage to and destruction of trees, shrubbery and other plants growing on the leased property, caused by the drilling operations, the sum of $1,434; and for the loss of the rental of other parts of the leased property by reason of the erection of storage tanks, separators, exposed pipes, etc., the sum of $400.

Under an exception filed by the defendant, the trial court ruled out the claim for loss of rent under the last item of damage, and plaintiff seems to have acquiesced in this ruling.

The trial judge rendered a judgment in favor of the plaintiff against the defendant for $1,009 for damage to and loss of trees, shrubbery and plants, but rejected the claim for damages resulting from the loss of the use of the house for residence purposes. The plaintiff took an appeal to this court from the judgment, and defendant answered the appeal and asks that the judgment against him be reversed, or in the alternative, that the amount be reduced.

In this court the plaintiff is urging his claim for $1,500 damage caused by the drilling operations to his residence on the property, and the defendant is insisting that he is not liable for the damage to trees, shrubbery and other plants on plaintiff’s property for which judgment was rendered against him. Plaintiff does not question in this court the correctness of the amount awarded him on this last item.

It is obvious that the amount in dispute between the plaintiff and the defendant on this appeal is the sum of $1,500 plus the sum of $1,009, or a total of $2,509. Article 7, Section 10, of the Constitution of this State, gives the Supreme Court appellate jurisdiction in civil suits where the amount in dispute shall exceed two thousand dollars exclusive of interest, except in suits for damages for physical injuries to, or for the death of a person, or for other damages sustained by such person or his heirs or legal representatives, arising out of the same circumstances, and in suits for workmen’s compensation.

Ordinarily, the amount shown by the pleadings to be in dispute determines the jurisdiction of the appellate court, however, if it appears that the claim is inflated and exaggerated, the court may examine the record to ascertain the actual and reasonable amount in controversy in determining jurisdiction. Turner v. Charlton et al., La.App., 197 So. 187. We have examined the evidence and the entire record in this case in order to determine whether or not the claims for damages are unreasonably inflated and exaggerated, but we do not find this to be the case.

As the claims for damage do not arise out of a personal injury nor involve a claim for compensation, and as the amount in dispute exceeds the sum of two thousand dollars, the Supreme Court has jurisdiction of the appeal, and exercising the discretion granted us by Act 19 of 1912, we will transfer the appeal to that court. Richland State Bank v. Brock et al., La.App., 177 So. 454; Hammond Box Co., Inc., v. Independence Strawberry Cooperative Ass’n, La.App., 194 So. 95.

For these reasons and. in accordance with Act 19 of 1912, it is ordered that the appeal in this case be transferred to the Supreme Court of Louisiana; that the appellant is hereby granted a period of 60 days from the date this decree becomes final to file the necessary transcript and perfect said appeal in the Supreme Court, and in case of his failure to do so within said period, the appeal to stand dismissed; appellant to pay the cost of this appeal, and all other cost to await the final termination of the cause.