text:
    215 La. 849
    BAYOU RAPIDES LUMBER CO. v. CAMPBELL.
    No. 39071.
    Supreme Court of Louisiana.
    May 31, 1949.
    K. Hundley, Alexandria, for applicant.
    Peterman, Gravel & Downs, Alexandria, for respondent.
   MOISE, Justice.

We granted a writ of certiorari and this litigation is now before us for review.

There was judgment in the district court in favor of plaintiff. The Court of Appeal, Second Circuit, 41 So.2d 78, 83, affirmed that judgment. A rehearing was granted and on this rehearing the appellate court reversed itself and dismissed plaintiff’s demands.

The action is redhibitory. The petition sets out that there was a commercial partnership composed of A. B. Campbell and A. J. Brown; that on April 13, 1946, the plaintiff bought a paid of mules for $300 from the alleged partnership; that a written guarantee was furnished and signed by Brown; that when the mules were used at hauling logs, one of them was sulky and thus made the pair unfit for the use for which plaintiff bought them; that, therefore, the sale should be rescinded and the purchase price returned to petitioner; and that the petitioner tendered the mules to Campbell but he refused to accept them. The prayer is for judgment in the sum of $300 against Campbell and Brown, jointly, severally and in solido, with interest, etc. The alternative prayer is that if no partnership is shown .and Campbell is found to be the sole owner of the business, that judgment be rendered against him. (It developed that just after the sale of the mules, Brown left the vicinity and his whereabouts were unknown and for that reason no process of court could be served upon him.)

Campbell, in answering, denied all of the allegations of the petition with the exception of admitting the tender of the mules and his refusal to receive them. He averred that he did not own nor did he sell them to the plaintiff. He stated that he was at all times the sole owner of the business. After the joinder of issue, Campbell died and.his wife, the executrix of his estate, was made a party defendant.

The Court of Appeal in its original opinion, as set 'forth on rehearing “ * * * found the testimony conclusive that there was no partnership existing at any time between A. B. Campbell and A. J. Brown and that at no time did Campbell own or have any proprietory interest in the mules sold to plaintiff”.

Our study of the record convinces us that the opinion of the Court of Appeal (On Rehearing) correctly reflects both the facts and the law of the case and we now adopt, as our own, its reasons on the subject matter:

“The testimony, which this Court found in its original opinion established the liability Of Campbell, consisted of verbal commitments and statements made by Campbell in the routine negotiations leading up to the selection and sale of the mules, which confirmed in plaintiff the belief that the mules did not belong to Cambell and which made Campbell though neither the partner of Brown nor the owner of the mules, responsible as guarantor to the purchaser, who may have acted on the strength of these statements and commitments.

“The principle of law has been well established in Louisiana that evidence relevant to issues that are pleaded does not have the effect of enlarging the pleadings to the extent o'f injecting new issues or injecting a cause of action not pleaded. Nezat v. General Outdoor Advertising Co., La.App., 24 So.2d 482. Tensas Delta Land Co., Ltd. v. Ferguson, Assessor, et al., 128 La. 171, 54 So. 708; Hope v. Madison, 192 La. 593, 188 So. 711.

“The testimony in the record relative to what Mr. Campbell said and did in connection with the sale of the mules was relevant to the issue as to whether or not his conduct and statements were such as to establish existence of a partnership between himself and Brown or to establish the relationship of principal and agent between himself and Brown, both of which issues were pleaded. The plaintiff unquestionably had the right to introduce proof of what Mr. Campbell told the plaintiff’s agent in order that the Court might determine from all of the facts and circumstances whether Campbell’s conduct was such as to constitute Brown as agent or to- establish the existence of the partnership being admissible for the purpose of establishing the facts that were pleaded. The fact that the court did not find that either the existence of a partnership or the relationship o-f principal and agent was established does not make the conversation and actions of Mr. Campbell in connection with the sale any the less relevant to those pleaded issues. This evidence being relevant to the pleaded issues and admissible under the pleadings, did not have the effect of enlarging the pleadings to make the defendant Campbell liable as warrantor.

“Plaintiff in brief has requested that in the event this Court should determine that the pleadings were not enlarged, that instead of reversing the judgment of the District Court rejecting plaintiff’s demands, we should remand the case to the District Court. In support of this contention, counsel cited a recent Supreme Court case, Succession of Addison, 212 La. 846, 33 So. 2d 658. The principle is well recognized •in Louisiana law that appellate courts have the right to exercise the authority granted them by Article 906 of the Code of Practice and to remand cases to the trial court for additional proceedings. However, this proceeding from its very nature is one which must be sparingly exercised.

“The language of the article declares that the cases should be remanded only ‘if the court shall think it not possible to pronounce definitely on the cause, in the state in which it is.’ In the case before us, there is sufficient testimony to pass upon the issues raised. Under all the circumstances of this case, we conclude that is not a proper one for remanding under Article 906 of the Code of Practice and the relevant Louisiana cases. Meyer v. Pritchett, 8 Orleans App. 51. Cullota v. Washington, 7 La.App. 75. Kerr v. Pima Petroleum Co,, Inc., 8 La.App. 759. Paterno v. Kennedy The Cleaner, Inc., 18 La. App. 649, 138 So. 531.

“We realize that there is equity in plaintiff’s contention that the case be remanded in order that it may amend its pleadings and establish a cause of action against defendant based on estoppel. However, the fact that such issue was not tendered in the original pleadings and the testimony adduced at the original trial, is due to the fact that plaintiff’s counsel did not see fit to include same in the suit. Some six months after the filing of the suit, the defendant, A. B. Campbell, passed away, and •his wife, as executor '(executrix) of his estate, is now the party defendant. Had the original suit tendered the issue of Campbell’s estoppel, Campbell would have been able to give guidance to his attorneys in the preparation of the defense. Needless to say, his executors (executrix) would be handicapped in a defense for the case if it were now remanded for the filing of new pleadings and a determination of the new issues. (Parenthesis mine.)

“Having found in our original opinion that the plaintiff failed to make out its case on either the principal or alternative demand, and having determined on rehearing that the pleadings were not enlarged, it follows that the judgment of the District Court in favor of plaintiff was in error.

“The judgment appealed from is reversed and judgment is now rendered dismissing plaintiff’s suit at its costs.”

For these reasons, the judgment of the Court of Appeal is affirmed; plaintiff to pay all costs.

O’NIELL, C. J., takes no part.


source: Caselaw Access Project

author: HARDY, "Judge.

license: Public Domain

text:
    PARKER v. HOME INDEMNITY CO. OF NEW YORK.
    No. 7342.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Rehearing Denied Aug. 16, 1949.

      Tucker, Bronson & Martin, Shreveport, for appellant.
    Morgan, Baker & Skeels, Shreveport, for appellee.
   HARDY, "Judge.

This is a suit for damages resulting from a collision between a motorcycle ridden by plaintiff and a Ford automobile driven by defendant’s assured. There was judgment for defendant rejecting plaintiff’s demands, from which judgment plaintiff appeals.

The only witnesses to the accident were plaintiff and the assured. The testimony of the parties is as nearly free of conflict as could reasonably be imagined, and the evident fairness and truthfulness of the two principals were so noteworthy as to have drawn merited commendation from the District Judge, in his opinion, which we desire to here re-emphasize.

The facts show that at about the hour of 8:30 on the morning of January 22, 1948, plaintiff was riding his motorcycle on Southern Avenue, a right-of-way thoroughfare of the City of Shreveport, in a northerly direction. Between the intersections of Prospect and Dalzell Streets plaintiff was riding some 20. feet behind the automobile of defendant’s assured, one Roger Culbertson, which was proceeding in the same direction on the right-hand side, within a foot or so of. the center line of the street. Both vehicles were being operated at a reasonable rate of speed in the neighborhood of 20 to 25 miles per hour. Plaintiff testified that he was anxious to pass the Culbertson car, and, after following the said vehicle for some block or block and a half and finding the way cleared of on-coming traffic, he sounded the horn on his cycle, and began to negotiate a passing maneuver just at or about the intersection of Dalzell Street. At almost the same instant Culbertson,-without giving any hand signal but after “jamming” his brake two or three times which automatically flashed a taillight on the left rear of his car, began the execution of a left turn into Dalzell, which carried him immediately into the path of the passing motorcycle. The latter vehicle crashed into the left side of the automobile about the middle portion Plaintiff was thrown from his machine, sustained a serious oblique, compound fracture of the middle third of the tibia of the right leg, which injury required hospitalization, the performance of an open reduction on the bone, and the introduction of a plate. Plaintiff was permitted to leave the hospital on February 1, 1948, after ten days treatment, after which he was confined to his bed at home for some two weeks. The injured leg was kept in a cast for some six weeks, after which the stitches were removed. Thereafter plaintiff was able to get about to a limited extent with the use of crutches until the early part of May, following which period he walked with a cane for several weeks. As the result of his injuries plaintiff, who was employed as a field worker for the Schlumberger Well Surveying Corporation, was unable to return to his job until May 17, 1948, at which time he returned to limited duty until he wás again yble -to resume his regular work on July 15, 1948. Plaintiff sued for damages, variously itemized, totaling the sum of $7,759.-40.

The only differences with respect to the facts involved result not from conflicts in testimony but simply from the admitted failures of the parties to hear or see the other’s signals. That is, plaintiff says he did not see the flashing of the taillight- on the Culbertson car, while Culbertson testified that he did not hear the sounding of plaintiff’s horn. The only conflict of testimony is with respect to the position and condition of the windows on the left side of the Culbertson car. Plaintiff testified that the windows were closed and were fogged in such manner as to make vision difficult, while Culbertson testified that the left front window was open some inch or so from the top and the glass was clear.

While Culbertson admits that he did not give any manual signal warning of his intention to turn, he testified that he looked into the rear view mirror inside his car and an extension rear view mirror on the left outside of his car and did not perceive the approach of the motorcycle. The only explanation which he advanced for his failure to see the motorcycle which had been following him for some block or so was that there was a W-'nd spot, due to the solid construction at the left rear of the automobile1 between the rear glass and the left rear glass, which might have obscured a small- vehicle from view in either of his mirrors.

Upon these facts the District Judge found that defendant’s assured, Culbertson, was guilty of negligence in attempting to make a left turn without giving the proper warning signal as required by the applicable ordinances of the City of Shreveport. However, the District Judge further found that plaintiff was guilty of contributory negligence in attempting to pass a vehicle at a street intersection in violation of Section 3, Rule 7 (e) of Act No. 286 of 1938, better known as the Louisiana Highway Regulatory Act, and, on the basis of the conclusion that plaintiff’s contributory negligence had been a proximate cause of the accident, there was judgment for defendant.

Before proceeding to a discussion of the merits it is necessary for us to consider certain preliminary matters which were raised by counsel for defendant and which have been re-urged before this Court. An exception of no cause and no right of action was filed on behalf of defendant. The exception was first sustained and then, .on rehearing, overruled by the District Judge. The exception was based on the proposition that the allegations of plaintiff’s petition showed the sole and proximate cause of the accident to be due to plaintiff’s negligence, and, in the alternative, conceding that plaintiff’s petition properly alleged actionable negligence on the part of defendant, that the said petition further alleged the contributory negligence of plaintiff as constituting a proximate cause of the accident.

It is true that certain allegations of plaintiff’s petition showed that the accident occurred as plaintiff attempted to pass another vehicle at a street intersection. It is further true that this is a violation of the cited provisions of the Highway Regulatory Act. But, as properly observed by the District Judge in overruling the exception, it is not every case of negligence on the part of the plaintiff that will bar recovery. The question as- to :whether the alleged act of passing at an intersection was a proximate cause was not entirely a question of law but involved a question of fact which could only be determined by trial on the merits.

' The same reason is applicable to the alternative proposition inasmuch as a determination as to whether plaintiff’s contributory negligence was a proximate cause of the accident is also a matter of fact to .be determined on consideration of the merits. We think the exception was properly overruled.

Defendant filed a plea of unconstitutionality directed at Act No. 55 of 1930, which is strenuously urged before this Court' by diligent counsel. It is asserted that plaintiff relies on the cited act. as constituting his sole right for bringing a direct action against defendant as liability insurer of the driver of the car involved in the accident.

The attack on the Act is based upon the premise that the title thereof embraces more than one object, and is not indicative of the objects comprehended in the Act, contrary to the provisions of Section 16 of Article III of the Constitution of 1921.

This identical point has twice been considered by our brethren of the Orleans Court of Appeal. Rossville Commercial Alcohol Corporation v. Dennis Scheen Transfer Co., 18 La.App. 725, 138 So. 183; Burglass v. Burglass, La.App., 193 So. 275. In both of the cited cases the attack upon the constitutionality of the act failed. With the conclusions reached and the reasons therefor, as stated in the cases cited, we are in complete accord.

But, proceeding further, counsel attacks the constitutionality of the Act on the ground that there is no indication in the title “that the statute proposed to create the relationship of solidary obligors .between the insured and the insurer”. The conclusion is drawn that the incorporation of such a provision in th.e statute resulted in the inclusion of more than one object, a point which has. apparently not been heretofore raised.

We point out that the relationship between the insured and the insurer is purely a matter of interpretation. It may be, as counsel has stated in brief and urged in argument, that the Supreme Court has interpreted provisions of' the Act as creating the relationship of solidary obligors between the parties to the contract of insurance. Certainly, this is a matter purely and simply of interpretation and is not a point that derives from any specific provision of the Act with relation to its title.

So far as we know judicial interpretation of statutes is not a ground for an attack upon the constitutionality of such acts. Accordingly, in our opinion, the plea of unconstitutionality was properly overruled.

Turning to the merits, counsel for plaintiff-appellant first contends, and properly, that the driver of an automobile is under a legal duty with respect to executing a hand signal before making a turn, and that failure so to do constitutes reckless driving. These conclusions are justified by reference to specific ordinances of the City of Shreveport which were properly introduced in evidence on trial of the case.

In this connection it is further asserted that left turns are peculiarly dangerous and hazardous maneuvers and should be undertaken with extraordinary care. This proposition is well established by an impressive array of cases which might be cited, but the general proposition is freely conceded in brief of counsel for defendant-appellee, which concession obviates the need of citation.

Considering the unusual danger attached to the execution of a left turn by a motor vehicle, and the high degree of care required in connection therewith, and in view of the established fact that defendant’s assured failed to give a proper signal, there is no question as to the fact that he was guilty of negligence which was a proximate cause of the accident. The District Judge so found, in which finding we concur.

Additionally, it is urged with respect to the plea of contributory negligence that defendant failed to properly plead contributory negligence, which defense, accordingly, is barred.

Reference to defendant’s answer shows that, although he specifically pleaded contributory negligence on the part of plaintiff, he failed • to set forth the facts upon which he relied in support of such plea. We think it is well established by the jurisprudence of this State that a plea of contributory negligence cannot be invoked in the absence of the allegation of the facts relied upon as constituting such contributory negligence. McDonald v. Stellwagon, La.App., 140 So. 133, citing Quatray v. Wicker, 16 La.App. 515, 134 So. 313; Gauvereau v. Checker Cab Co., 14 La.App. 448, 131 So. 590; Giangrosso v. Schweitzer, 10 La.App. 777, 123 So. 127; Quintano v. Ibos, 14 La.App. 73, 128 So. 186; Howard v. Great American Indemnity Co., La.App., 36 So.2d 881; Althans v. Toye Bros., La.App., 191 So. 717.

However, the charge of the failure to properly plead contributory negligence is met by counsel for defendant with the contention, which was accepted and approved by the District Judge, that evidence which is admitted without obj ection has the effect of enlarging the pleadings, citing Thiberge Ptg. Co. v. Drumm, 5 La.App. 550; and Frierson v. Shreveport Grocery Co., 3 La. App. 44.

The enunciated rule of enlargement of the pleadings by testimony is subject to certain requirements. The principle was stated by this Court in the recent case of Bayou Rapides Lumber Co. v. A. B. Campbell et al., La.App., 41 So.2d 78, 83, as follows:

“The principle of law has been well established in Louisiana that evidence relevant to issues that are pleaded does not have the effect of enlarging the pleadings to the extent of injecting new issues or injecting a cause of action not pleaded. Nezat v. General Outdoor Advertising Co., La.App., 24 So.2d 482; Tensas Delta Land Co., Ltd., v. Ferguson, Assessor, et al., 128 La. 171, 54 So. 708; Hope v. Madison, 192 La. 593, 188 So. 711.”

The judgment of this Court on review before the Supreme Court was affirmed and the opinion containing the above-quoted statement was adopted as that of the Supreme Court. Bayou Rapides Lumber Co. v. A. B. Campbell et al., La.Sup., 41 So.2d 781.

It is necessary that we examine the testimony admitted in the light of this holding. But the manner in which and the means by which the enlarging testimony has been admitted also has a bearing in the application of the enunciated principle. It is established that if plaintiff’s own evidence reflects his contributory negligence to a degree barring recovery, it must be accepted without regard to the omission of such a plea on the part of defendant. Ryan v. Louisville N. O. & T. Ry. Co., 44 La. Ann. 806, 11 So. 30; Baden v. Globe Indemnity Co., La.App., 146 So. 784.

Reverting to the record we find that the testimony of plaintiff himself, on direct examination, established the fact that he attempted to pass the car driven by defendant’s assured at a street intersection. Since this was an act specifically prohibited by law, plaintiff himself has established his own contributory negligence, and, in our opinion, even had defendant omitted to specifically allege contributory negligence this , testimony would have supplied the omission.

With reference to the provisions of Rule 7(e) of Section 3 of Act No. 286 of 1938, prohibiting passing at highway intersections, counsel for plaintiff contends that the same is not applicable to the streets of a city, being intended only as a safeguard for traffic at highway intersections. This point has been recently considered by this Court in Holliday v. Hartford Accident & Indemnity Co., La.App., 38 So.2d 235, 238, and the opinion of Judge' Taliaferro disposed of the issue in these words:

“Defendant argues that the street on which the accident happened has not been shown to be a highway or part of a highway within the purview of the quoted rule. This contention is not well founded. Subsection (n) of Section 1 of said Highway Regulatory Act is determinative of this question. This section is to be founded under title ‘Definitions and General Authority.’ It reads:
“ ‘The term “Highway” includes every way or place of whatever nature open to the use of the public, for the purpose of vehicular travel.’ ”

Having arrived, by what appears to be excessive circumlocution, at the conclusion that plaintiff was guilty of negligence which was a proximate cause of the accident, and that defendant was guilty of contributory negligence, which was also a proximate cause of the accident, and which would bar recovery, we are finally confronted with the contention that defendant’s assured had the last clear chance to avoid the accident, failing which he is liable for plaintiff’s injuries.

The trial Judge disposed of this point with the observation that the doctrine of last clear chance would be applicable only in the event Culbertson had discovered plaintiff’s peril and failed, after such discovery, to avoid injuring him, and that no facts in the instant case supported such a conclusion.

As a general proposition the trial Judge correctly stated the doctriné, but again there is a modification of the general rule. The doctrine of last clear chance is applicable not only in cases of discovered peril but in those cases where the peril could and should have been dicovered. The case of Neyrey v. Maillet, La.App., 21 So.2d 158, 163, is of particular interest in this connection. In the cited case the “blind spot’’ which has been alluded to above was a point at issue. Judge McCaleb, the author of the opinion, made the following observation:

“Comment is made by our brother below in his written opinion about a ‘blind’ spot back of the rear wheel of defendant’s car and we assume that he means by this observation that, because plaintiff was standing to the right of the rear of the Ford, it- was difficult for defendant to .get a glimpse of her in that position by looking through his rear-view mirror. If this be so, then our answer is that he should not have relied entirely upon the limited vision afforded him by the rear-view mirror and that he should have taken additional precautions to obtain a full view to his rear before he put his car in motion.”

Further, Judge McCaleb, dealing with the application of the doctrine of last clear chance, declared:

“The evidence produced by plaintiff establishes that, at the time she' and her daughter positioned themselves in the space behind defendant’s car, defendant had not yet started, his backward movement. Therefore, he had a last clear chance, if he had exercised the precaution required of him, to have discovered their presence in the rear of his car in ample time to have avoided the accident.”

Further support of the application of the doctrine is found in Loewenberg v. Fidelity Union Casualty Co. et al., La.App., 147 So. 81, and Young v. Thompson, La.App., 189 So. 487, citing Jackson v. Cook, 189 La. 860, 181 So. 195.

In the instant case we think Culbertson could and should have discovered the presence of the following motorcycle operated by plaintiff at some time during the course of the progress of the respective vehicles along Southern Avenue. Certainly, even if he had failed to perceive the motorcycle during the course of the block or block and a half prior to reaching the intersection of Dalzell Street, he was required, because of the extreme hazard involved in making a left turn, to take additional precaution before entering upon such a maneuver. If the opportunity of readily detecting a following vehicle by glancing in a rear view mirror is impeded by the existence of a blind spot, this fact in itself should require the exercise of additional and extreme precautionary measures even to the extent of looking out the window to the rear, and failure to take such measures, in our opinion, justifies the invocation and application of the doctrine of last clear chance.

Implicit in Culbertson’s own testimony, is his recognition of the existence of the blind spot which interfered with a proper view to the rear. We quote the pertinent portion of his testimony as follows:

“Q. Your statement is that you can see everything behind you through the rear view mirror and the side mirror except for a small blind spot. Did you make a left hand turn off a street merely by looking into both mirrors, without any other precaution? A. Yes, sir, because I am usually going slow and people are supposed to keep their automobiles and things under control at all times.
“Q. In other words, as I understand it, you are willing to rely on a look in both those rear view mirrors, one outside and one inside? A. I used to be, but I am more cautious now. I agree with you on that.”

It is evident from the above-quoted extract of testimony that Culbertson proceeded on the theory that it was the duty of others to keep their automobiles under •control to such extent that they would be •able to avoid a collision when he made an ■unsignaled or improperly signaled left turn. This in itself is a violent and unjustified ■presumption. When his knowledge of the ’blind spot is taken into consideration we ■think it logically follows that he failed to •see what he could have seen and what he •should have seen by the exercise of precautionary measures which were clearly indicated under the circumstances. This failure to avail himself of the last clear chance to avoid the accident renders him liable.

There remains only the fixing of the •quantum of damages. A revised itemization of damages contained in brief of counsel for plaintiff is set up as follows:

lx>ss of wages from January 22, to May 17, 1948 $1,042.82
jR.eduction of wages from May 17 to July 15, 1948 152.12
Tri-State Hospital, ambulance and nurse 254.40
Willis-Knighton Clinic • 130.00
Injury to leg, pain and suffering 3,000.00
Total $4,579.34

Counsel for defendant admits the undisputed proof of all the above items with the exception of the amount claimed for pain and suffering, with respect to which it is urged that an award of $1,500.00 would be ample compensation.

The record discloses that plaintiff experienced a normal recovery, considering the type of injury suffered, and it is not shown that he suffered to any unusual extent. In view of these facts, we, too, feel that an award of $1,500.00 would be sufficient for this item, which would fix the total amount of recovery at $3,079.34.

For the reasons assigned the judgment appealed from is reversed and set aside, and it is now ordered, adjudged and decreed that plaintiff, Odis Frank Parker, have judgment in the sum of $3,079.34 against the defendant, Home Indemnity Company of New York, with legal interest thereon from date of judicial demand, together with all costs.


author: HARDY, Judge.

text:
    HOBSON et ux. v. WALKER.
    No. 7352.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    Rehearing Denied June 30, 1949.

      Parker & Parker, Jena, for appellants.
    John J. McKeithen, Columbia, for appel-lee.
   HARDY, Judge.

This is an action for the abatement of an alleged nuisance in which plaintiffs, James R. Hobson and wife, seek the issuance of an injunction restraining the operation by defendant of a retail fish bait business, together with the recovery of damages allegedly sustained by plaintiffs. After trial there was judgment in favor of defendant rejecting plaintiffs’ demands, from which plaintiffs have appealed.

Because the material facts have been so excellently presented in the able and well reasoned opinion of our learned brother of the District Court, and further because the opinion sets forth the impressions gained by the District Judge on the occasion of his examination of the premises, we quote at length from said opinion as follows:

“The business complained of is operated by defendant at his residence and the installations required in connection therewith are located on the residential premises' of defendant. Plaintiffs and defendant own their homes, which are situated on adjoining fifty-foot lots just outside of the corporate limits of the town of Jena on the South side of U. S. Highway No. 64. Plaintiffs’ house is immediately East of defendant’s residence, while the home owned and occupied by Mrs. Girlinghouse is located on the lot adjoining defendant to the West within a few feet of defendant’s house* There is one other dwelling house immediately West of the home of Mrs. Girl-inghouse. “Mr. and Mrs. Randal own and occupy their home situated East of plaintiffs’ home, with one fifty-foot lot intervening between the homes. On the opposite, or North side of the highway, in-the immediate neighborhood, there are two-filling stations, a lumber yard, and a residence. The area, therefore, is a mixed residential and commercial area. There are no zoning ordinances controlling the nature of establishments which may be constructed or businesses which may be operated in the territory involved.
“Defendant is employed as a clerk in a store located in Jena, and operates the fish bait business as a side line. He sells minnows and earthworms, to be used as fish bait, and also has on hand small quantities of ice and cold drinks, for the accommodation of his customers. The physical plant,, situated on his premises for the operation of said business, consists of the following :
“1. Two large minnow boxes, located in the front yard, containing water in which the minnows are kept alive while awaiting delivery to purchasers.
“2. A small icehouse, also located in his front yard.
“3. A cold drink box, placed near the icehouse, and a large box situated in his back yard which is filled with dirt, in which earthworms are kept, to be available for sale.
“In order to keep the water in the minnow boxes fresh, perforated pipes are suspended above each of. the boxes, and a small, electric water-pump circulates the water from the boxes through the pipes, causing, it to be sprayed báck into the minnow boxes. Immediately in front of defendant’s house, just off the shoulder of the highway, several signs are posted, advertising defendant’s business.
“Plaintiffs aver that the business is operated so as to constitute a nuisance in the following respects:
“1. That the signs are so located as to render extremely hazardous passage in and out of plaintiffs’ driveway.-
“2. That the noise of the water spraying into the minnow boxes is disturbing and annoying.
“3. That the sight of worms being dug from the box disturbs their sensibilities.
“4. That a light suspended over the worm box shines directly into a bedroom window of their house, so as to greatly disturb and annoy them.
“5. That customers of the bait business make so much noise starting and stopping automobiles, slamming doors, playing radios, blowing horns, and carrying on loud conversations with each other so as to render it impossible for plaintiffs to sleep at night or rest properly in the daytime.
“6. That bumping noises are made by putting ice into the icehouse so as to disturb them at night.
“No complaint is made of any vulgar or objectionable statements ever having been made by any of the patrons of the fish bait business. Neither is any complaint made, except as to handling of ice and the noise made by the spraying of water, that defendant or his employees themselves' ever created any objectionable noise in the manner of handling any of the products kept for sale.
“The Court,- at the request of both the -plaintiffs and defendant, visited the area involved and observed carefully all -of -the physical structures and circumstances bearing any part in the case. A large number of witnesses also testified pro and con as-to whether or not the business was operated so as to constitute a nuisance. No evidence was introduced showing the width of the right of way at the point where the signs were located, but inasmuch as they were immediately adjacent to the shoulder of the • road and were above the slight depression or road-side ditch, it will be presumed that they were on the highway right of way. That being true, unquestionably, the public authority controlling the highway could require that said signs be removed therefrom. However, plaintiffs can require their removal only if the signs, as located, cause specific injury to plaintiffs in their individual capacities. The Court drove his automobile into 1 and out of plaintiffs’ driveway two or three times, observing carefully to what extent the signs interfered with the safe entering or leaving said driveway. The Court experienced no difficulty in bringing his automobile to a stop immediately before backing onto the paved surface of the highway from, which position it was possible to s'ee clearly the entire roadway from the West without any interference of vision on account of the signs. A motorist, on the highway approaching plaintiffs’ home from the West, could quite easily see a car moving out of plaintiffs’ driveway by looking under and on both sides of the sign. The Court, therefore, concludes that the presence of the signs, while creating some slight inconvenience in the use of plaintiffs’ driveway, did not create a hazardous condition for one using ordinary care in the use of the driveway. For that reason, the Court does not consider that the maintenance of the signs constituted a private nuisance, subject to abatement by this suit of plaintiffs’.
“The pumping apparatus- was placed in operation for the Court’s observation. The small, electric motor was almost noiseless, and it is not believed that it could have been heard at all.from plaintiffs’ residence. The noise made by the spraying water was not very loud and was somewhat similar to that produced by ornamental fountains, which are frequently placed in gardens and courtyards. This slight noise, instead''of being disturbing, would ordinarily be considered of a soothing nature. It is, therefore, not deemed to have constituted a nuisance in any respect.
“The evidence indicated that the worm box was formerly located near plaintiffs’ dining room from whence they could have seen worms being removed from the box. It is now located in defendant’s back yard, in a place where it could not be seen from plaintiffs'’ dining room, and apparently, plaintiffs no longer complained of the annoyance to their sensibilities by seeing worms removed from the box. However, even if -the operation of removing worms from the box is still visible from any point on plaintiffs’ premises, the Court does not consider that the viewing of such an operation would be disturbing to a person of ordinary sensibilities. Accordingly, that tactor is not deemed to constitute a nuisance.
“The bedrooms of plaintiffs’ home are on the East side of the house. The rear bedroom has windows opening to the East and two windows opening in the South, or rear wall, of their house. The worm box referred to is in defendant’s back yard, approximately fifty feet from the rear windows referred to; a light with a rather strong bulb is suspended over the worm box' about six feet from the ground. When it is turned on, its rays would shine into plaintiffs’ rear windows at an angle of approximately forty-five degrees.' It would riot afford enough light" to make the in-trrior of plaintiffs’ bedroom visible from tiie vicinity of the worm box and would shine directly into only one corner of the room. If any occupants should happen to be in the room when said light was turned on, it would no doubt constitute some inconvenience and annoyance. However, it is not considered by the Court that it would be sufficient to amount to actual physical injury or damage, and, therefore, does not constitute a nuisance. The slight annoyance mentioned above can be completely eliminated by the placing of a shade on the light by defendant, or plaintiffs, at very slight expense, could place a screen on the back porch, across which the light must shine, and thereby prevent the rays of-the light from entering the room.
“The evidence showed ■ that ■ defendant kept a small quantity of ice in the small icehouse, which is shown in some of the photographs filed in evidence, for the convenience of his fish bait customers. They could purchase ice for the purpose of preserving the fish and perhaps keeping drinks cold, which they might wish to carry fishing with them. The evidence showed that, ordinarily, ice was delivered to the defendant by the ice company’s truck during its regular delivery trips in the daytime. On rare occasions, he exhausted the supply and replenished it by going to the ice plant with his automobile.' The Court is convinced that the putting of ice in the icebox at night was such a rare occurrence, and produced such a small amount of noise, that it could by no means be considered as constituting a nuisance.” '

We think the conclusions set forth in the above quoted portion of. the trial Judge’s opinion properly and effectively dispose of all of the counts relied upon by plaintiffs as constituting a nuisance with the exception of the excessive noise which allegedly arises from the starting arid 'Stopping of automobiles, the slamming of doors, etc., as stated in the specification numbered S, as above listed in the opinion of the District Court.

It must be conceded that the creation of excessive, unreasonable and' disturbing noises, particularly during the night hours, unquestionably constitutes a nuisance, to the abatement of which parties disturbed thereby are entitled. However, it must be borne in mind that noise is not-necessarily a nuisance, and a determination of this point can be made only after thorough consideration of all the surrounding circumstances and facts developed in a particular case.

It is impossible to lay down any hard and fast rule inasmuch as numerous factors and elements must be taken into consideration, among which may be briefly noted the character of the locality, the nature of the noises, and the effect thereof upon persons of ordinary sensibilities. The determination of these points rests upon purely factual issues ,whh respect to which the plaintiff in an action of this kind must bear the burden of proof.

The instant case was tried at length and in the course of trial plaintiffs tendered twenty-two witnesses while defendant offered the testimony of sixteen witnesses. The only witnesses who testified on behalf of plaintiff as to the existence of. noises of such nature as to make rest and sleep impossible or difficult were the plaintiffs themselves, the daughter and son-in-law of plaintiffs, the nephew of one of plaintiffs, and the mother of one of plaintiffs’ counsel. Unquestionably, the factor of relationship and the consequent natural bias arising therefrom is properly to be considered in evaluating the weight of the testimony.

In all good faith these witnesses testified that the noises arising in the course of the conduct of defendant’s business on the adjoining property awakened them from sleep, interfered with their rest and quiet, and, in short, excessively disturbed the enjoyment of plaintiffs’ home.

Twelve other witnesses were called on behalf of plaintiff in the effort to substantiate the alleged nuisances arising from the operation of defendant’s business, particularly the noises caused by customers and the servicing of t'heir needs. Examination of the testimony of these witnesses discloses that ten of them, all of whom were fishermen who had on occasions been patrons' of the defendant, not only failed to bear out plaintiffs’ claims but stated positively and with varying degrees of emphasis that they had never noticed any disturbance of any nature, or any unusual noises. The other two of this group of witnesses were operators of service stations in the immediate vicinity who opened their businesses at an early morning hour and closed them at various times up to the-late hours of night. Both of these men testified unfavorably to plaintiffs’ claims,' and one of them assérted that he did the loudest talking of anybody in that neighborhood.

In the course of presentation of plaintiffs’ case it is established by their witnesses that the neighborhood is of a mixed residential and commercial nature; that across the highway from plaintiffs’ property there are a lumber yard and a service station; that a restaurant and another service station are located nearby; that a railroad runs in the rear of plaintiffs’ property,-and that early every morning at or about 3:00 a. m. a train operates on the track, coupling and uncoupling the engine, ■ switching, taking water, etc., and-creating the attendant noises which inevitably result from such operations.

While it is true that the disturbances other than the one of which specific complaint is made are not regarded as defenses, they are nevertheless to be considered in connection with the. general picture which reflects the nature and use of the immediate vicinity.

Careful study of the record convinces us that if we chose to predicate our conclusion only upon consideration of, plaintiffs’ case it would be necessary to hold that plaintiffs had failed to make out and substantiate their allegations with the degree of certainty which is required in actions of this nature. When we additionally consider the evidence submitted by defendant'this conclusion is strengthened to the degree of being made certain and assured.

Among the witnesses presented by defendant were several neighbors, one of whom lived next door to the defendant and therefore occupied about the same location with respect to distance as the plaintiffs, and two of whom lived on the opposite side of plaintiffs’ property, separated therefrom by a fifty foot- lot. ■ Still another witness- for defendant had on occasion occupied identically the same rooms in a house across the highway- in which one of plaintiffs’ witnesses had lived for a time. In other words, the witnesses produced by plaintiffs and defendant respectively had about the same opportunity for observing and .noting the effect of any noise or disturbance in the' conduct and operation of defendant’s business. Their testimony is in violent conflict. By eliminating from discussion the testimony of this group of witnesses, on either side as being of equal value, importance and credibility, and therefore constituting a stand-off as to weight and effect, the testimony of other witnesses overwhelmingly preponderates against plaintiffs’ contentions.

This is not to say that there was never' any'' unusual noise arising- from defendant’s operations. On occasions horns were honked; on one, and only one, occasion, according to the preponderance of the testimony, was a radio played in the car of a customer parked at or near defendant’s place of business; on one occasion, specifically the morning of July 4th, there was an unusual number of customers. But these are isolated incidents and in no sense of the word have they been established as being of frequent recurrence, much less of that almost continuous character claimed by plaintiffs. And none of these noises could be considered as unusual or tending to increase to any appreciable degree or extent the volume of similar noises which constantly arise in such a neighborhood and which must be borne by those who live on property adjacent to a well traveled highway. The honking of automobile horns, the playing of radios in passing or parked cars, the lumbering noise of logging trucks, the puffing and whistling of railway locomotives, the clanging of tire tools, and the myriad of other similar disturbances which are established by the record as occurring in this specific neighborhood and vicinity are only those noises and sounds which are a part of our times, which are concomitants of progress and which, in a sense, make up some of the slight penalties which we pay as a part of the price of that progress and advancement.

Unquestionably, some of the noises might be considered disturbing to a mild extent. But plaintiffs have failed to establish the loud talking, shouting and calling “back and forth” between defendant’s customers. Such a thing is incompatible with the ordinary nature and character of fishermen. Ardent sportsmen rise happily before the first light of day, and prepare to hie themselves to those localities where they feel assured, in their eternal optimism, of a limit catch; they stop en route to furnish themselves with minnows or worms, and while so doing, for the most part, they speak with bated breath, in hushed and almost reverent tones as if they already feared to disturb the unsuspecting denizens of the waters they soon hope to approach. This nature of fisherman is a matter of common knowledge, and if, perchance, nearby residents overhear such persons- comparing notes, making inquiries as to the location of the waters where the fish are running best, it should be no cause for disturbance save that which might arise from the envy of those who cannot go fishing.

Cases involving the abatement of nuisances are many and varied. The foundation of the rights of such actions is a matter of codal provision and is set forth in Articles 667, 668 and 669 of our Civil Code. These articles have been oft interpreted and applied in a long line of familiar decisions, most of which are named and relied upon by plaintiffs, including Froelicher v. Oswald Ironworks, 111 La. 705, 35 So. 821, 64 L.R.A. 228; Froelicher v. Southern Marine Works, 118 La. 1077, 43 So. 882; Perrin v. Crescent City Stockyard & Slaughterhouse Co., 119 La. 83, 43 So. 938, 12 Ann.Cas. 903; Orton v. Virginia Carolina Chemical Co., 142 La. 790, 77 So. 632; Carbajal v. Vivien Ice Co., 158 La. 784, 104 So. 715, 41 A.L.R. 623; Di Carlo et ux. v. Laundry & Dry Cleaning Service, 178 La. 676, 152 So. 327; Talbot v. Stiles (howling dog case), La.App., 189 So. 469; Dodd v. Glen Rose Gasoline Co., 194 La. 1, 193 So. 349; McGee v. Yazoo & M. V. R. Co., 206 La. 121, 19 So.2d 21; Fos et al. v. Thomassie, La.App., 26 So.2d 402; Borgnemouth Realty Co. v. Gulf Soap Corporation, 212 La. 57, 31 So. 2d 488.

The facts and surrounding circumstances in all of these cases are of such nature as to make' them inappropriate as precedent for the relief herein sought.

The use of injunctive process which interferes with, restricts or restrains the exercise of the rights of those engaged in trade, business or commerce is one’which has been carefully safeguarded and one which is not used except in those cases where the established facts are clear and convincing.

In the instant case defendant, a young man some 26 years of age, established his fish bait business as a sideline to his employment in a mercantile establishment in the City of Jena. The property of plaintiffs and defendant here involved is not located within the limits of the Town of Jena hut is outside that municipality, on the principal highway leading through the town. It is shown that defendant has taken all reasonable steps to minimize any disturbances which might possibly arise from the conduct of his business. We are particularly impressed with the fact that he installed a call bell for the use of his customers, obviously for the purpose of eliminating the honking of horns by those who sought to call him for service. The business was conducted by defendant for a period of some twelve months, more or less, prior to the institution of this suit, and its establishment was suffered by plaintiffs without complaint, and, indeed, according to some testimony, with their good wishes. Just when the operation of the business came to be considered a nuisance by plaintiffs is not definitely shown but the facts established by the record indicate that the conditions of which they now complain have not become exaggerated with the passage of time. Rather it appears that whatever has been done in the course of the growth of the enterprise has tended to make its conduct less and less disturbing, if, indeed, its operation has ever been such as would disturb any one.

The evidence does no^ sufficiently bear out any of plaintiffs’ allegations. It has not been established that cars in large numbers were almost constantly parked in front of plaintiffs’ property, nor that defendant’s customers called in' an almost continuous stream from 2:30 or 3:00 o’clock in the morning until and after daylight. On the contrary, plaintiffs were unable to produce, with one or two exceptions, any witness who had called to purchase bait at any such early hour, and these exceptions were isolated instances.

The general principles which have been enunciated by our courts, with reference to the abatement of a nuisance, take into consideration the locality, the reasonableness vel non of the business, the question of a serious and material discomfort to persons of ordinary sensibilities and in a normal state of health. Froelicher v. Southern Marine Works, 118 La. 1077, 43 So. 882; Meyer v. Kemper Ice Co., 180 La. 1037, 158 So. 378; Irby v. Panama Ice Co., 184 La. 1082, 168 So. 306; Moss v. Burke & Trotti, 198 La. 76, 3 So.2d 281; Myer v. Minard, La.App., 21 So.2d 72; Kellogg v. Mertens, La.App., 30 So.2d 777.

Applying these standards to the facts established in the present case, we have no difficulty in concluding that there is nothing unreasonable or disturbing either in the nature of defendant’s business nor in connection with its operation; that the operation of this business is not out of keeping with the locality; and that plaintiffs have failed to show disturbances which would cause material discomfort to persons of ordinary sensibilities in a normal state of health. It necessarily follows, in the light of these conclusions, that the relief sought must be denied.

For the reasons stated, the judgment appealed from is affirmed at appellant’s cost.


author: KENNON, Judge.

text:
    MONROE AIR PARK NO. 1 Inc. v. AMERICAN AVIATION & GENERAL INS. CO.
    No. 7334.
    Court of Appeal of Louisiana. Second Circuit.
    April 29, 1949.
    Rehearing Denied June 6, 1949.

      Travis Oliver, Jr., and Hillyer S. Parker, both of Monroe, for. appellant.
    Hudson, Potts, Bernstein & Davenport, of Monroe, for appellee.
   KENNON, Judge.

This case is before us on an appeal from a judgment of the District Court sustaining defendant’s exception of no cause or right of action to a petition filed by plaintiff in which it sought to hold defendant liable for the full value of an airplane insured by defendant and "owned by plaintiff at the time of its destruction.

The exception contains no recital of the grounds upon which it was based, but we learn from reading the written opinion of the learned District' Judge that he maintained the exception because the petition alleged that there had been a change in the ownership — not, endorsed on the policy — of the airplane between the time the policy was issued, April 29, 1946, and the date o£ its total destruction, June 4, 1947.

The petition recites that one Harold Knox, the agent of the defendant who issued the policy, had knowledge of the transfer of ownership and subsequently received on behalf of his principal premiums due under the policy, and that this knowledge and acceptance of premiums constituted a waiver of the transfer-of-ownership exclusion clause.

The policy sued on is attached to the petition and contains under “exclusions” a provision that the policy does not apply to loss or damage occurring after transfer of the interest of the insured in the aircraft without the written consent of the company. Defendant’s contention is that since the petition recites that ownership of the aircraft was transferred and no written consent of the company is shown or alleged, the above exclusion clause applies and therefore the petition sets forth no cause of action under the policy.

. The followiing facts — accepted as true for the purposes of this exception — are set forth in the petition. On April 29, 1946, one Charles Arneson mortgaged his Piper Cub airplane to the Aviation Finance Company, Inc., agreeing to pay $1946.28 in eighteen monthly installments beginning May 29, 1946. Paragraph five of the act of mortgage relative to insurance read as follows:

“5. Mortgagor agrees to fake out, pay for and keep in full force and effect a policy or policies of insurance, in form satisfactory. to Mortgagees and. issued by an insurance carrier approved by ■ Mortgagee (covering both Mortgagee and Mortgagor) for the hazards of fire, theft and total or partial destruction, and such additional hazards as may 'be mutually agreed upon by Mortgagor and Mortgagee, and the loss under every such policy shall be paid first to the Mortgagee or its assigns up to the amount of the obligation secured, and the balance,. if any, to the Mortgagor; said policy to be in the possession of the Mortgagee until satisfaction of.all obligations secured by this mortgage. In the event that Mortgagor should for, any reason fail to take out said insurance above referred to, or pay for the same, the Mortgagee may, at the cost and expense- of the Mortgagor, take out and pay for such insurance, and any sums advanced therefor shall be added to the principal of said promissory note and secured by this Chattel Mortgage as set forth in paragraph (6) following. Any sums received upon cancellation of any policy may be applied by Mortgagee upon the then remaining balance of any obligation secured hereby.”

At the time of the execution of the mortgage and note Arneson was issued' a policy of insurance with the defendant company for an eighteen month period beginning April 25, 1946 with a loss payable clause to the owner and to -the Aviation Finance Company, Inc.

The petition recited:

“4. * * * This policy was issued through the Louisiana Underwriters Agency, Inc., a corporation organized and existing under the laws of the State of Louisiana, domiciled in -the City of Baton Rouge and having been issued by Harold Knox, as manager of said corporation; the said Harold Knox also accepted the chattel mortgage and delivery of the note described in the preceding allegations in his capacity as an officer oh the Aviation Finance Company, Inc., all of which is more fully shown by reference to the copy of the chattel mortgage described above and by reference to a duplicate of the Aircraft Hull. Policy described in this allegation, which is hereto attached and made a part and portion, hereof for all purposes.
“5. Thereafter, to-wit on January 26, 1947, the Monroe Air Park, then a partnership composed of G. Foster Wallace and H. Girardet Prophit, Jr. did purchase the here-inabove described airplane from Charles Arneson, paying him the agreed price for the equity of the said Charles Arneson in the aforesaid described airplane at the time of the sale, and assuming the payment of the balance due at that date by the said Charles Arneson to the Aviation Finance Company, Inc., in accordance with the terms and conditions of the hereinabove described mortgage and note, delivery of the airplane having been made by Charles Arneson to the Monroe Air Park. Knowledge of this transfer and transaction was had by the Aviation Finance Company, Inc., mortgagee under the aforesaid described mortgage, and by the Louisiana Underwriters Agency, Inc., the agent of the defendant, American Aviation and General Insurance Company, which knowledge, it is alleged, can and is by law imputed to the defendant, American Aviation and General Insurance Company.
“6. -Thereafter the Monroe Air Park continued to make payments on the aforesaid mortgage and note, in. accordance with the terms and conditions thereof and it is specifically alleged that a part and portion of the payments wider'the terms and conditions of said mortgage contract covered the premium on the insurance policy described herein and hereto attached, sañd payments being accepted by both 'Harold Knox, mho was acting as the agent of the defendant, American Aviation and General Insurance Company and the Aviation Finance Company, Inc." (Italics ours.)

On March 3,. 1947, after two payments had been made by Arneson’s transferee under the conditions set forth in the above-quoted paragraph 6, the note covering the airplane was purchased by the Southern Acceptance Company, Inc., and subsequent payments were made by plaintiff to that company. The loss of the plane occurred June 4, 1947 and defendant, after receiving notice of this loss, denied liability and issued a notice of cancellation. Subsequently, one of the partners of the Monroe Air Park, mentioned in the above-quoted paragraph 5, sold his interest to one Edward J. Joseph, Jr., who, with Wallace’s former partner, became the incorporators of plaintiff, Monroe Air Park No. 1, Inc., The claim against the defendant, upon which this-suit is based, was transferred to the plaintiff corporation.

Capable counsel for defendant has cited authorities holding that when the provision of a policy of insurance is plain, it is a legal contract between the parties and “is the law of the case.” We recognize this as being.a correct statement of the law and conclude that there can he no recovery under the policy sued upon unless plaintiff’s petition discloses that there has been a legal and valid waiver of the relevant “exclusion” clause by a duly authorized agent of the defendant company.

The Louisiana Supreme Court in the case of Fidelity and Casualty Company of New York v. Aetna Homestead Association, 182 La. 865, 162 So. 646, cited with approval and re-affirmed the principle that an agent authorized to issue policies of insurance may bind the issuing company by waivers, representation and other acts within the scope of his business, unless the insured has notice of a limitation of the agent’s power. Citing Richard v. Springfield Fire & Marine Ins. Co., 114 La. 794, 38 So. 563, 565, 69 L.R.A. 278, 108 Am. St.Rep. 359.

In the case of Gitz Sash Factory, Inc., v. Union Insurance Society of Canton, Ltd., 160 La. 381, 107 So. 232, the Louisiana Supreme Court held that the knowledge of an agent of an insurance company will be considered in law as knowledge of the company and that the conduct of insurance company agents, such as will estop their principal from denying liability under a policy of insurance, may be proved by parol notwithstanding a policy requirement that waiver of conditions shall be evidenced in writing. In that case the policy sued upon contained a provision that the entire policy would be void if the personal property therein covered should become incumbered by a chattel mortgage and further provided that no agent, etc., should be deemed to have waived this provision unless such waiver should be in writing and attached to the policy. The Court found that the representative of the defendant’s local agency had knowledge of the existence of a chattel mortgage on the property at the time the policy was issued and that the action of the company through its agent in actually issuing the policy and accepting the premium amounted to a waiver of this policy provision notwithstanding that no endorsement of such waiver was made upon the policy.

In the case of Dutton v. Harmonia Insurance Company of Buffalo, N. Y., 191 La. 72, 184 So. 546, 551, the company sought to avoid liability on a policy which stood in the name of a deceased person at the time the policy was issued. The Court, noting that the company, with knowledge that the insured was dead at the time of the issuance of the policy, chose to treat the contract as a valid one by attempting to cancel it and retain the premiums up to the date of cancellation, held that under these circumstances, the contract of insurance was a binding one. The Court stated that the company evidently considered it an unimportant circumstance that the property stood in the name of a deceased person at the time the policy was issued and held the company liable as below quoted:

“ * * * because the company was dealing with the real parties who had an insurable interest in the property and the parties definitely agreed upon the amount of the policy, the premium, and the premises to be covered. The policy was issued and delivered and the premium paid and retained by the company. Therefore, it is our opinion that the policy was a valid contract of insurance.”

In the case before us, the petition recites that the agent of the insurance company was the agent of the finance company and the person accepting the chattel mortgage on its behalf. The policy attached to the petition showed an annual premium of $388.50 and that the policy was issued for an eighteen month period. The petition further recites that Knox, as agent of defendant, had full knowledge of the transfer of ownership and afterwards received monthly payments and that a portion of each monthly payment (apparently l/12th of $388.50 or $32.37) was for insurance. Under these allegations, it would be permissible for plaintiff to prove, by cross-examination of Knox or otherwise, that monthly payments of premiums were received by defendant’s agent Knox, or that a new payment of premiums was received by the company on the anniversary date of the policy, which included monies paid by the new owners of the airplane. Accepting these allegations as true, we conclude that the petition shows that the defendant’s agent had full knowledge of the transfer of ownership and permitted plaintiff to make payments, including a substantial portion for insurance ($32.37 out of $108.13), and consequently, his principal cannot equitably urge the technical defense that no written endorsement covering the change of ownership had been prepared and attached to the policy. Under the allegations of the petition, Knox had the authority to issue this endorsement on behalf of the defendant company, he had the note and policy in his possession, he had full knowledge of the facts and the written policy provision requiring that change of ownership should be by endorsement and the fact that such endorsement was not issued and attached to the policy could equitably be charged to the neglect or indifference of defendant’s agent.

As stated by the Supreme Court of Louisiana in the Gitz case, supra, a waiver may be by conduct and declarations as well as by written endorsement. We quote from that opinion [160 La. 381, 107 So. 233]:

“The decisions of the Supreme Court of this state are in line with the jurisprudence of a majority of the states of the Union, as to the application of the doctrine of waiver by the -conduct and declarations of insurance companies, and as to the proof of estoppel by parol, notwithstanding the provisions contained in the policy requiring written evidence as to waiver. Corporation of Roman Catholic Church v. Royal Ins. Co., 158 La. [601], 602, 104 So. 383; Brodie v. Atlas Assurance Co., 158 La. 695, 104 So. 620; Gaudet v. North River Ins. Co., 156 La. 719, 101 So. 118; Investors Mortgage Co. v. Marine & Motor Ins. Co., 155 La. 627, 99 So. 486 (on rehearing); Bank [of New Orleans] v. Manhattan Ins. Co., 52 La.Ann. [36], 46, 48, 26 So. 800.”

The conduct of defendant’s agent in receiving from the new owners the two monthly payments, a portion of which included the premiums due under the policy, in effect recognized the new owners as assured under the policy and constituted a waiver of the transfer-of-ownership exclusion clause contained in the policy.

There is no suggestion in the case before us that any attempt was made by the original insured or by plaintiff or its assignors to conceal the transfer of ownership from the defendant insurance company. Since the petition shows that the agent of the company, with knowledge of the new ownership, received two monthly payments, including substantial premium for the airplane insurance, it follows that the company by receiving the premiums chose to recognize the policy as a valid contract of insurance with the new owners, and equitably — as held by the Supreme Court in the Dutton case — it becomes an unimportant circumstance that' the name of the original maker of the note, instead of his transferee, remained as the named assured.

Defendant cites the case of Marcuse v. Upton et al., 9 La.App. 28, 118 So. 790, in which the Court of Appeal for the First Circuit held that an insured who sells his interest in an insured premises prior to the loss, no longer has any interest of any kind in the object insured and consequently.cannot collect under a policy in the event of a loss. The Marcuse case is distinguishable from the one before us in that the present plaintiff clearly had an insurable interest in the airplane at the time of its loss. Plaintiff also had an insurable interest in the plane at the time its assignors became an insured by virtue of making the monthly payments, including insurance, and the acceptance of these payments by defendant’s agent with knowledge of the transfer.

For the reasons assigned, the judgment appealed from is reversed; the exception of no cause or right of action is overruled, and the case is remanded to the Fourth Judicial District Court for further proceedings in accordance with law. Costs of appeal to be borne by defendant; other costs to await the final outcome of the litigation.


author: HÁRDY, Judge.

text:
    BROOKS v. SMITH.
    No. 7339.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.

    Rehearing Denied June 30, 1949.
    Julius T. Long, Shreveport, for appellant.
    Harold W. Hill, Alexandria, for appellee.
   HÁRDY, Judge.

This is a. suit in which plaintiff claims compensation for injuries received while engaged in papering the room of a dwelling on premises leased by defendant.

There is little if any conflict as to the facts, Plaintiff, who follows the trade of a painter and paper hanger, was employed by defendant to paper one room of a house on premises which were under lease to defendant. The house was situated at the rear of the leased premises in the front of which was located the building in which defendant conducted his trade or occupation of glazier. The house on the rear of the lot was subleased by defendant to tenants. There is- some dispute as to whether plaintiff was employed, as he alleges and contends, as a day laborer at a rate of pay of fifty cents per hour, or whether, as asserted by defendant, he was employed to perform the job of papering at a stipulated contract price of $12.00. We think this point immaterial with respect to a determination of this case. •

On the first day at work on the job plaintiff sustained a fall which resulted in serious and impairing injuries.

The only other material issues bear upon the business, trade or calling of the defendant. Plaintiff’s petitio'n alleges, inter alia, that he was injured while “performing services arising out of and incidental to his employment-in the course of the business of the said Smith "of decorating, repairing and building, papering, painting and renting houses, * * *

The record conclusively establishes the fact that defendant is a glazier, and, before engaging in this trade or occupation, that he was engaged in the automobile wrecking business. But it is contended on behalf of plaintiff that because defendant owns'and leases certain property and leases and subleases other property, he is engaged in the business described in the above quoted allegation from plaintiff’s petition, which, consequently, is hazardous and brings him within the purview of the workmen’s compensation statute. Act No. 20 of '1914, as amended.

This case was brought before- us on another occasion by the appeal of plaintiff from a judgment sustaining exceptions of no right of action. The judgment was reversed and the case remanded for trial on the merits for the reasons set forth in the opinion of the court. See 35 So.2d 613. After trial on the merits, in compliance with the order of remand, there was judgment for defendant' rejecting plaintiff’s demands, from which judgment plaintiff prosecutes this appeal.

The only issue tendered is a question of law which may be briefly stated as follows:

Is a person who owns and leases buildings which he keeps in repair, decorates and rents to tenants, engaged in a business of such nature as makes him liable, under the workman’s compensation statute of our State, for an injury sustained by an employee in the performance of services arising out of and incidental to such a business ?

Examination of numerous cases which have arisen in this state involving this question or some phase thereof discloses the fact that our appellate courts have failed to establish any well defined principle or rule, and have, at times, appeared to confuse what seems to be a simple and clear-cut issue. Clementine v. Ritchie, 1 La.App. 296; Shipp v. Bordelon, 152 La. 795, 94 So. 399; Wilkie v. Langlois, La.App., 164 So. 434; Lay v. Pugh, 9 La.App. 183, 119 So. 456; Jarrell v. Ewing, 7 La.App. 502; White v. Equitable Real Estate Board, 18 La.App. 714, 139 So. 45; McAllister v. People’s Homestead & Savings Association, La.App., 171 So. 130; Wood v. People’s Homestead & Savings Association, La.App., 177 So. 466; Rayburn v. DeMoss, 194 La. 175, 193 So. 579; Caldwell v. Sproull, 184 La. 951, 168 So. 112, 113.

In the course of an excellent article on hazardous businesses and employments under the workmen’s compensation law of Louisiana, Professor Wex S. Malone discusses the above cited cases, as well as a number of others which are related to the consideration of the question at issue, 22 .Tulane Law Review, page 436 et seq.

In Caldwell v. Sproull, the Supreme Court predicated its refusal of compensation on certain grounds which are succinctly stated in the following extracts from the opinion:

“The plaintiff is a paper hanger by trade and was employed by Geo. Sproull Company, Inc., to do a special job of papering at its wholesale and retail store at 522 Common Street, Shreveport, Louisiana. .* * *
“Defendant company has never engaged in the business of contracting for papering or painting houses. * * *
“As plaintiff was never employed by defendant company to work or serve in any capacity in the course of his employer’s business, but only as an outside workman to do a special job of paperhanging, it cannot be held that he was an employee of defendant company under the Employers’ Liability Act of this state,- and it is'immaterial, therefore, under the facts of this case, whether the business in which defendant company is engaged is hazardous.”

In our opinion the facts of the instant case track those of the Sproull case. Plaintiff in the cause before us followed the trade of a painter and paper hanger; he was engaged by defendant to do a special job which consisted of papering one room of a dwelling house, and, finally, the record establishes the fact that the business, trade or calling of this defendant was that of a glazier, in pursuit of which he occupied a shop entirely separate and distinct from the building in which plaintiff was engaged to perform his work.

However, learned counsel for plaintiff vigorously contends that since defendant owned and leased property, which he leased and subleased for profit, as a consequence he is engaged in a business which makes him liable for the injuries of an employee sustained while repairing or decorating the improvements on said properties.

With due regard for the sincerity and zeal of the argument presented, we do not think such a fine distinction is justified. Counsel appears to anticipate a consideration on our part of the proposition that since this defendant owned only two houses and leased another, which he subleased, his leasing or renting “business” would be of such small moment and importance as would fail to justify a holding of liability. We do not propose to adopt such a line of reasoning, primarily because we do not feel that the degree or extent of ownership of tenant property is a proper gauge or standard by which to measure liability.

We prefer to follow the principle enunciated by the Supreme Court in the Sproull case which leads us to the inescapable conclusion that plaintiff must be denied relief in view of the fact that he was not employed by the defendant to perform any work or render any service in the course of the said defendant’s business.

While we think this finding disposes of the matter, we are constrained to observe that the facts in the instant case would not, in our opinion, justify a holding that this defendant in the course of renting or leasing his properties is engaged in that nature of hazardous business or enterprise which is contemplated under the workmen’s compensation statute.

Counsel for plaintiff cites and emphasizes the importance of Sneeden v. Industrial Commission, 366 Ill. 552, 10 N.E.2d 327, 113 A.L.R. 1447, in support of his contention that one who rents a building for profit, although chiefly engaged in another business, is liable for compensation to an injured employee. Examination of the cited case discloses a reference in the opinion in support of this principle to subsection (1) of Section 3 of the Workmen’s Compensation Act .of the State of Illinois, Smith-Hurd Stats, c. 48, § 139, subd. 1. The syllabus on this point indicates that the statute is “automatically applicable to employers and their employees engaged in the erection, maintaining, removing, remodeling, altering or demolishing of any structure”. We can only conclude that the point is specifically covered by the Illinois statute and' therefore would not be persuasive in this jurisdiction under the terms of a different statute.

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


author: TALIAFERRO, Judge.

text:
    TOM HICKS TRANSFER CO. v. FORT WORTH POULTRY & EGG CO.
    No. 7360.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    Rehearing Denied June 30, 1949.
    Gist, Thornton & Murchison, Alexandria, for appellant.
    Polk & Culpepper, Alexandria, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff sued to recover the amount expended to repair the damages done to its truck and trailer when run into from the rear by defendant’s truck on U. S. Highway No. 71, near the City of Alexandria, Louisiana, known as the “McArthur Drive.” The accident occurred at about the hour of one o’clock A. M., April 9, 1948. Both vehicles were traveling northerly. The highway at the locus of the collision consists of four concrete lanes, two on either side of a neutral ground that is fifty feet (50') wide.

Plaintiff alleged that its motor vehicle was at the time of and immediately prior to the collision, moving at a reasonable and prudent rate of speed and on its proper side of the highway; that while so proceeding it was violently run into from the rear by defendant’s truck. The following acts of negligence are charged to defendant’s driver, and are asserted to have caused the collision, to-wit:

That its driver was not keeping a proper lookout; was driving at a rate of speed so fast that he could not stop his vehicle within the distance illumined by its headlights; that the speed of the vehicle was excessive, being fifty miles per hour, and was being operated with inadequate lighting equipment.

Defendant denies that the accident was the result of any negligence on the part of its driver and especially pleads that the sole and proximate cause thereof was the negligence of plaintiff’s driver in the following respects:

That he parked his truck and trailer on his right-hand side of the highway, whereas he should have parked the same entirely off of the highway and on the spacious shoulder, and in thus acting, he violated Rule 15 of Section 3 of the Highway Regulatory Act, being No. 286 of 1938; that he did not set out flares to warn motorists of the presence of the vehicle as required by Section 2 of Act No. 215 of 1942.

In the alternative, defendant, employing the alleged acts of negligence of plaintiff’s driver, as a basis, pleads contributory negligence on said driver’s part in bar of recovery herein.

Plaintiff was awarded judgment and defendant appealed.

The record of this case is unusually short for one of its character. Only two persons were present when the accident occurred, these being the two drivers. Their testimony and that of a highway trooper, who arrived on the scene shortly after the accident, is all we have as regards the accident, how and why it occurred.

A few minutes prior to the collision plaintiff’s operator did drive his truck and trailer partly onto the shoulder of the road on his right side and stopped same for a brief time, but the testimony leaves no doubt that both vehicles were entirely on the concrete part of the road and were moving at a slow rate of speed at the time of the collision. The trooper found the vehicles on the concrete when he arrived and, in addition to this, defendant’s own driver candidly admitted that they were in this position when the collision occurred.

It is true, as charged, that plaintiff’s driver did not place flares fore and aft of his truck and trailer while at stop, as before mentioned, but since he had regained entirely his side of the concrete portion of the highway, and was traveling thereon when the collision occurred, obviously the failure to put out flares is of no importance.

Defendant’s driver testified that he did not see the trailer ahead of him until he was within twenty feet of it and further says that this was due to the bright lights of a motor vehicle going southerly on the opposite side of the highway. This admission, under the well established jurisprudence of this state, convicts him of being grossly negligent and it follows that this negligence was the sole cause of the accident. He did testify that there were no lights at all on plaintiff’s truck trailer. Unquestionably, he is in error in this respect. Plaintiff testified that all lights on ■his vehicle were burning when he stopped, including a large red one on the back of the truck. The trooper testified that when he arrived this large red light was still burning, but that all the other lights, on account of the impact, were not functioning.

Defendant’s driver says he was going at a speed of forty miles per hour when he became blinded by the car lights. His duty, under these circumstances, was quite obvious. He was without the right to assume that clearance ahead was certain. He should have reduced his .speed and maintained such control of his truck, while this condition existed, as to enable him to stop the same at once in case conditions suddenly arose to make this action necessary.

Plaintiff’s trailer was loaded with a road grader of yellow color, twenty-two feet (22') long, seven feet ten inches (7' 10'') wide and seven feet (7') high. This should have been a very conspicuous object to a motorist approaching from the south. It is almost inconceivable that its presence could have been overlooked by defendant’s driver had he been as vigilant as the law requires in such circumstances.

Plaintiff’s driver was free of negligence in connection with the accident.

The facts of this case clearly distinguish it from Gaiennie v. Cooperative Produce Company, Inc. et al, 196 La. 417, 199 So. 377, and other cases, prior and since, that constitute exceptions to the general rule that the responsibility for a highway accident between two motor vehicles, at night, lies upon the motorist who operates his vehicle at a speed so great that it cannot be stopped within the distance illumined by its headlights. The facts of the present case do not make of it an exception to that rule, but, on the contrary, bring it perfectly within the realm thereof.

The correctness of the amount of the judgment does not appear to be challenged by appellant. The proof sustains it.

For the reasons above given, the judgment from which appealed is affirmed at appellant’s cost.


text:
    LINER v. TRAVELERS INS. CO. et al.
    No. 7362.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    Rehearing Denied June 30, 1949.

      Stafford & Pitts, Alexandria, for appellants.
    Harry Fuller, Winnfield, W. T. McCain, Colfax, for appellee.
   TALIAFERRO, Judge.

Plaintiff was badly burned from the flames of ignited gasoline the night of August 29, 1948, while performing the duties of a contract of hiring allegedly with For-cum-James Company and H. N. Rodgers and Sons, and instituted this suit against the Travelers Insurance Company and As-, sociated Indemnity Corporation, alleged insurers of said employers, to recover workmen’s compensation at the rate of $30.00 per week for four hundred weeks, less four weeks payments theretofore made, on the theory of total permanent disability, and for medical expenses.

The suit is resisted on these grounds: That plaintiff was injured while deliberately violating a specific rule and order of his employer; that he voluntarily turned aside from his duties and subjected himself unnecessarily to a danger which did not arise out of nor was it incidental to his employment, and while thus engaged he was injured; that he deliberately failed to use an adequate guard or protection against accident. Defendants at length narrate the facts of the case which form the basis of the defenses enumerated above, which we shall hereinafter give .and discuss.

It developed during trial that plaintiff was an employee only of Forcum-James Company and that the Associated Indemnity Corporation carried compensation insurance for that company as to the particular job being done whereon plaintiff was hurt. Therefore, H. N. Rodgers and Sons and the Travelers Insurance Company passed from the case.

From a judgment for the plaintiff, as by him prayed against the Associated Indemnity Corporation, the insurer of Forcum-James Company, appeal is prosecuted by that company. The court gave written reasons for judgment.

The facts attending the accident are, in the main, not in dispute. The Forcum-James Company was engaged in the construction of a line of levee on Red River not far south of the Town of Colfax, Louisiana. Dirt was being handled by means of a mechanical dragline. Three eight-hour shifts were employed to carry on the work. To effectively perform dirt removal at night it was necessary, of course, to illumine the locale by electric lights and a separately enclosed gasoline motor and dynamo were provided therefor. These were located very close to the machinery that operated and controlled the dragline. Plaintiff’s job was that of dragline oiler, and inter alia, it was his duty to keep the tank of the lighter motor continuously supplied with gasoline.

At about the hour of 9:30 P. M., on said date, all of the lights about the locale of the work went out and work immediately ceased. The conclusion was instantly reached that this was due to exhaustion of gasoline in the lighter tank. Plaintiff, with the aid of a flashlight, at once investigated and found this to be true. He picked up a five gallon can of gasoline that was in the cab and successfully poured the contents thereof into the tank. He was then given another five gallon can of gasoline and this was being poured into the tank when plaintiff directed a Negro boy helper nearby to crank the motor so that the current would be renewed. The boy at first demurred because he knew it was dangerous and against the employer’s rule and order to do this while gasoline was being poured into the tank. Plaintiff in stronger language again ordered the Negro boy to crank the motor. He did so and the lights immediately beamed forth, but, after the lapse of a few seconds, there was an' explosion. For some unknown reason gasoline ignited and plaintiff was badly burned from the flames which, it is not disputed, rendered him totally permanently incapacitated to perform any' sort of work.

In his testimony plaintiff denied that the lights were burning when the explosion occurred, and lists more than one possibility for the explosion, but the lower court found and held that the lights were on and burning at the time of the explosion. We agree with this conclusion. The court also found and held that pouring the gasoline into the tank while the motor was running was in violation of the employer’s rule and order, announced by its foreman and others to employees, of which plaintiff had knowledge. The record also abundantly supports this holding. The court mainly predicated its judgment upon Staples v. Henderson Jersey Farms, Inc., La.App., 181 So. 48, decided by this court.

In view of the facts as above related, the cases involving accidents and injuries to employees after turning aside from their regular duties are not applicable. It is also made clear that when the accident occurred plaintiff was in the course of his employment and was performing duties required thereby. It was his duty to put gasoline in the tank and to start, or have started, the motor by cranking. Therefore, the pivotal question is whether, iti view of the circumstances and established facts, plaintiff is barred from recovering compensation for his disabling injuries.

Plaintiff’s counsel correctly argue and contend that Act No. 20 of 1914, being the Employers’ Liability Act, contains no express prohibition against recovery of compensation by one otherwise entitled so to do, on the ground that when injured the workman was violating an order or rule of his employer. Section 28 of that act creates four special defenses that are available to the employer in a suit for compensation by an injured employee or his dependents. As is said in Pisk v. Brooklyn Cooperage Co., 143 La. 455-459, 78 So. 734, 735, this section:

“withholds the benefit of compensation for injury caused (1) by the employe’s willful intention to injure himself or to injure another, or (2) by the injured employe’s intoxication at the time of the injury, or (3) by the injured employe’s deliberate failure to use an adequate guard or protection against accident provided for him, or (4) by the employe’s deliberate breach of statutory regulations affecting safety of life or limb.”

Defendant herein pleads the third of said special defenses against the demand.

But, in the several cases reaching the courts of appeal of this state, wherein recovery of compensation was opposed on the ground that when injured the employee was violating an order or a rule of the employer, the court went ahead and considered the defense and adjudicated each case without mentioning that such a defense is not expressly provided by the Employers’ Liability Act. In some of these cases it was held that when injured the workman, in addition to violating an order or rule of his employer, was not in the course of his employment and/or that he was not then performing services arising out of and/or incidental to such employment. In other cases compensation was denied simply on the ground that the employee, when injured, was in the act of violating a rule or order of his employer, although at the time doing what he was employed to do. Prominent among such cases is that of Schenck v. AAA Auto Wrecking Company, et al., La.App., 13 So. 2d 556, 557, which is cited and relied upon by the defendant. In that case it was found that plaintiff and other employees of the defendant were instructed to remove gasoline tanks from old automobiles by the use of a cold chisel and hammer, and were specifically forbidden to remove the tanks by the use of acetylene torches because of the danger from explosion of gasoline that might be in the tanks. Plaintiff, in violation of this order, began removing tanks with the torch and while so doing an explosion from gasoline in a tank occurred, and he was burned. His suit for compensation was rejected. In the course of the opinion, it is said:

“In making use of the torch in violation of instructions he turned aside from his employment and voluntarily undertook to meddle with a tool with which his work did not bring him into contact. There is not involved here a mere careless disobedience but a deliberate determination not to use the tools which were provided and to meddle with another dangerous one which he had been instructed not to touch.”

To support this ruling, Pierre v. Barringer, 149 La. 71, 88 So. 691, and Gooding v. Beauregard Laundry Company, Inc., 9 La.App. 392, 120 So. 507, are cited.

Defendant also cites and relies upon Lawhorn v. A. W. Pettigrew, Inc., 12 La. App. 455, 125 So. 298. The plaintiff’s suit' for compensation was denied. The facts of this case are these:

Defendant had acquired the right to cut and manufacture ties from timber on a certain tract of land, but before beginning operations desired to have the lines around the land established by a competent surveyor. This fact was made known to the tie makers in defendant’s employ who were instructed not to begin the manufacture of ties until the survey had been made. Plaintiff, contrary to these instructions, entered upon the land and began making ties by cutting trees thereon. A tree fell upon him and he died from the injury. This case turned not so much upon the disobedience of orders, but because it clearly appeared that plaintiff was, when injured, not acting within the course of his employment.

The contention of defendant herein that pouring gasoline into the tank while the motor was running, as was done, amounted to “deliberate failure to use an adequate guard or protection against accident”, we believe to be not tenable. It is not clearly pointed out wherein this defense is applicable to the undisputed facts of the case. No express method had been suggested as to how the gasoline should be put into the tank and no particular utensils were recommended for that purpose. The use of a funnel, as was done, is the usual and customary means of making such a transfer. As to what constitutes an adequate guard, etc., the Supreme Court in Farris et al. v. Louisiana Long Leaf Lumber Company, et al., 148 La. 106-117, 86 So. 670, 674, said:

“Our answer to the argument is that the provision invoked presupposes a specific danger, with an appropriate and adequate guard and protection against it; knowledge of both danger and guard, brought home to the employee; and a ‘deliberate’ failure on his part to make use thereof; and that it has no application to a case where no guard or protection has been provided against the danger the assumption of the risk of which has caused the accident ft ***."

It is our opinion that the special defenses created by and enumerated in Section 28 of the Employers’ Liability Act are exclusive; and where it is shown that when injured the workman was performing service arising out of and incidental to his employment in the course of his master’s hazardous business, interposition of one or more of said defenses, supported by adequate proof by the employer, is indispensable to the avoidance of being cast for compensation. This view was expressed in Piske v. Brooklyn Cooperage Company, supra, wherein the court said:

“In other words, plaintiff argues that the only workmen who are excluded from the benefits of the act are those who, in the language of the act itself, ‘shall be eliminated * * * for the causes and reasons set forth in section 28.’ That argument is sound, provided that by the word ‘workmen’ are only meant workmen who were injured by accident arising out of and in the course of their employment, for the act is not intended for the benefit of any other class of workmen”.

In that case, however, it was finally held that the deceased workman when injured was not performing services incidental to his employment in the course of his master’s business.

In Jones v. Landry, 10 La.App. 740, 122 So. 913, it appeared that plaintiff lost a hand while feeding moss to the rollers of a ginning machine from the side thereof, instead of from the front, as she had been instructed to do. The defense was that the injury occurred because she was disobeying orders when injured and was not availing herself of a guard (apron) attached to the front part of the machine. These defenses were rejected and in doing so, the court said:

"The defendant testifies that he had warned plaintiff against the practice of feeding * * * the moss to the rollers from the side, instead of from the front, where there is a board about 30 inches wide, called an ‘apron’, which, it is said, is intended to protect operators against getting their hands caught in the rollers. Perhaps this board affords some protection by keeping the body of the operator at a distance from the rollers, but it appears to us as very inadequate.”

In Sears v. Peytral, 151 La. 971, 92 So. 561, 563, it was found that plaintiff was injured while sitting on the floor of the bed of defendant’s moving truck, with his legs over the side, in disobedience of orders, instead of sitting on an empty box provided for him and other laborers who were transported to and from their work. In rejecting the defense urged against the claim for compensation, the court used this language, to-wit:

“The adequate protection against accident referred to consisted of two empty boxes put in the truck to block the granite that defendant was on his way to get. They doubtless afforded very uncomfortable seats in driving overwhat apparently was a rough street. But be that as it may, we do not think that they come within .the purview of the statute, and that the failure of the plaintiff to obey instructions by sitting where he did does not debar him from recovering.”

In Staples v. Henderson Jersey Farms, Inc., supra, this court held that because plaintiff was injured while driving defendant’s truck contrary to the orders of its president, the claim for compensation was not barred.

And in Sellers v. Louisiana Sawmill Company, Inc., 8 La.App. 779, compensation was allowed although the plaintiff was injured while attempting to board the train from which he had immediately alighted, contrary to the admonition of his superiors.

Negligence of an employee is not a defense to an action to recover compensation under the Employers’ Liability Act, except insofar as it is comprehended within the special defenses contained in said Section 28. The reason, it seems to us, that disobedience to orders was not included in said Section 28 or elsewhere in the act, as a defense to a suit for compensation, is simply because had such been done the abolition of negligence as a defense in such an action would have been rendered practically, if not wholly, nugatory. Disobedience by a servant to orders and/or instructions of his master, whether wilful or not, is a form of negligence which has been defined to be “the result of a failure to perform a duty”.

For the reasons herein assigned, the judgment from which appealed is afSrmed with costs.