author: SIMON, Judge.

text:
    MOBRY v. FRAZIER.
    No. 17632.
    Court of Appeal of Louisiana. Orleans.
    Nov. 17, 1941.

      James W. Hopkins, of New Orleans, for appellant.
    James E. Courtin, of New Orleans, for appellee.
   SIMON, Judge.

John Mobry, the lessee of the premises No. 2321 Spain Street, in the City of New Orleans, brings this suit against Mrs. Barbara Ebert Frazier, the owner and lessor of the leased premises, claiming $2,149.20 as damages for physical injuries alleged to have been caused by a fall due to defective steps.

It is asserted that, on the morning of Sunday, May 7, 1939, at about the hour of 7:45 o’clock, as he attempted to descend the front steps leading from the leased premises to the street, “ * * * said steps became detached from their position and caused petitioner to lose his balance and fall heavily to the ground; that such steps did not collapse, but ‘wrenched’ themselves from the facing board by which they were attached to the house; that said board was rotten and in such bad condition that it could not hold said steps in their proper position.”

As a result thereof, he alleges that he sustained injuries consisting of a sacroiliac strain. It is also alleged that the defective condition of the steps was due to lessor’s failure “to keep the premises * * * in a safe and livable condition.”

Defendant admitted the ownership of the property and denied that any defects or vices existed in the premises, unless such as would arise from the fault and negligence of the lessee. She seeks an avoidance of liability on the ground that, if an accident, as alleged, occurred, any damages occasioned thereby were solely as a result of the negligence of plaintiff in that he was aware of said defects and vices and for which he was solely responsible. In the alternative, she pleaded contributory negligence in bar to recovery in that plaintiff, with a full knowledge of the condition of the steps, used them, and this in a negligent manner.

There was judgment below in favor of plaintiff for $500, and defendant has appealed. Plaintiff has answered the appeal, praying that the award be increased to $1,050.

On the morning on which the accident occurred, plaintiff was leaving his home and, on reaching the front steps leading to the sidewalk, he says: “I * * * went to step on the step, the steps left the house, and I fell and struck my back, and I was assisted in by two gentlemen.”

The evidence shows that, when the steps fell, precipitating plaintiff to the ground, one John N. Danner, then driving his truck along Spain Street delivering milk to his customers, had reached a point opposite the residence of plaintiff. He saw plaintiff, who he had known for several years, leaving the porch, heard the crash, and saw plaintiff fall to the ground. He stopped his truck as quickly as possible, jumped out and went to his aid. On reaching him, plaintiff was lying on the ground, complaining of a severe pain in the region of his back. Danner attempted to lift plaintiff and, because of the difficulty in so doing, he called upon a passer-by, named Vicknair, to assist him. It is shown that Danner and Vicknair carried plaintiff along the alley leading to the rear entrance of the residence into his bedroom, assisted him to undress and helped him to his bed. Both Danner and Vicknair testify that, when they reached plaintiff, the steps were lying flat on the sidewalk pavement, about two to three feet from the front porch, and that plaintiff was lying on the left side of the steps leading from the home. It is further shown, according to their testimony, that, upon examination of the plaintiff’s back, they found no bruises or contusions, but a reddened surface of which plaintiff was complaining. Both witnesses further testified that, upon leaving plaintiff’s residence, they examined the fallen steps and found that, instead of having a standard facia board for the connection between the steps and the sill of the porch, a rough tongue and groove ceiling board had been used, and which at that time was in a very decayed condition. It is shown that decayed pieces of this ceiling board were found on the ground, having been pulled loose from the sill when the steps “wrenched” loose. We are convinced of the defective condition of this ceiling board, for it appears that the real estate agent of defendant, on reaching the premises shortly after the accident for the purpose of replacing the steps, removed the remnants of the ceiling board still attached to the sill of the porch, and substituted a standard facia board, a method of construction, which, for reasons of safety, should have been'originally observed.

The record convinces us that the steps “fell, or wrenched loose” when plaintiff proceeded to descend them, causing him to be precipitated to the ground. The contention of learned counsel for defendant that we should not attach any credence to this proof because of the conflict and discrepancies shown in the testimony of the witnesses tendered by plaintiff is without merit. These discrepancies are of matters of an inconsequential nature and do not affect, what we consider, the main facts at issue. Unquestionably the accident occurred as charged, resulting from defective premises, and the remaining question is that of defendant’s alternative plea of contributory negligence.

We fail to find any evidence which would give the slightest support to defendant’s contention that plaintiff knew of any vices or defects in the steps. He testified that at no time did he have the slightest suspicion of any dangerous condition then existing, much less actual knowledge of such a fact. This knowledge, relied upon by defendant, finds its only support in the testimony of plaintiff’s wife to the effect that she knew that the steps were “shaky” and had previously complained of that condition on two occasions. However, the knowledge of his wife of a given condition may not be imputed to plaintiff without sustaining proof that such knowledge was brought to his attention. There is nothing from which we can conclude that the steps were so defective as to render the user thereof guilty of contributory negligence. This identical defense has been made in several cases, in each of which the defendant lessor has contended that the knowledge of the injured party that there was a defective condition should prevent recovery for injuries sustained subsequently, but, as we held in the case of Hughes et al. v. Abate, 2 So.2d 68, 70: “* * * unless there is evidence which would indicate the defect to be so serious as to endanger the life or body of the user, the courts have held that the continued use thereof does not constitute contributory negligence”.

See, also, Boutie v. New Orleans Terminal Company, 139 La. 945, 72 So. 513, 516; Danove v. Mahoney et al., La.App., 176 So. 404, 405. Under such circumstances, we would not be justified in holding that he was guilty of contributory negligence.

The liability of defendant, in view of the foregoing facts and conclusions, is well established. To determine such liability, it is not necessary that the lessor have actual knowledge of the defects or unsafe condition of the leased property. Knowledge is imputed to him.

The articles of the Revised Civil Code relative to the obligations of the lessor are Nos. 2692 and 2695, which read as follows :

“2692 * * *. The lessor is bound from the very nature of the contract, and without any clause to that effect:
“1. To deliver the thing leased to the lessee.
“2. To maintain the thing in a condition such as to serve for the use for which it is hired.
“3. To cause the lessee to he in a peaceable possession of the thing during the continuance of the lease.”
“2695 * * *. The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”

Convinced as we are that the vices and defects existed in the premises; that these vices and defects caused the injury of the plaintiff in his use of the leased premises, without any fault or negligence being attributable to him in that connection, we cannot avoid the conclusion that the lessee is entitled to recover, from his lessor, indemnification for any loss which he has suffered.

Plaintiff sustained a sacroiliac strain. This is amply established by the testimony of the medical experts. Dr. Cabibi, presented by plaintiff, testifies that he was called to plaintiff’s home on the morning immediately following the accident, and on arriving found him in acute pain in the region of the sacroiliac joint. His diagnosis of the injury was “a sacroiliac sprain, pulled muscles of the back, possibly some subluxation (loosening of the ligaments) of the sacroiliac joint”. He administered a sedative and strapped plaintiff’s back for purposes of immobilization. He again visited plaintiff on May 11, 1939, administering heat treatments to the injured region. Between May 14 and June 3, 1939, plaintiff received four treatments at his physician’s offices, the latter date being the last medical attention received by him, he being then advised to obtain a sacroiliac belt for future comfort.

Dr. Logan, presented by defendant, examined plaintiff two days after the accident. His examination disclosed “a strain of the left lumbar muscle with a possible sacroiliac slip on that side”. He found plaintiff’s side “still very sore on pressure” and it was his opinion that the injury was not severe or permanent.

Plaintiff was confined to bed periodically for several days. At the time of the accident he was employed as a checking clerk by the WPA, though by trade a painter foreman, earning $57.20 per month. Pie reported for work ten or twelve days after the accident, being forced, after a day or two, to stop working as a result of the attending pain. He testified that he returned to work on June 6, 1939, and his employment has not since been affected as a result of the accident. At the time of the trial he was gainfully employed at wages of $150 to $175 per month.

In Moeller v. Morgan’s Louisiana & Texas R. R. & S. S. Co., 7 La.App. 559, the plaintiff suffered from a slight separation of the sacroiliac joint and was still wearing, at the time of the trial, nine months later, a seven-inch canvas belt with steel ribs, and straps under his leg. We allowed recovery of $1,000 for his injuries, but this award included $300 for loss of salary.

In McGehee v. Hines, 12 La.App. 13, 124 So. 846, our brothers of the First Circuit allowed $1,200 for injury in the sacroiliac region. Plowever, though the specific amounts are not stated, the award covered medical expenses and loss of wages.

In Synigol v. Oury, 17 La.App. 163, 134 So. 324, the plaintiff sustained injuries in the sacroiliac region which necessitated strapping. He suffered considerable pain and lost six weeks’ earnings, in addition to property damage. We allowed 'recovery of $490 and, after eliminating the items of actual damage, as distinguished from physical, the recovery for the sacroiliac injury alone was approximately $300.

In Hoffman v. Zimmer, La.App., 175 So. 115, the plaintiff, a lessee, fell on defective steps of the leased premises. She sustained a sacroiliac sprain, which was described as mild. We awarded her $750 for her injuries.

In Hughes et al. v. Abate, La.App., 2 So.2d 68, the plaintiff, a sub-tenant, was injured when the steps of the leased building gave way. She sustained a sacroiliac strain which was not particularly serious. She was treated for over two months by her physician and was confined to bed for about six weeks. Her physician found it necessary to strap her back as a result of considerable suffering. We allowed the plaintiff $400 for her injuries.

The medical expenses incurred by plaintiff for treatment as a result of his injuries, in accordance with Dr. Cabibi’s testimony and the bill rendered, is shown to be $50, and we do not find the charges unreasonable.

We conclude that plaintiff's injuries were mild, nor was there any serious impairment of his normal physical functions other than for a period of one month, at which time he resumed his employment. Under the facts presented, we have concluded to amend the judgment rendered below by increasing the amount awarded to plaintiff to $607.20, this amendment to cover the medical expenses of $50 and the loss of one month’s wages of $57.20.

The judgment appealed from is amended by the increase of the amount awarded to plaintiff, John Mobry, to $607.20. In all other respects, the judgment is affirmed, at the cost of the appellant.

Amended and affirmed.


source: Caselaw Access Project

author: LeBLANC, Judge.

license: Public Domain

text:
    MORGAN v. TRAVELERS INS. CO.
    No. 2298.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    Rehearing Denied Dec. 30, 1941.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellant.
    W. T. Bennett, of Clinton, for appellee.
   LeBLANC, Judge.

This is a suit for compensation based on an alleged permanent total disability.

Plaintiff was employed as an ordinary laborer by Mills Engineering & Construction Company which was engaged in road construction work in the Parish of East Feliciana. He alleges in his petition that on June 1, 1940, while in' the actual performance of his duties and in carrying out the instructions of his employer to get down into a hole some four or five feet deep to cut a root which was impeding the progress of the work, while holding himself with one hand on the side of the hole and holding an axe with another hand, he slipped and fell to the bottom of the hole with his left leg crumpled under his body. He avers that he suffered severe pain in his left knee joint and that there developed in the rear of the joint a knot about the size of a man’s fist. The pain became so intense that he was unable to finish the day’s work and he was sent to see a doctor who immediately put him to bed and applied hot applications to his knee. Apparently he was put on compensation for he avers that he was treated for several months and finally discharged on September 3, 1940, since which date he has not been paid anything further.

Plaintiff next alleges that he was' then and is now unable to return to work and that his condition has been diagnosed as “traumatic-haematoma of left (popiteal) space with subsequent infection; varicose veins of left leg with inefficient valves, and residual matter in popliteal space with impaired function thereof.” He alleges further that because of his said injury he is unable to do work of any reasonable character or of the kind for which he is equipped by education or training and which he was accustomed to perform. He therefore claims that he is entitled to be paid compensation at the rate of 65% of his weekly wages stated to have been $14.40 as for total permanent disability, and also for medical expenses, less whatever amounts may have been heretofore paid him, and he prays for judgment accordingly against the defendant, Travelers Insurance Company, his employer’s compensation insurance carrier.

In a supplemental petition plaintiff sets out that in addition to the pains which he had alleged he suffered that he also has severe pains in the knee joint and swelling of the foot, cyanosis of the lower extremities when standing or walking, and likewise suffers headaches, nausea and sleeplessness.

For answer the defendant admits that it had been notified by plaintiff of the injury complained of by him; that he was referred to Dr. Clovis L. Toler of Clinton, Louisiana, who treated him and discharged him as cured on September 3, 1940, and that without conceding liability on its part it paid him compensation to that date, or for the period of fifteen weeks, at the rate of $9.36 per week and incurred medical expenses in his behalf to the extent of $231.50. It avers that if plaintiff ever sustained an accident and resulting injury as alleged by him while working for its assured, he had fully recovered from the same on September 3, 1940, and that he is presently suffering no ill effects therefrom.

On the issues as thus presented to him the district judge heard the case and after trial rendered judgment in favor of the plaintiff awarding him compensation on the basis of impairment of the use of the left leg under authority of Subdivisions 8 and 15 of subsection 1(d), Section 8 of the Workmen’s Compensation Law, Act No. 20 of 1914, as Amended Act No. 242 of 1928, pp. 357, 358. Subdivision 15 provides that in all cases involving a permanent partial loss of the use or function of the member mentioned therein (the member in this case being a leg which is dealt with in subdivision 8) compensation shall bear such proportion to the amount named for the loss of such leg as the disability found bears to its total loss. He found the proportion of disability to be 50 % and accordingly allowed compensation at the rate of 50% of the weekly wage for the period of 175 weeks, that being the number of weeks allowed for the total loss of a leg. From the judgment rendered defendant took an appeal and whilst plaintiff has not formally answered the same, in brief submitted by his counsel, he prays that the judgment be amended by awarding him compensation as originally demanded by him.

As shown in the written opinion submitted by him, the district judge made the following findings of fact: (1) That plaintiff did suffer an accidental injury while in the course of his employment, (2) that at the time of the trial of the case, more than eleven months after the accident, he was still suffering an impairment of the function of his left knee, (3) that by education and training he is not fitted for other than manual labor, (4) that there is no causal connection between the headaches and nausea he complains of, and the accident, (5) that the varicose veins on his left leg are not attributable to his knee injury, and (6) that his injury did not result in haematoma of the left popliteal space but that he has chronic synovitis of the posterior cul de sac of the knee. This we understand is a condition that comes about from an irregular or unnatural flow of the fluid in the knee joint to the back of the joint forming a sack or “wind”, as it is sometimes called, at that part of the knee joint. The irregular flow of the fluid was caused by a laceration or tearing of the capsule of the knee which contains the fluid. The medical testimony indicates that the knot or wind at the back of plaintiff’s knee joint is about the size of a marble.

We do not find much difficulty in agreeing with the trial judge in the main on his findings as just enumerated. Indeed defendant does not longer seriously dispute that plaintiff has shown that he suffered an injury as a' result of the accident alleged by him and it apparently concedes that he has been left' with the condition just described, which, however, it contends, does not produce disability from doing the kind of work for which he is fitted and has been accustomed to perform, but, at most, causes a slight impairment of the function of the knee resulting in a partial disability of not more than from ten to fifteen per cent. On the plaintiff’s side, the serious contention urged is that the trial judge was in error in holding in the first place that the injury was compensable on the basis of impairment in the function of a member and secondly in holding that disability was partial instead of total. It would seem therefore that the vital question in the case relates to the extent of the injury and its resulting disability. The case is not unlike all of those of that class where the evidence on which to determine the degree of disability is principally that of medical experts whose differences in opinion are such that they cannot possibly be harmonized. Some of them in this case are rather positive in their views that in his present condition plaintiff cannot perform the kind of work he was doing at the time of his accident, nor for that matter, any other hard manual labor which would require lots of walking or standing for a long time. All kinds of hard manual labor of course exact either or both of these activities. Others of the medical experts are equally as positive that plaintiff can satisfactorily do ordinary farm work such as he was accustomed to do before he was engaged for a short period of time in construction work, and certainly, in our opinion, ordinary farm work is as laborious as any other kind of hard manual labor. These doctors are also of the opinion that he can perform any kind of hard labor with only a slight impairment, estimating his disability at from 10 to 15%.

Plaintiff himself testified that he had worked principally as a farm laborer all of his life; that he also had woi'ked for the W. P. A. and in a Civilian Conservation Camp, before he obtained employment with Mills Construction & Engineering Company doing construction work. He claims to have always been able-bodied and never had experienced any accident before. He states that since his injury, when walking, he suffers from headaches and stomach aches most of the time, that his leg hurts him and that he has never been able to do the kind of work he did before. To the extent that from their observation of him and the complaints he makes, two lay witnesses may be said to corroborate his testimony that he is not the same working man that he was before. On the other hand we find that the trial judge must also have carefully observed him as he was led to state in his written reasons for judgment that, “aside from the medical evidence plaintiff did not present the aspect of a totally disabled man. To the lay eye his left leg appeared much as his right and there was nothing in his carriage to suggest total disability to do work of a reasonable character.”

It is plain from the respective contentions made in their brief that both the plaintiff and defendant do not agree with the judgment of the lower court which based compensation on those provisions of the Statute covering the loss or the loss of use of a specific member of the body. In the light of all later jurisprudence on the subject we believe also that plaintiff is entitled to have his compensation fixed on the basis of his disability as it affects his capacity to work. Under the medical proof found in the record we are convinced that it is permanent and the serious question is whether it is partial or total.

In determining the extent of his disability all the suffering plaintiff complains of regarding headaches and stomach aches can be discarded, for his own medical experts could find no causal connection between those ailments and his injury, and, restricting it therefore to the injury itself, we find the stronger part of the proof to disclose that it is partial and is no more than 15%. In all the cases relied on by his counsel in which compensation was allowed as for total permanent disability it was shown that the claimant’s capacity to follow the work he was fitted by education or training to do was more seriously affected by the injury to the particular member involved than is the plaintiff’s. There is but little doubt that from the proof submitted, the work which he was by training, the better equipped to perform, was that of an ordinary farm laborer, which as we have already indicated is as hard as any other form of manual labor, and the preponderance of the medical testimony is clearly to the effect that he can do such work with only the slight impairment mentioned. In the recent case of Washington v. Holmes & Barnes, Ltd., et al., La.App., 4 So.2d 51, we held that where the proof disclosed that that was the condition existing with respect to the claimant’s disability, compensation had to be fixed under the provisions of Subdivision (c), Subsection 1 of Section 8 of the Workmen’s Compensation Statute, Act No. 20 of 1914, which allows him 65% of the difference between the wages at the time of the injury and wages which he is able to earn thereafter during the disability not exceeding 300 weeks. (Italics ours.)

Plaintiff’s weekly wage at the time of injury was $14.40. As his disability is fixed at 15%, under the provisions of the Statute on which his compensation will be based, the rate would be 65% of 15% of $14.40 for a period not exceeding three hundred weeks. The result' of that calculation, however, would only be $1.40 per week for the period, which is less than the minimum of $3 per week as fixed by Subsection 3 of Section 8 of the Act, Act No. 242 of 1928, p. 361. Plaintiff is therefore entitled to recover at the rate of $3 per week for a period not exceeding three hundred weeks less the fifteen weeks for which he was paid during the period of his total disability.

For the reasons stated it is ordered that the judgment appealed from be and the same is hereby annulled, avoided and reversed and it is further ordered that plaintiff recover compensation from the defendant, Travelers Insurance Company, at the rate of $3 per week for a period not exceeding two hundred and eighty five weeks beginning with the first payment due as of Sept. 3rd, 1940, with legal interest on each payment from its due date until paid.

It is further ordered that the defendant pay all costs.


author: WESTERFIELD, Judge.

text:
    BROUSSARD v. HOTARD.
    No. 17166.
    Court of Appeal of Louisiana. Orleans.
    Nov. 17, 1941.
    Rehearing Denied Dec. 15, 1941.
    Writ of Certiorari Denied Feb. 2, 1942.
    Rene R. Nicaud, A. E. Blackmar, and A. M. Suthon, all of New Orleans, for appellant.
    A. J. O’Keefe, Jr., of New Orleans, for appellee.
   WESTERFIELD, Judge.

William L. Broussard brings this suit against Charles R. Hotard for damages for physical injuries alleged to have been sustained as a result of an accident which happened about 4 o’clock a. m. on the morning of October 18, 1937, when the Ford car, owned and driven by Hotard, struck Brous-sard as he was crossing the intersection of Tulane Avenue and S. Cortez Street with the intention of boarding the Tulane Avenue street car going in the direction of Lake Pontchartrain. The charges of negligence imputed to the defendant Hotard are that he failed to maintain a proper lookout, did not have his car under control and did not yield to Broussard the right of way to which, as a pedestrian, he was entitled, and finally, that he failed to blow his horn to signal his approach, all in violation of the traffic ordinance of the City of New Orleans, No. 13,702, C. C. S.

The defendant answered, denying all charges of negligence, and in the alternative, pleading contributory negligence.

There was judgment below in favor of defendant dismissing plaintiff’s suit and he has appealed.

Tulane Avenue is a main thoroughfare with a neutral ground in the center on which there are two car tracks, with paved roadways on each side. On the morning of the accident it had been raining and, at the time of the accident, it was misting or drizzling. The street was clear of traffic and, though it was early in the morning, all witnesses agree that the visibility was good.

The defendant testified that he was traveling along Tulane Avenue towards its intersection with Cortez Street, at about twenty miles per hour when there suddenly appeared, about ten feet before him, the plaintiff, Broussard, running across the intersection with his head down, and about a street car’s length beyond the pedestrian lane; that when Broussard was about the center of the street, he was struck by the front of his car, there being no chance to avoid him. In other words, Broussard suddenly ran out into the street and in front of his automobile.

Broussard declared that as he reached the corner of Tulane Avenue and S. Cortez Street, he saw a Tulane Avenue Street car at Genois Street, a city block distant from the S. Cortez intersection; that a motor truck was passing at the time and as soon as the truck cleared his path, he entered the street, in the pedestrian lane, signalling to the motorman on the street car which, by that time, was nearer the intersection, by raising his hand; that he was not running because “I had no reason to run, the street car was not dose enough for that”; and that as he had almost reached the neutral ground he was .struck by Hotard’s automobile.

The only eye-witness other than the plaintiff and defendant was Lester Nuss, the motorman on the street car which Broussard intended to board. Nuss testified that as Broussard entered the intersection from the downtown lake corner of Tulane Avenue and S. Cortez Street, with the apparent intention of boarding his car, he was walking and not running and that he was in the pedestrian lane and not beyond it; that when he first saw Broussard he was a block away from the intersection and that the automobile, operated by the defendant, which passed his street car in the block, was traveling between twenty-five and thirty miles> per hour when it neared the intersection; that Broussard was struck near the neutral ground and not in the middle of the roadway.

It is apparent that the evidence preponderates to the effect that Broussard entered the intersection in the pedestrian lane of traffic when defendant and his automobile was a considerable distance away and that he plainly had the right of way as established by Article IV, Section 2(a) of the City Traffic Ordinance No. 13,702 Commission Council Series, which reads as follows : “The operator of any vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk, or within any unmarked crosswalk, at an intersection, provided pedestrian has started across the street before the vehicle shall have entered the intersection, except at intersections where the movement of traffic is being regulated by police officers or traffic control signals, or at any point where a pedestrian tunnel or overhead crossing has been provided.” See Langley v. Viguerie, La.App., 189 So. 606.

Hotard also failed to maintain a proper lookout and did not have his car under proper control. In this respect he violated Article V, Sections 2 and 3(a) of the Traffic Ordinance.

In Rottman v. Beverly, 183 La. 947, 165 So. 153, 156, the Supreme Court said: “The first duty of those who operate engines or motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger.”

In Jackson v. Cook, 189 La. 860, 181 So. 195, 197, it is said: “ * * * that the duty of those in charge of motor cars and engines to look ahead and observe never ceases; that what they-can see they must see and in legal contemplation they do see; that their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability.”

In Gouzien v. Feraci, 2 La.App. 115, in speaking of the driver of an automobile who had knocked down a pedestrian crossing at an intersection, we said: “It was her duty under all conditions, but specially at a street crossing, to look for pedestrians upon her path and to have her automobile under control. Duffy v. Hickey, 151 La. 274-279, 91 So. 733; Carroll v. New Orrleans Ry. & Light Company, 125 La. [898], 903, 51 So. 1029; Shields v. Fairchild, 130 La. 648, 58 So. 497; Eichorn v. New Orleans & C. R. Light & Power Company, 112 La. [236], 237, 36 So. 335 [104 Am. St.Rep. 437].”

Broussard was not guilty of contributory negligence. He walked across the intersection at the proper place, having entered it when Hotard’s automobile was a considerable distance away, far enough for him to cross in safety if the approaching car had been prudently operated. See Langley v. Viguerie, supra; Sweeney v. New Orleans Public Service, Inc., La.App., 184 So. 740; Guillot v. Baton Rouge Yellow Cab Company, 18 La.App. 202, 138 So. 219; and Langenstein, et al. v. Reynaud, 13 La.App. 272, 127 So. 764.

However that may be, and conceding that Broussard was guilty of contributory negligence, Hotard had the last clear chance of avoiding the accident.

In Langley v. Viguerie, supra [189 So. 608], we said: “The question of plaintiff’s primary or contributory negligence is unimportant, however, since the last clear chance of avoiding the accident was with the defendant. ‘Mrs. Lanphier testified that at the time she started to cross the intersection defendant’s car was a full city block distant, or about two hundred feet. Defendant, who was driving his own car at the time, testified that he did not see Mrs. Lanphier until within five feet, or just before striking her. The trial judge concluded that defendant was at fault because of his failure to avoid the accident, the plaintiff being within his vision when there was ample time to stop his car before striking her, whether he saw her or not. In other words, the judge a quo held that the question of plaintiff’s negligence as the sole, or in the alternative the contributing, cause of the accident, the grounds upon which the case was defended, was unimportant, since the last clear chance of avoiding the accident was with defendant. We are also of that opinion.’ Lanphier v. D’Antoni, 14 La.App. 441, 131 So. 628, 629.

“In Jackson v. Cook, 189 La. 860, 181 So. 195, 197, the Supreme Court said: ‘The only difference between the Rottman case (Rottman v. Beverly, La.App., 162 So. 73; Id., 183 La. 947, 163 So. 153) and the case presently before us is this: In the Rott-man Case Mrs. Rottman was guilty of gross negligence which continued up to the moment of the accident. Beverly, the driver of the automobile; actually saw her in her perilous position in time to avert the accident had he used proper precautions. In the present case the plaintiff was guilty of gross negligence which continued up to the moment of the accident. The driver of the car did not see, but could have seen, plaintiff in his peril if he had been looking ahead. The mere fact that the driver of the car in this case did not see plaintiff does not absolve the defendant from liability, because it was the duty of the driver to look, and, according to the findings of both courts, he was not looking. The Rott-man Case is not authority for holding that, merely because the driver of the car in this case did not actually see the plaintiff, the defendant is not liable.’

“It does not make any difference whether the plaintiff was fifteen feet in the intersection, as .claimed by defendant, or twenty feet, as claimed by the plaintiff. In either case there was ample opportunity for Smith to discern plaintiff’s presence at a time when he could, with ordinary care, have avoided the accident. If he had operated his taxicab under the dangerous conditions prevailing, with the care and caution imposed upon him by law, he could and should have avoided striking Mrs. Langlay.”

Broussard was seventy years of age at the time of the accident. He sustained a comminuted fracture of the upper end of the left tibia, a comminuted fracture of the left fibula and a compressed fracture of the second cervical vertebrae, a fracture of the right wrist and multiple contusions and brush burns. These injuries necessitated the use of complicated apparatus involving extreme discomfort for some months after the accident and, of course, considerable suffering. At the date of the trial, thirteen months after the accident, plaintiff was still using crutches and confined to the hospital.

Dr. Paul E. Walker, plaintiff’s physician, testified that Broussard will never be able to return to work.

At the time of his injury, the plaintiff was earning $100 per month. At the time of the trial he had lost $1,200 in wages.

In Langley v. Viguerie, supra, the plaintiff sustained a comminuted fracture of the lower third of the fibula and tibia of the right leg, with two unsuccessful efforts having been made, up to the time of the trial, to set the fractures, and a third attempt to set the bones was then in contemplation, with plaintiff being faced with the alternative of using a brace and crutches indefinitely. There we awarded $6,000, over $1,-000 of which was for medical expenses.

In Bacon v. New Orleans Public Service, Inc., 18 La.App. 96, 137 So. 213, 218, 866, the injured person suffered a fracture of the femur and a compound fracture of the tibia and fibula of the right leg, and was confined to bed for a year and was required to use crutches for two years, plis injury resulted in the shortening of his leg by % of an inch. In that case the injured party was a boy fourteen years old. We said: “In the light of the jurisprudence of this state, we believe the sum of $10,000 awarded plaintiff is excessive, and should be reduced to the sum of $6,000. Hebert v. Kingston Lumber Company, 126 La. 775, 52 So. 1021; White v. Nutriline Milling Company, 133 La. 870, 63 So. 385; Adams v. [S. H.] Bollinger [& Co.], 141 La. 493, 75 So. 218; Southall v. Smith, 151 La. 967, 92 So. 402, 27 A.L.R. 1194.”

In the case at bar plaintiff seeks recovery of $11,200, which amount includes an item of $1,200 for loss of wages. We believe that, under the jurisprudence, an allowance of $5,500 for all items of damages claimed would be proper.

For the reasons assigned, the judgment appealed from is annulled, avoided and reversed, and it is now ordered that there be judgment herein in favor of the plaintiff, William L. Broussard, and against the defendant, Charles R. Hotard, in the sum of $5,500, with legal interest from judicial demand and for all costs.

Reversed.


author: DORE, Judge.

text:
    McCONNELL MOTORS CO. v. Succession of TOMPKINS (GONZALES, Intervener).
    No. 2314.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.

      Durrett & Hardin, of Baton Rouge, for appellant.
    Johnson & Kantrow, of Baton Rouge, for appellee.
   DORE, Judge.

On April 23, 1940, plaintiff sold to E. L. Tompkins a DeSoto automobile and as a part of the purchase price Tompkins executed his promissory note for the sum of $500, due three months after date, with interest and attorney’s fees, which note was secured by a vendor’s lien and chattel mortgage on the automobile. The sale and chattel mortgage was duly recorded in the chattel mortgage records of the Parish of East Baton Rouge. The chattel mortgage note was sold by plaintiff, before maturity, to the City National Bank of Baton Rouge.

On July 20, 1941, a few days prior to the maturity of the note, Tompkins paid the plaintiff the sum of $300 to be applied on the note and executed an ordinary promissory note for the sum of $200, payable three months after date. Plaintiff gave the $300 and the ordinary note to the City National Bank, the holder of the chattel mortgage note, which bank continued to hold the chattel mortgage note and the personal note of Tompkins. In the early part of October, prior to the maturity of his personal note, Tompkins paid to the bank the sum of $50 together with $4 accrued interest. This credit on the personal note appears of date of November 8, 1940, In the meantime, Tompkins had died on October 27, 1940. The application of the credit as of date of November 8, 1940, is explained by an officer of the bank who states that when Tompkins made this payment, Tompkins was given a renewal note, to cover the balance due, for him to sign, and return, but he died before returning the same and that therefore the credit was applied as of that date.

It further appears that a day or two prior to Tompkins paying the plaintiff the $300 and the execution of his personal note for the sum of $200, as stated above, Tompkins executed a chattel mortgage note on the same automobile in favor of the Stanocola Office Employees Federal Credit Union to secure a loan from it to the sum of $532.86.

After Tompkins died, his succession was opened and his widow qualified as adminis-tratrix of his succession. After thus qualifying, she applied for authority under the terms of Act 121 of 1934 to make a dation en paiement of the said automobile to the Stanocola Office Employees Federal Credit Union in satisfaction of the debt owed by Tompkins to the said Credit Union on the chattel mortgage resting on the said automobile, alleging that the said automobile did not have any value over and above the indebtedness. In these proceedings, no reference was made to the previously given chattel mortgage duly recorded in favor of plaintiff.

Thereafter, the Court, after due publication in accordance with Act 121 of 1934, authorized the administratrix to make the transfer of the automobile to the “Credit Union” in consideration of the cancellation of the note and mortgage due thereon, which was accordingly done. Shortly thereafter, the “Credit Union” sold the automobile to John J. Gonzales, the intervener in this case.

Shortly after the sale to Gonzales, plaintiff filed this suit against the Succession of Tompkins, seeking to recover balance due on the chattel mortgage note in the sum of $150, plus attorneys’ fees and costs, and asking- for recognition of its vendor’s lien and privilege and chattel mortgage, and for a writ of sequestration on the automobile in the possession of Gonzales, which writ was granted.

Gonzales appeared and moved to dissolve the writ of sequestration on the ground that Tompkins had paid the chattel mortgage note on July 18, 1940, by the giving of $300 and his personal note of $200, thereby can-celling the original note of $500 and releasing the security given therefor. In the alternative, he averred that the chattel mortgage rights, if any, were cancelled and annulled by the proceedings had under Act 121 of 1934, supra. This motion was overruled. Thereupon, Gonzales intervened in the suit, setting up the same contentions as set forth in his motion to dissolve the writ of sequestration.

Plaintiff filed an answer to Gonzales’ intervention, denying that the chattel mortgage note given by Tompkins had been paid and its vendor’s lien and privilege and chattel mortgage rights lost, but averring that the $200 note was given to extend the balance due on the mortgage note as the bank would not carry a past due note on its books.

On the trial of the intervention of Gonzales, judgment was rendered in favor of plaintiff for the sum of $150, with interest at the rate of 8% per annum from October 16, 1940, with an additional 15% on principal and interest unpaid as attorney’s fees, sustaining the writ of sequestration, with recognition of the vendor’s lien and privilege and chattel mortgage on the automobile in favor of plaintiff to pay and satisfy said sum, and dismissing the intervention. From this judgment intervener has appealed.

In considering the two grounds set up by intervener Gonzales by which he claims that the chattel mortgage given by Tompkins to plaintiff in April, 1940, cannot affect his purchase of the automobile in question, we shall first discuss the effect of the dation en paiement, made in the succession proceedings.

Act 121 of 1934 provides the method for an administrator of a succession to transfer to a mortgage creditor the property belonging to the succession, burdened with a mortgage, in satisfaction thereof. It is obviohs from the mere reading of the statute that such transfer can only be made in satisfaction of such mortgage debt or debts and cancellation of the same. It is also obvious that the administrator cannot, under this act, defeat a prior mortgage by transferring the property to a second mortgage holder and ignoring the holder of the first mortgage. In this case, the registry of the prior mortgage was notice to all parties. The very implication of the act is that the mortgage creditor or creditors must consent to the transfer of the property. In this case, neither the plaintiff nor the .bank was considered by the administratrix as a mortgage creditor and of course their consent was not obtained. It therefore follows that the dation en paiement had no effect whatever on the prior chattel mortgage on the automobile in favor of the plaintiff, if that chattel mortgage was -then alive and enforceable.

The next question is whether or not the chattel mortgage note given by Tompkins to plaintiff was paid and satisfied by the payment of $300 in cash and the giving of the $200 note by Tompkins to plaintiff on July 18, 1940.

The testimony of Francis McConnell, one of the members composing the partnership of McConnell Motors Company, plaintiff herein, and Mr. Butler, the bookkeeper, who accepted the cash and note from Tompkins, is to the effect that nothing was said or understood at that time about the can-celling of the chattel mortgage note which was then held by the bank; that the only reason for accepting the $200 note due 90 days after date was to satisfy the hank, which held the chattel mortgage note, in its rule not to carry past due notes on its books; that Tompkins did not disclose the source of the $300 nor did he inform them of having granted a second chattel mortgage on the car. Nothing was said about the return of the $500 note to Tompkins.

Mr. McConnell testified that he took the $300 in cash and the personal note of Tompkins to the bank. Upon being questioned as to the $500 he informed the bank that the same was not to be released. The evidence is to the effect that the bank retained the $500 chattel mortgage note and the $200 personal note of Tompkins pinned together, and Tompkins never at any time requested the return of the chattel mortgage note. Just prior to the maturity of the $200 note, Tompkins paid the bank $54, $50 of which was to be applied to the note and $4 to cover past due interest. Tompkins was given a renewal note of $150, due ninety days after date, to cover the balance on the $200, but failed to return it, he having died in the meantime. From these facts it does not appear that the parties ever intended to release the chattel mortgage note. Moreover, it does not appear reasonable that the parties intended such release, since it would not have been good business on the part of plaintiff to surrender such note* by the mere acceptance of a personal note without security.

After the death of Tompkins, plaintiff as endorser of these notes paid the bank the balance due, and began these foreclosure proceedings. Evidently, the trial judge must have come to the conclusion that there was no payment and satisfaction of the chattel mortgage note, and we fully agree with him. The most favorable view on behalf of the intervener would be that there was a novation of the debt represented by the new note of $200, but novation is never presumed; the intention to substitute a new debt for an old one must be clearly shown by the agreement of the parties. The original debt must be extinguished in full before there can be a novation. The taking of a new note does not novate the prior debt. The evidence in this case fails to show that the $500 chattel mortgage note was extinguished, but on the contrary, it shows that the said note remained outstanding and enforceable, the $200 note being nothing more than evidence of the balance due thereon. See Civil Code, Articles 2187 and 2190; Union Building Corp. v. Bur-meister, 186 La. 1027, 173 So. 752- Davis v. Welch, 128 La. 785, 55 So. 372.

Counsel for intervener contends that the facts and circumstances show that Tompkins-had understood that the chattel mortgage note had been satisfied by his paying the $300 in cash and the execution of his personal note for $200 and that the court erred in refusing to permit a Mr. Sterling to testify to such effect by what Mr. Tompkins had told him, and cites many decisions dealing with compensation cases. These decisions are not in point. In any event, even if such testimony would show that Mr. Tompkins understood that the chattel mortgage was being satisfied, it would not change the results of this case since it must be shown that plaintiff also understood and intended that the chattel mortgage note was discharged, which has not been shown.

Finding no error in the judgment of the lower court, it is affirmed.


author: JANVIER, Judge.

text:
    LAPEYROUSE v. ORLEANS INDUSTRIAL LIFE, HEALTH, ACCIDENT & BURIAL BENEFIT INS. CO.
    No. 17563.
    Court of Appeal of Louisiana. Orleans.
    Nov. 17, 1941.

      James N. Brittingham, Jr., of New Orleans, for appellant.
    John J. Blasi, of New Orleans, for appel-lee.
   JANVIER, Judge.

The plaintiff files this suit as beneficiary designated in a policy of industrial life insurance issued on October 25th, 1937, by defendant company on the life of Jerry Bar-ras for the amount of $189. She makes all of the usual necessary allegations; that the policy was issued, the premiums paid, that Jerry Barras died on June 12th, 1938, and that due proof of death was furnished to the insurer, and she prays for judgment for the full face value of the policy with interest from June 12th, 1938.

The insurer admitted the issuance of the policy, the payment of all premiums and that the assured has died, but it denied all liability on the ground that the said assured in his signed application for the policy, in answer to certain questions had wilfully and fraudulently stated that at the time the said application was signed he “was in good and sound health and that he was not suffering from tuberculosis”, whereas in truth he was not in sound health, having suffered for more than fifteen years with pulmonary tuberculosis, with which malignant disease he was, to his knowledge, suffering at that time. Defendant insurer also pleaded, in the alternative, that should it be held under the policy then, because of a limitation contained in the policy and claimed to be applicable under the circumstances shown here, the limit of liability should be fixed at the amount of premiums which had actually been paid.

There was a judgment dismissing plaintiff’s suit and she has appealed.

When the policy was written the assured was not required to submit himself for a medical examination but a written and signed application was obtained from him, though it was not attached to nor made a part of the policy. However the policy was issued since the enactment of Acts Nos. 134 and 160 of 1934, and therefore it was not controlled by Act No. 52 of 1906, as amended by Act No. 227 of 1916, and consequently, even though the application was not attached to nor made part of the policy, it could be relied upon to show what statements were made by the assured at the time the application was signed.

Act No. 160 of 1934 provides that all industrial life insurance companies shall require the applicant “to make an application in writing therefor to the insurer and to sign the application with his genuine signature, or ordinary mark” and that such application “shall be a part of the contract of insurance issued thereon, whether or not the application or a copy thereof be attached to or indorsed upon the policy when issued.”

This statute effected a significant change in the law concerning the proof of misrepresentation by an applicant for industrial insurance because prior to its enactment, Act No. 52 of 1906 prevented an insurer, desiring to rely upon the defense of misrepresentation, from pointing to statements contained in an application unless the application should have been attached to and made a part of the policy. Consequently, the decisions largely relied upon by plaintiff, which were based upon the law prior to 1934, have no application whatsoever. See Geddes & Moss, etc., Co. v. First National Life Insurance Company, La.App., 177 So. 818, Whitmeyer v. Liberty Industrial Life Insurance Company, 166 La. 328, 117 So. 268, Eagan v. Metropolitan Life Insurance Company, 181 La. 16, 158 So. 575.

But even Act No. 160 of 1934, though authorizing us to examine the statements made in the application, does not authorize the annulment of the policy unless there are found statements which are not only false, but which have been willfully made by the assured, for in Section 3 of the said statute we find the following: “No policy of industrial life insurance shall be void, nor shall the rights of the assured thereunder be impaired, by any misrepresentation in the application of the assured unless such misrepresentation- is wilful on the part of the assured and conceals facts as to the ill-health of the assured existing at the time of any such application, * $

If then we are to hold that there may be no recovery under this policy, we must find not only that the statements pointed to concerning the health of Barras at the time the application was made were false but also that their falsity was lcno-wn to him, and that therefore he acted willfully in making those statements. The statements pointed to were not answered by him in his own hand, but are shown to have been dictated to the agent who filled out the application and then presented it to Barras that he might make his mark thereon.

Question 14 reads as follows: “Do you suffer with tuberculosis, heart or a malignant disease ? ” This question was answered with a check mark, which the agent testifies means that Barras answered “No.” In answer to question 15, reading: “Are you now in good and sound health?” Barras answered, “Yes”.

There seems to be no doubt that for some fiften years prior to the date on which the policy was applied for, Barras had intermittently suffered with pulmonary tuberculosis, and'the agent states that he knew of this, and of course there can be no doubt that Barras, himself, knew of it. But the agent testifies, in effect, that he was of the opinion that at the time Barras made the application he had recovered and was in good health. He was asked: “Was there ever any willful concealment of the state of Jerry Barras’ health” and he answered: “No sir.”

Barras knew the agent well and, of course, knew that the said agent must have been familiar with the fact that he had, at times in the past, suffered with pulmonary tuberculosis.

We think from all of these facts that the defendant has failed to show that any misstatement, which may have been made in answer to questions contained in the application, were willful misstatements within the contemplation of the applicable statute. If the agent thought that Barras had recovered, it may well be that Barras himself thought so also.

In oral argument there was a suggestion that there may have been fraud in connection with the issuance of the policy and that therefore under Section 3 of Act No. 160 of 1934, there could be no recovery because in that section the statute provides “that fraud shall always be a defense * * *.” But in view of the knowledge which the agent had of the prior illnesses of the assured, there was no fraudulent concealment on the part of the assured. The true facts must have been known to the agent, and therefore there could be no fraud within the contemplation of the statute. It has several times been held that there can be no fraud where the representative of the company knows the true facts and fails to disclose them to his principal. See Succession of Dekan v. Life Insurance Company of Virginia, La.App., 172 So. 37, Sharper v. Security Mutual Benevolent Ass’n, La.App., 177 So. 461; and Bordelon v. National Life & Accident Insurance Company, Inc., La.App., 187 So. 112.

We come then to a consideration of what is the extent of defendant’s liability under the policy. Defendant insists that it should be limited to the amount of premiums actually paid. The' death benefit fixed in the policy is $189, but there is a stipulation reading as follows: “If the death of the insured occurs within one year from the date hereof as a result of pulmonary disease, cancer or disease of the heart, liver or kidneys, the liability of the company under this policy shall be limited to the amount of premiums actually paid hereon.”

It is shown that the death occurred within one year of the date of the policy, and that the cause of the death was pulmonary tuberculosis, which is a pulmonary disease, and is therefore one of the diseases named in the above quoted stipulation. Plaintiff believes and argues that the said stipulation is un- • enforceable, being violative of Act No. 97 of 1908, which statute in effect provides that if a life insurance company issues a policy without requiring that the assured shall submit himself to a medical examination, it, the insurer, shall be presumed to. have had knowledge of the condition of the assured’s health at the time of the issuance and that it, the insurer, shall be considered as having waived the right to claim a forfeiture based on any misstatement made by the assured concerning his health.

Counsel for defendant insurer contend that the clause on which they rely in limiting defendant’s liability does not constitute a forfeiture of the policy but merely limits the coverage under certain circumstances, and that those circumstances do not depend on the state of health of the assured at the time of the issuance of the policy.

On behalf of plaintiff our attention is directed to Geddes & Moss, etc., Co. v. First National Life Insurance Co., La.App., 177 So. 818, 822, as authority for the proposition that where there is a policy stipulation limiting liability in case death occurs from a disease contracted before the policy has been in effect for any stipulated time, such a stipulation is violative of the said Act No. 97 of 1908. But we do not so read that decision. It is true that there the policy provision somewhat resembled the one relied on by defendant here. It read as follows: “ ‘One-half of the death benefit provided for in above schedule is payable by the Company should death occur from any accident occurring or illness contracted before this Policy has been in force for six months.’ ”

But the vast distinction between the two is that in the one before us the date and the cause of the death are the important things, whereas in the stipulation above quoted from the policy in the Geddes & Moss case, the date on which the illness was contracted was the determining factor, and it was there contended by the insurer that even if the date on which the disease was contracted was prior to the date of the policy, nevertheless the stipulation was enforceable and had the effect of forfeiting or annulling the policy. In other words, in the Geddes & Moss case the deceased was shown to have died from a disease contracted before the policy was issued. The stipulation provided that the policy should not be effective if the death should occur from “an illness contracted before this policy has been in force for six months.”

The insurer contended that that stipulation meant that even if the disease from which the death resulted had been contracted prior to the date of the policy, the stipulation should be effective and should prevent recovery. The plaintiff maintained that if that interpretation should be given then there would be a violation of the provisions of Act No. 97 of 1908, since the insurer would then be pointing to a disease with which the assured was suffering at the time of the issuance of the policy. We held that if that stipulation should be given that interpretation, then the interpretation would be violative of the provisions of that statute of 1908. We said: “ * * * Moreover, were we to interpret these limitations in the manner contended for by the defendant, the clauses would be invalid because their enforcement would accomplish a partial forfeiture of the policy in violation of Act No. 97 of 1908. It should be borne in mind that Act No. 97 of 1908 proclaims, in substance, that any insurance company issuing policies without first requiring a medical examination of the assured is presumed to have knowledge of the assured’s health, habits, and occupation and that such company waives the right to claim a forfeiture of the policy on the ground that the statements made by the assured in the application for insurance were false. Here, the defendant has written a policy which, if construed in the manner maintained for [contended for], would work a partial forfeiture of the coverage granted and would sanction its avoidance of the provisions of Act No. 97 of 1908.”

It is shown that the weekly premium was 15$ and that the policy was in force from the date of issue, October 25th, 1937, to the date of death of the assured, June 12th, 1938. Thirty-four weekly premiums were paid.

Plaintiff is thus entitled to $5.10 with legal interest from judicial demand.

The judgment appealed from is annulled, avoided and reversed, and there is now judgment in favor of Cecile Lapeyrouse, wife of Martin Barras, and against the Orleans Industrial Life, Health, Accident & Burial Benefit Insurance Company in the sum of $5.10 with legal interest from February 6th, 1939, and for all costs.

Judgment reversed.


text:
    METAIRIE BANK IN LIQUIDATION v. LECLER.
    No. 17579.
    Court of Appeal of Louisiana. Orleans.
    Nov. 17, 1941.
    Rehearing Denied Dec. 1, 1941.
    See, also, 1 So.2d 710.
    Stanley A. Baron, of New Orleans, for appellant.
    Benjamin Washastrom, of New Orleans, for appellee.
   JANVIER, Judge.

This 'is an appeal by Metairie Bank in Liquidation from a judgment dismissing for want of prosecution for five years this suit against Emile J. Lecler.

The suit was filed on April 17th, 1935. The sheriff’s return shows that-domiciliary service was made on Lecler on April 30th, 1935. Judgment as prayed for was rendered by default on June 27th, 1935, and was signed on the same day. Nothing further was done by either party until December 20th, 1940, when Lecler appeared and filed an exception to the jurisdiction of the court, alleging that, at the time of the so called domiciliary service, he had not resided at the place at which the service was said to have been made. On the same day, December 20th, 1940, and apparently after the exception to the jurisdiction had been filed, Lecler filed a motion suggesting that the suit be dismissed on the ground “that plaintiff has allowed more than five years to elapse without having taken any steps in the prosecution * *

On the same day, December 20th, 1940, judgment was rendered reading as follows: “It is ordered by the court that plaintiff’s suit herein against defendant be dismissed at plaintiff’s costs.”

On January 16th, 1941, plaintiff, by rule nisi, called upon Lecler to show cause why both the exception to the jurisdiction and the motion to dismiss should not be stricken from the record.

This rule was set for hearing, and at the hearing counsel for Lecler asked that the exception to the jurisdiction filed by him be overruled. After argument on the question of whether there had been an abandonment of the sttit within the contemplation of Article 3519 of the Civil Code, there was judgment “maintaining the dismissal of this suit”, and it is from this judgment that plaintiff bank in liquidation has appealed.

As we have shown, this judgment of dismissal resulted from a motion filed by Lec-ler suggesting the dismissal because of the effect of Article 3519 of the Civil Code. The second paragraph of that article reads as follows : “Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”

It is the contention of plaintiff that it did not fail to prosecute its demand but that on the contrary, after filing the suit on April 17th, 1935, it proceeded without delay to obtain a final judgment, which was read, rendered and signed on June 27th, 1935, or only a little more than two months after the suit had been filed.

It is conceded that the judgment was rendered and signed in 1935, only a short time after the filing of the suit, but counsel for Lecler maintains that the judgment was not a final one since no notice of it was ever served upon Lecler, and he relies upon Article 624 of the Code of Practice which provides that where a judgment has been rendered against a defendant on whom personal service was not made, execution cannot issue until the expiration of ten days “counting from the notification.”

Relying upon the fact that no execution may issue under a judgment rendered on domiciliary service until ten days after the judgment debtor has been notified of the judgment, counsel for Lecler argues that such a judgment is not final until the notification thereof has been made, and that consequently here no final judgment was obtained, and that since five years were allowed to elapse after the signing of the judgment without the issuance of the notice thereof, there has been such a failure to prosecute as justifies the dismissal of the suit under the provisions of Article 3519 of the Civil Code. Counsel for plaintiff concedes that no execution could have issued until after the expiration of the ten day delay after the giving of the notice, but he argues that this does not in any way indicate any lack of finality in the judgment, contending that the giving of notice of the judgment is not a step in the prosecution of the suit but is the initial step in the issuance of execution, and on behalf of plaintiff it is further contended that by the exception to the jurisdiction defendant waived any right which otherwise he may, at that time, have had to contend that by failure to prosecute plaintiff evidenced an intention t'o abandon the suit.

It thus appears that defendant’s principal argument hinges upon the interpretation which should be placed upon the word “final” as it appears in Article 3519 of the Civil Code.

And we think that the word “final” is used in the article to distinguish between a judgment rendered on the merits of the controversy, and one rendered on mere incidental issues arising during the course of the litigation; in other words, an interlocutory judgment. Article 539 of the Code of Practice defines a “final” or “definitive judgment” as “such as decide[s] all the points in controversy, between the parties.” And the article further provides that “definitive judgments are such as have the force of res judicata.”

And Article 556 sets forth the methods by which such definitive judgments may be revised, set aside or reversed. These are: (1) by a new trial, (2) by appeal; (3) by action of nullity, (4) by rescission.

There is provided by Act 10 of 1926 a. further method, which is by application for a rehearing, and this is not identical with an application for a new trial. See Jacobs v. Lagrange, 9 La.App. 409, 119 So. 538. So that where a definitive judgment has been rendered it may be attacked only in one of the five methods set forth above. Defendant did not follow any one of these methods but chose, after the judgment had been signed, to attempt, not to reverse the judgment nor to annul it, but to dismiss the suit on a ground not recognized as available unless resorted to prior to the prosecution of the suit to final judgment. It is of course true that, because of the effect of Article 624 of the Code of Practice, defendant always had the right to appeal because such right exists until the expiration of ten days from the service of notice of judgment, and defendant, starting with this premise that he still had the right to appeal, asserts that so long as he had that right, the judgment was not final since the Supreme Court in Cary v. Richardson, 35 La.Ann. 505, said: “Definitive judgments are those adjudications which have acquired the force of res judicata, by which the questions determined are set at rest beyond possibility of revision by appeal.”

It is very evident that the court did not intend to say that no judgment is a final one until the right to appeal from it no longer exists. This is plain from a reading of the opinion and also when we consider Article 556 of the Code of Practice, which provides, among other things, that appeals may be taken from “definitive”—which has been defined as meaning—“final” judgments. How absurd it would be, where the Code of Practice permits an appeal from a final judgment, for the Supreme Court to define a final judgment as one which has settled the controvérsy beyond the possibility of revision by appeal.

We think it clear that what the court meant is that a judgment is a final or definitive one when it settles the issues presented in the main controversy to such an extent that it will have the force of res adjudicata if it is not reversed on appeal.

And there was such a judgment here. All of the issues in the principal controversy were settled. The controversy had terminated so far as the trial court is concerned, and plaintiff had obtained a judgment which became a property right. True enough, plaintiff could not issue execution until it had first given notice that it had obtained a judgment but it nevertheless had a final judgment.

The requirement that notice be given before execution may issue results from a recognition on the part of the lawmakers of the fact that where the litigation has been commenced only by domiciliary service, there is the possibility that the defendant has not actually received the citation and that, in fact, he may have no knowledge that he has been sued and that a judgment has been rendered against him. The lawmakers believed that, because of this possibility, such a defendant should be actually notified that such a judgment has been rendered against him in order that he might avail himself of one of the methods of revision, reversal or annulment referred to. The requirement that such notice be given was not intended to give to the defendant any right to set up any defense which should have been resorted to prior to judgment but to give him only those rights which are accorded to any defendant against whom there has been rendered a judgment which is final so far as the court which rendered it is concerned, and which may be “revised, set aside or reversed” only in one of the methods set forth by law.

We think that plaintiff has obtained a final judgment and that it will prescribe only after the lapse of ten years as provided by Article 3547 of the Civil Code. We thus find it unnecessary to consider whether by the filing of the exception to the jurisdiction of the court, defendant waived the right to attempt to dismiss the suit for want of prosecution. This would otherwise have been an interesting question. See Tulane Law Review, Vol. 13, page 641: “The defendant must file his motion to dismiss for that purpose alone, and if he couples with it any plea to the merits of the case he will be considered as having waived his objection of prescription. Geisenberger v. Cotton, 1906, 116 La. 651, 40 So. 929; Continental Supply Co. v. Fisher Oil Co., 1924, 156 La. 101, 100 So. [64], 65; King v. Illinois Cent. R. R., La.App.1932, 143 So. 95.”

The judgment of dismissal for want of prosecution is annulled, avoided and reversed at the cost of defendant.

Judgment reversed.


author: Le BLANC, Judge.

text:
    CAMPBELL v. F. HOLLIER & SONS.
    No. 2260.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    Rehearing Denied Dec. 30, 1941.
    For former opinion, see 4 So.2d 101.
    Roland B. Reed, of Ville Platte, for appellant.
    J. Y. Fontenot, of Opelousas, for appel-lee.
   Le BLANC, Judge.

On the original hearing in this case, the absence of an appeal bond was noted ex officio and the Court, on its own motion, dismissed the appeal. Defendants, appellants, have filed an application for rehearing in which it is alleged that a cash bond in the sum of $200 had been deposited with the Clerk of the district court in due time after the appeal had been taken and the appeal had been perfected, but through inadvertence the Clerk had failed to file his certificate to the effect that the cash bond had been furnished, in the transcript of appeal. A proper certificate, signed by the Clerk of the district court, is attached to the application for rehearing and appellants further ask that the appeal be now reinstated and that this Court proceed to render judgment in the case. Counsel for appellee has addressed a letter to the Clerk of this Court in which he acquiesces in the request that is made. In view of the premises there seems to be no reason why appellants’ request should not be granted and accordingly it is now ordered that the judgment herein rendered on October 8, 1941, dismissing the appeal, be and the same is hereby avoided, set aside and annulled and it is further ordered that the said appeal be now reinstated on the docket of this Court, the case to be proceeded with and determined on the merits.

The claim that is presented is one for damages in the sum of $150 for the killing of a mule.

In his petition plaintiff alleges that at about 5 o’clock in the afternoon of April 19, 1940, his mule was run into on a public gravelled road in the Parish of St. Landry by a Chevrolet pickup truck belonging to the defendants, F. Hollier & Son, and being driven by one of their employees who was at the time engaged in the course and scope of his employment. The place of the accident is stated as having been about one mile northwest of the village of Whiteville, where the plaintiff has his farm.

He avers that just before the accident one of his employees had driven several head of stock and cattle from out of his pasture which is located on the north side of the road and that as they passed through the gate they turned east and were walking near a ditch along the north side of the highway. He sets out further that the mule which was run into was the last to leave the pasture, that it followed the same course as the others and had already gone about fifty feet east on the road when it was struck by the truck which was trav-elling west, going at a fast and dangerous rate of speed said to have been approximately fifty miles per hour.

Plaintiff avers further that at no time did any of his stock or cattle cross the road which is about twenty-four feet wide at that point and that beyond their presence along the ditch on the north side, there was nothing to obstruct the truck driver’s view or impede his safe driving to the south side of the road. On information and belief he alleges that at no time did the driver attempt to change the course of his truck but continued to hold to the north side of the road despite the fact that the stock and cattle were on that side and at no time did he reduce its speed until he collided with the injured mule. Negligence is therefore charged against the driver, first, in driving at a dangerous rate of speed and in not reducing it on observing the presence of several head of cattle and stock on the side of the highway and, secondly, in not changing the course of the truck from the north to the south side of the road in order to try to avoid the accident.

The defendants while admitting that on the date alleged in plaintiff’s petition, their truck, which was being driven by their agent, John Miller, accidentally struck plaintiff’s mule, particularly deny the negligence that is charged against the driver of their truck and set out in their answer that he had already passed beyond all the stock and cattle that were walking leisurely along the north side of the road when all of a sudden this mule darted through the gate leading from plaintiff’s field on that same side and began to run across the highway; that the driver of the truck, confronted with the emergency which presented itself, attempted to swerve to his left to avoid an accident whereupon the mule stopped sharply and turned about-face and was struck on the right rear leg as he did so. Defendants aver further in their answer that plaintiff has a pasture back of his field adjoining the highway on the north in which he keeps his stock and cattle; that there is a gate in the fence which separates the two and another gate opening on the public road from the field and that the accident to his mule resulted from the negligence of his employee who opened both gates and stood inside of the field on the east side of the gate opening on the road instead of being on the west side of this gate, on the road, from where he could have directed the course of the mule instead of permitting it to bolt across the road into the path of the approaching truck.

The case went to trial on these issues in the district court and resulted in a judgment in favor of the plaintiff. The trial judge found that the truck driver was negligent in driving too fast under the conditions existing on the road at the time and in not keeping a proper lookout. He condemned the defendants to pay damages in the sum of $125 for the value of the mule which had to be killed after having had its leg broken.

In the truck with the driver, at the time of the accident, was Philip Hollier, one of the members of the defendant partnership. He was called as a witness by plaintiff for cross-examination and stated that outside of the several head of stock and cattle which were on the north side of the road and which they had just passed, there was nothing else to impede the progress of the truck which was travelling west at a rate of about 38 or 40 miles per hour prior to the accident and it had slowed down when the driver applied the brakes on seeing the mule just before it was struck. The only persons he saw on the road near that point were two men facing them coming from the west. The negro who was attending the mule was standing by the gate. He stated further that the mule came through the gate on to the highway and about-faced, by which, we understand, it turned sharply around in the road. At that moment the driver swerved the truck as much as he could to his left but the bumper nevertheless struck the mule on the right hind leg. Mr. Hollier estimates that they had already passed the other cattle and stock on the road from 60 to 75 yards.

The man who was attending the mule is a young negro named Finley Jefferson. in addition to being one of plaintiff’s tenants he also works for him as a yard boy. He testifies that he was driving the mules, horses and cows from plaintiff’s property on the north side of the road to a lot which adjoins his house which is situated on the south side. The distance on the road from one gate to the other going from the field west to the road on the east is from three to four acres. He had driven them all from the pasture to the field on the north side of the road with the exception of this one mule. The others were all travelling east on that side of the road. He says that he had already shut the gate and was standing on the road when the accident happened. The -mule had already gone about twenty steps east from the gate when it was struck. He was somewhat indefinite with regard to the point on the road itself where the mule was at the moment but states that it was near the ditch. The truck, he says, was going pretty fast, about fifty miles an hour, and never tried to dodge the mule. All the other cattle and stock were further up the road, about a half an acre east from where the mule was when it was struck. This witness says that there were two other men on the road besides the two Mr. Hollier saw who were coming from the east facing the truck. In explaining how the mule happened to be struck on its right hind leg he seems to be a bit confused and practically admits that it “wheeled around and was going back towards the left side” which we take to mean to the north or towards that side of the road from which it had come out of the gate.

Hardy Raney and Albert Oneal, both colored, and, like Jefferson, tenants of the plaintiff, claim to have seen the accident also. These are the two men Jefferson stated were on the road besides those Mr. Hollier saw. They both state that they were walking on the south side of the road about an acre west of the gate from out of which the mule came on to the road. Their testimony isn’t very impressive. They both agree on the fast speed of the truck but differ on other matters. One of these for instance is that regarding where Jefferson was at the time of the accident and another, the place where the other mules and cattle were on the road. Oneal, it is to be particularly noted, places them on the south side, contrary to the testimony of all the other witnesses. They are vague and evasive also in their answers to questions concerning the movements of the mule that was struck, especially as to its ever having attempted to cross the road.

Lloyd Savant, Jr., a white man, also a tenant of the plaintiff, testified that he saw the accident and gives quite a detailed account of how it happened. This witness, according to his own testimony, had assisted Finley Jefferson in driving the stodk and cattle from the back pasture to the extent that he opened the gate between the field and the pasture to let them go through. The field, he says, is about two acres distant from the road and he was about an acre further in the field proper. That is the point from which he viewed the accident and it is doubtful whether he could so plainly see all that he claims he did. He contradicts himself by stating at one time that the mule was struck some ten or fifteen steps west of the gate opening on the road, and at another by stating that it was struck as it “went out of the gate.” In another instance he states at one time that Finley Jefferson was leaning on the gate at the time the accident happened and at another that he was about fifteen steps inside the field. Again in another particular he is clearly in error as he states that the mule was struck on its left side on the back foot, whereas it does not seem to be disputed that it was struck on the right rear leg.

The foregoing constituted all the testimony submitted by the plaintiff pertaining to the actual happening of the accident itself.

The defendants produced a witness by the name of Pierre Vedrine who evidently was one of the two parties seen on the road by Mr. Hollier and who, with the other, was some seventy or seventy-five steps west of the gate through which the mule passed to come on the road. He was walking east and therefore had a good view of the scene of the accident. His testimony is to the effect that the mule came up to the gate but didn’t go through just at the moment. It backed some ten or fifteen steps in the field and started forward again, in a race. At that precise time the truck wasn’t hardly at any distance away and the collision took place right at the gate. Whilst on direct examination he seems to state that the mule was struck before it turned around, which would make his testimony on that point different from that of Mr. Hollier, it is observed that on cross-examination he states that “it turned around at the time it was struck” which would be in corroboration of Mr. Hollier’s statement. At any rate he is positive that the mule came running out of the gate in the path of the approaching truck and that the driver attempted to swerve to his left in an effort to avoid striking it.

The party who was walking with Ved-rine on the road is a young man whose name is Ortego. He was not called as a witness for the reason, as we take it from Vedrine’s testimony, that he is “tongue-tied” and speaks very indistinctly. In fact he states that he does not speak well enough to appear before Court.

John Miller, who was driving the truck, testifies that he wasn’t going faster than 35 miles an hour; that he had safely passed the drove of mules and cattle walking along the embankment of the ditch on the north side of the road and the first thing he noticed afterwards was this mule which evidently had come through the gate and jumped in front of the truck. As it was headed south or towards the left of the front of the truck, he first swerved to his right, but just at that moment it turned right around so he veered quickly to his left in an attempt to pass behind it but was unable to do so before the bumper of the truck struck it on the right hind leg.

From a careful consideration of all the testimony in the case relating to the actual occurrence of the accident, we are led to the conclusion that the plaintiff has not sustained the burden of proving the negligence charged by him to the driver of the truck upon which he seeks to recover damages from the defendants. We are of the opinion rather that the preponderance of the evidence tends to show that the accident was an unavoidable one caused by the sudden darting of the mule through the gate and its appearance on the road almost in the path of the approaching truck before the driver saw it and could take steps to avoid striking it. The speed of the truck was not excessive at the moment, as it had already safely passed the drove of cattle and stock which was leisurely winding its way eastward on the north side of the highway some two or three hundred feet beyond the gate through which it had emerged from the field. The truck driver might well have assumed that that was the entire drove and that there would not be another mule lagging that far behind.

Whilst both Mr. Hollier and Mr. Miller frankly admit that they were not looking in the field nor did they notice that the gate was open, they cannot very well be said to have been negligent in that respect as all that the law requires of the driver of a car is to keep a proper lookout on the road ahead of him which the driver in this instance was doing. If there was negligence on the part of anyone, it would seem, rather that the man charged with the duty of seeing these mules driven safely across the highway was not very attentive in letting this last mule stray from the drove and run through the gate on to the road in face of an approaching truck.

We are careful to keep in mind at all times the great weight which attaches to the findings of fact by the trial judge but in this case we find ourselves constrained to disagree with the conclusion reached by the learned district judge who decided the case in favor of the plaintiff and it becomes necessary for us to reverse the judgment appealed from.

It is for the reasons stated now ordered that the judgment appealed from be avoided, reversed and set aside, and it is further ordered that there be judgment in favor of the defendants and against the plaintiff dismissing the latter’s suit at his costs.


author: OTT, Judge.

text:
    BALL v. HOME OIL CO., Inc., et al.
    No. 2307.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.

      J. E. Pluckabay and C. E. Fernandez, both of Baton Rouge, for appellants.
    C. G. Spaht and Warren O. Watson, both of Baton Rouge, for appellee.
   OTT, Judge.

The suit is to recover the sum of $184.79 as damages to plaintiff’s car resulting from a collision with a truck owned by the Home Oil Company, Inc., and driven by its employee in the afternoon of January 25, 1940. The plaintiff’s car was being driven at the time by J. H. Blackburn to whom the car had been loaned by plaintiff. Blackburn was driving north on Nicholson Drive and the truck was going in the same direction. Nicholson Drive leads from the University to the City of Baton Rouge and has a double lane of traffic on both sides of the neutral ground in the center. The collision occurred just before reaching Magnolia Street which crosses the drive at right angles. The State Farm Mutual Automobile Insurance Company, the insurance carrier on the Oil Company truck, is also made a defendant in the case.

It is alleged by the plaintiff that the collision was caused by the negligence of the driver of the Oil Company truck in making a sudden left turn before reaching the intersection of Magnolia Street; in his failure to extend his hand or give any other signal indicating his intention to make a left turn, and in his failure to keep a proper lopk-out and have the truck under proper control. The defendants filed a joint answer admitting the collision, but they denied any negligence on the part of the truck driver. They allege that the accident was caused by the reckless driving of Blackburn who tried to pass the truck at an excessive rate of speed, and in the alternative, the defendants pleaded contributory negligence on the part of plaintiff in that she loaned her car to Blackburn knowing that he was an unsafe and reckless driver. Certain exceptions were filed that will be mentioned hereafter.

The trial court rendered judgment in favor of the plaintiff and against both defendants for the amount claimed as damage to the car. Both defendants have appealed.

Exceptions of no cause or right of action were filed in the trial court, and these exceptions are reurged on appeal and similar exceptions filed in this court. The ■exceptions are based on the ground that the testimony of plaintiff and Blackburn shows that the latter advanced to the plaintiff the money with which to pay the repair bill on the car caused by the accident, and therefore, the plaintiff has no interest in prosecuting this suit and no right to stand in judgment herein.

Both plaintiff and Blackburn were working at the University, and the evidence shows that the plaintiff loaned her car to Blackburn to enable him to go to the City of Baton Rouge on a mission of his own.

Blackburn did not himself pay the repair bill but advanced the money to the plaintiff, who herself paid the bill for the repairs on the car. The evidence leads us to believe that Blackburn advanced this money to plaintiff as an accommodation to her, but both thought that the Oil Company was liable for the damage, and there was no intention on the part of either that Blackburn would pay the plaintiff for the damage to her car and thereby become subrogated to her rights against the Oil Company. In fact, it is clear that they both expected the Oil Company to pay the damage, and it was because the plaintiff was not able to pay the repair bill, as she testified, that Blackburn felt morally obligated to advance her the money for this purpose until she was able to recover the amount from the Oil Company. Blackburn was frank enough to admit that if plaintiff could not recover the amount from the Oil Company, he did not expect her to refund him the money as he felt that she should not lose the amount as she had accommodated him by loaning him the car. While he felt no legal obligation to pay the bill, he felt morally obligated to do so.

It remains a fact that the car belonged -to the plaintiff, and the damage to it was recoverable by her. Unless Blackburn paid the damage with the intent to become fully subrogated to the rights of the plaintiff, the latter did not lose her interest in prosecuting the suit to recover the damage caused to the car by the alleged negligence of the Oil Company’s driver. Furthermore, the defendants cannot be prejudiced or affected in their rights by the act of accommodation on the part of Blackburn in advancing plaintiff the necessary funds with which to pay the bill. We therefore conclude that this exception is without merit.

There is not a great deal of difference in the testimony of the truck driver and Blackburn as to how the accident occurred. Accepting the testimony of either as correct, the responsibility for the as-cident must be placed on the truck driver. He was guilty of negligence in several respects.

The truck driver testified that he was traveling north on the east or right traffic lane until he got within about a half block of the intersection when he pulled over to his left so as to make the wheels of the truck straddle the black line dividing the two traffic lanes east of the neutral ground; that when he got to the corner of Magnolia Street, he cut and turned to his left and the car in the rear struck the left rear of his truck just as he made the turn at the rounded corner of the neutral ground which stops a few feet below the south margin of Magnolia Street. He admits that he did not give any signal with his hand, or otherwise, indicating his intention to turn to the left, nor did he see the car approaching from the rear although he claims that he looked in his rear view mirror before making the turn.

Blackburn testified that the truck was traveling ahead of him in the right traffic lane, and he was following in the left traffic lane; that when about halfway the block, he began to get close to the truck, and when the front end of his car was about even with the rear of the truck, and while he was 80 or 100 feet from the intersection, the truck began to pull to its left in front of his car; that he blew his horn frantically, applied his brakes and pulled as close as possible to his left toward the neutral ground, but the truck continued to crowd him into the curb and the right front of his car struck the left rear end of the truck some 6 feet south of the rounded end of the neutral ground at the intersection. He was going not over SO miles per hour before he began applying his brakes to keep from striking the truck turning in front of him.

The evidence shows that the car driven by Blackburn skidded for about 80 feet, beginning slightly to the east or right of the center line dividing the two traffic lanes. This indicates that he applied his brakes about that distance from the point of impact and pulled his car to the left in a diagonal direction until he got to the curb of the neutral ground a few feet' south of the end of the neutral ground where the collision occurred. In other words, for some 80 or 100 feet the truck pulled to its left directly in front of traffic coming on the left traffic lane and the driver gave no signal whatever of his intention to turn left before he reached the intersection and began to turn.

The speed of Blackburn was not excessive under the circumstances. He was driving on a wide, double-lane boulevard and in a locality where there were very few residences. He had a right to assume that the driver of the truck would not turn to his left and attempt to enter an intersecting street leading west without giving a proper signal of his intention to turn, and without observing traffic approaching from the rear. The violation of the rules of the road by the truck driver in the respects mentioned was the proximate cause of the accident, and the trial court correctly held the defendants liable for the damages to plaintiff's car.

For. the reasons assigned, the judgment appealed from is hereby affirmed at the cost of appellants in both courts.