text:
    MAHER v. NEW ORLEANS LINEN SUPPLY CO., Inc., et al.
    No. 19248.
    Court of Appeal of Louisiana. Orleans.
    June 13, 1949.
    James G. Schillin, New Orleans, for plaintiff and appellee.
    Rosen, Kammer, Wolff, Hopkins & Burke, New Orleans, for defendants and appellants.
   JANVIER, Judge.

Shortly.after twelve o’clock noon on December 13th, 1946, plaintiff, Cornelius G. Maher, while crossing Poydras Street in a downtown direction on the river side of Baronne Street, was struck near the middle of the street by an automobile truck of National Linen Service Corporation, which had been driven up Baronne Street and had turned to its left towards the Mississippi River just as plaintiff was crossing. Maher was rather seriously injured, and, alleging that he himself had been without fault and that the accident had been caused by negligence of the operator of the said truck, he brought this suit against National Linen Service Corporation and its liability insurance carrier, Maryland Casualty Company, claiming damages in the sum of $25,-320.00.

Defendants admitted the occurrence of the accident but denied that there had been any negligence on the part of the operator of the truck and averred that the sole cause of the accident had been the carelessness of Maher himself, who was crossing Poy-dras Street and could have crossed in safety but for the fact that after “he had cleared the path of the truck which was in the act of turning * * * ” he, plaintiff, saw another truck “coming out Poydras Street in the direction of the lake * * and fearing that this other truck would not stop “jumped backwards directly into the path of the truck which was then in the act of turning * *

In the alternative that it appear that there was any negligence on the part of the driver of the truck, the defendants specially pleaded contributory negligence on the part of Maher, and averred that the proximate cause was that contributory negligence as above alleged.

There was judgment in favor of plaintiff and against the defendants in solido in the sum of $5,910.00. Both defendants have appealed. Plaintiff has answered the appeal praying that the amount awarded be increased by $2500.00.

The facts are in dispute only in one particular and that is whether or not when Maher was struck, he was walking forward across the street or had stopped and stepped backward unexpectedly and just before the truck reached him. The district judge found that he did not step backward and gave written reasons for his conclusion.

There were only three witnesses who testified as to the facts surrounding the accident, though there is much medical evidence as to the extent of plaintiff’s injuries. The three witnesses who testified concerning the accident were plaintiff himself, Thomas P. Molinary, Sr., who was the driver of the truck, and Curtis N. Beck-man, a pedestrian who was walking down Baronne Street a short distance behind plaintiff.

As we have said, the accident occurred in the intersection of Baronne and Poy-dras Streets. Baronne Street is a one-way street.on which traffic is permitted to operate only in an uptown direction. Poy-dras Street is a very wide thoroughfare on which traffic proceeds in both directions. There is a traffic signal light at that corner and this light was operating at the time. As plaintiff reached the corner, the light facing him was green and he stepped into Poydras Street on his way across. The truck was going up Baronne Street and consequently the light which faced it was green also. Plaintiff reached a point somewhere near the center of Poydras Street when the truck, which had turned to its left into Poydras Street, struck him. The truck had what is known as a panelled body and had a capacity of 3500 pounds. It was not fully loaded, but there was a large quantity of soiled linen on its top. We point this out because the driver said that due to this load on top he was careful to make the turn slowly for, had he made a fast turn, this top-heavy load might have turned the truck over.

Maher, the plaintiff, says that he did not see the truck; that his attention was focused on the green light and that suddenly the truck which, until then he had not noticed, turned to its left and ran him down. He says that he did not step backwards, but was on his way across when he was hit. Molinary, the driver of the truck, says that he saw Maher and that he knew that the truck could pass to his rear, and that it would have done so had Maher not suddenly stopped his forward motion and stepped backwards just before the front of the truck reached him. Molinary says that Maher did this because of another truck which was going out Poydras Street in the other direction, and that Maher seemed to fear that this other truck would not stop and might strike him. Maher says that he saw no such other truck.

The third witness, Beckman, knew very little about the occurrence because he, too, had concentrated his attention on the light on Poydras Street which he, like Maher, was about to cross. When Beckman was asked: “ * * * did he step backwards before he was struck, or did he step sideways before he was struck?” he answered “I don’t know.” However, in another cross-interrogatory, he was asked “Was Mr. Maher still walking when he was struck, or had he stopped in the middle of Poydras Street ? ” and he answered “Mr. Maher was moving.”

Counsel for plaintiff points out several provisions of the City Traffic Ordinance, No. 13702, C.C.S., as amended, and he says that because of those provisions plaintiff, under the circumstances, was entitled to the right of way. The particular provisions on which he relies read as follows:

Article IV, paragraph 3, entitled Pedestrians’ Rights and Duties at Controlled Intersections, provides:

“(a) At intersections where traffic is controlled by traffic control signals or by police officers, operators of vehicles shall yield the right of way to pedestrians crossing or those who have started to cross the roadway on the green or ‘Go’ or on a ‘Walk’ signal and in all other cases pedestrians shall yield the right-of-way to vehicles lawfully proceeding directly ahead on a green or ‘Go’ signal. At all points where vehicles may be permitted to turn on Red signals pedestrians shall have right-of-way over vehicles turning on Red signals unless otherwise directed by a police officer. It shall be unlawful for pedestrians to leave the sidewalks at intersections controlled by police officers or traffic control signals until the signal is given allowing them to proceed.
“(b) A pedestrian who faces a ‘Go’ signal and starts across the street must be permitted to continue his course even though the signal may change and exhibit a ‘Go’ signal to vehicles on the cross street.
“(•c) When both a pedestrian and a vehicle face a ‘Go’ signal and the pedestrian starts across the roadway in the direction permitted, and the vehicle proceeds to turn to either the right or left, overtaking such pedestrian, the vehicle shall yield to the pedestrian.”

Article VI, paragraph 3 (Turning at Intersections), sub-paragraph (f), Turning Left on “Go” Signal: “ The operator of a vehicle or street car intending to turn to the left at an intersection where traffic is controlled by traffic signals or by a police officer, and where a left turn is permitted shall proceed to make such left turn with proper care to avoid accident, and only upon the ‘Go’ signal, unless otherwise directed by a police officer or by special sign installed at that point.”

Counsel also points to paragraph 2 of Article IV, sub-paragraph (a), which provides that vehicles shall yield the right of way to pedestrians who may have entered the street at a proper pedestrian path, provided the pedestrian has started across before the vehicle enters the intersection.

Counsel especially lays great stress on sub-paragraph (c) of paragraph 3 of Article IV as quoted above, and he says that that provision applies to the exact situation which is presented here.

Counsel for defendants, on the other hand, assert that that provision has no application here, and they particularly call attention to the word “overtaking” as it appears in that provision, and they say that it indicates that that paragraph applies only when the pedestrian and the vehicle — before the latter made the turn — were proceeding in the same direction. Counsel say that a vehicle cannot “overtake” a pedestrian unless the vehicle and the pedestrian are proceeding in the same direction.

In Mahne v. Steele, La.App., 32 So.2d 761, we found facts practically identical with those presented here. The only difference between the two sets of facts is that in the Mahne case the vehicle turned to its right, whereas in the case at bar the truck turned to its left. In both however, the vehicle approached the intersection from the direction opposite that from which the pedestrian had approached it. That difference does not create a distinction because the provision of the ordinance which is now under consideration applies if the vehicle turns “either to the right or left.” In the Mahne case we applied that provision of the ordinance which is now under discussion to those facts. It is true that in that case there was not presented the contention which is before us, i. e., that that provision . of the ordinance applies only when the vehicle and the pedestrian approach the intersection from the same direction, and since it was not presented, we did not discuss it nor did we spontaneously consider it.

While we are of the opinion that, in all probability, the framers of the ordinance intended that provision to apply whether the vehicle and the pedestrian approach the intersection from the same direction or not, and while we believe that the purpose would more clearly have been accomplished by the use of such a word as “approaching” instead of the word “overtaking”, we find it unnecessary to reach a conclusion because we feel that whatever the ordinance may mean and whether or not there is any provision which does apply perfectly to this situation, there is a duty in the operator of a vehicle which is making such a turn to exercise extreme care towards pedestrians who may be already in the roadway, especially if those pedestrians have entered the roadway on a favorable traffic signal.

We think that the reasoning which is found in Rottman v. Beverly, 183 La. 947, 165 So. 153, Jackson v. Cook, 189 La. 860, 181 So. 195, and Jones v. American Mutual Liability Ins. Co., La.App., 189 So. 169, is applicable, and that where a pedestrian is already in the roadway and no longer has the ability to save himself, there is liability if the operator of a vehicle, who could avoid the pedestrian, fails to do so. We set forth again the "following quotations from those decisions as we did in Mahne v. Steele, supra.

“ * * * 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.” Jackson v. Cook, supra [189 La. 860, 181 So. 197].

“ * * * 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. * * * ” Rottman v. Beverly, supra [183 La. 947, 165 So. 156],

“We readily recognize that it is the duty of a motorist to be constantly vigilant and observe the presence of anything which is at or near the path of his travel.” Jones v. American Mutual Liability Ins. Co., supra [189 So. 172],

We, therefore, reiterate that we do not see that the question of whether plaintiff did or did not have the right of way is at issue here. The sole question which is presented is one of fact. Did plaintiff step backwards into the path of the car? If he did do so, when he had already cleared the path by a sufficient distance for the truck to pass him safely, then he was at fault and should not recover. If he did not do so and was struck because the driver carelessly ran into him, or carelessly attempted to pass too close to him, then plaintiff should recover.

We think that it is most significant that immediately after the accident the driver of the truck made a statement to the police in which he did not say that Maher had stepped backwards into the path of the truck and in which, so far as the record shows, he did not say that he had seen any other truck approaching on Poydras Street from the other direction.

If Maher stepped backwards into the path of the truck, we have no doubt at all that the first statement which Molinary made would have referred to that fact.

If there was another truck approaching from the other direction and because of which Maher would have stepped backwards as Molinary claims, that other truck would have been facing a red light, and it must be assumed that it would have been reducing its speed preparatory to stopping. It must be presumed too that Maher would have known that a red light was facing the other truck since a green light faced him, and would have assumed that the other truck would stop and would not strike him.

In view of these facts, but particularly because of the finding of the district judge, we conclude that the truck turned to its left and struck plaintiff while he was walking forward, and that he did not step backwards into its path. On that fact we base our conclusion that the defendants are liable.

Maher was first taken to Charity Hospital in New Orleans, but when it was found that he was a war veteran, he was, in a few hours, removed to the Veterans Administration Hospital on the shores of Lake Pontchartrain. There it was found that, in addition to bruises and contusions, he had sustained a fracture of the left “lateral tibial plateau.” The hospital record shows that that fracture was “slightly com-minuted,” and that there was “suggestive evidence of at least four pieces.” The report also shows that Maher had sustained “an incomplete vertical fracture involving the distal articular surface of the radius” of the right wrist.

We are told that the tibia is the large bone in the lower leg. The fracture of the tibia was set and there was applied internal metallic fixation, which was not removed until May 7, 1947, almost five months after the occurrence of the accident.

Maher remained in the hospital until June 19, 1947, or for a total period of more than six months. He then rvas required to take physiotherapy treatments about three times a week until the month of November. At the time of the trial below, which was in January, 1949, he had recovered almost the entire free use of the left leg, and apparently he sustained no permanent injury whatever as a result of the fracture of the wrist.

According to the report of Dr. E. H. Maurer, who testified as a witness for plaintiff, plaintiff now has a “painful, weak knee which will prevent him from engaging in any occupation in the heavy industries.”

According to the report of the late Dr. Frank Brostrom, which was made on July 24, 1947, while plaintiff had recovered almost the entire use of his knee, it was “not as freely movable as * * * the normal right knee.” At that time Dr. Brostrom expressed the opinion that the disability was high, but that Maher would ultimately “get a good functioning knee with little residual disability.”

Dr. George D. B. Berkett, who was employed by the defendants, made a report on March 15, 1948, and at that time he found that Maher’s disability “is due to his inability to flex the left knee beyond 80 degrees.” He found that Maher could walk without a limp and could carry on “his usual daily tasks without impairment of efficiency.” He further stated that there was a distinct probability that “the range of motion in the knee will increase with time.” At that time he estimated Maher’s disability as six per cent.

It thus appears that the plaintiff remained in the hospital about six months and that for about five months in addition he was. under treatment.

For some months prior to the accident he had not been employed, but apparently he had earned, when employed prior to that time, $36.00 per week with a 17% bonus.

The district judge allowed plaintiff $5000.00 for physical injuries and $910.00 for loss of earnings. He stated that he based this award .for loss of earnings on the fact that plaintiff could probably have earned $35.00 per week had he been employed, and on the further fact that he did not feel that plaintiff should be allowed recovery for loss of earnings for the entire time during which he was disabled because of the fact that he had not been employed for some time prior to the accident. The judge stated: “* * * Since plaintiff was not employed at the time of the accident, nor for some months prior thereto, it would be too speculative to require defendants to indemnify him for the full twelve (12) months unemployment during disability. Accordingly, I think plaintiff is entitled only to twenty-six (26) weeks salary at $35.00 per week, or $910.00. ‡ *»

We agree that it would be unfair to the defendants to allow plaintiff to recover for the full loss of earnings. Nor would it be fair to plaintiff to refuse to allow any recovery for loss of earnings solely because of the fact that at the time of the accident he was unemployed. We know of no fairer way to arrive at a proper amount to be allowed on this item than to estimate, as did the district judge, that he probably would have been employed for about one-half of that time and to hold that he is entitled to $910.00 for the deprivation of his ability to earn an income while he was disabled.

When , we come to consider the amount allowed for the physical injuries, we reach the conclusion that that amount allowed below ($5000.00) is substantially higher than what has been allowed for similar injuries in other cases. The physical injuries sustained by the plaintiff in Mahne v. Steele were quite similar to those sustained here, and there the plaintiff was awarded only $1250.00 for those injuries. However, we call attention to the fact that when the defendant in that case appealed there was no answer by plaintiff to the appeal and consequently the amount allowed below could not be increased by us.

In Gremillion v. American Creosote Works, La.App., 14 So.2d 72, the plaintiff sustained an injury somewhat similar to that suffered by plaintiff here. He was disabled for a period of ten months, after which he was able to return to light work. He was awarded $3500.00.

In Hero v. Toye Bros. Yellow Cab Co., La.App., 19 So.2d 887, 891, we allowed $3000.00 where the plaintiff sustained a fracture of the lower part of the left leg which involved both bones of the leg. In that case we said: “A review of the jurisprudence reveals that amounts ranging from $1,500 (see Thomas v. Shippers’ Compress & Warehouse Co., La.App., 158 So. 859, and Lervick v. White Top Cabs, La.App., 10 So.2d 67) to $2,000 and $2,500 (see Selby v. Manning, La.App., 145 So. 555); Breaux v. Roussell, La.App., 151 So. 267 and Cato v. City of New Orleans, La.App., 4 So.2d 450) have been allowed by this court for leg fractures where there have been no serious complications and no permanent injuries have resulted. The award in this case is only slightly above the maximum amounts heretofore allowed for similar injuries, and considering the decreased purchasing power of the dollar, we believe that the judgment is proper and that it represents fair compensation under present conditions.”

It is contended by counsel for defendants that, because of the fact that Maher had always been engaged in clerical work and had not done heavy labor, the injury sustained by him should not entitle him to so great a recovery as would be allowed should a similar injury be sustained by a laborer. It may be that there is some logic in this contention.

In view of all of the facts, particularly the fact that in all probability plaintiff has recovered or will recover practically the full use of his leg, we reach the conclusion that $5,000.00 is somewhat excessive and accordingly, have decided to reduce that amount to $4,000.00

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by the reduction of the amount thereof to $4,910.00 and, as thus amended, it be affirmed, plaintiff-appellee to pay costs of appeal, defendants to pay all other costs.

Amended and affirmed.


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    SUTTON v. CUPPAY.
    No. 19204.
    Court of Appeal of Louisiana. Orleans.
    June 13, 1949.
    Rehearing Denied Oct. 4, 1949.

      Harold J. Winling and Paul J. Thriffiley, New Orleans, for plaintiff and appellant.
    Peter G. Charbonnet, Jr., New Orleans, for defendant and appellee.
   JANVIER, Judge.

This suit grows out of a disagreement between the vendor and the vendee of real estate concerning the question of which of them is entitled to the proceeds of an insurance payment, which was made for storm damage which was sustained by the building between the time of the execution of the contract to sell and the passing of the notarial transfer of title.

The contract was entered into on September 5, 1947. Under it James R. Sutton agreed to buy and Henry H. Cuppay, Sr., agreed to sell, for $4200 cash, a small piece of improved real estate on Bertrand Street in New Orleans. The contract provided that the act of sale would be passed on or before October IS, 1947. As a matter of fact, the transfer of title was not executed until November 29, 1947, but the delay is of no importance in this litigation.

Between the time at which the contract was entered into and the time at which the act of sale was passed, the terrific hurricane of September, 1947, occurred and the building sustained damage. The owner, Cuppay, had previously secured a policy of storm insurance. When the parties met in the office of the notary public and the act of sale was presented for execution, it contained no reference to the storm damage, nor did it contain any stipulation concerning the repair of the damage, nor the distribution of the proceeds of the insurance policy should any collection be made. The parties discussed the question of the damage and then executed the act of sale.

On August 2, 1948, Sutton brought this suit in the First City Court of New Orleans, alleging that, at the time of the signing of the act of sale, it had been verbally agreed between himself and Cuppay that the act would be executed just as it had already been prepared and that Cup-pay should proceed with his claim against the insurance company for storm damage and would turn over to Sutton the proceeds of any settlement which he might effect with the insurance company. Sutton alleged also that Cuppay subsequently collected $271 from the insurance company, which represented payment for the storm damage and that he, Cuppay, had failed and refused to turn the said sum over to him.

To this petition Cuppay filed an exception of no right or cause of action based on the contention that since there had been executed a written agreement of sale, no verbal evidence of any prior agreement not referred to in, or made part of the act of sale, could be admitted and that, therefore, the petition, since it was based entirely on such a verbal agreement, showed no cause of action.

At the same time at which the exception was filed, Cuppay, as required by the rules of the First City Court of New Orleans, filed answer in which he admitted the sale of the property and that prior to its sale it had sustained damage, and that he had collected from his insurance company the sum of $271. He denied that there had been any agreement at the time of the signing of the act of sale under which he had agreed to turn over the insurance collection to Sutton.

Though there is nothing in the record to show it, apparently the exception was overruled. There was judgment dismissing plaintiff’s suit. He has appealed.

In the oral argument before us and in his brief, counsel for defendant strenuously urges us to maintain the exception and to dismiss the suit on the exception. He directs our attention to Article 2236 of the Civil Code, which reads as follows:

“The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.”

Counsel says that because of this acticle, no evidence of any verbal contract, in any way changing or contradicting the terms of the written act should have been admitted.

We think it evident that counsel intended to call attention to Article 2276 of the Civil Code, which reads as follows:

“Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

Article 2236 is not concerned with the question of whether or not there may be admitted testimony of any verbal agreement, the sole purpose of that article being to provide that an authentic act constitutes full proof of what is contained in it, whereas Article 2276 prohibits the introduction of parol evidence “against or beyond what is contained in the acts * * *.”

We think it well settled that, as between the parties themselves, the true consideration for the making of a written contract may be shown orally. In Cleveland v. Westmoreland, 191 La. 863, 186 So. 593, 596, the Supreme Court discussed this question and said:

“According to article 1900 of the Civil Code, if the cause or consideration stated in a contract is not the true cause or con- • sideration for which the contract was irjiade, the contract is yet valid ‘if the party (against whom a want of consideration is pleaded) can show the -existence of a true and sufficient consideration.’ And it has been decided that the true cause or consideration for the making of a contract may be shown by parol evidence if the cause or consideration stated in the contract was not the true cause or consideration. Jackson v. Miller, 32 La.Ann. 432; Levert, Burguieres & Co. v. Hebert, 51 La.Ann. 222, 25 So. 118; Guaranty Bank & Trust Co. v. Hunter, 173 La. 497, 137 So. 904.”

In IV Louisiana Law Review, at page 388, there is a discussion of this question, and in it the author shows that in spite of Article 2276 of the Civil Code, because of Article 1900 of the Code, “the courts have generally admitted oral testimony to show actual consideration * * And on page 389, the author of the article quotes from Delabigarre v. Second Municipality of New Orleans, 3 La.Ann. 230, to show that the real or actual consideration for the making of a written contract — which in that case was a contract of sale — “may be shown by (any) legal evidence, oral or written, and * * * evidence adduced for that purpose never can be considered as contradicting the act.”

See, also, Taylor v. Taylor, 208 La. 1053, 24 So.2d 74.

When Sutton and Cuppay met in the office of the notary public, it became apparent that because of the damage which had been sustained Sutton could either' retire from the contract, or could insist that the damage be repaired. We see no reason why they could not agree that in consideration for Sutton accepting the property in its then condition, he would receive such insurance payment as might be made. When this was agreed to, the agreement became binding on the parties. Parol evidence of it thus was admissible under the authorities cited. Necessarily then it follows that the exception is not well founded.

When we come to consider the evidence, we find it overwhelmingly in favor of plaintiff, Sutton. It leaves no doubt at all that when the parties met to execute the act of sale, the question of the storm damage, which had been sustained, was discussed, and it leaves no doubt at all that there was an agreement concerning this-storm damage. Cuppay would have us believe that when he and Sutton met in the office of the notary public, he told Sutton that there was “damage to the roof and the side of the house”, and that he asked him “if he wanted to take the insurance policy over * * He said that Sutton said, “No.” And that he then asked Sutton, “What do you want me to do ?” and that Sutton told him to make the repairs and that he did so.

When we read all of this testimony of Cuppay, we are certain that what he meant was that he offered to have Sutton take over the storm damage insurance policy and claim, and that Sutton refused to do so and authorized him, Cuppay, to make the repairs. Sutton says that when they met, he asked Cuppay, “What about the damage?” And that Cuppay told him that the insurance company had offered a settlement which was not satisfactory and that he was negotiating with the insurers further, and Sutton says that the notary public suggested that they settle matter, and that they did so.

Mr. Walter F. Weidig, the real estate agent, says that the agreement was that Cuppay would proceed with his claim against the insurance company and would pay over to Sutton the amount received. In fact Mr. Weidig arranged with a contractor, Fred A. Evans, to have him make an estimate of the storm damage to be used in connection with the claim of Cuppay against the insurance company, and the evidence shows conclusively that this estimate was used and that based on it, the insurance company paid Cuppay $271. This estimate as prepared showed a total of $285.50, but the insurance company deducted $14.50 for depreciation and paid the balance.

It is very evident that little, if any of the damage which was sustained by the property, as a result of the storm, was repaired by Cuppay. He says that his son repaired some of the damage and that he paid his son $50, and that the remaining damage was repaired by Oswald Frey, and that he paid Frey $90. That is all that Cuppay claims to have expended in making repairs necessitated by damage, for which he admits he collected $271. The tenants, who were in the property, however, stated that practically no repairs were made to the property, and that certainly no repairs justifying the expenditure of as much as $141 claimed by Cuppay were made.

Cuppay admits that he made no repairs whatever to the interior of the house, and he says that the reason no repairs were made was that no damage had been sustained by the interior, and yet in his settlement with the insurance company, he received at least $80 because of damage to the interior.

J. D. Kavanaugh, who seems to have been employed by Sutton, says that at the request of Sutton he called on Cuppay at least six times, and that Cuppay repeatedly told him that as soon as he received payment from the insurance company he would turn the money over to Sutton.

We have no doubt whatever that there is no truth at all in Cuppay’s testimony that when the act of sale was passed, the agreement which he reached with Sutton provided that he, Cuppay, would make the repairs and would be permitted to retain the amount which he might receive from the insurance company.

Since the agreement, proof of which we find to be admissible, showed that the amount of the collection was to be turned over to Sutton, it is obvious that the judgment against Sutton must be reversed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and reversed, and there is now judgment in favor of plaintiff, James R. Sutton, and against Henry H. Cuppay, Sr., in the sum of $271, with legal interest from judicial demand, and for all costs.

Reversed.


author: REGAN, Judge.

text:
    REGENBOGEN v. SOUTHERN SHIPWRECKING CORPORATION et al.
    No. 19181.
    Court of Appeal of Louisiana. Orleans.
    June 13, 1949.
    Herman & Herman, New Orleans, for appellant.
    Kelleher, Hurley & Kohlmeyer, New Orleans, for appellees.
   REGAN, Judge.

The plaintiff, Lewis Regenbogen, is engaged in business in New Orleans in buying, selling, repairing and upholstering furniture. On April 24th, 1947, he sustained physical injuries on a vessel which was lying in a slip of the Industrial Canal and which belonged to the Southern Shipwrecking Corporation, and which was being demolished by it. Regenbogen had gone to the plant of the Shipwrecking corporation, at its invitation, to inspect furniture on that and other vessels in order that he might make a bid for the purchase of the said furniture. The vessel, the Steamship Hanna)'-, was moored alongside another vessel which, in turn, was moored to the dock and, as Regenbogen attempted to pass from one vessel to the other, on a gangplank which had been laid across the adjacent rails of the two vessels, the end of the gangplank which extended over the rail of The Hannay tilted downward and he fell to the deck and sustained the injuries referred to. Alleging negligence on the part of the said shipwrecking corporation, he brought this -suit against that corporation and its insurance carrier, the Indemnity Insurance Company of North America, praying for solidary judgment against them in the sum of $1,025.00.

The two defendants answered denying that there was any negligence on the part of the shipwrecking corporation and, in the alternative, pleading that the plaintiff’s contributory negligence had been the cause of the accident, and that he had assumed the risk of walking upon the said gangplank, knowing that more than ordinary caution should have been exercised.

There was judgment in favor of defendants and plaintiff has appealed from the judgment dismissing his suit.

The record shows that on April 24th, 1947, the plaintiff and his son, Isaac Regenbogen, accepted the invitation to inspect and ultimately to bid on the furniture contained in the vessels referred to, which were in the process of being demolished by the shipwrecking corporation, and were at its plant adjacent to the Industrial Canal. The inspection party consisted of plaintiff, his son, Isaac, and Ralph Ginsberg, an employee of the shipwrecking corporation. As we have said, there were two vessels moored -alongside each other along the wharf, the Steamship Madang being next to the wharf and the Steamship Hannay being tied to The Madang on the other side. There were other vessels, but the record shows clearly that these two were moored only two abreast; The Ma-dang on the inside and The Hannay on the outside, as we have already said.

In the rail of The Madang, which was adjacent to the wharf, an opening had been cut so that persons boarding that vessel from the wharf could step through that opening to the deck, but- on the other side, which was next to The Hannay, no opening had been cut in either rail. These rails were forty-two inches high and extending from one vessel to the other, across these two rails, was a gangplank constructed of two boards about eight or ten feet long, twelve inches in width and two inches thick. These two boards were secured to each other by four cross members. In other words, they were cleated together by wooden cleats which were underneath. Though the rails of the two vessels were the same heighth, the top of the rail of The Madang was several inches, possibly as much as a foot, higher in elevation than the rail of The Hannay, because there was being removed from The Madang oil and water and that vessel rose as it was lightened. As a result of this the gangplank inclined 'slightly from The Madang to The Hannay, being lower on the end which extended over the rail of The Han-nay. Apparently it extended over that rail a distance of three or four feet and over the rail of The Madang a somewhat similar distance. On the deck of The Madang there were temporary steps which were movable and which were placed in order to afford access to the gangplank, which was some forty-two inches above the deck itself. On the deck of The Hannay there was no similar co-ntrivence, but there was a box which was approximately twenty inches in -heighth and which obviously was used as a step in ascending and descending to and from the gangplank. Because of the movement of the two vessels, because of the lightening of one of the vessels, and because of the tides and the changes in the elevation of the water in the Industrial Canal, the gangplank could not be fixed firmly on either end, but over the higher end, that is, the end that extended over the rail of The Madang, there was a large rope which to some extent held the gangplank in position.

The inspection party was proceeding from The Madang to The Hannay. Mr. Ginsberg, the employee of the shipwrecking corporation, crossed first and stepped from the gangplank to the box and then to the deck of the vessel. He was followed by plaintiff, who fell from the gangplank to the deck of The Hannay and sustained injuries on which the suit is based. Plaintiff’s son, Isaac Regenbogen, was following his father. It appears from the record that the plaintiff’s fa-11 resulted from the fact that he did not step to the box as- Ginsberg had done, but walked to the end of the gangplank, which extended about four feet beyond the rail of The Hannay. As he reached the end of the plank, his weight, which was two hundred and thirty-five pounds, tipped it towards that end and he fell to the deck.

Plaintiff’s son testified that Ginsberg, who was conducting the inspection party, had cautioned them that all of the vessels which they were visiting were in process of demolition. Plaintiff denies this. There is a dispute as to whether Ginsberg, who had completely crossed and was descending from the gangplank on the other end, turned and offered assistance to plaintiff. Ginsberg says that he did and that plaintiff replied that he did not need any assistance as he was thoroughly familiar with ships, having been on them many times. Plaintiff denies this. Ginsberg was a brother-in-law of plaintiff’s son and defendants point to this as indicating that his testimony, which is detrimental to plaintiff’s case, must be founded on truth. Counsel for plaintiff, on the other hand, say that it indicates that there was some reason for Ginsberg’s antagonism to his brother-in-law’s father and that Ginsberg’s antagonistic testimony is due to that relationship.

Plaintiff contends that he was hurt because of the “trap” which resulted from the way in which the gangplank was laid across the two rails with a rope on the higher end, which would indicate that the gangplank was firmly tied down on that end.

Defendants maintain that it was necessary that that rope be not too firmly tied in order to permit the gangplank to rise and fall and to change its position with the changing positions of the vessels.

We reach the conclusion that it would not have been possible to fix the gangplank so firmly that it could not move, and we also reach the conclusion that it should have been obvious to any person that it would be dangerous to walk to the end of the gangplank as Regenbogen attempted to do. We reach these conclusions largely because the district judge seems to have been of the same opinion. In situations of this kind it is obvious that it is not possible to maintain gangplanks and Walkways as safe as would be required under more normal circumstances.

The vessels were being demolished; the whole picture presented was that of a scene of wreckage and any person going on those ■vessels should have exercised extreme care.

Mr Regenbogen, Jr., is very positive that before they went upon the ships “Mr. Ginsberg cautioned that all of these boats were in the process of being demolished”.

The record shows plainly that the box, which was on the deck of The Hannay and which made it easy to descend from the gangplank to the deck of that vessel, was plainly obvious and that Regenbogen should have seen it.

Plaintiff said that he had not had much experience on ships, but that his knowledge concerning ships was “as much as the average man knows”. He also said that he well knew that this ship “was -scrap” and that he knew that where a boat was tied to a dock it could be fixed more firmly than where there is danger resulting from the fact that one vessel is alongside another.

In view of all of these facts we are of the opinion that the fall of plaintiff was due to his own negligence in not descending to the box and in walking to the end of the gangplank and in causing it to tip downward on that end.

The duty which an owner of property owes to an invitee is set forth in Corpus juris, Volume 45, Verbo Negligence, in section 237, as follows: “The owner, occupant, or person in charge of premises owes to invitee thereon the duty of keeping the premises in a reasonably safe and suitable condition, so that those whom he has invited to enter upon or use his property shall not be unnecessarily or unreasonably exposed to danger, and is therefore liable for injuries received by invitees as a result of a dangerous condition of the premises. As, however, the owner or occupant is not an insurer of the safety of invitees, he is not required, at his peril, to keep the premises absolutely safe, but the measure of his duty in this respect is reasonable or ordinary care, and in determining whether such care has been exercised it is proper to consider the uses and purposes for which the property in question is primarily intended.”

In section 244 also is found the following: “ * * * The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should h-ave been observed in the exercise of reasonable care.”

The thought which we have in mind in reaching the conclusion which we have reached is well expressed in Moffet v. Koch, 106 La. 371, 31 So. 40, 41. Although that case involved a claim by an employee, whereas this one does not, we think that the principle, which is involved, is identical. There, with reference to the obligation of any normal mature person to see and ap-precíate obvious dangers, the Supreme Court said: “Where an employe is not placed by the employer in a position of undisclosed danger, but is a mature man, doing the ordinary work which he was engaged to do, and whose risks are obvious to anyone, he assumes the risks of the employment, and no negligence can be imputed to the employer for an accident to him therefrom.”

See, also, Munson v. Mistretta, La.App., 29 So.2d 402; Kohn v. McNulta, 147 U.S. 238, 13 S.Ct. 298, 37 L.Ed. 150; Antoine v. Consolidated-Vultee Aircraft Corporation, La.App., 33 So.2d 435.

Consequently the judgment appealed from is affirmed at the cost of plaintiff.

Affirmed.


author: TALIAFERRO, Judge.

text:
    WOOD v. ANDERS et al.
    No. 7328.
    Court of Appeal of Louisiana. Second Circuit.
    April 29, 1949.
    Rehearing Denied June 6, 1949.
    W. T. Holloway, of Jonesboro, for appellant.
    J. Norman Coon, of Monroe, for appellee.
   TALIAFERRO, Judge.

This action in damages grew out of a collision between plaintiff’s Plymouth coupe automobile and the Ford truck of Henry Anders, on a narrow bridge on the Monroe-Jonesboro highway in Ouachita Parish, in the daytime. The coupe was traveling southerly and was being driven by the plaintiff. The truck was going northerly and was being driven by J. L. Anders, minor son of Henry Anders. The bridge is thirty-nine (39') feet long, and sixteen (16) feet wide between curbs. Plaintiff was seriously injured from the impact and his car so badly damaged that no effort' was made to repair it. The truck was also damaged to some extent, but its occupants escaped injury.

Plaintiff seeks to recover from Henry Anders and his said minor son, an amount for physical injuries to himself and for the damage done his automobile. The father is sought to be held liable for the alleged tort of his son on two grounds, to-wit:

1. That the son was at the time of accident acting as the agent of his father, and was on a mission for him, and

2. That the son was an unemancipated minor, then living with his father.

For a cause of action, plaintiff alleged that he approached and entered upon the bridge at a slow rate of speed and on his proper side thereof; that when his car had almost cleared the southerly end of the bridge its left front end was run into by said truck; that as it approached the bridge, the truck was moving at a speed in excess of fifty miles per hour and that when about thirty feet from the bridge its brakes were suddenly applied which caused the rear end thereof to slide over and beyond the center of the highway; that the “said J. L. Anders then began to lose control of said truck”; that as the rear end of the truck began to slide back to its proper side of the highway, the front portion thereof went to its left and crossed the middle line which caused it to collide with the car.

The following acts of negligence are accredited to the truck’s driver and are assigned as the causes of the accident, to-wit:

Excessive speed, reckless driving, not keeping a proper lookout, losing control, allowing the truck to cross the middle line, and tardy application of the brakes.

Defendants excepted to the petition as disclosing neither a cause nor a right of action against the minor, J. L. Anders. They deny that the accident happened from any act of negligence on the part of J. L. An-ders, and affirmatively aver that to the negligence and carelessness of plaintiff it should be ascribed. They specifically charge to him negligence in the following respects, to-wit:

Driving upon the bridge after it had been preempted by the truck; not staying on his side of the bridge; not stopping the coupe after seeing, or by the exerciisng of ordinary care he should have seen, the hazardous situation that confronted him; and driving without adequate brakes. Defendant, Henry Anders, reconvened and sued for the damage caused the truck; and, in the alternative, pleads the negligence of plaintiff in the respects named, in bar of recovery by him.

Plaintiff prevailed below and from a judgment in his favor, the defendants appealed.

The exceptions interposed on behalf of J. L. Anders, based upon the fact of his minority when the accident occurred, are not well founded. A minor not judicially emancipated or who has not attained that status by marriage, may be held liable in damages caused by his offenses or quasi offenses. Civil Code Atricles 1785, 1874, and 2227.

Article No. 2318 of the Civil Code provides that fathers are responsible for the damages done by their minor or un-emancipated children residing with them. In the present case it is contended that because J. L. Anders was working for a salary for one other than his father, and provided himself with clothing and incidentals from the salary, although living with his father and dependent upon him for subsistence, the mentioned article is not applicable. The position is not tenable. The only prerequisite to the father’s liability is that the minor reside with him.

The facts of the case negative the allegation that at the time of the accident J. L. Anders was on a mission as agent for his father. It was a holiday. He borrowed his father’s truck, picked up his two friends for a ride, and all were on a pleasure jaunt. The fact that he agreed to bring his father a small quantity of ice from a factory in West Monroe did not, for. the trip, create the relationship of principal and agent.

There were four persons who at close range witnessed the collision, towit: plaintiff, J. L. Anders, another young man and Miss Sue Nalley, who were guests in the truck. Miss Nalley testified for the defendants. The other young man did not testify. Several other persons, distant from two hundred to three hundred yards from the locus of the accident, appeared as witnesses for one side or the other, but on account of remoteness from the scene, their testimony, in our opinion, contributes v]ery little toward a solution of the factual issue tendered-

Plaintiff’s testimony follows closely the allegations of the petition with respect to how the accident happened, a paraphrase of which we have above given.

J. L. Anders and Miss Nalley testified that both vehicles came to a dead stop several feet before reaching the bridge; that having observed plaintiff’s action in ■this respect, Anders assumed that he accorded to him the right to first enter upon the bridge, and laboring under this belief he started forward and had reached about the center of the bridge when plaintiff began to advance upon it; that the collision was caused by plaintiff allowing the left front portion of the car to cross over the middle line of the bridge.

The testimony on the subject is somewhat conflicting, but we have reached the conclusion that plaintiff drove upon the bridge first and had neared the opposite end when the accident occurred. Both vehicles, after the impact, rested upon the bridge. Plaintiff’s car, being the lighter, was knocked against the concrete rail.

The accident was investigated by a traffic officer who arrived at the scene some twenty minutes after it happened. The truck had been backed off of the bridge to allow traffic to pass, but plaintiff’s car was still thereon. This officer made close examination of the locus, including deposits of dirt from the vehicles, due to the impact. His testimony, in view of the otherwise conflicting testimony, is of considerable importance. He testified in part as follows:

“Q. From your investigation, in your opinion, where were the left hand sides of the two vehicles with reference to the black line going down the center? A. Well, that is a narrow bridge. It is very narrow, and it looked to me like that both vehicles were trying to stay on their side but the bridge was so narrow ’til it kind of forced them to come in, you know, towards center a little bit, and both left front wheels caught the impact.
“Q. Well now, which car in your opinion, was on which side of the black line? A. Well, from the way it looked, it looked like both of them was just about hugging the black line, trying you know to keep from scraping the sides of the bridge.
“Q. From what you saw there, then in your opinion it looked like that both left front wheels of the vehicles were near the centerline? A. Yes, sir.”

One witness for plaintiff, who was some two hundred yards away, testified:

“Q. Well, which vehicle entered the bridge first? A. Well, it looked to me like they both entered about the same time. It looked to me like one was just as much to blame as the other one was.”

Another witness some three hundred yards away, who saw the collision, testified as follows:

“It looked like the truck pulled on up partly on the bridge and all of a sudden the car then shot on the bridge and they met about the center after the car hit the curb on the right side and went into the truck on the left. It throwed (sic) him over into the truck.”

The description given by plaintiff of the movements of the truck immediately prior to the collision does not sound reasonable. We realize that when brakes are out of adjustment and are suddenly applied, a vehicle going at a rapid speed, especially one of light weight, will execute odd movements, but the testimony shows the brakes of the truck to have been in perfect condition.

We are inclined to believe that neither vehicle came to a dead stop prior to going upon the bridge. Plaintiff says they did not. Each vehicle had the right to drive upon the bridge when and as it did. The situation, however, was such as to require the utmost care of the drivers. Any lack of care by either or both meant trouble for one or both. Each vehicle was about six feet wide. Each had a lane of travel of eight feet, and when a reasonable margin between each vehicle and the concrete railing is allowed, it becomes obvious that each had a very narrow space along the center line on which the left wheels could travel.

The record in this case is not lengthy. We have given to the conflicting testimony a most diligent study in the hope of being able to our own satisfaction and to do justice in the case, to determine by and through whose fault the accident occurred. Our efforts have not been productive of satisfactory results. The fundamental rule that a plaintiff must make out his case by a preponderance of the evidence has to be invoked and it determines the question of liability tendered in the case. We think plaintiff has failed to sustain the burden of proof. This applies equally to the reconven-tional demand.

Therefore, for the reasons herein assigned, the judgment from which appealed is reversed, and this suit is dismissed at plaintiff’s cost. The reconventional demand is rejected and also dismissed.


text:
    WHITMAN et al. v. CENTRAL SURETY & INSURANCE CORPORATION et al.
    No. 7324.
    Court of Appeal of Louisiana. Second Circuit.
    April 29, 1949.
    Rehearing Denied June 6, 1949.
    Roberts & Hammett, of Shreveport, for appellants.
    J. Norman Coon, of Monroe, for appel-lees.
   TALIAFERRO, Judge.

This appeal tenders but one question and that is of law. A correct decision of the question requires interpretation of Section 6 of Act No. 20 of 1914, as amended by Act No. 85 of 1926, Dart’s Statutes, Section 4396, in the light of the undisputed facts. This section, insofar as 'necessary hereto, reads as follows: “That where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or his dependent any compensation under this act which he would have been liable to pay if that employee had been immediately employed by him”.

Melvin Hall, Jr., was under contract with the Department of Highways of the State of Louisiana to do certain construction work on sections of highways in Jackson Parish, that required the hauling and spreading of pit-run gravel. The department had a lease on what is referred to as the Carrell pit in Lincoln Parish, several miles from the locus of the construction and Hall was required to procure the needed gravel from said pit. The gravel was loaded by his own dragline into trucks having a five-yard capacity, which were then driven to the locus where needed and there unloaded. The trucks made several loads per day. Hall exercised no control nor direction whatever over the owners of the trucks nor over those who drove same, beyond requiring that the gravel be delivered at designated places. They hauled when they wished and were paid by the yard.

Hall, himself-, did not have the necessary number of trucks to complete the delivery of the gravel as quickly as desired and he contracted with owners of other trucks sufficient to run the number to 75 or 80. Among those so engaged to haul gravel was Rubin A. Whitman, who owned one truck. Hall authorized him to haul gravel to the limit of his capacity and agreed to pay him $1.20 per yard therefor. Rubin A. Whitman employed his younger brother, Shelby T. Whitman, to operate his truck and for his services agreed to pay him 25 per cent of gross receipts for gravel delivered. On May 5, 1948, while performing the duties of his employment, Shelby T. Whitman was fatally injured in a freak accident that involved the truck he was driving.

This suit was instituted by Mrs. Charlene Kinsey Whitman, widow of the deceased, in her own right and for the use and benefit of Charlotte Ann Whitman, age five, sole issue of her marriage to Shelby T. Whitman, to recover workmen’s compensation at the rate of 65 per cent of his weekly wage, not exceeding $20 per week, for 300 weeks, plus $300 for funeral expenses.

Plaintiff’s position is that Rubin A. Whitman was a sub-contractor of Plall and that the deceased, being an employee of the subcontractor, was protected under the above quoted provision of the Workmen’s Compensation Law, and was included within the coverage of compensation insurance carried by Hall. Plall, Rubin A. Whitman and the insurer, Central Surety and Insurance Corporation, were made defendants. Whitman did not answer the suit nor otherwise make appearance therein. Hall and the insurer take the position that the undisputed facts repel the contention of the plaintiff. They aver that these facts reveal that Rubin A. Whitman’s relation to Hall wás that of an independent contractor and that the deceased was his employee and therefore, sustained no contractual relationship whatever to Hall; that neither of the Whitmans was carried on Hall’s pay roll and that the insurance coverage was limited in its protection to Hall’s employees.

The trial judge, in lengthy written reasons for judgment, sustained plaintiff’s position and awarded judgment accordingly against Hall and his insurer in solido. The case was not put at issue as to Rubin A. Whitman. The court fixed the weekly wage of the deceased at $42.19 and applied the statutory percentage of 46J4 thereto in order to determine the weekly amount due plaintiff- for herself and daughter.

In this court plaintiff filed a motion wherein she admits that on November 11, 1948, she married T. L. Lasyone and that under the law, from that date she thereby forfeited the right to demand and receive any part of compensation payments awarded her under the judgment. She suggests that such payments be reduced to that which her daughter is entitled under the compensation law, or 32^ per cent of the weekly wage of the deceased, as fixed by the lower court, such percentage being $13,-71. She also averred that she had qualified as natural tutrix of her minor daughter in the district court of Ouachita Parish.

In this court the appellants do not seriously argue against the correctness of the lower court’s judgment, but simply submit the case, so far as they are concerned, on the defense raised in their joint answers. They do, however, challenge the court’s award of $300 on account of funeral expenses. They contend that under the law then in force, $250 was the limit of such expenses for which the employer was chargeable, which is true. See Act No. 120 of 1944, § 8, subd. 5, page 339.

The legal proposition involved herein is not new. It has been many times passed upon by the courts of this state and invariably the ruling has been contrary to the position taken by the appellants herein. It is immaterial under the facts of the present case and said section 6, whether the relationship of Rubin A. Whitman to Hall was that of sub-contractor or independent contractor. In either case Hall is responsible under the quoted section of the Workmen’s Compensation Law to the widow and heir of the deceased employee for compensation. It is clear that Hall was the principal in the engagement with Rubin A. Whitman, who was the contractor thereunder, and that the deceased was the employee of the contractor. The existence of these relationships meets fully the requirements of said section 6 as a condition precedent to fixing liability against the principal for the compensation sought herein.

The Supreme Court in Seabury v. Arkansas Natural Gas Corporation, 171 La. 199, 130 So. 1, 2, referring to the comprehensive character of said section 6, said: “The language of the act seems to us to be clear and unambiguous and was intended to give the workman a direct action against the principal engaged in the business for which the workman was employed although such workman was employed by an independent or sub-contractor of such principal.”

This interpretation has served as a guide to courts in cases subsequently arising under the referred to section and has uniformly been followed by them. Not one case has been cited to us that holds otherwise. Other cases on the subject are: Owers v. Louisiana Long Leaf Lumber Company, La.App., 14 So.2d 275; Taylor v. Willett et al., La.App., 14 So.2d 298; Lindsey v. White et al., La.App., 22 So.2d 689; Hollingsworth v. Crossett Lumber Company, 184 La. 6, 165 So. 311; Washington v. Sewerage and Water Board of New Orleans, La.App., 180 So. 199; Fletcher v. Texas Company et al., 14 La.App. 514, 124 So. 636; Clementine v. Ritchie, 1 La.App. 296, Id., 155 La. 263, 99 So. 213; Lutz v. Long-Bell Lumber Sales Corporation, La.App., 154 So. 645; Weaver v. Mutual Building & Homestead Association, La.App., 195 So. 384.

It is not contended by appellants, nor could it well be, that the insurer’s liability to plaintiff is not co-extensive with that of Hall. Obviously, it is.

For the reasons herein assigned, the judgment from which appealed is amended •in the following respects, to-wit:

1. Payment of weekly compensation thereunder to plaintiff, individually, and for the use and benefit of the minor, Charlotte Ann Whitman, shall terminate as of November 11, 1948.

2. There is now judgment in favor of said minor awarding her compensation at the weekly rate of $13.71, beginning November 18, 1948, and continuing for 274 weeks, unless terminated in some legal manner prior to the expiration of that period. Such compensation payments shall be made to the mother of said minor in her capacity as natural tutrix.

3. The award for funeral expenses is reduced to $250.

And, except as amended in the mentioned respects, the judgment is affirmed with costs.


author: HARDY, Judge.

text:
    HONEYCUTT v. NATIONAL AUTOMOBILE & CASUALTY INS. CO.
    No. 7335.
    Court of Appeal of Louisiana. Second Circuit.
    April 29, 1949.
    Rehearing Denied June 6, 1949.
    Parker & Parker, of Jena, for appellant.
    Hudson, Potts, Bernstein & Davenport, of Monroe, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff, individually and on behalf of his minor son, William R. Honeycutt, seeks to recover compensation for the alleged total disability of his said son resulting from injuries sustained while performing the duties of his employment. The defendant is the employer’s compensation insurance carrier.

The allegations of plaintiff’s petition set forth that his minor son, 17 years of age, was injured on or about July 15, 1946, while employed in the sawmill of one W. C. Steen, Jr., his employer, and further, that the employment of his son was with the plaintiff’s ■ full knowledge and consent.

An exception of no right and cause of action was interposed on behalf of defendant, predicated upon the proposition that minors engaged in an employment prohibited by law are expressly excluded from the benefits of the workmen’s compensation statute. Act No. 20 of 1914, as amended. The exception was referred to the merits and plaintiff filed a plea of estoppel based on the point that the employer and his insurer could not set up the violation of a penal statute in the effort to escape liability for compensation.

Defendant’s exception was sustained and plaintiff’s suit dismissed. On appeal to this Court a motion to dismiss was sustained by reason of the fact that the record contained no signed judgment and the case was remanded to the District Court, La.App., 37 So.2d 560. A motion for a new trial by plaintiff was overruled, formal judgment dismissing plaintiff’s suit was signed, and plaintiff has again appealed.

The issue presented by this case may be briefly stated as follows:

1. Is there a cause or right of action under the Workmen’s Compensation Law of Louisiana in the interest and on behalf of a 17 year old minor injured in the course of the performance of his duties in a hazardous employment?

2. Can the doctrine of estoppel be urged against an employer who has violated a prohibitory law by employing a minor in hazardous work?

Paragraph 6 of Section 3 of Act of 20 of 1914 as amended, by Act No. 85 of 1926, § 1, Section 4393, Dart’s Statutes, reads as follows:

“Any employee of the age of eighteen and upwards engaged in any trade, business or occupation specified in paragraph 2 of section 1 (§ 4391), or engaged in any trade, business or occupation that may be determined to be hazardous under the operation of paragraph 3 of section 1 (§ 4391), shall himself exercise the right of election or termination or waiver authorized by this section. Such right of election or termination or waiver shall be exercised on behalf of any employee under the age of eighteen by either his father, mother or tutor, or if neither of these can readily be gotten to act, then by the court. Provided, that this act shall not apply to employees of less than the minimum age prescribed by law for the employment of minors in the trades, businesses or occupations specified in paragraph 2 of section 1 (§ 4391), or that may be determined to be hazardous under the operation of paragraph 3 of section 1 4391).” (Emphasis by the Court).

Reference to Section 4391 discloses the fact that the operation of sawmills is specifically designated as a hazardous trade, business or occupation.

Section 1 of Act 210 of 1944 amending Act 301 of 1908, § 8, provides as follows:

“No minor under 18 years of age (except those indentured as apprentices in accordance with the provisions of Act 364 of 1938 of the Legislature of Louisiana) shall be employed, permitted, or suffered to work:

* * * * * *
“(7). In or about sawmills * *

This matter involves purely and simply the interpretation of the law above set forth.

The identical questions herein presented were considered and discussed at length in the opinion of this Court in Kennedy v. Johnson Lumber Co., La.App., 33 So.2d 558. The Kennedy case was considered on rehearing because of the importance of the issues involved, and after such reconsideration our original judgment, which affirmed the judgment of the District Court sustaining exceptions of no cause and no right of action, was reinstated and made final.

It seems clear to us, for the reasons which were discussed and elaborated upon in the Kennedy case that the unambiguous provisions of the above-quoted section of the compensation statute specifically except a minor, below the minimum age prescribed by law who is employed in the trades, businesses or occupations enumerated, from the benefits of the Act. It necessarily follows in this case that a 17-year old youth employed in sawmill work is denied the right to compensation since his employment in such an occupation is prohibited by law.

We likewise adhere to our pronouncement in the Kennedy case that the doctrine of estoppel cannot be invoked on behalf of an injured minor for the purpose of clothing with validity any outright violation of prohibitory law.

Reference to the briefs of counsel and amici curiae in the Kennedy case disclose the citation of the same authorities and presentation of the same arguments that have been urged by diligent counsel for plaintiff in the instant matter.

The only new proposition presented in this case is found in the argument of counsel for plaintiff that the Legislature by the passage of Act No. 179 of 1948 has “clarified” the real intent of its earlier statutory pronouncements.

The Act of 1948, amendatory of the workmen’s compensation statute, included an amendment of paragraph 6 of Section 3 of Act 20 of 1914, as amended, Section 4393, Dart’s Statutes. This amendment consisted of the deletion and elimination of that portion of paragraph 6 which we emphasized in our above quotation. In our opinion in the Kennedy case we called attention to the fact that the remedy for the injustice in the effect of the laws which then existed, with respect to the denial of compensation to minors engaged in hazardous employment in violation of the prohibítion of law, was a matter which addressed itself to the Legislature and not to the Courts of this State.

We are happy to note that the legislature apparently acted upon this suggestion and corrected the workmen’s compensation statute accordingly. However, since this amendment did not become effective until some two years after the accident in which the minor son of plaintiff in this case was injured, unfortunately it can have no bearing upon his rights.

We regret that we are unable to perceive any force in the argument of plaintiff’s counsel that the amendment of 1948 should be construed in support of his contentions. On the contrary, we can only construe the amendment as effecting a very necessary ■change in the clear and unambiguous provisions of law theretofore existing which unintentionally, but nonetheless certainly, prevented a recovery by minor employees.

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


author: KENNON, Judge.

text:
    BROOKS v. G. E. JOHNSON LUMBER CO. et al.
    No. 7332.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    Redmond & Harkey, Monroe, for appellant.
    Theus, Grisham, Davis & Leigh, Monroe, for appellees.
   KENNON, Judge.

Alleging that on November 2, 1946, he suffered an injury resulting in total and permanent disability, plaintiff filed suit on January 14, 1948 against his employer and its compensation insurance carrier for maximum benefits under the compensation law.

The District Court, without the introduction of testimony, sustained the plea of prescription by one of the parties defendant and the case is before us on plaintiff’s appeal from that judgment.

Since the suit was filed more than fourteen months after the occurrence of plaintiff’s injury, the action has prescribed as provided by Section 31 of Act No. 20 of 1914, as amended by Act No. 29 of 1934, unless the petition contains allegations — ■ accepted as true for the purpose of passing upon the exception — sufficient to show interruption of the prescriptive period.

Paragraph three of the petition contains the allegation that the defendant company knew of plaintiff’s disabling injury and “that they immediately continued him on the payroll by giving him lighter work to do, paying him all the while his full weekly wages that they had been paying him prior to the accident.” Also bearing on the question of interruption of prescription vel non are paragraphs four and seven, quoted below:

“4. Your petitioner further shows that he did this work working in different parts of the defendant’s business until the 29th day of September, 1947 when this injury became so painful that he could not rest at night and was in pain all during the day and it incapacitated him for doing this lighter work for which the defendant had been paying him; that on account of this injury and the resulting disability therefrom he was forced to leave their employ on that date, that is, September 29, 1947 because he was not able to do the work and since then he has been totally disabled to do work of any kind.”
“7. Your petitioner further shows that the defendant was aware of this accident for the reason that he kept petitioner on the payroll, paid his wages and gave him lighter work to do and now since he has left his employment defendant has refused to and fails to pay his compensation which is due under the law notwithstanding de* mand has been made upon said defendant.”

Plaintiff’s contention before this Court is that the payment of wages by the employer, with knowledge of plaintiff’s disabling injury, for doing lighter work, constituted an interruption of prescription under the Louisiana law as interpreted in the cases of Carpenter v. E. I. Dupont De Nemours & Co., La.App., 194 So. 99; Arnold v. Solvay Process Co., 207 La. 8, 20 So.2d 407 and Walker v. Mansfield Hardwood Lumber Co., La.App., 35 So.2d 610.

In the Carpenter case, the Court of Appeal for the First Circuit reversed a judgment of the District Court sustaining a plea of prescription. The Carpenter suit was filed twenty-one months after the occurrence of the accident and the petition recited that, when the employee returned to work after the accident, he was given-relatively light work and induced by his employer to temporarily forego his claim for compensation by the employer’s repeated assurance “ * * * that he (Carpenter) would be taken care of and given work as long as construction lasted and that ultimately, if he did not get well, he would be taken care of to his full satisfaction.” [194 So. 100.] In holding that the conduct in payment of wages by Carpenter’s employer was sufficient to constitute interruption of prescription, the Court said:

“ * * * and it is our confirmed opinion that when, with knowledge of the employee’s disabling injury, the employer continues to pay him his usual wages, which-is 35% more than the amount of compensation he would have to pay, for performing lighter services than he was doing before,, there results a situation in which the provisions of the statute regarding the bar of peremption have been fully satisfied and as. long as those payments continue prescription does not run.”

The Louisiana Supreme Court in the Arnold case, supra [207 La. 8, 20 So.2d 409], used the following language in discussing the Carpenter case:

“There the employer, with knowledge of the disability, continued to pay the plaintiff his usual wages, but the payments were-for performing lighter services than he was doing before. That factual situation is indicative of a recognition by the parties concerned that the employee had a just claim for disability benefits and that the wages so paid him were in lieu or in the-nature of compensation; hence, it was correctly held that the payments interrupted' the foreclosing of his right to sue. The chief reason assigned by the Court of Appeal for its holding, however, was that the employer had lulled the employee into a false sense of security, thereby inducing him to withhold the prosecution of his demand.” (Emphasis by Justice Hamiter).

It is noteworthy that the language of the-Supreme Court in the Arnold case is that. when payments of wages are made to an injured employee, “for performing lighter services than he was doing before (the accident),” that factual situation is indicative of the recognition that the employee had a just claim for disability and that the wages so paid were in lieu of or in the nature of compensation and constitute payments made under the act sufficient for the interruption of prescription.

In the Walker case, supra, this Court ■cited the Carpenter case as authority for the fact that the continued payment to an injured employee of wages for performing lighter services than those done before the injury, operates as an interruption of prescription. The petition set forth that Mabel Walker’s employer took her off the heavy duties which she was performing at the time of her injury and, with full knowledge of her crippled condition, kept her employed at lighter duties. However, this Court found that the evidence did not sustain that contention and, while recognizing the principle of the Carpenter case, found against the plaintiff on the facts.

It is possible that the Court may find •against the present plaintiff on the basis of facts adduced on trial of the merits. Nevertheless, we are of the opinion that he is entitled to the opportunity of presenting these facts to the Court. The allegations •of the petition are sufficient to permit introduction of evidence to show facts and circumstances surrounding the re-employment, which in the language of the Supreme Court in the Arnold case, supra, “is indicative of a recognition by the parties concerned that the employee had a just claim for disability benefits and that the wages so paid him were in lieu or in the nature of compensation * *

The Courts of Louisiana have adopted the rule in all cases that a petition which fairly apprises the party defendant of a legal claim made by plaintiff will not be thrown out for technical reasons or for lack of setting forth complete details. The compensation act requires that the Courts be liberal in the construction of pleadings. We conclude that the allegations of plaintiff’s petition are such as to permit the introduction of testimony which may or may not establish that plaintiff was given lighter work, at full wages, after the accident and that the circumstances surrounding this return to work were such that these payments were in lieu of or in the nar-ture of compensation and therefore had the legal effect of interrupting the prescription provided in the compensation act.

The judgment appealed from is annulled and judgment is now rendered overruling the plea of prescription. The case is remanded to the Fourth Judicial District Court for further proceedings in accordance with law and consistent with the views herein expressed. Costs of appeal to be borne by defendant; other costs to await the final outcome of the litigation.

TALIAFERRO and HARDY, JJ., sitting.


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    ELKINS et al. v. TRAVELERS INDEMNITY CO.
    No. 7303.
    Court of Appeal of Louisiana. Second Circuit.
    April 29, 1949.
    Rehearing Denied June 6, 1949.

      W.. T. Holloway, of Jonesboro, for appellants.
    Theus, Grisham, Davis & Leigh, of Monroe, for appellee.
   HARDY, Judge.

This suit arises from a collision between a public carrier bus operating between Jonesboro and Hodge in Jackson Parish, and an automobile, as the result of which two women passengers on the bus sustained serious and painful injuries. In this suit the plaintiffs are husband and wife, the latter seeking damages resulting from personal injuries and the former praying for reimbursement of expenses, loss of time necessitated by his wife’s injuries, etc. The defendant is the liability insurance carrier of the bus line operator. This suit was consolidated for trial with Mrs. Myrtle Pondes Grissom v. Travelers Insurance Company, La.App., 41 So.2d 126. There was judgment in the consolidated cases in favor of defendant rejecting the plaintiffs’ demands, from which the respective plaintiffs in the two suits have appealed.

The accident occurred between 6:30 and 7:00 o’clock on the morning of July 6, 1946, on the public highway between Jonesboro and Hodge. At the time the 18 passenger Ford bus belonging to C. M. Carter, who owns and operates a common carrier bus line between Jonesboro and Hodge, was engaged in traversing a narrow bridge approximately 96 feet in length and 18 feet 4 inches in width. The bus was proceeding in a northerly direction, and, traveling south on the same highway, an Oldsmobile automobile was approaching the bridge from the north. The Oldsmobile was followed by a Ford automobile at a distance of several car lengths, variously estimated at 20 to 30 feet. After the bus had entered upon and proceeded some distance across the bridge the driver of the Oldsmobile decreased the speed of his vehicle and brought it practically to a stop at a point a few feet from the north end of the bridge. The Ford automobile crashed into the rear of the Oldsmobile, throwing it violently into the left side of the bus just as the latter vehicle was clearing the bridge, the front end of the bus actually being some 5 or 6 feet past the end of the bridge at the time of the impact. Mrs. Elkins and Mrs. Gris-som were thrown from their seats in the bus, sustaining the injuries for which redress is sought in these suits.

There appears to be no question as-to the law applicable in this case and, con-cededly, the only question for determination is whether the driver of the bus was guilty of any negligence which would entitle plaintiffs to recovery on the basis of the application of the accepted general principle that public carriers must be held to the highest degree of care and even the slightest negligence entitles passengers to recover.

In an excellent written opinion the learned Judge of the District Court analyzed the facts involved and reached the conclusion that the proximate cause of the accident was the negligence of the driver of the Ford car and that the bus driver did not contribute in any degree to the occurrence of the accident.

The specifications of negligence on the part of the driver of the bus, which are set up by plaintiffs, are briefly as follows:

1. Driving a heavily loaded vehicle transporting a large number of passengers at a speed of not less than 50 miles per hour over a narrow bridge.

2. In not keeping the vehicle under control under dangerous conditions where the danger could and should have been observed by a proper lookout.

3. In driving on the wrong side of the highway.

4. In failing to stop or slow down before attempting to negotiate the crossing of a narrow bridge in the face of the vehicle approaching from the opposite direction.

5. In failing to make an attempt to avoid the accident.

6. In not acting in a reasonably prudent manner while operating a loaded passenger bus of more than average width under dangerous conditions.

The District Judge found, which finding we believe is abundantly supported by the record, that the bus was being operated at a speed of approximately 35 miles per hour, which was not excessive under the circumstances, which finding disposes of the first specification of negligence.

Nor does the record substantiate the contention next made. The bus was under control and the driver did see the approaching vehicles.

There is considerable conflict as to whether the bus was partially across the center line of the highway over the bridge. Considering the testimony in the light most favorable to plaintiff, if any part of the bus extended past the center line the degree was extremely slight and is not shown to have been a factor contributing to the accident.

We know of no rule or interpretation of law which would require the driver of a bus to reduce his speed below 35 or 40 miles an hour or to stop before crossing a bridge, which is ample in width for the passage of a vehicle approaching from the opposite direction, particularly when, under the facts of this case, the bus had negotiated a considerable distance in its passage over the bridge before the other vehicle approached the far end thereof.

The charges that the driver of the bus made no attempt to avoid the accident depends upon the conclusion that the happening of an accident was evident, which consideration is not sustained by the weight of the evidence.

Finally, there appears to be no support of the contention that the bus driver failed to act in a reasonably prudent manner.

There was nothing excessive with respect to the speed of any of the vehicles involved. Both the bus and the Oldsmobile were under complete control of their respective-drivers. The impact of the collision disrupted the braking system of the bus, which accordingly was brought to a stop after the collision some two or three hundred feet down the highway.

The preponderance of the evidence in this case indicates that the Oldsmobile was not brought to a sudden or abrupt stop but that its speed was gradually decreased and it was almost at a complete standstill within some five or ten feet from the entrance of the bridge when it was struck by the following vehicle. It seems evident to us that the driver of the latter car was guilty of extreme negligence either in not keeping a proper lookout or in driving so closely behind the Oldsmobile that he could not bring his car under control, or both. In any event, as was found by the District Judge, we think that the negligence of the driver of the Ford automobile was the sole and only cause of the accident.

The only remaining points worthy of comment deal with the charges that the driver of the bus allowed his vehicle to partially encroach upon the wrong1 side of the highway and that he failed to perceive the imminence of an emergency. The attempt was made to substantiate the first charge by testimony to the effect that the driver of the bus attempted to avoid a rough spot in the bridge pavement, located at or about the center line thereof, by pulling over to his left. Even conceding that the driver took such action it appears to be well established by the testimony that the hole which the driver sought to avoid is located toward the south end of the bridge, past which he had proceeded some little distance at the time of the accident. Unquestionably, there was sufficient space to have permitted him to bring his vehicle back to the proper side of the highway. The testimony of the driver is very frank on the point and he states that his bus may have extended a little over the center line but his further testimony is very logical on the point that the driver of the Oldsmobile had slowed down in order to permit the bus to clear the end of the bridge, a maneuver which had been almost completed. The bus driver further testified that if the driver of the Oldsmobile had continued to approach and enter upon the bridge he could and would have given additional room for passage.

It is our view that under the circumstances the bus driver was completely justified in assuming that the driver of the Oldsmobile intended to permit him to clear the bridge and, in truth, this fact is definitely established by the testimony of the Oldsmobile driver. Under these circumstances, certainly the driver of the bus cannot be convicted of negligence in this particular.

It would be unreasonable to hold that there was anything open to the view of the bus driver which would or should have warned him that the Ford automobile would crash into the Oldsmobile and cause an accident. There was nothing unusual in the view that was presented of two cars approaching on the highway, nor was there any fact or circumstance which presaged the occurrence of an accident. There were no physical conditions at the time which had any bearing upon the question of negligence. The weather was clear, visibility good, the road straight for a considerable distance on either side of the bridge, and the surface dry. Just what the driver of the bus could or should have done under the circumstances is not indicated. Even if he had been completely on the right side of the bridge, to the greatest possible degree, this maneuver could not have prevented the Ford car crashing into the automobile which was already being brought to a stop.

We are quite in accord with the findings of fact and the conclusions reached by the District Judge. Plaintiff has failed to establish any fault, blame or negligence, even in the slightest degree, attributable to the driver of the bus. As was observed by the District Judge in his opinion, the testimony of a number of the witnesses is convincing on the point that there was nothing the driver could have done to prevent the accident.

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


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    Mrs. Myrtle Pondes GRISSOM, Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, Defendant-Appellee.
    No. 7304.
    Court of Appeal of Louisiana. Second Circuit.
    April 29, 1949.
    Rehearing Denied June 6, 1949.
    Ws T. Holloway, of Jonesboro, and William Bell, of Mangham, for appellant.
    Theus, Grisham, Davis & Leigh, of Monroe, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff seeks to recover from the liability insurance carrier of a bus line operator for injuries sustained in an accident while a paying passenger on a bus. This suit was consolidated for trial and for submission on appeal with that of Elkins v. Travelers Indemnity Company, La.App., 41 So.2d 123.

The facts involved are set forth in our opinion this day rendered in the above styled case, and for the reasons set forth therein the judgment appealed from in this case is affirmed at appellant’s cost.


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    BONNETTE v. PONTHIEUX.
    No. 7322.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    Philo Coco, Marksville, for appellant.
    Earl Edwards, Marksville, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff, claiming to be the holder in due course of a check in the sum of $525.00, seeks to recover said amount from defendant as the maker of said instrument.

On or about January 15, 1948, defendant and A. B. Bonnette, plaintiff’s brother, were negotiating with respect to the sale by Bonnette to defendant of a second-hand school bus. Defendant contends that he reached an agreement with Bonnette on the sale price of $525.00, and that he agreed to consummate the purchase upon making a “trial run” of the vehicle, to New Orleans and return, in order to determine whether or not the vehicle would serve his purpose. A. B. Bonnette strenuously denies any such conditional agreement, vigorously contending that the sale was completed and that he made no guarantee or warranty of any sort as to the condition of the bus. However this may be, it is established that defendant, Ponthieux, on or about the said date of January IS, 1948, made and delivered to A. B. Bonnette a check in the sum' of $525.00 drawn on Planters Trust & Savings Bank of Opel-ousas. It is further established by the great preponderance of the evidence that defendant acquainted A. B. Bonnette at the time' of the giving of the check with the fact that he, Ponthieux, had no account with the Planters Bank at Opelousas and that, consequently, the check was .of no value. Ponthieux explains this rather unorthodox procedure on the ground that A. B. Bonnette insisted o,n having something in the nature of a promise to pay the agreed purchase price, as evidence of their agreement, and, further, that in the dim light of his office the check was taken at random from a number of blank checks which he kept available for the use of his customers in the territory in which he was engaged in selling' candy. This rather bizarre explanation is nonetheless corroborated as to its salient features by defendant’s wife and an employee, who also substantiate plaintiff’s testimony as to the conditional nature of his agreement to purchase the bus.

In any event, a few days after the stated transaction, defendant and an employee set forth for New Orleans in the ex-school bus. Their journey was fraught with inconvenience, trouble and difficulty. Tires blew out, the radiater hose and water pump gave way,- necessitating replacement on arrival in New Orleans, and the motor consumed quantities of oil in the extent of some 17 quarts on the round trip, according to their testimony. Immediately upon the return to Marksville defendant sent word -to A. B. Bonnette that he refused to purchase the bus. Bonnette, in response to defendant’s message, went to Pon-thieux’s dwelling that same evening, at which time the parties heatedly discussed the matter. We call attention at this point to a significant bit of testimony on the part of one of plaintiff’s witnesses in the instant case, who accompanied A. B. Bon-nette to defendant’s domicile on the occasion of the event referred to. This witness testified that before the parties lapsed into the use of the French language, with which he was unfamiliar, he heard A. B. Bonnette make the statement to Ponthieux that he had not made any guarantee as to the condition of the bus.

A short time after this interview, despite Ponthieux’s request for the return of his check and the rescission of the conditional agreement, A. B. Bonnette tendered the check in question to the Union Bank at Marksville, where, upon his endorsement, he received the sum of $525.00 in cash, and the bank transmitted the check for collection through its usual banking channels. Ponthieux, failing to receive the return of the check, became suspicious, called the bank, and was advised by the cashier, Mr. Gremillion, that the check had been cashed, upon receipt of which information Pon-thieux advised the said official of the bank that the check was no good, that he had no account with the Planter’s Bank of Opel-ousas, and that, assuredly, it would be returned unpaid. In turn Mr. Gremillion contacted Mr. A. B. Bonnette and advised that he would be required to make good to the bank the amount he received.

At this point, for the first time in this rather involved sequence of events, the plaintiff in this suit, Cyprien Bonnette, brother of A. B. Bonnette, appears as an actor in this comedy of errors. For it was at this stage that A. B. Bonnette contacted his brother, Cyprien, explained that he had spent the money he received from the bank, which he would have to make good, and asked his brother to make this amount good to the bank for him. Cyprien, obviously a model of brotherly devotion, immediately agreed, and produced the sum of $525.00 which he transmitted to Mr. Gremillion, cashier of the Union Bank at Marksville, either in person or by the hand of his brother, before defendant’s check was returned. Gremillion, at and upon receipt of the dishonored check, -covered the amount with the sum furnished by Cyprien Bonnette, and delivered the check to Cy-prien. Some time later Cyprien returned to the bank in person and tendered the check for collection. Despite Mr. Gremil-ion’s reminder that Ponthieux had no account with the drawee bank, Cyprien Bon-nette insisted that the effort be made, and, on advice of Gremillion, deposited the check with the understanding that it would be charged to his account when it was returned unpaid. This event took place in due course, whereupon, after demand and refusal of payment by defendant, this suit was instituted.

The defense is based upon two very obvious grounds, first, that plaintiff was not a holder in due course, in good faith, and without knowledge of existing equities between defendant and A. B. Bonnette, the payee of the check, and, second, that the mechanical defects in the motor vehicle were of such a degree and extent as to make the same unacceptable to defendant. Specific allegations in support of these defenses were incorporated in defendant’s' answer.-

After trial there was judgment in favor of plaintiff in the sum of $462.73, representing the amount sued for, less certain credits for repairs. In his judgment our learned brother-of the District Court took occasion to observe that “plaintiff was not a holder in good faith and in due course of the check forming the basis of his suit, * * *»_

There is no possible question as to the correctness of the above quoted conclusion reached by the Judge of the District Court. Plaintiff not only was not a holder in due course and good faith but he was definitely a holder in bad faith because he knew at the time that the check would be dishonored and the reasons therefor. Indeed, under the facts established upon trial of this case there is some serious question as to whether plaintiff in reality was the holder of the check. There are 'substantial grounds which would justify the conclusion that the plaintiff, Cyprien Bonnette, never was the holder of the check, but that his only connection with this transaction was to advance his brother the sum of $525.00. However this may be, we think it unnecessary to indulge in a discussion of this point since, in our opinion, the matter may be easily disposed of on other grounds.

Beyond any question of a doubt plaintiff was not a holder in good faith ánd in due course of the check which serves as the basis for this action, and, accordingly, he is bound by any and all equities existing between this defendant and A. B. Bonnette, the original payee of the check.

It matters not that the seller made no express warranty of the vehicle, for it is well established in this State that a seller warrants the thing sold as being fit for the intended purpose, unless such warranty is expressly waived. Crawford v. Abbott Automobile Co., 157 La. 59, 101 So. 871; Savoie v. Snell, 213 La. 823, 35 So.2d 745.

Under the provisions of Article 2520 of the Civil Code redhibition, that is, the avoidance of a sale by reason of vices or defects in the thing sold, is available to a buyer when such defects render the thing useless or make its use so inconvenient and imperfect “that it must be supposed that the buyer would not have purchased it, had he known of the vices”.

We think it is definitely established in the instant case by almost uncontrovert-ed testimony that the bus in question was so afflicted with vices and defects of various kinds -that this defendant, the buyer, would not have purchased the vehicle with knowledge of such defects.

The evidence further preponderates in favor of defendant’s contention that his purchase was conditioned upon the trial trip. The actions of both defendant and A. B. Bonnette are consistent with such, a conclusion. It is further significant in this connection that A. B. Bonnette did not make the effort to enforce the sale and collect the purchase price, but rather chose to burden his brother with the responsibility for attempting to collect an obligation which, on his part, would have been met with a direct and, apparently, a well substantiated defense. This may or may not have been planned or designed, but, in any event, the legal bad faith of this plaintiff opened the door to the same character and nature of defense as might have been asserted between the original parties.

The defendant in the instant case has fully discharged the requirements imposed by Article 2530 of the Civil Code of proving the existence of the vice before the sale. The New Orleans trip was made within a week of the negotiations and the record is utterly devoid of any evidence of intervening usage of the bus by defendant to an extent commensurate with unusual wear and tear which would have caused the imperfections and defects which made their appearance.

For the reasons assigned the judgment appealed from is reversed and set aside, and there is now judgment in favor of defendant rejecting plaintiff’s demands, together with all costs.

TALIAFERRO and KENNON, JJ., concur.