author: DORE, Judge.

text:
    GULF, M. & O. R. CO. v. AMACKER.
    No. 2288.
    Court of Appeal of Louisiana. First Circuit
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Talley & Talley, of Bogalusa, for appellant.
    Rich & Richardson, of Bogalusa, for ap-pellee.
   DORE, Judge.

Plaintiff, the Gulf, Mobile and Ohio Railroad Company, hereinafter called the railroad company, brought this suit as the owner of certain parcels of land upon which it had spur tracks and of which it had possession for more than one year prior to its disturbance thereof. It alleges that, regardless of its ownership and possession, the defendant erected or caused to be erected a fence in the middle of one of the spur tracks, thereby fencing off two other of its spur tracks, and depriving it of the use of all three spur tracks. The railroad company claims damages from the defendant as a result of such act in the sum of $1,000, being for the loss of the use of the said spur tracks and attorney’s fees incurred thereby. In its petition the railroad company sets out how it acquired title to the property upon which said spur tracks were situated ; the spur track, in the middle of which the defendant caused to be erected a fence, was acquired from W. A. Chandler and R. L. Little, and the other two spur tracks were acquired from Chandler individually, all in June, 1939. Subsequently defendant acquired Chandler’s property, which included half of the first spur track and all of the others. The defendant interposed an exception of no cause or right of action, based on the theory that the deeds by Chandler to the railroad company were illegal because they contained a potestative condition. This exception was overruled. Thereafter the defendant filed an answer in which he admitted the fencing of the spur track described, enclosing the other two spur tracks. In defense of such action, he alleged that he had done so for the reason that he had purchased the property from Chandler, and annexed to his answer a copy of his deed. He asked for damages as against the railroad company and called his vendor, Chandler, in warranty.

To this call in warranty Chandler excepted, on the ground that it did not disclose a right or cause of action. This exception was sustained and the call in warranty was dismissed. From this judgment defendant Amacker has appealed.

We are only concerned on this appeal as to whether or not the exception filed by Chandler was correctly sustained and the call in warranty dismissed, the plaintiff having agreed to await the final decision of this question.

It is shown that W. A. Chandler owned the tract of land in the City of Bogalusa upon which the railroad company had the spur tracks. The center of one of these spur tracks formed the dividing line between Chandler’s property and. that of R. L. Little. In June, 1939, Chandler and Little each conveyed to the railroad company 7% feet from their respective properties for a distance of 853 feet. This spur track will hereafter be called the main spur track; Chandler, in another instrument, conveyed to the railroad company two strips of land 15 feet wide, one being 214 feet in length for two spur tracks leading from the main spur track in a southwesterly direction over and across the land of Chandler. These spur tracks had been on the property of Chandler for some time prior thereto, but no act recognizing the ownership of the spur tracks had been passed and recorded prior to the act of June, 1939. It is obvious from reading the agreements for the transfer or recognition of these spur tracks from Chandler and Little, and Chandler individually, that these agreements conveyed to the railroad company only a right of way or servitude for the use of the land in the ownership and maintaining of the said spur tracks. See Noel Estate, Inc., v. Kansas City Southern & Gulf R. R. Co. et al., 187 La. 717, 175 So. 468.

Chandler, on July 3, 1940, sold to defendant Amacker all of his tract of land, giving as the northern boundary the dividing line between his property and that of Little. Thereafter Amacker enclosed or fenced in the property by constructing a fence on the northern line, which was the center of the main spur track, thereby enclosing half of this main spur track and completely enclosing the other two spur tracks leading from it in a southwesterly direction, in utter disregard of the then existing spur tracks and the deeds on record covering the same.

There is no question that Chandler warranted the title to the property in question to Amacker when he sold the property to Amacker, but since this sale was subsequent to his agreements with the railroad company it could not affect the prior rights granted to the railroad company.

In the sale from Chandler to Amacker there is contained a stipulation or clause to this effect: “It is specially understood that the vendor (Chandler) does not own the railroad company spur tracks and accessories on any 'part of the property conveyed,' but that said tracks are the property of the Gulf, Mobile & Ohio Railroad Company” (plaintiff in this suit). Chandler seeks to escape liability on his warranty by virtue of this stipulation or clause and contends under his exception of no cause or right of action, and so held by the trial court, that the spur tracks and the strips of land or rights of way on which they were built were specifically excluded from the sale from him to Amacker and that Amacker purchased the property with these exclusions.

Chandler further contends that, from the pleadings, Amacker was a trespasser and is thereby precluded from calling him -in warranty. This contention of Chandler seems to be well taken. Amacker admits that he fenced in and took possession of the property which he knew from his deed did not belong to Chandler, but belonged to the railroad company. He does not allege that he ever attempted to cause the railroad company to remove its property off of his land or that the railroad company ever refused to do so. In other words, as to the railroad company’s property, which was on the land when Amacker purchased it, he has taken possession of the same without any authority of law, and in that respect he must be viewed as a trespasser. By this action Amacker is now undertaking to call Chandler in warranty to defend him in his acts of trespass. This he cannot do. It is now well settled that a trespasser cannot call his vendor in warranty to defend and support his trespass. See Walker et al. v. Baer-Thayer Hardwood Co. rehearing, 14 La.App. 385, 129 So. 218.

Amacker has an independent remedy against Chandler under whatever warranty the latter assumed. Code of Practice, Article 388. It is our opinion that the judgment appealed from should be amended so as to decree that the exception is maintained as in the case of non-suit.

For these reasons, it is ordered, adjudged and decreed that the judgment appealed from is hereby amended so as to sustain the exception of no right or cause of action and to decree that the call in warranty be dismissed as in case of non-suit.


source: Caselaw Access Project

author: OTT, Judge.

license: Public Domain

text:
    McCASTLE v. ARCHITECTURAL STONE CO. et al.
    No. 2274.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Dec. 30, 1941.

      R. F. Walker, of Baton Rouge, and W. T. Bennett, of Clinton, for appellant.
    Laycock & Moyse, of Baton Rouge, for appellees.
   OTT, Judge.

On December 10, 1936, the plaintiff and his employer, the Architectural Stone Company, a subcontractor of Caldwell Brothers & Hart, engaged in the construction of a building on the Louisiana State University campus, entered into an agreement of settlement for compensation due the plaintiff for an injury which he received while working for said Stone Company. The Central Surety & Insurance Corporation, the carrier of the employer’s compensation insurance, was also a party to said agreement.

The agreement recites, in substance, that plaintiff sustained an injury on July 3, 1936, when a tile fell on his head from above where he was working as a common laborer assisting in stucco and plaster work; that plaintiff was taken to the hospital and an X-ray made of his head which showed a fracture of th'e left parietal bone; that plaintiff was treated for the injury and paid compensation to December 7, 1936, when he was discharged as cured by the employer’s physician. The agreement further states that the plaintiff claims that he still suffers from dizzy spells and a feeling of faintness and is still temporarily disabled from doing the type and character of work that he was doing when injured, and in all probability would be so disabled for a period of three months to a year; that the employer admits that plaintiff sustained said injury and that he was paid compensation therefor from the date of the injury to December 7, 1936, at the rate of $11.12 per week but claims that said employee had fully recovered from said injury on said date, and, whereas there is serious doubt and dispute as to the duration, extent and degree of the disability of said employee, the parties entered into said agreement whereby the employer, through its insurance carrier, agreed to pay the further sum of $165.69 as additional compensation, which, together with the compensation and medical expenses already paid, was to be in full settlement for compensation on account of said injury. The settlement was approved by the court and the amount paid as therein stipulated.

The present suit was filed on July 3, 1937, against said Stone Company and its insurer in which the plaintiff claims that he is totally and permanently disabled on account of said injury; that he was induced to enter into said agreement for the settlement of his claim by various acts of fraud and misrepresentation on the part of the attorney for the insurance company, and he alleges that there was no dispute between his employer and himself, and that the payment under said agreement was nothing more than a lump sum settlement discounted at a greater rate of interest than eight per cent per annum, and for that reason he is entitled to recover compensation in a lump sum one and one half times above the amount he would have been entitled to recover had said purported settlement not been made, less the amount already paid. In the alternative, • and in case it is held that said settlement was a compromise, then and in that case, he asks that the settlement be set aside for fraud, misrepresentation and ill practice on the part of said attorney and that he be awarded compensation for total permanent disability at the rate of $11.12 per week for a period not exceeding 400 weeks, subject to a credit for the amount already paid.

Several exceptions and additional pleadings were filed and acted upon by the court, but it is unnecessary to detail them here. Separate answers were filed by the Stone Company and its insurance carrier in January, 1939, in which they both plead the former judgment approving the previous settlement as res adjudicata, and plead es-toppel against plaintiff on account of the statements made by him in the agreement for the settlement and the petition filed for its approval. They both deny that any fraud or misrepresentation was practiced on plaintiff and aver that the settlement was made in good faith, and plaintiff was in no way imposed upon. They also deny that plaintiff is totally and permanently disabled.

The trial judge sustained the plea of res adjudicata and estoppel and held that the agreement for a settlement and the judgment rendered thereon were binding on the plaintiff and precluded him from recovering any further compensation. The plaintiff has appealed.

There are several rather serious allegations of fraud and misrepresentation made in the petition against the attorney for the insurance company who handled the proceedings leading up to and the completion of the settlement on which the defendants rely. We agree with the trial judge that no wilful fraud or ill practice was proved on the part of this attorney, and we deem it unnecessary for the purpose of a decision of this case to describe these allegations and discuss the evidence adduced relative thereto.

We also agree with the trial judge that the settlement which was made between the parties and approved by the court was a compromise settlement under the provisions of Section 17 of Act 20 of 1914, as amended, by Act No. 38 of 1918, and not a lump sum settlement under subsection 9 of Section 8 of said act, as amended. It is obvious that there'was a dispute between the employee and the employer as to the extent of the injury and the duration of the disability. Both the agreement and the petition signed by the parties and presented to the court showed such a disagreement, and, indeed, the fact that the plaintiff then claimed and is still claiming that he is disabled and the employer then claimed and is now claiming that plaintiff had then recovered shows that there was then and is now a dispute between the parties on this subject.

The jurisprudence of the state at the present time is that a compromise entered into by an employee and employer and approved by the court under Section 17 of the Compensation Act where there is a bona fide dispute between them as to the liability of the employer, the extent of the injury, the duration of the disability, or the amount of compensation, is binding on the employee unless some fraud, ill practice or misrepresentation was employed in inducing the employee to accept the settlement. We list here several cases supporting this jurisprudence: Musick v. Central Carbon Company, Inc., 166 La. 355, 117 So. 277; Young v. Glynn, 171 La. 371, 131 So. 51; Horney v. Scott, La.App., 171 So. 172; Calhoun v. Louisiana Delta Hardwood Lumber Co. et al., La.App., 182 So. 362; Self v. Wyatt Lumber Co., Inc., La.App., 189 So. 327; Walding v. Caldwell Bros. & Hart, La.App., 193 So. 501; Forrestal v. McCray Ref. Sales Corp. et al., La.App., 196 So. 516; McDaniel v. Great Southern Lumber Co., Inc., et al., La.App., 197 So. 812; White v. Osterland & Knight Timber Co., La.App., 200 So. 674.

We find in the record a copy of an opinion recently rendered by the Supreme Court in the case of Otto Buchner v. Employers’ Liability Assurance Corporation, which we understand is now pending on rehearing and which opinion has not been reported. A reading of this opinion indicates, if it should be upheld on the rehearing, that it would have the effect of modifying considerably the jurisprudence announced in the above cases, particularly where the compromise agreement involves a dispute as to the extent of the injury and duration of the disability which the opinion indicates cannot become a matter of speculation and compromise. However, as this opinion has not become final, we do not feel constrained to consider it in this case. Moreover, the opinion would not change the conclusion we have reached under the application of the jurisprudence as it presently exists, should the opinion be re-instated on the rehearing. [5 So.2d 288.]

The record in this case shows that the plaintiff is an ignorant colored man, unable to read and write. He was not represented by an attorney during the negotiations leading up to the compromise settlement. He received his compensation checks through the attorney for the insurance company and seems to have placed considerable reliance on him for advice as to his legal rights. Plaintiff was able to be up and get around at the time the settlement was made, but the doctor who had treated him for the employer told him that he was able to return to work. Plaintiff complained of dizzy spells and a feeling of faintness and insisted that he was not well and could not do the kind of work that he was doing when the tile fell on his head.

It was the opinion of the attorney for the insurance company that plaintiff had a claim for damages against Caldwell Bros. & Hart, the general contractors whose employee let the tile fall from the third story and which caused plaintiff’s injury while he was working on the same building for a subcontractor. Plaintiff claims and the attorney admits that he told plaintiff that he (plaintiff) could get damages for his pain and suffering from the general contractors; that the insurance company was settling with him only for compensation, and he would get what plaintiff describes as his “big money” out of the general contractors; that the attorney told him that he could not represent him in this suit against the general contractors for damages, but that he would take plaintiff to a lawyer who would represent him in the suit against the general contractors.

While we have not given all the details with reference to the words used by the attorney in leading plaintiff to believe that he would get damages out of the general contractors in addition to the compensation that was being paid him under the compromise settlement, we think that the attorney was in good faith when he so advised him. Just after the settlement was approved by the court, the attorney did take plaintiff to another attorney who made a demand on Caldwell Bros. & Hart on behalf of plaintiff for damages. The general contractors convinced this attorney that they were not liable for damages to plaintiff as his claim for compensation against the subcontractor was his sole and exclusive remedy as was held in the case of Gaiennie Co., Ltd., et al. v. Chisolm & Co., 3 La.App. 358. For this reason, no further effort was made to recover damages from the general contractors.

As already stated, plaintiff insisted at the time of the settlement that he was not able to work although he had been discharged by the employer’s physician who testified that if he had known at the time that plaintiff was suffering from dizzy spells and faintness he would not have discharged him as able to return to work. The attorney for the insurance company did know that plaintiff was claiming that he had these dizzy spells and faintness as this claim was put in the agreement of settlement prepared by him. The plaintiff testified that the reason he agreed to accept the small amount of compensation in settlement was because of his belief that he would get damages (and what he calls “big money”) out of the general contractors. Obviously, this belief on his part was created by what the attorney for the insurance company told him, and under the circumstances it is reasonable to assume that this belief on his part was the principal reason influencing him to accept the settlement. In other words, the principal cause inducing him to accept the settlement failed.

As a general rule, a compromise settlement cannot be set aside for an error of law alone, yet if the error was caused by what was said or done by the other party under such circumstances as to lead the person in error to rely on such act or statement,' there is such a mistake as will justify setting aside the agreement. C.C. art. 3079; Reed v. Holderith, 3 La.App. 379; 15 C.J.S., Compromise and Settlement, § 36(c) p. 758. In fact, the mistake under which the plaintiff was laboring at the time he accepted the compromise settlement, was not only an error created by what-the attorney had told him were his legal rights, but this error partook both of the nature of an error of law and an error of fact. If an ignorant laborer is not fully advised as to his legal rights and relies on the employer, its attorney or physician, for information affecting his claim for compensation, and by reason of such reliance settles his claim for an insignificant amount because of mistake or error as to his rights, such a settlement is vulnerable to attack by the employee. While Section 17 of the Compensation Law contemplates the settlement of disputes between employer and employee by compromise, yet where the employee is not represented by separate counsel and all the proceedings are carried on by the attorney for the employer or its insurance carrier, the settlement will be carefully scrutinized to ascertain if the employee was laboring under any mistake of facts or error as to his legal rights arising from a failure to disclose to him all the facts in possession of the employer or its agent, or any representations, whether purposely or innocently made, which might have misled him into accepting an amount much less than he would have been willing to accept had a full disclosure been made to him. Applying these principles to the facts of this case, we are forced to the conclusion that the compromise settlement entered into by plaintiff under the circumstances shown by the testimony of both parties, must be set aside, and his claim for additional compensation considered.

A decided preponderance of the medical testimony shows that the plaintiff is suffering from traumatic neurosis as a result of the blow on his head from the falling tile. The medical testimony also shows that the plaintiff is unable to do manual labor, and the indications are that his disability is permanent. Three doctors who examined plaintiff, one of whom treated him for several months, gave it as their opinion that plaintiff’s present disability results from the blow on his head. An attempt was made by the defendants to show that plaintiff’s condition is caused from tabes dorsalis resulting from syphilis. While there is some medical testimony to support this contention, yet Wasserman tests failed to show the presence of syphilis, and we are persuaded to follow the preponderance of the medical testimony and hold that his present disability is total and ^permanent and results from the injury which he received in July, 1936. Moreover, this medical testimony is also supported by the testimony of lay witnesses "that plaintiff suffered no disability whatever before the injury was received.

For the reasons assigned, it is ordered that the judgment appealed from be and the same is hereby avoided, annulled and reversed, and it is now ordered that the agreement of settlement entered into between the parties on December 10, 1936, and the judgment approving same rendered on December 11, 1936, be and they are hereby set aside and annulled; it is further ordered that plaintiff recover compensation from the defendants, Architectural Stone Company and the Central Surety & Insurance Corporation, in solido, in the sum of $11.12 per week for a period not exceeding 400 weeks, payable weekly, beginning July 10, 1936, with legal interest on each of said payments from their respective due dates until paid, subject to a credit of $354.-4'5 already paid as compensation. It is further ordered that the defendants pay all costs in both courts.


author: SIMON, Judge.

text:
    BUTLER v. OSWALD et ux.
    No. 17285.
    Court of Appeal of Louisiana. Orleans.
    Oct. 20, 1941.
    Rehearing Denied Nov. 17, 1941.
    Writ of Certiorari Denied Jan. 5, 1942.
    Bernard A. Dempsey, of New Orleans, for appellant.
    Fred A. Middleton, of New Orleans, for appellees.
   SIMON, Judge.

The plaintiff, George Leo Butler, instituted this suit against the defendants, Mr. and Mrs. William S. Oswald, seeking, recovery of $3,900 for the personal injuries he sustained on November 19, 1937, consisting principally of a fracture of his right ankle, when he came in contact with an automobile owned and being driven by William S. Oswald.

He alleges that the accident resulted from the negligence of defendant in that he was struck down from the rear whilst walking on the left hand side, on the Harmony Street wharf, proceeding towards Louisiana Avenue, and at a time when the defendant was operating his car at a high and dangerous rate of speed in violation of traffic regulations within the sheds along the Mississippi River' front as fixed by the Board of Port Commissioners.

Defendant admits the happening of the accident, but denies any and all responsibility to plaintiff for the injuries sustained by him. He avers that he was proceeding beneath the Harmony Street sheds from Washington Avenue towards Louisiana Avenue at a rate of speed within the limits therein fixed; that he was exercising a proper lookout for pedestrians and vehicular traffic; that as he neared stacks of lumber adjacent to the river side of Harmony Street wharf, the plaintiff darted from behind these obstructions, suddenly and heedless of approaching vehicles, running into the left front fender of his automobile.

The Charity Hospital of Louisiana, at which the plaintiff received treatment, intervened in the case under the provisions of Act No. 230 of 1932 and claimed reimbursement from the plaintiff and defendants, in solido, in the sum of $114.50 for services rendered by it to the plaintiff.

During' the course of the hearing, the trial judge sustained an exception of no right and no cause of action filed by Mrs. William S. Oswald relieving her of liability. There was judgment in the district court in favor of defendant, dismissing plaintiff’s suit, from which he has appealed.

The questions presented for review are chiefly ones of fact. The record discloses that the accident occurred at about 1 o’clock f>. m., beneath the Harmony Street sheds paralleling the Mississippi River, a roadway or ramp approximately 20 to 25 feet wide, permitting one-way traffic from Washington to Louisiana Avenues. It is shown that defendant is employed at the river-docks as a cotton weigher and was then proceeding from Washington Avenue towards Louisiana Avenue in connection with his employment.

Plaintiff’s version of the accident is that he was walking on the left side of the roadway or ramp towards Louisiana Avenue; that defendant’s car approached him from the rear, traveling at a speed of 30 to 35 miles per hour, on the driver’s left hand side of said roadway, striking him in the back and catapulting him in the air and approximately 10 feet forward; that he was rendered temporarily unconscious and was then transported to the Charity Hospital.

In addition to his own testimony, plaintiff produced a co-worker, who, in turn, testified that he was standing about a block away from the scene of the accident and that defendant’s car approached and struck plaintiff from the rear, whilst the latter was walking on the river side of the ramp. He fixes the speed of defendant’s car at the moment of the accident at approximately 30 to 35 miles per hour.

The defendant, in support of his explanation of the accident, produced two witnesses, negro helpers who were then occupants of his car. The testimony of these witnesses is wholly in accord with that of defendant. They both state that defendant was cautiously proceeding towards Louisiana Avenue, driving in the center of the roadway, at a speed of 8 to 10 miles per hour; that, on reaching the stacks of lumber, piled to a height of 10 to 12 feet, plaintiff bolted from behind one of these obstructions, seemingly chasing a negro; that the first negro escaped being run down due to defendant having applied his brakes, but that plaintiff, without looking or listening for any approaching vehicle, without seeing the automobile driven by defendant, ran into its left front fender. Defendant and his two supporting witnesses declare that the automobile was immediately stopped at the moment of impact, rolling a distance of not over two or three feet; that had not the brakes been originally applied in a successful effort to avoid striking the first negro, assuredly the results of the accident would have been of greater consequence. The record discloses that a witness called by plaintiff fully corroborates the circumstances as detailed by defendant and his supporting witnesses.

The contention of plaintiff that he was struck from the rear and thrown bodily a distance of ten feet from the point of contact is not only thus refuted, but the physical facts, as disclosed by the record, fully absolves defendant from liability. The Charity Hospital report, offered in evidence by plaintiff, clinically details the extent of plaintiff’s injuries. Other than a fractured right ankle, the usual attending bruises and abrasions were located on the right side of plaintiff's body. This report shows no scars, bruises, or abrasions on any portion of plaintiff’s back. It is evident that, had plaintiff been struck from the rear, as he contends, the marks of physical injury to that portion of his body would have been clearly apparent. We are convinced that the evidence in this case does not warrant the conclusion that defendant was in any way negligent. Plaintiff carried the burden of establishing fault on defendant’s part by a preponderance of the evidence. Not only has he failed in this respect, but it is manifest to us that his injuries were caused solely by his gross negligence in running from behind an obstruction into the roadway and that no amount of care on defendant’s part could have avoided the accident. Under such circumstances he was guilty of fault having primary and causal connection with the accident, placing himself in such a perilous position that even the use of heroic measures would not have averted contact with his body. This was the view of the District Judge and we concur in his finding of fact. Martinez v. Crusel et al., La.App., 148 So. 742; Henderson v. Percy, La.App., 159 So. 357; Id., 182 La. 953, 162 So. 739; Jones v. American Mutual Liability Insurance Company, La.App., 189 So. 169; Roberts v. Duracher, La.App., 196 So. 576; Fontenot v. Freudenstein, La.App., 199 So. 677.

Plaintiff’s contention that defendant was traveling- at a speed of 30 to 35 miles an hour at the time of the accident is not supported by the record. This estimate is based solely on the testimony of one of his witnesses, who was then standing a block away from the scene. This testimony was in the nature of a guess, whilst observing the oncoming car, a method, to say the least, rather unreliable. In contrast, we have the testimony of defendant, the two occupants of his car, and one of plaintiff’s witnesses, who fixed the speed of the motor vehicle at 8 to 10 miles an hour at the time of the accident. It is conceded that the speed limit for vehicular traffic beneath the Harmony Street sheds, as fixed by the Board of Port Commissioners, is that of six miles per hour. That the latter figure, as established by evidence of a more reliable character, and most reasonable of belief, was the actual rate of speed of defendant’s automobile, the excess, if any, was, we think, very slight. If there was such a technical violation Of a traffic regulation, we conclude that it did not form a causative factor.

In Jones v. American Mutual Liability Insurance Company, supra [189 So. 171], we said: “* * * Should we accept the higher estimate (35 miles per hour) and presume that Ferguson was guilty of a slight infraction of the ordinance, we cannot perceive that his speed had any causal connection with the accident. In other words, it is patent that it does not make the slightest difference whether the automobile was traveling 30 or 35 miles per hour, as Jones would have been struck in either event. In truth, the underlying and proximate cause of the accident was the deceased’s imprudence in leaving the safety afforded by the neutral ground and stepping into the roadway in front of the moving car.”

In Hudson v. Jackson Brewing Company, 4 La.App. 549, we, in discussing the effect on liability of speeds slightly in excess of legal limits, said: “* * * This excess of speed, however, is not sufficient to charge plaintiff with recklessness, and, moreover, it is only of consequence, if -it contributed to the accident.”

See, also, Belden v. Roberts, 3 La.App. 338, and TEtna Casualty Company v. Lee, 10 La.App. 763, 123 So. 137, 138. In the latter case we said: “* * * It does not appear to us that the speed at which the Kennedy car was being driven was a contributing factor to the accident. It should be remembered that his car was run into from the side by the Lee car, and we do not believe that the fact that the Kennedy car was going 25 miles per hour instead of 1'5 had any causal connection with the subsequent happening.”

In the case of Rutter v. Norman, 189 So. 609, we reiterated and quoted approvingly the pronouncements quoted above.

Plaintiff having left a position of safety and darted from behind an obstruction into the path of defendant’s oncoming car, certainly it little mattered that the car may have been operated at 10 to 12 miles per hour instead of at the 6 miles required by the traffic regulations.

When this matter first came up for a hearing in this court, the judgment appealed from was affirmed by us upon motion of counsel for appellee, who invoked Rule VII of the Court. The proper showing having been made, the case was again fixed for argument. On rehearing plaintiff complains, as a ground for reversible error, of the trial court’s reliance, in its written reasons for judgment, upon ex parte and hearsay evidence contained in the report of the Charity Hospital of New Orleans. The pertinent part of this report quoted by the judge a quo reads as follows:

“Also the hospital record, which has been offered in evidence, gives the history as follows: ‘The patient ran out into the street and was struck by an automobile and knocked to the street’.”

It is upon the use and consideration of this excerpt by the lower court in reaching its findings that the contention of reversible error is advanced.

The record discloses that the hospital report was -offered in its entirety by plaintiff, without objection and without restriction or limitation as to its contents. A reading of the lower court’s written reasons indicates that the trial judge, in reaching his conclusions, did not rely to any appreciable extent upon this excerpt, though admittedly considering it.

Pretermitting the correctness of plaintiff’s contention, we have authority, of course, to decide this case on the evidence presented by the record, that is, without considering the documentary excerpt complained of. Whether the other proof in this record would be sufficient in itself to warrent an affirmation of the lower court’s decree is a question of fact to be ultimately resolved by us.

The record as submitted, aside from the documentary proof complained of, satisfies us that the accident here involved was unavoidable, and hence, we find no warrant in law to hold defendant responsibile in •damages.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: WESTERFIELD, Judge.

text:
    NATIONAL PUMPS CORPORATION v. BRUNING et al.
    No. 17454.
    Court of Appeal of Louisiana. Orleans.
    Oct. 20, 1941.
    Deutsch and Kerrigan and Lehman K. Preis, all of New Orleans, for appellant.
    Theo. Cotonio, of New Orleans, for ap-pellees.
   WESTERFIELD, Judge.

After a reconsideration of this cause we have reached the conclusion that our original opinion was correct as far as it went, however, appellee, by application for modification of our decree, claims that attorneys’ fees should have been" allowed.

Article 2705 of the Revised Civil Code reads in part as follows: “The lessor has, for the payment of his rent, and other obligations of the lease, a right of pledge on the movable effects of the lessee, which are found on the property leased.”

Article 2707 declares: “This right of pledge affects, not only the movables of the lessee and underlessee, but also those belonging to third persons, when their goods are contained in the house or store, by their own consent, express or implied.”

The lease involved contains the follow-. ing provision with respect to attorneys’ fees: “ * * * and in case of suit or employment of counsel to collect rent s.aid Lessee shall pay counsel fees not to exceed twenty-five per cent, on the sum or sums due and exigible, * * * ”.

The attorneys’ fees, which were not pressed in argument or brief on the original hearing, should have been allowed. Henderson v. A. Meyers & Bros., 45 La. Ann. 791, 13 So. 191, Hibernia Bank & Trust Co. v. McCall Bros. Planting & Manufacturing Co., 140 La. 763, 73 So. 857.

The amount of the fee is not fixed in the lease, the stipulation being that it shall not exceed twenty-five per cent, of the sum due. The maximum amount (25% of $360, or $90) is not too much under the circumstances.

Appellee also contends that interest should have been allowed. The provision with respect to interest, as it appears in the ’ lease, is as follows: “ * * * all notes to bear interest at the rate 'of eight per cent, per annum, from maturity until paid.”

There were no notes issued, and this vague reference to conventional interest is not sufficient. Legal interest on contractual obligations runs from the time they become due unless otherwise stipulated. Revised Civil Code, Art. 1938, Code of Practice, Art. 554. Here the lease stipulates the whole rent for the unexpired term becomes due upon the first default in the monthly payment which, according to the evidence, occurred October 1, 1938, consequently, interest will be allowed from that date.

For the reasons assigned it is ordered, adjudged and decreed that our former decree he amended so as to allow the sum of $90 as attorneys’ fees, in addition to the sum of $360, previously awarded, together with 5% interest from October 1, 1938 and, as thus amended it is reinstated and it becomes the final decree of this Court.

Original decree amended and reinstated.


author: JANVIER, Judge.

text:
    FABER v. GONDRELLA.
    No. 17496.
    Court of Appeal of Louisiana. Orleans.
    Oct. 20, 1941.
    Cahn & Cahn, of New Orleans, for plaintiffs and appellants. •
    Arthur J. O’Keefe, Jr., of New Orleans, for Boudreaux & Ripp, third opponents and appellees.
   JANVIER, Judge.

This is a controversy between a judgment creditor, who has caused the seizure under writ of fieri facias of certain movable property found in the possession of the judgment debtor, and a third person who claims ownership of a portion of the seized property. From a judgment in favor of the intervenor and third opponent, the seizing creditor has appealed.

Malcolm J. Faber, engaged in business in New Orleans in the selling of poultry and eggs, having obtained a judgment of $274.85 against Frank Gondrella, caused the issuance of a writ of fieri facias under which the constable of the First City Court of New Orleans seized certain movable property found in Gondrella’s place of business. Among the property was a quantity of poultry and eggs.

At this stage of the proceedings Bou-dreaux & Ripp, a partnership, filed with the Constable an affidavit in which they claimed to be the owners of the said seized stock of poultry and eggs, and the said partnership then filed a petition of intervention and third opposition.

The intervening partnership made certain inconsistent allegations: First, it averred that it had sold the said poultry and eggs to Gondrella, and it followed this averment with a further and inconsistent one to the effect that it had placed the poultry and eggs with Gondrella on consignment and that it “was the true and lawful owner of the merchandise seized by the Constable of the First City Court. ”

Then follows the averment that as a result of ownership “they have a lien and privilege” on the said property.

The intervening partnership further alleged that since the perishable property seized had been sold by agreement of all parties, it, “by reason of his lien and privilege on the said merchandise, is entitled to the proceeds of the said sale.”

If there could be any doubt as to whether the claim is based on alleged ownership or on a vendor’s lien, that doubt would be dispelled by a reading of the prayer in which the intervening partnership asks to be decreed “to be the owners of the said merchandise herein above seized and described.”

The character of an action is fixed by the prayer of the petition. In Rudd v. Land Company, Inc., 188 La. 490, 177 So. 583, 585, the Supreme Court said: “The character of plaintiff’s action is fixed by the prayer of his petition.” See also Annison v. Womack, La.App., 200 So. 663; Rainey v. McCrocklin, La.App., 185 So. 705; Bauer v. Gilmore, La.App., 165 So. 739.

Furthermore, while it may not be significant, we note that this intervention was presented by way of petition and citation, which under Article 398 of our Code of Practice is required where the claim is based on ownership, whereas had it been the intention to base it on the claim that a privilege existed under Article 401, it might have been brought by mere motion and notice.

When the intervention was called for trial, counsel for the seizing creditor called upon counsel for the intervenor to elect whether the intervening partnership would base its claim on the alleged ownership of the seized merchandise or on the vendor’s lien resulting from.the sale to Gondrella. The judge a quo refused to order counsel to elect, saying: “The Court believes under the decision in the case of Nicol vs. Jacoby, reported in the 157 Louisiana, [757, 103 So. 33] on a petition and prayer in the alternative, an election is not necessary * * *

The evidence on behalf of intervenor was then introduced. It consisted of a states ment by Gondrella • to the effect that the seized poultry and eggs had been “purchased” by him from the intervening partnership, and ,a statement by one of the members of the partnership to the effect that the amount due was “for poultry and eggs purchased.”

There was judgment for the intervenor maintaining the lien and privilege claimed, and ordering the Constable to pay over to it the sum of $268.78. It is from this judgment that Faber has appealed.

A reading of .the petition of intervention discloses that it does not contain any alternative contention, but is based solely on the theory that it, the intervening partnership, delivered the merchandise to Gondrella on consignment and remained owner thereof. If this were the true fact, and if the evidence corroborated it, then the judgment might well have been rendered in favor of intervenor, not on the ground that the partnership, as vendor of the merchandise, was entitled to a lien, but on the ground that, as owner, it could claim the proceeds of its own property seized in the possession of the judgment debtor. But the evidence showed no such thing. It showed, without any contradiction, that the merchandise had been actually sold and delivered to Gondrella. Under the circumstances the intervening partnership no longer remained owner but was entitled, at best, to a lien and privilege as vendor, and, as we have said, it did not pray to be recognized as vendor but to be recognized as owner. The reference to the lien and privilege seems to result from the incorrect legal conclusion that the owner of an article seized in the possession of a third person has á lien and privilege on the said article. This, of course, is not true; either the owner is entitled to the possession of it, or. he has sold the thing and is entitled to his lien on it. Here, then, as we have said, we find that the intervening partnership, which alleges that it is the owner of the things seized, has been granted a lien on those things, or rather on the proceeds-of the sale of those' things.

As wé have said, this appears to us to be a suit based on alleged ownership, and there is no alternative prayer for a lien resulting from an alleged sale. The sole' question presented was whether the inter-venor had retained ownership of the merchandise when it delivered it to Gondrella, and the proof shows that it had not.

The judgment appealed from is annulled, avoided and reversed, and the intervention is dismissed at the cost of intervenor.

Judgment reversed.


author: PER CURIAM.

text:
    GOLDBERG AUCTION CO. v. PURVIN.
    No. 17719.
    Court of Appeal of Louisiana. Orleans.
    Oct. 20, 1941.
    Julius Howard Wiener, of New Orleans, for appellant.
    Benjamin Y. Wolf, of New Orleans, for appellee.
   PER CURIAM.

The appellee moves to dismiss this appeal upon the ground that the motion of appeal was not taken in time. It appears that the judgment below was signed on the 27th day of August, 1941, and the motion for a suspensive and devolutive appeal was not filed until September 9, 1941.

Act No. 219 of 1932 declares that an appeal from the City Courts of New Orleans “shall be allowed within ten days, exclusive of Sundays, from the signing of the judgment, * *

Exclusive of the day on which the judgment was signed, thirteen calendar days ■elapsed before .the motion for appeal was filed. Two Sundays intervened which are not counted, so that the last day on which the appeal might properly have been taken was the twelfth calendar day or September 8, 1941. Christmon v. Hawkins, La.App., 171 So. 621; Baptiste v. Life Insurance Company of Virginia, La.App., 196 So. 575. The fact that a legal holiday, Labor Day, also intervened is of no consequence. Kelly, Weber & Co., Inc. v. F. D. Harvey & Co., Inc., et al., 178 La. 266, 151 So. 201; Madison Lumber Co. v. Alson, 12 La.App. 428, 126 So. 242; Wm. H. Hendren v. Crescent City Seltzer & Mineral Water Co., Inc., 1 La.App. 25; Leopold v. Schmidt, Jr., No. 9256 of the docket of this Court. See Louisiana and Southern District Digest.

The motion to dismiss the appeal will be sustained and the appeal dismissed. Motion to dismiss sustained.


text:
    WILSON v. FARNSWORTH et al.
    No. 17086.
    Court of Appeal of Louisiana. Orleans.
    Oct. 20, 1941.

      H. W. & H. M. Robinson, of New Orleans, for appellant.
    John May and Henry & Kelleher, all of New Orleans, for. appellees.
   SIMON, Judge.

This is a suit for $300 damages for physical injuries sustained by plaintiff arising out of an automobile accident which occurred on Sunday morning, December 12/ 1937,.at about 7:40 o’clock a. m., on South Galvez Street between Palmyra and Banks Streets in the City of New Orleans. A truck, admittedly owned by the defendant, Longino & Collins, Inc., and driven by Wilson Farnsworth, one of its-employees, collided with a tent, used as a W. P. A. watchman’s station, situated on the neutral ground of South Galvez Street, and in which, at the time, plaintiff and others were awaiting orders’ in connection with their employment.

Longino & Collins, Inc., as the employer of Wilson Farnsworth, and the Travelers Indemnity Company, as the public liability insurer of Longino & Collins, Inc., were joined with Wilson Farnsworth, the driver of the truck, as defendants.

Plaintiff predicates his suit against Longino & Collins, Inc., on the theory of respondeat superior, and the Travelers Indemnity Company is made a party-defendant pursuant to the provisions of Act No. 55 of 1930. The policy issued in favor of the named insured also contained what is usually termed an “omnibus clause”.

Plaintiff avers that the sole and proximate cause of the accident was due to the negligence and carelessness of Wilson Farnsworth, who was then operating his employer’s’ car on a mission connected with his employer’s business affairs, within the scope of his employment and duties as a chauffeur, and with the knowledge and consent of his employer.

The defendant, Wilson Farnsworth, entered a general denial to plaintiff’s petition. Longino & Collins, Inc. and the Travelers Indemnity Company made joint defenses denying that, at the time of the accident, the chauffeur was acting within the scope of his employment and the coverage limits of the policy of insurance, and averred affirmatively that the use of the truck by Wilson Farnsworth at the time was unauthorized, without its permission, knowledge or consent, and in no way connected with his employer’s business affairs; that, on the contrary, Farnsworth was operating said truck at the time on a personal mission of his own and in violation of the general instructions of his employer.

After a trial on the merits, the court below dismissed plaintiff’s suit as to Lon-gino & Collins, Inc. and the Travelers Indemnity Company, but rendered judgment, in favor of the plaintiff, against Wilson Farnsworth, the driver of the truck, in the amount of $300. The case is now before us on appeal from that judgment by plaintiff, no appeal having been taken by defendant, Wilson Farnsworth.

Counsel for appellant, in their brief and in argument, concede that Wilson Farnsworth, the driver of the truck, was on a mission of his own, having no connection with his employer’s business, and accordingly the doctrine of respondeat superior is not applicable in this instance. This admission, accordingly, automatically relieves the defendant, Longino & Collins, Inc., of any liability, and the sole issue before us is the liability of the insurer under the “omnibus” coverage clause in its policy of insurance issued to Longino & Collins, Inc.

The facts pertinent to the issue involved are that Wilson Farnsworth had been in the regular employ of Longino & Collins, Inc., as a porter or general utility man, for a period of over twenty years. His primary duties called for by the nature of his employment were under the direct supervision of the president of the corporation. These duties involved the general sanitation and cleanliness of the plant and at other times receiving orders for the delivery of articles, the mailing and receiving of packages, and such other incidental matters, making use of one of the motor vehicles of his employer. A chauffeur’s license was obtained by his employer for him as an end to facilitate the performance of these duties. The record further discloses that there was a standing and well-known rule of the company prohibiting any employee from operating or making use of any of its motor vehicles without the specific authorization of a superior. Unquestionably, in this instance, the chauffeur, Wilson Farnsworth, discharged the duties of his employment through the use of one of his employer’s vehicles only upon specific order, in other words, he being ordered to do whatever was required of him as a general “handy man”, and in the performance of these duties making use of his employer’s truck to accomplish the desired purpose.

It is shown that on the night preceding the morning of the accident, the upstairs assembly room, formerly used as a cafeteria by Longino & Collins for its employees, was loaned by its general manager to the students of Rugby Academy, this for the purpose of having a student dance to obtain funds for the purchase of band instruments. Wilson Farnsworth and a negro girl, Laura Stewart, employees of Longino & Collins, Inc., were asked by the latter’s general manager to render services in connection with that evening’s entertainment. It is shown that remuneration for their services was paid, not by Longino & Collins, Inc., but out of the entertainment funds realized. After completing their services, which was then about 3:30 o’clock a. m., Farnsworth then decided to accompany his co-worker, Laura Stewart, to her home. Because of the then prevailing inclement weather, Farnsworth asked the watchman of Longino & Collins, Inc., to call a taxicab. After waiting an hour, and receiving no response, it is shown that Farnsworth went to the garage wherein was stored the twenty-odd motor vehicles of Longino & Collins, Inc. He states that he made no request of the watchman for the use of the vehicle, nor did he make any statement to him that he intended to or would use one of his employer’s motor vehicles. On reaching the garage, two doors beyond the main entrance of Longino & Collins, Inc., he admits having opened the unlocked doors, found the keys in the key-lock and driving out one of the trucks. He then proceeded to drive his co-worker to her home and, though the record does not disclose what transpired between the hour that he reached his companion’s home and the hour of the accident, it is evident that he was in her company or until about the hour of 7:00 or 7:30 o’clock a.m. The lateness o-f the hour, assumingly making inadvisable an appearance at his home, he proceeded to return to his employer’s plant, and whilst thus engaged resulted in the accident and injuries complained of.

The “omnibus clause”, relied upon by plaintiff for recovery, reads as follows:

“The unqualified word ‘insured’ wherever used in coverage A and B in other parts of this policy, when applicable to these coverages, includes not only the named insured but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the declared and actual use of the auto-mobile is ‘pleasure and business’ or ‘commercial’, each as defined herein, and provided further that the actual use is with the permission of the named insured.”

As authority for their contention that the “omnibus clause” of the policy of public liability insurance involved in the instant case extends coverage to Wilson Farnsworth as the driver of the truck, counsel for plaintiff and appellant cite and rely upon the recent case of Parks v. Hall, 189 La. 849, 181 So. 191, 194. A reading of this case convinces us that it is clearly inapposite and distinguishable from the case at bar. In that case the assured instructed his chauffeur to use the car for a specific purpose and return it to the assured’s residence. The chauffeur, after attempting unsuccessfully to perform the errand, used the car for his own purposes, and, upon returning, negligently caused the collision in which the plaintiffs were injured. The trial court’s judgment for the plaintiff was reversed by the Court of Appeal, 179 So. 868, and the Supreme Court, in turn, reversed the judgment of the Court of Appeal, holding that the permission to take the automobile accorded to the chauffeur in the first instance, irrespective of the use to which the chauffeur put the car while in his possession, was “permission of the assured” within the meaning and contemplation of the “omnibus clause”, thus making the insurer liable.

The ratio decidendi of the Hall case is succinctly stated in a single paragraph of the Supreme Court’s opinion, and which reads as follows:

“We therefore conclude that the permission of the assured to Hall to use the car in the first instance, irrespective of the use to which he put the car while in his possession, was ‘permission of fhe assured’ within the meaning and contemplation of the ‘omnibus clause’ and the insurer is therefore liable to plaintiffs thereunder.” (Italicized words emphasized by the Supreme Court.)

It is obvious that the controlling factor is whether or not the initial use of the car was with the permission of the owner, the named assured. In the case at bar, Wilson Farnsworth did not seek, nor did he obtain, the permission and consent of the named assured for the use of the truck, from which the accident arises. Certainly, the vehicle was initially taken, not for the purpose of serving the business interests or affairs of his master, nor with its knowledge,' consent, or permission, express or implied. In the instant case the clear, distinguishing feature is that there was never any initial permission granted the employee so as to come within the coverage, terms and conditions of the policy, the trip being unauthorized from its very inception.

Furthermore, it was a use which his employer had forbidden under admitted and well-known regulations. The status of the employee, Farnsworth, in making use of his employer’s truck without the latter’s permission, express or implied, was that of an interloper and constituted an intrusion in and conversion of his employer’s property violative of existing regulations. Stephenson v. List Laundry & Dry Cleaners, Inc., 186 La. 11, 171 So. 556; Farnet v. DeCuers et al., La.App., 195 So. 797.

The case of Burglass v. Burglass et al., La.App., 193 So. 275, involved a suit for damages under the “omnibus clause” arising from an automobile accident. Plaintiff having failed to allege that the operator of the automobile, at the time of the accident, had obtained the permission of the named assured, was met by an exception of no cause or right of action. The lower court having sustained the exception and dismissed the suit, the matter was presented to us for review. We declared the petition defective, but reversed the judgment and remanded the case to permit plaintiff to cure this defect by amendment. In the course of our opiniop, we said:

“ * * * Of course, it is an indispensable condition to the liability of the insurance company that the accident should happen under circumstances [permission of the named assured] mentioned in the policy. In other words, that it should be within the coverage.”

Referring to the “omnibus clause” of the insurance policy, quoted supra, the liability of the insurer is warranted only when “the actual use is with the permission of the named insured”.

We therefore conclude that, at the time of the accident, the truck of the named assured was operated without its knowledge, consent or permission, express or implied, thereby relieving the defendant insurer from all liability.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed, at the cost of appellant.

Affirmed.

WESTERFIELD, J., recused.


text:
    COMMUNITY FINANCE SERVICE, Inc., v. WISEMAN.
    No. 17007.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1941.
    Casey, Babin & Casey, of New Orleans, for appellant.
    Graham & Graham, of New Orleans, for appellee.
   WESTERFIELD, Judge.

The Community Finance Service, Inc., alleges that it is the holder and owner of a certain note signed by Lee Faucette and his wife, Louise Crawford Faucette, and Eula Huffsutler, calling for the sum of $300, bearing interest at 3% per cent, per month from January 22, 1937, and secured by a chattel mortgage on certain household furniture, the whole subject to a credit of $15. It is alleged that the defendant, S. Wiseman, purchased the mortgaged furniture from Faucette and subsequently sold it at auction to divers persons, thus placing it beyond the reach of plaintiff and making it impossible for it to seize the property in satisfaction of its mortgage. Judgment is sought against Wiseman in the sum of $285 “because of the unlawful conversion of the said property * * * and because of his failure to disclose to petitioner the whereabouts of the said property”.

Wiseman admitted that he purchased the furniture from Faucette, paying him $105 therefor on February 22, 1937, and that he sold same at public auction on February 25, 1937, three days later; and testified that prior to the sale, one J. J. Frigerio, a representative of the plaintiff, called at his place of business and stated that the furniture was subject to a mortgage in favor of the plaintiff company; that after discussing the matter it was agreed that the furniture should be sold and the proceeds, according to Wiseman’s answer, and the profit, according to his testimony, divided equally between the loan company and Wise-man.

There was judgment below in favor of defendant dismissing plaintiff’s suit as in case of non-suit and it has appealed.

The case has been argued and briefed as though presenting the interesting question of the liability of an innocent purchaser of personal property encumbered with a chattel mortgage, who resells it at public auction without inquiry concerning or knowledge acquired of the existence of the mortgage. There was also raised the question of whether the mortgage creditor was obliged to exhaust his remedy against the two co-makers of the note before proceeding against the purchaser. However tempting these fields of inquiry may be, no such issue is presented here, for the defendant admits that he was told of the existence of the mortgage on the property before he sold it, though he stoutly maintains that he had no knowledge prior to his purchase from Faucette and justifies his sale of the furniture upon the ground that it was done by agreement with Frigerio, a representative of the plaintiff company. Fri-gerio died during March, 1937, within a month after defendant purchased the property and long before the suit was instituted. There was, therefore, no one to contradict the statement of Wiseman concerning the agreement with Frigerio. It must be admitted that the testimony as to what was said by a dead man is the weakest sort of evidence, particularly when uncorroborated. Succession of Gabisso, 122 La. 824, 48 So. 277; Succession of Fisher, 141 La. 189, 74 So. 900; Beard v. Morris & Company, 156 La. 798, 101 So. 147. In this instance, however, Wiseman is corroborated by his son, who is in business with him, and by the important fact that no representative of the plaintiff company took the stand to deny that the plaintiff had sent Frigerio to Wiseman to confer about the furniture or that Frigerio was without authority to represent it. In other words, there has been no attempt at impeachment of Wiseman’s testimony. Under the circumstances, we are constrained to hold that Wiseman’s statement was true and that the furniture was sold under an agreement with plaintiff. Whether the agreement contemplated a division of the proceeds or the profit to be realized from the sale must now be considered.

We have said that Wiseman, in his statement concerning the Frigerio incident, was corroborated by his son. He corroborates him to the extent of saying that Frigerio and his father reached an agreement for the sale of the property, but he does not say what the agreement was. He also testified that after the sale Frigerio made several visits to his father’s place of business and that a disagreement evidently arose concerning the settlement with the loan company. •

Wiseman, in his answer, says that, “one J. J. Frigerio, a representative of the plaintiff, called at respondent’s place of business * * *. That said Frigerio suggested that respondent go forward with the sale, and that the proceeds be equally divided between plaintiff and respondent. That respondent acquiesced in this suggestion, * * * ”, and, in his testimony, that “I told him T see where I have to lose, I’ll give you half of the profits of the sale.’ ”■ It is unlikely that Wiseman would talk about a loss if the agreement had contemplated only a division of the profit to be realized from the sale. It is also improbable that the loan company, with a mortgage for $285 on property which it knew had been bought by Wiseman for $105, would be satisfied with a division of the profits after Wiseman had satisfied himself out of the proceeds. We have said that we accepted Wiseman’s statement and, in the absence of any countervailing proof, conceded the authority of Frigerio to represent the defendant in the agreement concerning the sale of the furniture, but we reject his testimony about limiting the interest of the plaintiff to a division of the profits and accept the statement in his sworn answer to the effect that there was to be a division of the proceeds of the sale. To our minds, this accounts for the disagreement with Frigerio after the sale, concerning which we have no other explanation in the record, and is more in accord with the probabilities.

Our conclusion is that there was an agreement to pay the plaintiff one-half of the proceeds. The furniture brought $120.-20. There will, therefore, be judgment in favor of the plaintiff for one-half of that amount or $60.10.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, Community Finance Service, Inc., and against the defendant, S. Wiseman, in the sum of Sixty Dollars and Ten cents ($60.10), with legal interest from judicial demand and all costs.

Judgment reversed.


text:
    MARKEL v. WALKER et al.
    No. 17635.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1941.
    Rehearing Denied Nov. 17, 1941.
    Casey, Babin & Casey, of New-Orleans, for appellants.
    Porteous, Johnson & Humphrey, of New Orleans, for appellee.
   JANVIER, Judge.

The only question presented here is one of law. May a furnisher of materials obtain a personal judgment against an owner for the price of materials sold to the contractor and used in the building of the owner where there is a building contract, which was not recorded and the furnisher of materials did not file his claim in the office of the Recorder of Mortgages?

Robert W. Markel is engaged in the sale of lumber and other materials used in the construction of buildings. Mr. and Mrs. James Bujol are the owners of the property, 2120 Annette Street, in New Orleans. They, desiring to make repairs, alterations and improvements, entered into a written contract with Ruffin J. Walker under which he undertook to do the work for $2,150, the said Walker to furnish all materials and supplies. The contract was not recorded in the office of the Recorder of Mortgages and no bond was required of the contractor. Walker purchased from Mar-kel materials for the price of $209.86, which were used in the work but for which Walker did not make payment. Markel brought this suit seeking solidary judgment against Walker and Mr. and Mrs. Bujol. Walker made no defense but Mr. and Mrs. Bujol denied liability on the ground that Markel had not filed in the office of the Recorder of Mortgages any claim or statement of account, maintaining that under the provisions of the applicable statute, #298 of 1926, such recordation or formal filing of a claim is necessary if the owner of the building is to be held personally liable.

There was judgment below against Walker and Mr. and Mrs. Bujol solidarily, and Mr. and Mrs. Bujol have appealed.

It is conceded that the statute already referred to is controlling. Section 12 of that Act, after setting forth the routine to be followed where there is no contract or where a contract has not been recorded, and a materialman desires to obtain a lien upon the property in which his materials are used, provides a method by which such a furnisher of materials may obtain a personal judgment against the owner. We quote from the statute:

“ * * * Any person furnishing service or material or performing any labor on said building or other work to or for a contractor or sub-contractor, when a contract, oral or written has been entered into but no contract has been timely recorded, shall have a personal right of action against the owner for the amount of his claim for a period of one year from the filing of his claim, as provided in this Section, * * *

We direct attention especially to the fact that the “filing” of a claim is a necessary prerequisite to the attempt to hold the owner personally liable. On behalf of the owner, it is contended that the statute contemplates that this filing must be done in the office of the Recorder of Mortgages, and counsel for the defendants point to the words which immediately follow the requirement that the claim must be filed “as provided in this Section.” From this, they argue that the quoted phrase qualifies the word “claim” and thus requires that the claim must be filed “as provided in this Section”, in the Mortgage Office.

It may be mentioned here that, so far as the record shows, no claim, either formal or informal, has ever been filed either in the Mortgage Office, or with the owner or anywhere else.

On behalf of plaintiff it is said that the words “as provided in this Section” do not qualify the word “claim” but rather qualify the entire preceding clause, which creates the right to a personal action and fixes the prescription thereon at one year. In other words, that the meaning is not that the claim must be filed as provided in the section, but that if it is filed, it shall not prescribe for one year, “as provided in this Section,” and such an interpretation is within the realm of possibility since, in the preceding part of the section, it is provided that where a lien is secured, it shall prescribe in one year.

In seeking to destroy the argument that there is no right to a personal action unless the claim lias been filed in the Mortgage Office, counsel for plaintiff point out that if the claim is so filed, there is then created a lien against the property itself, and they argue that it was not the intention of the legislators to require in the obtaining of a personal judgment that there be taken the identical steps which would be necessary in order to obtain a lien. But it seems obvious to us that the framers of the statute intended that the filing of a claim should be a prerequisite to the obtaining of a personal judgment against the owner, and even if the requirement that the claim be filed had not been followed by the phrase “as provided in this Section”, we think the words “the filing of his claim” are a little more formal than would have been used had it seen the intention of the framers of the statute that in order to obtain a personal judgment the materialman need only present his claim to the owner. The words “the -filing of his claim” indicate the intention of requiring the more formal proceeding of filing the claim in the Mortgage Office, and when we follow this rather formal requirement that the claim be filed with the phrase which we have so often already quoted, “as provided in this Section”, we find inescapable the conclusion that it was the intention of the framers of the statute that the claim must be filed in the Mortgage Office.

All counsel concede that there is no case in Louisiana in which this exact question has been presented. Our attention is, however, directed to A. M. & J. C. Dupont v. Boudreaux et al., La.App., 185 So. 317, in which a furnisher of material sought a personal judgment against the owner, and in which our brothers of the First Circuit held the owner to be personally liable. But a reading of the facts of that case as they appear in A. M. & J. C. Dupont v. Boudreaux et al., La.App., 182 So. 184, shows that the claim had been duly recorded, and that based on the recordation a lien had also been sought.

It is argued that it would be inequitable to permit* an owner to benefit to the extent of the materials furnished by a materialman and used in the house of the owner, and to escape liability thérefor. But the answer is that the owner who has paid the contractor in full should not be called upon to pay for material sold not to him but to the contractor, unless the seller of the materials has complied with all of the technical steps required by the statute, which does give a remedy to the material-man who does comply with these requirements. At any rate, we so interpret the statute.

It 'is therefore ordered, adjudged and decreed that in so far as the judgment appealed from runs against Mr. and Mrs. James Bujol, it is entirely reversed, and plaintiff’s suit as against Mr. and Mrs. James Bujol is dismissed at his cost.

Judgment reversed.


text:
    CATO et al. v. CITY OF NEW ORLEANS.
    No. 17610.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1941.
    Rehearing Denied Dec. 1, 1941.
    Writ of Certiorari Denied Jan. 5, 1942.
    J. L. Warren Woodville, of New Orleans, for appellants.
    Francis P. Burns, City Atty., and H. C. Keith, Jr., Asst. City Atty., both of New Orleans, for appellee.
   WESTERFIELD, Judge.

John and Lydia Cato, the father and mother respectively of Elizabeth Cato, a minor about thirteen years of age, brought this suit against the City of New Orleans, on behalf of their child, claiming damages in the sum of $11,000, because of injuries sustained by her when she fell on the sidewalk in front of the premises No. 2505 Josephine Street. It is alleged that the fall was occasioned by the defective and dangerous condition of the sidewalk due to the presence of numeous holes and depressions and that this condition had existed for more than a year to the knowledge of the City of New Orleans, and that, notwithstanding these facts, the City had failed in its duty to make the sidewalk safe for the use of pedestrians and that its negligence in this respect involves it with liability.

The City defended upon the ground that the sidewalk was neither defective nor dangerous and, in the alternative, that it had no actual or constructive notice of the defects if, in fact, any such existed, and finally, that the injured child and her parents were guilty of contributory negligence.

There was judgment below dismissing plaintiffs’ suit and they have appealed.

In his reasons for judgment the learned judge, a quo, found that the child and her parents were guilty of contributory negligence, in that the parents failed to bring the attention of the City to the condition of the sidewalk and that the child, knowing of the dangerous condition of the banquette failed, in walking over it, to exercise such care as a “reasonably prudent person” would have done under the circumstances.

That the banquette was in a dangerous condition is not now disputed since, the inspector of sidewalks of the City of New Orleans, as well as several witnesses for the plaintiffs, testified to that effect.

There is no proof that the City had actual notice or knowledge of the condition of the sidewalk until after the accident. On the question of constructive notice we find, as did the trial judge, that the sidewalk was in practically the same condition for a period of two years prior to the accident.

In the recent case of Parker v. City of New Orleans, La.App., 1 So.2d 123, 125, this Court said:

“In Lorenz v. City of New Orleans, supra [114 La. 802, 38 So. 566], the Supreme Court recognized that actual knowledge of an obvious hazard in a sidewalk is not necessary in order to make the City responsible for injuries to a pedestrian. There, it appeared that a young child was injured by stepping into a small hole in a plank forming part of the covering of a fire well in a street intersection which had been allowed to remain in a rotten condition for several weeks prior to the accident. In holding that the City could not be excused from responsibility even though it had no actual notice of the unsound condition of the plank, the court said (114 La. 802, 38 So. 567):
“ ‘We cannot accept the doctrine that a city can permit such structures to rot, and then avoid liability on the ground of want of actual notice of their dangerous condition.’
“So, we say here that, since the unsound condition of the curb has been shown by plaintiff to have been in existence approximately two months prior to the accident, notice of the defect is imputable to the City and it must be held to be negligent in failing to discover it and to make the proper and necessary repairs.”

See, also, Holbrook v. City of Monroe, La.App., 157 So. 566, 568; Hebert v. City of New Orleans, La.App., 163 So. 425; and a discussion of the subject in Volume 3, page 737, of the Louisiana Law Review entitled “Local Government Responsibility in Tort in Louisiana”.

The fact that the sidewalk had been in a dangerous condition for more than two years is sufficient to charge the City with constructive notice. The failure to inspect the locality is no defense.

“The city charter makes it the mandatory duty of the municipal authorities to keep all streets, bridges, and crossings in repair, and places them under the charge and superintendence of the commissioner of public works, who is required to report their condition, from time to time, to the council. This officer and his subordinates are presumed to do their duty, and to keep themselves posted as to the condition of the streets and bridges under their supposed constant inspection and supervision. They had the means of knowledge, and ought to have known and remedied the defect. * * *

“If the covering had been inspected, the existence of the hole and the rottenness of the plank would have been discovered. Hence there was no inspection, or there was neglect to repair. Negligent ignorance is equivalent to actual knowledge.” Lorenz v. City of New Orleans, 114 La. 802, 38 So. 566, 567.

The final and most important question remaining is that of contributory negligence. At the outset we will say that so far as the failure of the plaintiffs, the parents of the injured child, to complain to the City of New Orleans is concerned, whatever may be its effect, it cannot form the basis of a charge of contributory negligence against the child. The evidence concerning the condition of the banquette is to the effect that, the bricks of which it had been constructed, had been, at numerous points, removed, and that in the spaces which the bricks had occupied, water collected in rainy weather; that these holes were so numerous as to give the sidewalk the appearance of stepping stones. The defendant contends that regardless of what may be said of the absence of the bricks and the number of the holes, there yet remained on the surface a path between two and two and one-half feet in width upon which Elizabeth Cato or any other pedestrian could have walked with safety, and it invokes the principle announced in a number of cases to the effect that where a pedestrian has a choice of two or more routes, only one of which is safe, he must take the safe route otherwise he will not be heard to complain of injuries sustained because of his selection of a dangerous route. Whalon v. Sewerage & Water Board, 142 La. 735, 77 So. 520; Barnes v. City of New Orleans, 4 La.App. 503; Volume 7, McQuillin on Municipal Corporations, at page 281. In the Barnes case, we said that “when two roads, one with and the other without danger, are open to plaintiff and she chooses the former and is hurt, she cannot recover damages”.

The burden of establishing, by a preponderance of the evidence, the existence of a safe path on the defective sidewalk, rested upon the defendant. Parker v. City of New Orleans, supra; Holbrook v. City of Monroe, supra; Viola v. Convery, 10 La.App. 85, 122 So. 90; Shannon v. New Orleans Railway & Light Company, 4 Orleans App. 302; and Lemoine v. City of Alexandria, 151 La. 562, 92 So. 58. When we examine the proof on this point, we find that it has failed to sustain this burden. Without discussing the evidence in detail, the best-that can be said for defendant is, that considered as a whole, it leaves the question in considerable doubt. Moreover, the probabilities are against the existence of a safety zone, for it seems unlikely tht a disintegrating brick sidewalk should assume a pattern calculated to promote the safety and convenience of the public by leaving a pathway undisturbed by deterioration or decay and untouched by vandals who, according to the record, occasionally removed the bricks for their private use or advantage. Another consideration appeals to us. The injured child did not place her foot into one of the holes, but upon a brick, which either broke under her foot, as is stated by some of the witnesses, or turned over because of its looseness or, perhaps, as is more likely, both, causing the child to fall. In this aspect of the case it is immaterial where the holes were, for it was not the holes or one of them which caused the accident, but a loose brick.

It is also contended that Elizabeth Cato was contributorily negligent because she lived in the neighborhood for more than a year prior to the accident and had full knowledge of the condition of the banquette and should have traversed it with greater care or with so much prudence and caution as was necessary for her to pass in safety. The accident happened at about 7:30 at night when the view of a pedestrian is affected by the shades of night and, however careful one might be, the danger or hazard to the nocturnal pedestrian is enhanced by the low visibility. Sidewalks must be reasonably safe for pedestrians to use during the night as well as the day, but, as we have said, the child's fall was caused by a loose brick which, if it had been firm, would have been harmless.

In the case of Hebert v. City of New Orleans, La.App., 163 So. 425, 426, we said: “While it is true that there were defects, there was nothing to indicate to her that, by the exercise of care, she could not pass there without mishap. Apparently she could step from one stone to another, or from one fragment to another, with complete safety so long as each remained stationary. She was not negligent, in attempting to do what she did and what she could do so long as the fragments remained as they seemed to be.”

What was there said, is particularly true here. In the Hebert case we exonerated a mature woman from the charge of contributory negligence. In this case, for a stronger reason, we hold that a child, thirteen years of age, was not guilty of negligence upon that ground.

Elizabeth Cato sustained a fracture of the knee or, as it is described in the hospital report, “a fracture of the lower third of the right femur, fracture of the upper third -of right tibia, hermatosis, right knee”. Her leg was placed in a plaster cast and she remained in the hospital eight days when she was sent home with instructions to report from time to time to the Orthopedic Clinic. Three months after the accident, August 27, 1940, an X-ray, taken at the hospital, revealed that “there are signs of healing, but no complete bony union”, and, on October 19, 1940, another X-ray was made which showed, according to the hospital records, that “there appears to be complete healing of the fragments of the tibia. There is considerable callous, but not complete bony union of the fragments of the femur”. Elizabeth Cato testified that her knee was kept in a plaster cast for six and one-half months, during which time she was compelled to walk on crutches. There is no medical testimony in the record and no evidence of any permanent injury. An examination of similar cases indicates that an award of $2,000 would be proper under the circumstances. Martin v. Zatarain, 7 La.App. 629; Selby v. Manning, La.App., 145 So. 555, and Breaux v. Roussell, La.App., 151 So. 267.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and it is hereby annulled, avoided and reversed, and it is now ordered that there be judgment herein in favor of the plaintiffs, John and Lydia Cato, on behalf of their minor daughter, Elizabeth Cato, and against the defendant, the City of New Orleans, in the sum of $2,000, with legal interest from judicial demand until paid, and for all costs.

Reversed.


text:
    STAES v. TERRANOVA et al.
    Na. 17598.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1941.
    Rehearing Denied Dec. 1, 1941.
    Writ of Certiorari Denied Jan. 5, 1942.
    Philip R. Livaudais and Charles E. Cabi-bi, both of New Orleans, for plaintiff and appellee.
    George Montgomery, of New Orleans, for defendants and appellants.
   JANVIER, Judge.

Jeanne Staes, wife of Joseph Duvernay, seeks recovery of damages from the defendants, charging that she sustained physical injuries as the result of a fall caused by defective steps leading to the ground from the rear door of the premises No. 2112 St. Peter Street, of which /she avers she and her husband were tenants. She charges that on the morning of November 4, 1939, at about 8:30 o’clock, as she attempted to descend to the ground by means of the said steps, the top tread tilted and caused her to lose her balance and that “the left side of the frame of said steps pulled away from the rear of the building.” She alleges that she sustained a Colies’ fracture of the styloid process, left radius and also that she sustained “a bruise on her left temple, a cut on her left cheek bone, and bruises on the left side of her face, which resulted in the almost immediate swelling and closing of her left eye * * *

She charges that the defendants were owners of the said leased premises, having inherited the building from their mother and that, therefore, the said defendants, as a matter of law, assumed all of the obligations which their deceased mother had undertaken as lessor, and that, therefore, as lessors as well as owners, the said defendants are liable to her. She prays for judgment in the sum of $3,000.

Defendants deny all of the material allegations of plaintiff’s petition and resist her demand on several grounds. They maintain that her husband was the tenant and that she herself was not a tenant but was a third person, and they assert that, as a matter of law, an owner of leased premises is not liable to a third person “unless the injuries result from an apparent defect in the premises.” They further assert that she was not hurt in the manner set forth in her petition, and they contend that she has not borne the burden of proving the facts alleged, and they further maintain that if there was any defect in the steps, she, having occupied the premises for about twelve months, was, or should have been, aware of such defect and that therefore she, herself was negligent in making use of the said steps.

There was judgment for plaintiff for $225 and defendants have appealed. Plaintiff has answered the appeal praying that the award be increased to $3,000 in accordance with the prayer of the original petition.

On the morning on which the accident occurred, plaintiff’s husband, and either two, or three, of her grown sons were in the street in front of the house, engaged in repairing an old motor truck, which belonged to them, and which they hoped to be able to use in looking for work. Another son was sick, and was inside the house. Plaintiff says: “* * * I had just put my right foot on the top part of. the step and the step loosened from the house and caused me to fall on the pavement and strike my arm and bruised my eye.” No one saw her fall, but she states that she managed to crawl back up the steps and then called to her husband and her sons, who were working on the truck in front of the house. A short time later her husband took her to the Charity Hospital. The records of that institution show that she sustained an injury to her wrist and a Col-ies’ fracture. She testified also that she sustained bruises and contusions to her head and face, and that her eye was swollen so much that she could scarcely use it for sometime.

There is no evidence whatsoever which directly contradicts the statement of plaintiff that she fell when the tread of the top step turned under her except that there is evidence to the effect that she, at one time, said that she had “slipped”. Defendants, however, maintain that there are many suspicious circumstances surrounding the alleged occurrence, and that by these circumstances there is created grave doubt as to the actual occurrence, and that this doubt is sufficient to justify the conclusion that she has not made her case sufficiently certain to justify recovery. It is shown that at the time of the alleged fall, plaintiff and her husband were delinquent in rent payments, and it is argued that this always should be considered as a suspicious circumstance. It is further pointed out that while on the witness stand plaintiff several times repeated the details of her story in such a parrot-like manner as to create the impression that she had drilled herself in the said story and was not telling the exact truth. It is true that at least four different times, while testifying, she repeated the facts, and that in doing so she used the same words almost verbatim. It is also pointed out that although she had been rather severely injured, and that although she had stated to her husband and sons, at the time, that the steps had given way under her, no other member of her family went back to look at the steps at that time, though her husband and three of her sons were perfectly well, and could have inspected the steps in a very few minutes.

Counsel for defendants would make much over the fact that though plaintiff charged that the steps pulled away from the house, the record shows they did not do so.. It is true that plaintiff alleged that “the left side of the frame of the said steps pulled away from the rear of the building” and it is quite certain that this did not occur, but if one end of the top step tilted as plaintiff put her foot upon it, she might, in good faith, have formed the impression that the entire structure was pulling away from the house. But whether such an accident occurred is a question of fact and all that we can say from the record is that there are circumstances which may be pointed to as suspicious and as throwing some doubt upon the truthfulness of plaintiff, but we cannot overlook the fact that the district judge, who saw and heard all of the witnesses, reached the conclusion that plaintiff had been injured as she alleged. It is just such a case as this which amply demonstrates the soundness of the rule that the finding of a trial judge on a question of fact should not be disturbed unless manifestly erroneous.

But defendants argue that, as a matter of law, they are not liable to plaintiff unless it can be said that the defect from which her injury resulted was apparent, and that they were negligent in not repairing it. They base this contention on the averment that plaintiff was not a tenant in the premises. In the first place, the record makes it rather clear that both plaintiff and her husband were considered as tenants. On many occasions she had paid the rent, and when defendants desired to force her husband and herself to vacate the premises, they, defendants, caused the issuance of a notice to vacate directed to “Mr. and Mrs. J. Duvernay.”

But if she was not a tenant, and was merely a third person occupying the premises through the right of occupancy which her husband had as tenant, she was thus a third person rightfully on the premises, and under the circumstances, they, as owners, were liable to her for injuries sustained as the result of such a defect. On several occasions, in other cases, it has been contended that the owner of a building is not liable to third persons rightfully on the premises unless the injury had resulted from fault on the part of the owner. But from all of those cases there has resulted a settled rule that because of the effect of Articles 670 and 2322 of our Civil Code, an owner is liable to a third person for the results of accidents caused by defects in the owner’s building, whether those defects were latent or not. In Heath v. Suburban Building & Loan Association, 163 So. 546, 551, we quoted from Hanover v. Brady, La. App., 148 So. 267, as follows: “ ‘Although the liability of the house owner to a licensee or passerby is made to depend upon negligence, the mere fact that the building is defective is in itself proof of that negligence, and this, whether the defect is apparent and easily discoverable, or is such as would not be noticed except upon careful inspection.’ ”

In Tesoro v. Abate, 173 So. 196, 202 we said: “It is true that the jurisprudence of this state has broadened the language of articles 670 and 2322 of the Code to such an extent that the owner of a building practically insures any third person, rightfully on the premises, against injury caused by the vices or defects of the building due either to construction or failure to make repairs. And this is so even though the property is in possession of a tenant and the owner is not acquainted with the fact that some of the appurtenances of the building are in need of repair. The basis of liability for any tort is fault, and the decisions have presumed negligence on the part of the owner whether such negligence actually existed or not.”

See also Hughes v. Abate, La.App., 2 So. 2d 68, 69 in which appears the following: “ * * * even if we could treat Elnora Hughes as not being a tenant, but only a third person rightfully on the premises, still she could hold Mrs. Abate liable — not under Articles 2692-2695, but under either Article 670 or 2322, for, under both of these articles an owner is rendered liable for an accident which has resulted from failure to keep his building in repair and, under the latter article, he is liable where an accident results from a defect in the building which ‘is the result of a vice in its original-construction’.- To state the matter very simply, an owner is liable to any person, rightfully on or near the premises if, because of a defect, that person, being himself without fault, is injured. Klein v. Young, 163 La. 59, 111 So. 495; Heath v. Suburban Building & Loan Association, La.App., 163 So. 546; Tesoro v. Abate, La.App., 173 So. 196; Morris v. Hava, La.App., 180 So. 216.”

The plaintiff sustained an injury to her wrist. According to the Charity Hospital report, which has been offered in evidence, her injury was diagnosed as a Colies’ fracture. An X-ray photograph taken at the hospital on the day on which plaintiff was injured, November 4, 1939, revealed that “the left wrist shows what appears to be a fracture of the styloid process of the radius with no displacement of the fragments.” On November 18th and November 25th X-rays were also taken of plaintiff’s injury. Those X-rays disclosed that “the views of the left wrist show a fracture of the distal end of the radius with good position of the fragments”. The hospital report discloses further that the fracture necessitated the placing of her left arm in a splint for 24 days, and that there were no deformities or complications. We have not been favored with any other medical testimony as to the extent of plaintiff’s injuries and so far as the hospital report shows there were no complications.

In Article 6 of her petition plaintiff alleged that she “also sustained a bruise on her left temple, a cut on her left cheek bone, and bruises on the left side of her face, which resulted in the almost immediate swelling- and closing of her left eye, * * *»_ These injuries are not mentioned in the hospital report, although plaintiff did testify that she suffered these injuries. If they resulted from the fall, they must have been very slight, otherwise they would have been noted on the hospital report.

In Johnson v. Louisiana Railway & Navigation Company, 151 La. 1075, 92 So. 704, the plaintiff broke both bones of her right forearm, and suffered a severe contusion of the right knee. She was confined to her bed for a week, and her arm was in splints for three months. The Supreme Court allowed plaintiff to recover $750 for her injuries.

In Greer v. Hamilton, 3 La.App. 120, our brothers of the Second Circuit awarded $400 for a dislocated wrist which caused disability for about eight weeks. In that case, in addition to the wrist injury, the plaintiff was considerably bruised and unable to do any work for a short period of time. He expended about $36 for doctor bills and for the making of an X-ray of his hand. All of these items of damages were included in the $400 award.

In Gardiner v. De Salles, 13 La.App. 83, 126 So. 739, the plaintiff, a thirty year old woman, sustained a fracture of both bones in her forarm and right humerus. She suffered severe pain and was confined in a hospital for three weeks, and for three months thereafter received treatment at the hospital’s out-door clinic. Further it appeared that she suffered stiffness in her arm for a considerable period after the injury, and that she had lost earnings of about $10 a week as a result of her injuries. We allowed $750 for both the injuries and the loss of earnings.

In Cyrus v. Tung, 16 La.App. 549, 134 So. 782, we awarded $500 as damages for a fractured arm, where there were no complications.

In Marsiglia v. Toye et al., La.App., 158 So. 589, the plaintiff’s injuries consisted of a fracture of the left humerus or bone of the upper part of the arm, as a result of which she had an impairment of the flexion of her left hand which prevented her from completely closing her fist, and a certain limitation in the movement of her elbow in that she could not elevate it to a normal extent. The impairment in the function of the arm and hand was estimated by her physician to be about 25% of normal. Her physician stated further that in a vast majority of similar cases the loss of the function is regained. The injured plaintiff was allowed $1,000, which included $160 for medical expense.

It is to be noted that plaintiff in the case at bar incurred no doctor bills or expense for medicine, and that she was never confined to the hospital. Since plaintiff was a housewife, naturally she did not incur a loss of wages, nevertheless as the result of her injuries it was necessary for her mother to assist her in her household duties for several weeks after the accident, and we have taken this into consideration in determining the quantum of damages. The judge, a quo, awarded her $225. We think this amount inadequate as damages for a fractured wrist, and that an award of $400 would be more in accordance with the jurisprudence.

The judgment appealed from is amended by the increase of the amount of the award to $400, and, as thus amended, it is affirmed at the cost of appellants.

Judgment amended and affirmed.