author: OVERTON, Justice. ALDERMAN, Justice,

text:
    THE FLORIDA BAR RE AMENDMENT TO INTEGRATION RULE (CERTIFICATION PLAN).
    No. 54081.
    Supreme Court of Florida.
    May 21, 1981.
    Leonard H. Gilbert, President, Tampa and Samuel S. Smith, President-elect, Miami Beach of The Florida Bar; Barry R. Davidson, Chairman, Court/Bar Committee on Specialization Regulation of Steel, Hector & Davis, Miami, Peter W. Zinober, Chairman, Designation Coordinating Committee of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa and Rayford H. Taylor, Designation Director, Tallahassee, for petitioner.
    Charles H. Egerton, Chairman, Tax Section, and Joel H. Sharp, Jr., Past Chairman, Tax Section, Orlando and Michael J. Canan, Vice Chairman, Standards and Competency Division, Lakeland, for the Tax Section of The Florida Bar, amicus curiae.
    Stephen N. Zack, President, Young Lawyers Section of Floyd, Pearson, Stewart, Richman, Green & Weil, Miami and Lawrence G. Mathews, Jr., Board of Governors, Young Lawyers Section of Fawsett, Smith, Mackinnon & Mathews, Orlando, for the Young Lawyers Section of The Florida Bar, amicus curiae.
    Talbot D’Alemberte of Steel, Hector & Davis, Miami, for amicus curiae.
   OVERTON, Justice.

The Florida Bar Board of Governors has petitioned this Court to approve a plan which will allow members of The Florida Bar to become “certified” as having special competence in the areas of taxation and civil trial advocacy. In September, 1979, we rejected the bar’s initial plan but approved lawyer certification in concept. We also suggested that the bar submit a pilot program and requested a recommendation of how certification could operate with the Florida Designation Plan approved by this Court on October 3, 1975. See In re The Florida Bar, 319 So.2d 1 (Fla.1975). We granted rehearing to allow submission of a new permanent certification plan.

We approve in substance the certification plan as submitted but have modified the grandfather provision. We find, however, that the plan’s administrative structure and procedure are cumbersome and not properly interrelated with advertising and designation. The certification plan must harmonize with and complement the advertising of legal services and our previously approved designation plan. We consequently remand to The Florida Bar for redrafting and resubmission to the Court.

As the Florida legal profession embarks fully into specialization, we emphasize its two-fold purpose. First, specialization establishes goals and provides incentive for continuing legal education which should improve the competency of the bar; second, it identifies for people both within and without the profession those lawyers who have demonstrated special knowledge, skills, and proficiency in a specific field. We firmly believe that The Florida Bar and this Court must responsibly move forward to assist the public in determining those individuals who are qualified specialists and not leave that role to telephone directory editors, voluntary professional groups, or to entrepreneurs with high-sounding specialty certificates and advertising techniques.

As to the first purpose, we recognize that neither the proposed plan for certification nor our present designation plan is a panacea for all the problems of incompetence in the practice of law. It must be understood that flagrant incompetence is more fundamental, and, in fact, results from a lack of professional integrity. Marvin E. Frankel, in an article entitled Curing Lawyers' Incompetence: Premium Non Nocere, 10 Creighton L.Rev. 613 (1977), stated: “The significant qualities distinguishing good from bad lawyers — and, thus, the areas for truly major concern about ‘competence’— are matters of character, judgment, wisdom, morals, and attitude, not the business of technical proficiency.” Technical proficiency does not protect the public from a lazy, ill-prepared, or dilatory lawyer. Technical proficiency without professional integrity still adds up to a bad lawyer, and neither the existing designation plan nor the proposed certification plan is going to ensure that professional quality. However, they are a step in the right direction. They should encourage lawyers to improve and maintain their competence in particular fields and provide a reasonably balanced method for the public to identify special competence.

We have concluded that a lawyer who has special training or has in some measurable way demonstrated special competence in a particular field of law should be able to properly advertise that fact to the public. See The Florida Bar re Amendment to the Florida Bar Code of Professional Responsibility (Advertising), 380 So.2d 435 (Fla.1980). The existing designation plan and new certification plan are directly related to lawyer advertising. The constitutional authority for lawyers to advertise was established in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), and Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), but those decisions allowed this state through this Court to reasonably regulate the advertising of the quality of legal services to avoid deceptive or misleading claims. In Bates, the United States Supreme Court said a legal clinic could advertise the prices it would charge for routine legal services. In Ohralik, the Supreme Court held that the state may discipline a lawyer for soliciting clients for pecuniary gain under circumstances likely to pose dangers to the public. The Court concluded that the state may protect the public from solicitation that involves fraud, undue influence, intimidation, or overreaching.

This Court amended the lawyer code of professional responsibility of this state to comply with Bates and Ohralik. In so doing, we construed the holding in Bates and reiterated that “certain limitations on lawyer advertising are permissible. These limitations included the following: (1) false, deceptive, or misleading advertisements are subject to restraints; (2) claims as to the quality of services may be so misleading as to warrant restriction; (3) a warning or disclaimer may be required to ensure that consumers are not misled and (4) reasonable restrictions on the time, place, and manner of advertising may be appropriate.” Advertising at 436.

Designation and certification both address the quality of legal services for the benefit of those persons who must obtain those services. With lawyer advertising, the existing designation plan, and the adoption of certification, there will be three methods of communication available to aid the public in selecting a lawyer of their choice to perform necessary services. The methods and their operational significance may be summarized as follows:

Advertising. Any lawyer may advertise his name, address, telephone number, the kind of legal services he performs, and state the routine cost of these services. An attorney may not mislead or deceive the public and, in particular, may not advertise any self-serving special qualifications or quality of service.

Designation. After three years of practice, a lawyer may designate up to three areas of specialty practice and thereby commit himself to a mandatory continuing legal education program for each designated area to assure maintenance of competency. Compliance with the continuing legal education requirements is mandatory, periodically reviewed, and must be adhered to for retention of specialty designation. In accordance with the plan, a lawyer may publish and advertise that he is “Qualified in (permitted area) under the Florida Designation Plan.”

Certification. After five years of practice, a lawyer may apply for certification in certain specialty areas, limited as presently proposed to civil trial advocacy and taxation. Certification in these areas is obtained only upon a demonstration of specialized knowledge through (a) examination or graduate academic work, (b) experience in the specialty area, and (c) peer review. After initial certification, periodic review is required. Under the plan, a lawyer may publish that he is a “Board Certified (area of specialty) lawyer.”

These three categories allow the practicing lawyer the flexibility to advise the public of his desired practice areas and of any special professional qualifications in certain areas that he may have.

In considering the certification plan submitted, we find the administrative structure cumbersome and not sufficiently interrelated with advertising and designation. Advertising, designation, and certification affect each other. Consequently we find that there should be only one central administrative governing board, with the Florida Bar Board of Governors setting policy. The rules governing advertising, designation, and certification should be redrafted to reflect the following three limitations. First, the Supreme Court will retain ultimate responsibility. This will include any policy change in advertising or designation, and the addition of any new certification area and standards. Second, the policy-making and review function for advertising, designation, and certification should be vested in the board of governors. Third, the operational and administrative responsibility for advertising, designation, and certification should be vested in a single board with subcommittees for each certification area. With these changes, we contemplate no substantive change in advertising and signation as they now exist.

With reference to the certification proposals, we approve the substance of the provisions as hereinafter modified:

(1) For certification, a lawyer must have practiced law on a full-time basis for at least five years, show substantial involvement in the certification area during three of the last five years, show satisfactory continuing legal education, and pass the appropriate certification examination.

(2) A lawyer who otherwise meets the plan’s requirements may substitute for the examination the award of an LLM degree in the certification area from an ABA-approved law school if the applicant received his degree within eight years of application.

(3) Although not contained in the proposed plan, the bar may consider lawyer certification by other jurisdictions and professional legal organizations as partial equivalent credit in the same area under the Florida plan.

(4) We reject a general grandfather authorization but will consider appropriate grandfather provisions individually as they are submitted for each certification area. Grandfather provisions should have a very limited use. We note the plan for taxation includes a grandfather provision while the plan for the civil trial practice does not. We have determined appropriate the taxation grandfather provision for those lawyers who have practiced law on a full-time basis for at least twenty years prior to the date of this opinion and who have had substantial involvement in taxation.

(5) Some grandfathering must be allowed in order to provide for initial certification committee membership. We approve the proposed grandfathering in both the taxation and civil trial areas for this limited purpose.

(6) The suggested notice provision through which the Bar can inform the public of certification significance is, in our view, appropriate; the same type of provision should be used with designation.

(7)The specific standards submitted for taxation and civil trial advocacy are substantially different in their structure- as well as their respective requirements. We approve the requirements of both standards, as modified, but believe that all certification standards should, to the extent possible, be similarly structured. Consequently, both proposed standards should be restructured along similar lines.

We have initially approved certification in taxation because taxation is presently, without question, a de facto specialty with structured educational programs available within the academic community. An individual desiring to specialize in taxation may, for example, obtain a master of laws degree in that specialty.

We have also approved certification in civil trial advocacy because much has been spoken and written about the need to properly train and identify trial advocates. In fact, the federal judiciary is now implementing pilot trial advocacy standards for admission to practice in the federal judicial system. We agree that identifying lawyers with special qualifications for trial advocacy should provide useful knowledge to the public and should be beneficial to the courts as well.

Although we have approved the basic concept for structured lawyer specialization, we recognize the strong and continuing need for the general practitioner. The generalist is absolutely essential to our judicial system. A statement by Simon Rifkind concerning specialized courts illustrates this factor:

A body of law, secluded from the rest, develops a jargon of its kind, thought patterns that are unique, internal policies which it subserves and which are different from and sometimes at odds with the policies pursued by the general law ... you have set aside a body of wisdom that is the exclusive possession of a very small group of men who take their purposes for granted. Very soon their internal language becomes so highly stylized as to be unintelligible to the uninitiated. That in turn intensifies the seclusiveness of that branch of the law and that further immunizes it against the refreshment of new ideas, suggestions, adjustments, and compromises which constitute the very tissue of any living system of law.

As this quote implies, legal specialists deal regularly with only limited issues and develop a somewhat narrow vision of legal problems. Being conscious of this, we must take care to assure that the problem does not adversely affect client representation. Even with specialization, the general practitioner will continue to be the mainstay of the legal profession and to conduct the largest segment of legal practice.

One further matter should be mentioned. With adoption of a certification plan, there will be a related need for more indepth educational programs in approved specialization areas than are presently available to the practicing bar. The legal profession and law schools should determine the existing demand and attempt to make available graduate degree programs which do not require a nine-month absence from active practice. For example, LLM programs could be structured so that a lawyer could obtain a degree by attending two or three summer sessions. A limited graduate certificate program is perhaps another alternative.

This Court recognizes its responsibility to ensure that Florida’s legal system is responsive to public needs and that the lawyers of this state have available to them a method for improving their proficiency. We believe that the public is entitled to know which lawyers have demonstrated special skills and possess technical competency in specific legal areas, and we have concluded that the framework of the proposals submitted by The Florida Bar is the proper means to accomplish this objective. We find, however, that the procedure and structure to implement the substance of the proposals can be improved. We therefore remand the proposals to the bar for redrafting and resubmission to the Court. We commend The Florida Bar for its extensive and dedicated efforts in the development of the proposed certification plan. It is, in our view, a step forward in improving the system of justice in this state.

The Florida Bar’s motion for rehearing is granted and our opinion of September 6, 1979, vacated.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, ENGLAND and McDONALD, JJ., concur.

ALDERMAN, J., concurs specially with an opinion, with which BOYD, J., concurs.

ALDERMAN, Justice,

concurring specialty-

I agree to the submission of a new permanent certification plan, and I accept the principle that a practicing lawyer, through advertising, designation, or certification, should be allowed to advise the public of his desired practice areas and of any special professional qualifications that he may have. I write specially to point out that my concurrence is based upon my understanding that the majority opinion does not expand or enlarge the type of lawyer advertising presently allowed under The Florida Bar’s Code of Professional Responsibility and that it does not authorize or condone any form of direct client solicitation.

BOYD, J., concurs.

      . Rifkind, A Special Court for Patent Litigation? The Danger of a Specialized Judiciary, 37 A.B.A.J. 425, 426 (1951).

      . The University of Virginia School of Law presently offers a summer Master of Laws program in Judicial Process for state and federal judges. See Kett, Unusual Experiment in Legal Education, [1980] Virginia Law School Annual Report 41.

        .See Chaplin, The Structure of Legal Specialization in the 1980s, in National Conference on Enhancing Competence of Lawyers (conference papers) (1981).


source: Caselaw Access Project

author: PER CURIAM. ALDERMAN, Justice,

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Ronald R. ROGOWSKI, Respondent.
    No. 59119.
    Supreme Court of Florida.
    June 11, 1981.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel and James P. Hollaway, Deputy Staff Counsel, Tallahassee, and Harris K. Solomon, Branch Staff Counsel, and Walter G. Campbell, Jr., Fort Lauderdale, for complainant.
    Ronald R. Rogowski, in pro. per., and Robert J. O’Toole, Fort Lauderdale, for respondent.
   PER CURIAM.

This is an original proceeding based upon complaint of The Florida Bar and findings of the referee that respondent, Ronald R. Rogowski, improperly advanced funds to clients, mishandled trust accounts, and failed to timely prepare a required disbursement statement.

The referee found that respondent improperly advanced funds from his client trust account to two clients in excess of the amount they had on deposit at the time of the advances. The advances of funds were made in connection with contemplated or pending litigation and were not provided for the expenses of litigation or for any other expense authorized by the Code of Professional Responsibility, Disciplinary Rule 5-103(B). The referee further found that on six occasions from 1975 to 1979 the balance in respondent’s trust account was less than respondent’s outstanding trust liabilities. Finally, the referee found that in a case handled by respondent on a contingent fee basis the required disbursement statement was not prepared as of the date of the disbursement, nor was there suitable record of the receipts and expenditures associated with the case.

The referee recommended that respondent be found guilty of violating Code of Professional Responsibility Disciplinary Rules 2-106(E), 5-103(B), and 9-102(B), and the Florida Bar Integration Rule, article XI, rule 11.02(4). We have reviewed the record, which clearly supports the findings of the referee.

In considering appropriate discipline, the referee recommended that respondent be suspended from the practice of law for sixty days, followed by one year of probation during which period respondent would be required to have a certified public accountant prepare a quarterly report on respondent’s trust accounts. The referee further recommended that respondent be required to pay $2,500 to The Florida Bar Client Security Fund, even though the record reflects no loss of client funds due to respondent’s actions and no payment by the fund on his behalf.

The Florida Bar argues that respondent’s negligent handling of his client trust account warrants more severe punishment than that recommended by the referee, as reflected by the sanctions imposed in such cases as The Florida Bar v. Enwright, 168 So.2d 129 (Fla.1964), and State ex rel. The Florida Bar v. McClosky, 130 So.2d 596 (Fla.1961). The Bar urges that respondent be suspended for a period of three months plus one day and until he shall prove his rehabilitation, to be followed by one year on probation as recommended by the referee.

Respondent argues that a public reprimand and one year on probation would be a more appropriate penalty under the facts in this cause.

We must reject the recommendation of the referee for payment to the Client Security Fund since no funds were paid out of the fund. There is no authority for this Court in a disciplinary proceeding to require a payment that is not for restitution or the payment of costs.

We approve the recommendation of the referee that the respondent should be disciplined by a sixty-day suspension, effective July 13, 1981, to be followed by a period of one year on probation, during which respondent will be required to have a certified public accountant prepare and file with The Florida Bar a quarterly report of all trust accounts of the respondent. We emphasize that an attorney’s nonlawyer personnel are agents of the attorney and that the attorney is responsible for seeing that the agents’ actions do not violate the Code of Professional Responsibility. Disciplinary Rule 3-104(C).

Costs in the amount of $2,630.20 are hereby assessed against respondent.

It is so ordered.

SUNDBERG, C. J„ and ADKINS, BOYD, OVERTON, ENGLAND and McDONALD, JJ., concur.

ALDERMAN, J., concurs in part and dissents in part with an opinion.

ALDERMAN, Justice,

concurring in part, dissenting in part.

I concur except as to the discipline imposed. I agree with the Bar and would suspend respondent for three months plus one day and until he proves rehabilitation.


author: LeBLANC, Judge.

text:
    JOHNSON v. BARBER BROS. CONTRACTING CO., Inc., et al.
    No. 2290.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellants.
    Durrett & Hardin, of Baton Rouge, for appellee.
   LeBLANC, Judge.

This is a suit brought by the plaintiff to recover compensation under the Employers Liability Statute of Louisiana, Act No. 20 of 1914, as amended, for the sum of $140.-40 and the further sum of $22 alleged to have been incurred as medical expenses. An order was granted permitting plaintiff to prosecute his suit without the payment of costs of court and without furnishing bond. The main demand represents compensation which plaintiff claims he was entitled to receive during the nineteen weeks’ period commencing October 2, 1939, and ending February 12, 1940, at the rate of $7.80 per week, less one week’s compensation which he alleges he believes was paid to him. The suit is directed against both the employer, Barber Brothers Contracting Company, Inc. and its compensation insurance carrier, the Travelers Insurance Company.

Plaintiff alleges in his petition that on October 2, 1939, while working as a laborer for his employer he suffered an accident which caused him to suddenly and severely strain and injure his back. That he was sent to his employer’s physician for medical treatment and was paid compensation in a sum which he believes to have been $7.80. He avers further that on a certain date which he does not recall exactly, while he was still suffering from the pain in his hack he was discharged by the physician to whom he had beén sent and he received no further medical treatment from his employer or his insurer. He then alleges that he sought medical treatment of his own and was attended to by Dr. Richard W. Young who, on February 12, 1940, discharged him as being free of any disability.

On information and belief plaintiff avers that at the time of his accident he was suffering from prostatitis; that the ailment was not bothering him but after the accident a combination of the prostatitis and the strain to his back muscles caused him to become disabled, which disability was not relieved until after several treatments consisting of prostate massages. The proximate cause of his disability, he therefore alleges on belief, was the accident which produced the strain to the muscles of his back.

The defendants in their answer admit that on or about October 2, 1939, plaintiff reported an accident or injury while working for Barber Brothers Contracting Company, Inc., and aver that he was sent to Dr. W. B. Chamberlain for examination and treatment. That he was discharged on or about October 16, 1939, and was paid compensation in the sum of $7.80 for the week ending on that date. They further aver that if he was disabled after that date his disability was attributable to pro-statitis which was in no way connected with his employment by Barber Brothers Contracting Company, Inc.

After trial of the case in the court below, there was judgment in favor of the plaintiff and against the defendants for the full amount of the demand, including the sum of $22 for medical expenses, whereupon this appeal was taken and perfected.

The only issue presented, as we view it, is whether any relation or connection has been shown between the prostatitis with which plaintiff was suffering, and which cleared up after treatment, and the strain to his back muscles suffered in the accident of October 2, 1939. A proper determination of this question depends, naturally, on the medical testimony found in the record.

Dr. Chamberlain who examined plaintiff on October 2, 1939, the day of the accident, found that he had suffered a strain of the muscles of the posterior lumbar region on the right side. He prescribed the usual treatment consisting of hot applications and massage with a liniment, after which he strapped the back with adhesive tape. On October 16, 1939, he discharged plaintiff as in his opinion he was able to return to work. He made no examination for prostatitis and knows nothing about plaintiff having subsequently suffered from such an ailment.

After his discharge by Dr. Chamberlain plaintiff reported to his employer but was told that there was no work for him right at that moment but when there would be, he would be called back. Plaintiff states that although he was still suffering from his back he tried to work, doing various things, even attempting to cut sugar cane, but was unable to hold out even for a full week.

On November 28, 1939, at his attorney’s request, plaintiff was examined by Dr. Shewen Slaughter. On that date and also two days afterwards, in this doctor’s own words, he made an examination consistent with the patient’s history, including a massage of the prostate gland and also obtained a smear to find out if there was any infection. The smear was negative and the gland fairly normal. Although plaintiff claimed to be suffering pain in his back Dr. Slaughter could determine no limitation of motion in the back and could find nothing to indicate any disability on the dates he examined him. He made his report to plaintiff’s attorney and it may be pertinent to state that he was not called to the witness stand by plaintiff but used by the defendants as their own witness.

Dr. E. K. Hirsch examined the plaintiff at the request of the defendants on December 16, 1939, which it is to be noted, was a little more than two weeks after Dr. Slaughter had seen him. Dr. Hirsch testifies that he made a complete physical examination with a view of determining whether or not plaintiff was suffering with any disability or pain in his back. He took X-rays of the pelvis and of the lumbar spine and all his findings were negative as to any pathology whatsoever. He also made a genito-urinary examination to find out if the prostate was infected and the finding there was also negative. His conclusion was that there was no evidence of any trouble to cause the pain which plaintiff complained of in his back.

On January 26, 1940, more than five weeks after Dr. Hirsch’s examination plaintiff, consulted Dr. Richard W. Young who found him suffering at the time from prostatitis necessitating massage of the prostate gland. He administered treatment of that nature over a period extending to February 12, 1940, at which time plaintiff had become free of pain and was able to resume work. Dr. Young did not determine the actual cause of infection of the prostate gland nor was there any way of his telling how long it had existed. Whilst he does state that, assuming that it was present at the time of the accident on October 2, 1939, it could very likely have prolonged the pain caused by the back sprain on that day, yet he says that it is possible that it could have developed in the period of time between December 16, 1939, when he was examined by Dr. Hirsch and January 26, 1940, the date of his own examination. When asked to express an opinion on Dr. Hirsch’s negative finding regarding prostatic infection' on December 16, 1939, Dr. Young answers that he has every reason to respect Dr. Hirsch’s opinion about the matter. Under the circumstances Dr. Hirsch’s testimony certainly cannot be disregarded and taken into consideration with that of Dr. Slaughter who had examined plaintiff two weeks previously and had found no evidence of infection even at that time, it would be difficult indeed to conclude that a prostatic condition could have prolonged the pain which resulted from the back injury of October 2, 1939.

We have given full consideration to the testimony of the plaintiff and that of the lay witnesses produced by him but it all relates to the pain which he complained of which all the doctors agreed was of a subjective character and for which they could not account pathologically or objectively in the absence of any prostatic infection and which infection did not develop until sometime after December 16, 1939. Plaintiff has shown no causal connection between this condition and the sprain of the muscles in his back in the accident of October 2, 1939, failing- in which, he cannot recover. It is firmly-established in the jurisprudence of this State that a suit for compensation presents no exception to the general rule that a plaintiff, in order to obtain judgment, must prove his case to a legal certainty and that proving it to the point of mere probability is not sufficient.

It is for the reasons herein stated now ordered that the judgment appealed from be avoided, reversed and set aside and it is further ordered that there be judgment in favor of the defendants and against the plaintiff dismissing his suit without costs.


author: PER CURIAM.

text:
    PEDERSEN v. CAPITOL STORES, Inc., et al.
    No. 2293.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rownd & Tycer, of Hammond, for appellant.
    Sanders & Miller, of Baton Rouge, for appellee.
   PER CURIAM.

An exception of no cause or right of action filed in this suit was sustained and judgment rendered dismissing the plaintiff’s suit. The judgment rendered was read and signed in open Court on March 14th, 1940. As far as the record which is presently before us shows, on March 7th, 1941, plaintiff petitioned the lower Court and obtained from it an order for a devolu-tive appeal returnable to this Court on or before the 30th day of April, 1941, conditioned upon the appellant furnishing bond in the sum of $50. Service of the petition and order for appeal was accepted and citation waived and the appeal bond duly filed on March 13th, 1941.

The appellant apparently took no further steps in the matter and the record was never transmitted to this Court by the Clerk of the District Court. In a certificate signed by a Deputy Clerk of Court and attached to the motion now under consideration, it is made to appear that the appeal was not lodged in this Court for the reason that the record was taken from the Clerk’s office by Counsel for plaintiff and it was impossible to prepare the transcript of appeal, all of which was due to no negligence on the part of the Clerk of Court.

In the motion of the defendant-appellee, Capitol Stores Inc., to dismiss the appeal, it is averred that the record was recently located in the office of counsel for plaintiff-appellant, and was thereupon returned to the Clerk of the District Court from whom it was received and attached to the motion solely for the purpose of considering and acting upon the said motion. It is only in this manner that the record was lodged in this Court and that was not until Oct. 3rd, 1941, more than five months after the return date.

On the showing made, it appearing that it was not through any fault or <negligence on the part of the Clerk of the District Court that the transcript of appeal was not filed in this Court on or before the return date, the motion to dismiss the appeal is well urged and will be sustained.

For the reasons stated, it is therefore ordered that the said motion be and the same is hereby sustained and that the appeal herein taken be dismissed at the cost of appellant.


author: DREW, Judge.

text:
    HERRING v. PRICE.
    No. 5282.
    Court of Appeal of Louisiana, Second Circuit.
    June 18, 1941.
    Rehearing Denied July 7, 1941.
    Certiorari Refused Oct. 7, 1941.
    Wm. C. Boone, of Shreveport, for appellant.
    J. B. Crow, of Shreveport, for appellee.
   DREW, Judge.

Plaintiff alleged that on January 30, 1933, James R. Price conveyed to him by deed Lot No. 3 of Section 3 and Lot No. 5 of Section 4, Township 20, Range 16 West, Caddo Parish, Louisiana; that the consideration for said property was $400 cash in hand paid and three notes, one for $100, due November 10, 1933, and the other two notes, for $250 each, due on November 10, 1934 and November 10, 1935, respectively. That on January 30, 1933, he paid defendant the $400 and on October 31, 1933, he paid to him $50 and soon thereafter made another payment of $140, making a total of $590, which he has paid on the purchase price of said property.

Plaintiff further alleged that after he had made the above stated payments, he learned that defendant had allowed the property to be forfeited to the State for unpaid taxes for 1932; that he called upon the defendant to redeem the property but he refused to do so and instead brought a foreclosure suit against him on the remaining notes which were then due. Plaintiff also alleged that he would not have bought the property had he known that defendant had permitted it or would permit it to be forfeited to the State for unpaid taxes; and that since the property was forfeited to the State for taxes due by defendant, he, plaintiff, is entitled to the return of the money he paid on the purchase price.

Plaintiff further alleged that from an examination of the record he had learned that the Gulf Refining Company of Louisiana has title to or is claiming title to a portion of the property deeded to him by the defendant and that he would not have purchased said property had he known of this outstanding title.

In the alternative, plaintiff avers that he is entitled to have defendant procure and make to him a good and valid title to all the afore-described property free from any outstanding titles, claims, privileges, mortgages or other encumbrances, and that he stands ready and willing to pay the balance due on the purchase price upon defendant-doing so.

Plaintiff prayed for judgment against the defendant in the sum of $590, with legal interest from judicial demand until paid and for $300 additional as attorney’s fees and expenses incurred by him; and that the outstanding notes given by him to defendant as part of the purchase price be ordered cancelled and returned to him. Plaintiff further prayed, in the alternative, that defendant be ordered to make a good and valid title to him of the above described property free from all outstanding titles, claims, liens, privileges and other encumbrances.

This suit was filed on January 17, 1935.

Defendant filed an exception of no cause of action to plaintiff’s petition and also filed a motion for a bill of particulars. Both were properly overruled by the lower court and are not now seriously urged here.

Defendant answered admitting that he sold and executed a deed to plaintiff for the above described property for the consideration set out in plaintiff’s petition. He admitted that plaintiff had paid part of the purchase price. He denied all the material allegations of plaintiff’s petition and further alleged that during the entire time that plaintiff held title to the property he never paid any taxes thereon and that the only reason defendant did not pay the 1932 taxes on the property prior to making deed to plaintiff was because the Tax Rolls for the year 1932 were not open and it was impossible to pay them; that later and before the time the property was sold at sheriff’s sale under foreclosure proceedings instituted by him, he redeemed the property from the State but specifically denied that plaintiff ever made any demands upon him to redeem the property or to do any other thing in regard to the property. Defendant alleged that he acquired the property by patent from the United States Government.

Defendant further alleged that, outside of the initial payment of $400, plaintiff has never willingly complied with his contract and that the additional payments alleged to have been made by plaintiff were made after the foreclosure proceedings had been instituted and that the last time he was compelled to resort to foreclosure proceedings in an effort to collect what was due, plaintiff made no defense and allowed the property to be sold and did not appear at said sale; and prayed for plaintiff’s demands to be rejected at his costs.

On these issues the case was tried and on the 5th day of October, 1935, the lower court rendered judgment for plaintiff requiring him to pay the balance of the purchase price to defendant upon defendant conveying to him the above described property, free of all liens, encumbrances or other claims and, upon defendant’s failure to do so within 30 days from date of judgment, that there be judgment for plaintiff against defendant condemning defendant to pay to plaintiff the amount paid on the original purchase price, $590, with legal interest from judicial demand until paid.

The judgment of the lower court was not complied with within 30 days and plaintiff issued execution, seized and advertised for sale to satisfy said judgment the same property involved here which had been bought by defendant in his foreclosure proceedings against the plaintiff. Defendant then issued a rule to show cause why a preliminary injunction should not issue to stop the sale, alleging the property was worth less than $2,000 and was his homestead and therefore exempted by law from seizure and sale to satisfy said judgment. The rule was tried, judgment rendered and signed on January 9, 1936, recalling and dismissing the rule and denying application for a preliminary injunction.

On March 4, 1936, defendant prayed for and was granted a devolutive appeal from the judgment rendered on October 5, 1935, on the main demand. No appeal was prayed for or granted from the judgment on the rule for a preliminary injunction.

The appeal was lodged in this court on April 13, 1936. Plaintiff and appellee filed several motions to dismiss the appeal and on June 26, 1936, this court remanded the case to the lower court to have evidence adduced on the question of acquiescence in the judgment by defendant, as alleged in the motion to dismiss by plaintiff (see 169 So. 349). The case lay dormant in the lower court for several years and finally the testimony on the question of acquiescence was heard and the case was again lodged in this court on March 7, 1941.

Plaintiff relies in his motion to dismiss the appeal on the ground of acquiescence in the judgment by defendant upon the sheriff’s return in the first sale under the writ of execution. The return shows that the last and highest bidder was defendant and that the property was adjudicated to him. However, the record discloses that defendant was not present at this sale or at any other sale or attempted sale of the property by the sheriff and that the bid was made by his son who was acting without authority from his father and without his knowledge. Defendant did not comply with the bid and the property was again advertised and sold and bought by a third party to this suit. The first time it was advertised for sale, defendant’s son acted as an appraiser. The appraisement was so high there were no bidders. The action of the son as an appraiser was not with his father’s consent or knowledge. It is clear to us that defendant did not acquiesce in the judgment of the lower court.

Plaintiff contends, however, that all the testimony to contradict or vary the sheriff’s return was admitted over his objection and was inadmissible for the reason there were no pleadings by defendant alleging fraud, error or false return, and without such allegations the return could not be contradicted.

The plaintiff in this suit was the plaintiff in the motion to dismiss the appeal. No answer is required to such a motion and when plaintiff offered in evidence the sheriff’s return to establish the fact alleged in his motion, defendant in motion had the right in law to attack or contradict such return on the ground of error or fraud in defense to the motion. The testimony was, therefore, admissible.

The motion to dismiss the appeal is overruled.

Plaintiff and appellee has suggested to this court that if we should overrule the motion to dismiss the appeal, the case should then be set down for argument on its merits. We can see no good reason for longer delaying a final termination of this case. It has been argued twice before us on its merits and we are sure a third time would not enlighten us any more than we have already been.

There is very little dispute if any over the facts in the case. Defendant acquired the land which he deeded to plaintiff from the United States Government. All minerals in and under it were reserved by the Government. On January 30, 1933, defendant by notarial deed transferred the land to plaintiff and no mention was made in the deed relative to the minerals. At that time the taxes for 1932 had not been paid, although the Tax Rolls had been filed with the sheriff and were open for taxes to be paid. However, it is evident that defendant did not know at that time that the Tax Rolls were open for payment of taxes. Plaintiff paid to defendant $400 at the time the deed was executed and signed three notes, one .for $100, due November 10, 1933 and two other notes for $250 each, due November 10, 1934 and 1935, respectively. On October 21, 1933, plaintiff paid $50 to defendant on the $100 note and sometime later and after foreclosure proceedings had been instituted, plaintiff paid an additional $140. Plaintiff moved onto the property in March, 1933, and moved off of it on August 12, 1933.

Plaintiff testified that in the early part of 1934, he went to pay taxes and found that the property had been forfeited to the State for 1932 taxes. He made no demand of defendant to redeem the property but immediately went to see his lawyer and turned the case over to him. He also testified that defendant told him at the time of the transfer that all taxes were paid up to date. Defendant testified that he told the plaintiff he could not pay the taxes because the Tax Rolls were not open and that in lieu of paying the taxes, which amounted to about $10, gave plaintiff ten rolls of paper roofing. Plaintiff testified the ten rolls of roofing were in the trade for the place and a part of it and had nothing to do with the taxes.

After plaintiff had moved off the place and failed to meet the note due November 10, 1934, defendant foreclosed by executory process. During the time the property was being advertised for sale he learned that the title was in the State, due to failure to pay taxes for 1932. He immediately redeemed the property under foreclosure from the State before the sale date and had the sale by the sheriff completed.

There is no evidence in the record to show that the Gulf Refining Company of Louisiana holds any outstanding title to any part of the land, as alleged by plaintiff, and does not claim to hold any.

The facts narrow the case down to the question of whether or not defendant’s failure to pay the 1932 taxes, thereby allowing the property to be forfeited to the State, is a sufficient ground for setting aside the sale and whether or not the failure to mention in the deed from defendant to plaintiff that the minerals had been reserved by the United States Government, amounted to a warranty that the minerals were transferred to plaintiff, when they were not, therefore, being a ground for rescinding the sale.

In regard to the last question, a serious doubt enters as to whether the pleadings are sufficient to sustain it. There is no reference made to the minerals in the pleadings and no oral testimony as to their value or potential value and, to our mind, it is very clear that the.question regarding the minerals, or the failure to acquire the minerals, was never considered by the plaintiff before he filed suit to rescind the sale. It was only during the trial or, we might better add, after the trial that the mineral question was thought of.

Plaintiff undoubtedly bought this property for a home. This is evidenced by the fact that he moved onto it soon after he acquired it and the fact that he moved off of it about five months later, before any foreclosure or before it was adjudicated to the State is sufficient evidence that the property did not suit him. The last payment he made was after the. foreclosure proceedings had been instituted. When he learned in the early part of 1934 that the property had gone to the State for unpaid taxes of 1932, he made no effort to redeem it, which he could have done and deducted the amount from the next note when it became due. Neither did he inform defendant and demand that he redeem it. Plaintiff immediately visited his lawyer to find out if he could not rescind the sale and get his money back that he had paid on the purchase price. The fact that he did not have title to the minerals in and under the property did not concern him. The record is barren of any testimony to show that he did not know that the minerals were reserved by the United States Government or that he placed any value on them.

The warranty deed from defendant to the plaintiff, without any reservation or exception as to the minerals on its, face, conveyed the minerals to plaintiff. Since defendant did not own the minerals, he could not convey them. If these facts under some circumstances would be sufficient ground to rescind the sale, under the pleadings and evidence in this case it certainly is not and the most plaintiff could claim on this account would be a reduction of price.

When defendant executed the • deed to plaintiff, the taxes for the year 1932 were due and operated as a lien upon the land. The right of the State to sell the land for the unpaid taxes did not arise until after plaintiff acquired the property. The land was adjudicated to the State for unpaid taxes in the fall of 1933. Plaintiff learned of this fact in the early part of 1934, within the period in which a redemption deed could have been secured from the State. The State did not in any way interfere with the possession and use of the land by plaintiff. The title in the State was imperfect until the resumption period had passed. No eviction of plaintiff had therefore taken place. It was only a threatened eviction and, under Article 2S17 of the Revised Civil Code, plaintiff, when he learned of this fact, was obliged to notify defendant, his vendor, and request him to redeem the property in order to preserve his right of warranty. He failed to do this. That defendant would have redeemed the property if he had been notified by plaintiff is evidenced by the fact that he did redeem it before the sale •under foreclosure proceedings, which was .as soon as he learned that the State had taken the land for non-payment of the 1932 taxes. This redemption of the land by defendant inured to the benefit of plaintiff and perfected his title thereby. Lear v. John, 6 La.App. 197.

Plaintiff was never evicted from the property and was only threatened with eviction and the threat was thwarted when defendant redeemed the property from the State for the benefit of plaintiff. Plaintiff is therefore without right in law to have the sale rescinded and the purchase price returned to him.

The judgment of the lower court is erroneous and is now reversed and plaintiff’s demands are rejected at his costs in both •courts.


author: DORE, Judge.

text:
    MAAS et ux. v. HARVEY et al.
    No. 2262.
    Court of Appeal of Louisiana. First Circuit.
    Oct 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Writ of Error Granted Jan. 5, 1942.
    J. Oliver Bouanchaud, of Baton Rouge, for appellant.
    Fred G. Benton and Fred S. LeBlanc, both of Baton Rouge, for appellee.
   DORE, Judge.

In this suit plaintiff and his wife seek damages against J. N. Harvey, an employee of the Louisiana Tractor and Machinery Company, a commercial partnership domiciled in the Parish of East Baton Rouge and composed of Matthew J. Carbonne and George E. McNutt, and against the said partnership and its insurer, the American Employers’ Insurance Company, in solido, for injuries sustained by Mrs. Maas, and for medical expenses .incurred thereby resulting from a collision with an automobile owned by the Louisiana Tractor & Machinery Company and driven by defendant Harvey.

Plaintiffs allege that they were driving on the right-hand side of North Boulevard, in an easterly direction in the City of Baton Rouge, when defendant Harvey, who was travelling in the same direction, attempted to pass them; that, in so attempting, Harvey struck the rear left bumper and fender of their car, which caused a certain jolting blow to their car and resulted in the injuries to Mrs. Maas, which form the basis of this suit. Plaintiffs allege that the accident was due solely to the negligence of defendant Harvey and not to any negligence or contributory negligence on their part; that the said Harvey was negligent in failing to keep a proper lookout and in his failure to exercise proper care and caution in passing the plaintiffs’ car; that Harvey stated shortly thereafter that he had misjudged the distance between the cars in attempting to pass the plaintiffs’ car. Plaintiffs invoke the doctrine of res ipsa loquitur; and allege that Harvey was driving the car of his employer with the owner’s knowledge and consent, while engaged in the course of his duties and within the scope of his employment or incidentally thereto; that said automobile was insured by the defendant insurance company and that under a provision of the policy they were entitled to recover, not only from defendant Harvey and his employer, but also from the insurance company.

The defendants, the tractor company and its insurer, filed a joint answer denying all of the allegations of the plaintiffs, save and except that Harvey was an employee of the defendant tractor company and had been such for some months prior to the accident; that his duties involved the travel-ling over the territory covering the Parish of East Baton Rouge and other surrounding parishes to contact prospective purchasers of his employer’s products and had been furnished a car, together with all expenses, that the said automobile was kept in his possession at all times for such purposes, and that the said automobile was covered with insurance. Defendants denied that they were liable under the facts and circumstances of the case. They affirmatively averred that Harvey, at the time of the accident, was not acting within the scope or course of his employment, but was engaged on a personal social mission, without their knowledge or consent.

Upon trial, there was judgment in favor of the plaintiffs and against all defendants in solido. From this judgment the tractor company and its insurer have appealed.

As we fail to find any answer on behalf of the defendant Harvey, or a default entered as against him, we are not concerned with his liability. The case was tried only as to the two defendants who answered and have appealed.

Under the facts as disclosed by this record, Harvey’s negligence is conceded for the purpose of this discussion. The plaintiff contends that the following coverage clause as contained in the insurance policy makes the defendant insurance company liable:

“Division 1. Automobile Dealer or Repair Shop.
“The ownership, maintenance, occupation or use of the premises herein designated, including the public ways immediately adjoining, for the purpose of an automobile dealer or repair shop, and all operations either on the premises or elsewhere which are necessary and incidental thereto, including repairs of automobiles or their parts, and ordinary repairs of buildings on the premises and the mechanical equipment thereof; and the ownership, maintenance or use of any automobile for any purpose in connection with the above defined operations, and also for pleasure use”. (Italics ours).

While defendants contend that the said clause is modified or explained by the definition of the word “Assured” in the policy as follows:

“111. Definition of ‘Assured’. The unqualified word Assured includes not only the named ‘Assured’ but also any partner thereof if the named ‘Assured’ is a partnership, and the president, vice-president, secretary and treasurer of the corporation if the named Assured is a corporation, with respect to the operation, for business or pleasure, of any automobile owned by or in charge of the named ‘Assured’, except an automobile owned by such partner or officer or by a member of his family; but this provision shall apply only with respect to any such partner or officer who earns remuneration which is included in the total remuneration upon which premium for this policy is based, as hereinafter provided”, which clearly show that the policy only extended coverage to the business operations by an employee of the assured.

Our interpretation of the contract of insurance, .especially the clauses quoted above, after a careful consideration of the same, is in effect that the clause relied on by the plaintiff is not such an omnibus clause as is generally found in other forms of insurance contracts and that the coverage does not extend to any person driving an automobile belonging to the tractor company. In other words, under the terms of the policy liability is assumed by the insurance company only where injury is caused by someone operating an automobile belonging to the tractor company in the course and scope of its employment or incidental thereto. The important question, then, is whether or not, at the time of the accident, Harvey was operating the automobile of the tractor company in the course ■of its business or incidental thereto, in such a way as to make the tractor company liable for the injury caused by its employee.

The following facts are admitted: Harvey was in the employ of the tractor company as a salesman of its tractors, draglines and other kinds of machinery. He was .given unlimited use of the automobile belonging to the tractor company, which automobile was admittedly covered by the policy. He was permitted to keep it at his home and to use it day and night, either for business or pleasure and in going anywhere he saw fit. The tractor company paid all expenses in the way of gas and oil and the upkeep of the car. Harvey was in the nature of a roving salesman. The evident purpose of this arrangement between the tractor company and Harvey was to .■give the latter full opportunity of making ■contacts with prospective purchasers for sale of the products of his employer. It •was contemplated that Harvey would have no definite routes to travel or people to see; that he might meet a prospect at any time ■while on a business trip or while on a social function.

The evidence shows that Harvey had gone in this car to meet three young lady passengers on a bus from New Orleans to visit in his home in Baton Rouge, at about the hour of 3 o’clock P. M. The three young ladies got off of the bus at Government Street, from which they were taken do his home. The baggage of these three young ladies continued on the bus to the main bus station situated on Lafayette Street. At about 5 o’clock P. M., Harvey, in company with one of the young ladies, decided to go to the main bus station to get .all of the baggage. Upon obtaining the baggage at the bus station, he and the young lady stopped at the Heidelberg Hotel to ob-tain tickets for the game of football to be played at the L. S. U. stadium that night. After leaving the Heidelberg, Harvey and his companion drove east on North Boulevard on his way home, and the accident 'happened just before reaching Dufrocq .Street.

As previously stated, the evidence in the ■case plainly shows that the accident was ■caused by the gross negligence of Harvey in attempting to pass plaintiffs’ car, and it is not necessary to discuss the details of the accident. After the accident, Harvey, without stopping, drove to his house, where he, his wife and visiting friends had lunch, and thereafter went to the football game at L. S. U.

Counsel for plaintiffs makes a very ingenious argument to show that Harvey, at the time of the accident, was acting within the incidental scope of his authority under these facts. They admit that at the time of the accident Harvey was engaged purely on a social mission of his own. But they argue that he was at all times looking for a prospect while going from place to place driving the company’s car and that at such times he was engaged in affairs incidental to and connected with his employment, whether he would be on a social visit or on a trip to see an individual on behalf of his employer or not. There seems to be some force or merit in this argument. However, to adopt this point of view would be to stretch the scope of his employment to include all of his time and activities, including his own personal social activities for his own pleasure. It is obvious that in using the company car on this mission, Harvey was not doing anything directly or indirectly in furtherance of his employer’s business. In fact, it is our opinion that his employer’s business was far from being in his mind. Just how it could be said that the use of this car in going to the bus station for the baggage, the stopping at the hotel for football tickets and his return to his home was in the interest of his employment is beyond our understanding. The young lady who accompanied him on this trip definitely denies that she was in any way a prospect for the sale of any of his employers’ wares or merchandise. His stopping at the Heidelberg for football tickets was likewise purely for social purposes. In fact, according to his own testimony, the only thing he did there was to obtain the football tickets, without seeking to contact anyone for any purpose but that. Suffice it to say, when this accident took place Harvey was engaged in no activity that was even remotely connected with his employment so as to hold his employer and its insurance company liable.

For these reasons, it is ordered, adjudged and decreed, that the judgment appealed from be, and the same is hereby avoided, annulled and reversed, and that there now be judgment in favor of the Louisiana Tractor & Machinery Company and the American Employers Insurance Company of Boston, Massachusetts, dismissing plaintiffs’ suit as to them at the cost of the plaintiffs in both courts.


author: DORE, Judge. OTT, Judge

text:
    HARRIS v. TRADERS & GENERAL INS. CO. et al.
    No. 2264.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Writ of Error Granted Jan. 5, 1942.
    Fred G. Benton, of Baton Rouge, and Jones & Jones, of Marshall, Tex., for appellant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellees.
   DORE, Judge.

This case presents purely a question of law. It involves the interpretation of Sections 31 and 18 of Act 20 of 1914, with amendments, (our Workmen’s Compensation Statute). These sections deal with the time limit and the procedure for the bring- ■ ing of an action under the Act. Section 31 provides that "in case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties shall have' agreed upon the payments to be made under this Act or unless within one year after the accident, proceedings have been begun as provided in Sections 17 and 18 of this Act." Act No. 85 of 1926. (Italics ours.) With reference to the procedure it is provided under Section 18 (Section 17 not being involved in this case) that the action must be brought in a district court which would have jurisdiction in a civil case or the district court of the Parish in which the injury was done or the accident occurred or in any court at the domicile, or at the principal place of business, of the defendant having jurisdiction of the amount of dispute, at the option of the plaintiff.

It appears that the plaintiff was employed in Caddo Parish, Louisiana, in the motor transportation business, by L. T. Campbell, a resident of Gregg County, Texas, and that the said Campbell carried workmen’s compensation insurance under the terms of the Louisiana statute with the defendant insurance company, a corporation domiciled and having its principal place of business out of the State of Louisiana, but doing business in the State of Louisiana.

It further appears that plaintiff was injured in Cass County, Texas, on or about November 27, 1936, while in the employ of the defendant, L. T. Campbell, for which injuries he is now seeking compensation.

It further appears that the plaintiff first filed his claim for compensation with the Industrial Accident Board of Texas, and, upon being denied relief by that agency, on October 13, 1937, filed suit against the legal representatives of Campbell, he having died in the meantime, and against his insurer, in the District Court of Gregg County, Texas, praying for compensation under the terms of the Louisiana Workmen’s Compensation Law. The defendants filed a general demurrer to this suit, based, in the main if not entirely, on lack of jurisdiction of the Texas court. The demurrer was sustained and plaintiff’s suit was dismissed on January IS, 1938.

After the dismissal of his suit by the District Court of Gregg County, Texas, plaintiff filed suit, on February IS, 1938, in the District Court of. Caddo Parish, Louisiana, obviously with the hope of obtaining personal service on the legal representatives of L. T. Campbell, which hope was never realized. The insurance company was cited through the Secretary of State of Louisiana, and made a special appearance to enter an exception of no jurisdiction ratione personae, which exception was properly sustained by the Caddo Parish court.

On March 6, 1940, while the suit was still pending in Caddo Parish, plaintiff filed his suit in the District Court of East Baton Rouge Parish, and was there met (1) with an exception of lis pendens based on pend-ency of the action in Caddo Parish; (2) with an exception of no jurisdiction ratione personae and ratione materiae; (3) an exception of vagueness on the ground that plaintiff’s petition failed to state whether the accident occurred in Louisiana or in Texas; and (4) a plea of one and two years’ peremption.

The plea of lis pendens was abandoned upon the dismissal of the suit in Caddo Parish. The exception to the jurisdiction was also dismissed, on the ground that the insurance company could be sued in East Baton Rouge Parish, the domicile of the Secretary of State, its process agent. The exception of vagueness was sustained and plaintiff given ten days in which tó amend his petition, and it was then agreed between the parties that the accident occurred in Cass County, Texas, in satisfaction of the plea of vagueness. The plea of peremption was sustained, and it is from the judgment sustaining this plea that plaintiff appeals, and consequently the only question before us is whether or not plaintiff’s suit was perempted.

Since the suit in East Baton Rouge Parish was not filed until after two years from the date of dismissal of plaintiff’s suit by the' District Court of Gregg County, Texas, it is unnecessary for us to discuss the legal effects of the filing of plaintiff’s suit in Gregg County, Texas, unless we can find that the Caddo Parish suit tolled the peremption statute. By filing his suit in Caddo Parish plaintiff knowingly took the chances of securing personal service on the defendants, and should that have happened undoubtedly the peremption statute would have been tolled, but since personal service was not obtained in the Caddo Parish suit it cannot be said that that suit had any effect on the case, since the Caddo Parish Court never had jurisdiction ratione personae of either defendant. In other words, it is our opinion that the Caddo Parish suit had no more effect on the peremption statute than a suit in any other court having only potential jurisdiction of the case.

As to the suit in East Baton Rouge Parish, we are of the opinion that it was properly filed and that the court had jurisdiction, but because more than two years had expired since the dismissal of the suit by the District Court of Gregg County, Texas, the cause of action was perempted under the terms of the statute. We fully realize that the compensation law was written for the benefit principally of the employee and should be liberally interpreted, and we wish that we could find some reasonable theory under which plaintiff’s case could be tried on its merits.

Plaintiff, in his original brief, contends that by virtue of Act 39 of 1932, the filing of his action in Caddo Parish interrupted the period of peremption. Yet in his supplementary brief, he admits that Act 39 of 1932 has no application to the case at bar, but seriously contends that Civil Code, Article 3518 does apply, and Section 31 of the compensation statute is a statute of prescription rather than of peremption.

In several cases in which Section 31 was involved, the courts of this State, including ours, have indiscriminately referred to the limitation period as therein contained as a plea of prescription or per-emption. However, we feel that this question has been finally put to rest by the decision of the Supreme Court in the case of Brister v. Wray Dickinson Co., Inc., 183 La. 562, 164 So. 415, wherein that court drew the distinction between the two terms and left but little doubt that the limitation provided in said Section 31 was one of peremption, and not of prescription.

The several courts of this State had under consideration Civil Code, Article 2315 and other similar articles or statutes of the State dealing with peremptive periods. They, in those decisions dealing with peremptive period, decided that Articles of the code dealing with “the Causes Which Interrupt Prescription” and “the Causes Which Suspend the Course of Prescription” (3516-3527), do not apply to peremptive periods. See Matthews v. Kansas City S. Ry. Co., 10 La.App. 382, 120 So. 907 and the cases therein cited and discussed. We are therefore of the opinion that Article 3518 has absolutely no application to the case at bar.

As previously stated, it is our conclusion that the peremptive period was not suspended by the filing of the suit in Caddo Parish, and since more than two years intervened between the dismissal of the suit in the Texas court and the filing of the suit in East Baton Rouge Parish, • we fully agree with the trial judge that plaintiff’s cause of action is perempted, regardless of the effect of the Texas suit, and accordingly the judgment appealed from is affirmed.

OTT, Judge

(dissenting).

In my opinion, the plaintiff has sufficiently complied with Section 18 of the Compensation Statute (Act 20 of 1914, as amended) so as to keep alive his claim for compensation up to the time he filed the present suit against the insurance company in East Baton Rouge Parish, although more than a year had elapsed from the date of the accident to the date of filing this suit. Whether the limitation period of one year fixed by Section 31 of the Act for filing the suit is to be considered a statute of peremption or one of prescription, in either case, the plaintiff has done all that could be reasonably required of him under Section 18 to have his claim adjudicated by a court of competent jurisdiction.

For the purpose of this suit and in order that plaintiff’s claim for compensation should not be forever barred under Section 31, it is necessary for him to show that within one year of the accident he begwi proceedings before the judge of the district court which would have jurisdiction in a civil case, or before a judge of the district court in the parish where the accident occurred, or before any court at the domicile of the defendant, having jurisdiction of the amount in dispute.

The suit filed by plaintiff in Gregg County, Texas, was filed at the domicile of the employer, or his representatives, and within a year after the accident. If that court had jurisdiction of the amount in dispute, obviously, under the p**Lin provisions of the statute, he began a proceeding within the year as is required by the statute to keep his claim alive so long as that suit was pending. Plaintiff alleges in his petition in this suit that the district court of Gregg County, Texas, was a court having jurisdiction over the parties and the subject matter, and that his cause was dismissed by said court over his objection. It was therefore incumbent on defendant in this suit to allege and show that the suit in the Texas court was dismissed for lack of jurisdiction over the parties and the subject matter involved in that suit. This the defendant has not done.

The briefs inform us that the case was dismissed by the Texas court on the authority of Johnson v. Employers Liability Assurance Corporation, Tex.Civ.App., 99 S.W.2d 979, and Federal Underwriters Exchange v. Doyle, Tex.Civ.App., 110 S.W. 2d 618, Id., Tex.Civ.App., 111 S.W.2d 742. But it is clear from a reading of those cases that the Texas court declined to entertain jurisdiction of a compensation case under the Louisiana law, not because the court did not have power and authority to adjudicate the claim but because as a matter of policy it declined to do so under the state of facts shown in those cases. In the first of those cases the accident happened in Louisiana, the employer was a resident of Louisiana, and the work was being performed in Louisiana, and in the other case the employee was working in Louisiana at the time of his injury. In this case, however, as is now conceded, the accident occurred in Texas, and we have no showing in the record as to whether or not the Texas court considered this difference in the factual situation in dismissing plaintiff’s suit in that state. In any event, it is obvious that the Texas court did not retain jurisdiction because of the policy of the courts of that state as announced in the two cited cases and not because it had no power to render a valid judgment. This is indicated in the syllabus of the Johnson case reading as follows:

“Policy of each state decides whether and to what extent its courts will entertain jurisdiction of transitory actions arising in other jurisdictions under their peculiar statutes.”

Immediately after plaintiff’s suit was dismissed by the Texas court, he filed a suit on the same claim for compensation in the District Court of Caddo Parish against his employer and his insurer, the parish in which the contract of employment was entered into and in which he was alternately working for his Texas employer. The insurance company, the defendant in the present suit, appeared and filed an exception to the jurisdiction of the district court ratione personae. Obviously, if service of citation could have been made on the employer, or his representatives, in Caddo Parish, the district court of that parish would have had jurisdiction to adjudicate the claim and to render a valid judgment. So it was not because of lack of jurisdiction in that court to adjudicate the claim that the case was dismissed there, but because citation could not be served on the employer or his representatives. In other words, if plaintiff could have secured personal service on the employer in this state (as he had a right to assume that he would be able to do) the court of that parish would have had the right to adjudicate his claim, and the mere fact that citation could not be served on the employer does not alter the fact that plaintiff filed a suit in a court of competent jurisdiction. For instance, a compensation claimant might file his suit within the year in the parish where the accident occurred, and because no service could be made on the employer and for that reason could not have his case heard, certainly would not mean that the claimant had hot filed his suit in a court of competent jurisdiction and the period of limitation certainly would not run against him while he was trying to get service on his employér.

I therefore conclude that plaintiff has begun proceedings in courts of competent jurisdiction which prevented the period of limitation from running against him pending the suits. In the cases cited by defendant where plaintiff’s claim was held to have been barred by the period of limitation he did not file any kind of suit in a court of competent jurisdiction within the period of limitation. In my opinion, the purpose of the requirement that a suit be brought by the claimant within one year after the accident under the penalty of barring his recovery is of a three fold nature; (1) to enable the employer to determine when his potential liability for an accident would cease; (2) as a matter of public policy to prevent suits based on stale claims where the evidence might be destroyed or difficult to produce; (3) to fix a statute of repose giving rise to a conclusive presumption of waiver of his claim on the part of an employee where he fails to bring his suit within the fixed period.

In this suit, none of the foregoing reasons for barring plaintiff’s claim on account of the lapse of the peremptive period exists, but on the contrary, plaintiff has not only continued to press his claim, but he has informed both his employer and the insurance company in the Texas court by proper citation as to the amount and nature of his claim, and in the second suit in Caddo Parish, the insurance company was again served with citation and informed of the amount and nature of his claim. Under Sections 23 and 24 of the Compensation Act, the insurer of the employer is primarily liable with the employer for the payment of compensation and a proceeding brought against either in a competent court would prevent the running of the prescriptive or peremptive period. Moreover the insurer can be sued in any court having jurisdiction over the employer and the insurer is limited to defenses which may be made by the employer. It therefore seems to me that the defendant insurance company is in no position to prevent plaintiff from having his claim heard and adjudicated as the insurance company has been sued and informed of the amount and nature of plaintiff’s claim in three courts which had jurisdiction to pass on the claim if in the first suit the Texas court had seen fit to entertain jurisdiction and in the second suit in Caddo Parish, if service could have been made on the employer or his representatives; and, admittedly, the District Court of East Baton Rouge Parish has jurisdiction to adjudicate the matter.

I therefore respectfully dissent.


text:
    EICHER-WOODLAND CO., Inc., v. CAMDEN FIRE INS. ASS’N.
    No. 2276.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Fred G. Benton and Carlos G. Spaht, both of Baton Rouge, for appellant.
    St. Clair Adams & Son, of New Orleans, for appellee.
   PER CURIAM.

As appears from the minutes of this Court, it was stipulated between Counsel that the decision of the above cause on appeal to this Court should await the decision by the Supreme Court in the companion suit of Eicher-Woodland Co., Inc. v. Buffalo Insurance Company appealed to that Court, and that the decision of this cause should be controlled by the decision of the Supreme Court in said case (the facts and legal questions being similar in each case) ; and, whereas, the Supreme Court rendered an opinion in said cause on May 26th, 1941, affirming the judgment of the District Court and which decision has now become final. See 198 La. 38, 3 So.2d 268.

Now, therefore for the reasons above stated and in accordance with the said stipulation of Counsel, it is ordered that the judgment in the case of Eicher-Woodland Co., Inc. v. Camden Fire Insurance Association, appealed to this Court, be and the same is hereby affirmed at the cost of appellant.


text:
    PENDOLA et al. v. STATE. LOCOCO v. SAME.
    No. 2269.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Writ of Error Refused Jan. 5, 1942.

      Tom M. Hayes, Jr., of Baton Rouge, for appellant.
    Johnson & Kantrow, of Baton Rouge', and J. B. Thornhill, of Monroe, for appellees'.
   LeBLANC, Judge.

These consolidated appeals come before us from a judgment rendered in each of the two cases which were consolidated for trial in the court below as both demands arose out of the same automobile accident. In the first suit the plaintiffs are Anthony Péndola, owner and driver of one of the cars involved in the accident, Mr. & Mrs. J. B. Cascio, father and mother of the minor child, Celia Mae Cascio, and for whose use and benefit they appear, and Lula Johnson, a colored girl nurse. In the other suit the plaintiff is Ignatius Lococo who sues for the use and benefit of his minor daughter, Josephine Lococo. Josephine Lococo, Celia Mae Cascio and Lula Johnson were all passengers in the Péndola car in which they were travelling with him from Baton Rouge to Monroe, Louisiana. A young man named Santa Cuchinnatto was also in the car with them but is not a party to any of this litigation.

The Péndola car left Baton Rouge at about 8 o’clock of the morning of July 12, 1934, crossed the Mississippi River at the Port Allen ferry and was proceeding west on its journey along highway No. 71 in the direction towards Alexandria, Louisiana. When it reached a point in the vicinity of the “Y” formed by the intersection of the highway leading to New Roads with Highway No. 71, it collided with an automobile belonging to the Louisiana Highway Commission and being driven by one of its employees, J. Monroe Higginbotham, in an easterly direction towards Baton Rouge. Issue was raised by the pleadings concerning the nature of Higginbotham’s mission at the time of the accident but the proof was, and it now seems to be conceded, that he was engaged in the course and scope of his employment and therefore the doctrine of re-spondeat superior should prevail in the event the negligence he is charged with is shown to have been the cause of the accident.

The allegations of the plaintiffs in both suits regarding the manner in which the collision occurred are substantially the same. In effect, they are that the Péndola car was proceeding on its right hand side of the paved portion of the highway at a speed not in excess of forty miles per hour when the driver noticed the other car approaching from'the opposite direction at a high rate of speed and going first to one side of the road and then to the other. That the driver of the Péndola car reduced its speed, expecting the other car to go over to its right side of the highway. Finally it did pull over on that side and, Péndola, believing as he had a right to, that it would remain in its lane of travel, accelerated the speed of his car to pass by it but all of a sudden the driver did something which caused his car to turn almost completely in the path of the Péndola car and although Mr. Péndola quickly applied his brakes and kept well on his side of the road, he was unable to avoid running into the other car with the resulting damage and injuries complained of in both suits. Negligence is charged against Hig-ginbotham for the reckless and careless manner in which he operated the car he was driving and for which his employer, the Louisiana Highway Commission, is sought to be held in damages.

The various amounts of damages claimed in the first suit are as follows: Anthony Péndola, $14,242.22, including those for personal injuries consisting of a fracture of the patella of the right leg, two broken ribs, lacerations of the lip and gums, loosening of three front teeth, as well as doctors and medical expenses and damages to his automobile. Celia Mae Cascio, $2,000 for physical pain and injuries which consisted of a fracture of the nose, maceration of the inferior turbinate and laceration of the upper lip. Lula Johnson, $1,000 for personal injuries which consisted of severe laceration of the right knee and contusions of the leg and neck. In the second suit the damages claimed are those alleged to have been sustained by Josephine Lococo, minor daughter of the plaintiff, consisting of a severe laceration on the right side of the face with a resulting ugly scar and three broken teeth in the front of her mouth also causing serious disfigurement. The demand is for $11,000.

The defense in both cases is the same and practically a denial of the negligence charged against the driver of the highway commission car and a consequent denial of liability. As previously indicated the answer in each case also contained a denial that the driver, was, at the time, acting in the course and scope of his employment but that issue appears to have now passed out of the cases.

After trial in the district court there was judgment in favor of the .plaintiffs in each suit as follows: Anthony Péndola, $6,-327.22, Mr. & Mrs. J. B. Cascio for the use and benefit of their minor child, $1,000, Lula Johnson, $750 and Ignatius Lococo, for the use and benefit of his minor daughter, $4,000. An appeal has been taken in each case and an answer has been filed on behalf of each plaintiff, asking for an increase in the amount of each award.

Highway No. 71, running east and west, is straight for a distance of at least a half mile in each direction from the point where the accident took place. The paved portion measures 20 feet in width but at the “Y” forming the junction with the highway leading to New Roads it widens into a four lane highway, the concrete strip there measuring 41 feet in width. The dirt shoulder on the south side is 4 ft. 6 in. wide and the one on the north, 24 ft. 6 in.

The preponderance of the testimony shows that Mr. Péndola was driving his Buick sedan at about 50 miles per hour at the time he observed the Highway Commission car, a DeSoto sedan, approaching the “Y” at a rapid rate of speed. Higgin-botham admits that he was going bétween 50 and 60 miles an .hour. According to the witnesses who occupied the Péndola car it appeared to them from the manner in which the DeSoto car was zigzagging that the driver probably intended to turn north into the New Roads highway, but evidently he did not as he continued on his way east. Mr. Péndola, noticing this retarded his speed and then the DeSoto got into its right lane of travel. Mr. Péndola then accelerated his speed in order to pass it but as both cars approached the eastern end of the “Y”, the DeSoto made a complete “U” turn in front of the Buick. The action of the driver was so sudden that Mr. Péndola had no time to stop or avoid running into the rear of the DeSoto car and the force of the blow pushed it from 30 to 50 feet in front of his car.

Mr. Higginbotham’s was the only testimony produced on behalf of the defendant. He accounts for his action in applying his brakes which caused his car to suddenly make a “U” turn in the highway directly in the path of the oncoming Péndola car by stating that a horse was grazing on the south shoulder of the road at a point which he estimates to have been 50 feet from the east end of the “Y” and as he approached it he observed that the horse had started to move toward the pavement so he slowed down the speed of his car but did not apply his brakes until he was SO feet away from it at which time half of its body was on the pavement. The application of the brakes caused the automobile to swerve and skid. His explanation of having missed striking the horse is that the noise made by the skidding of the car must have frightened it and caused it to turn back on the shoulder. The car did not stop swerving and skidding until it had made a complete turn in the highway and within a “split second”, as he expressed it, had been struck from the rear by the Buick sedan.

The horse, according to Mr. Higgin-botham, was saddled but had no bridle on. He assumed that it belonged to one of the men who he says was either fishing or cutting grass across the road. For him to have assumed such a thing necessarily implies that there were some men on the road near the scene of the accident and yet no such person or persons seem to have been attracted by the commotion created as no one came to see what had happened. This, to say the least, appears a bit unusual and unnatural and tends to weaken the statement of Mr. Higginbotham about the presence of the horse, a fact which is not otherwise supported by proof and which is denied by other witnesses. In this connection it may be pertinent to state that a phase of these cases appeared in the district court of Catahoula Parish in a suit brought for damages on behalf of the minor, Josephine Lococo, against Anthony Péndola, as a guest in his car. Her demand was rejected in that Court and an appeal taken to the Court of Appeal for the Second Circuit. The Court of Appeal had practically the same testimony before it as is now presented to this court and it reached the conclusion that “there was no horse about the scene of the accident and that the accident, from defendant’s [Pendola’s] standpoint, was unavoidable.” See Lococo v. Pendola, 171 So. 125, 127.

The district judge, in the trial of the present cases, expressed doubt as to the presence of the horse on the highway but he was of the opinion that even assuming that there was a horse, under the circumstances as related by Mr. Higginbotham he failed to take proper precaution in time as he had first observed it approaching the pavement as though to cross over it when he was 150 feet away from it but waited until he was only 50 feet before applying his brakes and then too at a moment when he was still going at a high rate of speed. We are left with even more serious doubt than was the district judge concerning the presence of the horse and are inclined to concur in the conclusion reached by our brethren of the Court of Appeal for the Second Circuit in the case cited that “there was no horse about the scene of the accident”. We agree with the learned trial judge however that if it be conceded that there was a horse there, Pligginbotham’s failure to bring his car under proper control at the time he first saw it and apprehended its movements and in then suddenly applying his brakes causing his car to turn completely around jn the path of the Péndola car was the real and sole cause of the accident.

The rule of sudden emergency is invoked on behalf of the driver of the Highway Commission car but we see no ground on which it can be applied under the facts in these cases. If any emergency arose at all it was one created by the driver’s failure to properly act in time in controlling his car. The rule will not be applied to favor one who himself had a part in bringing about the situation of the sudden emergency. Dill v. Colley, 3 La.App. 305; Gaubert v. Ed. E. Hebert Co., Inc., La.App., 174 So. 716.

We are in thorough accord with the findings of the trial judge on the question of liability by the defendant in each case but are of the opinion that reductions should be made in some of the awards.

The judgment in favor of Anthony Péndola included the sum of $607.22 for items which apparently are not disputed. These were the doctors and hospital bills amounting to $351.75 and $255.47 for the damage to his automobile. It included also an item of $720 for extra clerk hire he claims to have been obliged to obtain in his store at Columbia, Louisiana, for twelve months at $60 per month, by reason of his disability during that period. The testimony is that Mr. Péndola resided at Monroe and that this store was located in Columbia, some thirty-five miles away. In reality the store was operated by his son-in-law and daughter and by his own admission they did so efficiently. They worked four clerks regularly. Our appreciation of his testimony is that he seemed to have acted more or less in a supervisory capacity, his presence there not being required regularly. Why it was necessary for him to have hired an extra person to clerk in the store at $60 per month has not been satisfactorily shown. We do not think that his claim for loss sustained on this item has been supported by sufficient proof and it will be eliminated from the total amount of his award.

The physical injuries suffered by Mr. Péndola were of a rather severe nature and he sustained as a result of the fracture of the patella an impairment of IS to 20%. That fracture was his most serious injury and the one for which he is entitled to substantial damages. He had two broken ribs and three of his front teeth were loosened. Pie was hospitalized and then confined to his bed at home for a period of nine weeks and was unable to walk on his injured leg for six months. In addition to this he had severe lacerations and contusions about the body and no doubt suffered considerably. We do not believe that the award of $5,000 for all his physical injuries, pain and suffering, with the disability to his leg in his knee, is excessive and it will remain at that figure. The total amount of his award of $6,327.22 will accordingly be reduced by the sum of $720.

The award of $1,000 made to Mr. & Mrs. J. B. Cascio for the use and benefit of the minor child, Celia Mae Cascio, strikes us as being somewhat excessive. The trial judge found that she had sustained a fracture of the nose and-laceration of the upper lip from all of which, according to the doctor who treated her, she was cleared in about six weeks. At the time of the trial there was a slight deformity at the bridge of the nose and a very small scar in front of the upper lip. These, the district judge found, were not very noticeable. We think that the award in her case can justifiably be reduced to $750 and the judgment will again be amended to that extent.

The award of $750 made to Lula Johnson who sustained severe lacerations of the right knee and bad bruises and also a severe contusion of the neck and shoulder region all of which kept her from resuming her duties as nurse for six weeks, is not excessive and will be allowed to stand.

In the Lococo case, the evidence discloses that Miss Josephine Lococo lost a front tooth which had to be replaced by a false tooth with a plate. Two teeth were broken and this causes a disfigurement to her mouth. She also received a severe laceration running along the base of her nose. In healing she was left with an ugly scar which apparently will remain permanently. She had considerable trouble as a result of the injury to her teeth and remained for a long time under the care and treatment of a dentist. Undoubtedly she suffered very much pain and the scar with which she was left disfigures her. The trial judge thought that her claim for damages was considerably exaggerated but he nevertheless awarded her the sum of $4,000. Whilst we consider the award a bit liberal we are not inclined to disturb it as it seems to be in line with others that are usually made in cases of this nature.

A separate decree will be entered in each case, the one that follows to be the decree in the case of Anthony Péndola et al. v. Louisiana Highway Commission:

It is for the reasons herein stated now ordered, adjudged and decreed that the judgment in that case be and the same is hereby amended by reducing the amount of the award made in favor of Anthony Péndola from the sum of $6,327.22 to the sum of $5,607.22, and by reducing the amount of the award in favor of Mr. & Mrs. J. B. Cascio for the use and benefit of their minor child, Celia Mae Cascio, from the sum of $1,000 to the sum of $750, and as thus amended that it be affirmed, the costs of this appeal to be paid by the plaintiffs, appellees herein.


text:
    Ignatius LOCOCO v. STATE of Louisiana.
    No. 2270.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Writ of Error Refused Jan. 5, 1942.
    Tom M. Hayes, Jr., of Baton Rouge, for appellant.
    Clarence Dowling, of New Orleans, for appellee. ’
   LeBLANC, Judge.

For the reasons stated in the opinion this day handed down in the case of Anthony Pendola et al. v. State of Louisiana, 4 So.2d 28, which had been consolidated with this case, it is ordered that the judgment appealed from be and the same is hereby affirmed.