author: DORE, Judge.

text:
    ELLZEY v. HARDWARE MUT. INS. CO. OF MINNESOTA.
    No. 3101.
    Court of Appeal of Louisiana. First Circuit.
    April 19, 1949.
    Rehearing Denied May 19, 1949.
    Writ of Certiorari Denied June 30, 1949.

      Ashton L. Stewart, of Baton 'Rouge, for appellant.
    Dale, Richardson & Dale, of Baton Rouge, for appellee.
   DORE, Judge.

This is a suit resulting from an automobile collision on a policy of collision insurance covering an automobile owned by the plaintiff. The defense is that the policy had been legally cancelled on account of non-payment of premium by the insurer before the collision occurred. Plaintiff has appealed from a judgment sustaining the defense and dismissing his suit.

On June 18, 1947, the Hardware Indemnity Insurance Company of Minnesota, hereinafter referred to as the Indemnity Co., and the Hardware Mutual Insurance Company of Minnesota, hereinafter referred to as the Mutual Company, issued a joint policy of insurance to plaintiff covering his four door Oldsmobile Sedan for a period from June 12, 1947, to June 12, 1948, 12:01 A.M. The Indemnity Company covered the public liability, property damage, and comprehensive (loss or damage to -the automobile, except by collision) and the Mutual Company covered the loss or damage to the automobile by collision or upset. The total premium was $80.44, divided as follows: $32.44 to the Indemnity Co., and $48 to the Mutual Company. It appears that the Indemnity Company is the parent company and that the Mutual Company is the subsidiary thereof.

Amongst the conditions, the policy provides that the policy may be cancelled by either the insured or the insurer. If by the insured, the insured shall surrender the policy or shall mail to the company written notice' stating when thereafter such cancellation shall be effective. If the insured cancels the policy, the earned premium shall be computed in accordance with the customary short rate table and procedure. If cancelled by the company, the company shall mail to the named insured at the address shown in the policy written notice stating when not less than five days thereafter such cancellation shall be effective. “The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date and hour of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing.” “If the company cancels, earned premiums shall be computed pro rata. Premium adjustments may be made at the time cancellation is effected and, if not then made, shall be made as soon as practicable after cancellation becomes effective. The company’s check or the check of its representative mailed or delivered as aforesaid shall be sufficient tender of any refund or premium to the named insured.”

In the initial policy, the name of the insured is stated to be “H. D. Ellvey, address Apt. M-9, L. S. U. Campus, Baton Rouge, East Baton Rouge Parish, Louisiana.” On July IS, 1942, by appropriate rider issued by the companies, the name of the insured was amended to read “H. D. Ell-zey.”

At the time of the issuance of the policy, the insured did not pay the premium or a part thereof. It appears that the plaintiff assured signed a document, termed “Note” by plaintiff’s attorney and “contract” by defendant’s attorney, yet on' the reverse thereof termed “Invoice Contract,” being date of July 16, 1947, and addressed to the Indemnity Company. This document provides that:

“In consideration of your advancing on behalf of the undersigned the balance of the premiums due on the policies listed on the reverse side hereof, the undersigned agrees to pay you or your assigns at such place as you may designate the payments provided for on the reverse- side hereof. Failure of the undersigned to pay any installment when due (time being of the essence hereof) or in the event of any change affecting the amount of return premiums, you or your assigns may declare all installments due and payable, and the undersigned hereby assigns to you or your assigns all sums by way of return premiums' under said policies which shall be applied by you, in the reduction of, or in full liquidation of the amount due you, the surplus, if any, shall be paid to the undersigned, an.d the undersigned shall continue to be liable for any unpaid balance thereafter. The undersigned also assigns to you or your assigns out of the proceeds of any loss payable to the undersigned, an amount sufficient to liquidate the balance due you, and any check issued by the insurance company shall be payable both to you and your assigns and the undersigned.
“Until you have been paid the full amount due you, the undersigned irrevocably appoints you or your assigns attorney-in-fact with full and sole authority to effect cancellation of policies and receive and receipt for any of the return premiums due under said policies.
“It is understood and agreed that no cancellation of policies under this agreement shall be effected withoirt first giving to the undersigned five (5) days written notice of intention to cancel by mail, sent to the address given hereon, which notice need not be registered. If payment due is not received in five (S) days of date of said mailing, you or your assigns may exercise your right to surrender the policy/policies to the insurance agents or companies involved and receive the return premiums due thereon. Default occurring and being remedied within the said five (5) day period, the undersigned agrees to pay you or your assigns your or its customary late charge.
“It is understood and agreed that you may assign this agreement and all your rights thereunder and in and to the collateral thereto to First Bancredit Corporation of St. Paul, Minnesota, and thereupon said assignee shall become vested with all the powers and rights hereinabove given to you in respect to this agreement and said insurance policy or policies or return premiums thereon or proceeds thereof. The undersigned agrees that any payment received by you or your assigns subsequent to five (S) days after the date of the notice of intention to cancel shall be accepted for deposit subject to refund without the policies on which such installment payment of premium is so offered being thereby reinstated, or default in this agreement being thereby waived.”

On the face of this document, there appears this endorsement signed by the Indemnity Co. •

“For and in consideration of the payment to the undersigned or order in amount equal to the balance due as shown, on the reverse side hereof, the undersigned sells and assigns (without recourse against undersigned for any default of assured) r all right, title and interest i,n and to the foregoing contract and in and to all sums payable thereon and collateral security covered thereby, to First Bancredit Corporation. Payment of the balance due as shown on the reverse side hereof to the insurance company or companies issuing the policies covered thereby, or its or their authorized agent or agents, is hereby acknowledged as payment made to the undersigned.”

On the reverse of the document, the total premium is given as $80.44, down payment as $16.09, balance due $64.35 (to be paid in eight monthly installments, the first payment to be $8.26 due on “7-12-47,” and the payments thereafter to be $8.22 “beginning 8-12-47”).

It is undisputed that the policy of insurance was originally written by R. B. Means, an insurance agent residing in Baton Rouge and representing the companies, on June 18, 1947, effective June 12, 1947 for a period of one year.

On August 1, 1947, plaintiff issued his check payable to R. B. Means for the sum of $16.09. Means endorsed the check payable to Indemnity Co. The check was deposited by Hardware Insurance on August 12, 1947, and was paid by the drawee bank on August 16, 1947.

On August 4, 1947, R. B. Means, for plaintiff’s account, sent his check to Indemnity Company for the sum of $8.26, drawn on the Fidelity National Bank of Baton Rouge, La. This check was endorsed and deposited by Hardware Insurance on Nov. 2, 1947, and paid by the drawee bank on November 6, 1947.

On September 10, 1947, plaintiff issued his check payable to Means, drawn on the Louisiana National Bank of Baton Rouge for the sum of $8.26. This check was forwarded by Means to Indemnity Company and by it endorsed and deposited on November 2, 1947, and paid by the drawee bank November 7, 1947.

On October 6, 1947, plaintiff issued his check payable to Means, drawn on the Louisiana National Bank of Baton Rouge, for the sum of $8.26, which was deposited by Means on October 10, 1947, and paid by the drawee bank on October 11, 1947. According to Means’s testimony, on October 23, 1947, he purchased a money order payable to Indemnity Company, in the sum of $8.26 and sent it to said company to be applied to plaintiff’s account. This money order, according to the evidence in the •case, was not deposited by Indemnity Company for credit before November 2, 1947.

On November 3, 1947, the companies mailed to plaintiff, at the address given in the policy, a notice of cancellation, viz.: ■“The undersigned hereby give notice that Policy No. 715603 effective June 12, 1947 will be cancelled on the 13th day of November, 1947, at 12:01 o’clock, A.M. standard time.

“Payment of $39.57 premium, prior to the effective date of this notice, will keep this policy in force.”

The total amount paid by the plaintiff prior to the issuance of this notice amounted to $40.87. According to the contract, he should have paid $49.01. According to the testimony in the record, the policy was cancelled because the monthly installments were not punctually paid, being in arrears in the amount of $8.14.

On November 15, 1947, plaintiff executed his check payable to Means, drawn on the Louisiana National Bank, for the sum of $8.26, with the following notation in the left hand corner: “Policy No. 715603.” Means cashed this check on November 19, 1947, and did not remit the proceeds to the Indemnity Company.

On November 22, 1947, the automobile was damaged by collision with a tree to the amount of $517.79. Plaintiff notified Means of the collision on November 25, 1947. In this appeal, he is claiming this amount less $50 under the deductible clause, or $467.79.

Plaintiff testified that on or about July 15, 1947, he advised Means that he was unable to pay the full premium as called for in the policy but that he desired to continue the collision coverage. He was prevailed upon by Means to keep the policy, in that Means “would see him through.” Means informed him that he could make a down payment and defer the balance due in monthly payments. Means prepared the document supra, which he signed. Pie was led to believe that when he made the down payment i,n August, the policy would be in full force if thereafter he made monthly payments of $8.26 during the succeeding months; that he then informed Means of his correct name and gave him his business address. Although Means denies, in his testimony, the material part of plaintiff’s testimony, yet Means admits that he did promise to help plaintiff in his monthly payments if plaintiff would advise him in advance of his inability to pay the monthly installment or installments as they became due. The fact remains that plaintiff is corroborated by the fact the endorsement showing his correct name is dated July 15, 1947, and the document is dated July 16, 1947. Further the down payment check is dated August 1, 1947, and Means’ check is dated August 4, 1947. According to Means, he issued this check in order to put the policy of insurance in force and to bring the payments up to date. Yet this evidence is not corroborated by any circumstances. It is just as reasonable to believe that this payment was the August installment instead of the July installment.

We are not impressed by the testimony of Means in that we find many conflicts in his testimony. For instance, in one part of his testimony, he states that he cashed plaintiff’s check of November 15, 1947, and kept it as his own because he knew the policy had been cancelled, yet he only ascertained on November 25, 1947, -that the policy had been cancelled effective November 13, 1947. Believing the plaintiff, he was not in arrears when defendant sought to cancel the policy.

Furthermore was not plaintiff justified in believing that he was not in arrears?

All the checks issued by plaintiff applying to the payment of the premium were all made to Means. Means delayed to transmit some of the checks or proceeds thereof. The company received these checks or proceeds and kept them, save the down payment, until November 2, 1947, without advising plaintiff that these payments were not in accordance with his contract, and that Means was not authorized to accept these payments. These facts clearly mislead plaintiff in his belief that he was meeting his “Invoice” contract. “It is the general rule with respect to policies requiring the periodical payment of premiums and providing for a forfeiture for failure to pay on the day named, that if the- insurer customarily receives overdue premiums from the insured, and thereby induces him to believe that a forfeiture will not be incurred by a short delay in the payment of premiums, it cannot insist on a forfeiture for a delay induced by such custom.” Am.Jur. Vol. 29, page 657, Insurance Sec. 860.

We furthermore find merit in plaintiff’s contention that it was up to First Bancredit- Corporation to give the notice of cancellation of the policy and not the companies. The document or “Contract Invoice” had been assigned to First Bancredit Corporation. In this assignment, all rights, title and interest of defendant had been assigned to it. The companies had no more right unless it showed that the First Bancredit Corporation had called upon them to reimburse its purchase price. This has not been shown. We seriously doubt if the First Bancredit Corporation .could have done so in that the transfer of the “Invoice Contract” specifically states that it is “without recourse against undersigned for any default of assured.” In other words, accordr ing to this “Invoice Contract,” the plaintiff was irrevocably bound unto the First Ban-credit Corporation for the whole premium. The original “Invoice Contract” was not filed in evidence and has not been returned to plaintiff by the First Bancr-edit Corporation and marked “paid.” The fact that the “Invoice Contract” is not negotiable does not alter the case. It is now a contract between plaintiff and First Bancredit Corporation for the payment of money which can be enforced.

Reverting to the notice of cancellation, we fully agree with the trial judge and the defendant that notice of cancellation may be sent by mail, and mailing in accordance with the terms of the Policy, at the address shown on the policy,' is sufficient regardless of actual receipt of the notice by the insured, in the absence of any other facts. However, in this case, we believe that plaintiff, on July 15, 1946, informed Means of his correct business address and that he was not receiving mail at the address given in the initial policy. It was Means’ duty, as agent of the companies to have corrected the address as well as the correct name of plaintiff. Means corrected the name only. The address given on the notice is on the L. S. U. Campus. There is no evidence showing that there is house mail delivery on the Campus, a fact which we seriously doubt existed. For that reason we seriously doubt that plaintiff received the notice. The companies were bound by the knowledge of their agent of the correct business address of the plaintiff and the notice to have effect should have been correctly addressed. However, let us look at this notice. We are of the opinion that the notice was insufficient. The notice must clearly and unequivocally show a present cancellation. In the notice there is a condition, viz.: “Payment of $39.57 premium, prior to the effective date of this notice, will keep this policy in force.” By simple calculation, the amount of $39.57 is the outstanding amount due on the whole premium. To our way of thinking, the notice is merely a demand for the payment of the balance due. “It has been held that a notice stating that, unless the premium is paid by a certain date, the policy will be canceled is insufficient.” 45 C.J.S., Insurance, § 450, page 89, note 77, citing Automobile Underwriters of Des Moines, Iowa, v. Bloemer, 8 Cir., 94 F.2d 474; Fisher, for use of Kiniry, v. Associated Underwriters, 294 Ill.App, 315, 13 N.E.2d 809, 32 C.J. p. 1249 note 93; 26 C.J. p. 138 note 57.

There is another reason in which we find merit. According to defendant’s evidence there was the sum of $6.92 due the plaintiff as unearned premium on the date of cancellation, that is, November 13, 1947. Our figures show slightly more, but we will grant that defendant’s figures are correct. “The return or tender of the unearned premium to the insured is generally a condition precedent to cancellation of a policy by the insurer.” 45 C.J.S., Insurance, § 451, pag-e 96. According to the terms of the policy the unearned premium was to be made, at the time of cancellation or as soon thereafter as could be made. The evidence shows that it was made on November 21, 1947. The evidence shows that, a check presumably payable to the order of plaintiff, together with notification of cancellation, was mailed to Means, defendant’s agent at Baton Rouge. The accident happened on November 22, 1947. It is reasonable to presume th.at Means received this check and notification after the loss had occurred. We gather from Means’ testimony that the check was tendered to plaintiff on November 25, 1947 (that is the date Means admitted that he was informed of the cancellation), and that plaintiff refused it. He then mailed it to plaintiff and plaintiff mailed it back to him. This procedure was followed several times. Suffice it to say that the purported check was not offered in evidence. It is now well established that “tender of the unearned premium after loss under the policy is insufficient to effect a cancellation as of a prior time.” 45 C.J. S., Insurance, § 451, p." 100, note 87, and the cases thereunder cited.

As to the effect of the check issued by plaintiff on November 15, 1947, the plaintiff testified that he had not received the notice of cancellation prior to the mailing of the check to Means. The trial judge was of the opinion that it was a belated effort on his part to keep the policy in force. We are forced to disagree with him. He had dealt with Means as the authorized agent of the companies. He had not been notified that Means had no authority to accept the monthly payments. As to Means retaining the amount, we feel that his testimony on that score is an afterthought. He cashed plaintiff’s check of October 6, 1947, on October 10, 1947, and he did not remit to the Indemnity Company before October 23, 1947, some thirteen days thereafter. It is more reasonable 'to believe that he intended to do likewise with the check of November 15, 1947, than to assert that he kept the proceeds to reimburse himself..

It is elementary that the insurer carries the burden of establishing the facts which relieve or limit his liability. In this case, it is our opinion that the defendant has not borne the burden of proof of its special plea of cancellation. To the contrary, we are of the opinion that plaintiff has clearly shown that the policy was in force at the time of the collision.

For these reasons assigned, the judgment appealed from is annulled, avoided and reversed. It is now ordered that there be judgment herein in favor of plaintiff, H. D. Ellzey and against the defendant, Hardware Mutual Insurance Company of Minnesota, in the full sum of Four Hundred Sixty-seven &' 79/100 ($467.79) Dollars, with legal interest thereon from judicial demand until paid, and all costs.


source: Caselaw Access Project

author: A. J. JONES, Judge ad hoc.

license: Public Domain

text:
    MILLER v. HAMMOND MOTORS, Inc.
    No. 3092.
    Court of Appeal of Louisiana First Circuit.
    April 19, 1949.

      Reid & Reid, of Hammond, for appellant.
    Ponder & Ponder, of Amite, for appellee.
   A. J. JONES, Judge ad hoc.

This suit was brought by Floyd Miller, who alleges that on February 22, 1946, he delivered his 1941 Model Ford Coupe to defendant, Hammond Motors, Inc., for certain minor repairs; that the defendant through its employees, received the automobile, advised that the repairs would be completed about 4:30 p. m., on the same date and agreed to telephone plaintiff when the car was ready. Failing to receive notice that the repairs had been completed, about the hour of 9 p. m., he located Mr. Verbourg, Assistant Manager of defendant company, and was advised by him that the car had been delivered to another person, who signed a receipt for it. Plaintiff further alleges that the person who received his automobile from the defendant company was not his agent or employee and was without any authority to receive the car. He further alleges that the person receiving the automobile has stolen it and absconded. He claims that the defendant company failed to exercise ordinary care in the delivery of the car and that through such failure, he suffered damage in the amount of $1,160, itemizing the damage as $1,100 for the loss of his automobile and $60 for the loss of the use of his automobile.

Defendant, Hammond Motors, Inc., filed answer admitting receipt of the automobile, and stated that at the time of the delivery of the car by Mr. Miller, he was accompanied by an unknown person and that Miller specifically instructed the employees of the defendant company to either telephone him when the repairs were completed or deliver the automobile to the party who accompanied him. That the same party called for the car when the repairs were completed, received the car and gave a receipt for it.

According to the testimony of plaintiff, Miller, he was accompanied to the defendant’s garage by another man. Mr. Ver-bourg and Ferrell E. Bennett, defendant company’s Assistant Manager and Mechanic, respectively, testified that the other man accompanied Miller to the garage and that Miller gave specific instructions to call him, or deliver the automobile to the other party with him when the repairs had been completed. The trial judge was convinced that these instructions were given and rendered judgment dismissing the suit at plaintiff’s cost. A review of the entire record convinces us that his ruling was correct and should not be disturbed.

Our conception of the law is that when one clothes another with apparent authority to act for him, insofar as a third party is concerned, the former will not be permitted to deny the fact:

* * * With respect to third persons, an agency may arise by necessity, from acts and appearances which lead other to believe -that such a relation has been created, i. e., by estoppel; or from operation of law. Moreover, the extent of the authority under an agency actually created may be enlarged by the ostensible or apparent authority of the agent.” 2 Am.Jur. 24.
“ * * * With respect to third parties who deal with the agent, the agency may be apparent only and exist because of the estoppel of the principal -or agent to deny the same after the third party has relied on such appearances, so that he would be prejudiced if the fact were shown to be otherwise.” 2 Am.Jur. 26.
“ * * * One who knows, that another is acting as his agent, or permitted another to appear as his agent, to the injury of third persons who have dealt with the apparent agent as such in good faith and in the exercise of reasonable prudence, is estopped to deny the agency.” 2 Corpus Juris Secundum, Agency, § 29, p. 1063.

Defendant received the automobile of plaintiff to be repaired and then returned to the owner, or his representative. It thus became a bailee for hire or depositary and its obligation under the provisions of Article 2937 and Article 2938 of the Revised Civil Code was to take such care of the car as it would its own property. Without any specific agreement extending its degree of responsibility, the defendant would be liable only for loss occasioned by its negligence. It would be liable only for failure to use ordinary care. The applicable rule of law is quoted with approval in the case of Livaudais v. Lee She Tung, 197 La. 844, 2 So.2d 232, 233:

* * * The universal rule is thát ‘where the relation of bailor and bailee for hire or mutual benefit subsists, it devolves on the bailee to use ordinary care and diligence in the safeguarding of the bailor’s property, and he is answerable for loss or injury resulting from failure to exercise such care, or, as otherwise variously stated by the courts, loss or injury due to his negligence, or ordinary negligence; but he is not responsible for losses not occasioned by the want of such care or the ordinary negligence of himself or his servants unless he has violated his contract. Thus * * * a bailee who is not negligent is not, as a general rule, liable for loss or injury due to inevitable accident, theft, forcible taking, and like causes, although negligence may be predicated in such cases upon failure to take such preventive measures as the exercise of the required degree of care would demand.’ 6 Am.Jur. 333, Section 248. See, also, 6 Corpus Juris 1121, Section 61; 8 Corpus Juris Secundum, Bailments, 269, § 27; and 3 Ruling Case Law 96, Section 23. Our jurisprudence is to the same effect.” See also Scott v. Sample, 148 La. 627, 87 So. 478; Dugan et al. v. Central Storage and Transfer Company, La.App., 23 So.2d 634.

Since we are of the opinion that defendant used ordinary care in delivering plaintiff’s automobile to the man designated by the plaintiff, then we are also of the opinion that there was no negligence on the part of the defendant and, accordingly, no liability.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.

ELLIS, Jr., J., not participating.


author: ELLIS, Judge.

text:
    CASHIO v. THIBODEAUX & STANDARD ACC. INS. CO.
    No. 3100.
    Court of Appeal of Louisiana. First Circuit.
    April 19, 1949.

      Cangelosi, Hayes & Lane, of Baton Rouge, for appellant.
    Watson, Blanche, Fridge & Wilson, of Baton Rouge, for appellee.
   ELLIS, Judge.

This is a suit by the plaintiff, Paul Cashio, ¡against- the defendants, Robert Thibodeaux and his insurer, Standard Accident Insurance Company, for compensation at the rate of $20.00 per week for 400 weeks.

Plaintiff alleged that he was employed as an iron worker by Robert Thibodeaux who was engaged in the business of construction and repair of buildings, and that while so employed on August 9, 1946 he sustained an injury to his left arm caused by a glancing sliver or particle of steel which lodged in the flesh near the elbow; that believing his injury not to be serious and not being disabled, plaintiff continued to work for Thibodeaux until September 15, 1946 and afterward, during October, 1946, obtained employment as an iron worker with Jones and Laughlin Supply Company and performed the duties incident to his employment without any ill effects and no apparent disability; that plaintiff’s employment with Jones and Laughlin lasted only two days and that he was not again employed at his trade as an iron worker until the 18th day of August, 1947 when he was employed by Arthur G. McGehee and Company, contractors, and plaintiff alleges that it was at this- time that he discovered he was unable to perform “the duties of an iron worker due to severe pain in his left arm in the region of the above described injury and due to weakness of the arm as a result of said injury.” Plaintiff also alleged that the particle of steel was still lodged in his arm in such a position as to cause him severe pain and general disability in the arm 'when it was subjected to any strain or pressure, all of which totally and permanently disabled him to perform work of any reasonable character.

The defendants plead the prescription of one year as a bar to plaintiff’s cause of action on the ground that the alleged accident occurred on August 9, 1946 and plaintiff’s suit was not filed until September 10, 1947. Defendants also filed an exception of no right and no cause of action. Testimony was offered on these pleas and the Judge of the District Court referred the plea of prescription and the ’exception of no cause and no right of action to the merits, whereupon the defendants filed answer which was in the nature Of a general denial except that they set forth in their answer that plaintiff" received no compensation “but was paid his full regular salary for work done as an iron worker, for regular time and over time, until his services were terminated by reason of the job being completed * * * In the alternative and in the event the Court should find' that the plaintiff’s claim was not perempted and prescribed and that he suffered any accidental injury under the law that any recovery by the plaintiff be limited to:

1. Only the period of disability proven from the date of injury;

2. Or in the further alternative, to partial temporary disability only; or

3. That in no event to more than the ■loss of the use of an arm, and defendants-so pray.

The judge of the lower court overruled the plea of prescription and also the exception of no cause of action and of no right of action and then, on the' merits, rendered judgment in favor of the plaintiff and against the defendants in the sum of $25.00 which represented medical expenses paid by the plaintiff in the amount of $15.-00 to Dr. J. Willard Dowell and $10.00 to Dr. Lester J. Williams, and in all other respects plaintiff’s- demands were rejected, the defendants to pay all costs.

From this judgment the plaintiff has appealed.

As the exception of no cause and no right of action is based upon the same ground as the plea of prescription, it is only necessary to discuss the plea of prescription. The date of the accident was shown to be on August 9, 1946 and the suit was filed on September 10, 1947. It is further shown that the plaintiff was born on February 17, 1926 and was, therefore, on the date of the accident approximately twenty .years and six months of age, a minor, and both of his parents were living. It is admitted that the plaintiff’s father, during plaintiff’s minority and at the time of the injury, would have been the proper party to file suit on behalf of his son and that he could have done so without going through the formality of being appointed his son’s tutor.

Counsel for the defendants, orally and in their brief, presented a very forceful argument in support -of the plea of prescription to the effect that when the Workmen’s Compensation Act was, written in 1914 it was understood that those persons electing to come under its provisions would forego their rights in tort, and the law makers, evidently taking cognizance of the law of prescription with reference to minors, provided in Section 16, subd. 1 of that Act as Amended,-Act No. 38 of 1918, that prescription would not run against a minor so long as he was without a tutor or curator to assert that right for him. .Hence, they wrote: “ * * * his duly qualified curator or tutor, as the case may be, may, in his behalf, claim and exercise such right, privilege or election, and no limitation of time, in this act provided for, shall run, so long as such incompetent or minor has no curator -or tutor as the case may be,” and that, therefore, this section is to insure to minors protection of their rights in the case where they have no one duly qualified to represent them, and in the present case, as the father of the plaintiff was living and qualified, to represent him and file a -suit on behalf of plaintiff that the prescription of one year was applicable to the case at bar.

By way of answer to the plea of prescription and contention of the defendants, the plaintiff takes the position that under Section 16, subd. 1 of the Compensation Act, which reads,

“In case an injured employee is mentally ■incompetent or a minor or where deáth results from the injury, in case any dependent as herein defined is mentally incompetent or a minor, at the time when any right, privilege or election accrues to him under this act, his duly qualified curator or tutorías the case may be, may, in his behalf, claim and exercise such right, privilege or election, and no limitation of time, in this act provided for, shall run, so long as such incompetent or minor has no curator or tutor as the case may be/’

that prescription does'not run against a minor’s claim for compensation until he has had appointed a “duly qualified tutor,” and that, as plaintiff never had a tutor appointed ■that the prescription did not begin to run until he had attained the age of majority; also, that if the employee, after injury, actually earns the wages paid him by the employer, prescription runs against his- claim for compensation,- but conversely, if it be shown that the payments being made are in reality a- gratuity and not for the performance of work, then the payment of the wage is equivalent to or in lieu of the payment of compensation, and prescription does not run for the duration of such payments. It is further contended that where the injury does not manifest itself to.-a. com-pensable degree until some time after the accident prescription runs from date of manifestation and not from the date of the accident.

The same question now presented was raised and decided in the case of Gospel v. Southern Carbon Company, Second Circuit 1926, 4 La.App. 272. In this case, some two years after the death of an employee his widow qualified as tutrix of her two minor children and filed a suit under the Compensation Statute. A plea of prescription of one year was filed and the contention made by the exceptor in that case was “that where the mother or father of the minor child or children survives, it is not necessary under the act that a tutor be appointed; that the mother or the father, as the case may be is there to represent the minor without being personally qualified as tutor or tutrix, and that therefore prescription runs- against the minor.” The Second Circuit Court of Appeal held that the Lower Court was correct in sustaining the plea of prescription as to the widow but was not correct in sustaining the plea of prescription as to the minors and in this case it said:

“Counsel are correct in their contention that the mother in this case had a right to claim and accept the compensation without qualifying as tutrix. Under the plain letter of the Civil Code and under repeated decisions of our Supreme Court, surviving parent may appear in court and prosecute or defend actions for or against their minor children without qualifying as tutor or tutrix; but we are not aware of any law compelling them to do so.”
“The question of parents’ responsibility for failure to qualify as tutor or tutrix and protect the rights of their minor children is another matter. The act under consideration specifically provides that where there is a surviving parent the compensation shall be paid to him or her and that the appointment of a tutor shall not be necessary.' That means, as we see it, nothing more than that the survivor is not required to qualify in order to receive the compensation for the benefit of herself and the children; but it by no means implies that the right of the dependent minors to receive compensation is dependent upon the will or disposition of the parent to accept the benefits of the act in his or her favor.”
“The situation of a minor, from the standpoint of being able to claim compensation under the Act in cases where the parent for any reason neglects or declines to invoke the Act in his or her behalf is the same as if the minor had no parent. To hold otherwise, would be to make the minor’s right depend entirely upon the will of the parent.”

The Court also in that case said:

“The dependent children can no more be deprived of their rights under this Act because of the neglect of the mother than they could be deprived of a legacy or inheritance because the mother refused or neglected to qualify as their tutrix and claim it for them.”

The above case was cited with approval in Ross v. Louisiana Long Leaf Company, 16 La.App. 264, 133 So. 804, also the Second Circuit.

The Judge of the District Court overruled the plea of prescription under the authority of the Gospel v. Southern Carbon Company case, supra, and following the ruling in that case we hereby affirm the ruling of the District Judge. Plaintiff, therefore, had one year from the date on which he reached his majority in which to file the present suit and, as the year had not run, the plea of prescription must be overruled. It is, therefore, unnecessary to consider the second and third contentions of the plaintiff as to why plaintiff’s cause of action had not prescribed.

As to the merits of the case, there is no doubt that plaintiff sustained an accident on August 9, 1946 in which a small particle of steel entered the fleshy part of his left arm near the elbow. The testimony reveals that after the accident the plaintiff worked five weeks more for the defendant for which he was paid his regular time and over time, and the record further shows that plaintiff never complained of his arm and performed all duties required of him in a satisfactory manner in so far as the defendant was concerned; that after the termination of his work with the defendant, he worked two days as an iron worker for Jones and Laughlin and one day for Arthur G. McGehee. He did no other work during this time and it was practically a year after the accident when he worked the one day for McGehee, and it was after this one day’s work that he decided he was unable to perform his regular duties as a result of the piece of steel in his arm.

Plaintiff himself testified that his arm did not trouble him after the accident while working for the defendant nor during the time he worked for Jones and Laughlin.

Dr. J. William Dowell, who was called as a witness on behalf of plaintiff, testified that he had examined the plaintiff with reference to the fragment of steel lodged in his arm, and that this fragment of steel was not in the joint itself and that, in his opinion, it was slightly larger than a buck shot. In answer to a question by .counsel for the plaintiff as to whether plaintiff had suffered some substantial loss of the use of his left arm, the Doctor said that his answer would be based entirely upon what the plaintiff told him, that the findings on the loss of use of his arm other than that there was some loss of sensation were strictly subjective. He reiterated that his principal finding was the question of pain; that that was based on what the plaintiff told him and that there were no objective findings. Nowhere in this doctor’s testimony do we find any diagnosis nor any definite reason from a medical standpoint as to why plaintiff could not perform the duties of an iron worker other than plaintiff’s own statement that his arm pained him.

Dr. Lester J. Williams was called as a witness' on behalf of the defendants and testified that he made five examinations of plaintiff’s arm, the first being a fluoroscopic examination on August 9, 1946, and an X-ray examination on August 10th, 1946, the last examination being on the second of March, 1948, and having been made at the request of Dr. Darby. Dr. Williams testified that the piece of steel was about % the size of a buck shot in the left arm of plaintiff, opposite the elbow. The X-ray pictures are in evidence and the doctor testified that there was no damage to the bone structure of the arm shown in any of the pictures, and that the last pictures, taken on the second of March 1948 showed no material change in the position of the piece of steel or any damage to the honey structure.

Dr. F. U. Darby was also called by the defendant and testified that he saw the plaintiff in the Lady of the Lake Hospital in Baton Rouge, Louisiana, on August 9, 1946, and he attended and examined him immediately after his accident. He testified that “he had a minor, small laceration on the inner surface of the left arm just below the elbow, and he stated he had been ■chipping steel and a piece of steel had broken off of the hammer he was using and had become imbedded in his arm.” Plaintiff remained in the hospital about an hour and a half, and the next day Dr. Williams was requested to take an X-ray picture of plaintiff’s arm, which he did. Dr. Darby saw the plaintiff in his office twice between August 9th and August 14th and on the latter date he discharged him to return to work. The testimony shows that the plaintiff never missed any days from his work on account of the injury. Dr. Darby examined the plaintiff the last time on March 1st, 1948 and he could find no limitation of motion in the elbow, wrist, fingers or shoulder. He further testified that if the plaintiff suffered any pain or any limitation in the arm that he would only know it by what the plaintiff told him and not by anything he could find.

Thus, we see from the medical testimony that the only evidence of any disability is what the plaintiff says, as the doctors see no reason for plaintiff’s disability. The only other evidence of plaintiff’s disability was given by the witnesses Melton and Shattuck that he performed lighter work after the accident, however, the preponderance of the testimony convinces us that he was not knowingly given lighter work by his employer, Robert Thi-bodeaux. The trial judge in his written reasons for judgment stated that “it was as much incumbent upon him to prove his disability by a preponderance of the evidence as it was to prove the accident. His evidence, uncorroborated by the medical doctors, should not suffice. The fact that he worked so long after the accident without complaint to his employer tends to impeach his statements as to his present incapacity to work. The evidence fails to show, as claimed by him, that the particle of steel rests against a nerve in his arm. The uncorroborated testimony of the witness to this effect cannot be considered in view of the medical testimony in the case.” We see no manifest error in this finding and, in fact, thoroughly agree with it.

The District Court rendered judgment for $25.00 in favor of plaintiff. This amount is made up of two medical bills, onq, fpr $15.00 to Dr. J. W. Dowell for orthopedic examination and report, and $10.00 to Dr. Williams. Although defendants in their brief contend that plaintiff was not entitled to a judgment in these amounts for the reason that they were incurred as a result of an examination of plaintiffs arm preparatory to and for the specific purpose of filing this suit, we find no answer to the appeal filed on behalf of the defendants and it .is, therefore, unnecessary for us to decide this question as this judgment cannot be disturbed.

The judgment of the District Court is accordingly affirmed.


author: LE BLANC, Judge.

text:
    STAR SHOE CO. v. HENDRICKS.
    No. 3099.
    Court of Appeal of Louisiana. First Circuit.
    April 19, 1949.
    Rehearing Denied May 19, 1949.
    Writ of Certiorari Denied June 30, 1949.
    Morgan & Pfeffer, of Covington, for appellant.
    Talley & Anthony, of Bogalusa, for ap-pellee.
   LE BLANC, Judge.

This is a suit brought by a shoe manufacturing company of Boston, Massachusetts, to recover from the defendant, D. R. Hendricks of Bogalusa, in the Parish of Washington, the sum of $1,741.55 for certain lots of shoes sold and delivered to him between March 3, 1947 and April 29, 1947. The shipment consisted of ten lots, six of which were shipped during the month of March and the other four during the month of April. The suit being one on an open account, the allegations of the petitioner are very plain and simple and the demand is for judgment for the stated sum of $1,741:55 with legal interest from April 29, 1947.

The defense, as reflected in the answer of the defendant, is that the shoes were bought from plaintiff’s salesman on open samples and upon delivery it developed that the shoes delivered did not conform to the samples; that they were inferior in quality, grade and workmanship, in every respect. It is admitted that nothing was paid on account of the shoes delivered because the shoes were not the same as had been ordered and it is alleged that plaintiff was advised immediately by the defendant to that effect and the shoes were returned.

Assuming the position of a plaintiff in reconvention, defendant sets out that this order of shoes represented an investment of $1,741.55 on which he would have realized the usual and customary profit of 33%% had the shoes been satisfactory and of the g?ade and quality which he had bought. He alleges that he therefore was deprived of a profit of $580.51 which he is entitled to recover as damages from the plaintiff and he prays for judgment in re-convention accordingly, Defendant then avers that from the first lot of shoes, he disposed of several pairs which in the aggregate amounted to the sum of $77.15, according to his books, and that he has made a legal tender of that sum to plaintiff’s attorney who refused to accept the same.

It is therefor noted that the defense is based entirely on the defective quality of the merchandise purchased and legally speaking, payment is sought to be avoided altogether on the ground of a redhibi-tory vice.

After trial of - the case in the district court, judgment was rendered in favor of plaintiff in the sum of $1,449.05. The judge refused to allow the plaintiff to recover for the last two lots which defendant had rejected. The trial judge took the position that as defendant had already returned the other shoes, he had the right to assume that these two shipments were also inferior to the sample and since he did not accept delivery of these two lots no liability attached as-to these.

From the judgment rendered, defendant took a devolutive appeal and plaintiff has answered the appeal praying that the judgment be amended by increasing the amount to the full sum demanded of $1,741.55.

The first question to be considered is whether the shoes that were shipped in bulk by the plaintiff conformed in grades, quality and workmanship to the sample which plaintiff’s salesman had exhibited to the defendant, for if they did not, certainly defendant could not be forced to accept the shipment. On the other hand, if they were of the same grade and quality, it is equally certain that he was obligated to comply with the 'conditions of the sale by making a payment at the time agreed upon or in the regular course of business.

The trial judge, as we have stated, held that the shoes did not conform to the samples. Testimony on this point is a bit conflicting. The witnesses who testified for the plaintiff all gave their testimony by deposition. One was the president and treasurer of the plaintiff company, another the sales manager, the third a shoe buyer of Boston, Massachusetts, with ten years experience in that business, and the, fourth a shoe manufacturer of Brookline, Massachusetts, with twenty-nine years experience as a buyer, foreman of various departments, sales manager and owner of such businesses.

The president’s deposition is to the effect that he had no personal knowledge of the transaction involved in this case, but naturally lie takes the position that the samples which were -shown to the defendant were representative of the shoes that were shipped and in answer to one of the interrogatories states that they were the same quality, material and workmanship as the shoes which had been ordered by,defendant. The deposition of the sales manager of the plaintiff company is to the same effect as that of the president. In fact it is so much the same that it caused counsel for defendant to look upon both depositions with a great deal of suspicion. The shoe buyer with ten years experience who testified for the plaintiff stated that he had bought shoes from the plaintiff, by sample, and the shoes were satisfactory. He examined some of the shoes sold to the defendant on or about March 12, 1947 and found them to be physically in good condition at the time they were manufactured. He says they were saleable at normal prices. The last of these witnesses had never bought shoes from the Star Company. He did however, inspect some of the shoes involved in this case and his opinion was that from the manufacturer’s standpoint, they seemed to have been reasonably well made and competitively saleable in their price grade.

For the defendant, besides himself, the witnesses who testified on this point were the plaintiffs salesman who sold him the shoes and two clerks who sold shoes in his store. They all, including the salesman, testified that the shoes were not the same kind of shoes which had been ordered on the sample the salesman had displayed to him.

With this conflict in the testimony, the finding of the trial judge on this very important point is entitled to very great weight and consideration. You cannot regard the testimony of the officials of the plaintiff company as that of witnesses who were not without interest, the same as you cannot regard the testimony of the defendant himself and, to a certain extent, that of his employees. We are not convinced however that the two disinterested witnesses who testified for the plaintiff afforded very strong proof that the shoes were the same kind of shoes as were represented by the sample. All that they testified to, and which has any bearing on the case, is that the shoes they examined were satisfactory from the manufacturer’s standpoint, one even qualifying his statement by saying that they seemed to be so satisfactory. They referred to them as being physically satisfactory but that of course, does not mean that they conformed to the samples which the salesman showed the defendant.

If there is testimony from any one witness which would turn the weight of proof on one side or the other on this point, it is that of plaintiff company’s salesman, Leonard Toppino, who very definitely states that the shoes were not of the same quality and grade as represented by the sample exhibited to the defendant. The witness did not testify in open court. It seems that at the time he was under treatment for some nervous disorder at a sanitarium in Covington and his doctor gave k certificate that it would not be good for him to appear in court and be subjected to too much questioning by the attorneys in the case. His testimony is attacked by counsel for plaintiff on the ground that they were not able to probe his conscience by a proper oral cross-examination. They were, however, permitted to address cross-interrogatories to him which would have served the same purpose. We think that under the circumstances, the method under which his testimony was given was proper and we find nothing to detract from it in any way.

We therefore conclude that the trial judge was correct in holding that the shoes that were delivered to the defendant did not come up to the samples and that plaintiff can only recover if the record reveals that the defendant did not complain within a reasonable time of the defective quality and workmanship of the shoes. The important point involved here is what constitutes a reasonable time within which to make such a complaint. In determining that issue we have to take into consideration not only the facts in the case but all the surrounding circumstances attending those facts.

It is shown, and not disputed, that the shipments began to reach the defendant early in the month of March. According to the defendant himself, after he received the first shipment he took the shoes out of the cases and examined them, not only as to quality but as to how they would fit. He states that the only, way to examine shoes as to fitting is to try them on customers. After trying them on some of his customers he found that they were defective in the way in which they fitted, and the quality of the shoes themselves was not of the standard of quality of the shoes he had bought. He sold, according to his books, $77.15 worth of these shoes which he estimates represented about twenty pairs. According to the testimony of witnesses for the plaintiff, he does not account for forty-two pairs of shoes. As we understand the testimony, he kept receiving shipments from time to time and he kept selling the shoes and it was not until the beginning of April, according to his own testimony that he says he wrote plaintiff, complaining about the shoes and stating that they were unsatisfactory and were not the shoes he had ordered. He did not have a copy of that letter because he says that it was written in long hand and he did not make a copy of it. We note a letter from the plaintiff company addressed to him which is dated May 6, 1947, in which no reference whatever is made to any letter received by them during April nor at anytime. On the contrary it is distinctly stated in that letter that their records “do not indicate receiving any correspondence regarding cancellation of your orders.” As that letter begins by stating, “We are in receipt of your statement showing returns of 349 pairs of shoes against which you have apparently sold approximately forty-two pairs,” it would seem that the first notice plaintiff had of any cancellation, except by receipt of the statement of the returned merchandise, was at the beginning of May, since their letter is dated May 6, 1947.

Let us concede the defendant’s point that in order for him to definitely see for himself that the shoes were not up to the standard of the samples, as to fitting, it was necessary for him to try them on customers to whom he sold them, it appears to us that beginning with the early part of March, he would have had a reasonable time during the whole of that month to so satisfy himself. If is also very significant, as stated by the trial judge, that he had no record of any one customer who came back to him and complained about the shoes he had sold. The burden of proof was on him to show that he kept these shoes this long in order to try to satisfy himself as to their quality and fitting, and if they did not come up to standard, he should have called some of these customers to support his contention.

The law in Louisiana on the question involved in this case is succinctly stated in the case of William Whitman and Company, Inc., v. Solomon, La.App., 144 So. 292, 293, as follows: “Under the laws of this state, when goods are sold on sample, it is the duty of the purchaser to examine them when delivered and, if they are not up'to grade or quality, to reject them within a reasonable time. If the purchaser uses the material without objection, he is considered as having waived whatever defects may have existed in the material, where such defects might have been discovered upon simple inspection.' Rev.Civ.Code, Art. 2521; Fairchild Auto Company v. Reed, 12 Orleans App. 351; Millaudon v. Price, 3 La.Ann. 4; Szymanski v. Urquhart, 5 La.Ann. 491; Rocchi v. Schwabacher & Hirsch, 33 La.Ann. 1364; Shultz v. Henderson, 134 La. 263, 63 So. 897; Corpus Juris, Volume 55 Verbo ‘Sales,/ § 268.” In their brief, counsel for defendant say that they fully understand the purposes and the requirements of Civil Code, Article 2521, but that in the present case the shoes were returned within a reasonable time after the establishment of a defect in their quality, “which was definitely not discernable upon simple inspection.”

The testimony of the defendant and his witnesses who sold shoes in his store is all to the effect that they observed at once, upon receiving the shoes, that they were not the same shoes as represented by the samples which had been displayed by plaintiff’s salesman. We have already referred to defendant’s own testimony on this point and might refer to that of Miss Wilda Collins, one of his employees who said that she was present when the shoes were bought from the samples. Her testimony is that the sample she saw looked like a very expensive shoe but when the shoes were received they were altogether different shoes; ' “not the same shoe at all” and they were inferior to the shoes represented by the samples. We can refer to the testimony of Mrs. L. E. McLain, another employee of the defendant. She too was present when the shoes were ordered on the samples and states that when the shipment was delivered the shoes were not the same as to materials and fitting', especially in materials. We find therefore that whatever defects appeared, or in whatever manner the shoes did not conform to the samples, was not only readily discernible upon simple inspection but that these defects, and lack o'f conformity had been actually discerned by these parties. If by their statement counsel also mean that it might have taken a longer time to inspect and establish the defects, especially the fitting of the shoes, then we revert to what has already been stated that during the whole of the. month of March, defendant actually sold between 20 and 40 pairs of these shoes and certainly that should have given him a reasonable time and opportunity within which to establish any such defect with regard to fitting, and make proper complaint.

On that branch of the case we agree with the ruling of the trial judge that under the facts established and the circumstances shown, the defendant waived whatever defects which he not only could, but did discover upon inspection of the shoes and not having made complaint within a reasonable length of time, such defects were not among the number of redhibitory vices which entitled him to a cancellation of the sale. C.'C. Art. 2521.

We have to disagree with the trial judge, however, on the proposition that with regard to the last two shipments of shoes, defendant had a right to assume that they also would be found not to conform to the samples and that they were properly rejected by him. Under the. theory by which he was held liable for the previous shipments, it is seen that inspection upon delivery was found to be a necessary prerequisite to his rejection. In the cited case of William Whitman & Co. v. Solomon it is stated that it is the purchaser’s duty to examine upon delivery before rejecting the goods he bought. Under that theory he has no right, based on what facts were disclosed by his inspection of previous shipments, to assume that all remaining deliveries would also be defective.

The defense pleaded is a special one which casts the burden of proof on the defendant. He offered no specific proof with regard to these two last deliveries of shoes ordered by him and relied solely on an assumption that like all previous shipments they did not conform to the samples on which he bought. We do not think that the district judge should have relieved him of liability for those two shipments without more proof than that and therefore we find it necessaiy to amend the judgment in that respect.

For the reasons stated, it is ordered that the judgment appealed from be amended by increasing the sum awarded 'from $1449.05 to $1741.55 and that as thus amended, it be affirmed at the costs of the defendant, appellant herein.


author: REGAN, Judge.

text:
    EBERT v. PACIFIC NAT. FIRE INS. CO.
    No. 19208.
    Court of Appeal of Louisiana. Orleans.
    April 11, 1949.
    Rehearing Denied May 23, 1949.
    Writ of Certiorari Denied June 30, 1949.

      O’Niell & O’Niell, of New Orleans, for appellant.
    St. Clair Adams & Son and P. A. Bienvenu, all of New Orleans, for appellee.
   REGAN, Judge.

This is a suit by Joseph F. Ebert, the plaintiff, and against Pacific National Fire Insurance Company, the defendant, to recover the sum of $1,000, the face value of a policy of windstorm insurance.

The defendant answered denying that the loss was caused by a peril covered by the policy.

There was judgment below dismissing plaintiff’s suit and he has prosecuted this appeal.

The plaintiff alleged that his camp, located on the South side of Highway 90 between Chef Menteur and the Rigolets, was damaged by the hurricane of September 19, 1947, to the extent of $1,135, and that under his policy of- extended coverage, he is entitled to recover the face value thereof or $1,000.

The defendant contends that the damage to the building was not a direct loss by windstorm within the meaning of the policy, but, on the contrary, was caused directly or indirectly by tidal wave, high water or overflow which accompanied the hurricane of September 19, 1947. In support of this contention it relies upon the following provisions of the policy

“In consideration of the premium for this coverage shown in face of policy, and subject to provisions and stipulations (hereinafter referred to as provisions) herein and in the policy to which this extended coverage is attached, including riders and endorsements thereon, the coverage of this policy is extended to include direct loss by windstorm * *
“ % & sjt ‡ ‡ sjc
“Provisions Applicable Only to Windstorm and Hail: This Company shall not be liable for loss caused directly or indirectly by (a) frost or cold weather or (b) snow storm, tidal wave, high water or overflow, whether driven by wind or not.
“This Company shall not be liable for loss to the interior of the building or the insured property therein caused, (a) by rain, snow, sand or dust, whether driven by wind or not, unless the building insured or containing the property insured shall first sustain an actual loss to roof or walls by the direct force of wind or hail and then shall be liable for loss to the interior of the building or the insured property therein as may be caused by rain, snow, or dust entering the building through openings in the roof or walls by direct action of wind or hail or (b) by water from sprinkling equipment or other piping, unless such equipment or piping be damaged as a direct result of wind or hail.”

A careful analysis of the transcript indicates that the only question involved here is one of fact, and that is whether plaintiff’s house was blown or floated off of its foundation.

The insured’s building was located one hundred and sixty to one hundred and seventy feet from the South side of U. S. Highway 90, and twelve hundred feet from Lake Catherine, in the area between the Rigolets and -Chef Menteur, in the Parish of Orleans. Lake Catherine is South of the Highway and beyond Lake Catherine is Lake Borgne and the Gulf of Mexico-North of the 'highway' is Lake Pontchartrain. The Rigolets is the East pass from Lake Pontchartrain to Lake Borgne and Chef Menteur is the West pass. The building was; therefore, practically surrounded by water and, for an additional orientation was approximately one mile from the Rig-olets. It is an ordinary three room frame structure, colloquially designated as a “camp”. It was built by the .plaintiff himself about eighteen years before the hurricane, on a mound of earth about five feet higher than the surrounding marshland on pilings five feet above the ground, which were driven eighteen inches in the ground. The overall measurements of the camp were approximately fifty to fifty-five feet in length by twelve feet in width with nine and one half foot ceilings. It was constructed of one by twelve vertical boards covered with roofing felt and had a corrugated iron roof. When the camp was closed it was adequately protected from the wind and rain.

We take judicial notice of the fact that the hurricane of September 19, 1947, was of unusual severity. According to the official record of the United States Weather Bureau, which we have examined in the record, the wind attained a velocity of approximately ninety-eight miles per hour in the New Orleans area. The camp, which we have described hereinabove, is situated in open marshland and we conclude that it is a reasonable assumption that the wind was of the same or greater intensity there than in the City of New Orleans.

Two witnesses testified at the trial who were in the area during the hurricane, namely, L. J. Rule, for the plaintiff, who resided at the Rigfolets, and Dave Heilbron, for the defendant, who resided in a place known as Green’s Ditch and situated approximately three miles from the insured camp in the general direction of Chef Menteur. Both these witnesses rode out the storm in their respective localities.

Heilbron, who is seventy-five years of age and five feet two inches tall, lived at Green’s Ditch in a camp located about seventy-five feet from Lake Catherine and about one hundred and fifty feet from Highway 90. He testified that he abandoned his camp at about 1 o’clock on the morning of the hurricane and took refuge in a neighboring camp, occupied by Mr. and Mrs. Phynics which was located about twenty-five feet nearer the highway. Heil-bron said that he remained at the Phynics’ camp until 8 o’clock in the morning when, according to the record the storm had reached its greatest intensity, he and the Phynics, whom Heilbron described as “old folks” left and walked through the marsh, which was inundated with about four feet of water, to the highway, where he remained throughout the storm, taking refuge under some pilings measuring twelve by twelve. He testified that the wind tore the camps to pieces, hurling lumber, tin and miscellaneous articles across the highway and endangering his life. This is evidenced by the following testimony:

“Q. Then you went to the highway, and you said you sat behind a bunch of pilings, didn’t you? A. Yes, big pilings, 12x12.
“Q. And you were sitting northward from these — on the lea side in other words, from the pilings? A. I was under them. The pilings was this way, slanted, and I was under them, dodging lumber and flying tin and all like that.
“Q. What did you say you were dodging? A. Timber and tin and everything was hitting on top of the highway; it was hitting on top of them pilings I was under and bouncing on the opposite side.
“Q. What was causing those things to fly in the air? A. That was the hurricane, that terrible wind. It knocked me down a couple of times before I made it under that piling. I had to crawl to get up under there.
“Q. You mean the wind knocked you down as you were going to the highway? A. Yes. I scrambled back to get to that piling there and it knocked me down and I had to crawl to- get to them pilings.
“Q. And that was the force of the wind that was doing that ? A. The force of the wind knocked me down.
“Q. Now, Mr. Heilbron, you testified about tin and debris flying through the air. Where was it coming from — from what structures? A. Oh, I couldn’t tell you what structures it was coming from.
“Q. Well, I mean, it was coming from camps, wasn’t it? A. Coming from camps. I don’t know which camp it was. I couldn’t say. But the things was coming that way and I says: ‘Well, a life is a life’, and I started to save myself.”

William L. Case, an engineer, who testified on behalf of the defendant, fixed the elevation of the Ebert camp, with respect to the elevation at Green’s Ditch at about one foot, four inches above sea level. It will be recalled that Ebert’s camp was built on a mound of earth which Mr. Case testified as being elevated four feet, ten inches above sea level and about five feet higher than the surrounding marshland, and the Ebert camp was further elevated by five foot piling’s.

The testimony of defendant’s witness Heilbron is in conformity, on vital facts, with the testimony of plaintiffs witness, Rule. Rule, a fisherman by occupation, resided at the Rigolets. He abandoned his camp about 2 o’clock on the morning of the hurricane and took refuge with other residents of that area in a building known as Maucele’s Bar. He testified that he observed his camp blown down about ten minutes after eight that morning, which was before the water rose.

“Q. Where were you during the hurricane? A. Well, I was right at Maucele’s barroom. That is right off from my place at Fort Pike.
“Q. At the Rigolets? A. At the Rig-olets, yes sir. That is what they call it. They used to call it the Little Rigolets.
“Q. Did you own a camp at the Rigo-lets? A. Yes, sir.
“Q. What happened to that camp when the storm struck?
******
“A. The camp went down, and it went to wreck and when the water came up, it blowed it away. As the water came up, it washed the wreckage of it away.
“Q. I want to know whether the wind blew your camp down or whether the water knocked it down.
* * * * * *
“Q. Now, what camp were you in? Where were you, what building were you in when this hurricane struck? A. When my -camp went down?
“The Court:
“Yes.
“A. I was in Maucele’s place, looking at my camp, watching all the time to see whether it would go do\.a or not, and I saw it when it went down.
“Q. How far is your camp from Mau-cele’s place? A. 3S0 feet, or 400 — not further than 400.
“Q. You testified that you were looking at your camp when it went down. Did the wind blow it down or did the water knock it down?
******
“A. The wind blew it down, sir.
“Q. Well, now, when your camp went down, had the water risen at the Rigolets in the area of your camp? A. Well, they had a little water- — not so much as we have in a regular high tide. The water wasn’t on ‘the road from my camp up to the highway.
“Q. Well, was there any water in your camp at that time?
******
“A. No, sir.
“Q. About what time of day was that? A. My camp went down at exactly ten minutes after eight in the morning fey the clock there.
******
“Q. Now, you testified that you were at Maucele’s place. Why were you there? A. Well, I was there because I figured mine was going down. I felt it was going and I wanted to get out before it did go down, and that seemed to be the most likely place to get out of the weather.
******
“Q. Now, why did you go to Maucele’s camp? A. To get out of the weather. I couldn’t stay in mine. I was afraid it was going to fall on me. It was shaking there; it was a small camp.
“Q. Well, was Maucele’s building a stronger building than your camp? A. Yes, sir; it is there yet.
“Q. It didn’t go down? A. It didn’t go down, no.
“Q. Now, how far, measured by air line, is Mr. Ebert’s camp from your camp, approximately? A. Well, about nine-tenths of a mile.
“Q. Well, now, was your camp on the same side of the highway as Mr. Ebert’s? A. Yes, sir.
“Q. Now, was your camp built in the marsh like Mr. Ebert’s? A. Mine was in the marsh; Mr. Ebert’s was up on a hill. It was in the marsh on a hill; mine wasn’t.
“Q. Well, now, is there any difference in the elevation of the marsh at your camp and the elevation of the marsh in the area of Mr. Ebert’s camp?
* * * * * *
“A. Well, the elevation of the marsh is no higher, but the hill pumped up there when the dredgeboat was there raised the elevation where his house was.
“Q. Were there any other camps located near your camp at the Rigolets ? A. Yes, sir.
“Q. Now, did any of these other camps —I am not speaking of Mr. Ebert’s camp, but the other camps at the Rigolets — blow down?
******
“A. Yes, sir.
“Q. Well, now Mr. Rule, about -how many camps at the Rigolets were blown down by the wind before the high water came?
******
“A. Well, there were four camps right in the immediate neighborhood around mine that went down, besides mine.
“Q. Well, now, did those camps go down before the water came — the high water? A. Before the high water came to them. I saw Mrs. Pokorny’s place go off the foundation; and I saw Dave Herring’s place go off the foundation before the water ever got up to it. He has got a place of business right near the oyster factory there on the gulfcoast road.
* * * * * *
“Q. Did you remain at Maucele’s place during the' entire storm? A. No, sir. When the signs and stuff started blowing off the place, I hit, the highway. I figured we was going to and I wanted to get where nothing was going to fall on me; so I walked down the side of the highway, which I couldn’t walk on the highway, so I walked on up a piece of the way towards where Mr. Ebert’s camp was.
“Q. Now, you testified that you took to the highway. A. Yes, sir.
“Q. What did you mean by that? A. Well, I figured it was safer on the highway than staying in that building.
“Q. About how high above the level of the marsh was that highway? A. Well, right at that particular point, I will say it was] 2% feet above the highest part of the water, the highest it came there, right there at MaMcele’s place.” (Italics ours.)

Rule testified further that at about 9:30 that morning he became frightened that Maucele’s bar, in which he had taken refuge, would be destroyed by the storm, so he left this structure and walked out on the highway. The record reflects that Heil-bron, defendant’s witness, had taken refuge on the same highway and was still there at 8:45 a. m., so, at this time, the highway could not have been under water. Rule further stated that on the highway he had a clear view of Ebert’s camp across the open marsh and that it was then off its foundation and this was before the water rose. When asked by the Court “whether the water had risen in the area of Mr. Ebert’s camp,” Rule replied, “I will say up as far as the top of the hill where his foundation was, yes.”

The evidence reflects that the front of the Ebert camp received the greatest damage. The camp faced north and the hurricane wind struck from the Northeast. The flood waters came from the opposite direction, that is from the general direction of the South or Lake Catherine. The defendant insurance company took photographs' of all parts of the camp with the exception of the front. The insurance adjuster testified that the reason he did not take pictures of the front of the camp was that he ran out of film.

Heilbron, a man seventy-five years of age and five feet, two inches tall, accompanied by “old folks” (Mr. and Mrs. Phy-nics) walked through the marsh to the highway at Green’s Ditch at about 8 o’clock on the morning of the hurricane. He testified that the water in the marsh was up to his shoulders, therefore, the water could not have been very rough nor more than four to four and one half feet deep. He took refuge on the highway behind some piling and there was no water on the highway at that time. Rule testified that he walked to the highway at about 9:30 that morning and the insured’s camp was off of its foundation at that time and the water had risen to about the level of the mound of earth in which the pilings supporting the camp were driven. It will be remembered that Heilforon and Rule were the .only witnesses produced at the trial who testified that they were in this area during the hurricane.

We have examined the entire record and after a careful analysis of the ■testimony, we are of the. opinion that the evidence preponderates in favor of the plaintiff and is to the effect that the direct cause of the damage to plaintiff’s camp was the intensity of the wind on the morning of September 19, 1947.

Counsel for defendant maintain that the damage to the insured’s property would not have occurred except for the action of the flood water reaching the property before it had been removed from its foundation by the wind and, in support of this contention cite what they term the leading cases on this subject, which are, of course, Texas cases growing out of the Galveston Hurricane of 1915, to wit: Palatine Insurance Company v. Petrovich, Tex.Civ.App., 235 S.W. 929 and Palatine Insurance Company v. Coyle, Tex.Civ.App., 196 S.W. 560, affirmed by the Supreme Court of Texas in 222 S.W. 973.

In the two cited cases the conditions of the wind and the heighth of the water during the course of the hurricane are vividly and picturesquely described in the opinions. In each instance the appellate court rendered judgment in favor of the defendant insurer on the ground that the exception in the policy clearly indicated that the insurer undertook to insure against loss by wind alone and not loss as a result of the action of wind and water. In each opinion the court stated that the plaintiff bore the burden of proving that his loss was the result of the wind and not caused directly or indirectly by the water.

However, in Pennsylvania Fire Insurance Company v. Sikes, 197 Okl. 137, 168 P.2d 1016, 1017 166 A.L.R. 375, a case decided by the Supreme Court of Oklahoma in 1946, which, in our opinion is analogous to the case which we are presently considering, it was held:

“The policy covering the household effects contains the following: ‘This company shall not be liable . for any loss or' damage caused by snowstorm, blizzard, frost or cold weather; * * * nor for loss or damage occasioned directly or indirectly by or through any explosion, tidal wave, high water, overflow, cloudburst, theft; nor for any loss or damage, caused by water or rain, whether driven by wind or not, unless the building insured, or. containing the property insured, shall first sustain an actual damage to the roof or walls by the direct force of the wind, and shall then be liable only for such damage to the interior of the building or the insured property therein, as may be caused by water or rain entering the building through openings in the roof or walls made by the direct action of the wind, or by water from sprinkler, or other piping broken by such damage to roof or walls.’
* * * * * *
“Defendant says that by virtue of the above quoted provisions of the policies it is not liable for water damage under the facts here. Citing Coyle v. Palatine Ins. Co., Tex.Com.App., 222 S.W. 973; Newark Trust Co. v. Agricultural Ins. Co., 3 Cir., 237 F. 788; Palatine Ins. Co. v. Petrovich, Tex.Civ.App.., 235 S.W. 929; Parish v. County Fire Ins. Co., 134 Neb. 563, 279 N.W. 170, 126 A.L.R. 703; and National Fire Insurance Co. v. Crutchfield, 160 Ky. 802, 170 S.W. 187, L.R.A.1915B, 1094. Those are cases wherein the trier of facts found that the damage was caused by flood, or there was no sufficient evidence upon which to base a conclusion that the wind alone was the proximate cause of the damage. The cases would be applicable had the jury here found that the house was removed from its foundations and carried away by the rising 'flood waters. The jury herein found to the contrary. The Texas cases concern losses occasioned by tidal waves — where great bodies of gulf waters were blown into and against the houses and they were in fact inundated and flooded thereby where they stood upon their foundations. In the Coyle case it is pointed out that the policy excepted from it9 coverage damage caused by action of water driven by the wind. Here that damage which may have occurred.to plaintiff’s property after it had been deposited in the flood waters by the wind was not caused by water driven by the wind. Much the same may be said of the other cited cases. They contain some showing that the damage would not have occurred but for the action of the flood waters reaching the property itself before it had been displaced by action of the wind.' They merely hold that the proximate and efficient cause of the damage was by flood as commonly known and accepted, and as agreed upon in the contracts of the parties. Here the wind directly damaged the property and was alone the proximate and efficient cause of the same being deposited in the flood waters where it likely was damaged further. We think it would be far-fetched to reason that the parties to these contracts would have contémplated such damage to be a flood damage. We have the view that the exceptions above noted in the policies relate to flood damage as commonly known.
“In the cited cases the facts were that flood waters were the proximate cause rather than the contributing or incidental cause of the disturbance of the houses, or Was a major factor with the wind in making up the initial-cause, or agency, which caused the houses to' be disturbed and removed from their anchorage. Therein there was flood damage -as the proximate cause of the damage as contemplated by the contracting parties. The houses were in fact flooded by bodies of water which flood water caused or was an efficient element in the cause of the entire disturbance of the houses.
“In the present case neither the house nor the truck was affected by the flood water until the wind had blown them from their sites and anchorage. Whatever flood damage may have resulted thereafter was incidental, and a somewhat logical sequence to the wind disturbance. No unusual or unexpected thing occurred thereafter to cause the water damage. Common experience and understanding suggest that when personal property of this nature is blown into a body of water that some water damage will likely result before the property can be recovered.
“It is fair to assume .that under these facts this incidental water damage was within the terms of the policies and contracts of the parties at the time they were made.”

In our opinion the instant case is distinguished from the case cited by the defendant by the. Sikes case, and we feel that the distinction is clear, unequivocal and appropriate and that, in this- case, our conclusion of fact is supported by sound reason and equity.

The description of the situs of the insured’s camp readily conveys -the associated idea that the camp is surrounded by water, and it is inconceivable to us, who have lived all of our lives in this general area, to believe that a storm or hurricane could occur of any sort whatsoever, without a corresponding rise in the tide. There is not one scintilla of evidence in the record of a tidal wave — where great bodies of gulf waters were blown into and against the camps causing them to be inundated and swept away by the mad fury of gargantuan waves- of water. The damage to the insured’s camp, in our opinion, was not occasioned by the action of flood waters, in the common and accepted sense of that phrase, reaching the property itself before it had been displaced by the intense action of the wind. Here the wind dix-ectly damaged the property and was alone the proximate and efficient cause of 'the camp being deposited in the water. If a tornado or windstorm policy does not afford protection from a storm accompanied by winds of ninety-eight miles per hour or more, it occurs to us that authors of the contracts of windstorm insurance may just as well insert a clause in the policy to the effect that it should not -be operative when a hurricane is accompanied by high tides.

As stated the vital issue of fact in this case was whether the plaintiff’s camp was blown or floated off of its foundation and we have concluded and found as a fact that the camp was blown into the flood waters by the intense force of the winds prevailing in that area at the time of -the hurricane.

We said in Owens v. Felder, La.App., 35 So.2d 671, 672, that: “We are reluctant to reverse the finding of a trial court based primarily on questions of fact, but in a case, such as we are presently analyzing, it is a self evident principle that it is occasionally easier to perceive fallacies and inconsistencies contained in the record by a comparison of the various portions of the transcribed record with other pertinent portions than it is to accurately observe and catalogue them while listening to the oral evidence of the various witnesses who testified during the course of the trial.”

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there, be judgment herein in favor of Joseph F. Ebert, the plaintiff, and against Pacific National Fire Insurance Company, defendant, in the full sum of $1,000, together with legal interest from judicial demand until paid, and for all costs.

Reversed.


author: PER CURIAM.

text:
    MAYER v. SLAUGHTER et al. HARTMAN v. MAYER et al.
    Nos. 3090, 3091.
    Court of Appeal of Louisiana. First Circuit.
    April 19, 1949.
    Benj. W. Miller and A. J. Jones, both of Bogalusa, for appellants.
    Harrison G. Bagwell, of Baton Rouge, for plaintiff Mrs. Estelle D. Hartman.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for plaintiff Buffington S. Mayer, Jr.
   PER CURIAM.

. In these consolidated cases, the defendant, Joseph H. Slaughter, has filed an application for rehearing. We have our serious doubts as to the propriety of just one application for both cases. We are inclined to •be of the opinion that he should have filed an application in each case, setting forth the errors committed by us relative to each case. However, we shall consider his application and his assignment of errors as applying to each case.

In so far as his application applies to the Hartman case, he assigns only one error and that is that we treated defendant Mayer as being discharged in the suit by Mrs. Hartman. We restate that defendant Slaughter is not in any worse position by Mrs. Hartman’s action than he would have found himself had Mayer never been made a party defendant. Furthermore, Mrs. Hartman could have dismissed her suit against Mayer at any time without prejudice to her as against Slaughter.

In so far as his application applies to the Mayer case, his chief complaint is directed in our holding that the negligence, if any, of Mayer was not a contributing cause of the accident. He contends that Mayer was equally guilty of the same negligence as was his truck driver. After a careful review of this record we are firm in our opinion that we have not committed any error in our conclusion. Again, we repeat that our appreciation of the facts in this case leads us to the conclusion that the Hartman truck was not in the lane of travel of Mayer and within the range of Mayer’s lights a sufficient length of time for Mayer to observe the Hartman truck and stop his automobile. Furthermore, he was presented with an emergency, not of his making, and is therefore absolved of any pre-existing negligence, that is, of driving too fast under the prevailing weather condition. His negligence was not a cause of the accident under the facts of the case. We again state that the sole proximate cause of this accident was the negligence of McGinnis, defendant Slaughter’s truck driver.

Rehearing refused in both cases.