author: JANVIER, Judge.

text:
    WILLIAMS v. JAHNCKE SERVICE, Inc.
    No. 18760.
    Court of Appeal of Louisiana. Orleans.
    Jan. 10, 1949.
    Rehearing Denied March 14, 1949.
    Writ of Certiorari Granted April 25, 1949.

      James G. Schillin, of New Orleans, for plaintiff-appellant.
    Normann & Jones and R. J. Schonekas, all of New Orleans, for defendant-appellee.
   JANVIER, Judge.

Annie B. Williams, as tutrix" of her illegitimate minor daughter, Dorothy Mae Cyprian, brought this suit under the Workmen’s Compensation Laws of Louisiana, Act No. 20 of 1914, as amended, seeking to recover, on behalf of the minor,' compensation from Jahncke Service, Inc., as the employer of Jules Cyprian who was killed under circumstances which, it is alleged, rendered the said employer liable to the said minor for compensation for three hundred weeks at the rate of $13 per week.

It is alleged that though the said minor is illegitimate, she is the acknowledged child of her mother, who brings this suit, and the said Cyprian, and that the said child, prior to the death of Cyprian, was living in his household as a member of his family and was dependent upon him.

Though the death is alleged to have occurred on March 21, 1936, the suit was not filed until November 7, 1946. Petitioner alleges that the reason for this delay was the fact that until she was appointed tutrix in November, 1946, no other person had been appointed as personal representative of the minor.

The defendant filed a plea of prescription of one year and an exception of no cause of action and no right of action. The plea of prescription was abandoned by defendant. The other exceptions were referred to the merits and the defendant filed answer. It admitted the employment of Cyprian and that he was killed on March 21, 1936. It denied that prior to his death he had been earning the amount alleged by plaintiff. It denied that the minor had been acknowledged by Cyprian and it also denied that the said minor had been a member of the family of Cyprian or had been dependent upon him; it averred that at the time of his death, Cyprian was legally married to another woman, Stella Brown Cyprian, and that his said wife had been living with him and had been dependent upon him up to -the time of his death.

Defendant averred also that the said legal wife “would have the primary legal right to such compensation * * * to the exclusion of all other persons except legitimate children * * It averred also that, in a compromise judgment, which had been rendered in the matter entitled Stella Cyprian vs. Jahncke Service, Inc., No. 219,911, of the docket of the Civil District Court for the Parish of Orleans, the said Stella Cyprian had been awarded compensation and that this award had been paid by the said defendant.

As an alternative defense, the defendant averred that Cyprian’s death resulted from injuries received as a result of “his wilful intention to injure another and/or * * * intoxication at the time of the injury and/or * * * deliberate'breach of statutory regulation affecting safety of life or limb.”

After a trial there was judgment dismissing the suit, the judge a quo having reached the conclusion that Cyprian was killed as a result of his “deliberate intention to injure another.” From this judgment plaintiff has prosecuted this appeal.

It is evident that the abandonment by defendant of the plea of prescription of one year resulted from a realization of the effect of section 16 of the statute, Act No. 20 of 1914, as amended, Act No. 38 of 1918, § 1, for in that section it is provided that “* * * 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.”

See Wells v. White-Grandin Lumber Co., 13 La.App. 696, 129 So. 171.

An interesting question is raised by the exception of no right of action. It will be noted that by the allegations of the petition it is sought to base the claim of the minor on either or both of two theories. The first is that although the minor is an illegitimate child, she was duly acknowledged by the mother and the father when they registered her birth — an alleged fact which is disputed by the defendant, — and the second is that even if the claim cannot be based on the fact that the child, though illegitimate, was acknowledged by the parents, including the father, still the minor may base her claim on the fact that she -resided in the household of the deceased employee -and was supported by him and depended upon him, and was, therefore, a dependent member of his family.

In contending that the minor has no right of action, the defendant maintains that as to the claim based on blood relationship and the acknowledgment of the illegitimate child, there can be no such cl-aim for the reason that for a child to make such a claim there must be either a full legitimacy of the child or an acknowledgment in one of the methods required by Article 203 of our Civil Code. And as to the assertion that the claim may be based on the alleged fact that the minor was a member of the decedent’s family, defendant declares -that there can be no such claim for two reasons: First, that where a child claims not as a blood descendant but solely as a dependent member of the family, that child must -be one who could have been acknowledged 'by the deceased employee; and second, that where a person makes claim as a member of the family, the claimant must allege and show that there is no other claimant whose prior or superior right would stand in the way of a claim of a member of the family, i

Defendant maintains that in spite of the allegation that the minor was acknowledged by both the father and the mother, — even if it were true — there could be no claim based on this acknowledgment because the true fact is that the minor could not have been acknowledged because of the effect of Article 204 of our Code, which provides that the acknowledgments recognized in Article 203 “shall not be made in favor of children whose parents were incapable of contracting marriage at the time of conception.”

The facts as shown -by the record are: (1) that there was no acknowledgment by the father when the birth was registered, the certificate evidencing the registry of the birth merely showing that the mother appeared and made the statement concerning the paternity of the child; and (2) that at the time the decedent was the lawful husband of Stella Brown Cyprian and therefore, he and the mother were “incapable of contracting marriage * *

Defendant, pointing to these facts, asserts that the claim of the minor obviously cannot be based on the fact that she is a “child” of the decedent. That an illegitimate unacknowledged child has no claim as a “child” is made clear by a mere reading of the statute.

In section 8, paragraph 2, subsection (H) of the statute, as amended by Act No. 242 of 1928 p. 360, it is provided: “(H) The term ‘child’ or ‘children’ shall cover only legitimate children, step-children, posthumous children, adopted children and illegitimate childrert acknowledged under the provisions of Civil Code Artiele[‘s] 203, 204 and 205. The term ‘brother’ and ‘sister’ shall include stepbrothers and stepsisters, and brothers and sisters by adoption.”

See Lunkin v. Triangle Farms, Inc., La.App., 24 So.2d 213. Therefore, says defendant, the minor’s only claim rests upon a determination of whether or not she was a dependent member of the family. And defendant maintains that even if she was a dependent member of the family, there can be no claim even on this basis until it is made to appear that there is no one in a superior group whose right would stand in the way of the claim of a member of the family; and defendant makes the further contention that because the child is not only illegitimate, but is adulterous, she is not a person who could be recognized as a member of the family of the decedent.

That a dependent member of the family may, in certain instances, claim compensation is shown in Thompson v. Vestal Lumber & Mfg. Co., 208 La. 83, 22 So.2d 842, 852, in which, on rehearing, the Supreme Court said:

“ * * * The other class of survivors who are entitled to compensation for an injury causing the death of an employee consists of those who were actually dependent upon his earnings and who were either members of his family or bore to him one of the several relations enumerated in paragraph (D).”

We find nothing in that opinion, nor in the statute, which makes the right of one who claims as a member of the family to depend to any extent whatever on blood relationship or legitimacy. It is evident that the Supreme Court in that decision indicates that it found no such limitation of that right, and a very plain limitation would result if we should adopt defendant’s theory that there can be no claim as a member of the family if the person making the claim happens to be an adulterous child of the deceased employee. Nor do we find anything in the opinion of the Supreme Court in Archibald v. Employers’ Liability Assurance Corporation, 202 La. 89, 11 So.2d 492, which to any extent at all indicates or intimates that legitimacy or illegitimacy in -any of the various grades, if there be grades of illegitimacy, may be taken into consideration in determining whether a person may claim as a member of the family.

Since the claim under that provision does not depend in any way or to any extent upon legitimacy, it becomes apparent that any person otherwise qualified under the statute may make claim as a member of the family of the decedent.

But the defendant raises the further contention that even if such claimant may be permitted to assert a right, that right must depend for its existence on the absence of any other claimant with a superior right, and defendant shows that there was a legal wife in existence and that -that wife made claim and that that claim was compromised. Defendant argues, therefore, that since there was a superior claim which was successfully asserted by the superior claimant, there can be no claim by the minor as a mere member of the family. This contention makes it necessary that we consider the very interesting question which was propounded in the case of Bradley v. Swift & Co. (Balthazar v. Swift & Co.), 167 La. 249, 119 So. 37, certain phases of which are also to be found reported in 10 La.App. 25, 119 So. 906, and in an opinion rendered by us on February 20, 1928, 38 So.2d 397.

The-statute provides for three different groups of dependents and makes the rights of those in the second, or in the third group, dependent upon whether or not there is in existence a claimant in oné of the superior groups. Those groups are: (1) widows and children — (widowers in some instances); (2) dependent fathers and mothers; and (3) brothers and sisters or other members of the family. The right of the second group — mothers and fathers —comes into existence only “if -there be neither widow, widower nor child * * * ” and the right of the third group, that is, brothers and sisters and other members of the family, comes into existence only “if there be neither widow, widower nor child, nor dependent parent entitled to compensation * * *.” Act No. 242 of 1928, p. 359, § 8, subd. 2(E). As the Court of Appeal for the First Circuit said in Lunkin v. Triangle Farms, Inc., supra [24 So.2d 215] : “ * * * the statute means that if there is no widow, widower, child, parent or brother or sister entitled to claim compensation, then ‘other dependents’ have the right to claim it. * * * ”

Now since the claim of the minor in the case at bar can be based only on the fact that she is a member of the family and not on the fact that she is a child of the employee, it is evident that her claim depends upon whether or not there is any superior claimant, and it is shown that there is a legal widow, Stella Brown Cyprian. It is shown, also, that Stella Brown Cyprian made a claim and that payment has been made to her under compromise judgment which was rendered.

The plaintiff protests that that settlement can have no effect as standing in the way of the claim of the minor for the reason, asserts plaintiff, that as a matter of actual fact the legal -widow, Stella Brown Cyprian, was not living with, nor dependent upon, the employee at the time of his death. The argument is that in order that a legal widow stand in the way of a member of the family, or in the way of any one else in a subordinate group, the widow must be one who has a right to recover in compensation and that is exactly what was held in Balthazar v. Swift & Co., supra [167 La. 249, 119 So. 39], There the Supreme Court was faced with the problem of determining whether the mere existence of a widow who, because she did not depend upon nor live with the decedent, could not herself recover, would stand in the way of a claim by a dependent father. The Court held that the mere existence of a widow was not sufficient and that unless she was “entitled to compensation”, she did not prevent the father, otherwise qualified, from making a claim for compensation. But defendant says that since the widow in this case brought suit and claimed compensation asserting that she had been dependent upon the decedent and had been living with him, and since it made payment to her in the suit in which she made that claim, that settlement may be relied upon as a bar to the present suit, regardless of whether or not the widow would have been successful had it been necessary to prosecute the suit to final conclusion. We do not agree with this argument of defendant, and we think that if defendant wishes to rely upon the claim of the widow as barring the claim of the member of the family it may do so only if the widow was actually ■entitled to compensation.

The issue which is presented by the principal defense is one of fact. Did the death of Cyprian result from either his own intoxication or his wilful intention to injure another? A determination of this factual issue depends almost entirely upon whether there should be admitted in evidence the testimony of Frank Grote who, at the time of the death of Cyprian, was a night watchman of defendant and who had died before this case was tried, but who had testified in an earlier case in which the present plaintiff, Annie B. Williams, who was then Annie Powell, had sued Victory Industrial Life Insurance Company on a policy of insurance on the life -of Cyprian. As to the occurrences which led up to the death of Cyprian, there is little evidence except that of Grote, given in that earlier case.

It is, therefore, of transcendent importance that we carefully consider the legal questions which were presented when this testimony was offered in evidence in this case and that offer was objected to by counsel for plaintiff.

In that earlier case in the First City Court, Annie Powell, in her own behalf, was plaintiff. She is admittedly the same person who, as tutrix of the minor, is plaintiff in the case at bar. In that case she was the beneficiary named in a policy of insurance which 'had been issued by the insurance company. The company had denied liability on the alleged ground that Cyprian was killed “while violating the law”, and that, therefore, there was no liability since the policy contained a provision to the effect that “death benefits * * * will not be paid * * * for death resulting from violation of law, * * * alcoholism * *

In the First City Court in that earlier suit that defense had prevailed and the suit had been dismissed. When, in the case at bar, counsel for defendant sought to introduce the record in. that earlier suit, and particularly the testimony of Grote, he made the following statement: “In connection with the testimony of the witness I offer in evidence the entire record of Annie Powell versus Victory Industrial Rife Insurance Company, Number 245103 on the docket of the First City Court, and the testimony of the witnesses taken in said case, and particularly the testimony of F. J. Grote, pages 4 to 18, as a defendant’s witness, as contained in said record, as certified by the stenographer of said court; it now having been shown that the witness Frank Grote is dead, and we are unable to produce him for examination.”

Whereupon counsel for plaintiff made the following objection: “I object, except with reference to the testimony of Annie Powell and Lester L. Polk, which may be admissible only for the purpose of contradicting or attacking the credibility of these witnesses.”

Earlier in the trial counsel for defendant, in an effort to contradict certain testimony given -by plaintiff, had offered that other record in evidence, and counsel for plaintiff had said: “ * * * I object to the entire record. If he intends to contradict the witness’s testimony by the previous testimony, that may be admissible.”

Counsel for plaintiff now argues that that earlier testimony of Grote is inadmissible for two reasons: First, he says that it was offered in a case between other parties and in which a different issue was presented, and second, he says that it is inadmissible because the allegations of the answer, which defendant seeks to prove by this •testimony, are so vague as not to be susceptible of proof. In connection with this second contention counsel says that all that is alleged in the answer is that the injury and death of Cyprian were caused by his wilful intention to injure another or 'by his intoxication, and that since no details are •alleged, those charges are vague and proof in support of them should not be admitted even if that proof were otherwise admissible.

We think that objection is not well founded. In the first place, -the objection to the introduction of .the testimony of Grote made no reference whatever to the vagueness of the allegations of the answer. The objection itself was of the very vaguest kind, and counsel set forth no reason from which it could be deduced just what he had in mind. In the second place, the allegations of the answer were sufficiently specific to put plaintiff on notice as to what the •defendant intended to prove. Plaintiff had charged that in a particular place and at a particular time Cyprian had been shot by an employee of defendant, and defendant had answered that while that did occur, it had resulted from Cyprian’s deliberate attempt to injure another or from his intoxication. We see no reason to say that such a charge was so vague -that it did not put plaintiff on notice as to what defendant intended to prove.

In Bridges v. Central Surety & Insurance Corporation, 180 So. 456, 457, the Court of Appeal for the First Circuit said: “ * * * it is well to remember, as counsel for plaintiff themselves refer to it, that the compensation statute, Act No. 20 of 1914, as amended, is a liberal -provision of law in which it is specifically prescribed that courts shall not be bound by the technical rules of evidence or of procedure except those therein provided, and in the light of the jurisprudence which has always recognized this liberality of construction, we do not feel as though it would be proper to disregard a defense urged by a pleader although his pleading may be lacking in some respect as to form. * * * ”

The objection that the testimony is not admissible because it was given in another case presenting a different issue and between different parties is not so easily disposed of. Counsel for plaintiff attempts to persuade us that the issue which was presented to the court in the earlier case was substantially different from that which is before us. He says the issue was whether there was a violation of law, whereas the issue here is whether Cyprian was attempting to do harm to some one else.' He says that in the earlier ease .the violation of law might have been the charge- that Cyprian had no right to be in the place in which he was killed and that since, in the case at bar, there is practically no dispute over his right to be where he wa-s, the issues are different. We do not see the distinction. It is plain that in the earlier record the principal issue was whether or not Cyprian attacked or t-hreat-eqed to attack Grote. That was the violation of law which was there charged. Here the main issue is the same. Did Cyprian attack or threaten to attack Grote?

In the earlier case there -may have been other incidental questions, just as there are here, but that was the all important question in both cases — did Cyprian attempt to injure -or threaten to injure Grote? That in the one his effort was called a violation of law, whereas in the other it is called an attempt to injure another is of no importance.

Counsel says that even if we find the issue substantially the same, nevertheless we must find that the parties are different in the two -cases. It is no doubt true that the defendants are different. In the one, the defendant sued a life insurance company, wherea-s in' the other the defendant is Jahncke S-ervice, Inc., an entirely different corporation. But the identity of the defendant is of no importance. The important thing is the similarity of interest of the parties against whom the evidence is to be used. Counsel for plaintiff says that while Annie Brown Williams, who as tutrix, is plaintiff here, is the same person who, a-s Annie Powell, was plaintiff in the earlier case, she .is acting in the one case in a different capacity from that in which she appeared in the other. This is true, but it is also true that the same person in whose behalf counsel had the right to cross-examine in the one suit is the person whose attorney would have had the right to -cross-examine had the same witness been produced in this case.

We have discussed these two questions— one, diversity of parties, and the other, identity as to issues, before -calling attention to the various decisions on the subject and the views of the various textwriter-s, because we believe that those views and those decisions will be the more easily understood' after a discussion of the f-acts which make-them applicable.

The exclusion of such testimony in-isome instances results from an application-of what is known as the Hearsay Rule, the purpose of which i-s stated by Mr. Wig-more in his work on Evidence, Third Edition, Volume 5, Sec. 1362, p. 3, as follows r “ * *• * the Hearsay rule, as accepted, in our law, signifies a rule rejecting assertions, offered testimonially which have not been in some way subjected to the test, of Cross-examination

The writer says that while, as a general rule, the parties to the litigation in-which the te-stim-ony was first given must, be the same as in the -litigation in which ifr is later offered:

“ * * * this limitation suffers in practice many modifications; and properly so,, for it is not a strict and necessary deduction from the principle. At first sight, indeed, it seems fair enough t-o argue even that a person again-st whom former testimony is now offered should -have to be satisfied with such cross-examination as any other person whatever, in .another suit, may-have chosen to employ. And it is entirely -settled that in some such cases he must, -be satisfied, namely, in cases where .the other person was a privy in interest with the present -party. The reason for such cases is that there the interest to sift .the testimony -thoroughly wa-s the same for the-other person as for the present person. The .principle, then, is that where the interest of the person wa-s calculated to induce equally as thorough a testing by cross-examination, then the .present opponent has-had adequate protection for the s-ame end.. Thus, the requirement of identity of parties-is after all -only an incident or corollary of the requirement as .to identity of issue..
“It ought, then, to be sufficient to inquire-whether the former testimony was given upon such an issue that the party-opponent in that case had the -same interest and motive in his -cross-examination that the present opponent has, * * (Sec. 1388, pi. 95)

We conclude our presentation of the view ■of Mr. Wigmore with a quotation from his work: “ * * * The situation is one that calls for common sense and liberality in the application of the rule, and not a narrow and pedantic illiberality. * * * ” (Sec. 1387, p. 84)

Mr. Jones, in his' work on Evidence, Fourth Edition, Volume I, Secs. 339, 340, pages 620, 621, expresses very much the ■same view and -states that:

“If the parties and issues -are the same in each case, it is not necessary to the admission of the testimony that the form of the later proceeding should be the same as that of the earlier.” (Sec. 339)
“The ground upon which evidence given by a witness who has since died or otherwise become unavailable may be read in evidence at a subsequent trial is that it was taken in an action or proceeding where the parties against whom it is offered, or their privies, had an opportunity to cross-examine the witness as to the proffered statement.” (Sec. 340)

On the question of whether the issue must be identical, or may be only -similar in the two cases in order that evidence taken in the one may be offered in the other, we -find the following in American Jurisprudence, under the subject of Evidence, Volume 20, Sec. 691, pp. 584, 585: “ * * * In the few cases in which the courts appear to have given thought -to the matter, the criterion of admissibility is the existence in both actions of those issues to which the disputed evidence relates, rather than the mere identity of issues in -all phases of the proceedings. So long as those particular issues to which the evidence relates are present in both actions, it is hard to see why issues foreign to such evidence should prevent its admission. It clearly is not necessary that the form of the latter proceeding should be the -same as that of the earlier one. In other words, -if the point in issue touched by the former testimony is the same, it is immaterial that the issues framed by the pleadings are not precisely the -same.”

There is a discussion of this question in the Model Code of Evidence of the American Law Institute under Rule 511, p. 261. There we find the following: “ * * * There is a growing tendency -to admit .the testimony if the issue upon which it was received at the former trial is -substantially the same as that upon which it is offered at the later -trial, and the party against whom it is offered was a party at the earlier trial -and if the witness is unavailable. T-h-e Rule abolishes all these limitations and makes the former testimony admissible, wherever relevant, regardless of -the identity of the party or issue * *

And Mr. Greenl-eaf, in his- treatise on Evidence, at page 589, -says: “ ‘With respect to depositions, complete mutuality -or identity of all -the parties is not required. It is generally sufficient, if the matters in issue were the same in both -cases, and the party against whom the deposition -is -offered had f-ull power to cross-examine the witness.’ ”

That there is much in the jurisprudence of Louisiana which indicates that our own courts have followed these views is evident from a reading of -certain decisions to which we shall now refer and from which we shall quot-e.

In Rouyer v. Carroll, 47 La.Ann. 768, 17 So. 292, 293, the Supreme Court said:

“The general rule, -of ancient origin, is that in case a witness has died, or ‘departed the realm,’ since his testimony was taken -in -some prior judicial proceeding, it may be introduced in evidence in a subsequent proceeding between the same parties.
“ ‘Testimony o-f a witness in a previous suit between the -same parties, for th-e same cause of action, where there has been an opportunity for cross-examination, may be used by either party, if the witness be dead or absent, -or, for other cause, cannot be produced.’ Hennen v. Monro, 4 Mart., N.S., 449; Miller v. Russell, 7 Mart.,N.S., [266], 267; Noble v. Martin, 7 Mart.,N.S., [282], 283; Williams v. Bethany, 1 La. [315], 320; Lopez[’s Widow and Heirs] v. Berghel, 15 La. [42], 43; Conway v. Erwin, 1 La.Ann. 391; 1 Hennen’s. Digest, p. 506, § 11, subsec. 2.
“ ‘Complete mutuality or identity of all the parties is not necessary to admit testimony in a former suit. It generally suffices if the issue be the same, and the party against whom it is offered had full power of cross-examination.’ Clossman v. Barbancey, 7 Rob.(La.) 438; [Union] Bank v. Jones, 4 La.Ann. 220, 221; Taylor v. Paterson, 9 La.Ann. 251; Code Prac. art. 440.”

The Court of Appeal for the Second Circuit, in Young v. Reed, 192 So. 780, repeated the identical language- concerning the fact that it is not necessary that there be absolute identity of all parties provided there was full right of cross-examination.

Counsel for plaintiff in contending that the testimony of Grote in the earlier case should not be admitted, cite several cases, particularly Mathes v. Gaines, 19 La.App. 692, 127 So. 408, and Succession of. Derigny, 128 La. 853, 55 So. 552. Ho-wever, we think that these two cases may be distinguished.

In Mathes v. Gaines, supra [19 La.App. 692, 127 So. 409], this Court did make the statement that: “ * * * ‘evidence taken in a former case can be offered as evidence only in a suit between the same parties and even then only when the witnesses ■are not available themselves. In other words, the evidence produced at one trial is secondary evidence if the -witnesses themselves are available to testify at the second trial.’ ”

But it appeared there that the witnesses who had testified in the earlier case were available and could have been produced in the later case.

In Joseph Fuentes v. Myra Clark Gaines, 25 La.Ann. 85, our Supreme Court quoted with approval from Mr. Greenleaf as follows : “ * * * ‘And though the two trials were not between the same parties, yet, if the second trial is between tho-se who represent the parties to the first, by privity in blood, in law, or in estate, the evidence is admissible. * * *

In Succession of Derigny, supra, [128 La. 853, 55 So. 553] it was sought to introduce what is known in France as an “acte de notoriété”, and the Supreme Court held that that act was properly excluded since it consisted merely of the statements of persons “taken in a manner not authorized by our law for the taking of testimony.” In other words, the witnesses were not subjected to cross-examination.

We agree with counsel for defendant who state in their brief that the District Court (D. New Jersey) in Mid-City Bank & Trust Co. v. Reading Co., D.C., 3 F.R.D. 320, 322, has given an able exposition on this subject. “The rules of evidence were designed to obtain the truth. They are intended to exclude testimony that is unreliable, such as hearsay, and testimony that is false and dishonest. The safeguards set up to combat testimony of this character are the oath and the right of the adverse party to cross-examine the witness. The omission of either of these bests of testimony will usually render the testimony objectionable. With these reasons for the rules of evidence in mind let us. inquire into the basis for the ruling that testimony or depositions given in a former action are not admissible in a later action, even though such testimony or depositions have been taken under oath and have been subject to the right of cross-examination by the adverse party, where the parties or the issues involved were not the same in both actions. The restrictions which have been set up to the effect that the later action must be substantially between the same parties or their privies and must involve the same issues as in the former action, clearly reflect the reason behind them, i.e., if the interests of the parties were different or if the issues involved in the two actions were not identical, the right of the adverse party to cross-examine in the later suit would be impaired. There is little difficulty in understanding that different issue's would impair the right of cross-examination. There is considerable difficulty in understanding how that right would necessarily be impaired in all circumstances where the parties involved were not identical. This difficulty has been generally recognized in the cases cited which have upheld the admissibility of such testimony where the parties in the two actions were not identical but were substantially the same. The existence of privity between the two parties i's the test used by many courts to find substantial identity, but varied and conflicting interpretations as to what constitutes privity have been made. In this conflict several courts have overlooked the requirement which is ba-sic to the field of admissibility of evidence, namely, the right of the adverse party to cross-examine. Some courts attempt to define the term, ‘privity’, for the purpose of its applicability to cases of this nature, by strictly construing the term to its use in the field of property law, as denoting mutual or 'successive relationships to the same rights of property. Such a construction fails to give effect to the purpose of the rules of evidence. Other courts have discussed privity in terms of identity of interest. [Young v. Reed, supra.] It is this view that considers the practical reason behind the objectionable nature of testimony given during a former action and offered in ■a later action where the parties are not substantially identical. The interest of the parties in the litigation determines the method and manner of the cross-examination. The similarity of the interest of each of the parties is closely associated with the ■question as to whether the issues involved in each of the two actions are identical. * * * ” (Brackets ours.)

It should be borne in mind that the decisions from which we have quoted and the views of the various textwriters were based on cases which did not involve statutes requiring the relaxation of the rules of evidence. By the statute under which this suit is filed it is required that: “ * * * The Judge shall not be bound by technical rules of evidence or by technical rules or (of) procedure other than as herein provided, * * Section 18, par. 1(C) 4, as amended, Act No. 85 of 1926, § 1.

Mr. Horovitz, in his work, Injury and Death under Workmen’s Compensation Laws, at pages 239 and 240, refers to the fact that the statutes of many states require that the rules of evidence be relaxed in the trial of compensation cases. He says that this is due to the fact that it is hard for the ordinary layman, the ordinary worker, to understand why, for technical reasons, certain evidence should be excluded and that, therefore, in compensation cases these rules which would exclude certain testimony are not to be strictly applied. Mr. Horovitz says that this relaxation results from the fact that it is necessary to “win their confidence” and he adds: “Nor could workers be made to feel that they had a fair trial if the administrators were to be bound rigidly by the doctrines of hearsay, res gestae, private conversations, and the dozens of other common-law rules invented in the last century to satisfy a court’s conscience, or to keep juries from being misled, or to keep out self-serving statements, or whatever the reason.”

As a result of his study of the various decision's, Mr. Horovitz says: “Hearsay was not only admitted in evidence, but was held to be ‘legal evidence, and may be sufficient in itself to sustain an award.’ ”

Of course, it must be true that if the rules are to be relaxed in favor of the worker they must also be equally relaxed in favor of the defendant employer.

For this additional reason we feel that, since this is a case brought under the compensation statute, the ends of justice require that we admit and consider the testimony of the witness Grote.

He was the night watchman of the Jahn-cke Company. He said that on that night and at that time, so far as he knew, Cyprian had no business in the yard. He stated that before he “made” his “round” he locked the gate “so they couldn’t come in,” and that, therefore, he didn’t know how Cyprian had entered the yard. It must be said, however, that there is other evidence which tends to show that Cyprian had obtained the key by which he had gained entrance and that he was there on company business. Whether he actually was there on company business and whether he had actually obtained a key, we do not find it necessary to decide. • Grote goes on to say that believing that no one had any right to be where he found Cyprian, he was surprised to see “a man on his hands and knees trying to get up,” and that he then recognized this man as Cyprian. He asked Cyprian how he had entered the yard and Cyprian answered: “To Hell with you.” Grote then said: “He was drunk and he began to curse and abuse me and I pulled my revolver and ordered him out, and he said: ‘If I find a stick or something I’ll knock your head off! He was eleven steps from the door and he circled forty feet around and I didn’t move but four feet. He was coming closer to me, and finally lie couldn’t find a stick so lie decided to take my revolver from me * * * and he was advancing on me and I pulled the trigger and it snapped, and I told him to come no further, and he advanced his steps, and at that time he was within four feet of me and I fired.”

If these were the facts, we have no doubt that Cyprian’s death resulted from his threats and his threatening attitude. Grote was not required to wait for an actual physical attack before doing all that he could to defend himself.

Counsel for plaintiff contends that even if Grote’s statement sets forth the true facts, nevertheless there should be a recovery by the dependents of Cyprian because of the fact that the killing grew out of company business. In other words, he argues that no matter who is the aggressor in such a situation — no matter what the cause of the death — if the dispute which originated the controversy grows out of corrjpany business, then there can always be recovery by the dependents of the deceased employee. And counsel cites as authority for this proposition Guderian v. Sterling Sugar & Railway Co., Ltd., 151 La. 59, 91 So. 546, 548. There the Court said:

“When a foreman,- in the performance of his duty, is assaulted by a laborer under him, and is injured as a consequence, the injury is considered as caused by an accident within the meaning of Employers Liability Acts of the same general nature as ours. McNichol’s Case, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306, and annotations thereto; Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 P. 398; Cranney’s Case, 232 Mass. 149, 122 N.E. 266, 15 A.L.R. 584. We think the above rule is applicable under our statute, and ours was interpreted accordingly in a dictum in Nash v. Longville Lumber Co., 148 La. 943, 88 So. 226.
“The above rule also applies if, as in this case, the foreman is assaulted and injured immediately after the discharge when the assault is caused by the discharge, and when the foreman, as in this case, pursuant to his duty, is in the act of settling with the laborer.”

From the statement of the facts which-appears in that opinion,, it seems that the foreman probably struck -the first blow, and from this, counsel argues that since the Supreme Court allowed recovery for the injuries that the foreman sustained, it is obvious that it makes no difference who is the aggressor if the controversy grows out of company business. We cannot agree to this.

If a foreman, in attempting to enforce -company rules or regulations or to-carry out company business, sustains injury because, in a controversy, he happens-to strike the first blow, it can properly be-said that he was merely attempting to do his duty when, by chance, he found it necessary to strike the first blow. We do not think the rule works the other way round.. If a subordinate employee gets into a controversy over company business and initiates an attack upon a foreman or a superi- or, surely it cannot be said that because the-dispute grows out of company business,, there can be recovery regardless of the fact that the employee was the assaultor.

When we come to consider the-question of whether Cyprian was intoxicated at the time and whether, therefore, his-death can be said to have resulted from his-intoxication, we do not find it necessary to. decide that the evidence justifies the conclusion that he was intoxicated. Grote-says he was “drunk”, and there is other evidence to the effect that he had been seen drunk on other occasions, and that “he was-a bad man when he was drunk”. Whether he was actually intoxicated at the time is-of no importance since we have found that regardless of his condition he was the aggressor. Recovery must be denied on that ground.

Our conclusion is that the district judge-was correct in finding that the death of Cyprian resulted from his wilful attempt to injure another.

Accordingly, the judgment appealed from is affirmed at the cost of appellant.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    BERGERON v. MUMPHREY.
    No. 19036.
    Court of Appeal of Louisiana. Orleans.
    Jan. 24, 1949.
    L. W. Cockfield, of New Orleans, for plaintiff and appellee.
    Brittmar P. Lendry and Gerald S. Quin-lan, for defendant and appellant both of New Orleans.
   JANVIER, Judge.

Plaintiff, Rudolph A. Bergeron, seeks judgment against Charles Mumphrey, a real estate broker licensed in accordance with the provisions of Act No. 236 of 1920, alleging that while he was engaged as a salesman by the said Mumphrey he performed services in connection with the listing for sale of a certain piece of real estate; that subsequently the said real estate was sold as a result of the listing; that under bis agreement with Mumphrey, he was entitled to one-third of the total commission; that the total commission earned and collected by Mumphrey was $580.00, and that the said Mumphrey has refused to pay over to him the amount due him, to-wit $193.33.

Mumphrey denies all of the allegations of plaintiff’s petition, except that he admits that the said property was sold through his office and that he received a commission of $580.00. There was judgment in the First City Court of New Orleans for plaintiff for $193.33, as prayed for, and defendant has appealed suspensively.

Bergeron obtained from the Louisiana Real Estate Board in accordance with the provisions of Act No. 236 of 1920, as amended, a license which authorized him to engage as a real estate salesman in the employ of G. Mike Smith who was a duly licensed real estate broker in accordance with the provisions of the said statute.

On April 10th, 1947, he terminated this employment and procured his license from Smith so that he might have it cancelled and have a new one issued authorizing him to carry on his occupation as a real estate salesman but in the employ of Mumphrey.

On April 7th, 1947, which, it will be noted, was three days before he terminated his employment -\yith Smith, Bergeron called at the office of Mumphrey and told him and another employee, Trapani, that he thought that a Mrs. Hickox would list her real estate with Mumphrey for sale if they would call upon her. On that same day, April 7th, 1947, Mumphrey and Tra-pani, accompanied by Bergeron, called on Mrs. Hickox and obtained from her a listing of her property. On the listing contract which was obtained from Mrs. Hickox, Bergeron’s name was entered as the listing salesman. Three days later, on April 10th, 1947, as we have set forth, Bergeron, having obtained from Smith the license which had been issued to him as a salesman for Smith, took this license to his new employer, Mumphrey and requested Mumphrey to have the Louisiana Real Estate Board cancel it and issue a new one to Bergeron as a salesman for Mumphrey, all as required by Act 236 of 1920, as amended.

On May 3rd, Í947, the said Board had not advised Bergeron whether or not the necessary new license had been issued or would be issued, so on that day, May 3rd, 1947, Mumphrey wrote the Board requesting that it advise what action had been or would be taken. Under date of May 5th, 1947, Mumphrey was advised that the necessary license would be issued and that in the meantime Bergeron might engage as a salesman in the employ of Mumphrey. However, sometime before receipt of that communication, Bergeron had decided to engage in another business and did not, in fact, perform any further services as a salesman for Mumphrey, although he says that for a time he offered to do part-time work.

On May 28th, 1947, Mumphrey, or someone in his office — not Bergeron — obtained a purchaser for the property and the act of sale was passed in July, 1947. The commission, amounting to $580.00, was paid to Mumphrey.

The answer, as we have said, is in effect a general denial, but the principal defense relied’upon is the alleged illegality of any transaction by Bergeron as a salesman for Mumphrey prior to May 10th, 1947, on which day he first entered the employ of Mumphrey.

Section 15 of the statute provides that:

“ * * * it shall be unlawful for any real estate salesman to accept a commission or valuable consideration for the performance of any of the acts herein specified from any person, except his employer who must be a licensed real estate broker.”

It is pointed out on behalf of defendant that at the time at which the listing was made with Mumphrey, Bergeron was a licensed salesman in the employ of Smith, and, therefore, contends defendant, it was unlawful under the above quoted provision of the statute for Bergeron to obtain a commission for securing a listing for any other real estate broker than Smith.

Plaintiff does not assert that he was in any way instrumental in procuring the purchaser and, therefore, he does not base this claim nor any part of it on such an assertion, the only allegation being that, since he secured the listing, he is entitled to that part of the commission which would ordinarily go to the listing salesman.

The statute makes it very clear that it was the purpose of the legislators to absolutely prevent anyone from in any way engaging in the real estate business, either as a broker or as a salesman, as a whole or partial vocation without first obtaining the necessary license and without complying with the other provisions of the said statute. It is provided that the license obtained by a salesman must designate the broker by whom he is employed and that this license must be prominently displayed in the office of the broker. It is further provided that when a salesman desires to leave the employ of the broker the license must be returned to the Board and a new license obtained showing that he has become a salesman in the employ of the new broker.

It seems clear to us that it was the purpose of the framers of the act to give to the issuing board the right to investigate and to determine why the former license had been terminated before issuing the new one, and that it was contemplated that in the interim the salesman should not engage in business. We say this because section 17 provides that the Board shall investigate “the actions of any * * * salesman * * *, and shall have the power to suspend or revoke any license * * *,” for various causes set forth in that section of the statute, and for the further reason that the Board requires when a salesman applies for a license either originally or when he changes employment, that he must set forth the time during which he has been employed, give the name of his last employer, and all information concerning his last employment. These requirements were obviously inserted for the purpose of giving the Board the opportunity to inquire thoroughly into all matters concerning the salesman before issuing the new license.

. At any rate, it is clear that when the listing was obtained on April 7th, Bergeron was a licensed salesman for Smith and that it was, therefore, unlawful for him^on that day to obtain a listing for Mumphrey, or to secure a commission for obtaining that listing.

The effect of this statute has been discussed and passed upon in many cases and it has always been held that where the person claiming the commission has been engaged in the real estate business as a “whole or partial vocation” he is not permitted to recover a commission Unless he has complied strictly with the requirements of the statute.

In Garvey v. Lagattuta, 15 La.App. 414, 132 So. 267, we held that when a salesman desires to leave the employ of a broker, it is his duty to see that his license is returned to the Real Estate Board and that until he does so and obtains a new license, it is unlawful for him to perform any service except as an employee of the broker by whom he was originally employed.

In Trentman Co. v. Brown, 176 La. 854, 147 So. 14, 15, the Supreme Court held:

“ * * * that any one who has not been licensed in accordance with its (Act No. 236 of 1920) provisions shall not be allowed to recover for any fee, claim, or charge for brokerage in the courts of the state.”

In that case it was pointed out that,' although the plaintiff had not been legally authorized at the time the agreement was entered into, he was later duly authorized and it was argued that, therefore, he had a right to sue for the commission. As the Supreme Court said, it was contended “that the unlawfulness of the transaction at the time it was entered into is, in effect, wiped out by a subsequent compliance with the provisions of the act.”

In answer to that contention the Court held that:

“ * * * no person coming within the provisions of the act shall be allowed to recover without alleging and proving that he was qualified under the act at the time his alleged cause of action arose, * * *.”

)Ve think it unnecessary to cite other cases, as in each of them, with three exceptions to which we shall refer, it was held that no recovery could be had. The three cases to which we have alluded are: Bo-setta v. Jacobs, 1 La.App. 277; Nebel v. Wise & Miller, 6 La.App. 773; and Sheppard v. Hulseberg, 171 La. 659, 131 So. 840.

In the Bosetta case we found a cláim by someone not at all engaged in the real estate business, based on the allegation that he had given to a real estate broker “a real live prospect” who desired to purchase certain property and that the broker had told him that if such sale could be made he would pay to the plaintiff a commission. We held that Bosetta, the plaintiff, was not engaged in the real estate business as a whole or partial vocation and that the act, therefore, did not apply to him.

In Nebel v. Wise & Miller, supra, the plaintiff had been engaged as a salesman and had legally qualified. During his employment he obtained a listing and later terminated his employment. The property was sold after he had terminated his employment and he brought suit, contending that his contract of employment had provided that if he obtain a listing he would receive a certain portion of the commission regardless of when or by whom the sale might be effected. We held that the termination of his employment did not .deprive him of his right to demand that part of the commission to which he was entitled as a result of having obtained the listing.

In Sheppard v. Hulseberg, supra, the Supreme Court, referring to the plaintiff, said:

“He was, in no sense, engaged in the calling of a real estate broker, and was not •licensed as such.”

He undertook to secure a purchaser for the property of defendant and having done so brought suit for a commission. The Court held that he was entitled to the commission since he was not in any sense engaged in the real estate business as a whole or partial vocation.

Counsel agreed that in his reasons for judgment, which were oral, the trial judge stated that there was a moral obligation to make payment, and he based judgment for plaintiff on this moral obligation.

However, counsel for defendant cite various articles of our Civil Code — 1891, 1892, 1893 and 1895 — which provide that in order that there may,be an enforceable moral obligation, the object of. the contract or agreement must be one which is not illegal.

A reading of the statute which is here involved shows, without any possible doubt, that the object which plaintiff seeks to accomplish is specifically made illegal. Referring to this very act, the Supreme Court, in Trentman Co. v. Brown, supra, quoted with approval, from a California decision, Wise v. Radis, 74 Cal.App. 765, 242 P. 90, 94, reading as follows:

“No principle of law is better settled than that a party to an illegal contract or an illegal transaction cannot come into a court of law and ask it to carry out the illegal contract or to enforce rights arising out of the illegal transaction.”

In Moore v. Burdine, 174 So. 279, 282, in which there was involved an interpretation of this statute, we said:

* * * Our courts cannot enforce contracts contrary to the public policy of this state.”

In the statute is found a specific provision prohibiting the courts of this state from permitting recovery in such a situation.

Note section 19 which reads as follows:

“ * * * That any person, firm, co-partnership, association or corporation, who has not been licensed in accordance with the provisions of this Act, shall not be allowed to recover for any fee, claim or charge for brokerage in the courts of this State.”

We reach the conclusion that since, at the time the property was listed with Mumphrey, plaintiff was a duly licensed salesman in the employ of Smith, whatever agreement he may have had with Mumphrey cannot be enforced, and he cannot be permitted to obtain any commission as a result of that listing.

The judgment appealed from is annulled, avoided and reversed, and plaintiff’s suit is dismissed, at- his cost.

Reversed.


author: PER CURIAM.

text:
    Mrs. Nell Thibodeaux BERGERON v. Louis SAIA et al.
    No. 3069.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1949.
    Writ of Certiorari Denied March 21, 1949.
    Deutsch Kerrigan & Stiles, of New Orleans, Ellender & Wright, of Houma,' and H. R. Ainsworth, of New Orleans, for appellants.
    A. Deutsche O’Neal, of Houma, for ap-pellees.
    St. Clair Adams, Jr., of New Orleans, and Harold J. Bodin, of Houma, for inter- " venor.
   PER CURIAM.

Plaintiff and defendants have filed applications for rehearing.

Plaintiff, Mrs. Nell Thibodaux Bergeron, individually and as natural tutrix of her minors, in her application for rehearing, contends that we erred in reducing the awards made by the trial court to her and to her minor children rather than grant them an increase. After a reconsideration of the case, we are firm in our opinion that the awards made by us do substantial justice among the parties in this case. However, we find that through inadvertence, we lowered the award due to plaintiff for burial expenses by the sum of $5.50. This error will be corrected.

The chief complaint of the defendants, in their application for rehearing, is the brevity of our reasons for the affirmance of the judgment holding the defendants liable. After reviewing the record, we could see no useful purpose in setting out the substance of the testimony of each witness and discussing the same. We were reviewing a case involving purely a question of fact. We could find no manifest error in the finding of fact of the trial judge relative to finding liability against the driver of the Saia truck. The defendants complain of our laying too much stress on the testimony of Harold Dean and the overlooking of the testimony of Harold Verret, the driver of the Saia truck. The 'trial court, in his reason for judgment, favorably commented on the testimony of Harold Dean. We see no reason to disagree with the trial court. The trial court did not accept the version of Harold Verret as to how the accident happened and neither can we.

Our decree is amended by increasing the award of Mrs. Nell Thibodaux Bergeron by the sum of $5.50, making a total award to her of the sum of $10,555.50. The applications for rehearing are refused.


author: McBRIDE, Judge.

text:
    LALA v. AMERICAN SUGAR REFINING CO.
    No. 19096.
    Court of Appeal of Louisiana. Orleans.
    Jan. 24, 1949.
    Rehearing Denied March 14, 1949.
    Writ of Certiorari Denied April 25, 1949.

      Steeg & Morrison, of New Orleans, for plaintiff -and appellee.
    Chaffe, McCall, Toler & Phillips, -of New Orleans, for defendant and appellant.
   McBRIDE, Judge.

This is an appeal of the Arrferican Sugar Refining Company, defendant, -from a judgment awarding John L. Lala, plaintiff, workmen’s -compensation -at the rat-e o-f $20.00 per week for 400 weeks, -less the amount -o-f $148.27 representing -compensation -already paid.

Plaintiff was employed by defendant as a sugar drier at its Chalmetto-, Louisana, plant, operating centrifugal machines. On March 28, 1947, he -slipped on -a -circular stairway -in the plant and fell -a-bout -two and a -half stories (approximately sixty feet), his head and face -striking an iron post during ¡his descent. He was taken to the Hotel Dieu- hospital, where he was given 'surgical treatment by Dr. Carl N. Wahl to repair various facial injuries. He remained in the hospital for about thirteen days, and for this 'period was paid compensation at the rate of $20.00 per week. He was also paid compensation for several weeks after his discharge from .the hospital, until defendant’s manager learned that 'he had gone to work for the Western Union Telegraph Company; plaintiff was still employed by the telegraph company at the time of the trial below.

There is no dispute that plaintiff sustained severe injuries, but'defendant contends that he is not disabled; there is likewise no dispute that plaintiff’s weekly wage was in excess of $31.80, and that if compensation is awarded him it should be fixed at the maximum amount.

Plaintiff alleged that he is totally and permanently disabled; that he suffers a traumatic neurosis and is nervous, neurotic, and emotionally upset, and extremely sensitive to noise; that he continues to 'suffer periodic and severe headaches and pains; that he cannot rest or sleep; all of which inhibits him from doing the same character of work that he performed for defendant, or any other kind of work about machinery or where there is noise.

The lower court, after a trial on the merits, -awarded judgment in plaintiff’s favor.

The sole question presented -is whether the traumatic neurosis and emotional disorder, from which all psychiatric experts agree he is suffering, prevents plaintiff from returning to his former occupation.

Dr. Wahl, who specializes in maxillo-facial and plastic surgery, appearing -for defendant, testified regarding .the treatment accorded plaintiff, and his opinion is that all fracture -sites are well -healed, and that Lala’s facial -bones are in perfect position, and there remains -no impairment of function. According to Dr. Wahl, the cosmetic results were excellent.

Dr. Sam Nelken, a specialist -in -psyc-hia-. try and neurology, .testifying for plaintiff, stated that he examined Lala on January 22, 1948, -and made a written report to plaintiff’s attorney. The report showed:

“ * * * Mr. Lala is undoubtedly suffering from a neurotic (conversion-hysterical) reaction resulting from hi-¶ fall. The manner in which the injury produced this reaction is uncertain. Emotional shock is most probably the major factor; * * *.
“ * * * The neurotic symptoms, while they do not keep him from working under restricted circumstances, do make him unable to work in situations where there is any considerable noise or pressure of activity, such as the job in which he was injured; they also interfere markedly with his enjoyment of life. Proper treatment may be able to give him -considerable relief; but if such benefit can be obtained at all, it will probably be with' much -difficulty -and only after a long course of treatment.”

Dr. Nelken made a second examination of -plaintiff the day before the trial was held in the lower court, and, referring to this examination, stated -that there was no change of special significance in Lala’s condition. When asked if Lala was capable of working at industrial pursuits or -in a factory or refinery where there is a considerable amount of noise, his answer was, “I -should -think not.”

Dr. Henry O. 'Colomb, who specializes in neurology and psychiatry, examined Lala at the behes-t of defendant on March 20, 1948, and rendered a written report of his findings, which in part reads:

“I-t i-s my opinion ¡that Mr. Lala’s nervousness .was -precipitated .by the .accident which he -suffered at .the American Sugar Refinery. He shows evidence -of -constitutional inadequacy -a-nd he has a record of shifting occupational adjustment which is the usual background we find in these traumatic emotional disturbances. * * * It has -caused -him -some -discomfort and although it has not been -totally disabling, i-t has probably interfered with his working adjustment to a certain extent.”

Questioned on -cross examination -as tó the ability of plaintiff to return t-o his sugar refinery work, Dr. Colomb .testified:

“Q. Well, -do you say -i-t was probable he -could do -it, he could go back? A. It is, yes.
“Q. And it is possible he could not? A. That would be an assumption.”

This doctor testified that he made no examination of Lala except the one covered by the report, and that he was not in a position to give an opinion as to his condition as of the date of the trial.

Dr. John W. Bick, Jr., who also specializes in psychiatry and neurology, identified a report made by him on June 19, 1948, respecting Lala’s condition, the pertinent part of which reads:

“ * * * The patient’s complaints have already been stated. It .is significant that he has never tried to work at hi-s former occupation, and I believe the fact that his present job carries a better salary is an important factor. I think it is also significant to note that he left one job with Todd-Johnson apparently for reasons not unlike those which caused him to leave his present employment. He states that at the time when working in the bottom of the ship he became afraid of objects falling around him and grew fearful of his personal safety. As a result he left the company ¡for whom he was working and obtained a job which he ¡regarded as ‘safe and not so nerve racking.’
, “It is my ¡opinion that there is insufficient evidence here to justify the conclusion that the patient is unable to return to his former type of employment. It is especially sig-nigicant .that he resigned from another job several years ago because of ‘fear 'for his personal safety.”

Dr. Bick admitted it was possible that Lala was laboring under ¡a neurosis, 'but he held to his ¡theory that such condition was nondisabling. This physician reached the ¡conclusion .that there was a tendency on Lala’s part to make job ¡changes, ¡and such ¡symptom could be associated with .the various types of .emotional instability. His ¡records ¡show that he had been informed ¡by Lala that the latter has resigned from a job at the Todd-Johnson Shipyard because he entertained fear for ¡his personal ¡safety, and because he ¡could not endure working in the hold of ¡ships where noises were prevalent and tools were constantly 'being dropped by workmen.

Lala denied that he quit the Todd-Johnson job for the reason assigned by Dr. Bick. His.story is that he was ¡forced to give up, the job in the Todd-Johnson tool room in order to make way for a ¡returning war veteran who .took over ¡the job; that ¡he thereupon -accepted employment with T-odd-Jo'hnson ¡as a pipefitter’s ¡helper ¡and worked a ¡short while -at this particular assignment, but quit because work was slack and he worked only two or three days ¡a week. Be that as it may, however, the record ¡shows that Lala, who was twenty-eight years old at the time of the trial below, had only worked for four employers, including ¡his ¡present job ¡at ,the Western Union Telegraph Company.

Dr. Howard H. Karr, neurological surgeon, a defense witness, testified that he examined Laia on December 19, 1947, and submitted a ¡report of his findings, the gravamen of which is that there was no ¡disclosure of any residual that ¡could be attributed to the injury, and there was nothing to ¡suggest that Lala had ¡suffered from an -intracranial injury. ¡It was admitted by counsel, and by the witness himself, that Dr. Karr made no psychiatric ¡examination, and that his inquiry was confined to ¡ascertaining whether Lala had suffered any brain injury.

Plaintiff lives in New Orleans with his wife, .their three year old child, and ¡several of his wife’s relatives. He testified that during ¡and after .convalescence he continued intermittently, two or three times a week, to ¡suffer from ¡severe and prolonged ¡headaches; that hi-s weight ¡dropped from 170 to 145 -pounds; ¡that he is unable to sleep soundly ¡at night, as ¡his sleep ¡is interfered with by nightmares-, and that on ■frequent occasions he ¡dreams that he is •falling through ¡space ¡and wakens ¡in a cold sweat. He further ¡stated 'that he is nervous ¡and -emotionally upset, and for that ¡reason ¡sought ¡the employment at Western Union Telegraph Company on a night shift so that he could work in surroundings free from loud noises and confusion. He claims that he cannot bear to be or remain around noises, as noise ¡and confusion disturbs and ¡irritates him, -increasing his nervousness. He ¡testified that prior to ¡the accident he bad worked under various conditions of ¡noise and confusion; that at Todd-Johnson Shipyard he 'had worked 'both in the tool ■room and as ia pipefitter’s helper, where there was great noise resulting 'from riveting, hammering, and sealing of rust and dirt from steel. He likewise worked at Higgins, Inc., in the tool room, where there was so much noise you “couldn’t hear yourself talk, 'and it never bothered me whatsoever.” At the defendant’s sugar refinery, plaintiff .operated three centrifugal machines which were very large and produced “an awful amount of racket; of course I could stand it; it never .bothered me; He ‡ * »

Hammel Jackson, a superintendent at the Western Union Telegraph Company, testified that Lala is employed in the telephone department, which is quiet, and works from 3:30 o’clock in the afternoon until 12 o’clock midnight. He observed that while Lala’s work is satisfactory he appears to be nervous and fidgety most of the time, and on several occasions, upon complaining of headaches, he was allowed to go home early. The witness stated that on occasion he has 'seen Lala taking sedatives or other medicines.

Plaintiff’s wife and mother-in-law also testified on his behalf. Mrs. Lala declared that since the accident plaintiff frequently has nightmares, and that scarcely a week goes by without his having at least one; that he had a nightmare about 3 o’clock oí the morning of the trial. She 'said that 'her husband twists and turns in his sleep and sometimes shouts and screams, and that when 'he is awakened he has the appearance of being frightened, and beads oí perspiration stand out around ’his mouth and on his forehead, and that his sleeping garments ore wet with perspiration. After one of such dreams or nightmares, she said, Lala becomes extremely nervous and sleeps no more for the balance of the night.

Mrs. Favalora, plaintiff’s mother-in-law, who lives with him and his wife, reiterated the frequent nightmares, nervousness, and headaches. Both she and Mrs. Lala testified -that at .times a red spot appears on Lala’s temple and that a thick vein protrudes and throbs.

Lala admitted ithat he has made no attempt to return to the sugar refinery, and stated that he cannot do so because of his fear of working around the noise and machinery. He testified regarding an instance when he made a visit to the plant for the purpose of seeing the plant doctor, and said, “the minute I set foot in the elevator I had fear, just the scenery and the machinery and everything — just got me, and I could never do that type of work again.”

There is testimony in the record showing that since the accident Lala has been unable to have a normal sexual relationship with his wife, but that prior to the accident this debility had not existed. Dr. Nelken’s opinion was that this condition, manifesting itself after the accident to plaintiff, who the record shows is twenty-eight years oí age, would tend to confirm the presence of a' traumatic neurosis, as it would be within and compatible with the pattern of a neurosis.

Counsel for defendant made objection to much of the testimony tendered by plaintiff, upon the ground that it was both ■irrelevant and prejudicial, and that its admission would work a serious detriment to defendant’s cause. The objections were reurged before us, and counsel contend that the trial judge erred in not maintaining them and excluding the testimony. The objections were addressed to the 'admissibility of testimony concerning plaintiff’s nervousness, inability to stand noise, headaches, difficulty -in resting, nightmares, loss of weight, and impairment of sexual powers. Counsel argues that all of these ■symptoms occurred during the time of plaintiff’s satisfactory performance of work for the Western Union Telegraph Company, and would not shed any light on whether plaintiff could or could not return to his work at the sugar .refinery. It is contended that the only question before the court is the issue of plaintiff’s disability, and that the above symptoms are all matters of indifference to the workmen’s compensation law. We are urged to disregard the testimony complained of.

We are not in accord with counsel’s contention. The Workmen’s Compensation Act, Act No. 20 of 1914, as amended, ■in dear and unambiguous language, eliminates strictness and severity in pleading, and relaxes the ordinary rules of evidence, and it would seem that the act contemplates an. almost informal mode of hearing cases arising thereunder. Under the established •liberal rules of procedure and evidence obtaining in such cases, a court should not hesitate to admit such evidence as would or might have a tendency to show the inability of an injured workman to return to his employment, or contrariwise, to show his ability to work.

True, it is well settled that an injured workman who is plaintiff in an action for compensation, like any other plaintiff, carries the burden of making out his case .by a preponderance of the evidence, but nevertheless .the court should take a liberal stand on the admission of evidence in seeking out the nature of the plaintiff’s injuries, and the extent of his disability. We think that the 'evidence of which counsel complain does have an important and direct bearing on those question in this case, and the trial court.properly overruled the objections.

Defendant, while conceding .that plaintiff’s injuries were serious, strenuously argues that the Workmen’s Compensation Act does not give or grant an injured workman a remedy in tort, but that the •statute was enacted for the sole purpose of protecting an injured employee against loss of income during the period of disability resulting from an injury received while at work. Counsel .contend that Lala is fully able to return to his former employment, and rely heavily upon the reports and testimony of Drs. Colomb and Bick, which, it -is contended, directly contradict the testimony of plaintiff’s medical expert, Dr. Nelken.

Plaintiff emphatically claims that he cannot return to his old employment because of the emotional upset, and- we cannot entirely disregard his testimony. While there is a divergence of opinion among the psychiatrists regarding plaintiff’s competency to work, the fact remains that all of ■them admitted he was neurotic. Dr. Nel-ken, who examined plaintiff on ithe. day ¡before the trial below, -stated that it was his opinion that Lala could not return to work in the sugar -refinery. Dr. Colomb, one of the defense experts, found the presence of traumatic emotional disturbances, which he believed caused Lala some discomfort and probably interfered with his working adjustment to a certain extent. The following recommendation appears in Dr. Co 1-omb’s report:

“I would recommend that Mr. Lala .be compensated on the basis of his partial disability and his need for treatment of his nervous condition.”

We are greatly impressed by the testimony of the plaintiff, his wife, and his mother-in-law, the import of which unmistakably bears out that plaintiff, at the time of the trial, was not a person of normal emotions, and it is not difficult to understand his morbid fear of returning to his old job with the defendant under tills prevailing handicap, notwithstanding the testimony of some of the experts that no disability existed. Before the accident, ‘according to-the record, plaintiff was a healthy, robust person, and we think that his present condition can be directly attributed to the accident at the -sugar refinery, and that there exists a causal connection between his condition and -the accident. Courts ofttimes hav-e been guided by lay testimony where the medical experts expressed 'conflicting opinions regarding a plaintiff’s capability to work, and wé believe in .this particular case that the testimony of the lay -witnesses is very enlightening and should be given consideration, along with all facts and 'circumstances •shown by the record. It is true -that Lala made no attempt to return to work at the sugar refinery, but that is beside the point and should not militate -against his recovering compensation, for the question to be resolved is not whether he made an attempt to return to work, but rather is he able to return, and the record convinces us that he is not. As there is 'no evidence disclosing .the .probable duration of the affliction, plaintiff must be classified as being totally and permanently disabled. There is nothing in the record to justify a finding that plaintiff is -malingering.

There is mo doubt in our minds that nervousness, neurosis, or emotional disturbances, superinduced iby injuries suffered by a workman, can be just as devastating to the ability to return to work as are physical or anatomical injuries, and are equally as compensable under the statute.

Our brothers oí the second circuit, in the case of Porter v. W. Horace Williams Co., La.App., 9 So.2d 60, 63, were concerned with a plaintiff who suffered from nervousness directly traceable to the accident, which prevented his doing work of a reasonable character. It was held that such was a disabling condition and was'com-pensable under the Workman’s Compensation Act, Act No. 20 of 1914, as 'amended. The court said:

“All of the physicians agree, however, that plaintiff is suffering 'from nervousness to such an extent that he is totally disabled to do work of a reasonable character, and that the duration of this disability is impossible of determination, thus compelling ■its being classified as permanent.
“This disabling condition is compensable if there exists a causal connection .between it and the accident and injuries sustained by plaintiff on January 10, 1941.
“In Schneider’s Workmen’s Compensation Law, Volume 1, Section 204a, it is stated: ‘Even though an accident may not produce an anatomical pathology, nevertheless if the workman does in fact become disabled as a result of that accident, .the injury is compensable, although such disability may be the result of hysteria— and may be traceable to a mental condition and not a physical disorder.’
“The stated rule was followed in Vaughn v. Solvay Process Co., La.App., 176 So. 241, 245, in the opinion of which case the court ■said: ‘While the weight of the evidence supports the conclusion that plaintiff is incapacitated from doing hard manual labor because of the physical .injuries to the bones of his hand, the weight of the medical evidence also supports the conclusion that his condition is intensified and exaggerated by 'his mental attitude. If his physical condition resulting from the injury ■is of such a nature as to cause traumatic hysteria, making plaintiff believe that he could not work for fear of increasing the pain in the arm, he would 'still be entitled to compensation.’
“The court expressed the view in Wilkinson v. Dubach Mill Co., Inc., 2 La.App. 249, that where a fall, w-ith the attending shock, caused a 'hysterical condition, the resulting disability is compensable.
* * * . * * *
“The sound cause or 'good reason 'for the condition of this plaintiff is the proven back injury that attended the proven accident. Although bone pathology was perhaps not observable, -the injury 'sustained, ■according to the medical experts, was nevertheless sufficient to bring about the affliction suffered.”

With his present employer, Western Union Telegraph Company, plaintiff, in a clerical capacity, earns a higher wage than he received from the defendant. That •fact, however, cannot be given consideration in determining this case, because the words “producing permanent total disability to do work of any reasonable character,” as used in paragraph (b) of subsection (1) of section 8 of the Employers’ Liability Act, Act No. 242 of 1928, p. 357, have been many times interpreted by appellate courts, and the holdings in practically all cases are unanimous to .the effect that by ■giving the words .the liberal interpretation to which they are entitled, -they mean work of the same or of similar nature. A workman who 'is unable, by reason of injuries, .to return to the occupation in which he was engaged when injured, is entitled to the payment of compensation for total and permanent disability, although he engages ■himself in other pursuits or employments which are less onerous. See Ranatza v. Higgins Industries, Inc., La.App., 18 So.2d 202.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.


author: KENNON, Judge.

text:
    FULLER v. BUCKNER et al.
    No. 7230.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    Rehearing Denied Jan. 6, 1949.
    Thompson, Thompson & Sparks, of Monroe, for appellant.
    Theus, Grisham, Davis & Leigh, of Monroe, and Coenen & Coenen, of Rayville, fot appellees.
   KENNON, Judge.

Plaintiff, natural tutrix of the minor, Robert Blackstock, who was injured when the motorbike on which he was riding was -struck by a car belonging to one of the defendants, filed this suit for more than $25,000 damage against the driver of the automobile and his insurance carrier. The specific acts of negligence alleged were: driving at a negligent and reckless speed; driving off the main portion of the road after dark; failure to keep proper lookout; failure to keep his car under control; failure to slow down sufficiently in heavy traffic and particularly the failure to slow down and stop when the driver saw, or should have seen, the motorbike and rider.

The defendant insurance company denied that the provisions of the policy were such as to cover the defendant driver at the time the accident occurred and in the alternative, pleaded that the automobile was traveling at a moderate rate of speed on its proper side of the street and that the accident occurred when the minor — a well matured young man and a member of the Marine Corps of the United States— negligently ran into and collided with the right side of' the automobile.

Defendant Buckner, driver of the automobile, after filing an exception of no cause of action, answered, denying any negligence on his own part and alleging that young Blackstock, at the time of the accident, was operating the motorbike without lights on its left side of the street and negligently collided with the Buckner automobile and that the accident occurred solely as a result of young Blackstock’s negligence. Both defendants made the alternative plea that should Buckner be found negligent, young Blackstock’s operation of his motorbike on the left side of the street and his failure to take measures for his own safety constituted contributory negligence and barred recovery.

The District Court, in a written opinion, found that the accident resulted from the negligent operation of the motorbike. The case is now before us on appeal from a judgment rejecting plaintiff’s demands.

The record shows that George Buckner, on the night of the accident, was driving his automobile west on Forsythe Avenue near the entrance of the semicircular driveway into the Neville High School grounds in the city of Monroe, Louisiana. Several other cars, proceeding east, with normal lights, had just passed him when he felt an impact against the front of his automobile. He stopped his car almost within its own length and upon investigation, found the damaged motorbike on the side of the blacktop street and young Blackstock stretched out on the road some ten feet behind his car. The Buckner car at the time of the accident was being operated at a speed of approximately 30 miles an hour. Young Blackstock, back on furlough from the Marine Corps, was operating a borrowed motorbike west along Forsythe Avenue and testified that he had turned around in front of the school and was coming back east over Forsythe Avenue on the north (left) shoulder. Young Blackstock received a broken leg and such a severe jolt to his head that he was unable to recall what happened after he had turned around and crossed over Forsythe Avenue. He gives no light on what he was doing or the course of the motorbike in the last few seconds preceding the collision. Defendant Buckner testified that he was traveling on the blacktop street and the first time he knew of the presence of the motorbike was when he felt the impact against his car at the time of the accident.

There is considerable conflict of testimony as to whether the light on the motorbike was in operating condition and if so, whether or not it was burning at the time of the injury. We conclude that the preponderance of this testimony- shows that the motorbike was without lights at the time of the collision. The evidence also establishes that the Buckner car was on the main portion of the highway after the collision and every indication is that the same was true at the time of the impact.

Plaintiff alleged that Forsythe Avenue was being used on the night in question by many pedestrians, boys, girls and adults. However, the record does not bear out this contention. Other than the drivers of the two vehicles, there were no witnesses to the accident, nor is there any testimony as to any considerable traffic in the immediate vicinity at the time of the accident.

To sum up, we find from the record that the motorbike, at the time of the collision, had been driven by Blackstock across the highway and into the path of defendant’s oncoming automobile; that it cannot be determined from the evidence whether or not the motorbike had been operated on the defendant’s side of the road long enough for the defendant — regardless of the fact that-he did not see it — to be chargeable with knowledge of the presence of the motorbike and the resultant peril of Blackstock. A serious question is presented as to whether or not, under these circumstances, defendant’s failure to see the motorbike prior to the collision constituted actionable negligence. However, the record establishes beyond doubt that Blackstock, at the time of the collision, was negligently operating the motorbike on defendant’s half of the road. Under these circumstances, granting that defendant Buckner was guilty of negligence, Blackstock is barred from recovery by his contributory negligence, unless the. doctrine of last clear chance is applicable.

Plaintiff, in a supplementary brief, called this Court’s attention to the cases of Locke v. Shreveport Laundries, Inc., 18 La.App. 169, 137 So. 645; Odom v. Long, 26 So.2d 709; Mickens v. F. Strauss & Son, Inc., La. App., 28 So.2d 84 and Bernstein v. Cathey & Carrell Truck Lines, La.App., 32 So.2d 403.

We have examined these cases and find each distinguishable from the case at bar. In the Odom case the collision occurred when plaintiff overtook and ran into the rear of a light trailer attached to and drawn by the automobile of defendant. The defendant reconvened and the District Court rejected the demands of both litigants. On an appeal by plaintiff, this Court held that plaintiff was negligent in failing to observe the trailer which was traveling at a slow rate ahead of him in the same direction in which plaintiff was traveling.

In the Mickens case, this Court sustained a judgment maintaining an exception of no cause of action to the petition filed by plaintiff, in which he alleged that defendant had left a trailer angling across the entire half of the highway. The Court held that the plaintiff — despite any negli-gtnce of defendant in leaving the trailer on the highway — was barred from recovery by his own contributory negligence in not keeping his vehicle under such control as to be able to stop after defendant’s trailer came within the range of his lights and vision.

In the Bernstein case, the plaintiff, who had run into defendant’s parked vehicle, was denied recovery because of his negligence in not keeping his car under such control and observing such lookout as to stop his vehicle before striking the obstacle which he saw, or should have seen, in front of him.

In none of the above three cases did the Court hold that the one who was responsible for the obstacle being in the road was free of contributory negligence.

The case of Locke v. Shreveport Laundries, supra, is more nearly in point. In the Locke case the wife of the deceased was awarded damages for her husband’s death who was run down by defendant’s truck while walking on the highway at night. There the truck driver was blinded by the lights of an approaching automobile and struck plaintiff’s husband while traveling at a rate of speed held by the Court to be too high under the circumstances.

As stated by the Supreme Court in the case of Gaiennie v. Cooperative Produce Co., Inc., et al., 196 La. 417, 199 So. 377, each case involving unexpected obstacles and contributory negligence must be decided upon its own facts and circumstances. In the Locke case, this Court held that the action of the pedestrian in walking upon the wrong side of the road was not a proximate cause of the accident and denied defendant’s plea of contributory negligence.

In the Locke case the driver of the truck did not see the pedestrian until after he had been struck and to that extent it is similar to the case at bar. In the case before us, we consider that the defendant Buckner, who testified that he did not see Blackstock at all and only knew of the collision because he felt the impact, was guilty of negligence in not maintaining a. proper lookout and in not seeing what he should have seen.

On the question of contributory negligence, it must be borne in mind that a motor driven bicycle — or any bicycle— is considered a vehicle within the definitions contained in the highway regula! ury act. While plaintiff has cited the Locke case as authority for the' fact that under some circumstances it is not contributory negligence fo.r a pedestrian to be on the wrong side of the highway, we know of no holding by any of the Louisiana appellant courts that a driver operating a motor vehicle on the wrong side of the highway is not, in the event of a collision with an oncoming car, guilty of contributory negligence.

The doctrine of last clear chance is not applicable under the state of facts shown by the record. There is no testimony from any witness that the motorbike was in Buckner’s lane of traffic any appreciable length of time or that Black-stock’s course of travel was such as to place him in the range of Buckner’s lights for a sufficient time for Buckner to observe him and stop the automobile before striking the motorbike.

Having found the driver of the automobile not liable, it is unnecessary to- pass upon the defenses raised by the other defendant as to the coverage included in its policy.

The judgment appealed from is affirmed, with costs.


author: HARDY,' Judge.

text:
    McLELLAND v. HARPER et al.
    No. 7240.
    Court of Appeal of Louisiana. Second Circuit
    Nov. 24, 1948.
    Rehearing Denied Jan. 6, 1949.
    Tucker, Bronson & Martin and Robert McL. Jeter, Jr., all of Shreveport, for appellant.
    Theus, Grisham, Davis & Leigh, of Monroe, and Philip Watson, of St. Joseph, for appellees.
   HARDY,' Judge.

Phis is a suit for damages on account of personal injuries received in an automobile collision which plaintiff alleged to have been due to the gross negligence of the driver of defendant’s truck. After trial there was judgment in favor of the defendant rejecting plaintiff’s demands, from which plaintiff has appealed.

Despite the conflict of testimony with respect to some details, in connection with the accident, the important facts appear to be well defined in the record. A little before noon on August 21, 1946, plaintiff was driving his automobile East on a gravel road known as State Highway 685, commonly called the Chickenville Road, in Ten-sas Parish, at a speed of some 40 miles per hour when he saw a dense smoke billowing across the highway. The smoke was caused by the burning of some old hay on land adjacent to the highway on the north side thereof and was being carried by the wind in a southerly direction, directly across the road. Plaintiff slackened his speed as he more closely approached the cloud of smoke and, after entering into the dense smoke, discovering that there was absolutely no visibility, he still further reduced his speed to about 8 or 10 miles per hour. Almost immediately plaintiff’s automobile was struck head on, by defendant’s truck driven by an employee, with such violence that plaintiff was rendered unconscious and suffered severe, serious and painful injuries.

By reason of the conflict in the testimony we are unable to reach a definite conclusion as to the exact position of the vehicles involved in the collision with respect to the center of the road, but an analysis of the testimony indicates that in all probability both vehicles at the time were traveling on or very near the center of the road in a trail of the nature that is customarily found at such a location on most gravel roads. However, the question of the exact location of the vehicles is relatively unimportant inasmuch as the record conclusively establishes. the fact that the drivers of both vehicles were moving along the road in opposite directions, enveloped in a dense screen of smoke through which neither had any degree of visibility whatsoever. Under such circumstances there can be no question as to the fact that both drivers were guilty of negligence. The jurisprudence of this State is now well established to the effect that under similar or comparable circumstances the action of the driver of a vehicle in continuing the movement of his vehicle when vision is obscured or reduced to the danger point constitutes negligence. Outman v. Imperial Oil & Gas Products Co., La.App., 144 So. 749. The authorities supporting this principle are so numerous that we do not find it necessary to list them at any great length. The cases of Castille v. Richard, 157 La. 274, 102 So. 398, 37 A.L.R. 586, and Dominick v. Haynes Bros. et al., 13 La.App. 434, 127 So. 31, 32, are cited in the opinion in the Outman case. The facts in the last noted case were remarkably similar to the one now before us. The facts show that

“ * * * at the location of the collision the highway was obscured by heavy smoke from burning grass on the roadside.”
“The driver of defendant’s car testified that he could not see, was blinded by the smoke, and the driver of plaintiff’s car testified that he could not see defendants’ car, although its lights were burning, until it was ready to collide with his car.”

In the course of the same opinion the court quoted Blashfield’s Encyclopedia of Automobile Law, Volume 1, page 370, to the following effect: “It is the duty of the driver of an automobile to stop his car when his vision is entirely obscured by a temporary obstruction, such as a cloud of dust or smoke screen. When failure to do so would jeopardize the safety of others, then he must remain at a standstill until the obstruction has come to an end.”

We are aware of the fact that plaintiff testified that his automobile had hardly, entered into the smoke at the time of the collision. This testimony is refuted to a degree by the testimony of other witnesses whose estimates placed plaintiff’s vehicle well within the smoke up to a distance of 50 to 75 yards in one instance. However this may be, we think the exact distance is immaterial since it is our firm opinion that plaintiff was negligent in entering into the smoke regardless of how far he had proceeded therein.

In the attempt to combat the possibility of the finding of contributory negligence on the part of plaintiff his counsel relies upon the applicability of two legal principles, namely, the doctrine of last clear chance and the doctrine of comparative negligence.

With respect to the latter doctrine, we note that while it is urged in plaintiff’s petition it is not argued in brief of plaintiff’s learned counsel. We therefore assume that this theory has been abandoned, and we think properly so in view of the fact that the doctrine is not recognized in our State.

There is left for our consideration the question of the applicability, vel non, of the doctrine of last clear chance. Under the circumstances of this case we are at a loss to determine upon what factual basis the application of the doctrine can be predicated. It is undisputed that the driver of the defendant’s truck did not see plaintiff’s vehicle until the very moment of the impact. Admittedly, by the testimony of plaintiff himself, the smoke was so thick that there was no visibility. The driver of defendant’s truck testified that he had his head outside of the cab in the effort to see enough to work his way along the road, despite which fact he did not see plaintiff’s car until it loomed up in front of him through the dense haze of smoke at the very instant of the collision.

Plaintiff’s zealous counsel has cited the familiar cases of Jackson v. Cook, 189 La. 860, 181 So. 195 (emphasizing that part of the opinion referring, to Rottman v. Beverly, 183 La. 947, 165 So. 153); and Langley v. Viguerie et al., La.App., 189 So. 606. The holdings of our courts in the cases cited have no bearing upon the issues of the instant case. The effect of the Jackson, Rottman and Langley cases has been to conclusively define the principle that contributory negligence, even though it continues up to the moment of the accident, does not'bar recovery if the other party saw, or could have seen, or should have seen, the danger in time to avoid the occurrence of the accident. Under the facts of the case before us neither party saw, nor indeed could either have seen, the danger since discovery of the danger was instantaneous with the happening of the collision.

Similarly, the facts in the case of Thiaville v. Toups et al., La.App., 25 So.2d 361, which is also cited on behalf of plaintiff, are easily distinguishable from the facts in the instant case, and, as a consequence, the judgment of the court therein cannot serve as precedent.

In a written opinion the Judge of the trial court concluded under the facts of this case that both parties were equally guilty of negligence under the' circumstances. With this finding we are thoroughly in accord, and, for the reasons set forth, the judgment appealed from is affirmed at appellant’s cost.