author: LeBLANC, Judge.

text:
    THOMAS et ux. v. QUATRE PARISH CO., Inc., et al.
    No. 3076.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1949.
    Rehearing Denied March 7, 1949.

      Plauche & Plauche, of Lake Charles, and K. Hundley, of Alexandria, for plaintiffs.
    Edward Dubuisson, of Opelousas, and Moss & Graham, of Lake, Charles, for Quatre Parish Co.
    Polk & Culpepper, of Alexandria, for J. B. Edwards.
   LeBLANC, Judge.

In passing through the town of Oakdale, in Allen Parish, on their way home from Alexandria to Port Arthur, Texas, on January 9, 1947, Mr. and Mrs. Robert B. Thomas ..met with a serious automobile accident in which they both sustained personal injuries and other damages and also the loss of several personal objects, for all of which they sue the defendants, Quatre Parish Co., Inc., and J. B. Edwards, in solido, for the total sum of $53,531.50.

Mr. Thomas was driving his Cadillac sedan automobile, traveling south into the town of Oakdale on Louisiana State Highway No.* 165, Mrs. Thomas was seated at his right and her daughter, Mrs. Elaine Ross, occupied the back seat of the car. He was holding his car in its right lane of travel, which was the west side of the highway, going at a moderate rate of speed, when, on reaching a point approximately 100 to 130 feet north of an intersecting street, named Jackson Street, his car was run into by a truck heavily loaded with lumber, belonging to the defendant, Quatre Parish Company, Inc., and being driven by one of its employees engaged at the time in the course and scope of his employment.

There is no dispute about the accident having happened entirely on the west side of the highway, in Mr. Thomas’ lane of travel and it is practically conceded that there is liability on the part of either one or both of the defendants. The controversy is really one between both defendants, the defendant Edwards claiming that his car was in no1 way involved in the accident and the defendant, Quatre Parish Company, Inc., claiming on the other hand, that it was the negligence of Edwards in driving his car from Jackson Street on to the highway right in the path of their truck, causing the driver to swerve to his left and run into the Thomas car, that was the proximate cause of the collision.

Negligence is charged against the driver of the Quatre Parish Company truck in several particulars but mainly that he left his right hand side of the highway and turned to his left directly in front of the Thomas automobile; that he failed to stop ' at the intersection when it became apparent to him that the Edwards car was not going to stop but was going to enter the highway ahead of him; also that he failed to maintain a proper look-out ahead and have his truck under such control as to be able to stop^it in the face of the emergency which confronted him. The defendant Edwards is charged with negligence in not stopping his automobile before entering the highway from the intersecting street and ascertaining that he could enter with safety, and having, by doing so, created an emergency whereby the driver of the truck had to act without sufficient time for deliberation. It is urged that the negligence of both drivers combined to cause the accident in which the damages sought to be recovered were sustained and, in the alternative¿ plaintiffs plead that should it be found that either of the defendants is not liable, but the other is, then they are entitled to recover judgment against the one that is liable for the full amount demanded.

As a result of the accident, Mr. Thomas suffered bodily injuries consisting of bruises around the ribs, laceration to his left eye, leaving a disfiguring scar, and injury to his right knee. His upper plate of teeth was broken and he had to have a new one made. During his confinement in the hospital, he had pneumonia and was gravely ill for several days. For all physical injuries, pain and suffering, he asks the sum of $15,000.-00. For medical and hospital expenses for himself and wife, his loss of earnings during his disability and for loss of a considerable amount of personal property belonging to both of them, he claims the sum of $3,-531.50.

Mrs. Thomas was more seriously injured. She suffered a concussion of the brain, serious bruises all over the body, particularly in her chest; she had a fractured pelvis and knee and five ribs were broken. Her scalp was lacerated across the top requiring the taking of twenty-seven stitches and she also suffered a loss of one and injury to other teeth. She claims to be still suffering and that she has not recovered from her knee and pelvic injuries from which she will remain fifty per cent disabled. She also claims that in some inaccountable way, a sewing needle was driven into her hip and it became necessary to have the same removed by an operation several months after the accident. For all her pain and suffering, both physical and mental, she asks the sum of $20,000.00; for the loss of a tooth and of others she will lose later, as a result of the accident, together with the pain and suffering and embarrassment in connection therewith, she asks the sum of $5,000.00 and for future pain and suffering, the sum of $10,000.00. Her total demand therefore is $35,000.00.

In their respective answers, the defendants each admit that the accident occurred on the day and at the time as alleged by plaintiffs, but negligence is denied in the manner as set out against each. The defense of the Quatre Parish Company is based on the doctrine of sudden emergency under which the driver of an automotive vehicle who is suddenly confronted with a situation of danger is not held to.the safest and wisest choice of meeting the same provided he took no part himself in creating the emergency. That defendant attributes the negligence of Edwards alone as having created the sudden situation of danger and consequently as tire sole and proximate cause of the accident. The defendant Edwards, in his answer, denies any negligence whatsoever and avers that in entering the intersection from Jackson Street, he took all the usual necessary precautions to safely do so. He alleges that he looked carefully in both directions on the highway, observed a truck some 800 feet to the south and driving north and at the same time saw a car some 500 feet or more to the north, driving south; that he concluded that it was safe for him to enter and make his turn to the north, the direction in which he intended to go, and that as a matter of fact, he had already reached a point on the highway 175 feet north of the intersection when he heard a noise which turned out to be the result of the impact between the two vehicles involved in the collision.

These were the issues on which the case was presented in the district court. The trial consumed all of three days and the record is voluminous. After due consideration, the district judge concluded that the accident resulted solely from the negligence of the driver of the Quatre Parish truck in operating it at an excessive rate of speed under the circumstances and in failing to keep a proper look-out. tie absolved the defendant Edwards from responsibility altogether. He rendered judgment in favor of Mr. Thomas in the sum of $4,000.00 for his personal injuries and for the scar resulting from the laceration around his eye and in the further sum of $2,000.00 for the medical and hospital expenses he had to pay as well as for loss of earnings and also for other losses incurred by him and his wife. Judgment was in favor of Mrs. Thomas in the sum of $7500.00 on account of her pain and suffering and 'the resultant injury to her hip and for the loss of a front tooth. From the judgment plaintiffs took a devolutive appeal limiting.it to that part which relieved the defendant Edwards from liability and also to the question of quantum. The defendant, Quatre Parish Company, Inc., appealed from the judgment in all respects.

The foregoing statement of the pleadings indicate that the paramount.questions with which we are concerned are first, the manner of approach to and entry into the intersection by the defendant, Edwards, and secondly, assuming that his approach and entry created a sudden emergency and situation of danger to the driver of the Quatre Parish truck, was the latter guilty of negligence in any manner which contributed to the accident as one of its proximate causes.

The Thomases had been visiting with relatives in Alexandria. They left that city at about nine o’clock on the morning of the accident to return to their home in Port Arthur and reached Oakdale approximately one hour later. It had rained slightly that morning but at ten o’clock, when the accident occurred, the rain had stopped and the weather was-not bad.

On entering Oakdale on the north, they had to cross over the tracks of the Santa Fe railroad and also had to go through a street signal light. That.is at a point about 800 feet from the intersection of Jackson Street. All three occupants of the Cadillac testified that Mr. Thomas had been driving at a very moderate rate of speed, and that as ,he entered the town of Oak-dale after crossing the railroad tracks, he reduced his speed and was going between 15 and 20 miles per hour. Some of them saw the Quatre Parish truck coming towards them from a considerable distance and all three are positive that as they were approaching a point opposite a garage and automobile agency on the west side of the highway, about 120 or 130 feet north of Jackson street, they saw the Edwards car on Jackson street and about to enter the highway. At that moment they also saw the Quatre Parish trade arriving at the intersection. The two ladies do not attempt to estimate distances and state measurements, but they both express their reaction concerning what they saw rather vividly.

The testimony of these two ladies is that they could see that the truck and the Edwards car were going to be involved in an accident, being so near each other. Instead however, the Edwards car pulled in front of the truck into the intersection and turned to the north and the next thing they realized was that their car was going to be run into by the truck. The testimony of these ladies is criticized rather severely by counsel for the defendant, Edwards, who says that it is so confusing and indefinite as to be hardly worth considering. We can’t agree with that. He attacked the testimony of Mrs. Ross, especially, but our impression is that this young lady was very candid in making her statements. When she was pressed to give distances and measurements, she frankly said that she was not a judge of such things and in that she is not unlike so many ladies who are usually not accustomed to- making such observations. We would say, however, that her .reaction to the scene before her when she said that “the thing that flashed into my mind was that there was going to be a wreck; I thought that there was going to be a wreck between the track and the car,” expresses the facts more honestly as she appreciated, them than if she had attempted to state exact distances and measurements. Later in her testimony, she again expressed herself in this manner: “Well, the car, (Edwards’ car) the black car, whipped out in front of the truck. We were just — I can’t say exactly where we were, but the truck just hit us, came on out side of the road and hit us. I mean as to distance, I really can’t say.” We believe that this was a very careful and conservative statement of her 'observations made at a moment when she was going through a very trying experience realizing how seriously her mother had been injured and most probably had been killed. .

Mrs. Thomas’ testimony is very much along the same line as that of her daughter. She neither would commit herself to distances and measurements. • She did finally venture an estimate that the truck was about 25 feet from the intersection when the Edwards car kept coming into the highway, After giving that estimate, she stated; “The black car, well, it didn’t stop, it was right at the edge of the highway and it just swayed over to our side, the right side, which we were on, and I said, 'Oh, look at that truck!’ That is the last thing- I remember. I saw that the truck was going to hit us.”

Mr. Thomas is a little more definite in his estimate of distances and he places the Edwards car from IS to 20 feet from the intersection at the moment the truck was about 75 feet away.

Besides the testimony of the occupants of the Thomas car, there is also the testimony of three other witnesses on behalf of the plaintiffs on this all important point in the case. These were the driver of the truck and his nephew who was seated next to him and a man by the name of Alcide Bushnell who was driving another truck, following the Quatre Parish truck at a distance of about 1000 feet.. There was a man named Mitchell Kirkland with Bushnell who also testified but his testimony is not material to the issue. Bushnell testified that he saw a car come across the tracks on Jackson Street and he also could see the Quatre Parish truck as it approached that street. Within a moment, he says, he saw lumber go up in the air and said to his companion, “Look yonder.” That was how fast and how soon the accident had happened after he had seen the .Edwards car coming towards the intersection.

The drivér of the truck was a young man named Oscar Young. He is 29 years old, married and has two children. He began the trip of that morning with this load of lumber which he took on at Oberlin, 13 miles’south' of "'Oakdale. The load was to be delivered to ¿'lumber yard in Oakdale. The trip to there was'"uneventful, all that he remembers was that he met traffic on the highway and some passed him. He says that he drove about 25 miles all the way and that as he reached the city limits of Oakdale, and also because he had to cross over a railroad .track, he slowed down-. That railroad track he estimates is. about 300 yards from Jackson Street near where the collision took place. He claims that from that time on, he traveled between 12 and 15 miles per hour until he reached the Jackson Street intersection when he saw a car coming from the right-hand side of him on that street. When he first -saw it it was some 30 or 40 feet from' the highway and wasn’t going any faster than he was. He then expresses himself in this way: “I had broke out into this intersection before I realized that he wasn’t going to stop-. I had done got the front end of my truck — it was almost halfway of the intersection.” In order to keep from hitting this car he says that he pulled 'to his left whereupon he was confronted with the Thomas car which was then about 30 feet from him., He was unable to straighten out or do anything else to avoid running into it.. When he was asked what kept him from seeing the Thomas car before, he says that it was the- other car (meaning the Edwards car) which had come across the black line of the highway and cut his view from the rohd ahead of him.

Roy Young, the young man who was riding in the truck with his uncle, stated that after they entered the city limits, the truck slowed down to about 15 miles per hour; that he noticed the car coming from Jackson Street when they were about thirty feet away. They were about the same distance away and the car maintained the same’ speed at which it was going as it entered the highway.

Mr. Edwards is the only witness who contradicts all the foregoing testimony with regard to the respective distances of both vehicles from the intersection just before the accident. He states that he was driving very carefully, as usual, to work that morning. His route from his. home to his office took him on Jackson Street and then north on highway 165. He -says that he slowed down to cross the railroad tracks on Jackson Street and then looked up and down the highway. He saw a truck coming from the south at a distance which he estimates to be 1000 to 1200 feet. He bases this estimate on the fact that it was still beyond the railroad tracks shown to be some 800 feet south of Jackson street. He then entered the highway and as he did, he saw a -car coming from the north. He met that car at a point about in line with the north edge of the garage and automobile agency, referred to as Marler’s garage, and which, as already stated, is situated on-the west side -of the highway, 120 to 130 feet north of the Jackson street. After meeting that car he heard a noise which he describes as a rattling sound. He thought that something had happened to the gears in the differential of his car, so he stopped at once. There is a railroad crossing sign about 270 feet north of thé -intersection and he says that he was 6 or 7 feet north of that sign when he' stopped. When he got out of his car he noticed the wreck that had happened back .of him. He went to render assistance an4 saw two men, one of them staggering in the lumber which had spilled all over the highway and also noticed a blonde lady who had gotten out of the car. He also saw a man in the driver’s seat. He inquired of the two men who were walking around if they were injured. One of them said he thought the other was so he led them both to his car and carried them to Dr. Gray’s clinic in Oakdale. From there he went on to his office' as he says he had a business engagement to meet.

The testimony of Mr. Edwards cannot' possibly be reconciled with all the other testimony with relation to the respective positions of his car and the Quatre Parish truck as he was about to enter the highway. It is somewhat significant that Mr. Edwards, after giving all of these distances and measurements, seems to rely more on his own appreciation of the fact that regardless of what distance the truck may have been up the highway at the moment,, he was perfectly safe in entering when he did and in proceeding' on his way north. Naturally, if he is.anywhere near correct in his estimates it was safe for him to do so but he does not. even presume to account for the fact that according to his testimony, during the time that he traveled some forty feet or so from the railroad tracks to the mouth of the intersection,' this truck, heavily loaded with six tons of lumber, had to cover a distance of from 1000 to 1200 feet. We cannot account for it either. Certainly that truck could not have been going more than 20 times faster than he was and if they were going at anywhere near the same speed it would be physically impossible for it to have found itself at the intersection or at the place of collision with the Thomas car at the moment it did.

It is contended on behalf of Mr. Edwards that the distance his car stopped north of •the place of the accident is proof of the fact -that he had already safely cleared the intersection and necessarily had entered it a good distance ahead of the truck. That is a circumstance which does not impress us very strongly for the reason, first, -that the stopping of his car was a voluntary matter on his part; in fact he need not have stopped at all, and secondly, 'his testimony on this point is contradicted by the two men he took into his car, one of them stating that it was about fifteen feet north of the place of the accident and the other about twenty feet north.

It is further urged on his behalf that the testimony of the witnesses David Mar-ler, V. P. Perkins and E. C. Tonn support his contention that he was too far north of the collision for his car to have been involved in it in any manner. These three men were all in the office of the. automobile agency, attending to business. They heard the crash and looked at once in the direction from which the noise had come. Two of them hurried to the scene and the third remained in the Office as by that time, Mrs. Ross was on her way there to. use the telephone. Whilst it is true that they all' testify that they did not see .any'other car on the "highway at the moment, from which it is implied that the Edwards car had already considerably passed the'point: of collision, we do not think that these gentlemen meant to infer anything of the kind. Under the circumstances ..existing at the moment they are' talking about, we doubt seriously that they were concerned . with making any such observations. . ,,

We find ourselves unable to agree therefore with the learned trial judge in relieving the defendant Edwards from all blame for this accident. Granting, as he says, that he is well acquainted with Mr. Edwards and that he was no doubt well impressed with his honesty and sincerity, it is impossible for us to reconcile his testimony with that of all other witnesses and accept it as the controlling proof in the case. We are somewhat impressed with the thought that the district judge, in discussing Mr. Edwards’ testimony, did not comment on the facts as they were stated by him but seemed to rely rather on his statement that when he entered the intersection he felt very safe in doing so. That may very well have been Mr. Edwards’ honest opinion but in it he is not borne out by what is the preponderance of testimony in this case.

His counsel seem to lay stress on the fact that ^Edwards had the right of way because he was approaching the intersection from the truck driver’s right and consequently the latter should have yielded to him the advantage which the law gave him. This argument, in our opinion, is refuted in two ways. First conceding the law to be that where two roads or streets are of equal importance the driver approaching an intersection to the other’s right has the right of way, we don’t think the rule applies in this case because certainly a paved State highway passing through a town like Oak-dale is a more important street of travel than a gravelled street leading up to it and traffic on this gravelled street should have to yield the right of way to traffic on the highway. Secondly, as we appreciate the preponderance of testimony on the point, both vehicles reached the intersection at approximately the same time and neither acquired the right of preemption over the other. ,

We find some merit in the defense urged on behalf of Quatre Parish Co., Inc., and based on the rule of sudden emergency, but have concluded, after considering the truck driver’s own testimony that he did not see the Thomas car until he faced the emergency which he claims had been created, that the judgment of the trial court which held him negligent for failure to have kept a proper look-out,. is correct. There was nothing to prevent him from seeing the Thomas car. as it was traveling towards him for a distance of some 2000 feet or more. Under the law, he is held to have seen it. If he had been looking out he would have known that it was approaching the intersection from the north as well as was the Edwards car from the east. He then would.no doubt have taken greater precaution than he did in entering the intersection. His failure to have seen it therefore was a proximate cause of the accident and his employer was properly held liable as a defendant in the case. We do not think that there is sufficient proof to hold that he was driving at an excessive rate of speed. Whilst it is said that .the force of the impact denotes an unlawful speed we think that very probably the weight of the load on the truck had as ntuch to do with that as anything else.

To the extent that the judgment appealed from condemned the defendant, Quatre Parish Company, Inc., therefore, it is found to be correct but it will have to be reversed in so far as the defendant J. B. Edwards is concerned and he will have to be decreed liable in solido with his co-defendant for whatever damages are to be allowed.

On the question of quantum we find the usual dispute between the parties that is made on appeal in regard to the award made by the trial judge. It would serve but little purpose in analyzing the award's made for personal injuries to each party plaintiff in this case and comparing their injuries and the resulting effects with those in the numerous cases that are cited on each side, for after all, as has been frequently stated, each case, as it arises, has to be governed by its own facts and surrounding circumstances. Recently, the existing economic situation has also been taken into account as one of the factors in making an award in cases of this kind. We believe that the district judge took this, as well as all other factors in consideration in allowing Mr. Thomas $4,000.-00 for the physical injuries and the pain and suffering he endured, and Mrs. Thomas, the sum of $7500.00 for those suffered by her. We do believe, however, that his award for expenses and loss of property resulting from the accident is too low. Without itemization, he allowed Mr. Thomas the sum of $2000.00 for all expenses, losses and other damage. If this takes into account the damage done to the Cadillac automobile we are convinced that the amount is insufficient.

We think there is sufficient proof to support the following items claimed: Hargrove Clinic, for doctors, nurses, hospital, and medical bills, $915.50; loss of wages sustained by Mr. Thomas during period of disability, $700.00; loss of clothing, apparently stolen from the wrecked automobile, $359.00; loss of 30 pounds of fresh pork, $10.00; ambulance service from Oakdale to Alexandria to convey Mrs. Thomas after she had recovered sufficiently, $15.00; loss of-a breast pin worn by Mrs. Thomas, $60.00; automobile trips from Port Arthur, Texas, to Oakdale, for Mrs. Thomas’ treatment after she had returned to her home, $75.00; for loss of Mr. Thomas’ eyeglasses which had to be replaced, $25.00; repair of Mr. Thomas’ watch which had been damaged in the collision, $7.50; doctor and medical .bills in connection with removal of sewing needle from Mrs. Thomas’ hip, $39.50 and dental services rendered to Mrs. Thomas, $56.00. These total the sum of $2262.50.

Whilst it is shown that the Thomas automobile was protected by a collision policy of insurance, the settlement of its loss was made by the insurance company in the form of a loan to be repaid by the insured' in case of recovery in a case of this kind. The automobile was shown to have had a value of $1924.00 at the time of the accident and a salvage value of $345.00 after-wards. The net loss therefore was the sum of $1579.00 which, added to the total of the other items of damage, aggregate $3841.50. The judgment will accordingly have to be amended by increasing the award made by the district judge on all of these items. ■

For the reasons stated, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed in so far as it condemned the defendant, Quatre Parish Company, Inc., in damages and reversed in so far as it relieves the defendant, J. B. Edwards, from liability.

It is further ordered that both the said defendants be condemned in favor of the plaintiffs, in solido, for the full amount of all court costs as well as for all damages; that the award made to the plaintiff Robert B. Thomas for expenses, damages and loss of wages and of property be increased from the sum of $2,000.00 to the sum of $3841.50, and otherwise, with respect to the damages awarded, that it be affirmed.


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    PIERCE v. BITUMINOUS CASUALTY CORPORATION.
    No. 3075.
    Court of Appeal of Louisiana. First Circuit
    Feb. 2, 1949.
    Bass & Brame, of Lake Charles, for appellant.
    Elmer L. Stewart, of De Ridder, for appellee.
   DORE, Judge.

On August 6, 1945, plaintiff was in the employ of the co-partnership of Nelson & Cooley' (composed of Floyd Nelson and Dempsey Copley), sawmill operators, and while engaged in his duties in loading a truck with logs, he sustained an accident by logs striking him and breaking his right hip joint. Immediately after the accident his employers took him to the clinic of Dr. J. D. Frazar in De Ridder, Louisiana, where he was placed under the care of Dr. Frazar. Dr. Frazar ¡found that he had a •compound fracture of the right ¡femur, and reduced the fracture and then placed a ¡body cast on' the plaintiff and used tract-ion. •It is shown that this first body -cast was -broken, obviously for the reason th-at plaintiff insisted on rolling' back and forth.in his bed, aiid, thereafter, -a second body cast was placed on plaintiff .by D-r. F-razar, and •shortly thereafter he was permitted to return to his home with the admonition that he should -remain quietly in bed. He returned to his home on September 1st, and came back to visit Dr. Frazar’s clinic during the first week in November, and according to -his version at that tim-e his cast was -removed. Dr. Frazar testifies that upon his return to- the clinic during the first week- of November, 1945, the cast had -already been removed. I-n any event, it is shown t-hat -at that time plaintiff’s fracture was in the same condition as when originally injured and that for some reason, although the fracture -had been "properly reduced by Dr. Frazar, an overlapping had occurred between September 1st and ¡the first week of November. Plaintiff sues the insurer of Nelson & Cooley . for compensation at the maximum rate of $20 per week ¡from the date of his injury, August 6, 1945, for a period of 400 weeks, less compensation payments heretofore made.

It is shown 'by the pleadings and by stipulation -between ¡counsel for plaintiff and defendant that the -accident -arose in ■the ¡course of employment as alleged; that the defendant is the insurer of the employer; that the accident occurred on August 6,1945, in Beauregard Parish, ¡and that plaintiff was ¡earning wages -sufficient to entitle him -to -compensation -at -the maximum .rate of $20 per week; that as a -result of the accident the plaintiff sustained a compound fracture of his right "femur; that defendant paid -compensation to plaintiff at the rate of $20 per week ¡from August 6, 1945, through October 16, 1946; that the .defendant -offered plaintiff an operation -to be .performed by Dr. Guy Caldwell of New Orleans to -remove or reduce disability; -that said operation "was off-pred -as -late ¡as August 6, 1946.

. The -defense to. pl-aint-iff’s -suit was that the -sole: ¡cause of .plaintiff’s disability was hd-s willful refusal tó •¡co-operate with the physician supplied him by defendant. Defendant contends that because of plaintiff’s lack of cooperation with Dr. Frazar, he broke the first cast placed on h-im by rolling and tossing in -bed, -contrary to instructions, -and that when the second -cast wa-s placed on him, in -spite of repeated instructions, he continued the same -acts of failing to -remain quietly in ¡bed and moreover that he punctured a hole in the cast with ¡a wi-re -or -coat hanger, -and failing to -remain in bed, fell down; that these acts -resulted in the -overlapping whi-ch ■occurred -after the -second cast was placed on hi-m. They 'further -contend that plaintiff removed the " second cast .before returning to the Frazar clinic, and contrary to instructions, and that upon his return he ¡refused -to -permit Dr. Frazar to apply a third ¡cast. They contend that if plain-tiff had -cooperated with the physician, he would have -recovered within 12 months from the date of injury and -could -then have resumed his work, -and that because his -condition is due directly to his own wilful lack of cooperation no further com- • pensation is due him.

On trial of the -case th-e trial ju-dge found that, while plaintiff had been uncooperative to -some extent, y-e-t his 'Condition could n-ot -be -attributed to that, but was due to natural -causes; -that he was totally -and permanently -disabled and that to -correct this disability would necessitate a major -operation, whi-ch was dangerous -aji-d uncertain ¡and that, therefore, under the -law, did not have to be submitted to by plaintiff. Accordingly, he rendered judgment in ¡favor ¡of the plaintiff for workmen’s compensation at $20 ¡per week for 400 weeks, beginning August 6, 1945, less a credit for payments previously made, plus -legal interest on delinquent payments and all -costs.

After rendition of this judgment the defendant filed -a motion for -a new trial on the -ground o-f n'ewy discovered evidence, naming -in the motion specific -witnesses, by whi-ch it could be shown that -the -second ¡body ¡cast wa-s ¡removed prior to- ¡plaintiff’s return to the F-razar ¡clinic in the first week of November, 1946. This motion ifor a new trial wa-s denied and defendant has -appealed.

The only questions before us on appeal are: (1) Should the trial judge have granted defendant’s motion for a new trial ®o as to give it the opportunity of showing that the second body cast was 'removed prior to plaintiff’s coming to the clinic as contended by defendant and was not removed at the clinic as contended by plaintiff?- (2) Was disability due to his wilful refusal to cooperate with the physician supplied him by defendant ?

With reference to whether or not the second cast was removed at the clinic or before plaintiff arrived at the clinic is the testimony of plaintiff himself, of his 'employer, Floyd Nelson, -and of Dr. Frazar.

Plaintiff testified that in the first week of November he went to the Frazar clinic with the cast on, ¡for the purpose of having the cast removed. His testimony on the subject matter is significant:

“Q. Who took the cast off ? A. There was a nurse — I don’t remember,' but there was a nurse there. Mr. Austin Doyle at Singer was the one who cut the cast off of me.” This testimony is subject to two* interpretations, one, that the nurse ■saw or did the removal of the cast at the clinic; the other that Mr. Austin Doyle out and -removed the cast at Singer and not at the clinic. It is noted that neither the nurse nor Mr. Doyle testified in the case. There is no explanation of the absence -of their testimony. We feel that their testimony is relevant to the issue presented herein.

Mr. Nelson testified that he is the one who took plaintiff to the clinic 'for the purpose of an examination and removal of the cast. On the other hand, Dr. Frazar testifies positively that plaintiff did not have the cast on when he saw him at the clinic.

The trial judge, 'for his written reasons for judgment, appears to have reached the conclusion that the -cast was removed at the clinic, but that Dr. F-razar did not see the plaintiff until after its removal. It seems strange that the doctor would have permitted the removal of the cast without his instructions and -that, even if removed without his instructions, -tha-t he would have had no knowledge or information thereof.

It is material to know definitely how and when this second cast was removed. Certainly, it would indicate some ¡lack of cooperation on the part of plaintiff, if he arbitrarily removed this cast or had it removed contrary -to the instructions of his physician.

As to the contention of defendant that plaintiff wilfully failed to give his cooperation in his treatment, in addition to the facts involved with reference to the second cast, we have the definite admission ■of plaintiff that he rolled around in bed contrary to instructions and that as a result his first -cast was broken and the second cast had to 'be applied. We also have his admission that he persuaded Dr. Frazar to allow him to return home on September 1, 1945. We, of course, have no testimony ■as 'to his conduct at home, 'except that of plaintiff and his wife. They both testify that when he arrived home he was suffering -from itching and his wife -states that she found on him a large number of body lice and head lic-e, and plaintiff contends that these lice were -the reason for his bein-g so uncomfortable at the clinic -and for his -rolling around in bed while at the clinic; that 'subsequent to t-he removal of the lice, he remained in bed quietly.

Dr. Frazar testified that his -clinic was in -a sanitary condition at all times, and in tha-t respect, he is corroborated by other physicians -and by his hospital nurse. H-e -attributes the breaking of plaintiff’s first cast entirely to -plaintiff’s failure t-o -remain in bed quietly and tossing afod -rolling in bed, and that he attributes the -return of plaintiff’s disability between September 1st and the first week of November, 1945, to plaintiff’s own acts. He states that on September 1, 1945, X-Ray and fluoroscopic examinations -showed that plaintiff’-s fracture was perfectly reduced, and in -position to heal if plaintiff had followed -instructions. He states further that plaintiff told him, when he returned to the -clinic, ¡after the second cas-t had been removed, that he had fallen, and, in effect, that -such ¡fall was sufficient to hav-e -caused the damage. I-t may be noted ' here that plain-tiff denies having told Dr. Frazar that h-e had -fallen, but, while he -and his wife -both stated that he remained quietly -in bed, he does admit that he- slipped once or twice on his crutches. Dr. Fr-azar is positive that ¡the sole cause of plaintiff’s continued disability is his lack of cooperation in the accepted treatment of fractures of this type. He states that he has been treating fractures of this type -for many years and that, where the patient cooperates, full -recovery should be effected within six to twelve months.

Mrs. W. F. Weber, a registered nurse, testified that she attended the plaintiff from the time of 'his admittance into the clinic until he -left, and she corroborates D-r. Frazar with reference to his treatment of plaintiff and with reference' t-o plaintiff’s ■laok of cooperation. She states that she saw plaintiff -roll about in bed on several -occasions, -tha-t she warned him that he -should not do this; that notwithstanding he was -restless and r-olle-d and broke his cast.

Dr. Floyd Beckcom -testified, -in answer to th-e hypothetical question: “Doctor, was the .turning from side to side 'by Andrew Pierce and the breaking of the -cast, -together with -the further information -that he fell -after he -left the hospital, were those acts on hi-s part the proximate cause or the real cause of his present disability?”, answered :

“They might very well be the cause. That would be the mo-st obvious -cause if those assumptions were true”.

The doctor testifies from his examination of X-Rays of plaintiff’s fracture -and from his -experience in such cases i-t was his opinion that plaintiff under proper treatment (as in this case) should have 're-covered within three to six months. He admits that where an active man with -a fracture as is involved in this case -is put into a cast, even if -there is traction -on it, occasionally there is “overlapping” but he states that this method is used because i-t gives universally -good results.

Dr. Luke Marcello testified that he examined X-rays of plaintiff and found an old fracture of the right femur with nonunion. He expressed the view that such a fra-ctur-e, where the bones are healthy -as -in this patient’s case, should heal within approximately six months. He -expresses the further opinion that -plaintiff’s -present condition is probably due -to the breaking of his cast, but that -if the second ca-s-t wa-s not broken, he does not believ-e that the mere moving around in bed would have caused the overlapping, for the reason that the cast, if undisturbed, would not permit movement of the hip. He states “He would ■have ha-d no -overlapping had there ¡been no breaking of the cas-t.” He -further states that in his opinion the bones would have joined properly i:f he had permitted the cast to remain on 'him, without breaking it and if he had received no fall. Dr. Marcello expressed the opinion that in spit-e of the fact that plaintiff had a pas-t history of two unsuccessful casts, that -by open reduction “regardless of when the operation is done, I think the ultimate -results are the -same. It should correct the fracture.” He admits that as -set forth in. the letter from Dr. Caldwell, the third operation - would be more serious than ■either of the first two, for ¡the reason that you would have to -proceed through -a surgical operation -f-or open reduction.

There is a serious question a-s to whether or not plaintiff’s present condition, which renders him totally -and permanently‘disabled, -is attributable to -hi-s own acts of non-cooperation with his physician or to natural causes. There is no question that in his present condition he is totally disabled within the -terms of ¡the Compensation Law, and that hi-s disabled condition -canno-t be corrected ex-c-ept by a major -operation, to which he does not have to consent. Possibly the -trial judge was correct in -interpreting -th-e situation liberally in favor of the employee, and thereby granting him judgment; but we have our -s-erious -doubts, especially in view of the medical -testimony, which -preponderates in favor of the proposition that had plaintiff cooperated in his treatment he would have re-covered from his injury within one year. Moreover, we are -of the opinion tha-t the testimony -sought to ¡be h-ad on re-hearing with reference to the -removal of the second -cast is material in determining whether or not plaintiff was -guilty of wilful lack of cooperation.

With the evidence presently in the record, we are unable to answer the main question of whether or not plaintiff’s dis‘ability is due 'to ¡his wilful 'refusal to cooperate with the physician supplied him by defendant.

Article 906 of 'the Code of Practice gives this court the discretion in 'remanding a case where the record is not in a condition to enable the court to pronounce definitely on the case, or where the parties have failed to produce available testimony which m%ht be material in a proper decision of the case 'and exercising that discretion we will remand the case.

For these reasons assigned, it is ordered that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered that the' case be remanded to the district court for the introduction of such additional evidence, relevant to the case, as either plaintiff or defendant, or both, may desire to offer, and in accordance with the views herein expressed; costs to await the final judgment, to be rendered herein on the remand of the case, or on the appeal from such judgment.


author: REGAN, Judge.

text:
    WARE v. AMERICAN DRUGGISTS’ FIRE INS. CO.
    No. 19062.
    Court of Appeal of Louisiana. Orleans.
    Feb. 7, 1949.
    Matthew A. Grace, of New Orleans, for appellant.
    Gordon B. Hyde, of New Orleans, for appellee.
   REGAN, Judge.

Plaintiff, James A. Ware, instituted this suit against the defendant, The American Druggists’ Fire Insurance Company, to recover the sum of $243.00, alleged to be the cost of repairing the premises, designated by the Municipal No. 3245 Gentilly Avenue, in New Orleans, plus 10% of the ■amount of the loss as a commission or handling charge for the contractor. In addition thereto, plaintiff claims 12% ($32.-08) of the amount of the loss as a penalty and a reasonable attorney’s fee, in conformity with the provisions of Act 168 of 1908.

Defendant answered admitting liability under its policy of Fire Insurance, but contended that the amount claimed by the plaintiff is far in excess of the actual loss and damage caused to plaintiff’s property by the fire.

The lower court rendered judgment in favor of plaintiff in the amount of $299.38, which award represented $243.00 for repairs, $24.30,as a commission or handling-charge for the contractor,- $32.08 as a penalty, and in addition thereto $50.00 as attorney’s fees-. From this judgment defendant prosecutes this appeal.

The record reflects that on February 6, 1948, a fire occurred in the premises of #3245 Gentilly Avenue, the commercial portion of which is occupied as a drug store, and the residential portion thereof is occupied, by the owner, as a residence. The origin of the fire was in the vicinity of the hot water heater which served the residence of plaintiff. The cause of the said fire is not reflected by the record, but when it was discovered by the plaintiff, it appeared -to -him that some weatherboards were burning or smouldering. The vent pipe attached to the water heater passed through these weatherboards. Plaintiff called the fire department for assistance, which responded and used a garden hose to extinguish the smouldering weatherboards. The firemen admit having removed some weatherboards in and around the vent pipe to ascertain that the fire had been definitely extinguished within the wall. There is a dispute between plaintiff and defendant as to whether the firemen poured water through the Vent pipe in an effort to extinguish the fire and thus damaged the overheated coils of the heater with cold water.

The firemen contend that water was directed around the vent pipe and not through it. On the other hand, plaintiff’s plumber testified that the overheated coil was damaged by cold water and that the said heater suffered other damages, particularly to the main valve and to the gas valve by virtue of the fire. Be that as it may, plaintiff, on the same day, February 6, 1948, notified the defendant insurance company’s agent, H. M. Pearce, who visited the scene of the fire, and later the same day admitted to plaintiff, defendant’s liability under its policy for the fire damage, and requested plaintiff to have the damage repaired, stating that the defendant would pay for the damage to plaintiff’s premises caused by the fire.

Defendant admits that no “proof of loss” forms were furnished at this, or any other time, to plaintiff. Subsequently, when the fire damages had been repaired, plaintiff sent to defendant, through its agent, Pearce, the following bill, and requested payment:

“Painting $135.00
For changing and reconditioning and installing water heater 83.00
Carpenter labor 13.00
Lumber, nails and paper 12.00 ' $243.00'
10¡& handling 24.30
TOTAL $267.30”

Shortly after receipt of the above bill, Pearce called upon plaintiff to discuss what he termed the excessive charges for repairing the water heater. Plaintiff maintained that the cost of repairing this heater was just and reasonable. Defendant conversely maintained that -the charge was unreasonable and thereafter refused to pay the amount of the los-s as indicated by the bill or any part thereof. As a result of defendant’s failure to pay the alleged fire loss, plaintiff instituted this suit.

Defendant has admitted its -liability under the policy, therefore, the only question presented for our consideration is the amount that plaintiff is entitled to recover from the defendant.

Defendant maintains that (1) the claim for the contractor’s .commission - of 10% or $24.30 should be disallowed because William C. Osborne performed no services as contractor; (2) the claim for repairing the hot water heater, in the amount of $83.00, should be disallowed because no fire or water damage was occasioned to the heater; (3) the charge 'for painting* in the amount of $135.00 was excessive and should be reduced to $70.00; and (4) that the penalty of 12% ($32.08), as provided for in Act 168 of 1908, plus attorney’s fees of $50.00 should be disallowed because, inasmuch -as defendant admitted liability, there was no need to furnish plaintiff with the “proof of loss” forms, ■ however, defendant admits that more than sixty days have elapsed since plaintiff made demand upon defendant for payment of the alleged fire damage.

We are of the opinion that the claim for the contractor’s commission of 10% or $24.30 for handling charges, should he disallowed because the contractor, Osborne, admitted that he did not engage any sub-contractor to do the painting or the plumbing work and that he, the contractor, only furnished the carpentry labor and materials, as will be observed from the following testimony:

“Q. You .did not engage any sub-contractor to do.the painting work, did you? A. No, sir.
“Q. You did not engage any plumber as sub-contractor, to do the plumbing work, did you? A. No, sir.
“Q. And you had no arrangement with Mr. Ware to pay you anything for your assistance? A. No, sir.”

We are of the opinion that the claim for damages of $83.00 to the hot water heater were properly allowed. Defendant attempted to show that no damage occurred to the heater in question, by placing two firemen on the stand 'and eliciting from them that in directing water around the vent pipe, which was connected to the water heater, they were careful not to direct anij water into the vent pipe or the heater. However, there was no testimony to the effect that either of these firemen examined the heater after their mission was accomplished to ascertain that no cold water had come in contact with the over-heated wafer heater, or that the' heater was not damaged by- the fire.. On •the other hand, we have the positive testimony of the plumber who testified that “the heater was flooded with water” caused by the firemen “they pumped it on”. The plumber further testified that the “cold water” on the heater “loosens the lime in the -coils and it jams up, clogs it up and the main valve and the gas valve were damaged”.. The plumber testified that the charge of $83.00 for repairing the “heater” also included the replacing óf a new “vent pipe”.

We are also of the opinion that the item of $135.00. for painting of the rear portion of this building was reasonable and is supported by the evidence and should be allowed. It is not disputed that weatherboards were removed from the rear portion of the building in order to ascertain that no fire existed within the walls. It is estimated that at least ten square feet of weatherboards were removed and one o-f the firemen testified that there was discoloration on the rear portion of the building due to smoke. Osborne, the contractor, testified that a painter, who was in the process of painting the whole building, had given him and the plaintiff the estimate-of $135.00, and that in his (Osborne’s) opinion, the charge was reasonable. In response' to a question of “what do you base that on Mr. Osborne?” he stated, “Experience that I have had and work that I have done”.-

Relative to the penalty of 12% or $32.08, as provided for in the Act of 1908, plus $50.00' attorney’s fees, we are of the opinion that the penalty and attorney’s fees were properly awarded to plaintiff.

Section 3 of Act 168 of 1908 provides:

“Be it further enacted, etc., That whenever -any loss or damage shall be suffered in this State from fire by any person, firm or corporation upon property insured under a policy of insurance of any fire insurance company doing business in this State, it shall be the duty of -the fire insurance company that has issued the policy or policies upon receipt of proofs of loss from the assured, to pay the amount due under its policy or policies, w;thin sixty days \ thereafter, or if the said proofs of loss are not satisfactory to the -company, it shall be the duty of the -company to proceed under the terms -of the policy or policies to ascertain and adjust the amount of the loss and its liability under its policy or policies and to make payment of the amount due under the policy or policies to the insured within sixty days from the date upon which it received -the proofs of loss offered by the assured, and should the company fail to pay, within said time the amount due the insured under, -the policy •after demand made therefor, such company shall be liable to pay the holder or holders of such policy in addition to the amount of -the loss, 12 per cent damages on the total amount, of the loss a-s may be determined by a court of competent jurisdiction together with all reasonable attorney’s fees for the prosecution and collection of such loss; * * * ”.

In the case of Isaac Bell, Inc., v. Security Insurance Company, 175 La. 599, 143 So. 705, 707, the Supreme Court said: '

“We think that section 3 of Act No. 168 of 1908 is mandatory and must be given effect in every case where the insurance company resists payment of the whole or any part of a loss covered by its policy, provided the insured judicially recovers more than the insurer admits to be due and timely tenders or pays to him.”

See, also, Perot v. Carolina Insurance Company of Wilmington, N. C., La. App. 171 So. 458; Chambers v. North British & Mercantile Insurance Co., La. App. 175 So. 95;. Dutton v. Plarmonia Insurance Company of Buffalo, N. Y., 191 La. 72, 184 So. 546.

In this case the defendant insurance company resisted payment of the whole or any part of the plaintiff’s loss.

For-the reasons assigned the judgment appealed from is amended by reducing the amount awarded plaintiff from $299.38 to $275.06 and as thus amended, it is affirmed at the cost of defendant.

Amended and affirmed.


author: LeBLANC, J-udge.

text:
    SCOTT v. HILLYER, DEUTSCH, EDWARDS, Inc.
    No. 3073.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1949.
    Rehearing Denied March 7, 1949.
    Writ of Certiorari Granted April 25, 1949.
    Julius T. Long, of Shreveport, for appellant.
    Thompson, Lawes & Cavanaugh and John C. Camp, all of Lake Charles, for appellee.
   LeBLANC, J-udge.

, This is a workmen’s compensation suit, in which the plaintiff seeks to recover compensation at the maximum rate of $20 per week for 400 weeks, beginning August 6, 1946, for an injury to his left hand, less the amount of compensation he had been, paid by his employer, the defendant herein, Hillyer, Deutsch, Edwards, Inc. The plaintiff who is a colored man was employed as a laborer by the defendant company which is engaged in operating saw mills and doing a general lumbering business. On the day of -his injury he was attempting to hook long metal tongs to logs which were being moved or pulled by a caterpillar tractor. While so engaged in his duties, the tractor carrying the logs moved and that caused the tongs to crush the outer side of his left hand. As a. result he injured -the little finger and the ring finger of that hand and it became necessary to have a complete amputation of the little finger and the removal of two phalanges of the ring finger. There is no dispute about the accident and about the injury and its resulting consequences and the only issue in the case is whether in the present condition of his. left hand, plaintiff can do work that is. reasonably of the same kind or character-of the work he did and was accustomed to perform before. He was- paid the full amount of compensation that was due -him. ■under the law for the specific injuries he sustained. His present demand is based on the proposition that his injury caused more .than the specific loss of those two members and that because of his inability to grasp with his left hand as well as he did before, •or as well as a man who has use of all of his fingers, he has beéome totally disabled within the contemplation of the workmen’s •compensation statute, Act No. 20' of 1914 and its amendmenfs, and he is therefore •entitled to recover as for total, permanent, disability.

He relies on certain cases in which it has been held that an employee, skilled in certain lines of work, such for instance as a brick mason, has been held to be totally disabled and the question to be decided in this case is whether this plaintiff was an employee performing work of such a nature that it is necessary for him to have the use •of the two injured fingers on his left hand. That, of course, is a matter which presents a factual issue to the Court. The trial judge, without assigning written reasons held that plaintiff had been paid all the •compensation he was entitled to as for the loss of one finger and two phalanges of another and, in effect therefore, the demand, as made, was rejected. From that judgment, this appeal was taken.

Plaintiff is a man about 43 or 44 years old. He had been doing a general laborer’s work, most of it as a woodsman or, a ■swamper and had been employed by the defendant, off and on since the year 1940. He did not seem to have any particular duties, performing any work he was asked to do. At times he' drove a team, at others he worked on a loader and also at times he set tongs, which was the work he was engaged in doing when he was injured. He had not worked very much at handling tongs but that was included in the work he had to perform at times and it seems to .be his contention that because of the weight of these tongs .which he says is 60 pounds, .and the necessity of having a strong grasp •to operate them, he is not able to do the same kind of work he was accustomed •to do.

After the operation and the healing of ihis finger joints, plaintiff returned to work for the defendant and worked three, days, doing the same general character of work he did before except that he did not have to use these tongs. He did however use an axe in the swamps and according to. his employer, was able to perform that general work in as satisfactory a manner as he had before his injury. On the fourth day, he did not return to work and was then discharged. The defendant’s manager claims he was discharged because of his irregularity in coming to work. Counsel contends on the other hand that plaintiff was a regular worker and that when he missed going to work after his injury it was because he had some work to do at home. We do not know that that makes much difference in solving the question that is presented to the • Court because after all it is simply whether plaintiff can do the same kind of work in his present condition, or work which is reasonably of the same kind and character, as he did before. During the three days he worked for the same employer after his injury, he performed the same services as ’ a swamper, as he rendered before, and after having been discharged by the defendant he went to work for a Mr. Melton Wright, who is also engaged in the logging business, and did general swamping in the woods for him, the same work he had done for Mr. Wright’s father before he went to work for the defendant.

We think that the conclusion reached by the trial judge that this is not a case of total permanent disability, is correct. Plaintiff complains that his grip in his left hand is not as strong as it was before and we can well assume that it is not, but the fact is that with what grip he has, he has been rendering the same'kind of services to his employer and therefore we don’t think that that has affected his capacity to do that kind of work. ‘ He says that his hand pains him at times but there seems to be no reason why he should have pain as Dr. Joe E. Broyles who attended' him and performed the operation on his hand thought that his hand was in excellent condition as far as what was left of the ring finger was concerned and that the place where the little finger was amputated, was well healed and- in good condition.

Counsel for plaintiff makes reference to certain cases in which the courts have allowed compensation for partial disability in injuries of a somewhat similar nature. In those cases however, it is observed that there was testimony adduced to show a certain percentage of disability, and compensation was allowed on such proof. There is no evidence in this case on which a judgment of partial disability could be based, as we can see, and in the absence of any, the conclusion that we have come to, that this man whose work after all is nothing but that of a common laborer, unskilled in any particular trade, has not sustained such an injury as to entitle him to compensation for total'and permanent disability.

The judgment of the lower court which held that he was entitled to such compensation only as had already been paid, is correct and it is accordingly affirmed.


author: ELLIS, Judge.

text:
    GREEN v. ANDERSON et al.
    No. 3074.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1949.
    Kay & Kay, of DeRidder, for appellants.
    Elmer L. Stewart, of DeRidder, for ap-pellee.
   ELLIS, Judge.

The Trial Judge has correctly and concisely stated the issues as follows:

“This, is a suit for compensation instituted by Sylvester Green against EL E. Anderson and Great American Indemnity Company of New York, in which plaintiff alleges that on or about December 7, 1945, he received an accidental injury to his left foot while in the employment of H. E. Anderson, and that as a result of that injury he is permanently and totally disabled from doing work of a reasonable character. It is further alleged that Great American Indemnity Company of New York is the compensation insurer of said H. E. Anderson and that compensation payments at the rate of $20.00 per week were made from the date of the injury until August 6, 1946.”

“Defendants admit that plaintiff received an accidental injury at the time and place alleged while working for H. E. Anderson, that the employment was hazardous within the meaning of the Workmen’s Compensation Act, that the injury consisted of a fracture of one of the metatarsal bones of the left foot, that Great American Indemnity Company of New York is the employer’s compensation insurance carrier, and that the sum of $680.00 was paid to plaintiff, representing compensation payments from the date of the injury to August 2, 1946, plus medical and hdspital bills incurred in connection with the injury. Defendants deny, however, that plaintiff is permanently and totally disabled from doing work of a reasonable character, and affirmatively allege that he was able to return to work on or after August 2, 1946.”

“The only issue presented, therefore, is ■whether or not plaintiff is now totally disabled from doing work of a reasonable character, and, if so, whether such disability is of a permanent or temporary nature. The trial of the case was completed on December 12,1947, and is now before the Court for decision on its merits.”

The case was duly tried and the lower court, in a well written opinion, concluded:

“ * * * that at the present time plaintiff is totally disabled from doing work of a reasonable character and that such total disability has existed continuously from the ■date of the accident until the present time. The Court is further convinced that the disability is of a permanent nature, but that it may be somewhat decreased or reduced from total to a partial disability by proper medical treatment.”
“Counsel for defendants suggest in their brief that in this case it would be appropriate for the Court to render a judgment similar to that rendered in the case of Delahoussaye v. D. M. Glazer & Co., La.App., 185 So. 644, where the Court found that the disability was of a temporary nature and the time which would be required to effect a recovery could! be estimated. The judgment in that oas-e condemned defendants to pay compensation to a certain time, and required plaintiff to submit to proper medical treatment tendered by defendants during that period.”
“In the present case, this Court is of the opinion that plaintiff should be required to submit to reasonable and proper medical treatment, but it is impossible for the Court to estimate the time which would! be required for such treatment to -produce any results or to estimate the percentage of disability which may still exist after such treatment has been completed. If as a result ftf the medical treatment thus administered, however, the incapacity of plaintiff should -subsequently become diminished, defendants may apply to have the judgment modified at any time after six months from the rendition of this judgment, under the provisions of Section 20 of Act No. 20 of 1914, as amended by Act No. 85 of 1926.”

Judgment was rendered “in favor of the plaintiff, Sylvester Green, and against the defendants, H. E. Anderson and Great American Indemnity Company of New York, condemning them, insólido, to. pay compensation to plaintiff at the rate of $20.00 per week from the date of the injury, December 7, 1945, for a period not to exceed 400 weeks thereafter, subject to a credit of $680.00, or compensation for 34 weeks previously paid; provided that during said period defendant may tender to plaintiff, at defendants’ expense, the professional services of a physician of plaintiff’s own choosing for prescribing and administering reasonable and proper treatment to relieve or reduce his present disability. Upon plaintiff’s refusal to accept such treatment and to cooperate with the physician administering it the compensation payments herein ordered may be discontinued. All costs of this proceeding are assessed to defendants.”

Plaintiff is not complaining of the judgment of the Lower Court in any respect as he has taken no appeal; however, the defendants have appealed from this judgment. The defendants’ main complaint seems to be that the present case comes within the rule and' within the facts of the case of Delahoussaye v. D. M. Glazer & Co., supra, and Perry v. Louisiana Central Lumber Company et al., La.App., 16 So.2d 136.

.The District Court has -ably and correctly reviewed the testimony in this case in his opinion and we quote:

“On December 7, 1945, plaintiff was engaged in cutting down trees for his em-polyer, H. E. Anderson. Immediately after one tree was cut it slipped and the butt of the tree came to rest on plaintiff’s left foot causing a fracture about the middle of the second metatarsal bone of the foot. Plaintiff was taken to- the office' of Dr. J.’ D. Frazar immediately after the accident occurred, where the fracture was reduced and the foot was placed! in a cast. The cast remained in place on the foot for about three weeks when it was removed and another cast was applied. This second cast remained on plaintiff's left foot until June, 1946, when it -was removed. 1 The foot, therefore, remained in a cast for a period of approximately six months.”
“At the time of the trial, on December 12, 1947, the Court found, upon actually inspecting plaintiff’s' left foot, that the great toe appeared to be normal and! rested upon the floor in a normal position. The other four toes of that foot, however, were held suspended above the floor, the second toe being suspended about one and one-half inches above the floor, the second and third toes (should be third and fourth) being suspended slightly less than that distance above the floor, and the little toe being suspended about a half inch. The toes appeared to be rigid and stiff.”
“Dr. W. E. Reid testified that he examined plaintiff on March 28 and on May 6, 1947, and that on both occasions he found that plaintiff was suffering from a contraction of all toes of the left foot except the great toe, which malees it impossible to flex any of the four toes enough for them to reach the floor. His inability to flex his toes forces plaintiff to walk on the ball of his foot, causing soreness in the entire foot ■and‘the foot is cold and has a bluish tint, due to poor circulation Plaintiff’s left leg was smaller than the right leg at that time, as shown by measurements taken by the doctor. This witness found that the fracture of the second metatarsal bone had healed but was slightly overlapped, and he testified that in his opinion that condition would assist in causing the contraction of the toes. His diagnosis was that plaintiff had a rheumatic condition of the entire foot, with contraction of the tendons of the dorsal- surface of the foot. He testified that in his opinion plaintiff has a permament contraction of the toes which will require a major surgical operation to correct, but that his condition might be improved some with proper treatment, rest, massage and heat, including short wave diathermy. He stated that it would be impossible for him to determine how much improvement could be obtained by such,treatment, but that in any event plaintiff will always have some permanent disability as a result of this injury.”
“According to Dr. Reid, plaintiff is now totally disabled from doing work of á reasonable - character and will never be able ' to do the same type of work he' was performing at the time he received the injury.”
“Dr. Luke Marcela examined plaintiff in December, 1947, and found that plaintiff was’Suffering from a contraction of the four toes of the left foot. In his opinion the tendons of that foot had contracted- and there was a fibrosis of the muscles that extend the toes. This condition, in his opinion, resulted from a fracture of the second metatarsal bone of the left foot sometime prior to the .date 'of the examination and the resulting interference with the circulation of blood in those muscles. He further testified that this fibrosis occurred soon after the foot was injured and, in- his opinion, occurred while the foot was in the cast.”
“In Dr. Marcela’s opinion plaintiff is permanently disabled from doing work of a reasonable character. The condition may be improved by performing a major surgical operation for the purpose of lengthening the contracted tendons but such operation is not always successful.”
“Dr. J. D. Frazar treated plaintiff immediately after he received the injury by reducing the fracture and placing plaintiff’s left foot in a cast. He testified that plaintiff was discharged in August, 1?46, and at that time the fradure was completely healed’and from a physical or X-ray examination there was no evidence of any disability to the foot. Plaintiff did complain at that time, however, of soreness and pain in his foot. This witness testified further that he examined plaintiff a few days prior to the date on which the trial was completed and found a contraction of the toes on liis left foot, which condition was caused by a contraction of the tendons in the toes. In Dr. Frazar’s opinion, the contraction of the tendons resulted from plaintiff’s non-use of his foot. He testified that upon discharging plaintiff he prescribed heat and exercise to remove the stiffness from the foot, and that if such instructions hath been complied with by plaintiff, it is his opinion that the foot should have been restored to its normal use within ninety days after the cast was removed.”
“Dr. Frazar testified, however, that the present condition of plaintiff’s foot is permanent if no further treatment is administered. If plaintiff does follow a course of treatment it is this witness’ opinion that the foot could be restored! to its ■normal use probably in ninety days, but it may take longer than that since more than two years have elapsed since the injury occurred.”
“Dr. Floyd M. Beekom testified that the ‘cocked-up’ deformity of the toes to plaintiff’s left foot was caused by the contraction of the extensor tendons and muscles of the foot, and that the cause of that condition was d'is-use. In his opinion the foot could be restored to normal use within a period of from one to two months by the use of physio-therapy,, which includes the application of heat, moist and dry, graduated activity and passive activity.”
“Plaintiff testified that in compliance with Dr. Frazar’s instructions, he soaked his foot in hot water four 30-minute periods a day for a period of at least siix months after the cast was removed, that he has rubbed and manipulated his toes, that he has walked on his foot as much as he can, and has strictly followed all other instructions given him by Dr. Frazar. The condition of his foot at the time of the trial, he testified, was ‘ practically the same as it • was six .months after the date of the accident. He has never refused to take any treatments offered, but, on the contrary, he has submitted to all treatments which have been •tendered to him by defendants.”

In the case of Delahoussaye v. D. M. Glazer & Co., supra, [185 So. 644], the ■court found the following facts and held:

“In the present case the testimony does not justify a holding of permanent disability. The disability arises from the stiffened fingers of the left hand which could not be closed completely against the palm of the hand without the exertion of some pressure which produces a certain amount of pain. In the accident which caused his injury plaintiff sustained a fracture of one of the small bones of the wrist. The hand remained immobilized in a splint for about five weeks, and as is usual, the immobilization produced the stiffness which is now found in the ‘fingers. Plaintiff was given the usual medical instructions in such cases to exercise his fingers and was told that work would help in restoring his hand to normal use. There seens to be no doubt from all the medical testimony adduced' that had plaintiff followed the instructions given to him he would long ago have recovered entirely from the effects of the injury. He appears however to be of the non-cooperative type and! his failure in that respect has caused the condition to remain the same as it was although the doctor who attended him at the time testified that he found some improvement on the day the case was being tried.
“The preponderance 'óf the testimony however is that with proper treatment the stiffness in the fingers should disappear and the disability should not continue longer-than six months thereafter. One of plaintiffs own witnesses, Dr. H. B. White, testified to that effect. * * *
“Under the facts found we think that the 'district judge was correct in ordering treatment and limiting compensation for an additional six months.
“ * * * we think that the provisions of Subsection- 8 of Section 8 of the Act, p. 362, which gives the court a certain amount of discretion in fixing the period of compensation are applicable. The Subsection reads as. follows: ‘For injury producing temporary total or temporary partial disability the Court, may in its discretion, award compensation for a fixed number of weeks to be based upon the probable duration of such disability.’
“We take, that provision to mean that where the court can reasonably satisfy itself of the probable period of time during which the disability, will continue, whether total or partial, it can exercise its discretion as did the lower court in this case, in awarding compensation for, a specified number of weeks.”

In the present case, the District Court correctly found from the testimony that the plaintiff had been totally disabled from doing work of a reasonable character continuously from the date of the accident until the present time, and, further, that the disability of the plaintiff was of a permanent nature but that it might be somewhat decreased or reduced from total to partial disability by proper medical treatment, however, the Lower Court found it impossible, and correctly so, from the testimony to estimate the time which would be required for such treatment to produce any results and to estimate the percentage of disability which might exist after such treatment had been completed. Therefore, where the Court is unable to satisfy itself of the probable period of time during which the disability will continue, it could not fix the specified number of weeks for the payment of compensation.

The holding of the Court in the case of Perry v. Louisiana Central Lumber Company et al., supra, is to the same effect as the holding in the Delahoussaye case. In "this case, the Court held that the plaintiff was not permanently and totally or permanently and partially disabled and further found that at the time of the trial, while the plaintiff did suffer from a disability which prevented him from following any employment involving manual labor, -that it was equally apparent that his condition was due to his own fault and which-might be overcome within a reasonable period of time, and upheld the judgment of the trial court allowing plaintiff additional compensation for a period of twenty-four weeks.

The present case is similar to the case of Leday v. Lake Charles Pipe and Supply Company, La.App., 185 So. 655. In that case plaintiff sued for compensation for total permanent disability for a period not exceeding 400 weeks, on account of an injury he claimed to have sustained to the index finger of his right hand and which he claimed caused his finger to become stiff; that he suffered pain in his right arm and shoulder when his finger came in contact with any hard surface. The Court found that the preponderance of the medical testimony was to the effect that plaintiff was not able to do hard work, the kind he had been doing when injured because of the tenderness oh the distal end of the index finger where the amputation was made and cause of the stiffness in the right hand. It further found from the medical testimony that plaintiff would not be able to do hard work unless the finger was amputated between the first and second joints, and then, 'according to the medical testimony, plaintiff’s disability would! be entirely relieved by this operation.

The Court held [185 So. 657] :

“Under this situation, the plaintiff is entitled to compensation for total disability so long as he is disabled to perform the kind of work for which he is fitted, not to exceed, of course, 400 weeks. This is clearly the holding of the Supreme ■ Court in the case's of McGruder v. Service Drayage Co., Inc., 183 La. 75, 162 So. 806, and Barr v. Davis Bros. Lumber Co., Ltd., 183 La. 1013, 165 So. 185. Plaintiff is suing for compensation on account of his loss of capacity to work under Section 8, subsection 1, paragraph (b), Act No. 242 of 1928, p. 357, and not for the loss of a finger. Being incapacitated from work, his compensation should be fixed at $7.80 per week from the date of the injury to continue as long as the total disability continues, not to exceed 400 weeks, subject to a credit for the amount paid. Schneider v. Travelers Ins. Co. et al., La.App., 172 So. 580.”

The Court rendered judgment in favor of the plaintiff, awarding him compensation for a period not exceeding 400 .weeks,. with legal interest on the respective payments from their due date until paid, subject to a certain credit, and further ordered, adjudged and decreed that “within a period of thirty days from the date on which this judgment becomes final, the said plaintiff is required to submit to an operation for the amputation of the index finger on his night hand between the first and second joints by a doctor of his own choosing and at the expense of the defendant; that on the refusal of the plaintiff to submit to such operation within said time, and without reasonable grounds fqr such refusal, then cona-pensation hereunder is to cease after the expiration of said thirty days; with further provision that, any time after the expiration of said thirty days, the defendant is given the right toi show that by reason of said operation, or otherwise, the plaintiff’s disability no longer exists and compensation should cease.”

In the case at bar, the preponderance of the testimony was to the effect that the plaintiff was totally and permanently disabled but that with proper treatment his disability might be minimized. Under these facts, the District Court properly rendered judgment for total disability not exceeding 400 weeks and further ordered the plaintiff to submit to treatment by a doctor of his own choosing and at the expense of the defendant. However, we believe that the judgment of the District Court should be amended in order to make it more definite. It is therefore ordered that there be judgment in favor of plaintiff, Sylvester Green, and against the defendants, H. E. Anderson, Great American Indemnity Company of New York, condemning them, in solido, to pay compensation to plaintiff at the rate of $20.00 per week from ithe date of the injury, December 7, 1945, for a period not to exceed four hundred weeks thereafter, subject to a credit of $680. or compensation for thirty-four weeks previously paid; provided that during said period defendants shall tender to plaintiff at defendants’ expense, within thirty days after this decree becomes final, the professional services of a physician of plaintiff’s own choosing for prescribing and administering reasonable and proper treatment for a period not exceeding six months, in order to relieve or reduce plaintiff’s present disability. Upon plaintiff’s refusal to accept such treatment and to cooperate with the physician administering it, the compensation payments herein ordered shall be discontinued; all costs of this proceeding are assessed to the defendants.

As thus amended the judgment is hereby affirmed.


author: PER CURIAM.

text:
    SHEFFIELD v. JEFFERSON PARISH DEVELOPERS, Inc.
    No. 19012.
    Court of Appeal of Louisiana. Orleans.
    Jan. 10, 1949.
    Writ of Certiorari Granted Feb. 14, 1949.
    Chaffe, McjCall, Toler & Phillips and Leon Sanpy, all of New Orleans, for plaintiff and appellant.
    Leslie P. Beard, of New Orleans, for defendant and appellee.
   PER CURIAM.

Defendant-appellee has petitioned for a rehearing in this matter. Plaintiff-appellant, alleging that the application is purely formal and does not point out specifically any error in the opinion and decree, as provided in Article 912 of the Code of Practice and Rule X of this court, moved for a dismissal of the application without consideration.

In the petition for rehearing, defendant complains of three errors, viz.:

“1. That the Court is in error in reversing the judgment of the District Court, particularly on questions of fact.
“2. That the Cou'rt is in error in awarding judgment to the plaintiffs in suit and especially in penalizing the defendants ■double the amount claimed.
“3. That the Court is in error (in) failing to give to defendants credit for the amount of rent due and owing by Hubert S. Sheffield, one of the plaintiffs herein.”

We cannot agree with plaintiff’s contention that the petition for rehearing does not meet the requirements of the cited article of the Code of Practice, or of our rules. C. P. art. 912 reads as follows:

“In the interval between the day on which the judgment is rende'red and that on which it becomes final, a party dissatisfied with the judgment may apply to the court for a new hearing in the cause, and for this purpose shall present a petition, in which he shall state substantially the reasons for which he thinks the judgment erroneous, and shall cite the authorities in support of his opinion.”

The pertinent part of our Rule X provides :

“* * * The application for rehearing shall be made by petition, filed within the legal delay and containing a statement of the points of law and fact upon which it ■is founded. * * * ”

We think that the petition sets forth with particularity and precision three substantial reasons why defendant believes the judgment to be erroneous, and upon which it relies for a new hearing. Moreover, the petition is accompanied by an amplifying brief. The motion to dismiss the petition for rehearing is denied.

We perceive no merit in grounds 1 and 2 of the petition, but the third assigned ground of error is serious and appears to be valid. However, rather than to grant a rehearing, we believe that justice can be done by proper amendment of our decree. An appellate court, without granting a rehearing, may correct an oversight or an error patent on the face of the record. Jaenke v. Taylor, 160 La. 109, 106 So. 711.

Defendant, in its answer, alleged that plaintiff, Hubert S. Sheffield, owed certain rent for 4309 Van Avenue, and, assuming the role of plaintiff in reconven-t-ion, prayed for judgment therefor. In the alternative, defendant alleged that should plaintiff recover, then the amount of the judgment should be offset by the rent owed to defendant by Sheffield.

We notice on page 31 of the transcript that Sheffield admitted owing defendant $162.00 (rental for the months of January, February, and March, 1945, at- $54.00 per month), which accrued after the period in which the overcharges occurred. Plaintiff’s judgment should be compensated pro tanto by the amount which Sheffield admitted he owed defendant. See Rev.Civ. Code, arts. 2207, 2208, and 2209.

It is ordered that our decree herein be amended so as to read as follows:

The judgment appealed from is reversed, insofar as it dismissed plaintiff’s demands, and it is now ordered, adjudged, and decreed that plaintiff, Hubert S. Sheffield, on his own behalf and on behalf of his ten principals, have judgment against Harry B. Rainold and Archer G. Van Denburgh, in their capacities of liquidators of Jefferson Parish Developers, Inc., for the full sum of $3,473.20 (subject, however, to a credit of $162.00, being the amount of rent due by Hubert S. Sheffield to Jefferson Parish Developers, Inc.) with legal interest from judicial demand until paid, and with twenty per cent thereon as attorney’s fees; in all other respects, the judgment appealed from is affirmed; costs of the lower court and of this court are to be borne by the liquidators.

The application for the rehearing is refused.

Decree amended; rehearing refused.


text:
    HAIR v. LEE et al.
    No. 3079.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1949.
    Rehearing Denied March 7, 1949.
    Writ of Certiorari Denied April 25, 1949.
    Jones Kimball & Owen, of Lake Charles, for appellant.
    King Anderson & Swift, of Lake Charles, for appellee.
   LeBLANC, Judge.

At about 8 o’clock on the morning of February 4, .1947, plaintiff herein, Fred Hair, was ’riding his motorcycle on Rail-" road Avenue in Lake Charles, going west. Occupying what is called a “buddy seat” with him was a young man by the name of Clarence Taylor. At the samé time the defendant, Austin W. Lee, was driving his Plymouth two-door sedan automobile on Kirkman Street, traveling north. He was alone in his car.

At the intersection between these two streets there is an off-set, on the north side of Railroad Avenue where Kirkman street narrows about 12 feet'from its width on the south side. In other words on the south side of Railroad Avenue, Kirkman Street is 35 feet wide and instead of projecting straight across Railroad Avenue, the west line on the north side of that avenue closes in approximately 12 feet narrowing the width on that side of Railroad Avenue to 23 feet. That means that a. car , traveling north on Kirkman street over the- intersection has to travel several feet in a diagonal north-easterly direction in order to get across. Railroad Avenue is 30 feet in width.

As these two vehicles were crossing the intersection there was a collision between them and the plaintiff was thrown from his motorcycle sustaining comminuted fractures of the tibia of his right leg about half way between the knee and the ankle. The doctor experienced considerable difficulty in mending the fractures and finally had to resort to an operation. Hair has instituted this suit against the defendant Austin W. Lee and his liability insurance carrier, American Mutual Liability Insurance Company, to recover damages in the total sum of $9,828.45. These include $8,-000 for pain, suffering and disability in the use of his leg; $1250 for loss of earnings-during 25 weeks and all of the medical and hospital expenses incurred in treating his injury.

’ Both of these streets apparently are of equal importance as far as traffic running-over them is concerned. However, as the city ordinance of the City of Lake Charles-directs the traffic entering Railroad Avenue from Kirkman Street to come to a full stop before proceeding across' the intersection, it would appear that to that extent, Railroad Avenue has the advantage in the matter of a right-of-way. Besides, the ordinance also provides that traffic approaching an intersection from the right, where neither street is a right-of-way street, has the right-of-way over traffic approaching from the left. Thus, it may be said that plaintiff enjoyed those advantages over the defendant in approaching this intersection.

In his petition, he charges the defendant Lee with the following acts of negligence: (1) in failing to bring his automobile to a complete stop at the intersection, as required by the city ordinance; (2) in entering and proceeding across the intersection when he, plaintiff, was about to proceed across himself in the exercise of his legal right; (3) in failing to keep a proper look-out and in ascertaining whether he could enter the intersection with safety to himself and others traveling on the street; (4) in failing to keep his automobile under proper control, and (5) in proceeding across the intersection at an illegal and excessive rate of speed, in disregard of the right-of-way, which he, plaintiff, had, thereby rendering the collision inevitable. The defendants filed a joint answer in which they deny practically all the allegations of the plaintiff’s petition and urge that the defendant Lee had preempted the intersection and thereby gained an advantage over the plaintiff ■ and that he had already reached a point past the center of Railroad Avenue when his car was struck and damaged by the motorcycle as it was being driven by the plaintiff at an excessive and illegal rate of speed. It is averred that the sole and proximate cause of the accident was the negligence of the plaintiff himself, who, as already stated, was running at an excessive speed and did not have his motorcycle under proper control. Further they charge him with failure to reduce his speed before entering the intersection and in not not keeping a proper look-out. They lastly charge him with negligence in operating a motorcycle with only one seat with two individuals riding thereon. By way of reconvention the defendant Lee then sets out the damage to his automobile amounting to the sum of $42.50 and prays for judgment in reconvention against the plaintiff.

After trial in the court below there was judgment in favor of the defendant rejecting the plaintiff’s demand and also in favor of the plaintiff rejecting the defendant’s reconventional demand. Plaintiff alone has appealed and therefore the re-conventional demand has passed out of consideration. The trial judge has filed a written opinion in the record in which the testimony is carefully analyzed and in which he gives very good reasons for holding both drivers negligent. After a careful reading of the testimony in the case we are satisfied that there has been no manifest error pointed out by the plaintiff in the decision rendered.

An abundance of authorities is cited by counsel for both sides but after all the only law involved in the case is that with respect to the duty imposed upon drivers of motor vehicles in approaching and entering intersections, especially on busy city streets such as we are concerned with in this case. The law on this point is plain and when we come to decide cases of this kind our task is simply to apply it after having determined what are the facts as they appear from the record.

. The law is that a man approaching an intersection on a right-of-way street has the right to assume that traffic approaching it from the inferior street will recognize*his advantage and yield the right-of-way to him. On the other hand it is also the law that the party on the inferior street who enters the intersection first, or ahead of the car on the right-of-way street, pre-empts the right-of-way and gains the advantage over the driver on the right-of-way street who must yield his right accordingly. The issue of fact in this case therefore is, had the defendant Lee gained that advantage over the plaintiff and did his advantage in that manner impose a greater duty on the part of the plaintiff in approaching and entering the intersection.

The trial judge held, as a fact, and there can hardly be any dispute about it, that the Plymouth automobile had already reached a point beyond the center of the intersection when it was struck by the motorcycle at the point where the rear fender joins the running board on the right hand side. The point of impact on the street was about one or two feet east of the center line in the northeast quadrant of the intersection. That indicates that the greater portion of the car, in fact more than half of it, had crossed the center line of the intersection at the time of the collision. In as much as there is an offset in the intersection the Lee car had to travel northeast in a diagonal direction, to reach the point where the impact took place.

Therefore, in considering the matter from the standpoint of the number of feet each vehicle traveled after entering the intersection, we find that the Plymouth car had covered the distance of that diagonal line which is bound to be more than 15 feet since half the width of Railroad Avenue is 15 feet, and besides, it had covered a distance of more than half its own length across the center of the intersection. We believe that 8 feet is an accurate estimate of this last distance and that 16 feet is very near the distance covered by the diagonal line to the center of the intersection.» 'We think therefore that it can conservatively be stated that the Plymouth car had traveled 24 feet in the intersection when it was hit by the motorcycle. The motorcycle, on the other hand, had only traveled some 6 or 7 feet in the intersection from the direction in which it had entered, when it struck the automobile. This distance is arrived at by taking 11 y2 feet, one-half the width of Kirkman Street on the north side of Railroad Avenue, and deducting therefrom the width of the Plymouth car, say between 4 and 5 feet. It is evident therefore that the defendant had entered the intersection first unless it be that he was going at a greater rate of speed than plaintiff, and.this, the evidence does not bear out.

Nevertheless, relying on plaintiff’s testimony that he was no more than 10 feet away from the intersection when the Plymouth car was entering it, his counsel earnestly contend that he was near enough to the intersection to assume that the driver of the Plymouth car would yield him his right of way regardless as to whether he had entered first or not. This, as urged by counsel, would bring the case within the ruling made by this court in Montgomery v. Peyronnin, La.App., 149 So. 291. However, plaintiff’s testimony on this point is not supported by that of his own witness, Miss Nona Dealey. This young lady was on the south side of Railroad Avenue, several feet west of Kirkman Street, and saw the accident. She testified that neither the car nor the motorcycle was going fast and she says that the driver of the car slowed down as he entered the intersection. He did not stop, she states, hut “slowed down — like so many other people do.” She then says that as he entered the intersection, the motorcycle was at a point which she marked on a sketch introduced in the record as evidence, and according, to the scale of the sketch, that point is some 50 to 55 feet distant from the east line of Kirkman Street on the north side of Railroad Avenue. Counsel for plaintiff insist that this was not Miss Dealey’s actual testimony but was something drawn out by suggestion of counsel for defendant on cross-examination. It is true that this young lady hesitated in stating actual measurements hut we do not think that counsel -is justified in intimating that she was unduly influenced in any. manner in locating that point on the sketch any more than she was in indicating any of the other points she marked thereon. We are satisfied that that is her testimony with regard to the distance the motorcycle was from the intersection when the Plymouth car was entering it.

That being so, the case is different from Montgomery v. Peyronnin, supra, and it is our appreciation of the law on the subject, that plaintiff, from the distance he was, should have kept his motorcycle under such control as to let the defendant cross over the intersection under the right-of-way which he had pre-empted. See Hutto et al. v. Arbour et al., La.App., 4 So.2d 84; Wilson v. New Amsterdam Casualty Co., La. App., 180 So. 870.

We conclude therefore that the trial judge was correct in holding that the defendant Lee had entered the intersection at a sufficient time ahead of the motorcycle to have obtained the advantage of preemption and that the plaintiff was con-tributorily negligent in not yielding that advantage to him. He was also correct in holding that the motorcycle must have been going faster than the car as it is shown that it skidded some 15 feet before the collision, and even so struck the automobile with considerable force. The slower speed of the car is indicated by the fact that it did not travel to any extent after the collision. The front wheels ran up the incline towards the railroad tracks, on the north side of Railroad Avenue but that was a very short distance; certainly not enough to denote excessive speed.

It is strenuously urged by counsel for plaintiff that even though the defendant Lee had pre-empted the intersection, he lost this advantage by his failure to come to a complete stop before entering the intersection. Whilst it is true that his failure in this regard, and in violation of the City ordinance, has to be considered as one of the factors in determining his negligence, we must bear in mind that what we are concerned with solely on this appeal, is the contributory negligence of the plaintiff on which the failure of the driver Lee to have brought his car to a complete stop, as required by the ordinance, hasn’t any material bearing. It was the plaintiff’s negligence in continuing into the intersection after Lee had pre-empted it and indicated that he was going to go across, that brought about the collision. In this respect the judge was correct in applying the rule ms laid down in the case of Isaac v. Frederick, La.App., 5 So.2d 176. As stated in that case, that was more or less a technical violation of the ordinance and was not a direct or producing cause of the accident. One óf the causes in this case was, as stated already, the plaintiff’s failure to yield to the defendant Lee’s car, its right of pre-emption which it had already acquired. This constituted negligence on his part and bars his recovery as decreed in the judgment appealed from.

Judgment affirmed at the costs of appellant.