text:
    BLACKWELL v. FANNALY et al.
    No. 2216.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Morrison, Sims & Phelps, of Hammond, for appellant.
    J. H. Inman, of Ponchatoula, for appel-lees.
   DORE, Judge.

In this suit plaintiff seeks damages against Marion T. Fannaly and Marion T. Fannaly, Inc., for an alleged illegal ejectment from property which he claims the right to occupy under an oral contract of lease from the defendant Fannaly and a written recorded contract of lease from one W. T. Smith. Both defendants filed exceptions of misjoinder of parties defendant. The exception, on behalf of Marion T. Fannaly, Inc., was sustained and the suit as to it was dismissed as in case of non-suit. The exception as to Marion T. Fannaly was overruled.

Upon the trial of the case, on the merits as to the remaining defendant, there was judgment in defendant's favor, dismissing plaintiff’s suit. Plaintiff has appealed. Defendant has answered the appeal praying that his former exception be maintained and that the judgment be confirmed.

This case presents throughout the record obvious errors, too numerous to mention herein, and is in fact a comedy of errors. It was carelessly tried and appealed. It was before us at a former hearing and we remanded the case for the purpose of completing the record. 200 So. 501. We again find the record incomplete, but we feel that there is sufficient evidence before us to finally dispose of the case.

Since plaintiff has not taken an appeal from the judgment dismissing his suit on the exception as to Marion T. Fannaly, Inc., that judgment is not before us for review. While defendant Fannaly again urges his exception, we are of the opinion that he has no cause to complain of any misjoinder as to the other defendant, as the other defendant has been -eliminated from the suit. He is the only defendant in the case and the only judgment under review is the one in his favor.

The plaintiff, in the latter part of 1937, orally leased for the strawberry season of 1937-1938 a small farm in the Parish of Tangipahoa from the defendant and moved on the property in the early part of January, 1938; with the understanding that all the crops thus produced and marketed from the farm were to be shipped or sold through Marion T. Fannaly, Inc., and the defendant, as rent, was to receive one-fifth of said crops. At the time this lease was made the title of the property was in the name of Willie T. Smith, but defendant held vendor’s líen and privilege notes against the property, he being the original vendor to Smith; Smith had abandoned the property and had agreed with defendant to re-transfer the farm to defendant in satisfaction of the notes; Smith was unable to do so on account of some judgments rendered against him.

Plaintiff farmed the property and complied with his contract for the crop year of 1938, and continued to reside on and farm the property without objection from the defendant for the crop year of 1938-1939, thus renewing the lease by reconduction. For some undisclosed reason, in April, 1939, plaintiff sought Smith, the record owner of the property, and obtained from him a written lease for the full year of 1939 of the property, and had this lease duly recorded in the Conveyance Records for the Parish of Tangipahoa. We are not favored with a copy of this lease. For the crop year of 1938-39, plaintiff partly' fulfilled his contract of marketing his strawberry crop with the defendant and, in fact, disregarded his former oral lease with defendant. It appears that defendant, upon obtaining the information that plaintiff had obtained such a written lease from Smith and had it recorded, together with plaintiff’s failure to fully comply with his oral contract of lease, notified plaintiff some time in June, 1939, that his oral contract of lease with him had expired and demanded possession of the premises. Plaintiff refused defendant’s demand, basing his refusal upon the fact that his lease was from Smith and not from defendant and that by virtue of his lease with Smith he was entitled to remain on the premises for the entire year 1939. Defendant, on account of the judgments against Smith and the recorded lease, some time in July (the exact date not being shown) instituted a foreclosure proceeding against Smith and had the property seized and sold at public auction at which sale Marion T. Fannaly, Inc., became the adjudicatee. We are not favored with the record of this proceeding, but base our statement on the oral evidence in this record.

It further appears from such oral evidence that defendant, in November, 1939, instructed the Sheriff to put the adjudicatee in possession of the property. In accordance with these instructions, in pursuance to Act 113 of 1906, the Clerk of the Court issued a writ of ejectment addressed to the Sheriff to put the adjudica tee in the physical possession of the property. By virtue of the said writ, in accordance with Code of Practice, Article 632, the Sheriff, on November 10, 1939, gave notice to the plaintiff to vacate the premises after three days from such notice. On November 14, 1939, plaintiff was ejected by the removal of his furniture and fixtures from the premises. This forms the basis of his action.

The plaintiff admits that he was to remain on the property until he had removed his crop, no specific time being set. He further admits that by June 1, 1939, his strawberry crop for that year had been harvested and disposed of. He further admits that he had violated his oral contract with defendant prior to and after June 1, 1939; that he regarded himself as not having any contract with the defendant after June 1, 1939. If plaintiff was illegally ejected, it necessarily must have been by the procedure taken in November, 1939,' long after the contract of lease between himself and defendant had expired. We are therefore only concerned as .to whether or not the formality of the law was complied with.

C.P. Article 632' provides that: “If three days after the sheriff shall have served a copy of this writ on the party who has been condemned to quit the estate, he shall refuse to obey the order and to go off, the sheriff shall proceed to put in full possession of the estate the party who has obtained the judgment, and shall compel the other to depart, even by breaking open the doors, if it be necessary, and by summoning the posse comitatus, if resistance be made.”

As previously stated, the writ was served on plaintiff on Friday, November 10, 1939; plaintiff had three days thereafter to vacate. November 11th was a holiday by virtue of Act 307 of 1938; the same can be said of November 12th, it being a Sunday. These two days should have been excluded. We see no reason why we should go into any extensive discussion of the reasons therefor because we base our statement upon the opinion rendered in the case of Frank v. Currie, La.App., 172 So. 843. Thus plaintiff had all of Monday, Tuesday and Wednesday, November 13, 14 and IS, within which to comply with the writ. He was ejected on Tuesday, November 14th, thus making the ejectment too soon and illegal.

Plaintiff’s evidence as to his damages is very vague and indefinite. We fail to find wherein he has definitely proved any item of damages to himself, his family or his furniture. However, we believe that he is entitled to nominal damages, which we fix at the sum of $25.

For these reasons, it is ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed; it is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff and against defendant Marion T. Fannaly in the just and full sum of $25, with 5% interest thereon from judicial demand until paid, with all costs of these proceedings.


source: Caselaw Access Project

author: BIRD, Judge ad hoc.

license: Public Domain

text:
    SIMONEAUX et al. v. GONZALES et al.
    No. 2266.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.

      Rownd & Tycer, of Hammond, Walter Lemann, of Donaldsonville, and Moyse Thibodeaux, of Baton Rouge, for appellants.
    Blum & LeBlanc and C. V. St. Amant, all of Donaldsonville, for appellees. ■
   BIRD, Judge ad hoc.

This is a suit brought by Mr. and Mrs. Noah Simoneaux for the death of their minor son, Lloyd Simoneaux, aged 20, in which the defendants are Hudgins Braud, Lester Gonzales, Sheriff of the Parish of Ascension, and American Bonding Company of Baltimore, the surety on the bond of the Sheriff.

According to the evidence, on Sunday, January 17, 1937, Lloyd Simoneaux, accompanied by his fourteen year old brother and two friends, drove from the country to the Village of Gonzales. At about 4 o’clock in the afternoon they visited a place known as “Casso’s Restaurant,” consisting of a restaurant, saloon and dance hall, located within the limits of the Village of Gonzales, where they spent some time, during which Lloyd Simoneaux seems to have remained in the portion of the build.ing containing the bar.

It seems that shortly after sundown Lloyd Simoneaux decided it was time to go home and thereupon he attempted to go into the dance hall to get his friend, Gregoire, to leave or let him have the key of the Simoneau car. Vic Mire, the manager of the establishment, refused to allow Lloyd Simoneaux to enter the dance hall, claiming that he was not properly dressed, but offered to go and get the key for him. Mire returned a few moments later and informed young Simoneaux that Gregoire had ordered one more drink and would see him in a couple of minutes. Thereupon Simoneaux apparently stated that he would just as soon be in jail as around that place. Mire then called Hudgins Braud, who was acting as town marshal or policeman, and told him that young Simoneaux wanted to go to jail. Thereupon Braud arrested Simoneaux and carried him to the village jail of Gonzales and, while Braud was unlocking the jail door, Simoneaux started to run away. Braud chased Simon-eaux and fired his pistol (so he says) to frighten Simoneaux and the bullet struck Simoneau in the back of the neck and killed him instantly. Braud testified that he shot on the ground and the bullet ricocheted, thus striking young Simoneaux. Lloyd Simoneaux’s young brother and another boy, testifying for the plaintiffs, testified that they heard Braud exclaim when Lloyd ran away, “I’ll get you, you-”, which, if true, would indicate that Braud deliberately shot at him. In any event the evidence makes it perfectly clear that the death of Simoneaux was caused by conduct on the part of Braud, which would render Braud liable for said death.

The evidence is also clear that Braud had been appointed .by the Mayor of Gonzales to act as marshal of the Village of Gonzales on the day of the shooting because of the absence of the duly elected marshal and that he was wearing a police badge of the Village of Gonzales which was worn by the marshal of that village and that he had the keys of the village jail in his possession and that he was performing the customary police duties of the town marshal in maintaining order around the dance halls within the limits of the village.

It is also shown that Hudgins Braud was a duly appointed and commissioned Deputy Sheriff in and for the Parish of Ascension.

There is no evidence to the effect that Braud had been instructed I>r the Sheriff to do police duty in the Village of Gonzales or at Casso’s Restaurant in his capacity as Deputy Sheriff, and it was not shown that he was arresting young Si-moneaux on any warrant or charge which would have caused the Sheriff of the parish to make or have made such an arrest.

The District Judge found that Braud was acting as marshal and not as Deputy Sheriff at the time that he shot Lloyd Si-moneaux.

The District Court rendered judgment in favor of the plaintiffs and against Hudgins Braud for the sum of $1,700 and dismissed the suit as to Sheriff Gonzales and his surety. From this judgment the plaintiffs took an appeal. Hudgins Braud neither appealed nor answered the appeal taken by the plaintiffs.

It will be noticed that this suit was brought by the mother and father of the deceased and that in their petition they did not negative the existence of a wife or minor children of the deceased, and the petition clearly did not contain the technical recitals to make out a cause of action on behalf of the plaintiffs.

However, although various exceptions were filed by the defendants, none was filed which could be leveled at this defect because every exception that was filed was directed particularly at some other alleged defect in the petition.

The defendants, after the exceptions had been overruled, filed answer and tried the case on the merits and made no objection to the taking of testimony, and the case came before this court in the situation above stated.

In the Court of Appeal all three defendants filed an exception to the effect that “plaintiffs have not alleged nor proven that they are entitled to a right of action in the within suit”.

Although Hudgins Braud did not appeal from the judgment rendered against him nor answer the appeal, nonetheless the Court should not consider the appeal taken against him, which could result in an increase of the judgment, with the petition not containing the recitals necessary to a right of action. However, the Court, should not dismiss the suit against Hudgins Braud because of the technical defect if we are to follow the jurisprudence as set forth in the case of Smith et ux. v. Monroe Grocery Company et al., La.App., 171 So. page 167. Where the petition manifestly alleges every fact that can be alleged, and yet a cause of action was not disclosed, no amendment should be permitted, but where, as in the instant case, it is probable that the plaintiffs can make proper proof of capacity to sue, such an amendment should always be allowed. Horrell v. Gulf, etc., Co., Inc., 15 La.App. 603, 131 So. 709. We are therefore of the opinion that the case should be remanded to permit the plaintiffs to amend their petition against Hudgins Braud and to take testimony to negative the existence of a wife or minor children of the deceased.

As to the defendants, Gonzales and American Bonding Company of Baltimore, although technically the same thing is true, nonetheless as they have, in their brief, asked that the judgment be affirmed and thereby acquiesced in the same, we can see how no good purpose could be served unless we felt that the facts of the case justified a reversal of the judgment which dismissed the suit as to Gonzales and the Bonding Company.

As said heretofore, the evidence is very clear that Hudgins Braud had been appointed to act as a substitute for the town marshal or policeman for the Village of Gonzales and was discharging those duties when he committed the act complained of. The only question is whether, because Hudgins Braud was also a deputy sheriff, the acts which he committed could be imputed to the Sheriff of the Parish.

Hudgins Braud was a resident of the Village of Gonzales and was apparently appointed in pursuance to Act No. 212 of 1918, which gives authority to the Mayor of any “incorporated village” to appoint any male citizen of the age of twenty-one years or more to act as marshal in the absence of the regular marshal. It is the contention of the plaintiffs that the act last named was repealed by Act No. 124 of 1928, which provides that any sheriff or deputy sheriff or constable of any parish or ward may act either as marshal or as tax collector of any village, city or town in the State, with the exception of the City of New Orleans, in the absence of the marshal. We are of the opinion that in any incorporated village of the State Act 212 of 1918 is also still in effect.

The evidence in the record makes it very clear that the duties of Braud as a Deputy Sheriff did not embrace that of maintaining order in the dance halls of the Village of Gonzales and that he only performed this duty when he was designated by the Mayor of Gonzales to act in the place of the town marshal and ex-officio policeman.

No duty imposed upon Braud as a Deputy Sheriff would have caused him to take young Simoneaux into custody or carry him to the village jail.

The Court of Appeal and the Supreme Court of Louisiana have both closely restricted and defined what acts on the part of a deputy sheriff can create a liability on the part of a sheriff and his surety.

In the case of Gray v. De Bretton, infra, it was alleged that the Deputy Sheriff was conveying a prisoner to the Parish jail for the Sheriff in an automobile when he negligently drove the automobile into the plaintiff, who was walking on a bridge on a public highway, causing injuries for which the plaintiff sued the Sheriff and the surety on his bond. In that case (Gray v. De Bretton, Sheriff, et al., 192 La. 628, 188 So. 722) the Court held that the Sheriff and his surety were not liable because the Deputy was not guilty of an improper discharge of his official duty as Deputy Sheriff.

The decision of the Court of Appeal was along the same line in the similar case of McVea v. Day, 6 La.App. 382.

In the case of Sanders v. Humphries et al., 143 La. 43, 78 So. 168, the Supreme Court of Louisiana dismissed a suit against the Sheriff and his surety when it was based on the allegation that Humphries was on duty as a Deputy Sheriff and, while acting as a deputy, agent, servant and employee of the Sheriff, maliciously and recklessly assaulted, shot and wounded the plaintiff without cause or provocation.

Our Supreme Court has consistently taken the position (in the case of Gray v. 'De Bretton and the other cases) that no liability attaches to a sheriff and his surety under the doctrine of respondeat superior or under the doctrines of master and servant and principal and agent for wrongful acts committed by the deputy. The wrongful act of the deputy must be strictly an act of misfeasance in office or wrongful performance of some official duty as deputy in order for the sheriff and his surety to be held.

If the law of master and servant had applied, it is clear that Sheriff De Bretton would have been held liable for the careless driving of'his deputy which injured pedestrians on the road. This is not only the jurisprudence in Louisiana but seems to have been generally accepted wherever the question has been raised.

In this connection we would attract attention to a few typical decisions of courts of other states.

The Court of Appeal of Kentucky has held in the case of Commonwealth, for Use and Benefit of Coombs, v. Vincent, Sheriff, et al., 282 Ky. 95, 137 S.W.2d 1091, 1092, decided no longer ago than February 1940, “that a sheriff and the sureties on his bond are only liable for the acts of a deputy sheriff when the latter acts officially, and that a deputy sheriff is not acting within his official capacity when he makes an arrest not authorized by law”. In that case it was held that where a deputy sheriff arrested a man for simply being drunk which was not a misdemeanor and “where deputy sheriff shot and killed person when he began running when deputy sheriff attempted to make arrest not authorized by law, sheriff and her surety were not liable for deputy’s act, since he was not acting officially”.

In the case of Graves v. Buzbee, 45 S. W.2d 392, the Court of Civil Appeal of Texas held, citing numerous authorities, that a sheriff’s liability extends to “official acts” only of his deputy and not to unauthorized and unofficial acts, among which is classed an arrest and false imprisonment by a deputy who acts without a lawful warrant or other legal authority.

In the case of Brown v. Wallis, 101 S.W. 1068, the last named Court held that “in an action against a sheriff for injuries inflicted by his deputies, proof of the existence in some form of facts warranting the exercise of authority conferred upon them is essential to recovery.”

In the light of the foregoing jurisprudence, whether the defendant Braud recklessly shot the decedent as he claims or. whether he “maliciously” shot the decedent as is claimed in the petition of the plaintiffs, it does not appear that he did so under color of his office as Deputy Sheriff or in carrying out any duty of that office, and the Courts have held that the action must be both “virtute officii” as well as “colore officii” to constitute such malfeasance as to render the Sheriff liable.

We therefore think that the suit was properly dismissed as to the defendants, Gonzales and American Bonding Company of Baltimore, and see no reason for sending the case back as to these defendants to have the petition amended or additional evidence adduced as to capacity to sue.

It is accordingly ordered, adjudged and decreed that the judgment against Hudgins Braud be set aside and the case be remanded to the trial court for further proceedings not inconsistent with this opinion, leave being granted to the plaintiffs to amend their pleadings to adduce evidence thereunder in so far as the demand against defendant, Hudgins Braud, is concerned.

It is further ordered, adjudged and decreed that the judgment dismissing the suit of plaintiffs against Lester Gonzales and American Bonding Company of Baltimore be affirmed.

It is further ordered, adjudged and decreed that the cost of this appeal be paid by the plaintiffs.

LE BLANC, J., recused.


author: OTT, Judge.

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION v. SOUTER (HEATH et al., Intervenors).
    No. 2271.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Albritton & Ware, of. Baton Rouge, for appellant.
    Wm. G. Randolph, of Baton Rouge, for appellee.
   OTT, Judge.

The plaintiff as the holder and owner of a note signed by the defendant, dated April 13, 1938, for $588.60, payable in 18 monthly installments, sues to recover the balance due on said note of $425.10, with interest thereon at the rate of 8 per cent per an-num from October 13, 1938, until paid, and 25 per cent additional on the balance due as attorney’s fees. Plaintiff also seeks to have enforced a chattel mortgage on a Chevrolet automobile executed by defendant to secure the payment of said note. The proceeding is by ordinary process, and the defendant having left the state was served through an attorney ad hoc, and only a judgment in rem for the amount of the claim is asked for as a lien and privilege against said automobile.

It is alleged that the note sued on is paraphed “ne varietur” by Elizabeth Ponder, a notary public, in and for the County of Columbia, State of Arkansas, to identify same with an act of sale and chattel mortgage acknowledged before said notary by which said act the defendant Souter purchased from the Baker Chevrolet Company of Magnolia, Arkansas, the said Chevrolet automobile and granted a chattel mortgage and vendor’s privilege thereon to secure part of the purchase price represented by said note; that said chattel mortgage was duly recorded in Webster Parish, Louisiana, where said Souter was residing at the time; that a duplicate original of said chattel mortgage was annexed to the petition and made a part thereof. It is further alleged that subsequent to the execution and recordation of said chattel mortgage, the said Souter removed the mortgaged automobile from Webster Parish to the Parish of East Baton Rouge, without the knowledge and consent of plaintiff, the holder of the mortgage note, and that the said automobile is in possession of Heath & Norwood, of Baton Rouge. Allegations necessary for obtaining a writ of sequestration were made, and the automobile was sequestered.

Heath and Norwood filed an intervention and third opposition in the suit claiming to be the owners of the seized automobile, basing their claim of ownership on a purchase from Souter in East Baton Rouge Parish on October 8, 1938. They deny that plaintiff has any lien and privilege on said automobile and attack the validity of the chattel mortgage on the following grounds: (1) the place of execution of the chattel mortgage is not given; (2) the domicile of the mortgagor,, Souter, is not given; (3) the location of the moveable property intended to be mortgaged is not given; (4) the property is not properly described so as to be identified; (S) the purported chattel mortgage is not signed by the mortgagee and vendor; and (6) the purported chattel mortgage shows on its face that it is not an authentic act, but purports to be acknowledged by one of the witnesses before a notary public in Arkansas.

After the opposition of Pleatlr & Nor-wood was filed, plaintiff filed a supplemental petition alleging that when it filed the suit, it did not have available a certified copy of the chattel mortgage referred to in the original petition; that it had since obtained from the Clerk of Court of Webster Parish a certified copy of said chattel mortgage and filed same with the supplemental petition and made it a part of the petition, the certified copy to take the place of the duplicate original filed with and made part of the original petition.

Third opponents, Heath & Norwood, excepted to this supplemental petition and moved that it be stricken from the record for the reason that the certified copy of the chattel mortgage filed with the supplemental petition contradicts, varies and changes the issues, as said copy is different from the duplicate original annexed to the original petition and made part thereof. This exception or motion was overruled by the court.

By agreement, the seized automobile was sold by the Sheriff and the proceeds deposited in court, to await a final decision by the court as to the rights of the parties thereto. The trial judge upheld the validity of the chattel mortgage, dismissed the intervention and third opposition of Heath & Norwood and ordered the proceeds of the sale of the automobile to be turned over to the plaintiff to apply on the payment of said note. Third opponents have appealed.

The trial judge was correct in overruling the motion to strike out the supplemental petition. The duplicate original of the chattel mortgage annexed to the original petition differs from the certified copy filed with the supplemental petition in only one important particular, and that is in the duplicate original the blank space for stating the domicile of the purchaser and mortgagor is not filled in, whereas in the certified copy his domicile is given as the Parish of Webster. The material parts of the chattel mortgage are the same in the duplicate original and the certified copy; viz., the date of the execution of the act, the name of the parties, the amount of the purchase price of the automobile, the amount paid in cash, the amount of the note, the number and amount of the installments, the date of maturity of the installments, the names of the witnesses and the place and manner of execution of the act. It is obvious that the discrepancies between the duplicate original and the certified copy of the chattel mortgage are the result of errors in filling out the duplicate original. This is an ordinary proceeding, and the plaintiff had a right to amend its petition, with the leave of the court, after issue was joined, as this amendment did not alter the substance of the demand, nor operate to the disadvantage of third opponents. C.P. art. 419; Wolff v. Hibernia Bank & Trust Co., 161 La. 348, 108 So. 667.

The remaining question is whether or not the chattel mortgage as shown by the certified copy was valid and binding as such on third opponents who purchased the automobile from Souter after the mortgage had been recorded in Webster Parish. The requirements for the execution of a chattel mortgage are set forth in Section 2 of Act 198 of 1.918, as amended by Act 178 of 1936, as follows:

“Every such mortgage of property mentioned in Section 1 shall be in writing, setting out a full description of such property to be mortgaged, so that the same may be identified, and also stating definitely the time when the obligation shall mature. In order to affect third persons without notice, both within the Parish where recorded and outside of the Parish where recorded, but within the- State of Louisiana, said instrument must be passed by notarial act, or by private act duly acknowledged by one of the parties thereto, or by a subscribing witness thereto, before a Notary Public, and the original or a certified copy thereof shall be recorded in the office of the Recorder of Mortgages in the Parish where the Act of mortgage is executed, and’ also at the domicile of the mortgagor; provided, further, that the right to foreclose upon said mortgage by executory process shall not be permitted unless the mortgage be by authentic act.”

A comparison of the certified copy of the chattel mortgage in this case with the above requirements shows that it complies with these requirements in all respects, unless it be in one respect which we will mention later. The mortgage is in writing, describes the automobile mortgaged about as well as it could be described by giving the kind and make of car, the model, number of cylinders, type of body, serial and motor numbers, and specifies when the obligation secured shall mature. The instrument was acknowledged by a subscribing witness before a notary public in Arkansas, and under Section 3 of Act 226 of 1920, this acknowledgment has the same effect as though it had been executed before an offiaer of this State.

The quoted section requires that the original or a certified copy of the act of mortgage in order to affect third persons must be recorded in the office of the recorder of mortgages in the parish where the act is executed and also at the domicile of the mortgagor. The act was recorded in the parish of the domicile of the mortgagor but was not recorded in the county in Arkansas where it was acknowledged by the affidavit of a subscribing witness. It is to he presumed that the instrument was executed in the county in Arkansas where this acknowledgment- was made by a subscribing witness.

It is shown by the deposition of an attorney in Arkansas that a chattel mortgage executed in that state on property to be removed immediately into another state is valid under the laws of that state without being recorded in Arkansas. It is proper to assume that Souter would remove the automobile which he purchased in Arkansas to his domicile in Webster Parish, and we are of the opinion that the recordation of the mortgage at the domicile of the mortgagor was a sufficient compliance with the above quoted section under the circumstances of this case.

We have not discussed in detail the objections outlined by third opponents to the validity of the chattel mortgage, for the reason that the certified copy met at least one of these objections, and the others were such as were not required by the quoted section of the chattel mortgage law, and if required, these requirements were complied with for the reasons we have given above.

Finding no error in the judgment appealed from, the same is hereby affirmed at the cost of third opponents in both courts.


author: LeBLANC, Judge.

text:
    JACKSON v. TAYLOR BROS. GARAGE, Inc., et al.
    No. 2278.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.

      J. Elton Huckabay, of Baton Rouge, for appellants.
    C. G. Spaht, of Baton Rouge, for appel-lee.
   LeBLANC, Judge.

Plaintiff, claiming to be the assignee of the balance due on an open account of the Arkansas Fuel Oil Company, has instituted this suit seeking to obtain judgment against the defendants, Taylor Brothers Garage, Inc., Thomas H. Taylor and J. Charles Taylor in solido. He was formerly the local agent in East Baton Rouge Parish of the Arkansas Fuel Oil Company and in his capacity as such had sold, between the months of April and August, 1937, to Taylor Brothers Garage, at that time a commercial partnership composed of Thomas H. and J. Charles Taylor, certain products of the Arkansas Fuel Oil Company amounting to the sum of $349.65, on which they had paid $100 leaving a balance of $249.65, the amount of the demand herein.

In his petition plaintiff alleges that on January 14, 1939, the two partners formed and organized the corporation known as Taylor Brothers' Garage, Inc. which took over the assets of the partnership and became liable for its debts. He accordingly prayed for judgment against the corporation as well as the former partners, in soli-do, as has just been stated. An itemized statement of the account is annexed to his petition and on its face there appears the assignment to plaintiff of the balance due on the same and on which he prosecutes his demand.

In their answer the defendants admit all the allegations of plaintiff’s petition relating to the sale of merchandise to Taylor Brothers Garage and the assignment to the plaintiff by the Arkansas Fuel Oil Company of the balance due on the open account, but they deny any indebtedness to plaintiff for the reason, as set out by them in a recon-ventional demand, that he is their debtor on a certain promissory note in the sum of $872.52 bearing interest from September 3, 1937, and stipulating 15% additional as attorneys’ fees, subject to a credit of $249.65. They alleged that they were the holders and owners, in due course, of the said note which was payable in eighteen monthly installments which had all matured under a stipulation of the note itself that failure to pay any one of the said installments would ipso facto make them all due and payable. They averred that the said note had been lost, mislaid or destroyed and could not be found but that the same had not been sold, pledged or negotiated by them and that it was their property without reservation. They further alleged that they held the note in due course at the time the account sued on by plaintiff was assigned to him by the Arkansas Fuel Oil Company and that therefore the accounts between them were equally liquidated and demandable, and that accordingly compensation and set-off had taken place by operation of law, all of which they specially pleaded in bar of plaintiff’s demand.

There was judgment below in favor of the plaintiff and against the defendants, as prayed for and this appeal has been taken and perfected.

■ As between parties litigant living in the same parish, in order to entitle the defendant to institute a demand in reconvention, “it is required that such demand, though different from the main action, be, nevertheless, necessarily connected with and incidental to the same.” Code of Practice Article 375. All the parties to the present suit reside in the Parish of East Baton Rouge and that requirement of the law must appear if the reconventional demand of the defendants is to be considered.

The promissory note on which the reconventional demand is predicated is one which was given by plaintiff in representation of the deferred payments due on the purchase price of a G. M. A. C. truck bought by him from Taylor Brothers Garage. We are unable to see what connection the giving of that note could have with an open account covering the sale of petroleum and other products, on which the main action is based and none has been shown. Nor, in our opinion, is one of the alleged obligations incidental to the other. Clearly, the requirements of the article of the Code of Practice just quoted are not met in such a situation as this and the reconventional demand cannot be entertained. It remains therefore to be seen whether the defendants have supported their plea of compensation, assuming that the plea has properly been made.

Article 2207 of the Revised Civil Code provides that: “When two persons .are indebted to each other, there takes place between them a compensation that extinguishes both the debts, in the manner and cases hereafter expressed.” Under Article 2208 it is further provided that compensation takes place by mere operation of law and that “the two debts are reciprocally extinguished, as soon as they exist simultaneously, to the amount of their respective sums.” By the terms of Article 2209, of the Revised Civil Code, in order for compensation to take place, the two debts must have equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, “which are equally liquidated and demandable.” The very plea of course admits the debt due by the one who makes it, the theory on which it is based being that his debt has become extinguished by the obligation of the other party to him.

Under the pleadings presented in this case it appears that both plaintiff and defendants are indebted to each other on obligations having for their object a sum of money and as defendants allege that they were the holders and owners of -the note they have reconvened on at the time plaintiff became the assignee of the open account he sued on, it would appear also that both debts, were equally liquidated and de-mandable. The .vital issue which arises therefore is whether or not defendants have supported their plea by proper and. sufficient proof. The plea of compensation being a special defense, the burden was on them to do so.

As already stated the note on which the reconventional demand is predicated was given on the purchase price of a motor truck bought by plaintiff from Taylor Brothers Garage. The date of that sale was August 3, 1937, and the note was executed on the same day. It was secured by vendor’s lien and mortgage on the truck and paraphed for identification with the act of sale by the Notary before whom the same was executed. According to the schedule of payments the first installment of $48.36 was due and payable one month after date or on September 3, 1937. Plaintiff defaulted in that payment and that ipso facto matured all remaining installments. The note at that time was held by a finance ■company in Dallas, Texas, known as Yellow Manufacturing Acceptance Corporation. Their representative in Baton Rouge was R. W. Hitchings and by agreement with him and to which Thomas H. Taylor one of the defendants consented, the truck was repossessed by the finance company which obtained a written release from the plaintiff of any and all claims, demands or causes of actions whatsoever rising out of that transaction.

The defendants later sold the truck to another party and as they had to, they paid the finance company and secured the plaintiff’s note. Certainly they must have received as a consideration themselves, the purchase price paid by the party to whom the truck was resold and if plaintiff owed them anything it could not have been for the full amount of the note as is now demanded by them. They seem to concede that their claim included the losses sustained by them in the resale of the truck as well as some claims due on other repair bills. Mr. Thomas H. Taylor, their only witness, says that he “figured it ran around five or six hundred dollars.” He seems unable to give any specific information concerning any particular items which made up such an account. He does mention something about a set of tires which he-says were sold by the plaintiff for their account and the proceeds never having been remitted by him. He also mentions the amount appearing in the act of sale of the truck as the cash payment made thereon but which in reality was never paid. How-' ever, as to these and all other items of indebtedness, plaintiff testified that they had all been settled in full .when he turned over to the defendants a Chevrolet coach automobile during the year 1938. His testimony on this point is apparently supported by a receipt produced by him and which is signed by Taylor Brothers Garage through their authorized representative. The receipt is for the sum of $473.49 and on its face is shown to be “credit for Chev. (Chevrolet) taken to clear all accounts that he (John C. Jackson) was responsible for aggregating $473.49 in the year 1937.”

Defendants were unable to produce the note on which they base their plea as well as their ledger and other office accounts and records for the year 1937. These, they claim, have all been lost or mislaid and cannot be found. The explanation concerning their loss is not quite as .satisfactory as we think it should be and this, in our opinion tends to further weaken their side of the case.

From the testimony as a whole it appears therefore that the debt which the defendants have pleaded in compensation is one which has been fully settled by plaintiff without taking into account the debt on which he is presently suing them, as a result of which it follows that he was entitled to the judgment rendered in his favor in the district court.

Judgment affirmed at the costs of the defendants, appellants herein.


text:
    LEAR v. WOODMEN OF THE WORLD LIFE INS. SOC.
    No. 2261.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Writ of Error Refused Jan. 5, 1942.
    Haas & Haas, of Opelousas, for appellant.
    Sidney A. Marchand and Walter Lemann, both of Donaldsonville, for appellee.
   OTT, Judge.

The suit is to recover on a beneficiary certificate for $1,000, issued by the Sovereign Camp of the Woodmen of the World (the name of which was subsequently changed to the Woodmen of the World Life Insurance Society, hereafter called the Society) on the life of Glavin Allen Lear, son of the plaintiff. The certificate was issued on January 25, 1930, and the insured died on March 9, 1938. The Society refuses payment on the ground that the certificate had become null and void at the time of the death of the insured for non-payment of the premiums necessary to keep the certificate in force.

The case was first submitted on the face of the pleadings, and a judgment was rendered in favor of the plaintiff against the Society for $923.88, the face of the certificate, less a loan thereon, with six per cent per annum on the amount from May 9, 1938 until paid. An appeal was taken to this court by the Society and the judgment was reversed and the case remanded for further proceedings. The principal issues in the case are stated in our former opinion. See 191 So. 739.

On the remand of the case, evidence was introduced and the case submitted to the trial judge, who again rendered a judgment in favor of the plaintiff and against the Society in the same amount as in his former judgment. The Society has again appealed.

The certificate states on its face that it is a “Twenty-Payment Certificate” and recites that upon satisfactory proof of the death of said Glavin Allen Lear, the Society will pay to the plaintiff as beneficiary the sum of one thousand dollars. The certificate contains the following paragraph on the first page thereof:

“This certificate is issued and accepted with the express agreement that the provisions and benefits contained on this and the three succeeding pages hereof, and in any authenticated riders attached hereto, form a part of this contract as fully as if recited over the signatures hereto affixed.”

The premium necessary to keep the certificate in force is fixed at $2.09 per month, ■or $24.13 per annum. On page 2 of the certificate is the following “Automatic Premium Loan” clause:

“After thirty-six monthly payments on this certificate shall haye been paid, if any subsequent monthly payment be not paid on or before its due date, and if the member has not, prior to such due date, selected one •of the options available under the non-forfeiture provisions of this certificate, the Association will, without any action on the •part of the member, advance as a loan to the said member the amount of the monthly payments required to maintain this certificate in force from month to month' until such time as the accumulated loans, together with compound interest thereon at the rate -of five per cent per annum, and any other indebtedness hereon to the Association, -equal the cash value hereof at the date of ■default in the payment of the monthly payments. When the said cash value has been •consumed in loans advanced and interest thereon, then this certificate shall become null and void; * * * ”

The last monthly premium paid by the insured was for the month of January, 1937, and the certificate would have become null and void on February 1st but for the above quoted automatic loan agreement by which the Society had agreed to keep the certificate in force so long as the cash reserve would pay the monthly premiums. On the third page of the certificate there is attached a printed slip containing a table of cash and loan values and paid up and extended insurance. At the bottom of this slip are the printed words, “Twenty-Payment Life, $1000 — age 16.”

So far we have mentioned some of the principal provisions contained in the certificate apparently used by the Society for regular twenty pay life insurance and which is simple and easily understood. But to this certificate are attached two riders which bring about this law suit, one of these riders providing for total disability benefits and waiver of premiums, and the other providing for double indemnity in case of death by accidental means. The first of these riders (which we will call the disability rider) provides that if the member before reaching the age of 60 becomes totally and permanently disabled while the certificate is in full force and effect and “no payment as required from the member is in default” the Society agreed to pay him certain monthly benefits and waive the payment of premiums. These benefits do not apply in case of paid up or extended insurance granted under the non-forfeiture provisions of the certificate and any disability benefit reserve shall not be included in computing any such insurance. ' The annual premium for these disability benefits is $2.37, which amount is included in the annual premium mentioned on the face of the certificate, but the member could terminate these benefits at any time by giving notice in which event the annual premium on the certificate would be reduced accordingly. In no event could these benefits continue after the member reached 60 years of age.

The other rider provides for the payment of double the amount of the certificate in case of accidental death of the member, and the rider provides on its face that this benefit shall automatically terminate upon the default in the payment of any premium, when the member reaches 60 years of age, or when the premium paying period of the certificate has been completed (in this case after 20 years at which time Lear would have been only 36 years of age) ; likewise the member could terminate this benefit at any time by giving notice and in that event the amount of the extra premium of $1.75 per annum charged for this benefit would be deducted from the total premium mentioned in the certificate.

On February 1, 1937, the date on which the member was in default, the cash reserve on the certificate as shown on the printed sheet designated as twenty-pay life above mentioned was $77.80. The Society took this reserve and in arriving at the balance to be used in paying the premiums deducted therefrom a loan against the certificate with interest thereon to February 1, 1937, the date of the default, which amounted to $50.-79, thus leaving the sum of $27.01 to be used in paying premiums on the certificate under the automatic loan agreement. This balance was applied by the Society to pay the monthly premiums of $2.09, which included the premiums to keep in effect the two riders for disability and double indemnity, for eleven months, that is for February through December, 1937, inclusive, plus interest on the loan and the advances for the eleven months premiums, making a total of $25.83. Thus on January 1, 1938, according to the Society, the balance of $27.01 was absorbed with the exception of $1.18 which was not enough to pay a monthly premium, and therefore the certificate lapsed and became null and void on February 1, 1938, more than a month before the insured died.

Plaintiff contends that the Society had no right to use the reserve to pay the premiums to keep the two riders in effect as they terminated when the member failed to pay the premiums thereon as provided in the riders themselves; that the automatic loan agreement only contemplated keeping the term insurance in force and not the separate and divisible benefits provided for in the two riders. It is admitted that the monthly payment of $2.09 included $1.73 for the life certificate, 21 cents for the disability benefits and 15 cents for double indemnity from which it is obvious that, if the Society only had a right to use the balance of the reserve to keep the life certificate in force, the amount would have been sufficient to pay the premiums for this purpose beyond tire date of the member’s death.

This suit arises out of two different interpretations placed on the automatic loan agreement and the meaning of the clauses above referred to in the two riders. Our study of the question leads us to the conclusion that the construction placed upon these provisions by the plaintiff and that placed upon them by the Society are both reasonable and plausible. We will first give our reasons for believing that the interpretation placed upon these provisions by the Society is reasonable and plausible and then follow these reasons by giving those which support the interpretation placed upon these provisions by the plaintiff.

The certificate, as well as the two riders attached thereto, states that these riders form a part of the contract. The monthly premium necessary to keep the certificate in force includes the life insurance of $1,000 and the disability, benefits and double indemnity provided for in the riders. The Society obligated itself under the automatic premium loan agreement to advance for the benefit of the member a sufficient amount out of the reserve to keep the certificate in force until this reserve was exhausted. It is reasonable to assume that when the Society agreed to advance the monthly payments from this reserve to keep the certificate in force after default by the member, the certificate included the benefits provided for in the two riders attached to the certificate and made part thereof; that the Society would not have discharged its obligation to the member under this premium loan agreement had it not also kept these benefits provided for in the riders in full force and effect.

Among the decisions cited by the Society in support of its interpretation placed upon these provisions in the certificate and riders attached thereto are the following: Croslen v. Grand Lodge, 29 Cal.App.2d 710, 85 P.2d 485; Hay v. Connecticut Mutual Life Insurance Co., 176 Tenn. 48, 138 S.W.2d 413, 128 A.L.R. 548; Shamblin v. Southland Life Insurance Co., Tex.Civ.App., 145 S.W.2d 272.

In our opinion these cases are not similar to the situation presented in the present case. In the Croslen case, the by-laws of the Order provided that when a member holding a certificate defaulted in his payments, the Order would automatically use the reserve due the member to pay the premiums in order to keep the life insurance, disability benefits and double indemnity insurance in effect so long as the reserve lasted. The certificate issued to Cros-len contained a provision that the member could at any time terminate the disability benefits by ceasing to pay rates and assessments therefor without affecting the beneficiary certificate. It was contended by plaintiff in that case that the Order had no right to pay the premiums necessary to keep the disability benefits in effect out of the reserve after default was made by the member, in which cape the reserve would have been sufficient to keep the life certificate in effect to the date of the member’s death. The court correctly held that, under the bylaws of the Order, it was required to use the reserve in paying the premiums on the disability insurance as well as the life insurance features of the certificate. There is no claim made here that the Constitution, Laws and By-Laws of the defendant Society contained any such provision requiring it to pay the premiums for disability and double indemnity insurance out of the reserve.

In the Hay case, the policy contained a rider whereby the company agreed to pay double indemnity in case of accidental death while the policy tvas in full force and effect, and it was further provided that the amount payable as double indemnity under the rider was to be added to and payable with the proceeds of the policy. There was a clause in the policy for extended insurance from the reserve, and the court held that, as the company kept the policy .in force after default, this had the effect of keeping the double indemnity rider in effect as it provided for double indemnity so long as the policy was in force; that if the company had intended to exclude the double indemnity while the policy was running on the extended insurance, it should have said so. It can equally be said in the present case that if the Society intended to keep these two riders in force out of the reserve, it could have inserted a clause in them to that effect.

In the case of Shamblin, the provisions in the policy and riders were not similar to the provisions in the certificate and riders in the present case. For instance, the disability rider provided that the benefits therein contained should not be payable if at the date of the disability the policy should be in force under any non-forfeiture provision (except automatic premium loan provision, if any, and there was such a provision). Moreover, it was shown in that case that the company notified the insured periodically as these payments were made out of the reserve, and no protest was made thereto by him.

Passing now to the reasons .supporting plaintiff’s interpretation of the contract, we observe first that, while neither the certificate nor riders so state, nor does the evidence show, it is apparent that in computing the reserve set forth on the sheet attached to the life certificate, the additional premiums on account of the two riders were not then taken into consideration. We say this for several reasons: The printed table itself indicates it is for a twenty payment life policy of one thousand dollars at age 16. The benefits covered in these riders may terminate under several conditions and yet not affect the life policy, and apparently would not affect the cash reserve of the policy. This is obvious from the fact that the member could terminate these riders any time he saw fit and not affect his life insurance or the cash reserve, and, indeed, these riders would have lapsed themselves after this member had paid twenty payments and the certificate had thus become a paid up life certificate for its face amount. Assuredly it could not be said that the premiums went to increase the cash reserve under this situation. In fact, it is obvious that the amount of extra premiums paid for these extra benefits are intended to cover the extra risk taken by the Society in giving this extra protection.

While the riders are a part of the entire contract, the contract is composed of three separate and divisible obligations, each based on a separate and distinct premium chqrge. Before the riders were attached (and they were attached when the certificate was issued), the life certificate with the automatic premium loan clause and the cash reserve as fixed in the attached table was a complete and distinct contract in itself. The riders are each supplementary and separate agreements attached to and made part ,of the life certificate. Under Section 63 of the Constitution, Laws and By-Laws of the Society, a beneficiary certificate will automatically lapse if the member fails to pay his dues, unless otherwise provided in the certificate. The fact that this section refers to life certificates, and not to supplementary agreements, is indicated from the fact that in case of the lapse of a beneficiary certificate for non-payment of dues the amount already paid is to be retained by the Society to pay his proportionate cost of doing business and for the cost of the protection furnished him on' his life before his default.

So it appears reasonable to conclude that the automatic premium loan clause has reference to keeping in force the beneficiary certificate providing life insurance by using the reserve accumulated from premiums paid for this insurance. We must assume that every word and sentence placed in these riders were intended to have some effect. That being true, why did the Society state in one rider that the disability benefits would be made on condition that no payment as required from the member was in default, and in the other that the double indemnity provision would automatically terminate upon default in the payment of any premium ? If it was intended that these benefits were to be continued after the member defaulted in his payments by using part of the reserve on the certificate, it seems that a proper clause to that effect would have been inserted in each rider.

The Society wrote the certificate and the attached riders, and whatever uncertainty or ambiguity appears therein must be construed against it. The Society had the duty of making its agreements reasonably clear and free from two equally reasonable constructions. In writing its agreement to use the reserve belonging to the member to keep the certificate in force until the reserve 'was exhausted after the member defaulted, it would have been a very simple matter to add to its agreement to use the reserve to keep the certificate in force an additional clause which would include all the benefits contained in riders attached to the certificate. Or to have inserted in the riders provisions to the effect that they would be extended by using the reserve on the certificate in case the member defaulted in his payments.

Where the terms of an insurance policy are capable of two interpretations, equally reasonable, the construction which will give effect to the policy rather than cause its forfeiture will be adopted. Corporation of Roman Catholic Church v. Royal Insurance Co., Ltd., 158 La. 601, 104 So. 383. The least that can be said of the construction placed on the certificate and attached riders in this case by the plaintiff to the effect that the Society was under the obligation of using the cash reserve to keep the life insurance in force is equally as reasonable and plausible as the contention of the Society that it had a right to use this reserve to keep the benefits provided for in the riders in force as well as the life insurance feature. Under this situation, we consider it our duty to follow the principle of law above stated and adopt that construction which will give effect to the contract rather than nullify it.

The trial court allowed six per cent per annum on the amount due under the policy. Act 17 of 1920 requires all life insurance companies doing business in this state to pay all death claims within sixty days from receipt of proof of death and in case they fail to do so without just cause, the policy shall bear six per cent per annum interest from the date of receipt of proof of death until paid. The defendant Society is not a life insurance company but a fraternal benefit society authorized to do business in this state under the provisions of Act 256 of 1912, Section 4 of which exempts the Society from laws applicable to insurance companies. The interest rate should be five instead of six per cent per annum.

For the reasons assigned, it is ordered that the judgment appealed from be and the same is hereby amended so as to change the rate of interest on the amount of the judgment from six per cent per annum to five per cent per annum, and as thus amended, the judgment is affirmed; appellee to pay the cost of the appeal, and the appellant to pay all other cost.


author: DORE, Judge.

text:
    CRAWFORD v. MAGNOLIA.
    No. 2265.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Writ of Error Refused Jan. 5, 1942.

      Durrett & Hardin, of Baton Rouge, for appellant.
    Roland C. Kizer and Wade H. Pleaton, both of Baton Rouge, for appellee.
   DORE, Judge.

In this suit plaintiff is seeking to recover damages which she claims to have suffered from an injury to her back caused from a fall which she sustained by stepping on the back porch steps of a house which her husband was renting from the defendant. She claims that the steps were rotten and decayed and gave way and that the defendant and his agent knew of such defective condition and failed to repair the same.

There were exceptions filed in the lower court, which were overruled, but are not urged in this Court. It becomes unnecessary for us to discuss or pass upon these exceptions, as we consider that they have been abandoned.

In answer the defendant admitted that he was the owner and lessor of the premises and that plaintiff was the wife of the lessee, but denied that the steps were defective and that she had suffered an accident and injury as she claimed. In further defense, the defendant sets out that plaintiff’s husband had failed to pay the rental for three months and had been notified to vacate the premises, without avail, and that plaintiff or her husband had failed to notify him or his agent of the' defects and also of the injury which she claims to have sustained.

Upon these issues the case was tried. The lower court rendered judgment in favor of the defendant, rejecting plaintiff’s demand. Plaintiff has appealed.

In so far as the defendant’s contention that the plaintiff’s husband had failed to pay the rent and had been notified to vacate the premises prior to the alleged accident, we find no merit. While the evidence shows that plaintiff’s husband was not diligent in the payment of his rent when due, yet the evidence shows that from time to time the defendant accepted such payments without complaint, thereby acquiescing in the indulgence of plaintiff’s husband in so doing. It was only after this alleged accident and the suit was filed that such a defense came into the mind of the defendant. In other words, it is merely an afterthought, and so was the suit thereafter filed for the collection of the past-due rent. Plaintiff’s husband, after being sued for the past-due rent, readily paid the same.

The evidence clearly shows that one side of the steps was loose, sloping towards the other end, for some period of time; that the steps were in a rotten and defective ■condition and that the plaintiff fell as she was going from the back porch of the house to the yard, by the breaking loose of the steps.

Upon these facts the trial judge found that the defendant had not been notified of the defective condition of the steps or that he had had any knowledge of their unsafe condition and that therefore plaintiff could not recover under Article 670 or 2322 of the Civil Code. He also held, in view of the decision of Duplain v. Wiltz, La.App., 194 So. 60, that she could not recover under Article 2695.

We feel it unnecessary to discuss plaintiff’s right of recovery under Article 670 or 2322 as we feel that her right of recovery is under Article 2695. In the case of Duplain v. Wiltz, supra, the lessor was not the owner of the building. This case was decided by the Orleans Circuit Court of Appeal. That court recently hád under consideration a case wherein the wife was suing the lessor and owner of the premises for damages due to an injury which she received when the steps gave way with her, practically the same case as presented to us. In that case the defendants relied on the case of Duplain v. Wiltz. That court held that its decision was only authority for such cases where the lessor was not the owner of the premises, and not where the lessor was both lessor and the owner, and that the case of Duplain v. Wiltz was not apposite to the case under consideration. See Hughes v. Abate, 2 So.2d 68. We also are of the opinion, for the same reason, that the case of Duplain v. Wiltz is not applicable to the case at bar.

This Court has had under consideration the liability of the owner as lessor of premises to the wife of the lessee. We held that Article 2695 applied. In the case of Landry v. Le Bleu, 172 So. 19, dealing with defective steps such as the one under consideration, we expressed ourselves to the effect that the wife need only prove two things: First, that she fell on the steps of the rented house, and that this fall was caused by some defects in the steps. Second, that she was injured by the fall, and if so, the extent of her injury. This decision is supported by the decisions of Schoppel v. Daly, 112 La. 201, 36 So. 322; Wise v. Lavigne, 138 La. 218, 70 So. 103, and Breen et ux. v. Walters, 150 La. 578, 91 So. 50, being three decisions of our Supreme Court. See, also, the case of Fontenot v. Angel, 2 So.2d 475, recently decided by this Court.

The reason for our conclusion is that the husband owes to the wife and his family the duty of providing them with a home, and when he so contracts for this home, he contracts not only for himself, but also for his wife and his family. The wife and members of his family have an interest in the contract of lease in the form, you might say, of a quasi contract and a stipulation pour autri. In the face of the duties owed by the head of the house, and the mutual duties owed by the members of his family, we do not see how we can reasonably hold that the wife and members of his family must be placed in the position of third persons in so far as the rights of recovery under Article 2695 are concerned.

Moreover, it is noted that under our system of community property the wife has a vested interest in the community. In the instant case there existed such a community. As the husband entered into this contract of lease with the defendant, the lease contract became an asset of the community, and the wife can be considered as a colessee of the premises.

We must hold, and do hold, that this article applies not only to the husband, but also extends to the wife and members of his family.

Under our holding in the case of Landry v. Le Bleu, supra, plaintiff has satisfactorily proved that she and her husband were occupying the house under a lease from the defendant as owner; that she fell from the steps of the rented house because of the collapse of the steps caused by the decay of the rafters holding the steps and that she suffered some injury because of this fall.

As to the extent of her injuries, the evidence is somewhat vague and indefinite, but is sufficient to show some sufferings. We have the testimony of Dr. J. W. Watson that within a few days after the fall he had occasion to treat the plaintiff for soreness in the lower back. To corroborate this, plaintiff and her husband also testified to the same effect. We also have the testimony of a neighbor of plaintiff and the testimony of a grocery clerk. Under these circumstances we believe that a judgment of $250 is sufficient to compensate the plaintiff for sufferings.

For these reasons, it is ordered that the judgment appealed from be reversed and set aside and that there now be judgment in favor of the plaintiff and against the defendant in the full and just sum of $250, with 5% interest thereon, from judicial demand until paid, together with all costs.


text:
    WASHINGTON v. HOLMES & BARNES, Limited, et al.
    No. 2275.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Fred S. LeBlanc, Fred G. Benton, and Carlos G. Spaht, all of Baton Rouge, for appellant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellee.
   OTT, Judge.

Plaintiff was injured on December 9, 1938, while driving a truck and making deliveries for the defendant wholesale company. The injury resulted when the truck which he was driving on one of his delivery trips turned over, pinning him under some part of the truck and causing a com-minuted fracture of the humerus of his left arm, with detached fragments of the bone at the site of the fracture; also a comminuted fracture of the radius of the left arm which extended down into the wrist.

Plaintiff was paid compensation by the insurance carrier of the defendant on the basis of 65% of his weekly wage of $11 from the date of his injury for a period of 27 weeks, after which period he was discharged by defendants’ physician and went back to work for the defendant company and received the same wages as he was receiving at the time of the injury. He was discharged by the defendant on September 16, 1939, and this suit was filed on November 14th following.

On July 6, 1939, some two or three weeks after he had been discharged by defendants’ physician- as able to return to work, and after he had resumed his job with defendant company, he and his employer and its insurance carrier filed a joint petition for a lump sum settlement on the basis of the payment by the defendant through its insurance carrier, Great American Indemnity Company, of $248.82, representing compensation on the basis of a 20% permanent disability of his left arm for a period of 173 weeks. In this joint petition and the annexed agreement attached thereto between the parties it is stated that the disability to plaintiffs left arm is fixed at 20%; that his weekly wages were $11; that the insurer had paid 27 weeks of compensation; that on the basis of 200 weeks allowed by law for the loss of an arm, the defendants were due plaintiff 20% of 65% of his weekly wage for the remaining period of 173 weeks, and that plaintiff agreed to accept and defendants agreed to pay* the sum of $248.82 in full settlement without discount of the balance due for compensation on the above basis. In addition defendants were to pay all hospital and medical expenses amounting to $497.91. This joint petition was presented to the court and the proposed settlement was approved by a judgment and the amounts paid plaintiff in line with the agreed settlement.

This suit is to set aside the said lump sum settlement and recover compensation for total permanent disability on the basis of $13.25 a week instead of $11 a week. Plaintiff asks for judgment against his employer and its insurer in the sum of $4,725.-63, being the amount of compensation due him, plus a penalty of 50%, and less the amount already paid him.

The defendants set up the validity of the lump sum settlement, deny that plaintiff was totally and permanently disabled and deny that they owe him any further compensation. The trial judge dismissed plaintiff's suit, from which judgment of dismissal he has taken this appeal.

It is alleged that the lump sum settlement is invalid for the reason that plaintiff's claim was discounted at a greater rate of interest than eight per cent per annum, contrary to subsection 9 of Section 8 of Act 20 of 1914, as amended by Act 242 of 1928, and for that reason the defendants have subjected themselves to the payment of one and one half times the compensation that would- have been due had the settlement not been made as provided in said subsection. The reasons given for setting aside the settlement are: That his wages were $13.25 per week and not $11 per week; that he suffered total and permanent disability and not merely a 20% disability of the use of the left hand as set forth in the lump sum settlement; that the settlement was fraudulent in that he was informed by the defendants that he was getting the full amount allowed him by law, and they agreed to keep him employed at the same wages he was earning when injured; that this was not done, but he’ was discharged on September 16, 1939, because of his inability to discharge his duties properly on account of the condition of his arm.

Both plaintiff and defendants take the position that the settlement was a lump sum settlement under the above mentioned subsection and not a compromise agreement under Section 17 of said Act 20 of 1914, as amended, for the reason that there was no dispute between the parties as to the nature and extent of the injury to plaintiff's arm. However, the fact that plaintiff is now claiming that the settlement was made on a wrong wage basis and on an incorrect fixing of the nature and duration of the disability indicates that there was room for dispute between the parties on these points. But as both parties now take the position that the settlement was made on a lump sum basis, it is not necessary for the settlement to be set aside in order for the plaintiff to recover further compensation if he has proved that the nature of his injury and resulting disability justify awarding additional compensation. Taylor v. Lock, Moore & Co., Ltd., 164 La. 577, 114 So. 163; Childers v. Roy O. Martin Lumber Co., La.App., 171 So. 484; Reid v. J. P. Florio & Co., Inc., et al., La.App., 172 So. 572.

It is proper to state here that there is no evidence of fraud on the part of any one in the confection of the settlement approved by the court. All that plaintiff himself claims on this point is that he was told by an official of the wholesale company before the settlement was made that his job was there for him as soon as he was able to take it back. It is conceivable that plaintiff did expect to go back to work on his old job and did go back and work at the same wages for some three months. There is no evidence to indicate that plaintiff was promised a job for an indefinite time, regardless of the nature of his work.

The question then arises as to whether or not plaintiff has proved that by reason of the injury he is either partially or totally permanently disabled to perform work similar to that which he was performing at the time of the injury. We agree with the trial judge that the testimony does not show that he is totally and permanently disabled, but it does show that there is some slight impairment in his ability to perform the type of work in which he was engaged. All the medical testimony shows that while the fracture in his left arm had healed, yet there is an overlapping of some of the bone, with an angulation and slight impairment of the movement in the elbow and wrist. There is also some nerve involvement affecting the grip of the little and ring fingers of the left hand which somewhat impairs the use of the fingers in handling objects with the left hand. Practically all the doctors agree that there is a permanent impairment in the use of the left hand, the disability in the use of this hand being about 20%.

Dr. McHugh, produced by the defendants, testified that, in his opinion, plaintiff’s ability to do manual labor is impaired to the extent of 20%. Dr. Robins, who treated plaintiff and testified for defendants, was of the opinion that plaintiff’s left arm was disabled permanently to the extent of about 20% and that this would affect his capacity to work from 8 to 10%. Other doctors admit that there is an impairment to some extent in his ability to do manual labor, such as handling boxes, loading trucks, and doing other things of a similar nature requiring the use of both hands. The fact that plaintiff is not able to do the same type of work which he was doing before being injured is shown by the fact that the defendant, his employer, admitted that he was discharged for failing to do his work properly; that he slowed down and was not efficient. Plaintiff himself says that he could drive the truck, load and unload the merchandise, but that it took him longer to do the work than it did before he was injured.

We are of the opinion that the disability to plaintiff’s left arm permanently affects his capacity to do manual labor, the only kind of work he is fitted to do and which he was doing when injured. He is not totally disabled from doing this kind of work as is shown by the fact tha-t he admits that he can drive a delivery truck, load and unload merchandise, but that it takes him longer to do the same amount of work •than it did before he was injured. He was passed for work at the Solvay Process ■Company by Dr. McHugh after his injury and worked for that company irregularly for several weeks at jobs requiring rather difficult manual labor and the use of both hands.

We think the permanent disability of 20% to do manual labor fixed by Dr. Mc-Hugh is fair and borne out by the other evidence in the record. It is true that modern industry is not looking for 75, 80 or 90% men, but where an employee is able to do a substantial part of his usual work after an injury, we do not think it is either the spirit or purpose of the compensation law to permit him to draw 65% of his wages for a period which might extend to 400 weeks and at the same time earfi practically the same wages that he was able to earn before the injury.

The trial judge also found that plaintiff has a partial permanent disability, for he says: “As I see this case plaintiff’s injury produced only a partial disability which I believe is permanent and that disability consists of a 20% loss of the use of his arm. It may be that by reason of the injury^ there is a corresponding general disability of 20%, but even so, I do not think he was entitled to compensation as for total disability.”

We are aware of the fact that there are numerous cases holding that where an injury to a member of the body permanently disables an employee from doing the substantial and customary duties connected with his employment, he is entitled to compensation for total permanent disability under paragraph (b) subsection 1 of Section 8 of Act 20 of 1914, as amended, rather than under paragraph (d) providing for compensation for the loss of the member, or the loss or impairment in the use of a member. Among the most pertinent cases on this point are: Barr v. Davis Bros. Lbr. Co., Ltd., 183 La. 1013, 165 So. 185; Schneider v. Travelers Ins. Co. et al., La.App., 172 So. 580; Vaughn v. Solvay Process Co., La.App., 178 So. 241; and Stieffel v. Valentine Sugars, Inc., et al., 188 La. 1091, 179 So. 6. But in all these cases it was found as a fact that the injury to the member rendered the employee totally and permanently disabled from doing in a substantial and customary way the kind of work for which he was fitted by experience and training.

Paragraph (c) of the above mentioned subsection of the Compensation Act provides for compensation for an injury producing partial disability to do work of a reasonable character at sixty five per cent of the difference between the wages at the time of injury and wages which the injured employee is able to earn thereafter during the disability, not beyond three hundred weeks. This law is still on the statute books, and it applies to the disability of plaintiff in this case and should be given effect.

The wages earned by plaintiff after the accident for three months were about the same as those earned previously. However, after he was discharged in September, 1939, his work was not regular, not because he could not get work, but because, as he says, he did not have a regular job. In view of this situation, we think the difference in his wages before and after the accident will have to be determined on what he was earning before the accident and what he was able to earn thereafter. We know of no better way to arrive at his present earning capacity as compared with what he was earning before the accident than to take the extent of his incapacity of 20% which the evidence shows he has sustained. This seems to be the most equitable manner to arrive at the difference in earning capacity where the employee has not been employed for a sufficient time after the accident to make a comparison of his efficiency. See Jarrell v. Cumberland Telephone & Telegraph Co., 7 La.App. 496.

Applying this method, plaintiff is entitled to recover 65% of 20% of the wages he was earning when injured, for a period not exceeding 300 weeks. Whether he was earning $11 per week as defendants claim, or $13.25 per week as plaintiff claims, in either event his compensation would be less than the minimum of $3 per week fixed by subsection 3 of Section 8 of said Act 20 of 1914, as amended. He is therefore entitled to recover compensation at the minimum-of $3 per week for a period of not exceeding 300 weeks, less the 27 weeks for which he was paid full compensation; that is to say for 273 weeks at $3 per week, beginning one week after payments of total compensation ceased, subject to a credit of $248.82 paid him as compensation after that date and plus a credit of $247.91, the amount overpaid him for medical expenses, making a total credit of $496.73.

For the reasons assigned, the judgment appealed from is hereby annulled, avoided and reversed, and it is now ordered that plaintiff recover compensation from the defendants, Holmes & Barnes, Ltd., and the Great American Indemnity Company, at the rate of $3 per week for a period not exceeding 273 weeks, beginning with the first payment due June 26, 1939, with legal interest on each payment from its due date until paid, subject to a total credit of $496.73, paid on July 6, 1939; that the defendants pay all costs in both courts.


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    ROSATA v. CALI.
    No. 2286.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.

      Reid & Reid, of Hammond, for appellant.
    Rownd & Tycer, of Hammond, for appel-lee.
   DORE, Judge.

This is a sequence of a former suit brought by the plaintiff against the same defendant to compel- the defendant to vacate a ten-acre tract of land. In the former suit we affirmed a judgment in favor of plaintiff condemning the defendant to deliver possession of the land to the plaintiff. The basis of our affirmance is to be found in the concluding paragraph. See 195 So. 45.

This suit was subsequently filed seeking to recover the value of the strawberry crop then growing on the property and harvested by the defendant prior to his delivering possession of the property or for rent on a quantum meruit. The defense is that defendant was the owner of the crop of strawberries then growing on the property.

On trial of the case there was judgment in favor of the defendant, dismissing plaintiff’s suit. Plaintiff has appealed.

It appears that plaintiff’s foster mother, Mrs. Rosaría Litano Cali, defendant’s wife, owned a certain fifteen-acre tract of land upon which she and her husband resided. This land was cultivated and farmed by her husband in the growing of strawberries. At the time of the death of Mrs. Cali, on January 7, 1939, there was a crop of strawberries growing thereon, the efforts of defendant. Mrs. Cali left a will in which she bequeathed to the plaintiff the south ten (10) acres, and to her husband the -north five (5) acres of the fifteen acres of her farm. All of the other property that she might own she bequeathed to both the plaintiff and the defendant, share and share alike. The will was duly probated on January 23, 1939.

In the settlement of the estate and in the partition of said other property left by the deceased, the plaintiff and the defendant entered into a written agreement wherein defendant was to receive the five acres bequeathed to him and to retain all other properties, save a packing shed and a sewing machine, which said shed and machine were to belong to the plaintiff, and to pay plaintiff the sum of $55 on April 20, 1939; the plaintiff was to receive the ten acres bequeathed to him, the packing shed, the sewing machine and the $55 as his share of the other properties. On April 25, 1939, on a joint petition of the plaintiff and the defendant, this written agreement was confirmed by the court and a judgment signed recognizing and putting the said parties in possession of their respective properties. The evidence is that defendant paid the plaintiff the $55 as called for by the written agreement and judgment.

As previously stated, the evidence shows that defendant, before his wife’s death, had planted a strawberry crop on his wife’s land, and which crop was growing at the time of her death. This crop was community property; it was a movable property, the mere fact that it matured after the time of Mrs. Cali’s death does not alter the situation. Wilcox v. Henderson (second case), 9 La.Ann. 347; Civil Code, Article 2407. It is obvious that plaintiff did not own the crop growing upon his portion of the land bequeathed to him just because Mrs. Cali died in January before the crop was matured and harvested. Whatever interest plaintiff had in this crop, it is our opinion that he sold it to the defendant shortly after the death of Mrs. Cali when he agreed with the defendant that the defendant was to be the owner of all other movable properties owned by the estate, save and except the shed and sewing machine by the payment of $55, which was to equalize their share in such settlement. He is bound thereby.

As to his demand for rent on a quantum meruit we find no merit in his contention. Defendant delivered to plaintiff the possession of the land as soon as the crop was harvested. There is no evidence showing that the defendant deliberately failed to gather and harvest the crop beyond the period necessary to do so.

Finding no error committed by the trial judge, for these reasons the judgment of the district court is affirmed.


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    BRANNAN v. ST. PAUL MERCURY INDEMNITY CO. et al.
    No. 2272.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Writ of Error Refused Jan. 5, 1942.
    Albritton & Ware, C. C. Bird, Jr., and Taylor, Porter, Brooks & Fuller, all of Baton Rouge, for appellants.
    Durrett & Hardin, of Baton Rouge, for appellee.
   DORE, Judge.

This suit is the result of a bus-automobile collision which took place at the intersection of St. Ferdinand and Spain Streets in the City of Baton Rouge, on Saturday, November 23, 1939. The plaintiff, who intended to attend a football game, was a pay passenger on a bus which was travelling south on St. Ferdinand Street on its way to the L. S. U. stadium. The automobile in the collision was being driven west on Spain Street by Mr. C. Anderson Friis, a resident of Natchez, Mississippi, who was likewise on his way to the football game. The collision occurred slightly to the south and west of the center of the intersection, the bus being struck on its front left side and the automobile on its front right side. Plaintiff claims damages for personal injuries sustained by him in the accident, and makes parties defendant the Baton Rouge Bus Company, Inc., the owner of the bus, E. J. Rogers, the driver of the bus, C. Anderson Friis, the owner of the automobile, and his insurer, the St. Paul Mercury Indemnity Company.

Plaintiff charges negligence to both drivers of the motor vehicles in: first, excessive speed; second, failing to keep a proper lookout; third, failing'to keep their respective vehicles under proper control.

Each set of defendants, the bus company and its driver, Mr. Friis and his insurance carrier, filed separate answers in which each denied negligence on their part, but charged each other with negligence as being the proximate cause of the accident.

The trial resulted in a judgment in favor of the plaintiff and against the defendants, in solido, in the sum of $6,221, and also fixed the fees of the medical experts who testified in the case. The defendants have appealed. The plaintiff has answered the appeal asking that the judgment be increased to the sum of $10,221.

The question of the liability of the defendants for the injury to the plaintiff is not seriously contested in this court. From defendants’ oral argument and briefs, regardless of the fact that they had presented separate defences seeking to establish tire cause of the collision on the other, they concede that the collision was the result of the joint and combined negligence of both the driver of the bus and the driver of the automobile. It is also conceded that the sum of $221 for medical expenses has been proved and no objection is made as to the fees allowed the medical experts. 'The sole question presented to us is the extent of the injuries received by the plaintiff and the damages to be assessed therefor.

Plaintiff was sitting on a horizontal seat on the left hand side of the bus, extending a few inches from the driver’s seat. By the collision he was thrown forward and struck some object in the front which caused a bruise over his right eye and some slight injury to his head and neck. He, at that time, did not believe his injury to be of any consequence, only feeling a stinging sensation to his right eye, affecting the sight of that eye. He continued on his way to the stadium to witness the football game. At the stadium he remained until the game was practically three-fourths played, when, on account of the pains in his neck and his eye, he left and went to his home at Istrouma Heights, a suburb of Baton Rouge.

On the next morning his condition not having improved, he consulted Dr. Stander. Plaintiff complained to Dr. Stander that he was suffering pains in his neck and of defect of sight in his right eye. Dr. Stander found contusions about the eye. He bandaged the eye and for the pain in his neck gave the plaintiff heat treatment by light. A few days thereafter, since plaintiff was still complaining about the condition of his eye, Dr. Stander removed the bandage, and upon perceiving that the condition of the eye had become worse and that plaintiff complained that he was unable to see well out of the eye, advised plaintiff that he see an eye specialist.

The plaintiff then consulted Dr. J. Ralph Phillips, who appears to be a reputable and competent eye specialist of Baton Rouge. Dr. Phillips examined the plaintiff and had him under observation for a period of several months. He is emphatic in his testimony that plaintiff suffers at least three serious defects in his eye, which practically renders it useless for ordinary purposes. First, he has a constricted or restricted vision of the right eye; that is, the vision does not extend to the sides or in the pere-pheral sphere, making it impossible for him to see an object out of his eye unless it is immediately in front of him. Second, 'that the optic nerve shows some congestion, which in itself is likely to cause some impairment of vision in the eye; that this optic nerve shows some slight paleness, which is indicative of some trauma or other disturbance of this nerve. Third, that the plaintiff is suffering from myopia or nearsightedness in the right eye, which requires him to use a minus 7 or minus 8 lens to correct that condition and to enable him to see anything normally out of the eye. In so far as the left eye is concerned, he found nothing wrong therewith. He made several tests and was convinced that the plaintiff suffers impairment of vision and that he was further convinced that the plaintiff was not malingering or trying to deceive anyone respecting his ability to see. He further found that the center of vision in the right eye was 20/100, which is an impairment of vision of about 50%. Pie saw the plaintiff just before the trial, at which time the plaintiff could count fingers by his affected eye at about two feet. He is of the further opinion that while plaintiff, with the use of minus 7 lens on his right eye would practically have normal vision in that eye, cannot wear glasses, for the reason that it would cause him to have double vision and headaches; that is, it would be impractical for the plaintiff to wear such glasses at all times.

Dr. Phillips having to absent himself for some time while treating plaintiff, referred the plaintiff to Dr. Lionel F. Lorio, who is also a reputable eye specialist, for examination and treatment. Dr. Lorio examined the plaintiff several times and had him under observation. Dr. Lorio’s testimony corroborates Dr. Phillips’ findings and opinion on practically all points. Dr. Lorio also is of the opinion that plaintiff was not faking, but really suffers an impairment of vision in his right eye as he claims.

The defendant offered as expert witnesses the testimony of Drs. Victor Smith and Wallace Beil of New Orleans. These two doctors examined the plaintiff only a short while before the trial. Both of these doctors testified in substance that they could find nothing wrong with the structure of the plaintiff’s right eye and no impairment of vision in that eye, except in a small degree, which they did not consider would be sufficiently serious to affect the normal use of his sight. Dr. Smith found the vision in this eye to be 20/30, which means that it was about 90% normal. He gives it as his opinion that the plaintiff is faking his ability to see out of that eye, and claims to have arrived at these conclusions by some malingering tests which he gave. It is significant, however, that only one out of 3 or 4 tests which he gave indicated that plaintiff was malingering. Dr. Beil, an associate of Dr. Smith, gave about the same testimony and came to the same conclusion. This doctor likewise says that only one of his malingering tests out of 3 or 4 proved successful. However, both of these doctors would want to excuse the failure of the other tests upon plaintiff perceiving or knowing the tests. The tests given by Dr. Smith were not the same as given by Dr. Beil. Neither of these doctors examined the plaintiff for restrictive perepheral vision, they being satisfied that the plaintiff was malingering. They found no myopia, but on the contrary, found a slight hyperopia, or far-sightedness.

Another eye specialist, Dr. Brewster, of the City of New Orleans, upon the request of the defendants, examined the plaintiff only one time shortly before the trial, and found that plaintiff’s vision in his left eye was normal, and that plaintiff had a vision of 20/35 in his right eye. He found some damage existing to the optic nerve and to the rest of the structures in the fundus. He found some paleness in the optic nerve and the fundus of the right eye, but could not say just what caused this paleness. However, he admits that it could have been caused by a trauma. Regarding the optic nerve he states that when they do become inflamed and the inflammation disappears, it is sometimes impossible to determine if a patient has not suffered a permanent injury to the eye. He was of the opinion, however, that the plaintiff w’as exaggerating his condition, but he would not class him as a malingerer. He further states that the doctor who had had the plaintiff under observation immediately after the injury, or soon thereafter, was in a better position to know whether or not the plaintiff had a defect in the vision of his right eye than any other specialist who saw him a year thereafter.

Dr. Buffington of New Orleans did not examine the plaintiff, but was called by the defendants to give expert testimony along the line of questions propounded to some of the other physicians, including Dr. Smith, and the answers given by them. He states that if the plaintiff is affected as he says he is, he is industrially blind, and he corroborates Dr. Phillips’ statement to the effect that plaintiff will not be able to use a minus-7 lens for the reason that the use of such lens will cause him to have double vision and headaches.

The plaintiff is a young man about 21 years of age, and at the time of his injury was in his last year of high school. He had been examined by his teachers in the usual way when he entered school at the beginning of the sessions of 1939 and 1940. The records of these examinations by his teachers show that his vision at that time was normal. Plaintiff testified that he had had no trouble with his eyesight prior to the accident.

On the question of malingering as testified to by Dr. Smith and his associate, Dr. Beil, the trial judge must have necessarily come to the conclusion that the plaintiff was not faking. The plaintiff, in his testimony, impresses us as being very fair and frank. In view of the strong corroboration given to his testimony by the examinations and opinions of Dr. Phillips, who examined and observed him over a period of several months, together with the testimony of Dr. Lorio, we cannot subscribe to an opinion which would have the effect of classifying the plaintiff as a faker or malingerer. In due respect to Drs. Smith and Beil, we feel that we would have to have stronger proof than what they set out to put down in a book of judgment a decision which would characterize this plaintiff as a malingerer.

Our conclusion is that plaintiff has borne the burden of proof resting upon him to the effect that he is srtffering from myopia as the result of the injury he received in the collision. He is thus entitled to recover damages for such injury.

The plaintiff suffered a serious impairment of his right eye. The medical testimony predominates to the effect that if he would use this minus-7 lens, it would cause him to have double vision and headaches. We feel that an award of $4,500 plus his medical expenses, would be more in line with" our jurisprudence, and the judgment will therefore have to be reduced accordingly.

For these reasons, it is ordered, adjudged and decreed that the judgment appealed from is hereby amended so as to allow plaintiff damages to the amount of $4,721, and as thus amended, the judgment is affirmed; plaintiff to pay the cost of this appeal, the defendant to pay all costs incurred in the lower court.