text:
    SPILLMAN v. L. O. STOCKER CO.
    No. 3145.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 4, 1949.

      Ott & Richardson, Bogalusa, for appellant.
    Frank T. Doyle, New Orleans, Nicholas Masters, New Orleans, for appellee.
   ELLIS, Judge.

The plaintiff, Jerry E. Spillman, filed this suit against the L. 0. Stocker Company and its insurer, Hartford Accident and Indemnity Company, in which he seeks to recover under the Compensation Act, Act No. 20 of 1914, as amended, for an injury received on October 17, 1947 while he was engaged as an iron worker for the defendant company. There is no dispute as to the accident nor the manner in which it happened; that is, that the index finger of plaintiff’s left hand was caught-under a jack lever and severely mashed and crushed. The plaintiff was paid compensation for three weeks at the rate of §20.00 per week, and on November 17, 1947 he returned to work for the defendant company at the same rate of pay; however, on February 17, 1948 plaintiff filed this suit in which he is demanding compensation in the alternative, (1) for total disability, or (2) partial disability, or (3) specific disability, as for the loss of the left index finger. The defendants denied that the plaintiff was entitled to any compensation other than the specific compensation for the loss of the left index finger. Prior to the trial in the District Court, the defendant tendered to the plaintiff all costs necessary for an operation which would result in the amputation of the left index finger at a point deemed best by a physician of plaintiff’s own choosing. This offer was made as the plaintiff’s index finger was left in a stiffened condition as a result of the injury and, therefore, at all times stood out from the hand, which rendered him permanently and totally disabled to carry out the duties of an iron worker. This tender was refused by the plaintiff and the case was tried and resulted in a judgment by the District Court, under the authority of the case of Leday v. Lake Charles Pipe & Supply Co., La.App., 185 So. 655, ordering the plaintiff to submit to the operation for the amputation of his left index finger. The case was continued as an open case to be completed after plaintiff recovered from the effects of the operation, and the Court would then pass on the question as to whether the plaintiff was totally or partially disabled, or only entitled to specific compensation for the loss of the index finger. The plaintiff acquiesced in the judgment ordering the operation, and on June 24, 1948 his finger was amputated at the proximal interphalangel joint. Plaintiff remained away from his work for a period of approximately four weeks, until the last part of July, 1948, and was still working for the defendant company as an iron worker at the time of the second hearing which was November 24, 1948. The District Court on April 4, 1949 rendered judgment denying plaintiff’s demand for compensation for total disability or partial disability, but rendered judgment in favor of the plaintiff and against the defendant, awarding him compensation at the rate of $20.00 per week for a period not exceeding thirty weeks, commencing from June 24, 1948 and subject to a credit for whatever compensation had already been paid and further awarded judgment in favor of the plaintiff for $100.00 representing expert witness fees and for all costs of the proceeding. The formal judgment was signed on the second day of May, 1949; however, on the 7th day of April, 1949 motion for a new trial was filed by counsel for the plaintiff, -the second ground of which stated that immediately after the testimony in the case was closed and the case submitted, the defendant company discharged the plaintiff and, therefore, plaintiff had no opportunity to get this fact in the record and before the Court, and that if a new trial were granted he would be able to show that he was discharged solely because he was not able to do his work in a satisfactory manner after the accident and was kept on the payroll under the closing of the evidence in the case. The motion for a new trial was orally denied and the formal judgment signed, from which judgment the plaintiff has appealed to this Court.

While the plaintiff in the lower court had practically abandoned any claim for compensation as of total and permanent disability plaintiff now reurges this claim. We thoroughly agree with the District Judge that the evidence is overwhelming that this plaintiff has not suffered total permanent disability to do work of any reasonable character or the same work he was doing at the time he suffered the injury, and this will be shown by a discussion of the evidence as to whether or not the plaintiff has even suffered partial disability, as this is the main question before the Court.

While there was some evidence taken prior to the amputation of plaintiff’s finger, as that testimony was based upon the individual opinions of the witnesses as to plaintiff’s ability to work or not to work if the finger was amputated, such testimony must yield to positive medical and lay testimony as to plaintiff’s ability or disability after the actual amputation of the finger. There is no doubt that plaintiff was totally and permanently disabled until the finger was amputated, however, he was paid the same wages even though he could not perform all the duties of an iron worker. From the testimony, the amputation was a success, and the results were excellent except that there is medical testimony to the effect that there is approximately a 10 degree disability in the flexion of the stub. Otherwise, from a medical standpoint the hand itself had not been injured, and there could have been some tenderness on the end of the stub, although they testified that this was subjective but could be expected for a while at least. Other than this, we do not find in the testimony of the doctors, anything else wrong with the portion of the finger left. The plaintiff’s main complaint, according to his testimony after the amputation, is to the effect that the finger is tender on the right outer tip of the.stub and the inner tip and this tenderness was especially noticeable when he handled anything with it or rubbed it against the other finger, and that it felt kind of stiff in the joint which, of course, is the joint where the finger joins the hand. He also complains that it pains him at times. He testified that he couldn’t do the usual work of an iron worker, that all he could do was welding, that he could not climb, which seems to be one of his duties as lots of his work is done off of the ground, for the reason that he had no grip in his left hand and he had difficulty in holding bolts and other such articles with which an iron worker must deal in his trade and especially in construction work. He also testified that he attempted to do certain work required of an iron worker which he referred to as “attempting to pull some rope falls,” and that the next day his hand was too sore for him to use. He received the same rate of pay as all other iron workers of $2.15 per hour. He also complained that his finger got cold, however, none of the doctors noticed it. Plaintiff estimated the percentage of loss in his ability to work at about 20% or 25%. On cross-examination plaintiff admitted that on the morning of the trial he had been working in the superstructure approximately twenty-five feet above the ground; but stated that he had gone up the ladder and had not climbed up there.

The witness, G. L. Farabee, who testified on the first trial prior to the amputation' of plaintiff’s finger, stated that even if the finger was amputated, in his opinion it would be three to five years before the plaintiff could perform the duties required of an iron worker. He also testified, when additional testimony was taken after the amputation of plaintiff’s finger. It is true, as counsel for plaintiff stated in his argument and brief, that his testimony is quite different.. However, a close comparison and analyzation of plaintiff’s testimony would show that there is not too much difference as Farabee testified that he was the foreman under whom the plaintiff worked and that after the amputation plaintiff had performed the same duties as the rest of the crew of iron workers and was doing it satisfactorily and that he saw no difference in the duties Spillman performed prior to his injury and the duties he performed subsequent to the amputation of the finger. On cross-examination the witness said that he had not heard Spillman complain about his finger since the amputation but that prior thereto he had complained “a few times about pulling on rope falls” because of his sore finger. This witness stated that he had not seen Spillman climb any columns in a long time but it was his opinion that with a little practice he could do so and that on the date of the trial the plaintiff was working up high, but that it was possible that he had gone up on a ladder. The defendant also offered other testimony that the plaintiff had worked fifty or sixty feet in the air sitting on a steel girder burning steel, and that there was no ladder or stairs by which the plaintiff could get up or down.

Dr. H. L. Morgan, witness for the plaintiff, stated that he had amputated plaintiff’s finger and that the operation was successful and that he examined this patient approximately six days prior to the trial and he had found some “residual tenderness left at the amputation site” on the outer edges of the stump, but that he thought this tenderness would eventually disappear, although it was possible that it could continue for life. He was asked the following questions:

“Q. In your opinion, is there any resulting disability or impairment of • the use of this member effecting the efficiency of Mr. Spillman doing his work as a result of this amputation? A. Yes, there is some.
“Q. What percentage of disability is the result, in your opinion? A. In my opinion not over fifteen per cent.”

On cross-examination Dr. Morgan testified that the amputation produced all the good results that he originally anticipated and that it was his belief that the plaintiff was able to climb and that he thought he could perform all the duties of his work; however, the stump as compared to a normal finger, was not worth more than 25%. Under direct examination by Mr. Richardson he was asked the following questions:

“Q. You have made the statement that you would consider such an amputation as this to result in a definite percentage of disability or the impairment of this member to such an extent that Mr. Spillman could not do the same work previously done by him. Do you mean to state that in recommending him for employment you would consider this man fully able to perform the duties attendant to such an occupation as he holds as he would do normally? A. Yes, I do.
“Q. Then this degree of disability that you mentioned would not effect you in anyway in recommending employment? A. No, I don’t think so.
“Q. Do you consider-that the fact that you recommended this man for employment would mean tha't his immediate superiors would find him fully qualified to perform his usual duties? A. I -think they would.”

Further, on direct examination by Judge Ott:

“Q. In all of your testimony in regard to the ability of Mr. Spillman to do his work, are you taking into consideration the facts which already have been explained to you, that he is required to pick up bolts, climb high ladders and otherwise manipulate his hands? A. Yes.”

From Dr. Morgan’s testimony it would seem that he meant that the plaintiff was suffering no disability to perform the usual and customary duties of an iron worker; however, the mere fact that he had lost a finger would be a loss of efficiency in doing the work of not over 15%. This is taken care of by the award of compensation for. the loss of the finger.

There is a report which contains the opinion of Dr. Irvin. Cahen to the ’effect that “The disability of amputation is a minor type in relation to this patient’s occupation and it is believed that he is able to continue in his former work assignment,” and, “he is of, the opinion . that this patient should be able to perform his work in the same manner as existed prior to the injury.” The doctor stated in this report that “Disability rating is given as 8% of the hand.” It is clear that Dr. Cahen meant just what he said, that when a man loses a finger as in this case, in his opinion there is an 8% disability in the use of that hand. However, this would not prevent that man from doing work of any reasonable character; that is, in this case the duties of an iron worker.

Dr. E. E. Lafferty was also called as a witness by the plaintiff and he testified that he had examined the finger prior to amputation and was present at the time it was amputated and that the operation was performed in a proper manner and was successful and that he had examined the stub a few days prior to the trial and found it well healed with a minimum of scarring and apparently a good result. Dr. Lafferty says that it would not be impossible for the plaintiff to perform the duties of a steel worker, although it might be a little more difficult than before the finger was injured. It was his opinion that even though the finger might be tender Spillman could do the work he was doing, although at first it might be more difficult than before the accident, “but in time he will do it as easily as he once did.” He was asked the questions:

“Q. But in your opinion, is there disability as a result of the loss of two phalanges and their tenderness? A. There is a resulting loss,and damage to the hand, he will never get the finger back, but he can follow a gainful occupation, and, in my opinion, follow steel work business.
“Q. What would you say would be the resultant percentage of disability in the condition his finger is in right now? A. When I say he can do the same work there would be no disability. But I would say the hand is damaged twenty percent and if the stump is tender, I would say it is damaged twenty-five percent.”

Again, as we interpret this doctor’s testimony, there is no disability to plaintiff as a result of the injury insofar as the performance of the duties of an iron or steel worker are concerned; however, the doctors have given various estimates by way of percentage as disability in the use of the hand as a result of the loss of the finger. The Compensation Law fixes a definite amount to be awarded for such disability.

Dr. Paul Gard was a witness for the plaintiff and testified that plaintiff’s ability to perform his usual duties had been impaired 15%, because he felt “that a whole finger is more valuable to a man than part of a finger.” The law recognizes this by awarding compensation for thirty weeks for the loss of a finger.

Taking the testimony of the doctors, the lay witnesses, and the fact that plaintiff was employed and the evidence shows that he performed the duties incumbent upon him as an iron worker in a satisfactory manner and was paid full wages for his work, despite his own testimony, we are of the opinion that he did not suffer any total, permanent disability, nor any partial disability, and that the judgment of the District Court was correct in awarding him compensation as for the loss of the finger. Learned counsel for plaintiff have urged in a motion for a new trial that the case should have been reopened in order that it might be shown that the plaintiff had been discharged because he was unable to perform his duties. Counsel for the defendant, in answer to this, states in his brief, and it is not contradicted in plaintiff’s brief, that the plaintiff was discharged on March 18, 1949 and that the reasons for judgment given by the Lower Court were not rendered until April 4, 1949 and that, therefore, plaintiff had an opportunity between those dates to ask the Court to reopen the case but did not do so until after the judgment ol the Court: In this brief, counsel states that the Judge of the District Court, in refusing this motion, orally stated that in his opinion the medical testimony submitted was not such as would sustain plaintiff’s claim of partial disability, and that while the fact that plaintiff was actually employed had been considered by him still, even if he had not been so employed, his decision would have been the same. We agree with this statement. We believe from ' the testimony that this man was earning his wages and doing the work of an iron worker in the customary and usual manner that it should have been done.

The formal judgment awarded compensation beginning June 24, 1948, the date of the amputation of the finger, because plaintiff had apparently continued to work uninterruptedly and was paid regular wages until that day. It is true that the judgment does not award any interest, and it should be amended to include legal interest on each payment from its due date until paid, and it is so ordered.

As thus amended, the judgment of the District Court is affirmed, defendant to pay all costs.


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    BAHAM v. VERNON.
    No. 3140.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    Ponder & Ponder, Amite, for appellant.
    Reid & Reid, Hammond, Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, Jno. L. Madden, Asst. Atty. Gen., Baton Rouge, for appellee.
   DORE, Judge.

In accordance with Act No. 235 of 1938, on November 23, 1945, Albert L. Vernon, hereinafter referred to as Vernon, made application to the Register of the Land Office for homestead entry of the North Half of the Northeast Quarter of the Northeast Quarter (N% of NEj4 of NEj4) of Section 7, Township 5, South of Range 8 East, situated in the Parish of Tangipahoa, said application bearing No. 1797. On January 12, 1946 his application was approved for entry, under receipt No. 1131, by the Register of the Land Office, hereinafter, referred to as the Register.

On August 5, 1948, a contest affidavit was filed by Edward Baham, hereinafter referred to as Baham, with the Register. The Register set a hearing on August 25, 1948 for the taking of testimony before N. P. Vernon, the 'Clerk of Court and Ex-officio Notary Public for the Parish of Tangipahoa; a hearing on the application and contest was held before the Register on September 8, 1948. On September 24, 1948, the Register held in favor of Baham, and ordered the entry of Vernon cancelled. Under the order of the Register, Vernon was granted thirty days in which to- file an appeal from such decision or order to the District Court for the Parish of Tang-ipahoa, and the present proceedings are the appeal taken thereunder.

In his petition of appeal, Vernon attacks Act No. 235 of 1938 as being unconstitutional for the reason that the Act grants the right to the Register of Land Office to pass upon a contest to an application for homestead entry and determine whether such application should be annulled and cancelled, which matter is á judicial function and which matter cannot be delegated by the State Legislature to an administrative department of the government.

In the alternative, he alleges that the Register did not have the authority, under the provisions of Act No. 235 of 1938, to set trial of the cause before the 'Clerk of the Court for the Parish of Tangipahoa.

In the further alternative, he alleges tha-t the Act provides for two types of homestead entry; first a homestead entry where the person actually lives on the property; second, a homestead entry where the applicant owns land adjoining the land sought to be homesteaded, and in that case the person making the entry need not .live on the property sought to be homesteaded. He alleges, that he belongs -to the second class'. He further alleges that he has cleared, the property, has planted and cultivated the property and has improvements on the property and is using the property for cattle grazing purposes. .

He alleges that he is entitled to a trial de novo. He makes Baham .and the Register parties defendant and prays there be judgment in his favor and against the defendants reversing, avoiding and annulling the order of September 24, 1948, and ordering the re-instatement of his application for homestead entry and to dismiss the contest of Baham.

In her answer, the Register admits that Albert L. Vernon made application for homestead entry, admits that the entry was allowed, admits the filing of a contest affidavit and the right of plaintiff to appeal from the determination made by the Register and denies all of the remainder of Vernon’s petition.

In his answer, Baham admits the filing of the contest affidavit to the entry of Vernon, the taking of testimony and the issuance of a decree by the Register can-celling the entry of Vernon, and the right of appeal granted to Vernon. He denies all of the remainder of Vernon’s petition. In further answer, he alleges that the -tract of land sought to be homesteaded by Vernon is not contiguous to and does not adjoin any other lands owned by said Vernon and that therefore the said Vernon is not entitled to homestead said property as an adjoining entryman; that the said Vernon did not, within six months after the allowance of his entry, establish his residence and commence the cultivation of the land sought -to be homesteaded, and therefore cannot claim said land as an ordinary entryman. He further alleges that Vernon has lost all interest, claim or right in and to the said tract of land by Vernon’s failure to comply with 'the provisions of Act No. 235 of 1938 and that the action of the Register was proper and should be sustained.

Under these issues, the trial of the appeal resulted in a judgment in favor of Baham and the Register affirming the decree and order of the Register, dated September 24, 1948, ordering the cancellation of the homestead entry of Vernon and making said order and decree its judgment. It further decreed that Baham be and he is' hereby granted the preferential right of entry of the property covered by the said entry as provided in Act No. 235 of 1938. It further decreed that Vernon vacate said property, and that Vernon pay all costs. From said judgment Vernon has appealed.

The following are the admitted facts: Vernon made homestead application No. 1797 for the North Half (N%) of the Northeast Quarter (NEj4) of the North east Quarter (NE%) of Section Seven (7), Township Five (5) South, Range Eight (8) East, situated in Tangipahoa Parish, and entry was allowed January 12, 1946, after being applied for on November 23, 1945. Prior to, at the time of his application and the allowance of entry and since and up to the time of the trial of his appeal before the District Court, Vernon was the owner of the East twenty-five (25) acres of the Southwest Quarter (SWJ4) of the Southeast Quarter (SEJ4) of Section Six (6), Township Five (5) South, Range Eight (8) East, which is the only property owned by Vernon in Tangipahoa. Vernon resides on this twenty-five acre tract. He has not lived on the land sought to be homesteaded but did, within three weeks after approval of the entry, clear the timber therefrom and thereafter plowed it and presently has one-half acre of strawberries, turnip greens and oats and has a shed and is claiming this as a using owner. The present crops are his first crops, planted by him on the property. The shed was constructed in the fall of 1948.

It was further agreed that the following facts in regard to the South Half (S%) of the Southeast Quarter (SE^) of Section Six (6) and the North Half (N%) of the Northeast Quarter (NEJ4) of Section Seven (7) of Township Five (5) South, Range Eight (8) East, are shown by the public records of Tangipahoa Parish:

“Both tracts were owned by Genessee Lumber Company by deed recorded in COB 70, page 478, Genessee Lumber Company sold to Willard B. King the North half (N%) of the Southeast Quarter (SEJ4) of Section Seven (7) Township Five (5) South Range Eight (8) East. By deed recorded in COB 78, page 20 Genessee Lumber Company sold' to Carl E. Kilgore the East half (E%) of the Northwest Quarter (NWJ4) of the Northeast Quarter (NEi/j.) of Section Seven (7). By deed recorded in COB 78, page 264, the same company sold to Charles C. Spauld-ing the West half (W%) of the Northeast Quarter (NEJ4) of the Northeast Quarter (NE14) of Section Seven (7). By deed recorded in COB 80, page 60 Genessee Lumber Company sold to Gordon V. Guy-ton the East half (E%) of the Southeast Quarter (SEJ4) of the Southeast Quarter (SEJ4) of Section Six (6), and by deed recorded in COB 80, page 218 sold the same man the West Quarter (WJ4) of the Southeast Quarter (SEj4) of the Southeast Quarter (SE14) of Section Six. (6). By deed recorded in COB 71, page 651 Genes-see Lumber Company sold to Edwin A. Trenery the Southwest Quarter (SE)4) [SWJ4] of the Southeast Quarter (SE14) of Section Six (6) Township Five (5) South Range Eight (8) East. In each of these deeds Genessee Lumber Co. as was its custom, reversed (reserved) and excepted to the vendor the strip of land Thirty feet (30') in width being Fifteen feet (15') on both sides of all sections and Quarter Section lines.
“The earliest one of these deeds is dated May 7, 1913 and the latest May 5, 1917.
“It is admitted that a public gravel road presently exists along the division line between Section Six (6) and Seven (7) Township Five (5) South Range Eight (8) East.”

In his petition and in his brief, Vernon attacks the constitutionality of Sections 8 and 9 of Act No. 235 of 1938, as being a delegation of a judicial function to the Register. These sections are as follows:

“Section 8. If, at any time after filing of the affidavit required by Section 2 of this Act, and before the issuance of patent therefor, it is proved after due notice to the homesteader or his legal representative, to the satisfaction of the Register of the Land Office, that the said homesteader failed to establish a residence on,the land so entered for six (6) months after entry, or changed his residence therefrom for a period of six (6) months at any time after filing his affidavit and before the expiration of the period of five (5) years’ residence required by this Act, or swore falsely to any material fact in his affidavit or final proof, then and in that event, such land shall revert to the State, and be held by it subject to redemption or homestead, as herein provided. All appeals from the decisions of the Register in such cases shall lie to the District Court of the Parish in which said lands are situated and shall be tried de novo. The person filing charges against an entryman under this Section, and prosecuting the same to a successful conclusion, shall have a preference right of sixty (60) days from final judgment in which to file his application for such land.
“Section 9. It shall be the duty of the Register of the Land Office to receive and pass upon the proof of residence and cultivation as herein provided and, subject to the right of the entryman, or in case of his death, of his legal representatives, to appeal from the decisions of the Register of the Land Office to the District Court of the Parish in which such lands are situated, when the case shall be tried de novo, the decision of the Register of the Land Office as to whether such proof shows full compliance with the requirements hereof, shall be final.”

We cannot agree with the contentions of Vernon with reference to these sections. There is no delegation of any judicial functions to the Register under these sections , but merely the proper administrative authority to see to it that any applicant for a homestead entry complies fully with law before a final certificate entitling the entryman to a patent is granted. Vernon’s complaint that the Register had no authority to set a hearing before the Clerk of Court for the Parish of Tangi-pahoa for the purpose of receiving testimony, is not well founded, ‘ because, certainly, the Register in performing her administrative duty, had a right to ascertain the true facts existing in any proper manner which she saw fit. Moreover, Vernon’s further complaint that he was not given a direct hearing before the Register herself-and that his only hearing was before the Clerk of Court, has no merit for the reason that the action of the Register was not final and could not be final under the terms of the act. She had a right to use her own discretion in arriving at her decision of the question at issue, and under the terms of-the act, Vernon had the right to appeal to the District Court and to then have the matter tried de novo. The District Court in the trial de novo was not called upon to review the procedure used by the Register but merely to determine whether or not the decision of the Register was correct. Similarly, we are not required to review the actions of the Register, but our duty is to determine whether or not the District Court ruled correctly on the question at issue.

In conclusion, since the contest has to be tried de novo in the District Court of the Parish wherein the property is situated, the objection in regard to lack of hearing before the Register or with the lack of legal or constitutional authority to pass on contests by the Register, make no difference in the District Court or in this Court.

Under the provisions of Act No. 235 of 1938, there are two distinct types of homestead entries. Under the first, known as a straight entry, the applicant shall establish his residence on the land so entered within six months after the date of the approval of the entry. The second type of entry is provided for in the last portion of Section 1 of the Act in the following words: “ * * that every person owning and residing on lands may enter, under the provisions hereof, such tax adjudicated lands lying contiguous to his lands which shall not, with the land so already owned and occupied by such person, exceed in the aggregate 160 acres.” (Italics ours.) Vernon makes no contention that he falls within the first type of entryman but does contend that he falls within the second type of entryman. Therefore the sole issue before this Court is whether or not the two tracts of land are “lying contiguous.”

It is evident that the East 25 acres of the SVU/i of the SE(4 of Section 6 and the N% of the NEj4 of the NE]4 of Section 7 have a common point of contact only, ill that the southeast corner of the first tract corners with the northwest corner of the second tract.

In 17 Corpus Juris Secundum, at page 178, it is stated: “Contiguous. A word of Latin derivation, variously said to be from the words 'con’ and ‘tangere,’ and from ‘contiguus,’ akin to ‘contingere,’ meaning to touch on all sides. It is a relative term, depending considerably on the context and the subject under consideration; and it has been construed variously by courts according to circumstances. * * * When applied to lands, ‘contiguous’ as ordinarily used carries the idea that they actually touch each other, and implies something more than a single common point of contact.”

We find that the last quoted statement to be the holding in Louisiana. In the case of Lee v. Giauque, 154 La. 491, 97 So. 669, 670, in which the question, at issue was whether lands in Section 31 of a certain township were contiguous to lands in Section 1 in an adjoining township, our Supreme Court held: “And to constitute a single tract of land the lands must be so situated that one may pass from'one part to the other without passing over the lands of another. But, as it is impossible to pass through a mere point, it follows that one cannot pass from said section 31 to section. 1 without passing over other lands. See Anvil Hydraulic & Drainage Co. v. Code, 9 Cir., 182 F. 205, 206, 105 C.C.A. 45, and authorities there cited.”

In the case of Edwards v. Carr, 19 La. App. 827, 137 So. 637, 638, 639, 141 So. 388, in which the question at issue was whether the SEJ4 of NW% of Section 11 was contiguous to E% of E% 'of SE¡4 of Sec. 10, all in the same township and range,' our brethren of the Court of Appeal, Second Circuit, held: “Any possession which R. T. or Joe R. Brown might have had of the Ey2 of EYz of SE% of Sec. 10 would not constitute possession of the SEj4 of NW14 of Sec. 11, the 40 in controversy, because the two tracts do not lie contiguous to each other. These two tracts have a common point of contact only, in that the northeast corner of the tract in section 10 corners with the southwest corner of the tract in section 11. But this does not make them contiguous to each other. Lee v. Giauque, 154 La. 491, 97 So. 669. The two tracts are distinct and separate from each other, and, where such tracts of land are conveyed in the same deed from the same person, the rule that possession of a part under title of the whole is possession of the whole has no application to the tract not actually possessed.”

Again in the case of Turner et al. v. Glass et al., La.App., 195 So. 645, 646, the same Court held: “In view of this, and as the southwest corner of the tract belonging to plaintiffs is the northeast corner of the 30-foot strip, it must be held that their property does not abut and is not contiguous to the alleged passageway which they contend is obstructed by the fence.' ‘Two tracts of land which touch only at a common corner are not contiguous.’ Anvil Hydraulic & Drainage Co. v. Code, 9 Cir., 182 F. 205, 206, 105 C.C.A. 45; Lee v. Giauque, 154 La. 491, 97 So. 669; Mandel v. McAnn, 16 La.App. 125, 133 So. 477; Edwards et al. v. Carr et al., 19 La.App. 827, 137 So. 637, 141 So. 388.”

This seems to be the accepted meaning of the word “contiguous” in similar cases in the majority of other States. Besides the cases cited in the Anvil Hydraulic & Drainage Co. v. Code case, supra, we find the following: “contiguous tracts of land” must be tracts or bodies of land which have one side, or at least part of one side, in common. Griffin v. Denison Land Co., 18 N.D. 246, 252, 119 N.W. 1041, 1043, an action involving two quarter sections of land.

In the case of Linn County Bank v. Hopkins, 47 Kan. 580, 28 P. 606, 607, 27 Am.St.Rep. 309, an action which involved the construction of the term as used in an act defining homestead, the' Court said : “Two tracts of land touching only at one point are not contiguous.”

Vernon recognizes the test of whether or not two parcels of land are contiguous is whether a person may pass from one to the other without crossing the land of another and if he can so do then the lands are contiguous. He contends. that since there is presently a public gravel road between the two tracts, he can pass upon this public road from one tract to the other tract without walking or passing upon the lands of another. This argument is altogether unreasonable and without force. In the deeds transferring these two tracts, the former owner of both tracts reserved and excepted to itself a strip of land thirty feet in width being fifteen feet on both sides of the property, that is, the south fifteen feet of Vernon’s property and the north fifteen feet of the property in contest. Whether the title to this thirty feet is in the former owner or in the Police Jury of the Parish of Tangipahoa makes no difference. Moreover, it causes the two pieces of property to be separated and destroys the common corner which formerly existed.

For these reasons, the judgment appealed from is affirmed.


text:
    LAMBERT v. TRAVELERS INDEMNITY CO. et al.
    No. 3137.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    Taylor, Porter, Brooks & Fuller, Baton Rouge, for appellants.
    Joseph A. Sims, Hammond, for appellee.
   DORE, Judge.

At about 6:30 P.M. on April 23, 1946, the plaintiff, R. A. Lambert, was driving his 1941 Ford automobile, with trailer attached, along U. S. Highway 190 in a westward direction going from Hammond towards Baton Rouge at approximately twenty-five miles per hour. When he arrived at a point approximately three-fourths of a mile west of Albany he perceived a truck belonging to one Szanyi, coming from the opposite direction and, preparing to meet said truck, he put on his parking lights and he alleges that as his car was in the act of meeting the oncoming truck, a heavy gasoline transport truck unit, belonging to Gulf Refining Company and driven by William Cornet, composed of a cab and a large gasoline trailer and tank, attempted to pass him and, as a result, sideswiped his car and trailer and caused the Szanyi truck to go off on the shoulder and to thereafter collide with his Ford automobile and trailer. Plaintiff alleges that the sole cause of the accident was the negligence of William Cornet, the driver of the Gulf Refining tank truck, operating in the line of duty, said negligence being the act of said driver of attempting to pass him while he was meeting the Szanyi truck and driving at an excessive rate of speed. He further alleges that the Gulf Refining Company truck failed to stop after the accident; that as a result of the accident, he suffered painful personal injuries and that his automobile was almost completely demolished. He sues the driver, William Cornet, Gulf Refining Company, owner of the truck, and The Travelers Indemnity Company,- as insurer of Gulf Refining Company, in the total sum of $100,000.00, being $99,000.00 for personal injury, pain and suffering, etc., and $1000.00 for damage to his Ford automobile.

The defense is a general denial of all the .material allegations of the petition and it is specifically avered by the defendants that no truck of the Gulf Refining Company was involved in any manner in the collision.

After trial of the case the District Court rendered judgment in favor of the plaintiff and against the defendants in solido in the total sum of $1750.00, being $1000.00 for damage to the plaintiff’s automobile and $750.00 for his personal injuries, pain and suffering, etc. The defendants have appealed and plaintiff has not answered the appeal but in his brief prays that the judgment be affirmed.

Defendants before this Court contend that the plaintiff has failed to sustain the burden of proving that the accident and resulting personal injuries and damages were caused by a gasoline tank unit of Gulf Refining Company. That is the main question in the case.

In reviewing the facts. involved, we can confine our attention to- the main point, as to whether or not the plaintiff has sustained the burden of proof in establishing that the accident was caused by the Gulf Refining Company truck. Obviously the trial Judge so found, but he has not favored us with any written reasons as to why and how he came to that conclusion.

It is clearly shown that the accident did happen, at the time and place alleged and that plaintiff’s automobile was damaged and that h'e did suffer a minor injury to his left elbow. It also appears that the. accident was occasioned by a heavy truck unit attempting to pass plaintiff's automobile and trailer as he was -meeting the -Szanyi truck. However, -the evidence with reference to the identity of the particular gasoline tank unit involved is not convincing and consists of testimony which-is contradictory on many points and vague on others.

Plaintiff himself testified that he did not see any lights on the overtaking transport truck nor did he hear it -blow its horn prior to the time it was passing him; that he was unable to state what color the truck was other than that the back end looked muddy; that he did not see any name or other identification aside from a large ■ light on the rear approximately eight inches in diameter ; that he was unable to state whether or not the overtaking transport truck came in contact with the approaching Szanyi truck; that he brought -his car to a stop as soon as he could and that at that time his car was on the north side of the highway with the trailer jack-knifed across the road, and the Szanyi truck was about 75 feet east of his car in the ditch on the south side of the road. He testified further that immediately after the accident he assisted .Szanyi in securing transportation to a hospital in Hammond, since Szanyi was severely injured and that he at that time sent some young boys to Albany to call State Police in Baton Rouge with instructions to -come to the scene of the accident and also to stop the hit and run transport truck at the traffic circle near Baton Rouge. After awaiting in vain the arrival of the State Police, plaintiff Lambert stated that he checked with Don B.' Herrin with regard to any of his trucks which may have been on the road and then called Mr. Renaudin of the Gulf Refining Company for the purpose of checking trucks of that company which may have been on the road at the time of the accident. Renaudin informed him that they had a truck on the road at about that time and accordingly, Lambert met Renaudin at the Gulf plant in Baton Rouge and , examined the- transport truck there. He states that he found fresh rubs and scratches all the way down the side of the tank on the right side and on-the right 'rear trailer wheel. : He states further that he is positive no other transport trucks passed the scene of the accident .proceeding towards-Baton Rouge between the .time of the accident and 10:00 P.M. He further testified that after the accident he found little white specks on his car at the top of the dooi along the little seam or gutter and that these specks or flecks were at a height which matched perfectly the height of the scratches he detected on the right side of the Gulf tank. He admits that his examination of the Gulf tank and truck was confined to the right side thereof and could not testify as to scratches on any other part of said truck and tank. He also admitted that subsequent to his examination of the Gulf truck, he made further investigation regarding transport trucks on the highway on the evening in question, and also admitted that there were some five or six towns between Albany and Baton Rouge and several side roads leading off the highway.

Szanyi, the other victim of the collision, testified that he was driving a pickup truck belonging to his father-in-law, Steve No-vak, going east on Plighway 190 and that the accident happened as related by plaintiff; he states that as he saw the accident would happen, he pulled over to the right side off the pavement to give the transport truck clearance room and that as the accident appeared imminent, he turned his head so as not to get glass in his face but held on to the wheel. In view of these circumstances he could not tell what vehicle hit him and that he only saw the tank truck and trailer before the accident. In other words, he merely got a glimpse of the truck and trailer before the accident and didn’t notice the color thereof but that it appeared to be a dark color and that he noticed no markings on it. Since the approaching transport truck had no lights, and at the time of the accident the sun had gone down and it was getting dark, it is apparent that Szanyi could not describe accurately the transport truck under the circumstances.

Mike Erdy, witness for plaintiff, testified that he arrived at the scene of the accident shortly after its occurrence and he found the Szanyi green Ford pickup truck in the ditch on its right hand side and that he saw tire marks which clearly showed where the right wheels of the pickup truck left the road and went unto the right shoulder. He further testified that the pickup truck was all banged up on the left side with damage to the front door, headlight and windshield.

Joe Ponczak testified that he lived near the scene of the accident and was in his berry field approximately S00 feet from the highway on the north side when the accident occurred. This witness admits that between him and the accident there was a wooded area and that he did not actually see the accident. He states, however, that he heard the noise of the accident and that thereafter he saw a large transport truck proceeding towards Baton Rouge; that at first he thought the truck had slowed down and would stop, but thereafter picked up speed and kept going. He stated that he noticed that the gasoline truck and trailer were gray but did not notice whether or not the truck had its lights on and could not see any writing or signs on the truck. He was cross-examined with regard to having discussed the accident with Henry Perret, adjuster for The Travelers, at which time, from the cross-examination, he was supposed to have told Perret that he did not know the color of the truck. He insisted that he told Perret that the truck was gray. When questioned with reference to the color of other vehicles involved this witness stated that he could not recall the color of Novak’s truck but that as he recalled, Lambert’s car was a grayish color (Lambert’s car in reality was black).

Mrs. Joe Ponczak testified very much to the same effect as her husband except that she did not go to the scene. She stated that she was in the berry field about S00 feet away and that she saw the transport truck going in the direction of Baton Rouge; that the color of the truck was gray but she was unable to state positively about lights or about lettering or signs on the gasoline truck.

The defendant, William C. Cornet, was first called on cross-examination and later on direct examination. He stated that he was thirty-four years old and had been driving a transport type truck of the type herein involved for some 17 or 18 years. He admitted that he was the driver of the Gulf Refining Company truck allegedly involved in this accident and that on the day of the accident he left Hammond at 6:30 P.M. and arrived at Baton Rouge at 8 :30 P.M. He positively denied that his transport truck was involved in any accident and also positively stated that he did not pass between two vehicles going in opposite directions on his trip from Hammond to Baton Rouge. He testified further that his transport unit was battleship gray and the same equipment driven on a different shift by one Harold Williams. He further states that to his knowledge on that particular route, other truck units of the same type were operated by Capital Transport Company, D. B. Herrin and others; that the Capital Transport Company units had yellow trailers with tractors of varying colors and that the Herrin trucks were painted red with white letters; that, in addition to these gasoline lines, there were various milk trucks of a type similar to the gasoline trucks; that his truck had lettering in black on the hose panel on both sides “Inflammable Gas” and on the back end “Gasoline — Dangerous—Inflammable”, and had “Gulf Refining Company” on both cab doors of the tractor.

Cornet also identified various photographs made by Francis Julias, professional photographer, who also testified with reference to these photographs. The photographs and testimony with reference thereto show that the unit driven by Cornet was as testified by him, battleship gray.

Mr. R. G. Renaudin, Baton Rouge agent for'the Gulf Refining Company, testified that on the evening of April 23, 1946, Lambert called at his home and stated that a yellow truck had hit him coming out of Hammond; that he informed Lambert that Gulf did not have a yellow truck coming out of Hammond but that there was a Gulf truck on the road at about the time stated by Lambert; that he and Lambert went to the Gulf plant and examined that truck and Lambert had pointed to some scratches found on the right side and a rub mark on the right rear trailer tire as indicative that the truck had been the one which struck him. Renaudin further testified that this truck and trailer were battleship gray and had “Gulf Refining Company” and “Truck 19745” written on both doors. He further identified photographs D-3 through D-10 as being pictures of a Gulf Refining Company truck and trailer, stating that the trailer shown was not the identical trailer used by Cornet on April 23, 1946, but was just like it except for the new paint (orange) and the “Gulf” signs on the sides and the back. He denied that any fresh marks were found on the tank unit at the time of his examination by him and Lambert but admitted that there were marks not only on the right side, but also all around the unit which in effect were old marks.

With reference to photographs, there was some argument with reference to D-3 through D-9 to the effect that the trailer therein shown was not identical to the trailer used on April 23, 1946. Later the original trailer was located and photographs M-l through M-5 were made and these appear to verify the similarity.

Hooper Kenip, Chief Clerk of the Gulf Refining Compiany, stated that he was responsible for the operation and maintenance of the company trucks and was familiar with the equipment driven by Cornet on April 23, 1946, which was the same equipment driven by Harold Williams on another shift that day. He stated that Renaudin told him about his conversation with Lambert and that, as a result, he inspected the transport truck when it came back to the plant some time before noon on April 24, 1946 and that he found only a tire rub on the right rear trailer wheel which was the kind of mark made by the wheel rubbing against a curb and was not an unusual mark for that type of equipment. He also stated that there were old marks and scratches on the unit but no .fresh marks or scratches indicating a collision.

Two eyewitnesses to the collision were produced by the defendant, to-wit Norman Gill, Sr. and Norman Gill, Jr. These witnesses testified very much to the same effect; that they lived about 100 feet south of the highway and some 250 or 300 feet west of where the accident occurred; that the view from their house was clear and that they saw the transport truck going towards Baton Rouge after they heard the crash and that in effect it was a yellow color. Gill, Sr. testified correctly with reference to the color of the-Lambert car, black, and with reference to the pickup truck. We are particularly impressed with the testimony of Gill, Jr. because he was clearly in a position to see the transport truck, and his testimony was in no way shaken, in spite of vigorous cross-examination.

Henry Perret, Adjuster for The Travelers, testified with reference to his investigation of the accident. He stated that he assisted Kemp in taking the measurements of the transport truck and passenger car at the Gulf plant in Baton Rouge and further that he called on Joe Ponczak on October 30, 1947 and discussed the accident with him. He stated that Ponczak told him what he knew about the accident but further stated that while he saw this type truck go by, he could not tell its color or give any other identification thereof; that Ponczak also gave him the name of Norman Gill, who lived right across the highway, and that consequently he then went over to talk with Gill. It is contended that Perret had paid Gill money to testify for the defendants. This, he vigorously denied, although he admitted that he promised Gill that he would be refunded his expenses for coming over to testify.

The testimony of Harold Williams was taken by deposition and is very similar to that of Cornet. He stated that on April 23, 1946 when he took the truck out, there were scratches on the truck which had been there since he had been employed by Gulf Refining Company in Memphis, Tennessee, stating that it was a common thing for a transport or any truck traveling up and down the highway to get scratches on it when turning into terminals. He states that o,n April 24, 1946, he drove the same truck that was supposed to have been in the accident on the, night of April 23, 1946; that he examined the truck, as he did every morning, and found that there was at that time no difference at all in its condition. With reference to the color of the truck, he too states, that it was battleship gray.

Steve Bailey, Claim Adjuster for Travelers, testified that he' investigated the accident after suit was filed and talked with Cornet, Renaudin, State Police, Hooper Kemp and Harold Williams. His testimony has little bearing on the case except it is shown by it that both he and Perret went to work for Travelers after the date of this accident.

On rebuttal the plaintiff produced the testimony of state trooper L. E. Wright, who testified that on June 5, 1946, Cornet wrote a statement which is in evidence as Exhibit P-2- with reference to the accident. Trooper Wright was unable to state whether at that time Cornet denied that he had been involved in the accident and admits that he never asked Cornet whether he had been involved in the accident. He identified a photostatic copy of a report dated June 8, 1946, addressed to Captain R. M. Walker, as having been written by him and signed by himself and Trooper Earl Seg-uin. This report stated that Cornet did deny being involved. However, Trooper Wright'was unable to state to whom Cornet had made the denial and stated that it was not made to him.

Also on rebuttal plaintiff called Vic Anderson, Marshal of the City Court of Hammond, who identified some note sheets ■handed to him as containing notes in his own handwriting. He then testified from the notes that on May 31, 1946, Trooper Hayden, Attorney Sims, and he, had gone to the Gulf Bulk plant in Hammond, where they talked with William Cornet. Anderson related that Cornet admitted that he had driven the same truck on the highway on April 23, 1946, but stated that he had not been involved in any accident. Witness further stated that a short time later Cornet remarked to him privately that if he had been in the accident he didn’t know anything about it.

A review of the testimony reveals that there is serious dispute with reference to the identity of the transport truck which appears to have been involved and probably caused the accident on which this suit is based.- It can probably be.said that the plaintiff has proved that the accident was caused by a transport .truck. The burden of proof which rests upon him demands -that he prove by a preponderance of evidence the particular transport truck involved. The strongest point in plaintiff’s favor is his contention that the Gulf Refining Company truck was the one involved in the fact that it was on the highway and passed the scene of the accident at about the time of its occurrence. This, plus the testimony of Lambert, to the effect that no other transport truck passed the scene of the accident, subsequent to the accident, up until 10:00 P.M., may have been the factors which convinced the trial judge. However, it will be noted that Lambert was unable to describe the truck involved and that even after he saw the Gulf Refining Company truck on the night of the accident and saw the alleged scratches and rubs thereon, he was still unconvinced and continued his investigation. His two star eyewitnesses, Mr. and Mrs. Ponczak, saw the truck at a distance of at least 500 feet and while they both testified that the truck was gray in color, their testimony is not very convincing. Ponczak, according to Perret, told him that he could not tell what color the transport truck was and Perret’s testimony is hard to disbelieve, particularly in view of the fact that it is difficult to believe that Mr. and Mrs. Ponczak could tell the color of this transport truck at a distance of 500 feet at dusk.

On the other hand, you have the positive testimony of Norman Gill, Sr. and Norman Gill, Jr. that the truck they saw traveling towards Baton Rouge was yellow in color and these two witnesses were only 100 feet away with a clear view from the truck.

It may be noted that counsel for plaintiff argues that even should it be found that the transport truck did not come in direct contact with the Lambert car on the Szanyi truck, if it be found that it did attempt to pass these two vehicles while they were meeting, it should be concluded that the emergency which resulted in the accident was caused by the truck and that therefore, liability should be placed on the defendants. This argument, while sound, is somewhat contradictory to Lambert’s testimony that he definitely found fresh scratches and rubs on the truck showing actual contact. Nevertheless, the fact still remains that in any event it must be concluded, in order to affirm this judgment, that it has been shown •by the preponderance of the evidence that this particular truck unit was the one involved.

In view of the positive testimony of Mr. Cornet, the driver, of Mr. Renaudin, the Gulf agent who examined the truck on the night of the alleged accident with Mr. Lambert, of Mr. Kemp, Chief Clerk of Gulf, who also examined it, and Mr. Williams, the other driver of said truck, and of the testimony of Norman Gill, Sr. and Norman Gill, Jr., with reference to the •color of the transport truck in the collision being yellow (it being shown that the Gulf truck was battleship gray), and in view of the further circumstance that while this truck was photographed and examined in the presence of State Police officers, that none testified with reference to fresh scratches and rubs indicating a collision, it would seem that the evidence preponderates to the effect that the Gulf truck was not involved in the collision instead of preponderating to the effect that it was. In any event, we do not feel that it can be said that the plaintiff has proved to a legal 'Certainty that this particular truck was the one involved in the collision. The best that can be said in his favor is that he has shown a possibility or probability that this truck was the one involved. That is not sufficient to sustain the burden resting upon him and we must therefore reverse the judgment appealed from and dismiss plaintiff’s suit.

For these reasons, it is ordered that the judgment appealed from is hereby reversed, annulled and set aside and plaintiff’s suit is dismissed at his costs.


author: ELLIS, Judge.

text:
    RABORN v. DAVIS TRANSPORT, Inc.
    No. 3142.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    Reid & Burch, Amite, for appellant.
    Ponder & Ponder, Amite, for appellee.
   ELLIS, Judge.

This is a suit in which the plaintiff is seeking to recover damages to his automobile as a result of a collision with the truck of the defendant. The plaintiff alleged that on or about September 21, 1947 at approximately 4:30 P.M. his automobile was being operated by his wife in a southerly direction on Highway SI at. the village of Tangipahoa, Louisiana, and that while so driving “she was suddenly run into by the defendant truck which was traveling in the same direction on said Highway 51 and ran into the rear of your petitioner’s automobile.” The petitioner further pleaded the doctrine of res ipsa loquitur and, in the alternative, that the defendant was negligent in that the truck was being operated at a speed in excess of SO miles per hour. and, therefore, the driver did not have it under control and that the operator of the truck was unable to stop it, “either due to defective brakes or in failing to see and heed what he should have seen and heeded.” The petitioner alleged that he had sustained damages in the amount of $437.59 “as per itemized statement hereto annexed as part hereof.”

The defendant filed a general denial and further answered that the true facts were that the defendant’s truck was being operated by its employee, K. C. Trammel, and was proceeding south on Highway 51 to the rear of plaintiff’s car, at or near the village of Tangipahoa on the day in question, and that at .the same time a Ford car was being driven north on said highway and that the driver of plaintiff’s car attempted to make a left turn in front of the on-coming Ford car and in front of defendant’s truck, whereupon the defendant’s truck driver stopped the truck entirely, and plaintiff’s car. was struck by the northbound car and pushed into the defendant’s truck while same was completely stopped, and, therefore, any damage which may have been caused by the collision was caused entirely and solely by the fault of the driver of the plaintiff’s car in attempting to make a left turn in front of the approaching northbound car.

The case was duly tried and the judge of the District Court rendered judgment as prayed for in favor of the plaintiff, from which judgment the defendant has appealed.

The main dispute in this case is one of fact, that is, whether the defendant’s truck ran into the rear of the plaintiff’s automobile or whether, as set up by the defendant in its answer, the plaintiff’s automobile was struck by a northbound car and knocked back into the truck of the defendant. It is undisputed that the plaintiff’s car and the truck were traveling south on the highway just prior to the accident, and that a third car was traveling north on Highway 51 and was being operated by the wife of J. C. Warren, a colored man, and that Mrs. Raborn, on reaching the intersection of the main street of Tangipahoa and the highway and intending to make a left-hand turn at this point in order to cross the railroad tracks which are parallel and adjacent to the highway, gave the proper hand signal for such a turn, which was seen by the driver of the defendant’s truck and which he contends he honored by bringing his truck to a stop: Mrs. Raborn testified that she had slowed down and almost come to a stop as she was waiting for the northbound Warren car to pass, when the truck struck her in the rear and knocked her across the center' line and into the northbound traffic lane and caused her to strike the left front, left side, and left rear fender of the northbound car as well as to damage her left front fender, left side and left rear fender of her own car.

Counsel for defendant strenuously objected to any testimony to prove that plaintiff’s car had been knocked into another car for the reason that the petition of plaintiff only alleged that the defendant’s truck ran into the back of the plaintiff’s car and nowhere in the plaintiff’s petition was it alleged that there was any third car involved. Defendant’s objection also covered any claim for damages that might have been caused to plaintiff’s car when it ran into the northbound Warren car.

The Court ruled that the objection should go to the effect of the testimony and that, inasmuch as the defendant itself plead and alleged there was another car involved in the accident, it would hear the testimony subject to the objection.

The ruling of the Court was correct as plaintiff in his petition set up the amount of damages “as per itemized statement hereto annexed as part hereof,” and prayed for judgment for such damages in the sum of $437.59, having alleged that such damages were the result of the neeli-gence of the operator of the truck in striking plaintiff’s car in the rear. Plaintiff was entitled to make such proof. Proof of such damage was given by the mechanic, Inkembrandt, who finally obtained the repair job and made the estimate properly introduced.

Plaintiff has offered the testimony of eight witnesses, seven of whom were eyewitnesses and the eighth was a mechanic who made the estimate of the damages and partial repairs to plaintiff’s automobile. All of these witnesses testified that the defendant’s truck struck the plaintiff’s automobile in the rear, knocking it into the other lane of traffic where it collided with a northbound automobile which was passing at that time.

The defendant offered the testimony of the driver of its truck and of Walter Gill, a Deputy Sheriff. He testified to a conversation he had with Mrs. Thad Raborn, wife of plaintiff and operator of the automobile on the day of the accident, sometime after the accident, several days or several weeks. Mr. Gill’s testimony was vague but we gather that it was his understanding from talking to Mrs. Raborn that only the Warren car was involved in the collision, in other words, that Mrs. Raborn had not mentioned to Mr. Gill that the truck of the defendant had struck her automobile in the rear.

The plaintiff’s automobile was being operated by Mrs. Raborn and, sitting next to her on the front seat, was Mrs. Louise Kennedy Jones, and on the right-hand side on the front seat was another guest, sister of Mrs. Raborn, Mrs. Lula Tortorice. We can see nothing wrong with the testimony of these ladies. They are most positive in their testimony that the truck struck the rear of the automobile first and knocked it into the on-coming northbound Warren car.

We also have the testimony of J. C. Warren, the owner of the northbound car, and Mary Lee Warren, his wife, who was driving at the time of the accident, and their testimony is direct and we see no reason to disbelieve it. It is the same as the testimony of the three ladies and other disinterested -eyewitness, Eugene Tate, who testified that the plaintiff’s automobile was first struck by the defendant’s truck, causing it to be knocked into the Warren car.

Counsel for defendant strenuously argued that the plaintiff’s witnesses could not be correct in their version of the accident as they testified that plaintiff’s automobile was struck by the truck a straight blow in the rear, and that the automobile was headed straight south on the highway, and, therefore, the automobile would have proceeded straight down the highway rather than across the highway. While we have searched the record in vain to find any testimony as to where plaintiff’s automobile finally came to a stop after the collision, either as a result of being knocked across the highway or as a result of being knocked back into the truck, it is our belief that at the time of the blow to the rear of the automobile by the truck plaintiff’s wife had turned her front wheels slightly to the left. This is borne out by the testimony of the driver of defendant’s truck as he stated that Mrs. Raborn had cut her wheels in order to make the left-hand’turn. Certainly, this would have been the natural thing for Mrs. Raborn to have done in anticipation of making the left turn, and when struck in the rear, it" caused her cai-to cross to the left side of the highway. We agree with counsel for defendant’s statement in brief and argument that had this truck, which had a combined weight of 28,400 pounds, been going 35 or 40 miles an hour when it struck the automobile, it would have caused much more damage and, more than likely, would have been fatal to the occupants of the car, however, we don’t believe that the truck was going at that rate of speed.

Another reason given by counsel for defendant in his brief and argument as to why plaintiff’s witnesses are unworthy of belief was that Mrs. Raborn, after the collision, still did not know that her car had been struck in the rear, and that the driver of defendant’s truck parked the truck, went over to the depot and told her and it was at that time that Mrs. Raborn get out of the car to see what damage had been done. There is no positive-testimony to show that Mrs. Raborn did not know that her automobile had been struck in the rear by the truck, in fact, her testimony is to the contrary, and she was not questioned as to why she did not get out of her automobile immediately after the wreck rather than drive across the railroad tracks to the depot, however, her sister, under cross-examination, testified that she got out of the car at the depot to go and talk to the driver of the truck but that she saw him coming to where they were parked. Her reason as to why they did not stop, according to her testimony, was that the accident had taken place in an intersection on Highway 51, and that in view of the exceedingly heavy traffic on this highway, they felt it best to drive the car off of the highway. This explanation appears to be reasonable as no one was hurt, traffic was heavy, and there is nothing in the record to show that anyone was attempting to flee the scene of the accident, and the distance from -the scene of the accident to the depot where they finally parked was very short.

In addition to the above testimony, we also have in the record the positive testimony of the three occupants of plaintiff’s car and Tate, who was apparently, disinterested, to the effect that the driver of the truck admitted liability and stated that the insurance company would take care of it. This was denied by the driver of the truck.

Taking into consideration all of the testimony, we are of the opinion that plaintiff has established the negligence of the operator of the truck of the defendant company.

As to the quantum, it is necessary that we take the estimate of $431.42, and on this we find a charge for one right front fender of $20.70. The mechanic who changed this fender testified that he did so on account of rust spots. Further, as there was no testimony that there was any damage to the right front portion of plaintiff’s car, this item should not have been allowed.

It is, therefore, ordered that the judgment of the District Court be amended by reducing same from $437.59 to $410.72, and as -thus amended that it be affirmed, plaintiff to pay the cost of the appeal.


text:
    HITZMAN et al. v. ETHYL CORPORATION et al. SAUCIER et al. v. ETHYL CORPORATION et al.
    Nos. 3133, 3134.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    Durrett & Hardin, Fred G. Benton, Baton Rouge for appellant.
    Taylor, Porter, Brooks & Fuller, Baton Rouge, Tucker, Bronson & Martin, Shreveport, for appellee.
   DORE, Judge.

These two suits were brought by employees of the defendants, Ethyl Corporation and E. I. duPont deNemours & Company, Inc., its predecessor, under the Fair Labor Standards Act of 1938, Acts of June 25, 1938, c. 676, 52 Stat. 1060, 29 U.S. C.A. §§ 201-219. The two cases were consolidated’ and presented together to the District Court, as they involve the same issues or issue.

The Hitzman case alleges that the various petitioners (Francis A. Hi'tzman and numerous others) were employed in the Tetra Lead Ethyl Department of the predecessor to Ethyl Corporation, the E. I. duPont deNemours & Company, Inc., working as shift men at the plant of said company in the Parish of East Baton Rouge, for the eleven months’ period beginning Nov. 13, 1944, and ending Oct. 12, 1945, but not employed by either defendant at the time of filing the suit. The petition further alleges that all the petitioners are of full age and members of the United Mine Workers of America, Locals 12883 and 12900, District 50, Independent, and that said union entered into a written stipulation with the defendant Ethyl Corporation, after previous negotiations, with. reference to a dispute which arose between them that “at the request of the National War Labor Board, they do hereby agree to accept the final action by the Eighth Regional Board as final and binding arbitration on the' issue in dispute * * * ”. It is shown by the petition and other pleadings that the issue in dispute was whether or not the employees (or certain employees) of the defendants were entitled to certain change clothes time as compensable work time under the Fair Labor Standards Act of 1938. The “change clothes time” issue is based on the proposition that certain employees of defendants in order to perform their work were required to change their clothes and/or bathe before reporting to their respective duties, and similarly upon leaving their work.

The Saucier suit is based on the same material allegations as the Hitzman suit except that it alleges “That petitioners are patrolmen or guards now employed by the Ethyl Corporation at its plant * * * and were similarly employed as guards or patrolmen in the Tetra Ethyl Lead Department of the predecessor * * * for the eleven months period beginning November 13, 1944, and ending October 12, 1945.”

The Hitzman case was filed April 19, 1947; the Saucier case on April 15, 1947. In each case, by reference the record of the case of Howard Williamson et al. v. E. I. Dupont de Nemours & Company et al. was made a part of the petition.

The Williamson case was based on the same general proposition that certain employees of the defendants were entitled to additional compensation under the Fair Labor Standards Act of 1938 because oí “change clothes time”. It is alleged in the original Williamson petition that “This suit is for and on behalf of all the named petitioners herein separately and severally and for and on behalf of all other parties who' may be timely added as parties petitioner by supplemental pleading, intervention or otherwise, all of whom are of the same general class and similarly situated with petitioners herein as employees of the defendants as aforesaid.” It is further alleged in the Williamson case that “The petitioners * * * and all others similarly situated and of the same class are employees of the defendants * * * and have been so employed by the defendants for more than one year immediately prior to filing of this cause; * * * engaged as employees in the production of goods for commerce (interstate), within the meaning of the Fair Labor Standards Act of 1938.” It is further alleged in the Williamson petition that the petitioners were required and directed by the defendants, as a condition of their said employment, to wear specially provided clothes and equipment while working and were required and directed by the defendants to change from their street clothes to their said work clothes at designated change rooms on plant premises at the beginning and end of each daily work shift, and, .in effect, that this "change clothes time” should be added to their “work time”.

The Williamson petition further sets forth that the demand of the employees was submitted to arbitration by the Ethyl Corporation and the Union to the Eighth Regional War Labor Board, with the stipulation that the final action of said Board would be a final and binding arbitration on the issue in dispute.

The Eighth Regional War Labor Board rendered its arbitration award on Oct. 26, 1945, on the stipulation submitted of date October 17, 1945. This arbitration award allowed compensation for clothes changing time to employees in the Tetra Ethyl Lead Division and the cell room of the Sodium Section, but denied compensation to other employees.

Settlement was made in the Williamson suit, as set forth in defendant’s brief, to the following effect:

(a) Plaintiffs acknowledged that defendants were in full compliance with the Fail-Labor Standards Act on and after Oct. 13, 1945.

(b) For employees in the Tetra Ethyl Lead Division, not theretofore settled with, settlement was made for a period of eleven months, beginning Nov. 13, 1944, and ending Oct. 12, 1945. (The Court had sustained exception of one year as to all claims for wages more than one year prior to the dates the plaintiffs respectively brought suit. The suit was filed by some on Nov. 13, 1945, and others intervened by supplemental petitions at later dates. For the sake of uniformity of treatment, all plaintiffs were treated as though they had filed suit the same day.)

(c) Payments were calculated by crediting each plaintiff entitled to judgment under the settlement with 30 minutes for clothes changing time for each work day.

(d) By agreement included in the settlement were certain employees of the Tetra Ethyl Lead Division who were still employees, but who had not brought suit, in the interest of uniform treatment of all employees similarly situated. Settlement with former employees, no longer employed, was refused.

To the petitions of plaintiffs in the Hitz-man and Saucier cases, the defendants filed exceptions, including a plea of prescription. The trial court was of the opinion that the plea of prescription should he sustained, and therefore found it unnecessary to pass on the other exceptions and sustaining the plea of prescription dismissed the suits of plaintiffs at their costs. The plaintiffs have appealed.

The only question before this court is whether or not the trial court was correct in sustaining the plea of prescription.

It is the contention of defendants that these claims for overtime compensation under the Fair Labor Standards Act of 1938 were claims for wages (with which contention the trial judge agreed), and therefore prescribed under Articles 3534 and 3535 of the Revised Civil Code. Article 3534 R.C.C. provides:

“The following actions are prescribed by one year: * * *
“That of workmen, laborers and servants, for the payment of their wages.”

Article 3535, R.C.C. provides: “In the cases mentioned in the preceding article, the prescription takes place, although there may have been a regular continuance of supplies, or of labor or other service. It only cease’s from the time when there has been an account acknowledged, a note or bond given, or a suit instituted.”

The Fair Labor Standards Act of 1938 contained no provision limiting the time for bringing actions under its provisions when these suits were filed, and in the absence of congressional legislation, the Courts of the United States will apply the statutes of limitations . (prescription) of the State in law actions. That principle has been repeatedly applied under the Fair Labor Standards Act of 1938. See Loggins v. Steel Construction Co., 5 Cir., 1942, 129 F.2d 118, a case arising in this state. See also annotations in 29 U.S.C.A. § 216, Note 49.

The trial judge correctly stated in his opinion that “Inasmuch as the alleged wages * * * cover a period far in excess of one year prior to the filing of the original and supplemental petitions * * * the plea of prescription of one year must be sustained and plaintiffs’ suit dismissed unless there was an interruption of prescription, for under the law of Louisiana such claims are prescribed in one year;” citing the case of Johnson v. Anderson-Dunham Concrete Company, 212 La. 276, 31 So.2d 797.

Plaintiffs’ counsel in their brief concedes that Johnson v. Anderson-Dunham Concrete Company, supra, plainly shows an overtime claim of this sort is within the scope of the section containing Article 3534, et seq. which governs wage claims; hut they contend that there are a number of reasons why the plea of one year prescription is not applicable to the facts of this case. Their contentions summed up are to the effect that the actions of the Union and the Company, and the Eighth Regional Labor Board, and the settlement in the Williamson case, put the present plaintiffs ' in the similar position of the petitioners in the Williamson case, thereby giving them ten years to prosecute their claims or in the alternative the actions aforesaid were tantamount to an acknowledgment (an account stated) on the part of the Company on behalf of the present plaintiffs, since they were persons similarly situated to the employees involved in the Williamson settlement. Plaintiff’s brief states: “There would seem to be.little or no doubt but that pretermitting the issue of compromise adjustment hereafter discussed prescription in the first place was interrupted by, first, the provision in the contract of Feb. 23, 1945 wherein the right was expressly reserved, and second, by the stipulation of Oct. 17, 1945 (submitting the arbitration to the War Labor Board), antedating the War Labor Board wherein defendants expressly agreed to be bound thereby, third, by the award itself of date Oct. 26, 1945, and finally by the institution of the suit in Howard Williamson, et als vs. E. I. DuPont deNemours and Company et als, supra, filed Nov. 13, 1945, and by all the subsequent proceedings had therein * * * ending with the stipulation, of facts dated Jan. 9, 1947, and filed on the same date, and the final judgment of the court signed on March 10, 1947.”

The answer to the above is succinctly set forth by the trial judge in his written opinion as follows: “I can see no merit in the contention of plaintiffs that the filing of suit by other employees interrupted the running of prescription against the present plaintiffs who were not parties to that suit. It must be remembered that the claims asserted by these plaintiffs belong individually to each plaintiff and in my opinion in order for any individual plaintiff to interrupt prescription as to his claim for wages, it would be necessary for him to join in the suit originally 'as a party plaintiff or become a party by supplemental petition and if he did so become party by supplemental petition, then prescription would be interrupted from the date of his filing his supplemental petition.”

In so far as the question of acknowledgment is concerned, that is controlled by-Art. 3520, R.C.C. which provides : “Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribe.”

The jurisprudence interpreting the quoted article is to the effect that the acknowledgment must be clear, specific, positive and unequivocal, and made with the intention of interrupting prescription.

In the case of Bremer v. North Central Texas Oil Co., Inc. et al., 185 La. 917, 171 So. 75, 77, a case wherein the Supreme Court of this State had under consideration the interpretation of Art. 3520, R.C.C., the Supreme Court stated: “But Article 3520 of the Code, which says that prescription ceases to run whenever the debtor or possessor ‘makes acknowledgment of the right of the person whose title they prescribe/ does not mean that a mere acknowledgment of the existence of the rights of those in whose favor the servitude runs interrupts prescription. There must be more than a bare acknowledgment; the acknowledgment must be accompanied by or coupled with ‘the purpose and intention of the party making the acknowledgment to interrupt the prescription then running.’ Such was the opinion of every member of this court when the case of Frost Lumber Industries, Inc., v. Union Power Co., Inc., 182 La. 439, 162 So. 37, was decided on April 1, 1935. We reached that conclusion after an exhaustive review of the jurisprudence on the subject.”

• There is nothing in the actions of the Union and the Company and the War Labor Board and the filing of the Williamson suit which, in the least, interrupted the running of prescription of non-suing employees even though similarly situated. Furthermore, there is nothing in the compromise agreement to show or even indicate that the company intended to interrupt the running of prescription in these plaintiffs’ behalf. To the contrary, these plaintiffs were specifically excluded from the benefits of the compromise agreement. The action of these plaintiffs in the suits before us was not timely and therefore prescribed.

For these reasons the judgments appealed from are affirmed.


text:
    HARDY v. DAIGRE-GILBERT UNDERTAKING, Inc., et al.
    No. 3151.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.

      Watson, Blanche, Fridge, Wilson & Posner, Baton Rouge, for appellants.
    Ashton L. Stewart, Baton Rouge, for appellee.
   ELLIS, Judge.

This suit was filed as the result of an intersectional collision that occurred in mid-afternoon on August 27, 1948 between a bus owned and being driven at the time by the plaintiff, and an ambulance owned by the defendant and being operated by one of its employees. Plaintiff has joined defendant’s liability insttrer, the Standard Accident Insurance Company. The collision occurred at the intersection of North 19th Street and Gracie Street in the City of Baton Rouge.

Plaintiff alleged that his bus entered the intersection before the ambulance and had its front end beyond the center line of Gracie Street when the driver of defendant’s ambulance disregarded a' stop sign and recklessly and at an excessive speed entered the intersection. and struck the bus on its side at a point just behind the front right door with the front end of the ambulance and damaged the bus, as per an itemized statement annexed to the petition.

The defendant filed its answer which was in effect in general denial and further answered that the ambulance was being driven east on Gracie Street at a lawful rate of speed with its red emergency warning light blinking and its siren sounding continuously until it reached the intersection of Gracie and North 19th Street; that as it reached this intersection the driver slowed the vehicle down in order to ascertain if he could proceed without endangering those who might be in, or entering said intersection and that at that time defendant’s driver observed that traffic from his left had yielded the right of way and he 'then assumed it safe to enter said intersection without interference ; that the driver then looked to his right for any traffic coming from the opposite direction on North 19th Street and ascertained that he could cross the intersection without any fear of interference from vehicles proceeding in that direction; that while his attention was directed to the right, or south, on North 19th Street the plaintiff negligently and recklessly proceeded to pass around the two automobiles which-had already stopped in order that the ambulance might proceed, and entered the intersection from the north end on the left, or east side, of North 19th Street without any warning whatsoever; that as. soon as defendant’s driver saw that the plaintiff was about to enter the intersection he immediately applied his brakes, and did all that he could to avoid the collision; that the plaintiff was grossly negligent in passing around the automobiles that had stopped to give the defendant’s ambulance the right of way, and in so doing created a sudden emergency not due to any fault of defendant’s driver, and the defendant further charged that the plaintiff was negligent in failing tó immediately drive his bus to the right -hand curb of North 19th Street upon the approach of the emergency vehicle and in failing to see and hear the ambulance when he could and should have seen or heard it, and, therefore, that the plaintiff’s negligence was the sole and proximate cause of the collision.

The case was duly tried and resulted in a judgment in favor of the plaintiff as prayed for. From this judgment the defendants have prosecuted this appeal.

There was introduced in evidence an official safety bulletin of the City of Baton Rouge, Louisiana for the year 1944 containing Traffic Ordinances and Amendments, among other things. The plaintiff specifically contended that the driver of the ambulance violated the following ordinance regulating the operation of the ambulance which is designated as an authorized emergency vehicle under the terms of this ordinance which reads:

“Section 6. Exemptions to authorized emergency vehicles:'
“The provisions of this ordinance regulating movement, parking and standing of vehicles shall not apply to authorized emergency vehicles while the drivers of such vehicles are operating the same in an emergency in. the necessary performance of public duties, except that such drivers shall not drive through an intersection where a traffic signal is exhibiting the signal 'red' or 'stop' without first slowing down and ascertaining that such can be done safely and without endangering those who might be in, or entering such intersections ; and provided further that drivers of ambulances shall in no event drive same at a speed in excess of forty miles per hour. However, this exemption shall not protect any of the drivers of vehicles of the fire and police departments and of ambulances from the consequences of reckless disregard of the safety of others.”

The Lower Court in its written reasons found “that plaintiff entered the intersection first and that the collision was caused by the negligence of the defendant’s driver by not having his ambulance under control as a result of driving at an excessive speed at this intersection where a stop sign required him to stop and which he was permitted to pass through without stopping only after first ‘slowing down and ascertaining that such can be done safely and without endangering those who might be in, or entering such intersection * * ”

Thus, the District Court Judge squarely held that the ambulance had violated the provisions of Article 2, Section 6 of the traffic ordinances of the City of Baton Rouge. We will consider this phase of the case first.

The facts as revealed by the record show that on the date of the collision that the plaintiff, who operated a passenger bus to and from the Standard Oil Company where he was also employed, was traveling in a southerly direction on North 19th Street and had aboard some 25 or 28 passengers and was proceeding slowly at a speed of from 10, and not more than 15, miles per hour; that there had been an automobile collision at the intersection of North 20th Street and Gracie Street which is one block further east from the scene of the collision in the present case, and that as a result of this collision the defendant received an emergency call and in response thereto the ambulance was being driven in an easterly direction on Gracie Street at a speed estimated to be from 30 to 35 miles per hour. There was a stop sign at the intersection which required vehicles entering North 19th Street from Gracie Street to stop before proceeding into North 19th Street. There is no doubt that the ambulance had its warning lights blinking and its siren sounding as proven by the two police officers who saw the collision from the scene of the previous collision one block further east on Gracie Street at its intersection with North 20th Street and also by the testimony of a disinterested witness, namely, Russell E. Venable of Clinton, Louisiana, who at the time and on the day of the collision was operating the filling station located on the southwest corner of Gracie and North 19th Street. All three of these witnesses testified that they heard the siren at least two or three blocks away and that it also had its red warning lights blinking. It is true that plaintiff offered the testimony of himself and seven of his passengers on the bus to the effect that they did not hear the siren until the ambulance was 30 to 40 feet from the point of the collision. They testify that they heard the siren just as the brakes were applied and that it seemed to them as if the siren and brakes all came on at the same time. We believe that it is established beyond any doubt that the siren was being continuously sounded on the ambulance, except that the sound was somewhat diminished when the driver of the ambulance took his foot off of the siren button in order to make the turn from North 18th Street into Gracie Street.

The point at which the ambulance struck the bus was approximately in the center of North 19th Street which would also be the center of the intersection of the two streets as testified to by the police officer.

The defendant contended that the reason the ambulance driver proceeded across the stop sign was because two automobiles had pulled up to the right curb of North 19th Street, and the ambulance driver naturally presumed that Gracie Street was clear and therefore continued thereon; that the bus driver, however, did not pay any attention to the parked cars, and went around them creating the emergency which resulted in the collision in spite of every effort on the part of the driver of the ambulance to avoid it. That contention of the defendant is supported by the positive testimony of the ambulance driver and of witness Venable, but is contradicted by the positive testimony of the bus driver and his passengers, and to some extent by the police officer who stated that he did not see any parked cars at the intersection. He was a block away and may not have been in a position to see whether or not there were two cars parked there.

Regardless of the above contention, it is shown that there is a vacant lot on the northwest corner of the intersection of North 19th Street and Gracie Street which would have afforded the drivers of both vehicles a clear view of each other quite a distance back from the intersection. There is also some testimony by Venable that the ambulance slowed down for the intersection, but giving full credit to the driver of the ambulance for sounding his siren and for seeing two cars which he believed were yielding the right of way, he did not keep the proper lookout. He should have seen plaintiff’s bus as he had an unobstructed view across a vacant lot and even if the bus was passing the two cars at the time he looked, it is shown that the bus was much taller than the ordinary automobile and there was nothing to prevent the driver of the ambulance from* seeing this bus. Therefore, he was negligent in not keeping a proper lookout, and although his speed was not in excess of that fixed by the ordinance, which was 40 miles per hour, it was excessive to .such an extent as to constitute negligence, as the skid marks were 39 feet in length, and even then he was unable to bring his ambulance to a stop before striking the bus. He should have slowed down to such a speed as would have enabled him to have stopped his ambulance so as not to endanger those who might be in, or- entering the intersection, as provided by the traffic ordinance. The trial Judge was correct in holding that the driver of the ambulance had violated the traffic ordinance quoted, and that such violation was a proximate cause of the collision.

The defendants strenuously urged their plea of contributory negligence based upon the contention, among others, that the plaintiff violated Article 2, Section 30 of the Traffic Ordinances of the City of Baton Rouge which states:

“Operation of other vehicles on approach of authorized emergency vehicles:
“Upon the approach of any authorized emergency vehicle, provided said emergency vehicle gives an audible signal by bell or siren, the driver of every other vehicle shall immediately drive same to a right hand curb of the streets, on all streets except one-way streets, and then on either right hand edge or left hand edge of such one-way street, clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle or vehicles shall have passed, unless otherwise directed by a police officer.”

The Judge of the District Court held that the plaintiff was not guilty of contributory negligence in failing to see-the ambulance or hear the siren which was being sounded by defendant’s driver for the reason that in his opinion “there could be no violation of this ordinance unless the evidence should show that the siren was actually heard by plaintiff and he disregarded same.” He cited the case of Roll Osborn & Sons, Inc., v. Howatt, La.App., 167 So. 466, 469, and stated in his reasons that the Court in that case, “In passing .upon the question involving the alleged negligence of a driver in not hearing a siren being -sounded by an ambulance driver, said: ‘* * * While many witnesses heard the siren, their ability to do so was. not ■ interfered with by the noise of a running automobile as was his. He had no. reason to anticipate the approach of the ambulance, and was not delinquent in failing to see and hear that' which .he was not legally required to anticipate/ ” (Italics by District Court.)

The Osborn case, supra, involved an intersectional collision between an ambulance and an automobile. The automobile was proceeding on a green light which it had a legal right to do under the Traffic Ordinances, of the City of Shreveport, and the ambulance was proceeding in the face of a red light which it specifically had no legal right to do under the city ordinance. The contention was made that the ambulance was granted certain privileges under provisions contained in the State traffic laws. The Court specifically held that under the law the City ordinances-prevailed and, therefore, the ambulance was violating a positive law by proceeding in the face of a red light and that the driver of the automobile “had no reason to anticipate. the approach of the ambulance, and was not delinquent in failing to see and hear that which he was not legally required to anticipate.” In the present case, the law gave the ambulance the right to cross a street in the face of a red light or a stop sign, provided the driver took certain pre-cautious and, therefore, the plaintiff could not plead ignorance of this provision of- the law and was chargeable with the knowledge that at. any time an ambulance might be encountered and.that under the terms'of Section 30 above quoted, it was the duty of the driver of every other vehicle, upon' the approach of any authorized emergency vehicle, to immediately drive his vehicle to a right hand curb of the street, -provided- the emergency vehicle was giving an audible signal by bell or siren. In the Osborn case, the driver of the automobile was not required, whether he heard the siren or not, to pull to the right hand curb if the traffic signal was favorable to him and unfavorable to the ambulance, while in the present case, the law being different, the plaintiff was chargeable with the knowledge that under the law an ambulance could, under certain conditions, proceed against a traffic signal or stop sign. The siren was heard by the two traffic officers and the witness Venable and there was no reason why the passengers on the bus, nor the plaintiff, should not have heard it also. Under the law he is chargeable with hearing what he should have heard. The plaintiff was also negligent in not seeing the ambulance, in view of the fact that the vacant lot gave to him and his passengers an unobstructed view of Gracie Street in the direction in which the ambulance was coming. Practically all of plaintiff’s witnesses admitted that had they looked down Gracie street they would have seen the ambulance, and the plaintiff, under his own admission and testimony, was looking south, or straight ahead, and nowhere does he say that he looked toward Gracie Street or down Gracie Street, until he heard the brakes and siren on the ambulance which he testifies was applied when, the ambulance was about 25 or 30 feet from him. While it is true,that the plaintiff, under ordinary circumstances, enjoyed the right-of-way, he was under a legal duty to keep a proper lookout and to hear and see that which he should have heard and seen, and, clearly, had he kept a proper lookout he would have heard and seen the ambulance and could -easily have avoided the collision. The negligence of plaintiff in this respect was also a proximate cause of the .collision and he was, therefore, guilty of contributory negligence, barring his recovery.

It is therefore ordered that the judgment of the District Court he reversed and annulled and the plaintiff’s suit be dismissed at the cost of the plaintiff.