author: HARDY, Judge. KENNON, Judge.

text:
    BURKE v. COMMERCIAL STANDARD INS. CO. et al.
    No. 7188.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    On Rehearing Jan. 6, 1949.
    Cameron C. Minard, of Columbia, for plaintiff.
    Thompson, Thompson & Sparks, of Monroe, .for defendants.
   HARDY, Judge.

This is a suit for the recovery of damages arising by reason of personal injuries alleged to have been sustained by plaintiff in an automobile collision.

About 12:30 o’clock, A.M., on December 31, 1946, petitioner was driving a 1940 Plymouth Coupe north on U. S. Highway 165. While traversing the highway overpass above the Missouri-Pacific Railroad tracks, near the town of Riverton in Caldwell Parish, the left rear portion of the Plymouth car was struck by the right rear of an Oldsmobile sedan driven by Kermit Youngblood, principal of the school at the Louisiana Training Institute in Monroe. The Oldsmobile was being driven in the same direction as plaintiff’s automobile and the driver, Youngblood, was engaged in attempting to pass the Plymouth car. •

At the time of the accident visibility was bad due to rain and sleet which were falling at the time, and the overpass was slick with a coating of ice. The point of the collision was just beyond the crest of the overpass in the direction the cars were traveling.

The rear end of the Plymouth car was seriously damaged, and plaintiff alleges that he received an injury to his back as the result of which he seeks the recovery of damages in the total amount of $26,-179.40.

; Plaintiff was accompanied by one Nolan J. Justice, nephew of his wife. Plaintiff was the employee of Transway, Incorporated, and his duties consisted of servicing and transporting motion picture films between various picture theaters in North Louisaina. At about 10:30 P.M., on the night of December 30th, Burke and Justice had collected a number of films from the theaters in Monroe and had embarked on a trip to Winnfield, by way of Columbia, intending to pick up other films in these communities. After having proceeded toward Winnfield and crossed the overpass, the plaintiff, Burke, discovered he had left the keys to the theaters at Columbia and Winnfield in Monroe, and, accordingly, he turned the car around at a point some half mile beyond the overpass and began to retrace his route, during the course of which the accident occurred.

Youngblood accompanied by a cousin, Mrs. Bailey, was returning from Jena where he had been to take in charge an escaped juvenile from the Louisiana Training Institute, a boy, who, at the time of the accident, was asleep on the rear seat of the Oldsmobile car.

Shortly after the accident two other persons, Messrs. Scruggs and Heard, who appeared as witnesses on trial of the case, reached the scene and rendered assistance in towing the Plymouth car off of the overpass to a position on the side of the highway.

After trial on the merits there was judg- ■ ment in favor of plaintiff in the sum of $8,679.40, from which judgment defendants, Youngblood and the liability insurer, Commercial Standard Insurance Company, have taken this appeal. Plaintiff has answered the appeal, praying an increase of the judgment to the amount sued for.

Close examination of the record fails to reveal any serious conflict of testimony with respect to the circumstances surrounding the accident.

At or about the crest of the overpass it seems that the Plymonuth car skidded, in the course of' which it turned crosswise of the overpass. This fact was observed by both Youngblood and Mrs. Bailey at a time when Youngblood’s car was several hundred feet from the, Plymouth car. Youngblood was driving at a speed of about 35 miles per hour when he reached the foot of the overpass. Although both Youngblood and Mrs. Bailey testified that they were traveling at a very slow rate of speed when they reached the crest of the structure, we think the facts bear out the conclusion that the speed had not been decreased to, a point commensurate with safety. According to Youngblood’s own testimony, when he began the ascent of the overpass, he touched the brake with his foot and his car began to skid. As a result he was unable to bring his car under proper control to such extent as would permit stopping its progress.

It is quite clear that at the time Young-blood began his passing operation the Plymouth car was well on the right ■ and there was more than sufficient room for the execution of his plan. But after the front portion of the Oldsmobile has passed the Plymouth the left rear of'the Plymouth, due to some cause not definitely established, came in contact with the right rear portion of the Oldsmobile, causing considerable damage to both' cars. As a result of the impact, the Plymouth 'car was thrown to the right into the railing of the overpass and Youngblood’s car careened first to the left and then to the right- before it was finally brought to a stop at a distance of-some 200 feet; more or less, from the Plymouth car which had been brought to a halt within a distance of- approximately 20 feet.

Under our- appreciation of these facts there, can remain no' doubt as to the negligence of the defendant, Youngblood. The extremely unfavorable and dangerous weather conditions,' the treacherously icy surface of the overpass, the observation by Youngblood' of the difficulty being experienced by plaintiff’s vehicle in negotiating 'the" overpass, and the obvious possibility of the development of an emergency by reason thereof, are all facts which indicated the absolute necessity for the exercise'" of the highest degree of caution. A speed of 35 miles an hour on the part of the'following car under such conditions was' -clearly excessive. We think it is obvious that, when Youngblood experienced the danger arising from his attempt to brake his"automobile, the passing maneuver became a necessity in the attempt to avoid an accident. The cause of the actual collision between the cars was not satisfactorily established and might have resulted fro’m any one of a number of possibilities. But even if the Plymouth car driven by plaintiff skidded, as alleged, into the Youngblood car, this in itself is not proof of negligence on the part of the plaintiff, Burke. There is no question as to the fact' that Burke was,driving at-a very slow rate of speed and was proceeding" as cautiously as'was possible under the existing conditions. '"We find no evidence in the record which would sustain the plea of contributory negligence against plaintiff which has been raised-by defendants.

We. ape firmly of the opinion, as a question of- fact, after careful consideration of the, testimony with reference to all the circumstances and conditions, that the.-negligence of the defendant, Young-blood, was the direct and proximate cause of the accident and that the plaintiff, Burke, was not guilty of any contributory negligence'.

.. There, remains for our consideration the further defense,, to the effect that the plaintiff, Burke, did'Aot sustain injury resulting from the-accident. ’ This point presents a serious and difficult problem.

The injury alleged involves the lower part of plaintiff’s back. The allegation of the petition sets forth particular injury to the “muscles, tissues, ligaments, nerves and boney structure of the lower spine and hip region, causing permanent impairment of the nerves, tissues, ligaments and boney’ [sic] structure thereof and specifically rupturing the nucleus' pulposus of the 5 th lumbar intervertebral disc”.

The expert witnesses tendered by plaintiff were Dr. W. E. Jones, a general practitioner, who first examined plaintiff following the accident, and who treated him for a number of months thereafter, and Dr. A. Scott Hamilton, a specialist in orthopedics.

The medical witnesses on behalf of defendants are Dr. John G. Sne'lling, Jr., and Dr. Henry E. Guerriero, Sr. The testimony of the witnesses for plaintiff and defendants respectively is hopelessly conflicting and irreconcilable, a not unusual occurrence, particularly in cases involving injuries of the nature herein alleged.

In order for plaintiff to be entitled to recover damages it is necessary that he shall have established two facts by a preponderance of the evidence; first, that he is suffering from an injury, and, second, that the injury resulted from the accident which is the basis of this action.

We are satisfied that plaintiff has successfully discharged the burden of proving the first point, namely, that he has suffered some injury which has affected his back to a greater or lesser degree.

But it is with respect to the resolution of. the second point that we have encountered serious difficulty, in the discussion of which it becomes desirable to analyze the salient points of the testimony of the witnesses.

According to the testimony of Dr, Jones, on January 2, 1947, some two days after the accident, the plaintiff presented himself to the physician for examination and treatment, giving a history of an injury to his back in an automobile accident “the night before”. The doctor found no lacerations or abrasions. X-ray pictures were made of plaintiff’s back and it was found that he was suffering from arthritis, which was treated by strapping and the prescription of' analg'esis. The doctor found some abscessed teeth and plaintiff was referred to a dentist, who discovered that all of his teeth were abscessed, whereupon he began the immediate operation of extrae-tion. Dr. Jones testified:

“Although his teeth were extracted he continues to have some pain in his back as the result of the old arthritis that he has, as demonstrated by the X-ray.”

.Dr. Jones saw this patient nineteen times between the dates of January 2nd and November 25th, 1947, and it was only on the latter date, according to his testimony, that he first considered the possibility of damage to an intervertebral disc. After this possibility was called to his attention, the doctor concluded that there was damage to the intervertebral disc between the 4th and 5th lumbar vertebrae. In answer to a question by plaintiff’s counsel as to the cause of disability, the witness answered as follows-:

“The absorption of pus from his mouth over a long period of time bringing about an arthritic and possibly a neuritic condition and also the possibility of a damaged intervertebral disc. I am not assume that the pus has had anything to do with the damaged intervertebral disc. I did not suspect an intervertebral disc in this man’s case at all because the injury that he had received was not of a sufficient severity to have brought about, in my opinion, a damaged disc, but the physical findings now fit in very nicely with the damaged disc.” (Emphasis by the Court.)

The gist of the above quoted testimony was reiterated by the - witness, who further declared that he did not consider himself throughly competent to make a diagnosis of a damaged intervertebral disc when it was “confused by the arthritic agent as demonstrated in this case”.

Proceeding to a discussion of the testimony of Dr. Hamilton, we are convinced of his absolute certainty •'as to the fact that the plaintiff was suffering from a •herniated intervertebral disc. Dr. Hamilton first examined the plaintiff on April 28, 1947, since which time he had seen the patient,, according to his recollection, on an average of every three weeks up to the time he gave his testimony on December 3, 1947

The following extract from Dr!'Hamilton’s testimony on direct examination áp-pears to us to be most illuminating:

“Q. Can a ruptured .disc be caused by disease? A. Yes, sir, it cán be, there isn’t any way that I know of to prove whether it is caused by disease, by degenerative changes or when it is due to an injury except by believing what yott find in the history of the patient with respect to the time of the on-set of the pain. There are many herniations which are present during the latter part of a life of an individual which give no symptoms whatever. On the other hand we know that slight protusion of the nucleus pulposus will produce extremely severe symptoms. It depends primarily upon the location of the herniation within the canal with respect to the spinal nerves which they emerge therefrom.” (Emphasis by the Court.)

The following question and answer are found in the course of cross-examination of the witness:

“Q. If you are correct in the diagnosis that this is what the man has it could have been caused by his heavy lifting of these objects and this had been a recurrence of that and not necessarily caused by this injury which he states he had? A. It could have been caused by a large number of things. In fact we know very definitely that some- people have the final push given .by sitting in a chair. The thing has been there before and the final thing is some minor proposition.” (Emphasis by the Court.)

In the course of further cross-examination the following appears:

“Q. I understand that,. If you be-correct in your diagnosis, that this ruptured disc was caused from- an accident- which he claimed,to have been in. on- December 31st? A. I base my ■opinion on probability, in other words, if a man has. a severe injury, based upon his statement and I find that the condition could have resulted therefrom, it then becomes my opinion, that it did, in the absence of any other injury which might have caused it.”- (Emphasis by the Court.)

We are impressed with the" fact that the value of Dr. Hamilton’s testimony in the instant case must be weighed in the light of the history upon which he predicated his diagnosis. The outline of the patient’s history, as given by Dr. Hamilton in his testimony, is as follows:

“A. He stated that his back had been injured on or about December 31, 1946 in an automobile accident. He said the accident resulted as another car skidded—
“Mr. Thompson:, I object to the testimony by the doctor on any facts 'which Burke has stated to the doctor in that it is irrelevant and. immaterial and purely hearsay..

"And its rear en.d striking his on the left front. At the time he did not consider his back was seriously hurt but gradually pain increased, being particularly evident in the 'lower portion. This pain increased to such an extent that he sought medical, attention and later came to me when the result of the treatments were not particularly favorable. At the time that I saw him he said that his pain was confined to the .lower back and had no radiation downward to any extent. He was unable to bend or stoop. Changes in .the weather had no noticeable effect upon his back pain so far as he observed. Coughing and sneezing slightly increased the pain. Walking aggravated the backache. Standing in a' relaxed position gave some relief from the symptoms. Sitting or standing in a strained position caused marked stiffness of the lower spine. There had never been" any' numbness ' of the legs or any significant weakness. He further stated that he had been unable to work at his usual occupation since the accident, his hands not being steady as they had been previously. He had some difficulty in going to sleep. He had noticed that he had more nightmares. All of the statements made by me were .given as part of the history of the case and do not pertain to any facts which I am able to prove.

"Q. Upon this examination what was your diagnosis? A. The diagnosis was not made until physical examination was done and X-rays were made.
“Q. Did you have X-rays made at that time ? A. I requested that X-rays be made as soon as it was convenient for Mr. t Burke and they were made on the third of March.
“Q. They had been made previously or the 3rd of March? A. They were made available to me and I studied them.
“Q. Did you find any pathology in the X-ray? A. Yes, sir, there was some pathology which, however, I did not consider this as having any particular bearing upon Mr. Burke’s complaint. He showed some hyperthrophic arthritic changes involving the joints of the third, fourth and fifth lumbar vertebra. The changes were moderate and at the time I considered them more a manifestation of hard work, which Mr. Burke stated that he had performed all of his life than due to any injury that he had received.
“Q. You stated that you made subsequent examinations of Mr. Burke and have examined him further, what is your diagnosis at the present time of Mr. Burke’s ailment.? A. I believe Mr. Burke is suffering from a recurrent herniation of the third lumbar-intervertebral disc.
“Q. Could such a condition have been brought about from the injury that he described to you? A. Yes.
“Q. Then from the history that he gave, what was your opinion as to the relation of the accident to his present condition? A. I thought that the .accident could have caused this recurrent herniation, at least the original herniation. Of .course, subsequent herniation would result from any type of over-activity.
“Q.. Accepting his history you reached the conclusion that the disc ruptured at the time of the accident and that the nucleus pulposus has recurrent protrusion into the canal causing his pain and difficulty? A. Yes.”

It is significant that Dr. Hamilton’s narrative of the plaintiff’s history contains no reference to the fact that Dr. Jones, on the basis of X-ray examinations, had found arthritis; that plaintiff had suffered from abscessed teeth and had his teeth removed, nor to the fact that an examination made within a brief period after the accident disclosed no external evidences of injury.

Turning to testimony of the medical experts tendered by defendants, we find that Dr. Snelling, who made his examination of plaintiff on March 5, 1947, which was* almost two months before plaintiff was examined by Dr. Hamilton, found no evidence ^of any injury to an intervertebral disc. This witness testified that the diagnosis of a ruptured intervertebral disc or the herniation of the nucleus pulposus produces a very definite clinical picture which a careful physical examination should denounce ; that he made a complete and thorough physical examination; that he had X-rays made; that he received X-ray reports, and that he found no evidence of injury to the intervertebral disc. The doctor did find a degree of arthritis. His diagnosis was that plaintiff had sustained a lumbo-sacral strain of moderate degree, from which he would recover sufficiently, after a few weeks, to resume his former occupation.

Dr. Guerriero made a thorough examination of plaintiff on September 25, 1947, by reason of which he arrived at the conclusion that at the time he was suffering no disability as the result of the accident which he had related in giving his history.

In support of his claim of injury and attendant pain and suffering, plaintiff tendered the testimony of several witnesses, namely, his wife, Justice, his wife’s nephew, who was his companion at the time of the accident, and one Barnett, a friend of plaintiff’s daughter. These witnesses all testified to the effect that plaintiff had consistently and continuously complained of pain in his back since the time of the accident.

The value of this testimony is considerably lessened by the fact that each of the witnesses referred to had some definite interest, by reason of relationship or otherwise, in this cause. Justice, in addition to being related to plaintiff’s wife, is shown to have a very substantial personal interest in the outcome of this suit, inasmuch as there appears in the record an assignment from Burke, plaintiff, to Justice and one Hollis Cruse, a brother of plaintiff’s wife, of an interest and equity in all sums realized from plaintiff’s claim against these defendants to the extent of $3,200.00. In addition, Justice claims to be the owner of the Plymouth automobile which Burke was driving, and appears as plaintiff in another suit, which is also before this Court, and in which judgment has this day been rendered. Justice v. Commerial Standard Insurance Company et al., La.App., 38 So.2d 240.

In refutation of the testimony of. theses interested parties ón this point, defendants tendered as a witness in their behalf one E. J. Davidson; the operator of a filling station with whom' Burke had transacted ■his gas and oil business , for a considerable period of time, particularly including the months of September, October and November, 1946. This witness testified that plaintiff on several occasions complained of suffering from pains in his back, and, specifically, in the latter part of October, 1946, declared that he was afraid he was going to have to give up his job because of his difficulty in handling the films, which weighed from 35 'to 90 pounds. True, it was brought out on cross-examination by counsel for plaintiff that the witness, Davidson, was a creditor of plaintiff to the extent of an unpaid gasoline bill, but, in itself, we do not feel that such a circumstance is sufficient to discredit the very pertinent testimony with respect to plaintiff’s disability and the pain and suffering arising therefrom, at a time antedating the accident by some months.

In addition to the testimony of the lay witnesses, which we have related above, we are further inclined to accord considerable weight to the fact that the plaintiff, Burke, an employee of 'Transway, Incorporated, by joint petition with his employer, entered into a compromise settlement which was duly approved and judgment rendered by the Court on the 9th day of April, 1947, iinder the terms of which settlement plaintiff accepted the total sum of $660.00 in satisfaction of his claims under the Workmen’s Compensation Laws of' this State. Act No. 20 of 1914, as amended. Such a settlement ill accords with the strenuous assertion of plaintiff in this suit as to the serious nature and results of his alleged injury, and it is most- difficult for us to reconcile plaintiff’s willingness to accept a pittance of some $600.00 in settlement of a claim which, if his contentions be accepted in the present case, comprehended total disability. ’Surely a proceeding under the liberal provisions of our .compensation statutes which, if successful, would have resulted in judgment in favor of plaintiff for compensation at the rate of $20.00 per week for not more than 400 weeks, was a consideration not lightly to be set aside in a weighing of valúes, as opposed to the Obvious chances and uncertain results of litigation under a tort proceeding.

Further militating against the probability of an injury arising as a result of the accident sued on are several circumstances which transpired at or about the time o'f the accident. Among those which we regard as most significant is the fact that not a singlé one of the seven persons who were upon the scene observed evidences of any injury or heard any complaint of injury 'by plaintiff with the single exception of Justice, with whose testimony on this point we are not impressed. And, further, the testimony of Youngblood is positive to the effect that Burke voluntarily declared that he had'not been hurt. This purported declaration is in keeping with Burke’s actions following the accident for, according to his own testimony, he immediately got out of his car and walked down the overpass some 200 feet where he met Youngblood, walked back to his car, and .then was engaged, upon the arrival of Scruggs and Heard, in assisting in moving his car and securing transportation back to Monroe. . We seriously doubt, if Burke had sustained any severe and painful injury as he contends, that he would have been likely to engage in all this activity and to have had contact with so many different persons without showing some obvious evidences or making some frequent mention of the injury.

Reverting to a consideration of the effect of the testimony of the medical experts, after thorough study we are convinced that there is no definite, certain nor positive linking of Burke’s alleged disability with the accident itself. The doctors who testified on behalf of plaintiff accepted without question the history related to them by Burke himself and we have above called attention to some of the more important discrepancies and omissions as between this narrative and the true facts. And, too, even after conceding the most favorable interpretation to the testimony of Dr. Hamilton, and assuming the correctness of his diagnosis of a herniated intervertebral disc, the fact still remains that such an injury could 'have resulted, and, as we think, most likely did result, from some mishap or development entirely without any relation to or connection with the automobile accident.

The burden of establishing his injury and -the cause thereof rested squarely upon plaintiff, and, in our opinion, he has signally failed to discharge such burden by the requisite preponderance of evidence.

For the reasons assigned the judgment appealed from is reversed and set aside, and there is now judgment in favor of defendants, Commercial Standard Insurance 'Company and Kermit Youngblood, rejecting plaintiff’s demands, together with all costs.

On Rehearing

KENNON, Judge.

This case is before us on rehearing. In the former opinion, rendered April 30, 1948, the Court found that the automobile accident which formed the basis of the action was caused by the negligence of the defendant Youngblood and that the plaintiff was not guilty of contributory negligence.

In the original opinion, this Court found that the plaintiff had suffered ah injury to his back hut that he had. not met the burden of establishing by the preponderance of evidence that his injury resulted 'from the automobile accident sued upon. Upon plaintiff’s application, this Court granted a rehearing, but confined same to a consideration of the nature and extent of plaintiff’s injuries and their relation to the accident.

Upon careful reconsideration, the Court has concluded that plaintiff’s condition was due in part at least to the injuries suffered by him when his automobile collided with that operated by- the -defendant Youngblood. We also find that his condition was due in part to an arthritic condition which was in existence prior to the occurrence of this injury.

Under these -circumstances, we conclude that an award of $4,000.00, plus $179.40 medical expenses, or total award of $4,179.-40 would do substantial justice.

Therefore, the judgment appealed 'from is amended by reducing same to $4,179.40, and as amended, it is affirmed. Costs of appeal to be paid by plaintiff, all other costs to be borne by defendants.


source: Caselaw Access Project

author: DORÉ, judge.

license: Public Domain

text:
    VINCENT v. KANSAS CITY SOUTHERN RY. CO.
    No. 3078.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1949.
    for Chas C. Jáubert, of Lake Charles, appellant.
    Thomas F. Porter and Thomas L. Rag^ gio, both of Lake Charles, for appellee.
   DORÉ, judge.

This is a suit under the Federal Employr ers’ Liability Act, 45 U.S.C.A. § 51 et seq., for the death of John W. Vincent, wherein it was alleged that said death was. caused by the failure of the employer of the deceased, while engaged in interstate commerce, to furnish its deceased employee a safe- place in which to work and that his death was caused thereby. The suit was originally brought by Mrs. lia T. Vincent' as the surviving spouse of John W. Vincent and thereafter the suit was brought by Mrs. Orville Vincent by supplemental petition in her capacity as administratrix of the succession of J,ohn W. Vincent, in compliance with the Federal Employers’ Liability Act which requires that this type of action should be through the personal representative of the succession of the deceased employee.

It is shown that the deceased Vincent was employed by the defendant railway company as a "bridge tender”, at West-lake, across the Calcasieu River, and that his duties consisted of assisting in opening the Calcasieu River bridge for approaching vessels, and in protecting the railroad crossing across Main Street in the Town of Westlake, some two or three blocks from the bridge. The petition alleges that while Vincent was engaged in his duties at about 11:45 P.M., on November 6, 1942, he started to go from the bridge in question to protect the railroad crossing, and in walking between the rails of the railroad track, he “accidentally and inadvertently stepped between the ties at the end of said walk (a walk on the bridge consisting of two 18 inch boards side by side) where his foot caught, thus causing him to fall between the rails onto the ties.” And, that as a result of said accident the said Vincent was injured, from which said injuries'he died on September 19, 1945. The petition alleges that the injuries and resultant death were “due to the negligence of said defendant railway company and/or its officers and employees in not' furnishing said employee with a safe place to work * * * where these ties had no filling between.” It is claimed in the petition that when Vincent fell, he cut his forehead, cut and bruised his face, knees and hands and that the injuries caused cord bladder, recurrent pyelo-nephritis and uremia, which caused his death some- two years and ten months after the accident. It is claimed that the surviving spouse sustained damages as a result of the death in the total amount of Twenty Thousand Seven Hundred Eighty-five and No/100 ($20,785.00) Dollars.

The defendant in its answer admits that Vincent’s employment was in interstate commerce and that the accident happened at the time and place alleged but denies that he was on duty in the course of his employment at the time of the accident and further denies that Vincent received any injuries in the accident other than minor bruises and emphatically denies that the accident caused cord bladder, pyelonephritis or uremia or in any manner caused the death on which this suit is based.

After trial of the 'case, the trial judge came to the conclusion, as set forth in his written reasons for judgment, that the decedent died as a result of septicemia due to a prostatic abscess and that his death did not result from any injuries received by him on November 6, 1942. Accordingly he rendered judgment in favor of the defendant and against the plaintiff, Mrs. Orville Vincent, administratrix of the Succession of John W. Vincent, rejecting her demand. Plaintiff has appealed. f

The record in this case is soihewhat voluminous but the main issues appear so clearly drawn that it does not seem necessary to have a detailed review of the testimony of each witness. The main, if not only question involved in the case is whether or not the trial judge erred in his conclusion that the death of John W. Vincent was not caused 'by the accidental injuries sustained by him in the course of his duties. It seems clear that the deceased was employed by the railroad company as bridge tender and that he did sustain the accident alleged by which he was severely bruised and which necessitated his being taken home. It is pertinent to observe that he was a man of seventy-six years of age at the time of his injuries and that he had been urged to retire on a pension but apparently preferred to remain on active duty. It is also shown by the evidence that prior to the accident he was suffering from bladder trouble and that he had only partial control of his urine and that as a result thereof it was -necessary for him to frequently leave his duties for the purpose of urinating and that also the front part of his clothing showed stains from uncontrolled urine. It is claimed that as a result of the fall which he sustained, this pre-existing bladder trouble was aggravated to the extent that he had no control whatsoever after the accident and further that it was necessary, in order for him to void, to insert a catheter to relieve the pressure and allow the kidney to function; that is, to empty the bladder, and to relieve the back pressure on the kidney, which pressure is claimed to have been caused by a condition of “cord bladder”, resulting directly from the injuries sustained in the fall. The main witness in support of this contention is plaintiff’s doctor, Dr. Wilson Morris, who stated in effect that the fall sustained by Vincent was the logical explanation of the cord bladder which caused a temporary paralysis of the bladder. This doctor, however, like the other doctors who testified in this case, admitted that this condition should have revealed itself within a short time after the accident, if caused by the accident, and he admits that he did not examine the deceased until over a year after the accident. Moreover, this same doctor signed the certificate of death-of the deceased and therein set forth that the cause of death was septicemia due to prostatic abscess.

The other medical testimony is all to the effect that the decedent’s death was caused by his prostatic condition and we can find nothing in that testimony which connects the prostatic condition either as resulting or being aggravated by the accidental fall. The first doctor who examined.him, Dr. IT. B. White, submitted a report that on the day after the accident he was called upon to see Vincent and “he gave history of having fallen in K. C. S. track causing contusions and bruised wounds of body and some symptoms of shock — had his pipe in his mouth & thus caused a puncture wound in roof of mouth.

“He is improving but it will be some time before he will be able to return to work.”

This report is dated November 16, 1942, ten days after the accident. From it it is clearly shown that the decedent sustained some disabling bruises but there is no showing or indication that these in any way aggravated his pre-existing bladder or prostatic condition from which he died practically three years later.

It may be noted also that some thirteen days after the accident, the deceased executed an act of settlement and release in full, in connection with the accident, with his employer for the consideration of $1.00. Counsel for plaintiff contends that this release is of no avail for the reason that the consideration is only nominal. Be that as it may, it does indicate that the deceased did not consider that he had sustained any serious injury in the accident. It is true that subsequent to the accident he never again worked, but it must be remembered that he was an aged man of seventy-six years suffering from a bladder infection prior to the accident and that probably the accident was the final determining event leading to his retirement. 'J’he fact remains that during the approximately three years following the accident, up to his death, no claim was made by him for the injuries alleged herein although he had been under the treatment of Dr. White and Dr. Wilson Morris and would appear to have been informed as to his condition and as to whether or not it was caused by the fall sustained in the accident.

After a thorough review of the record, we fail to find any manifest error in the finding of fact of the trial judge to the effect that John Vincent’s death was caused by septicemia from a prostatic abscess unconnected with the accident involved herein.

In any event, we do not feel, from the review of the evidence in this case, that the plaintiff has sustained the burden of proof to establish to a legal certainty that the disease which caused the death was the result of the accident involved.

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


author: REGAN, Judge.

text:
    JONES v. ATLANTIC & GULF STEVEDORES, Inc., et al.
    No, 19044.
    Court of Appeal of Louisiana. Orleans.
    Feb. 7, 1949.
    Rehearing Denied March 14, 1949.
    Deutsch, Kerrigan & Stiles, of New Orleans, for appellants.
    Herman & Herman, of New Orleans, for appellee.
   REGAN, Judge.

Plaintiff, David Jones, a longshoreman, filed this suit against the Atlantic & Gulf Stevedores, Inc., and the Continental Casualty Company, its insurer, defendants herein, for 'workmen’s compensation in the sum of $20 per week for a period of four hundred weeks. Plaintiff claims that he is totally and permanently disabled as a result of severe injuries received by him on September 24, 1947, when he was struck and knocked to a concrete wharf by a bag of burlap weighing approximately fourteen hundred pounds, which was being unloaded from a vessel.

Defendants answered admitting the injury, but denying that plaintiff was totally and permanently disabled to such an extent that he could not return to his employment as a longshoreman.

From a judgment in favor of plaintiff awarding compensation in the sum of $20 per week for a period not to exceed four ■hundred weeks, defendants prosecute this appeal.

The erudite trial judge thoroughly analyzed this case in his written reasons for 'judgment which, in our opinion, covered the case so fully that we adopt them as our own :

“David Jones, a longshoreman, brings this suit against the Atlantic & Gulf Stevedores, Inc., his employer, and the Continental Casualty Company, its insurer, for workmen’s compensation in the sum of $20 per week for a'period of 400 weeks. He claims that he is totally and permanently disabled as a result of severe injuries received by him on September 24, 1947, when he was struck and knocked to a concrete wharf by a bag of burlap weighing about 1400 pounds, which was being unloaded from a vessel. The plaintiff received severe fractures in the pelvic region, which have been diagnosed as fractures of the left inferior pubic and ischial rami, of the left innominate -bone through the acetab-ulum, and of the left acetabulum. In addition to th'is, plaintiff suffered severe hema-toma, which ultimately resulted in a long, irregular area of calcification extending from 'the left transverse process of the last lumbar vertebra into the pelvic cavity, a condition technically designated as myo-sitis ossificans.
“It is not disputed that the fractures, though severe, have healed perfectly, and it -has been established by an overwhelming preponderance of the evidence that there is no resulting disability from any of the injuries sustained by plaintiff, except that, if any, resulting from the myositis ossifi-cans. The plaintiff contends that he is still unable to work because of this condition, while the defendants contend that there is no nerve irritation resulting from the myositis ossificans, and that myositis ossificans in itself and without nerve irritation is not disabling.
“The case involves only a question of fact. The plaintiff was the only lay witness in the case. The other nine witnesses were experts, five of whom testified on behalf of plaintiff and four on behalf of defendants. Dr. Robert H. Rose, Dr. William Fisher, Dr. Edward H. Maurer, Dr. Irving Redler, and Dr. Irvin Cahen, who testified for plaintiff, confirmed the opinions expressed in their written reports that because of this large calcified mass in 'the pelvic area, which affects the muscles or nerves, or both, plaintiff is unable to perform the rigorous duties of a longshoreman.
“On the other hand, Dr. John D. Andrews, Dr. George D. Berkett, Dr. Rufus H. Allredge, and Dr. Howard Karr, who testified for defendants, expressed the opinion that since they do not believe there is any nerve involvement ”in connection with the calcification of the muscles, the plaintiff is no longer disabled. It must be noted, however, that the opinion of Dr. Allredge is more negative than affirmative in character, for in his last report of April 19, 1948, he says ‘It is recommended that this patient be given a further period of conservative orthopedic treatment before any final decision is reached as to his final condition with reference to this injury. In my opinion it will only be after such further treatment that final determination can be made of his exact status.’ He confirms this statement in his testimony.
“Of all the witnesses who testified in the case, only one is in a position to know definitely whether the plaintiff is able to ■resume his work, and that is the plaintiff himself. The eminent experts produced, by both sides were in a position to, express opinions only, and each gave his honest views based on the conclusions drawn by him from certain subjective and objective findings, and the application thereto of certain theories. 'Where the experts are in substantial disagreement in their opinions, as here, they are of little aid to the Court. In such a case, the Court cannot “count noses” and decide the case in favor of the side which produces the largest number of experts, nor should the Court attempt to select the opinion of one of the experts as against all of the others, merely because he has had a longer education or belongs to more professional societies. In such a case, the Court must decide the case on the record as a whole, giving great weight to the lay testimony, and the facts and circumstances of the case, as well as considering the conflicting opinions of the medical experts.
“The plaintiff, himself, has an unusually good record. He was born in Raceland, Louisiana, has lived in New Orleans for the past 24 years; is 43 years of age, and has raised a family of seven children, four of whom are still dependent on him for support. He has earned his livelihood consistently by manual labor, and has been employed by such firms, among others, as the Southern Pacific Railroad, R. P. Farns-worth, George Glover Company, Chris Larsen, Horace Williams, and J. G. Glover, in addition to those firms for whom he has worked as a longshoreman, such as the Southern Stevedore Company and Atlantic & Gulf Stevedores, Inc. He received injuries on two prior occasions, once in the year 1924, when his fingers were injured, for which he received $64. and on May 16, 1947, when he was incapacitated until August 8, 1947, during which time he received compensation. In neither prior instance did he bring litigation or claim to be permanently injured. He appeared to be a truthful witness, and I see no reason to doubt his veracity.
“After a consideration of all of the facts in the case, including the testimony of plaintiff and his prior good record, the severe nature of the injuries received by him, the extensive area of calcification, which still exists, the probability that this calcified mass disables him either by immobilizing the muscles or by affecting the nerves, the difference of opinion among the experts, the fact that none of the experts can be certain of the truth, in the absence of an exploratory operation, I believe that the plaintiff has sustained the burden of proof, and has established with the certainty which the law requires, his claim that he is totally and permanently disabled and is unable at this time to perform the arduous duties of a longshoreman. Should his condition improve in the future, the defendants can always avail themselves of the provision of the Workmen’s Compensation law, which gives them the right to re-open the case after the lapse of six months.
“There will therefore be judgment in favor of plaintiff and against the defendants in solido, condemning the defendants to pay plaintiff workmen’s compensation in the sum of $20 per week from September 24, 1947, during the period of disability, not to exceed 400 weeks, with legal interest from date of maturity of each installment until paid, subject to a credit of 16 weeks and 5 days compensation for the period during which he has already been paid.”

Defendants contend that the trial court erred, “first, in assuming that the plaintiff’s testimony to the effect that he was disabled was reliable or legally effective; second, in allowing the plaintiff recovery on his self-serving declaration of disability alone; and third, in refusing to weigh the medical evidence and in discarding it to rely solely on the plaintiff’s statement.” In our opinion the trial judge adequately answered the foregoing contentions of counsel when, after -a consideration of all of the evidence, both expert and lay, he narrowed the issue down to whether the “myositis ossificans” was producing nerve irritation and disability. Counsel for defendants extract and then emphasize the sentence that the trial judge wrote in his opinion “of all the witnesses who testified in the case, only one is in a position to know definitely whether the plaintiff is able to resume his work, and that is the plaintiff himself.” Counsel contend, therefore, that the error of the trial judge in this case does not lie in the fact that he did not weigh the medical evidence properly, but in the fact that he refused to weigh it at all. Counsel have illogically isolated this sentence from the major premise of the decision and, therefore, erroneously assume the conclusion that 'because of the statement, quoted above, the trial judge ignored the medical testimony and focused the case entirely upon the question of the plaintiff’s veracity. A casual reading of the written reasons for judgment completely refutes this illogical assumption, for a little further on in his opinion, it is unequivocally stated:

“ * * * In such a case, the Court must decide the case on the record as a whole, giving great weight to the lay testimony, and the facts and circumstances of the case, as well as considering the conflicting opinions of the medical experts.
H* * H* * * *
“After a consideration of all of the facts in the case, including the testimony of plaintiff and his prior good record, the severe nature of the injuries received by him, the extensive area of calcification, which still exists, the probability that this calcified mass disables 'him either by immobilizing the muscles or by affecting the nerves, the difference of opinion among the experts, the fact that none of the experts can be certain of the truth, in the absence of an exploratory operation, I believe that the plaintiff has sustained the burden of proof, and has established with the certainty which the law requires, his claim that he is totally and permanently disabled and is unable at this time to perform the arduous duties of a longshoreman.”

The trial judge committed no error in giving consideration to the testimony of the plaintiff. This is substantially .in accord with an opinion -rendered by this Court on January 24, 1949, in the case of Lala v. American Sugar Refining Company, 38 So.2d 415, where we said:

“Courts -ofttimes have been guided by lay testimony where the medical experts expressed conflicting opinions regarding -a plaintiff’s capability to work, and we believe in this particular -case that 'the testimony of the lay witnesses is very enlightening and should be given consideration, along with all facts and circumstances shown by the record.”

See, also, Phillips v. Yazoo & M. V. R. Co., La.App., 183 So. 43; Phillips v. Le Blanc Bros. Contracting Co. et al., La.App., 17 So.2d 36; Smith v. Travelers’ Insurance Company, La.App., 28 So.2d 147.

In view of the excellent reasons for judgment written by the trial judge, we •are of the opinion that no useful purpose would be served by a ponderous endeavor on the part of t-hi-s court, composed entirely of men untrained in the -field of medicine to enter unchartered waters and embark upon a detailed discussion and analysis of the highly involved testimony of the experts who appeared on the original trial of this case, because, after a careful examination of all of the testimony, both experts and lay, -we are of the opinion that the said evidence, in 'the final analysis, definitely preponderates in' favor of the pláintiff herein.

Furthermore we are impressed by the report of Dr. Rufus Allredge, which was offered in evidence by the defendant and we quote therefrom:

“It is recommended that this patient be given a further period of conservative orthopedic treatment before any final decision is reached as to his final condition with reference to this injury. In my opinion it will only be after such further treatment that final determination -can -be -made of his exact status.”

Dr. Allredge, who additionally testified at the trial, as an expert, confirmed this extract -from hi-s report.

Should the plaintiffs’ condition sufficiently improve in the future the defendants can, as the trial judge stated, “always avail themselves of the -provision of the Workmen’s Compensation Law, Act No. 20 of 1914, as amended, which gives them the right to re-open the case after the lapse of -six months.”

For the reasons assigned the judgment appealed from is affirmed at the cost of defendants.

Affirmed.


author: ELLIS, Judge.

text:
    GASOLINE PLANT CONST. CORPORATION v. BLAIR et al.
    No. 3057.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1949.
    See also La.App., 38 So.2d- 662.
    Tate & Fusilier, of Ville Platte, and Hirsch & Green, of Baton Rouge, for appellant.
    Atlee P. Steckler, of Ville Platte, for ap-pellees.
   ELLIS, Judge.

Plaintiff has filed this suit .-in which he prays for a preliminary injunction against twenty-one defendants, “enjoining, -restraining and prohibiting them and each of them from blocking the entrances to petitioner’s sai-d plant site, and from using force, violence, threats and intimidation -in preventing or attempting to prevent any of petitioner’s employees from continuing in such employ, or any person from accepting employment with petitioner or from entering or leaving said place of employment of said, petitioner.”

The defendants are:

“(1) Darrell H. Blair, Business Manager, Building and Construction Trades Council of Lake Charles, La., and vicinity, domiciled in City of Lake Charles, Calca-sieu Parish, La., and acting also as the designated and authorized agent of the hereinafter named affiliate local unions within the jurisdiction -hereof; viz., Baton Rouge, Eunice, Lake Charles, and Alexandria, La., and others whose names and identities are unknown to petitioner herein;
(2) William M. Pecue, Business Manager for Steamfitters Local 807, domiciled in the City of Baton Rouge, East Baton Rouge Parish, Louisiana;
(3) C. Andrus,' Business Agent of Carpenters Local, Lake Charles, Calcasieu Parish, La., domiciled in Eunice, St. Landry Parish, Louisiana.
(4) M. Graham, Business Agent Truck Drivers Local of Lake Charles, La., and vicinity, domiciled in Lake Charles, Calca-sieu Parish, Louisiana;
(5) Zackary B. Richard, Business Agent and Financial Secretary and Treasurer of the International Association of Bridges, Structural and Ornamental Iron Workers, Local No. 678, (Mixed), domiciled in Lake Charles, Calcasieu Parish, Louisiana;
(6) R. C. Coffer, Business Agent for Lake Charles and vicinity Engineers’ Local 406-A, 406-B, domiciled in Lake Charles, Calcasieu Parish, Louisiana ;
(7) Frank Clawson, Business Agent, Local No. 207, Int. H.C.B. & C., L.U. of A., of Lake Charles and vicinity, domiciled in the Parish of Calcasieu, Louisiana;
(8) J. W. Spencer, Business Manager, International Brotherhood of Electrical Workers, Local Union 576, and vicinity thereof, domiciled in Alexandria, Rapides Parish, Louisiana;
“All of the above named defendants, eight, compose the Building and Construction Trades Council in affiliation with Building and Construction Trades Department, American Federation of Labor; the following individual defendants, to wit:
“(9) Orise R. Fuselier;
“(10) Foche Fuselier;
“(11) Larry Lemoine;
“(12) Leodias Fontenot;
“(13) Hillary Tate ;
“(14) Hosea Savant;
“(15) Duffy Aucoin;
“(16) Ariel Fontenot;
“(17) Olizia Bertrand;
“(18) Wilson Rougeau;
“(19) RoyMilstead;
“(20) Chease Reed;
“(21) Rene Young;
“All of whom are domiciled in the Parish of Evangeline, Louisiana.”

Plaintiff alleged that it is engaged in business in the State of Louisiana as a general contractor and was, on the date of the petition, engaged in constructing for the Magnolia Petroleum Company a gasoline plant for the purpose of processing gas in the Magnolia Petroleum Company Mamou Oil Field in the Parish of Evangeline, Louisiana; that the plaintiff was engaged in a labor dispute with the defendant labor unions and persons named in its petition, some being members of a union and some being nonmem'bers; that plaintiff desires to continue construction of the gasoline plant as an “open shop” job, however, the defendants have insisted that plaintiff employ only union men approved by them and conduct said construction as a “closed shop”; that plaintiff has in its employ seventy-two men, some of whom are union members and others non-union; that although petitioner was not obligated to employ local people, it did employ as many as it possibly could in order to have the full-hearted cooperation and-good will of the local land owners, taxpayers and citizens of the community of Mamou; that on Wednesday, March 17, 1948, at about noon, the above named defendant Local Unions, acting through its agents and representatives and particularly through the defendant, Darrell H. Blair, together with the other named defendants and numerous other persons who plaintiff alleged were unknown to it, “caused to be assembled on, along and across the State Highway in front of the property on which said plant is being constructed, and on, along and across the private property of Magnolia Petroleum Company, for whom petitioner is constructing said gasoline plant, and particularly on, along and across the only three entrances to said plant site, on the private property of said Magnolia Petroleum Company, approximately two hundred (200) men, a majority of whom are nonresidents of the Parish of Evangeline and the immediate locality in which said gasoline plant is being constructed, completely blocking all entrances to said plant site.”

Plaintiff further alleged that its employees were threatened with violence and bodily harm if they should attempt to enter plaintiff’s premises to resume their work, although at numerous times subsequent to March 18, 1948 the plaintiff’s employees and officials attempted to enter its premises but were denied the right to free entrance by the leaders of the mass assembly; that on each occasion the leaders of the mass assembly threatened and cursed plaintiff’s employees and advised them to join the mass assembly if they ever wanted to work on said construction job, and finally plaintiff alleged that the defendants have assembled and caused to be assembled in and around the plant construction site, beginning on March 17th and continuing to the date of the filing of the petition, at all entrances and exits of the plant site, approximately 200 men in mass formation, for the specific purpose of intimidating, interfering with, coercing and preventing plaintiff’s employees from working on said construction job; that all of these acts are in violation of the provisions of Act No. 180 of 1946, Regular Session of the Legislature of Louisiana.

Plaintiff alleged that such acts were in connection with a conspiracy on the part of the defendants named to prevent plaintiff’s employees from continuing in their employ of plaintiff, and also to prevent available and prospective employees from accepting employment with plaintiff; also .that immediate and irreparable injury will ■result to plaintiff, which injury is not com-pensable in money, by the unlawful acts of the defendants and by the threats of further unlawful acts on the parts of defendants, and, as there is no adequate remedy at law for plaintiff, that plaintiff is entitled to the preliminary writ of injunction in accordance with the provisions of Act No. 180 of 1946 and other laws of Louisiana applicable thereto. Wherefore, plaintiff prayed for the issuance of a rule directed to each of the defendants, ordering them to show cause why a preliminary injunction should not issue, and, upon 'the trial on the merits, that the defendants and each of them be permanently enjoined.

On the day of the trial, defendants filed an exception of no right and no cause of action, which exceptions were referred to the merits by the trial judge. Defendants then filed their answer, which is a general or blanket denial of every pertinent allegation contained in the plaintiff’s petition.

The case was tried upon supporting affidavits in accordance with Act No. 29 of 1924, § 2. In support of the plaintiff’s case, it offered twenty-one affidavits. Defendants, through their counsel, objected to the filing of -the affidavits by the plaintiff, numbered P-1 through P-21, for the following reasons;

“Act No. 29 of 1924, Section 2, requires any affidavit introduced in any proceeding under that act to bear the caption of the suit, including the name and number, thereof; the present offering of Plaintiff P-1 fails to show anything other than State of Louisiana, Parish of Evangeline. It f'ails to provide the number of the suit, it fails to provide the name of the suit. Rather than go through each affidavit which respondents have thoroughly checked, the same is true for P-1, 2, 3, 4,. on through P-21, all of the affidavits introduced by petitioner.”
“Further objection is offered to the affidavit of one John R. Smith, as said affidavit was served on respondents through their Counsel at ten o’clock (10:00) A.M., the 8th da.y of April, 1948; as admitted toby Counsel for plaintiff, the Act 29 of 1924 requires that affidavits filed under the provision of said Act be filed at least twenty-four (24) hours prior to the trial.”
“In addition, thereto, the court’s attention is also called to the fact that the affidavit of John R. Smith also fails to bear the caption of the suit, the number, thereof of the name of the suit as required by said Act 29 of 1924.”
“Counsel for Plaintiff appraises the Court to the fact that all the affidavits were bound and are bound together under the heading and title of the suit, with each exhibit marked on the face, thereof, and a certificate showing proper service on opposing counsel, and is accumulative in one document which Plaintiff thinks complies with the law, and the objection would have to the effect that each affidavit should have -its own special heading, and applies when they are not bounded and filed separately, but in the instant matter, as presented to the Court are all one and the same document, as served to opposing Counsel.”
“The Court: The Court upon its own initiative, shall permit the note of evidence to remain open until Saturday morning at the hour of nine o’clock (9:00), for the purpose of permitting Defendants to file any additional affidavits if they deem it necessary in reply to the facts averred by Plaintiff in Affidavit No. 20.
“Subject to this ruling, all other objections are referred to the merits.”

The defendants offered 40 affidavits, numbered R-l through R-40, inclusive.

The Court, with written reasons, granted preliminary injunctions against all defendants “from blocking the entrances to plaintiff’s plant site, and from using force, violence, threats and intimidation in preventing or attempting to‘ prevent any of plaintiff’s agents,' hired help and/or employees from continuing in such employ, or any person or persons from accepting employment with plaintiff, or from entering or leaving said place of operation of plaintiff herein.”

“It Is Further Ordered, Adjudged And Decreed that all defendants named, supra, in this judgment and decree or their designated agents or substitutes are hereby permitted to peacefully picket said site, should they so desire,'in the following restricted manner, to wit:
“(A) That said aforenamed defendants, their agents or substitutes are allowed not more than three (3) men, at any one time, at each entrance to plaintiff’s plant site on their designated location for the construction of the said plant and said three (3) designated men shall be spaced not closer than ten (10) feet apart, and away from each other, to each of said entrances, and that they and each of them, be stationed in the public road at a distance of not less than'fifty (SO) feet from the gate or entrance to plaintiff’s property site or location.”
“(B) That the Sheriff in and for the Parish of Evangeline, Louisiana, or anyone of his duly authorized, delegated and empowered regular or special deputy or deputies, so delegated, or designated by him, shall observe defendants, their agents or substitutes, picketing, with a view of seeing that they are peaceful and in accordance with the mandate and judgment of this Court.”
“It Is Finally Ordered, Adjudged And Decreed that all defendants named supra, in this judgment, are cast for all costs of these proceedings, insólido.”

Defendants, on the 19th day of April, 1948, were granted a devolutive appeal. The plaintiff-appellee has filed a motion to dismiss this appeal for the reason that it alleges that this Court is without jurisdiction rational materias as the amount involved is in excess of $2,000.

The jurisdiction of this Court is founded under Article 7, Section 29 of the Constitution of the State of Louisiana. In the first place, we do not find in plaintiff’s petition any mention of a pecuniary injury. On the contrary, the plaintiff alleges that its injury -is not compensable in money, and there is no allegation and no evidence ■in this record to prove any claim for anything in controversy with a pecuniary value. We agree with the statement of counsel for defendant in his brief as follows: “The theory on which petitioner-appellee founded his demand for a preliminary injunction was an alleged invasion of his civil rights without pecuiiiary value, and in those cases jurisdiction vests in the Court of Appeal by a clearly marked and .uncontradicted line of jurisprudence relative to appeals from granting or refusing to grant preliminary or permanent injunctions, Noe v. Maestri, 193 La. 382, 190 So. 588; Bunol v. Bunol, 168 La. 391, 122 So. 121; Dastugue v. Cohen, 14 La.App. 475, 131 So. 746; Slaughter v. New St. John Missionary Baptist Church, 8 La.App. 430, (First Circuit Court of Appeal) ; O. E. Guillory v. Police Jury of Parish of Evangeline, 1 La.App. 195, (First Circuit Court of Appeal.)”

We are therefore of the opinion that the motion to dismiss the appeal should be denied.

The appellants have evidently abandoned the exception of no cause or right of action filed in the lower court as they are not urging it in this court.

The defendants-appellants contend that none of plaintiff-appellee’s evidence was admissible because it was' not captioned as mandatorily required by Act No. 29 of 1924 under which this preliminary injunction was obtained. The defendants made timely objection to the introduction of these affidavits, which objection is stated in full above.

The case was heard upon supporting- affidavits under authority of Section 2 of Act No. 29 of 1924 which states in part: “If the proof be by affidavit, the applicant shall deliver .to the defendant (or if the defendants are numerous, to one or more of them, as may be ordered by the court) at least twenty-four hours before the time fixed for the hearing, true copies of the supporting affidavitis [affidavits], if any, intended tobe used by him at the hearing; * * * Affidavits shall be entitled and numbered in the cause, and shall be sworn to by the affi-ant before some officer authorized to administer oaths, and who is not a party or attorney in the cause or otherwise interested therein, and such oath shall have the same sanctity as if administered in open court, and wilful false swearing to any material fact in any affidavit shall constitute perjury.”

A mere glance at the affidavits of plaintiff, from P-1 through P-21, shows that they do not comply with that portion of the above quoted Section which states that “Affidavits shall be entitled and numbered in the cause”. These affidavits only •contain “State of Louisiana, Parish of Evangeline,” and do not carry the title nor the number of the cause. We are of the opinion that this provision of the law is mandatory, for the Legislature, in the same section and same sentence, stated: “ * * * such oath shall have the same sanctity as if administered in open court, and wilful false swearing to any material fact in any affidavit shall constitute perjury.”

An affiant, upon swearing to an affidavit, should by this means know that he is offering evidence in a Court of law and that for any false statements he would be subject to a prosecution for perjury.

The defendants have cited no Louisiana decision on this point, however, we find in Volume 28 of American Jurisprudence, page 443, Section 268: “The affidavits to be used on application for preliminary injunction should be properly entitled in the court and the case.”

Also cited is the case of Hill v. McBurney Oil & Fertilizer Co., 112 Ga. 788, 38 S. E. 42, 52 L.R.A. 398, which held: “A defendant’s affidavits are inadmissible on a hearing for interlocutory injunction where they fail to state the court or the case and do not show affirmatively -that they were made to be used in the case.”

We are of the opinion that the objection made by the defendants to the introduction of Affidavits P-1 through P-21, offered by the plaintiff, and which affidavits did not contain the title and number of the cause, should have been sustained. Such a ruling leaves the plaintiff without any proof of the allegations of its petition, and it is therefore not entitled to the relief prayed for and granted by the judgment of the Lower Court.

While the defendants contend that the judgment is erroneous on five other grounds, it is unnecessary to consider them in view of our present ruling.

It is also unnecessary for the purposes of this decision to consider the effect of the repeal of Act No. 180 of 1946, since the effect of this decision is to reverse the lower court for the reasons hereinabove set forth. Since this case may be tried on the merits, it is the opinion of this court that upon such trial Act No. 203 of 1934 will be applicable as the controlling statute of any significance in the field of labor law.

It is therefore ordered that the judgment of the District Court be reversed and that there now be judgment in favor of the defendants and against the plaintiff, recalling and dissolving the preliminary writ of -injunction issued herein, the plaintiff to pay all costs incurred in obtaining the writ of preliminary injunction, all other CQSts to await the final determination of this case.

It is further ordered that this case be remanded to the District Court for hearing on the merits in accordance with law.


text:
    GASOLINE PLANT CONST. CORPORATION v. BLAIR et al.
    No. 3061.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1949.
    See also La.App., 38 So.2d 657.
    Tate & Fusilier, of Ville. Platte, and Hirsch & Green; of Baton Rouge, for appellant.
    E. Herman Guillory, of Ville Platte, for appellees.
   ELLIS, Judge.

This matter is entitled “Supplemental Transcript” and is given the same docket number and title as the original transcript. The record discloses that on the 30th day of July, 1948, the defendants filed a motion to dissolve a preliminary injunction which was granted on the 14th day of April, 1948, and from which defendants secured a devolutive appeal on April 19, 1948, and which was at the date of the filing of the motion to dissolve, lodged on appeal in this Court, the First Circuit Court of Appeal.

The Court had originally signed an order making the rule returnable on August 14, 1948. On motion of the plaintiff, Gasoline Plant Construction Corporation, through its executive officer, B. A. P'adon, in proper person, a continuance was granted until September 15, 1948. On the 15th of September, 1948, plaintiff, through its-counsel,, excepted to the jurisdiction of the District Court on the ground that the defendants, and appellants had perfected a devolutive-appeal to this Court, and, therefore, the-District Court was divested of all jurisdiction in the case except for the purpose of attesting the sufficiency or legality of the-appeal bond furnished by the defendants-appellants for said appeal, the latter provision not being at issue.

It is well settled that upon the perfection of an appeal in any case, the lower-court becomes divested of all jurisdiction in the case and cannot grant a npw trial! nor set aside the judgment from which an appeal has been taken and perfected. State ex rel. Temple v. Vernon Parish School Board, La.App., 178 So. 176; Board of Com’rs. Fifth Levee Dist. v. Howard Land & Timber Co., 132 La. 911, 61 So. 868;. Jaenke v. Taylor, 161 La. 996, 109 So. 814; State v. Himel, Judge, La.App. 176 So. 413; Mundy v. Phillips, 157 La. 445, 446, 102 So. 519; Davidson v. Richard McCarthy Co., La.App., 166 So. 504; Horton v. Western Union Tel. Co., La.App., 200 So. 44; Mistich v. Holman, 205 La. 171, 17 So. 2d 23.

In the present case the record shows an. order of appeal was granted to the First Circuit Court of Appeal on April 19, 1948,. bond fixed and furnished -by the defendants on April 29; 1948. On June 11, 1948,. the transcript was lodged in this Court.. Therefore, under the jurisprudence, the District Court was divested of all jurisdiction except for the purpose of testing the-sufficiency of the bond filed by the defendants.

We are therefore of the opinion that the judgment of the Lower Court in sustaining the exception to the jurisdiction and dismissing the defendants’ motion was correct and it is accordingly affirmed at defendants’ costs.


author: JANVIER, Judge.

text:
    PRATER v. SUN INDEMNITY CO. OF NEW YORK et al.
    No. 18964.
    Court of Appeal of Louisiana. Orleans.
    Feb. 7, 1949.

      Cabral & Courtin and Wm. M. Campbell, Jr., all of New Orleans, for plaintiff-appellant.
    Lemle, Moreno & Lemle and George B. Matthews, all of New Orleans, .for defendants-appe'llees.
   JANVIER, Judge.

This is a suit for compensation under the Louisiana Workmen’s Compensation Law, Act No. 20 of 1914, as amended. The defendants are Dr. J. A. Colclough, who is alleged to have been the employer of plaintiff, and Sun Indemnity Company of New York, which corporation is made defendant under the allegation that it had issued to Dr. Colclough a policy of Workmen’s Compensation Insurance, which was in force at the time of the occurrence of the alleged accident to which plaintiff charges his present total disability is due.

Plaintiff alleges that he was employed by Dr. Colclough to do general concrete, masonry and carpentry work, and that while he was “engaged in pulling a bucket of concrete under the premises 5153 Baccich Street, New Orleans, * * * he struck his back on a floor joist, * * There is no specific allegation that Dr. Colclough was engaged in business as a contractor or as a builder, and because of the absence of such allegation, defendants filed exceptions of no right and no cause of action. These exceptions were argued in the District Court, and while they were being held under advisement, plaintiff filed a plea of es-toppel in which he contended that defendants could not be heard to assert that Dr. Colclough was not engaged in one of the hazardous occupations contemplated by the compensation statute since he had obtained from -the other defendant, Sun Indemnity Company, a policy of insurance as a part of which there were certain declarations, one of which, in the classification of operations covered by the policy, contained the following: “1(a) Carpentry in the construction of dwellings not exceeding three stories in height — including installation! of interior trim, builders’ finish, or cabinet work and the construction of private garages in connection with such structures. (Carpentry in the construction of detached private residences for occupancy by one or two families to be separately rated.)”

The judge a quo overruled the exceptions, stating that he did not have before him all of the issues and that he, therefore, felt that he did not have the right to refer an exception to the merits and that, therefore, it would be best to overrule the exceptions since “the ends of administering an exact justice will better be served at this time by overruling the exception of no legal right, or cause of action.”

The defendants filed answer in which they admitted the employment of plaintiff by Dr. Colclough, but in which tliey denied that there was any liability primarily because of the fact that Dr. Colclough was not engaged in an occupation covered by the compensation statute, and for the further reason that plaintiff had not sustained any injury while in the employ of Dr. Colclough which had caused his disability.

After an extended trial on the merits, there was judgment dismissing plaintiff’s suit. Plaintiff has appealed. Defendants have answered the appeal, praying that the exceptions be sustained and that the judgment, which overruled the exceptions, be reversed but that the final judgment dismissing the suit be affirrtied.

We first address ourselves to the question which is posed by the plea of estoppel, which was filed by the plaintiff.

The contention is that the defendants, cannot be heard to contend that Dr. Col-clough was not engaged in an occupation contemplated by the statute, since he applied for and secured from the other defendant a policy of insurance protecting him ■against liability for compensation, and in his application set. forth that he intended to engage in the occupation of “carpentry”, etc. .

The identical question which is presented by this plea of estoppel was made by the plaintiff and considered by us in Franz v. Sun Indemnity Co. of New York, La.App., 7 So.2d 636, 638. We find nothing-whatever in the facts of the case at bar which distinguish it and, therefore, feel. that what we said in the Franz case is decisive here. There we stated the issue to be: “If by the issuance of a policy in which it agreed to indemnify the employer corporation against loss due to liability for compensation and by the acceptance of a premium therefor the insurer estopped itself to contend that the employer, because of the nature of its business, could not be liable in compensation, then that is an end of the entire matter so we should first consider that contention, which is in the nature of a plea of estoppel. * * * ”

We set forth at length our reasons for concluding that no estoppel resulted from the fact that an insurance policy had been applied for and had been issued.

In Benjamin v. Standard Accident Insurance Co., 152 La. 874, 94 So. 428, 429, a question almost identical was presented, and there the Supreme Court said: “The admission made by defendant company in its original answer was that it-was the insurer of the employer; 'but the defendant company accompanied this by a denial of liability to plaintiff. We do not see that there has been any change in the defendant company’s attitude. Independently of all admission, the fact stands out that the defendant company was the insurer of the employer; but from that fact does not result in favor of plaintiff a right of action under {he Workman’s Compensation Act. Plaintiff had no right of action under the act against the employer, and has none against the surety of the employer.”

Following what the Supreme Court said in Benjamin v. Standard Accident Insurance Company, supra, the Court of Appeal for the First Circuit, in Rutland v. General Accident Fire and Life Assurance Corporation, Ltd., La.App., 200 So. 486, 488, said: “With that point settled there only remains now the question as to plaintiff’s right of action against the defendant, insurance company, Gillespie’s surety, under the contract of insurance. That question might be the source of further controversy in the case were it not for the fact that the Supreme Court has already specifically held that .where an employee has no right of action under the Statute against the employer, he has none against the employer’s surety. This ruling was made in the case of Benjamin v. Standard Accident Insurance Co., 152 La. 874, 94 So. 428. The district judge was therefore correct in sustaining the exception of no right of action on this ground.”

Since defendants are not estopped to contend that Dr. Colclough was not engaged in a business which was within the contemplation of the compensation statute, we pass on to a consideration of what was the nature of the business, if any, other than that of the practice of medicine, which was conducted by the doctor.

Since defendants have reargued their exceptions in this Court and have strenuously contended that the case should have been .dismissed in limine and on those exceptions, we first direct our attention to a study of the allegations of the petition. We immediately notice that there is no allegation which charges that Dr. Colclough was engaged in a business hazardous by nature and within the group of occupations listed in the statute. The only allegation is that plaintiff was employed to do general concrete, masonry and carpentry work, and there is not one word which sets forth that Dr. Colclough was engaged in any kind of occupation other than the practice of medicine. We do not think it a necessary inference from the allegation that one who employs some one else to do such work is engaged in the business of constructing or building or doing anything of that kind. Nevertheless, because this is a compensation case and because we agree with the district judge that it is best to have all the facts before us, we agree that he was correct in overruling the exceptions so that the full nature of all the operations conducted by Dr. Colclough might be presented in the record.

When we come to consider the evidence, we find that there is a complete absence of a single word which would indicate that the defendant, Colclough, was to any extent engaged in an occupation which was within the coverage of the statute. In addition to the proof that the doctor is engaged in the practice of his profession, the only statements in the record, which even refer to any other work which he may have conducted, are his own statements. When asked: “Have you ever been engaged in the building or construction trade?”

his answer was: “Only as regards this particular job, and other minor jobs on other homes which I owned.”

In Shipp v. Bordelon, 152 La. 795, 94 So. 399, 400, our Supreme Court was confronted with what we consider the exact situation presented here. There Dr. Bor-delon was the owner of a building in the City of Alexandria, Louisiana. He employed two workmen to do repair work on this building. One of them, Walter Shipp, a carpenter, was injured, and he brought suit in compensation'against Dr. Bordelon. The defendant contended that he was not engaged in one of the hazardous occupations listed in the compensation statute, and that, consequently, he could not be held liable in compensation even though the particular job in which the employee was engaged wras hazardous and was such as would have been within the contemplation of the act had the employer been engaged in such a business. The Supreme Court said: “ * * * it is not enough that the employe shall be performing work of the character falling within the designated trades, businesses, or occupations, but it must be done ‘in the course of the employer’s trade,’ etc., in- certain trades, businesses, etc. In other words, the work must be of that character, and the employer must be engaged in that line of work as a trade, business, or occupation, in order that the act may apply. It is not pretended that the defendant was engaged, as a trade, business, or occupation, in the building, repairing, etc., of houses or other structures, but merely found it necessary to repair a certain building on his farm. * * * ”

This view is followed in numerous decisions of all the courts of this state since that time.

Counsel for plaintiff argue that it is quite possible that one person may be engaged in more than one occupation or business and that even a physician, if he regularly engages in the building or repairing of houses, may be considered as engaged in that business and may, therefore, be liable in compensation to employees who may be injured while working for him in the building or repairing of houses, and 'we have no doubt at all that this is true. Any person may be engaged in two or more businesses. The Supreme Court recognized this in Shipp v. Bordelon, supra, saying: “We agree with counsel that it-is not required, under our law, that the business of the employer must be exclusive, for one may have a dozen trades, businesses, or occupations.”

. Counsel make the additional argument that if a person, a doctor for instance, owns rental property from which he derives an income, the management of that property and the keeping of it in repair is-a secondary business and that, therefore, any employee who works for him in making such repairs is entitled to compensation for injuries.

It may be that a person may own so many rental properties that the managing and the repairing of them might properly be considered as a secondary business or occupation. Just -how extensive such holdings would have to be we are not prepared tó say. But we have no hesitation in saying that if a person, such as a practicing physician, owns one -or two, or even a few properties and attempts to keep them in repair, he should not be considered as being in the business of repairing houses. If we could agree that the maintaining of only one piece of rental property could be considered as a secondary business, we cannot see that any-different result would be accomplished here, because here the house under repair was not one which was being rented out and from which revenue -was being derived, but was the residence of Dr. Colclo-ugh himself, and as we have said, there is no word in the record to show that he had ever conducted repairs to other properties other thani the several homes he had owned in the past.

It would be indeed a disastrous doctrine which would hold that a homeowner, who. undertakes to‘repair his own home and employs a workman or a skilled craftsman to-do his work, may be liable in compensation for injuries sustained by sucb an employee.' If the homeowner finds a slate loose or some other minor repair to- be necessary .and he attempts to have those repairs made "by his own employee, if he is to be held liable in compensation then it will , be nec•essary that he secure compensation insur.ance and the result will be that he can make the repairs only at prohibitive cost. 'The framers of the statute contemplated no such result.

Counsel for plaintiff make the alternative argument that if we do not conclude that Dr. Colclough was engaged in the construction business as a secondary ■occupation, still there should be liability for the reason that he had converted his primary occupation, — the practice of medicine, ■ — into a hazardous business contemplated '.by the act. And in this connection counsel ■cite, with great confidence, Collins v. Spielman, 200 La. 586, 8 So.2d 608, 609, as authority for the proposition that an occupation or business that ordinarily is not hazardous and is not covered by the compensation statute may be brought within .that statute, if, in the regular conduct of .the business, the employer uses machinery .or engages in any other practices which are specifically designated in the statute. For instance, a farmer may use tractors, trucks, or other kinds of machinery to such an extent as to justify the conclusion that he has converted a nonhazardous farming business into one which requires work in and around machinery. See Robinson v. Atkinson, 198 La. 238, 3 So.2d 604; Collins v. Spielman, supra; Staples v. Henderson Jersey Farms, La.App., 181 So. 48. An undertaker, whose business is not classified as hazardous, may, by the use of .automobiles, bring his business within the statute. See Hecker v. Betz, La.App., 1, 72 So. 816 and Franz v. Sun Indemnity Co. of New York, supra. There is no doubt ■of this and the Supreme Court has clearly set forth its views on this' subject in the cited case, Collins v. Spielman.

But the conclusion that an ordinarily nonhazardous business may be converted into a hazardous one by the use of machinery does not bring about any different situation here for there is not one word to show that the doctor, in his practice, uses anything which would have justified the conclusion that he had converted his nonhazardous profession into a hazardous occupation contemplated by the statute.

Furthermore, even if it had been shown that he had converted his profession into a hazardous occupation, we do not see that there was the slightest connection between the practice of his profession and the repairing of or making alterations to his residence. Let us suppose that a manufacturer undertakes to make repairs to his residence and employs some one not engaged in his factory to make these repairs. Surely the mere fact that he is engaged in a hazardous occupation- — manufacturing—would not bring under the protection of the act any one making repairs to his residence, for the act provides that it protects only those employees who are performing services “arising out of and incidental to his employment in the course of his employer’s trade, business or occupation * *

Even the doctrine that we followed in Hecker v. Betz, supra, does not require a result such as that contended for by plaintiff. In that case the undertaker decided to repair the building in which he conducted a business which had been made hazardous by the use of automobiles which were stored in the building which was being reconstructed. No similar situation exists here.

We conclude that plaintiff has not shown that he was injured while performing services arising out or incidental to' his employment in the course of a hazardous trade, business or occupation of his employer. Conseqently, the judgment appealed from is affirmed at the cost otf appellant.

Affirmed.


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    TAMBURELLO v. HURWITZ-MINTZ FURNITURE CO.
    No. 19149.
    Court of Appeal of Louisiana. Orleans
    Feb. 7, 1949.
    Rehearing Denied March 14, 1949.
    Gerald- Netter, of New Orleans, for plaintiff-appellee.
    Joseph Rosenberg, of New Orleans, for defendant-appellant.
   JANVIER, Judge.

Plaintiff operates an automobile parking garage at No. 922 Conti Street in New Orleans. Defendant, a partnership, operates a furniture store a few city squares away from plaintiff’s establishment. Plaintiff sues defendant for $110, alleging that that amount is due for the parking of one of defendant’s trucks for eleven months at $10 per month. Defendant denies any indebtedness. From a judgment for plaintiff, as prayed for, defendant appeals.

At the beginning of the trial in the First City Court of New Orleans, defendant called upon plaintiff to declare whether “he is suing on a contract or a quasi-contract,” and counsel for defendant answered that the suit is “on a quantum meruit basis.”

In 1938 plaintiff and defendant entered into a verbal arrangement under which defendant was given the right to park three trucks in the establishment of plaintiff at a flat rate of $19 per month.

In 1939, one of these trucks became completely unusable, and it was placed in the lot belonging to plaintiff adjoining the enclosed garage, but the other trucks, with one or more automobiles, continued to use the regular parking facilities of the plaintiff. The old truck remained in the lot, not under cover or otherwise protected. Defendant was well aware of this.

In July, 1947, there seems to have been some disagreement between the parties, and defendant took out of plaintiff’s parking establishment all of the vehicles except the one dilapidated truck which was in the lot. All bills had been paid up to that time.

Some time thereafter plaintiff sent to defendant a bill for. $10 for one month’s storage of the old truck. Miss Wallace, one of defendant’s employees, telephoned plaintiff concerning this bil-1 and there is a disagreement as to the purpose and as to the outcome of this conversation. Miss Wallace,says -that she told Tamburello that the old truck was worthless and that he should dispose of it “to some junk man or second-hand dealer”, and she says that Tamburello said “that he would do it.” She says that it was understood that Tamburel-lo would “dispose of it any way he could, whether he could get money or not.”

Tamburello, however, gives a different version. He remembers the conversation with Miss Wallace, but says that he told Miss Wallace that he could not dispose of the truck—“that it wasn’t my property * * * that it was so silly to say that because I didn’t own it.” At any rate, Tam-burello continued to send monthly bills to defendant at the rate of $10 per month and defendant continued to ignore these bills until this suit was filed.

We agree with the trial judge that Tamburello’s testimony concerning the situation seems to be the correct one.

Surely it was not his duty, nor was it his right to dispose of the old truck of defendant and if he had agreed to do so, we think it certain that defendant would have vehemently protested wheij Tamburello continued to send monthly bills. It was the duty of defendant to dispose of its old truck, or at least to remove it from Tam-burello’s place of business if defendant did not desire to dispose of it.

We have no hesitation in reaching the conclusion that defendant is indebted to plaintiff for a reasonable storage charge during that period of eleven months.

We are somewhat concerned, however, with the size of the charge. Plaintiff testifies that storage rates have increased considerably since 1935, when the arrangement was first made, but we find it difficult to believe that $10 per month is the proper charge for the “dead storage” of a dilapidated automobile which apparently has been completely worthless for some time. At the same time, we are impressed with the fact that defendant could have put an end to this arrangement at any time during the eleven month period by merely removing the truck, and it seems to us that when defendant continued to receive these bills for eleven months at $10 per month, and yet allowed the truck to remain, occupying space in plaintiff’s lot, defendant tacitly agreed to the rate which was being charged.

Counsel for defendant calls our attention to the case of Clark v. Hudson, 3 La.App. 254, and says that it is authority for the view that “the plaintiff can not recover for storage on a quantum meruit basis a larger amount than the value of the thing on storage.” (Syllabus)

That rule has no application here. While it is true that the charge is made on a quantum meruit basis, the basis has been established by the acquiescence of defendant. Furthermore, we doubt the applicability of that rule to a situation such as this because while the article stored may have had little or no value, the space occupied was just as valuable to plaintiff as it would have been had it been used by a valuable automobile. At any rate, we think that, under all- the circumstances, the amount charged is correct.

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

Affirmed.