author: LeBLANC, Judge.

text:
    ROUX v. HENDERSON.
    No. 3138.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    Reid & Reid, Hammond, for appellant.
    W. S. Rownd, Hammond, for appellee.
   LeBLANC, Judge.

Mrs. Evelyn S. Roux, -the plaintiff in this ■case, was employed 'as a helper at the lunch room in the Denham Springs High- School in the Parish of Livingston. She.lives at Port Vincent which - is a considerable distance from Denham Springs and rode to work each day on a school bus which she hoarded at French Settlement. This bus was owned by George Henderson, the defendant herein, and was operated by him under a contract with the Livingston Parish ’School Board to transport children attending the public school at Denham Springs.

In her petition plaintiff- alleges that she was permitted to ride as a passenger'on the hus and that on August 5, 1946, while a passenger with the permission and consent of George Henderson, she sustained great injuries due to his negligence, carelessness, or • want of skill, when he permitted t'he bus to leave the graveled road on which it was traveling and run into- a .tree or some other obstruction on the side of the,road. She sets out her injuries as being a iracture of-the 12th dorsal, the 2nd, 3rd.and 4th lumbar vertebrae, all of which incapacitated her from doing any work and which incapacity will continue for many months. She sets out her damage in the . sum of $7,500.00, and expenses for treatment which were incurred by the community existing between herself and- her husband, John B. Roux, Sr., in the sum of $335.30 which should be recovered by her said husband for thé benefit of the said community.

In his, answer the defendant admits that be was employed by the school board to operate the bus and that o.n the day alleged in plaintiff’s petition she was permitted to ride therein as a guest but specifically avers that she was not a passenger for pay. He next avers that he was driving the bus at a moderate speed and was in no way negligent when the accident happened and consequently denies any liability.

Further answering.he alleges that on .the’ day of the accident plaintiff was riding the bus as a guest and that she shared the ordinary risks and dangers attendant upon riding the same; that the road on which he-was traveling was apparently safe and he had no reason to expect anything of a dangerous character, unseen and unknown to him until it was suddenly encountered and had no opportunity of avoiding an accident. He further alleges that between himself and the plaintiff, he was not an insurer against latent defects in the road; that he was not at fault in the operation of the school bus when the accident happened but the accident was the result of the latent defects that existed, all of which was assumed by the plaintiff when she got on the bus.

On the issues as thus presented to it the case was tried in the lower court and resulted in a judgment in favor of the defendant, dismissing plaintiff’s suit at her costs. From that judgment this appeal was taken.

In his answer defendant seems to stress the point that the plaintiff was not a pay passenger on his bus. Had she been, that, under the law, would have made a difference in the degree of care required of him in carrying her as a passenger for pay. Under the testimony adduced, that point now appears to be immaterial as we find that she was correctly held by the trial judge to be a guest passenger to whom the driver owed no greater duty than that of reasonable care.

When this lady was employed by another lady who operated the lunch room, the question came up as to how she would come to work each morning as she had no conveyance of her own. The lady who employed 'her rode to work on this bus herself and she told plaintiff that that was the way she should come to work. We construe defendant’s testimony in such manner that he was reluctant about taking her and as a matter of fact it seems to have been necessary for the superintendent of schools to intervene and direct him to transport her. Even then the superintendent testified that the defendant protested, but in the end permitted her, as he said, to ride on the bus with the other lady and with the school children. In no sense therefore could she have been considered as a passenger for pay such as a person paying a fare on a public conveyance and to whom the operator owes the highest degree of care under the contract of transportation. Indeed, under the facts shown, this lady was more a licensee than anything else and considered as such, the point is well taken by counsel for defendant that she assumed all the risks incident to latent defects in the road in common with the driver of the bus.

It is strongly urged by counsel for plaintiff that there was negligence on the part of the defendant, first, because assuming that the accident was caused, as he says, by his running into loose gravel which •had the effect of swerving the bus out of its path of travel, he should have known or anticipated such a condition and been ready to guard against it as he had been driving over that same road so frequently and for so long a time, and second, because the testimony shows that he was using one of his hands to operate the windshield wiper on the bus and that left him with only one hand to control the steering wheel. We do not find any proof whatever to support the charge of negligence on the second ground. Certainly there is nothing to show that that had anything to do with the accident in the manner in which' it occurred, and since there is nothing to disprove the defendant’s testimony, the only way that the accident can be accounted for is that he met up with a heap of loose gravel in a curve on the highway and that had the effect of swerving his bus to the left and causing it to run into a clump of bushes or young trees on his left-hand side of the road. He testified that he wasn’t going faster than 25 miles an hour and there is no testimony to contradict that. Certainly that can’t be said to be negligent or careless driving as far as speed is concerned. Otherwise, we think the testimony is altogether in his favor on the point that 'he is generally considered to be a very prudent and careful driver. The plaintiff is the only witness who testified that she heard at different times that he was sometimes negligent m his driving. He had been operating a school bus for a good number of years and before that he drove a horse pulled wagon to transport children to school. We hardly think that he would have been kept in such a responsible position as a driver if hé did not enjoy the reputation of being as careful and prudent as he was shown to be.

There is a veiled insinuation that he left his job as a bus driver sometime after this accident happened and that was perhaps because he was not the good driver he was said to have been. His explanation is that after so many years on the job he was tired and as he had a chance to sell his bus and cared to devote more time to some other business he had, he gave it up.

The evidence satisfies us that this was an unavoidable accident for which no one in particular can be held to blame and for that reason we hold that the judgment appealed from which relieved the defendant of ‘liability is correct, and it is accordingly affirmed.


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    WELLS v. MORGAN & LINDSEY, Inc., et al.
    No. 3130.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    William J. Daly, New Orleans, H. Minor Pipes, Houma, for appellant.
    Jones, Flanders, Waechter & Walker, New Orleans, Ellender & Wright, Houma, Elton A. Darsey, Houma, for appellees.
   DORE, Judge.

The plaintiff, Horace B. Wells, Jr., a carpenter, was employed by the firm -of Morgan & Lindsey, Inc. to make certain repairs or alterations on its store building located at 524 E. Main St. in Houma, Louisiana, and while performing his work, the ceiling of the second story of said building collapsed and plaintiff was crushed by the second story floor and goods stored therein resulting in severe personal injuries for which he sues herein. It is alleged and shown that the building belonged to Miss Alice Blahut and was under lease to Morgan & Lindsey, Inc. The building is a two-story building approximately 40 feet wide and 90 feet deep. The store occupied the whole of the lower floor and the rear 30 feet of the second floor. The rear 30 feet of the second floor was used by Morgan & Lindsey as a storeroom for storing excess stock.

It appears that in July of 1946 it was discovered that the floor of this storeroom vibrated, and for that reason the store manager, Mr. G. H. Bedgood, was instructed by an official of the company to have the supporting columns of this stockroom replaced and, finally, plaintiff, Wells, was employed to do this job. On August 6, 1946 while performing his duties in replacing the two columns, which were felt to be insufficient to hold up the ceiling of the stockroom, the ceiling collapsed and, together with the merchandise stored in the stockroom, fell upon the plaintiff.

He alleges that the accident was caused by vices or defects in the building and that, in effect, by being employed to replace two posts in said building, a large part of it, including the part he was to work in, had been burned from a fire previous to the repair work, had caused the vices or defects alleged, he walked into a trap. Plaintiff further alleges that the defendant Morgan & Lindsey, against his protest, continued to load goods and merchandise in the storeroom during the time that he was performing his work as carpenter.

On these alleged facts, he contends that the accident was caused solely by the gross negligence of Miss Alice Blahut, owner of the building, because of the vices and defects in the building, well known to her and not plaintiff, and also by the gross negligence of the defendant Morgan & Lindsey, Inc., in storing goods and merchandise, in spite of his protest, in the storeroom and thereby adding additional weight on the weak columns which he was attempting to replace. He therefore claims damages in tort against Miss Blahut, Morgan & Lindsey, Inc. and against Liberty Mutual Insurance Company of Boston as insurer of Morgan & Lindsey.

In the alternative, plaintiff alleges that he was an employee of Morgan & Lindsey; that carpentry is a hazardous occupation; and that in- so far as the operations of plaintiff are concerned, Morgan & Lindsey were engaged in an occupation properly classified as hazardous under the compensation act. Act No. 20 of 1914, as amended.

The defendants admit the allegation that the building was owned by Miss Alice Blahut and leased by Morgan & Lindsey, Inc. They further admit that on August 6, 1946, plaintiff did sustain the accident alleged, resulting in serious personal injuries. Defendant Blahut denies that there were any vices or defects in the construction of the building and denies any liability to the plaintiff. The defendant, Morgan & Lindsey, Inc., denies the material allegations of plaintiff’s petition and avers that plaintiff was an independent contractor employed to perform the job of replacing two wooden supporting columns with two steel posts; that he was employed as an expert carpenter for that purpose after he had full opportunity to inspect the premises and to ascertain what the jot> was; that he had complete control and supervision of the work to be done at a stated compensation and that consequently he was an independent contractor. The defendant, Morgan & Lindsey, Inc., and its insurer, further aver that they were guilty of no negligence whatsoever contributing to his accident, and in the event that any vice or defect existed in the building they deny responsibility therefor, since the building was merely leased and they had no knowledge or information of any defect or vice. In the alternative, in answer to the tort claim, these defendants allege that even if negligence should be found on their part, which is denied, then, in that event, it must be found that the plaintiff was guilty of contributory negligence. Their contention of contributory negligence is based on the alie-gation that plaintiff, who is supposed to be an expert carpenter, through negligence or lack of skill, failed to support the beam or joist on the ceiling while removing one of the old wooden columns, with a house jack or by other means, in a proper manner, and that this negligence was the real cause of the collapse. The defense to the claim for workmen’s compensation is to the effect that the plaintiff was not an employee in that he was an independent contractor and to the further effect that Morgan & Lindsey, Inc. were engaged in the retail merchandise business which is non-hazardous under the workmen’s compensation act.

After trial of the case, the district court rendered judgment in favor of the defendants dismissing plaintiff’s suit at his costs. Plaintiff has appealed.

The trial judge has not favored us with written reasons for his judgment but it appears apparent that he must have concluded from the evidence, (a) in so far as the compensation claim is concerned, that the plaintiff was not an employee under the terms of the compensation act but on the contrary was an independent contractor and/or that Morgan & Lindsey, Inc. were not engaged in a hazardous occupation under the terms of the workmen’s compensation act; (b) that the accident was not caused by any vice or defect in the building or by any negligence on the part of the defendants and/or that the plaintiff was guilty of negligence which caused or contributed to the accident.

The record in this case is voluminous and consists of much repetitious testimony and testimony that is not very pertinent to the issues involved. It does not seem necessary to review this large record in detail because the important facts are pretty well established by the evidence even though there is some slight contradiction in the testimony.

It seems clearly shown that the building in question had been burned or charred some time previously to the decision to make the alteration involved herein. It is shown by the testimony of Mr. Corbin, who is referred to by plaintiff as the defendants’ contractor and by defendant Morgan & Lindsey as an eminent contractor, that this building was repaired by him subsequent to the fire and that at that time some of the charred timbers were allowed to remain but new timbers with some reinforced iron, were placed where found necessary. Plaintiff’s counsel strenuously contends that this is sufficient to show a vice or defect in the building but neither Mr. Corbin nor anyone else has testified that these charred timbers or lumber in any way affected the structure. It appears from that testimony that this charred timber or lumber was merely surplusage which did not strengthen but in no way weakened it. Mr. Corbin further testified that upon request of Mr. Bedgood, the manager of the store, he inspected the storeroom and the proposed work to be done in order to strengthen the second floor support and at that time he concluded that the job was not urgent. He, at the time, was busy with other work but stated at a later date that he could do the job. It appears that the plaintiff, who lived in New Orleans, learned about the proposed job through a relative of his who1 was employed by Morgan & Lindsey and he thereupon applied for the job and was given the job by Mr. Bedgood, the manager. Bedgood testified that an agreement was reached with plaintiff Wells that he would receive the sum of $365 in full payment for the work of replacing the two wooden posts with steel columns and that he, plaintiff, would furnish all labor and tools necessary for this work. Plaintiff denies that he made a fixed fee bid for the work and testified that he agreed to do the work on the basis of time, material and expenses. In any event, plaintiff arrived at Houma on August 6, 1946 accompanied by Mr. Worrell, another carpenter, whom he had employed to assist him. After plaintiff and Worrell had worked but a short time, plaintiff decided that he needed additional labor and he thereupon employed two Negroes, Morrison and Thomas, to assist in the work. At about 11:00 A.M. on August 6, 1946, while the plaintiff and Worrell and the two laborers were engaged in removing the first of the two posts to be replaced and were using a house jack in order to support the weight as a substitute for the posts being removed, the structure collapsed. It is the defendant’s contention that the house jack slipped and failed to afford the proper support. Oh the other hand, the plaintiff contends that the real cause of the collapse was the vices or defects in the building caused by the fire which had occurred previously, and in support of that contention, he introduced testimony to the effect that the collapse was not instantaneous but took about a minute resulting from cracking here and there in the building and as further shown by the fact that carpenter Worrell and the two laborers had sufficient time to get out before the collapse.

On that important point, Morrison, one of the laborers, testified that when he went in the store he found that the old post had been removed and that in order to support the ceiling, Wells had placed a six by eight with a jack under it and two two by fours ahead of it and finally that the jack “walked” and the collapse then occurred. Witness Thomas, the other laborer, made this statement: “After we brought the post (steel post) in and we laid it down, and I think Mr. Wells he asked Morrison to saw the post. That was the two by six. He asked him to saw that, and after Morrison said he wouldn’t saw it then I think he started to saw it himself. And after he started sawing it this post what had the jack under it, it started moving a little bit, and I started getting out the way myself. And I told them this thing is going to fall. So after he said that good then she caved in. That’s all I remember.”

Worrell’s testimony as to how the accident happened is as follows: “We came’ over on the Sth to put in a couple of steel columns. It was steel pipe is what it was. And on the morning of the 6th we went over and slipped the mirrors off the column and pulled the baseboard from around the bottom of the column or the molding, and pulled up a piece of flooring to see what we had underneath where we would put the jack. We found it was concerté, (concrete) so we put a two by twelve, run it straight with the floor, set the jack on this two by twelve with a six by six in an upright position under the beam, and that is the way we jacked it up. Then we stripped the column off, the outside casing off the column, and we taken it out, and we was ready to put the steel column under to replace it, and there was some popping overhead, and when it popped I run like a hillside rabbit. I didn’t wait to see what it was.”

This witness testified further that the supporting jack was placed under the beam at about 8:00 o’clock and that the collapse did not occur until 11:00 o’clock. Upon being asked the question: “From your knowledge of your profession, which you have followed for twelve to fifteen years, and your knowledge of the manner in which this operation was conducted, would you say it would have been possible for this jack to slip and thus cause the collapse?” be answered: “If the jack would have slipped, it would have slipped when we first put it under there. The same pressure was bearing on it from the time we put it under there until the time it collapsed. We didn’t tighten up any more on the jack. We tightened up to start with. What taking up we did was right at first. There was no point in touching the jack again until we taken it out.” This witness was also permitted to express his opinion as to the cause of the accident and stated: “I think it was bad timber in the overhead beam. It had gotten bad and it broke.”

Plaintiff testified first with reference to his employment to the effect that he was employed by Mr. Bedgood to replace two wooden columns with two steel columns; that he was to do this work for Morgan & Lindsey under the supervision of Mr. Bedgood at $1.75 per hour for himself plus the cost of other carpenters and laborers. With reference to the actual accident, he first tells about removing the column and then “We made preparations to put the steel column in the place where the old column had been, and it was a matter of fifteen or twenty minutes or more, and I heard a terrible crash up above, and that was the time that it looked to me like about the center of the two columns, you know the distance of the columns how they are situated, looked like it was right about the center. When things happen that fast you don’t know, you are thinking about getting out, 'but I failed to get out.” Of course, the sum and substance of his testimony is that he was doing his job under the supervision of Mr. Bedgood and that the cause of the .accident was not any negligence on his part or the part of his helpers but was because of the vices and defects in the building.

With reference to plaintiff’s tort claim, the preponderance of the evidence is to the effect that he was employed as an expert to do a specific job, to-wit remove two wooden columns and replace them with steel columns; that he had full control of this job and as a matter of fact he himself employed another carpenter, Worrell, and two laborers, Morrison and Thomas for the purpose of doing this work. The preponderance of the evidence shows that the accident was caused by lack of precaution on the part of plaintiff in removing one of the two wooden posts without sufficient protective support of the overhead beam. There is some evidence that the timbers on this structure were defective and even testimony to the effect that termites were present and had attacked the structure. In spite of this evidence it appears that the real proximate cause was the slipping of the house jack because it was improperly placed under the beam, and this was done by the plaintiff. There is no supporting evidence of the allegation that the defendant Morgan & Lindsey, Inc. unduly loaded the storeroom with goods and merchandise causing the second story to collapse. It is our conclusion that plaintiff has not established by a preponderance of evidence that the accident was caused by any vice or defect in the building or by any negligence on the part of Morgan & Lindsey, Inc. and we therefore feel that his claim in tort against either defendant was properly dismissed.

With reference to his claim under the workmen’s compensation act, of course, the defendant Alice Blahut is not concerned. As to the other defendants Morgan & Lindsey, Inc., and its insurer, it is shown that the insurer carried workmen’s compensation insurance on Morgan & Lindsey, Inc. However, this is not evidence that such insurance was necessary or that Morgan & Lindsey, Inc. was engaged in a hazardous occupation, or, for that matter, that the plaintiff was an employee of Morgan & Lindsey, Inc.

It is our opinion that the defendant Morgan & Lindsey, Inc. is correct in both of its contentions; (a) that plaintiff was an independent contractor and (b) that Morgan & Lindsey, Inc., as the operator of a retail mercantile store, was not engaged in a hazardous trade, business or occupation within the meaning of the compensation act.

With reference to the first proposition, as brought out hereinabove, the preponderance of the evidence is to the effect that plaintiff sought and obtained a contract to do the alterations desired in the store building and that he thereafter secured his own assistants to do that work and furnished his own equipment therefor, and the materials necessary to do the work, such as the steel posts and lumber.

In the case of Rodgers v. City of Hammond, La.App., 178 So. 732, and Hebert v. Blair, La.App., 142 So. 849 and Allgood v. Loeb, 210 La. 594, 27 So.2d 380, it is shown that three primary factors must be taken into consideration to determine whether or not a person performing services for another is an independent contractor and without the protection of the compensation law, to-wit (1) whether the service is rendered for a specific recompense, (2) for a specified work either as a unit or as a whole and (3) whether the person rendering the service retains control and direction over the means and methods employed by him in accomplishing the work.

In the case at bar, whether we accept the testimony of Mr. Bedgood to the effect that this job was to be done for $365, or the testimony of the plaintiff that it was to be done at the rate of $1.75 per hour for plaintiff plus all costs and expenses of assistants, the fact remains that the work was contracted for at a specified recompense.

The evidence is clearly to the effect that the work contracted for was to replace two wooden columns with two steel columns so that the second test as to specified work as a unit or a whole is met.

The preponderance of the evidence is to the effect that the plaintiff retained control and direction over the means and methods of performing the work. He employed his own assistants and used his own tools in performing the job. He states that he was acting under the supervision of Mr. Bedgood but there is no evidence to that effect and there is no evidence that Mr. Bedgood, beyond being the manager of a retail store, had any knowledge of the particular work to be done. As a matter of fact, the evidence shows that the job would have been turned over to M-r. Corbin, an experienced contractor, had Mr. Corbin had the time to do it and that the plaintiff was accepted in Corbin’s place under the belief that he was a similar expert and could take care of the situation.

It seems clear therefore that all three tests, as set forth in the cases cited, have been met in establishing the fact that plaintiff herein was an independent contractor.

Since plaintiff was an independent contractor, it does not seem material to consider the second point advanced by defendant that the operation of a retail mercantile store is not a hazardous trade, business or occupation within the meaning of the statute. However, plaintiff contends very strongly on that point and if it could possibly be admitted that he is an employee, the contention is material. Plaintiff’s contention is that Morgan & Lindsey, Inc. does come within the provision because it operated a warehouse and because the store contained electrical equipment including fans which were dangerous. In so far as the warehouse proposition is concerned, the warehouse in question was merely a small storage or stockroom 30 by 40 feet in dimension and used exclusively for the purpose of the retail store. In the case of Caldwell v. George Sproull Co., La. App., 164 So. 651, 653, affirmed by the Supreme Court in 184 La. 951, 168 So. 112, the Court of Appeal for the second Circuit said: “The statute declares to be hazardous the occupation of operating warehouses. Such a business is a distinct and well-defined one. A ‘warehouseman’ is one ‘lawfully engaged in the business of storing goods for profit.’ Act No. 53 of 1920. The goods referred to, of course, being goods of third persons for which negotiable receipts are issued. Act No. 221 of 1908. A permit for the operation of such a business has to be obtained from the clerk of the civil district court wherein the business is carried on. Section 1 of Act No. 82 of 1926. Other requirements are prescribed by the statute before a person may legally become a warehouseman. Surely, because a wholesale dealer stores surplus stock bought'or manufactured by him, in the basement of his building, as is done by defendant, he does not thereby engage in the occupation of operating a warehouse. Such a room is no more than a storage room. It is in no sense a warehouse. The position of plaintiff here discussed is not tenable.”

With reference to the dangerous electrical equipment on which plaintiff relies to show the hazardous nature of defendant’s business, the testimony shows that in the store defendant maintained four electric fans and one small key machine operated by a l/20th 'horse power motor; that all of these electrical appliances were enclosed; there is no evidence whatsoever that the plaintiff herein could in any manner come in contact with these appliances and we cannot see how, even if plaintiff can be considered an employee, that these appliances should make his employment hazardous. The defendants in their brief cite several cases including the case of Lafleur v. Johnson, La.App., 37 So.2d 869, 872, recently decided by us, wherein we said: “Since the operation of a joint saloon and night club is not named in the act as one of the hazardous trades, businesses, or occupations covered by the act, nor is any form of mercantile business, wholesale or retail, so designated therein, plaintiff would only be entitled to compensation if the facts showed that in the performance' of his duties decedent necessarily came into direct contact with electric motors. This, she has failed to do. We do not want it understood, however, that these small enclosed, electric motors m any particular case would he sufficient to classify any employer defendant as engaged in a hazardous and non-hazardous occupation. Under the facts of the case, the compensation act is inapplicable.1’ (Italics ours).

It is our conclusion that the unfortunate accident involved herein resulted through negligence or lack of skill on the part of the plaintiff, an independent contractor, who contracted to do a specified job, and that therefore, as found by the lower court, he has no standing in court either under our tort statute, Civ.Code, § 2315 et seq., or our workmen’s compensation statute.

For these reasons, the judgment appealed from is affirmed.


author: McBRIDE, Judge.

text:
    BLACKBURN v. CHENET.
    No. 19125.
    Court of Appeal of Louisiana. Orleans.
    Oct. 4, 1949.

      William J. Daly, New Orleans, for plaintiff and appellant.
    A. B. Granzin, Jr., New Orleans, for defendant and appellee.
   McBRIDE, Judge.

Plaintiff, Joshua Blackburn, claims of defendant, Lewis Chenet, the sum of $25,000 for personal injuries, alleging that while in the employ of said Chenet he sustained serious physical injuries, which were “the result of negligence on the part of said Chenet in furnishing him with a wild and untamed” mule. He alleges that he was employed by defendant to peddle fruit and vegetables in a wagon owned by Chenet, and, by inference, alleges that since the business in which Chenet was thus engaged was not within the list of those specifically contemplated by the Workmen’s Compensation Law, Act No. 20 of 1914, as amended, being nonhazardous, the compensation act has no application, and that, therefore, Chenet is liable in damages. In the alternative, however, Blackburn prayed that if it be held that the occupation in which the said Chenet was engaged comes under the act, he, plaintiff, was employed to perform work of such a nature as to make the statute applicable, and that Chenet is liable to him in compensation for $20 per week for 400 weeks, since he has been, according to his allegations totally and permanently disabled.

The defendant filed an exception of no cause or right of action and, at the same time, filed an answer. He denied that Blackburn was his employee, and averred that Blackburn was an independent contractor, engaged in the selling of fruit and vegetables for his own account, and that he, defendant, only rented the wagon and mule to plaintiff and advanced him the necessary funds for the purchase of the stock to b.e sold from the wagon. Defendant disavows negligence on his part and denies any indebtedness to plaintiff.

The record does not show that the exception was ever passed upon by the trial court, and we take it, therefore, that it was overruled.

After a trial on the merits there was judgment dismissing plaintiff’s suit, from which judgment plaintiff has prosecuted this appeal.

In advance of our hearing the case on its merits, plaintiff filed a motion to remand the case to the Civil District Court for the Parish of Orleans, in order that he might be afforded an opportunity to introduce certain newly discovered evidence which, according to the motion and the affidavits appended thereto, is of transcendent importance to his cause.

We considered that the motion to remand was prematurely filed and, for that reason, did not pass thereon, conceiving it to be our duty to hear arguments and consider the merits of the case, since when an appellate court remands a case, it is necessary to set aside the judgment, which the court cannot do without first considering whatever evidence is in the record. L. A. Frey & Sons v. Town of Slidell, 173 La. 397, 137 So. 193; Mayer v. Barrow, 182 La. 983, 162 So. 748.

There is no question but that an appellate court should remand a case for •the reception of additional evidence whenever the nature and extent of the proceedings require it, and such action is largely within the court’s discretion and should be exercised according to the peculiar exigencies of the case, especially when such action is consonant-with the ends of justice. Code of Practice, art. 906; McClung v. Delta Shipbuilding Co., La.App., 33 So.2d 438.

Plaintiff’s counsel does not pretend that such additional evidence would raise •any new point of issue or exclude any existing issue. We have carefully examined the record, which contains 193 pages of transcribed testimony, and we find that there is considerable evidence touching upon the point which counsel stresses in the motion as being of such vital importance to plaintiff’s cause that we should make the remand in order to permit the reception of the new evidence. We believe that the case can be properly adjudicated upon the record as it is now constituted, and that the evidence which counsel desires to produce would be merely additional and cumulative to the evidence already submitted. The motion to remand is, therefore, denied.

When this case was called for argument, counsel for appellee made no appearance. However, he belatedly filed his brief in which the exception of no cause or right of action is reurged, the brief being chiefly devoted to argument thereon. Counsel contends that the alleged arrangement between Chenet and Blackburn contains all of the elements of a partnership or joint-adventure, and that Chenet owed no duty whatever to Blackburn respecting the rule. We find no merit in the exception. As will be pointed out hereinafter, Chenet’s status was that of employer of Blackburn, and the allegations of the petition sufficiently set forth that fact.

It is contended by plaintiff that the business arrangement between himself and Chenet was as follows: Chenet owned several mules and wagons which were used by various other persons and himself in the peddling of fruit and vegetables on the streets of New Orleans, Chenet providing the funds with which each driver purchased his stock; that at the termination of each venture, out of the gross sales receipts, there was first refunded to Chenet the amount which he had advanced for the purchase of the stock, and then the balance remaining was equally divided between Chenet and the peddler.

Chenet has an entirely different version. He claims that he had only one mule and one wagon — the one used by Blackburn— and says, too, that there was no arrangement for the division of the profits. On the contrary, according to him it was understood that out of the receipts of sales he was reimbursed for his advances for the purchase of the stock and that, in addition thereto, he was to be paid about $2.50, $3, or $3.50 per day for the use of his mule and wagon. He said, referring to the peddlers, “I trust them to their own honor. * * * ” It is interesting to note about this particular feature of the testimony that after insisting that he only owned one mule and wagon, Chenet delved into a lengthy discussion of his arrangement with “these peddlers who operate the wagons,” and proceeded to say that “they” (using the plural) often make nothing and, therefore, give him nothing.

While insisting that he owned only one wagon, Chenet admitted that he kept five wagons in his yard, explaining that but one was his own and that the other four belonged to another person. On cross-examination, however, he admitted that his name and address was painted on the side of each of the five wagons.

Viewing all of the circumstances, Che-net’s statement that -all peddlers who operated his wagons gave him sometimes $2.50, $3, or $3.50, and sometimes nothing at all, does not appear to us to be reasonable. We think the truth was testified to by the plaintiff.

It is necessary to determine whether Blackburn was in the employ of Che-net. It is often difficult to determine the relationship between -two persons, i. e., whether they are independent contractor and contractee, or master and servant. Frequently the line of demarcation between an independent contractor and an employee is so faint as to be almost indistinguishable. However, of course, the first inquiry into the question is whether there was the right to control, but yet it is not always that an employer has the sole right to control the movements of his employee. We discussed this in Buettner v. Polar Bar Ice Cream Co., La.App., 17 So.2d 486.

Nor is it always of importance that there was or was not a regularly stipulated salary, as it often happens that an employee is engaged solely on a commission basis. Nor is it decisive of this issue whether a conveyance furnished by one or the other of the persons is used. This question was also discussed in the Buettner case and in the case of Shea v. Reems, 36 La.Ann. 966.

In Shea v. Reems, supra, the plaintiff-wife was run over by a wagon owned by the defendant, and she and her husband brought an action in damages against him. The court was concerned with the question whether the driver of the wagon was in the employ of the defendant. The driver peddled defendant’s goods at a particular wage plus an additional compensation of two per cent on the price of all goods sold, with the privilege of keeping any excess of price for which he sold the goods over and above the price limited by defendant. The court held that the driver of the wagon was the employee of defendant.

The distinction between the Shea case and the instant one is that in the former the driver received a fixed salary, plus commissions, while in the latter Blackburn worked for a commission of fifty per cent of the net profits on the sales.

The record does not set forth whether Chcnct retained the right of control over the movements of his various peddlers, but we feel sure that he had the right to terminate the relationship of any of them at any time. It is apparent that as a matter of fact Chenet’s interest in the success of plaintiff’s operations, as well as in the operations of the others who drove his wagons, was considerably greater than he would have us believe. He was engaged in the business of selling fruit and vegetables through those who undertook to drive his wagons, and those who did drive the wagons were his employees, engaging themselves on a commission basis.

Revised Civil Code, art. 163, says that servants are those: “ * * * who let, hire or engage their services to another in this State, to be employed therein at any work, commerce or occupation whatever for the benefit of him who has contracted with them, for a certain price or retribution, or upon certain conditions.”

It will be noticed that, according to the codal article, a servant may be employed for a certain price or retribution, or upon certain conditions, and our opinion is that article 163 was intended to include within its scope such employment as Blackburn’s.

Adverting now to the alternative prayer of Blackburn that he be awarded workmen’s compensation for 400 weeks at the maximum rate, we must first determine whether the employment was such as to bring Blackburn within the contemplation of the Compensation Act, because if the act is to control, the claim for compensation would be exclusive, and no action in tort would lie.

As has been often said, the only occupations which bring the parties under the statute are those which, being considered hazardous, are specifically detailed in the act. An employment cannot be treated as being hazardous unless it is, by a fair construction of the act, declared so to be. The operation of an animal-drawn vehicle is not one of those occupations.

This court passed upon this question in the case of Alexander v. Tharp-Bultman-Southeimer Company, No. 7373 of our docket (unreported), Opinion Book 57, decided January 10, 1921. See Louisiana and Southern Digest. We there said:

“In the long list of ‘hazardous’ occupations enumerated in (par.) 2 of Sec. 1 of the Act (20) of 1914, we fail to find that of driver of carriages or vehicles, or any other occupation which, by a reasonable or liberal interpretation, could be assimilated to that of carriage-driver; * * *
“This question has already received our attention in the case of Dejan v. Ujffy, Id [Orleans] App. 230. In that case we decided that the driver of a freight and delivery wagon drawn by a mule employed by a wholesale dealer in fruits did not come within the occupations designated as hazardous in the Statute of 1914.”

See also Franz v. Sun Indemnity Co., La.App., 7 So.2d 636, and Hecker v. Betz, La.App., 172 So. 816.

Concluding that the occupation of Che-net was nonhazardous and without the purview of the act, the next point to be determined is whether Blackburn is entitled to recovery based on his claim that his employer, Chenet, was derelict in the duty of furnishing him with a safe place to work or with tools or implements not defective, to wit: a mule of “vicious propensities” and of a “wild and untamed nature.”

It is well settled jurisprudence that the master is liable in damages for personal injuries suffered by his servant because an unsafe place in which to work is furnished, or because of a defect in an appliance furnished for the performance of the servant’s work, if the master knew the appliance was defective, or could have discovered the defect by proper inspection. See the many cases cited in Vol. 13 Louisiana Digest, Master and Servant, 45=»101 and 102.

We have been unable to locate a case wherein an appellate court in this state passed upon the question whether the furnishing to an employee by the master of a vicious or unruly animal constitutes a failure to furnish a safe place to work, or to furnish an instrumentality or appliance not defective. But there is little doubt in our minds that when an employee is engaged to drive a mule, it is the master’s duty to furnish him with one which can be driven with reasonable safety, just as much as it is the duty of the master to furnish his employee with a safe mechanical instrumentality or appliance. It has been so held in several other jurisdictions. In Vol. 56 C. J. S., Master and Servant, § 218, page 927, we find the following statement of the general law: “The rule that a master must use reasonable care to furnish his servant with reasonably safe instru-mentalities extends to and includes horses and other animals used in his work, wagons, and other vehicles, harnesses, and appliances connected therewith. Thus, when a master knows or should know that an animal used by him is vicious or that his harness or vehicle is not reasonably safe, he is liable for injuries to his servant caused thereby. Although ordinarily knowledge, actual or constructive, on the part of the master of the vicious nature of an animal furnished to a servant is essential to liability, it has been held that the liability of the master is governed rather by his duty to use reasonable care to furnish the servant a reasonably safe instrumentality with which to perform his work. * * *”

Blackburn had been in Chenet’s employ off and on for about twelve to fifteen years. The accident happened on Sunday, August 24, 1947. It seems to have been the custom for the drivers to hitch the mules to the wagons they were to use, but on the day of the accident this was not adhered to insofar as Blackburn was concerned. When he reported to Chenet about 8 'o’clock, a. m., to take out his wagon, he learned that Che-net and plaintiff’s brother had hitched the mule and had driven off before Blackburn’s arrival. Blackburn met the wagon at the corner, and Chenet said to him: “Go with your brother and catch the customers.”

There is no dispute as to how the accident occurred. Plaintiff had never driven the mule before. He saw th.e mule for the first time the preceding day, when it was in Chenet’s yard tied to the wheel of a wagon. After meeting the wagon on the Sunday morning, Blackburn climbed aboard and proceeded along his route, plaintiff’s brother walking alongside the wagon, with Blackburn doing the driving. After proceeding thusly for about six blocks, the mule reared and kicked and started off at a fast gallop, continuing its flight across the railroad tracks at Galvez and Poydras Streets, and because of the bouncing of the wagon Blackburn was thrown to the ground and two of the wagon’s wheels ran over his right leg.

Chenet bought the mule three days before the accident from one Oramus, who testified that he had used the mule for about three and a half years in farming operations at Slidell, Louisiana. Oramus stated that it was gentle and at times was used to pull a farm wagon in and out of the fields. But if this statement of Oramus be true, a decided change came over the mule after Chenet acquired it. Eight witnesses testified as to its character, and a careful analysis of their testimony as a whole convinces us beyond doubt that the mule, as alleged by plaintiff, was of “vicious propensities” and of a “wild and untamed nature,” which was well known by Chenet.

One witness testified that on the day preceding the accident, while sitting on her gallery, she heard some people “hollering.” She investigated the source of the commotion and saw the mule, which she described as a “young looking mule and dark,” hitched to a wagon. The driver of the wagon was pulling back on the reins and Chenet was on foot leading the mule with a rope tied around its mouth. The mule was kicking and rearing.

Another witness also saw the mule on the morning of the preceding day. Chenet and another man, whom she identified by name, were attempting to tame the mule by driving it around hitched to a heavy d'rag consisting of crossties cut into blocks. Chenet drove the mule and the other man led it by a rope tied around its mouth. The animal acted wild, and pedestrians hastily left the sidewalk. Later on that day this witness saw Chenet and the man driving the wagon to which the mule was hitched, and said that one of the wagon wheels had been locked and was dragging. The mule nearly turned the wagon over at the corner. The witness further said that while Chenet was hitching the mule to the wagon, he heard Chenet’s wife calling to him, saying: “Come out of there; that old mule will kill you.”

Another witness, Williams, saw the mule pulling the wagon with the locked wheel. The wheel was chained and the mule would stop and “acted funny.” The driver got off the wagon and the mule was led off.

Stewart, defendant’s tenant, testifying for Chenet, said on cross-examination that Chenet offered him $3 to drive the mule which was hitched to a wagon, but that Chenet declined to ride in the wagon with him.

That Chenet bought unbroken animals is shown by the record. It was testified to that he did this because he could get green animals cheaper, would break them in himself, and then put them to use in his business.

An attempt was made to show that Blackburn violently hit or kicked the mule, causing it to become unruly and run away, but the testimony on that feature is not impressive. Plaintiff denied emphatically that he hit o'r kicked the mule. Blackburn’s brother, who appeared on behalf of defendant, testified that Blackburn touched the animal with the reins and touched its tail with his foot, which caused the mule to run away. The brother classified the mule as “touchy,” and said that he would be afraid to drag his foot on its tai’

The irritable and unstable nature of the mule having been clearly shown, we readily reach the conclusion that defendant is liable to plaintiff for whatever damages were caused to the latter. Defendant signally failed in the duty imposed upon him by law to have furnished Blackburn with a safe place in which to do his work by furnishing him with a mule which could not be handled or driven with reasonable safety.

Should we have committed error in concluding that the relationship of master and servant existed between the parties, nevertheless under the law defendant would still be liable for Blackburn’s injuries.

For the purpose of this opinion, accepting as true the testimony of Chenet regarding the arrangement with Blackburn, i. e., that when the peddlers returned their wagons, he received from them $2.50 to $3.50 for the use thereof, it seems to us that such arrangement would place the parties in the category of lessor and lessee.

R.C.C. art. 2676 reads as follows:

“The letting out of things is of two kinds, to-wit:
“1. The letting out houses and movables.
“2. The letting out predial or country estates.”

According to R.C.C. art. 2678: “All corporeal things are susceptible of being let out, movable as well as immovable, except-, ing those which can not be used without being destroyed by that very use.”

R.C.C. art. 2695 sets forth the lessor’s guaranty to the lessee respecting vices and defects in the subject matter of the lease as follows: “The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”

The latter article has been applied in many cases to allow the lessee to recover damages for personal injuries caused by vices and defects in the thing leased. See Schoppel v. Daly, 112 La. 201, 36 So. 322; Thomas v. Catalanatto, La.App., 164 So. 171; Coleman v. Rein, La.App., 4 So.2d 622; Bates v. Blitz, La.App., 13 So.2d 516.

We have made a careful search of Louisiana jurisprudence, and have been able to find but one case involving a claim for damages caused a lessee by a leased animal. In Willis v. Schuster, La.App., 28 So.2d 518, our brothers of the Second Circuit were confronted with a suit to recover for injuries sustained by the plaintiff who was thrown from a horse which he had rented from a riding academy owned and operated by the defendant. While riding the horse, it became frightened by a burst of music from a band, ran away, slipped and fell, causing the plaintiff’s injuries. It was plaintiff’s contention that the defendant and his employee were negligent in furnishing a horse which they declared was gentle when they knew it was of a nervous disposition and easily became frightened. The court, after finding that plaintiff failed to establish by sufficient evidence that defendant had knowledge of the dangerous nature of the horse, dismissed the suit. R.C.C. art. 2321, which makes the owner of an animal answerable for the damage he has caused, was applied, but no mention was made of R.C.C. art. 2695, which cast liability upon the lessor for damages occasioned by vices and defects in the thing leased. An interesting discussion of the case will be found in Tulane Law Review, Vol. 21, p. 697. The author of the article, in conclusion, comments as follows: “ * * * Since the instant case involved the hiring of a horse, the court in making its decision should have considered the applicability of Articles 2678 and 2695 of the Louisiana Civil Code of 1870. It is submitted that if Article 2695 rather than Article 2321 had been applied, a different result would have been reached because it would have been unnecessary for plaintiff to prove that defendant lessor had knowledge of the dangerous nature of the horse.”

But be that as it may, if the result reached was correct, Chenet is still liable in the instant case, for he, unlike the defendant in the cited case, well knew that his mule was unbroken and of a mean and vicious disposition and was unsafe to be put in use as a draft animal.

If the relationship of lessor and lessee existed between the-parties, it cannot be doubted that Chenet is liable under arts. 2678 and 2695. If -any other relationship existed between them, then liability would effectively attach to Chenet under the plain provisions of art. 2321, which protects the general public for injuries inflicted by an animal if the owner be at fault. That article reads: “The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or ■had strayed more than -a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.”

For treatment for his injuries, Blackburn was taken to Charity Hospital and remained in bed for about two and one-half months. He used crutches for about six months, and afterwards used a cane. His right leg was broken and was encased in a cast for about five months.

Dr. Maurer, who appeared for plaintiff, was the only medical expert who testified. He first saw Blackburn on April 18, 1948, and X-rays made by him showed old healed fractures of the shaft of the tibia and fibula at the junction of the middle and lower third of Blackburn’s right leg. He noticed that the right leg was one-half inch shorter than the left. Dr. Maurer stated that while Blackburn walked with a limp, he did not require the use of a cane. There was still some swelling of the ankle, and up and down motions were about eighty per cent normal. The motion of the toes showed limitation of thirty-five per cent. Dr. Maurer believed that Blackburn, when he saw him on April 18, 1948, was incapacitated from returning to his occupation. However, the doctor made another examination of plaintiff on the day of the trial below, and concluded that Blackburn was their able to return to the duties of his occupation and that he could readily get on and off a wagon and peddle fruit.

Blackburn, who is 34 years old, testified that prior to the accident he made from $30 to $35 per week. Dr. Maurer was unable to state just when Blackburn’s disability ceased between April 18 and July 14, 1948.

There is no doubt that plaintiff’s injuries were serious and that he suffered greatly for some time as a result thereof. The record does not reveal what medical expenses, if any, were incurred by plaintiff. According to the uncontradicted testimony of Dr. Maurer, Blackburn was incapacitated up to the time of his first visit to the doctor, and was, therefore, deprived of his earning power for about thirty weeks.

The assessment of damages for personal injuries is lodged within the sound discretion of the court, and we believe that in this case an award of $3,500 would do substantial justice. This seems to be in line with awards made in cases involving injuries similar to those sustained by plaintiff. See Breaux v. Roussell (Maryland Casualty Co., intervenor), La.App., 151 So. 267; Dillon v. New Orleans Public Service, Inc., La.App., 170 So. 406; Lindsey v. Gulf Ins. Co., La.App., 7 So.2d 757.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be now reversed, and that there be judgment in favor of plaintiff-appellant and against defendant-appellee for the sum of $3,500, with legal interest thereon from judicial demand until paid, and for all costs of this proceeding.

Reversed.


author: ELLIS, Judge.

text:
    COMMERCIAL CREDIT CORPORATION v. FREILER.
    No. 3136.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    Brumfield, Hebert & Rush, Baton Rouge, for appellant.
    Reid & Reid, Hammond, for appellee.
   ELLIS, Judge.

This is a suit by the Commercial Credit Corporation domiciled in the City of New Orleans, on an installment promissory note in the amount of $1043.04, bearing 8% per annum interest, in addition thereto 25 % additional on the aggregate amount of principal and interest as attorney fees. The plaintiff alleged that it was the holder and owner in due course for a valuable consideration before maturity of the above-mentioned note signed by the defendant on June 18, 1947 and paraphed “ne var-ietur” for identification with an act of chattel mortgage passed before Richard 0. Rush, Notary Public in and for the Parish of East Baton Rouge, State of Louisiana, of the same date as the note, and, further, that the note was assigned to the plaintiff by the Day Motor Company for valuable consideration before maturity. Petitioner further alleged that it feared that the defendant would conceal, destroy, part with or dispose of the truck involved, and prayed for a writ of sequestration.

Defendant, before answering, prayed for oyer of the note and the Court so ordered and plaintiff filed the note in question.

Defendant answered, admitting his signature on the note but denied the remaining allegations and especially denied that plaintiff is a holder in due course. He further admitted that he had made no payment on the note but denied that he is responsible or liable for any amount thereof. Further answering, the defendant contended that the plaintiff is not the holder and owner of the note in due course and that the note is subject to all of the equities existing between the. seller, Clyde H. Day, doing business as Day Motor Company, for the reasons that the said Clyde H. Day was acting as agent and attorney in fact for and on behalf of the plaintiff company in receiving the note and executing the act of sale and chattel mortgage and signing the printed endorsement on back of the note and delivering it to the company. He further set forth that the printed forms of the note, act of sale and chattel mortgage were furnished by plaintiff company to Day for the express purpose of obtaining chattel mortgages and vendor’s liens on cars and transferring the note with the intent to make it appear that plaintiff company was the third holder in due course.

Defendant further alleged that while the note bears the notarial paraph, neither it nor the act of sale and mortgage was executed in the presence of any notary and that this fact was known to plaintiff. Further, that the note was paid and cancelled by the return to respondent of his cash down payment of $1000.00 and delivery by respondent of the truck to Day before the note was actually delivered to the plaintiff, and that the plaintiff company had knowledge of this fact.

Finally, defendant alleged that at the time of the cancellation of said sale, Day, acting as the agent of the plaintiff company, informed the respondent that the note and chattel mortgage would be destroyed and not recorded.

After trial on the merits, there was judgment in favor of the defendant rejecting plaintiff’s demand, dismissing the suit at plaintiff’s cost. Plaintiff has appealed.

The note sued on was made payable to the order of Day Motor Company in the sum of $1043.04 in twelve monthly installments of $86.92 each, the first installment payáble one month from date and the balance in equal monthly installments of even date for each succeeding month, payable at the office of the Commercial Credit Corporation at New Orleans, Louisiana, and contains an acceleration clause. The note is signed by defendant on a line marked beneath it “(buyer).” Just below this is another line and at its beginning is the word “By.” Just under the line are the words “(Owner, officer, or firm member)” and on this line is the signature of Clyde H. Day. This signature has been stricken through with a pen and also with a pencil. However, the signature is legible and can be easily read. Just to the right of Day’s signature are initials made in pen and ink but the letters are so poorly formed as to be illegible. At the upper left-hand corner, there is a line with a $ mark and opposite it, in ink, are the figures 1043.04. The rest of the blanks are filled in by ■ typewriter. The note is dated Greensburg, Louisiana, June 18, 1947. On the back of the note there is printed, among other things, “For value received pay to the order of Commercial Credit Corporation, New Orleans, Louisiana. Without recourse.” Immediately under these words is a blank line at the beginning of which is the word (Signed) and at the end of the line is the word (Seal). Under this line is the word (Dealer). This line is still blank or not filled in. Immediately thereunder is another line beginning with the word (By) and under it the words (Owner, officer or firm member). On this line appears the signature of Clyde H. Day. On the face of the note, there appears the usual paraph, dated June 18, 1947, and signed by Richard O. Rush, Notary.

The testimony is conflicting in several respects and is not as full as it could have been, leaving several questions unexplained. However, it appears that this whole transaction arose out of a sale by a truck by Clyde H. Day, doing business as Day Motor Company, to the defendant. According to the testimony of Day and the defendant, the defendant purchased a truck on Saturday morning giving Day a check for $1000.-00 and signing a note and chattel mortgage in blank. The defendant stated that this occurred on May 31, 1947. However, Day contends that the transaction took place on June 18, 1947 but both testify that it was on a Saturday. Day testified that he took the note and chattel mortgage immediately thereafter and on the same day to the office of the Commercial Credit Corporation in Baton Rouge, Louisiana, between the hours of ten A.M. and twelve noon, where he sold it to plaintiff. The evidence clearly shows that the transaction did take place Saturday, May 31, for the cancellation perforations made by the bank on a check dated May 30, 1947, signed by defendant, made payable to C. H. Day for $1000.00 and endorsed by him show that this check was cashed at the bank in Greensburg on May 31st. Then, too, according to the testimony of the manager of the Commercial Credit Corporation, the note was dated the day it was brought to his office which was June 18, 1947 and which was a Wednesday, May 31st being a Saturday.

On the Monday after the Saturday on which the truck was purchased, defendant returned the truck to Day and received from him $1000.00 in cash and, according to his testimony and Day’s testimony, instructed Day to destroy the note and mortgage. Day admitted that he did not do so but, instead, took them to the office of the Commercial Credit Corporation in Baton Rouge where they were filled in by the employees of the plaintiff company and that he was paid $900.00 for the note. Mr. Bock, the manager of the Baton Rouge office, admitted that he paid Day $900.00 for the note in question. He contended, however, that the note was filled out when he received it from Day and that he did receive it on June 18, 1947. There is no doubt that Day received $900.00 from the Commercial Credit Corporation for the note in question.

There is introduced in evidence an instrument identified by Mr. Bock of the plaintiff company as being a copy of the act of sale and chattel mortgage which was identified by notarial paraph with the note. This instrument is printed with the usual blank spaces to be filled in and is obviously furnished by the plaintiff company. All of the blank spaces on the face of the instrument are filled in by typewriter and it is dated Greensburg, Louisiana, Parish of St. Helena, June 18, 1947. The face of the instrument shows the selling price of the truck to be $1900.00 with a total down payment of $1000.00 in cash and unpaid balance of $900.00 and a charge for insurance, recording and finance charges in the amount of $143.04, leaving a balance due of $1043.04 which is the amount of the note in question. On the back is the usual buyer’s statement made out in ink and signed by defendant. The instrument was notarized by Richard O. Rush who is admittedly a notary of the Parish of East Baton Rouge and witnessed by two witnesses who were, on June 18, 1947, employees of the plaintiff company. The instrument is also signed by Clyde H. Day but is not signed by the mortgagor. As pointed out, this is an uncertified copy of the original and there is nothing to indicate whether or not the defendant signed the original. There can be no doubt and, in fact, is admitted by Mr. Rush on argument, who acted as notary and is one of the attorneys of the plaintiff company, that the defendant was not present when the instrument was signed by witnesses or the notary, nor was he present at the time the note was paraphed by the notary, and that it was executed by the notary in the office of the plaintiff company. The defendant denied that the plaintiff company is a holder in due course and, consequently, any defense or equity which he may have against the payee can he successfully urged against the plaintiff which is in this case the rescission of the sale of the truck for which this note was given. He based his contention principally upon the theory that the plaintiff company, by furnishing Day with their notes and chattel mortgages, in effect made Day their agent and cited the cases of C. I. T. Corporation v. Emmons, La.App., 197 So. 662, and General Motors Acceptance Corp., v. Swain, La.App., 176 So. 636. We do not believe however, that these cases are applicable. In the Emmons case, the defendant purchased a refrigerator and financed it through the plaintiff company who furnished the seller with the blanks necessary. The refrigerator was destroyed by fire. The Court held that the plaintiff company knew that insurance was to be provided under the contract of sale as financed and the evidence showed that this insurance was paid for by the pur-' chaser and, therefore, this knowledge of the defense precluded it from becoming a holder in due course. In the Swain case, the Court said that, under the circumstances of the case, it must be assumed the plaintiff was fully aware of the manner in which the differential had been figured and the terms on which the car had been sold and therefore was in the same position with reference to the defense of usury as the original holder would have been. In the case at bar, the defense of failure of consideration by the rescission of the sale could not be known to the plaintiff company from the note and chattel mortgage and, therefore, a case of agency has not been made out.

In order for one to become a holder in due course, he must have taken the instrument under the following conditions;

(1) That it is complete and regular upon its face;

(2) That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;

(3) That he took it in good faith and for value;

(4) That at the time it was negotiated to him, he had no notion of any infirmity in the instrument or defect in the title of the person negotiating it. See Act 64 of 1904, Section 52, Dart’s Statutes Section 841.

The note in this case was not complete and regular on its face at the time it was brought to the office of the plaintiff company. While it is true that Mr. Book, the manager, testified that it was filled out and signed when it was brought to him, on the contrary, Mr. Day testified that it was taken to the office of the plaintiff company signed in blank and that it was filled out in that office by employees of plaintiff. Freiler, the defendant, also testified that the note and mortgage were signed in blank. Day also testified that in most of his transactions with the plaintiff company, they filled out the necessary documents as he did not have a typewriter. This, coupled with the fact that the note was paraphed in plaintiff’s office by their attorney out of the presence of the defendant, and the fact that the figures in one place on the note are in ink and in another by typewriter and the due dates are filled in by a typewriter, is sufficient ■evidence that the note was not complete on its face when taken to the office of the plaintiff company where it was purchased, this is further borne out by the fact that the chattel mortgage was also made out on a typewriter and included the exact charges for recording, insurance and finance charges which would be required by the plaintiff company. As previously stated, Day’s name appears on the face of the note and is scratched through with pen and pencil and someone’s initials added. Plaintiff made no effort to explain any of these irregularities or to contradict Day’s statement that the note and mortgage were made out by employees of plaintiff except that Bock said that when it got to him, it was made out. Then,, too, the endorsement on the back of the note does not include Day Motor Company but only Clyde H. Day. See 10 C.J.S., Bills and Notes, § 328, B & C and 8 American Jurisprudence Section 396-397, and Moore v. Vaughn, 167 Miss. 758, 150 So. 372.

The scratching through of Day’s name on the face of the note remains unexplained. Certainly, this is a material alteration as it would or could affect the number and the relations of the parties. See Act 64 of 1904, Sections 124 and 125. Dart’s Statutes Vol. 1, Sections 914 and 915. While the testimony of Day and Freiler seems to indicate that Day did not sign the note as comaker in the presence of Freiler, there is nothing whatever in 'the testimony to explain how his name got on the note as comaker or who scratched it out. The initials opposite Day’s signature on the face of the note obviously are not in the handwriting of either Day or Freiler and are unexplained by the plaintiff so it must be assumed that they were placed there by an employee of the plaintiff company and that the alteration was made with the knowledge of the plaintiff, company and without the knowledge of defendant.

We are mindful that where a person signs a note in blank be may be estopped from urging defenses to the note if he had caused an innocent third person to be harmed thereby. This estoppel applies where the note is complete and regular when it comes into the hands of the holder in .due course which was not the case here.

There is some testimony in the case that plaintiff sent the defendant two coupon books, an insurance policy and other material and also that they wrote him, but defendant denied receiving it. No copies of this correspondence were offered in evidence. Plaintiff also attempted to prove that defendant promised to pay this note after he was notified of its existence in the hands of plaintiff. However, we can find no evidence to establish an unconditional promise to pay, orally or in writing.

The evidence is conclusive that the note in question was brought to the office signed in blank, and that the employees of plaintiff were the ones who filled in the note and chattel mortgage. Certainly, plaintiff is bound by the knowledge of its employees or agent in the confection of this instrument. Plaintiff is not a holder in due course and the judgment of the District Court is correct and it is accordingly affirmed at plaintiff’s cost.


author: LE BLANC, Judge.

text:
    RABITAILLE v. STEEL TANK CONSTRUCTION COMPANY et al.
    No. 3131.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.

      Thompson, Lawes, 'Cavanaugh & Hickman, Lake Charles, for appellants.
    Murray Anderson, Lake Charles, for ap-pellee.
   LE BLANC, Judge.

Plaintiff was employed as a welder by the defendant, Steel Construction Company, which is engaged in building and constructing steel tanks. On July 3, 1947, he sustained an injury to his left ankle for which he was paid compensation at the rate he was entitled to from -that date through December 2, 1947. He went back to work for the same employer and on August 25, 1948, he claims to have met with an accident in which he injured the same ankle and had to undergo an operation. The result was that he was left with a 'total disability for which he now seeks to recover compensation to the full extent allowed under the workmen’s compensation statute, Act No. 20 of 1914, as amended in part by Act No. 175 of 1948, that is, the sum of $30 per week for the period of 400 weeks. He sues both his former employer and its workmen’s compensation insurer. ■

The contention made on his behalf is that his disability results from both accidents and, conceding that he had recovered from the first accident of July 3, 1947, for which he received the compensation due him, his injury was nevertheless aggravated by the subsequent accident of August 25, 1948.

The defense is that plaintiff had entirely recovered from the accident of July 3, 1947, and he had in fact been paid all the compensation that was du'e him when he returned to work on his job. It is denied that he sustained any accident such as alleged by him on August 25, 1948 and, in the alternative, thaf: if he did sustain an accident on that day which injured him in any way that he had entirely recovered from the effects of that accident if it was a disabling accident at all.

After trial of the case in the court below there was judgment in favor of the plaintiff granting him compensation for a period of 26:*4 weeks at the rate of $30 per week, commencing August 25, 1948. The trial judge seems to have held that under the testimony, plaintiff had only 15 per cent partial permanent disability to his left leg and that is why he limited compensation to the period decreed in the judgment. The defendant took an appeal from the judgment as rendered to which appeal the plaintiff answered and asked that the judgment ■be amended by increasing the period of compensation to 400 weeks as for total and permanent disability.

It is not necessary to discuss at any length the original accident of July 3, 1947 as there is no dispute that plaintiff did then suffer a rather serious injury to his ankle for which he was paid compensation until he was discharged as being able to return to work. The injury consisted of a fracture of the tibia of the left leg which fracture extended into the ankle joint. Plaintiff testified that even after he went back to work his ankle bothered him; that he did not have full control over it. He claims that in the latter part of August, 1948, he met with another accident while walking across a 12 or 10 inch board. The board was muddy and wet and as he walked across it his foot slipped and hit the side of the board and he fell in a ditch of water. It was the inside part of the ankle of his left foot which hit the board. This is the accident which is denied by the defendants but plaintiff’s testimony that he did have such an accident is not contradicted and it is corroborated by one of the men working on the job with him, by the name of Floyd S. Swartzbaugh. His ankle ■began to swell after this second accident and as it continued to get worse he was finally, about three weeks later, sent to a doctor by his employer. Under that testimony the trial judge came to the conclusion that plaintiff had sustained this second accident and we conclude that the proof is sufficient to so hold.

On October 5, 1948, plaintiff was operated on by Dr. Wilson Morris, who, according to the medical testimony,- removed a ganglion from the injured ankle. We are not sure what exactly is meant by a ganglion but as we understand, it is a sort of growth or tumor in or near a tendon and in this case it was probably binding the ankle. That is what caused the plaintiff to have pain. We think that probably this ganglion was produced as a result of the second accident when plaintiff struck his ankle in falling from that board but it is not unreasonable to assume also, under the testimony, that both -that accident and the remaining results of the first accident produced it.

The operation performed by Dr. Morris was successful, as far as he could see, but left the plaintiff with a limitation to bend his ankle of more than IS degrees. This doctor seems to be somewhat of the opinion that there may be an arthritic reaction, secondary to trauma, and that may be the cause of plaintiff’s trouble.

Dr. Harry Snatic testified as a witness on behalf of the plaintiff. He was produced as an expert. In his opinion plaintiff’s condition is one of traumatic arthritis resulting from the fracture of the tibia and that has left him with a limitation of extension of the left ankle, or the left foot, as he puts it, of 15 to 20 per cent.

The testimony reveals that plaintiff was employed in the capacity of foreman and his duties consisted in instructing other employees how to do their work and giving orders generally. His duties in this connection required him to do a lot of climbing, at times to heights as far as 40 feet from the ground. He testified that since his operation he hasn’t done anything because of the pain he suffers in his ankle. As we understand the testimony of Dr. Snatic and Dr. Morris, who limit his disability from 15 to 20 per cent, they refer to a disability due to limitation of extension of the ankle principally but they are both of the opinion that with such a condition, which in their opinion, will remain with the plaintiff, he should not engage in any • duties or employment which require climbing. Dr. Morris says that he could do bench work but as far as climbing, he would not recommend that type of work. That, in our opinion, is easy to understand because certainly with the limited motion in his ankle, it would be apt to give away on him at any time and if that would happen whilst he is in the act of climbing, he may have very serious results.

Several doctors testified on behalf of the defendant, among them being Dr. Ben Goldsmith, who attended plaintiff after the first accident, and really we don’t find his testimony, nor that of the others, for that matter, to be at any great conflict with the testimony of the doctors who testified for the plaintiff. Dr. Goldsmith finds it entirely possible for even the original injury of July 3, 1947, to have possibly caused a limitation of motion. He thinks it would be impossible to draw the line between the original accident and any aggravation of the condition resulting from the second accident in determining which produced the disability that exists.

Dr. Stakely Hatchette had also examined the plaintiff prior to the second accident. In addition to the fracture of the tibia, he 'fou'nd that plaintiff had also suffered a chip fracture. His testimony is to the effect that any fracture extending to a joint, such as the ankle, would be much more likely to cause disability in a foot than one that did not. Dr. W. G. Fischer expressed the same opinion on that point.

The last doctor who testified for the defendants is Dr. C. V. Hatchette and it seems to be on his testimony that the defendants principally rely. He seems to be definitely of the opinion that there is. no indication of arthritis in plaintiff’s ankle joint at this time and from appearances alone, the ankle should be as strong as it was before the injury was sustained. From those same appearances, there should be no limitation of motion in the ankle. He stated that in his opinion there is nothing to account for the plaintiff’s pain and inability to use his ankle. The old fracture he had received was well healed and he found no reason except the plaintiff’s own word for it that he was disabled. In that, connection it is significant to note that in a report which this doctor had made to the insurance company carrying the employer’s compensation insurance, 'he had given an estimate of 5 per cent disability in the ankle. While testifying he explained that by saying that is very little disability and he allowed it in order “to cover any margin of error”. He seems to be of the opinion that any danger involved by the plaintiff in climbing would be a danger produced more by fear of loss of his life by falling from a ladder or a scaffold than because of any injury he may have, and with respect to that opinion we would say that it is very significant, in considering the plaintiff’s ability to carry on that part of his work which he is required to do, for, he says further, “If he is afraid of it I would recommend that he not go back”. When we take this statement in connection with the testimony of those who testified on behalf of the plaintiff and that of the other doctors who testified for the defendants, to the effect that it might be a dangerous thing for -this man to continue doing work which required climbing, we find that he is disabled within the meaning and the terms of the workmen’s compensation statute because he can no longer do and perform all of the duties that are required by the nature of his employment.

This conclusion is supported by numerous decisions, one of which we believe to be so pertinent that we quote from it as follows: “Our appreciation of the testimony is that decidedly plaintiff cannot perform the numerous duties incident to the position of millwright or mill foreman in a sawmill. We need go no further than to refer to the very work he was doing at the time he was injured, which was in line with those duties, and then ;to the testimony of the doctors, even those who testified for the defendant, to satisfy ourselves on this point. That work took him Up on a scaffold almost twenty feet high, and the testimony of all the doctors is to the effect that he could not do any climbing with safety.” Ingram v. Meridian Lumber Co., La.App., 178 So. 187, 189.

Plaintiff is seeking compensation at the rate of $30 per week, the maximum provided for in the latest amendment to the compensation statute, Act No. 175 of 1948. That is the demand made in the prayer of his petition and it is based on his allegation that his present disability arose out of the accident of August 25, 1948, or that that accident aggravated a condition in his ankle that existed by reason of the accident of July 3, 1947. If the accident of August 25, 1948 is the cause of his disability his compensation has to be fixed at $30 per week as the amendment by Act No. 175 of 1948 was in effect on that date. Throughout his testimony however, plaintiff complained that his ankle never did get entirely well before the second accident in Augu'st, 1948. He repeats that he never ceased having pain and that he had no control over it. We arc left with serious doubt, from the medical testimony, whether the limitation of motion which admittedly exists can be definitely attributed to either of the two accidents. Dr. Goldsmith’s opinion that it is impossible to draw a line between the two in determining which produced the present disability, reflects our reaction to the testimony and from which we conclude that plaintiff’s disability had its origin in the accident of July 3, 1947, at which time the maximum rate of weekly compensation under the statute was $20. No proof has been made of the medical expenses demanded.

For the reasons stated, the judgment appealed from is hereby set aside and it is now recast so as to read as follows:

It is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Ernest T. Rabitaille and against the defendants, Steel Construction 'Company and The Employers Liability Assurance Corporation jointly and in solido, awarding the said plaintiff workmen’s compensation at the rate of $20.00 per week for a period not to exceed 400 weeks, beginning July 3, 1947, with legal interest on each weekly installment from date of maturity, less the amount of compensation already paid from July 3, 1947 through December 2, 1947, together with all costs of this proceeding.