author: PONDER, Justice. HAWTHORNE, Justice HAMITER, Justice

text:
    215 La. 349
    WAITS v. INDEMNITY INS. CO. OF NORTH AMERICA.
    No. 38687.
    Supreme Court of Louisiana.
    April 25, 1949.
    Bethard & Betlhard, of Shreveport, for applicant.
    Browne, Browne & Bodenheimer, of Shreveport (G. M. Bodenheimer, Jr., of Shreveport, of counsel), for respondent.
   PONDER, Justice.

The plaintiff brought suit against the defendant seeking to recover damages for personal injuries and medical expenses arising from injuries he received in an automobile collision. The district judge gave judgment .in favor of the plaintiff in the amount of $2,000.00 for damages for the personal injuries, and $150.00 for his medical bill. On appeal, the Court of Appeal for the Second Circuit, La.App., 33 So.2d 554, reversed the judgment and rejected the plaintiff’s demands. A review was applied for and granted by this Court.

The facts in the case and the issue presented are well stated in the opinion handed down by the Court of Appeal, as follows:

“One A. K. Gillis, the named insured under a policy of liability insurance issued by the defendant, Indemnity Insurance Company of North America, the owner of a truck used in the nature of a bus, as hereinafter set forth, entered into a contract with the Louisiana & Arkansas Railway Company under which he hired the truck to the railroad for/the purpose of transporting labor from the Town of Coushatta in Red River Parish, Louisiana, to various points on the railroad right-of-way and return. After working hours, upon the return off the truck to Coushatta, it was parked in a vacant area of property of the railroad company which lay between the hotel and the depot. This arrangement had originally been followed as a matter of convenience to the driver of the truck who roomed at the hotel, and was continued without change by the succeeding driver, who is the individual involved in the incident's hereinafter related. At the time of the accident which gave rise to this action the driver of the truck was one C. D. Selby, an employee of both the L. & A. Railroad Company and Gillis, the owner of the truck, being paid regular wages by the railroad company for the working day and additionally receiving pay from Gillis at the rate of $30.00 per month for his services performed in driving the truck to the points on the right-of-way, where work was in progress, and return. Selby worked directly under the supervision of one Bert Min-chew, an employee of the railroad company. It is conclusively established that Selby had been positively instructed by both Gillis and Minchew that the use of the truck was to- be confined exclusively to the one purpose of transporting laborers to and from their work on the railroad, and there is no evidence that there had been any previous disregard of these instructions nor any other use of the truck except for occasional trips to, a local filling station for the replenishment .of its fuel.
“It was the custom of Selby, the driver, on returning to Coushatta sometime around 5:00 o’clock in the afternoon to park the truck in the space described, where it was left overnight. The truck was not locked, the key to the ignition switch having been lost, and it was necessary to manipulate the ignition wires in lieu of using a key.
“On the day of the accident, September 4, 1943, the driver, Selby, brought the truck to Coushatta and parked the same in the accustomed place at or about 5:00 o’clock in the afternoon. According to. the undisputed testimony of one of plaintiff’s witnesses, a negro by the name of Ben Washington, who was an assistant foreman on the railroad work, Selby and another white man invited tihe witness and two other negroes to drive up to Loggy Bayou, which is about seventeen miles from Coushatta, that night. The party was made up, and embarked on its expedition in the truck about 7:30 or 8:00 o’clock that night, the point of departure being from the truck’s described parking space. The witness, Washington, further testified that he asked Selby if he had permission to use the truck for the purpose of this pleasure jaunt and Selby replied in the negative, but insisted that he intended to bring the truck right back and that they would be gone only for a little while.
“The attraction at Loggy Bayou appears to have been a saloon which was patronized by all members of the party, not only to the extent of a few assorted drinks of whiskey and beer but also by tihe purchase of packaged goods of these substances.
“On the return trip on Highway 71, at a point some three or four miles from Coush-atta, the truck, recklessly driven at a high rate of speed by Selby, who was allegedly in an intoxicated condition, crashed into a passenger automobile parked on tihe highway while its driver, plaintiff’s son-in-law, was attempting to repair some motor trouble, assisted by plaintiff, who was holding a flashlight. As a result o'f the accident plaintiff sustained injury.
“At the instance of some of the other members of the party, Selby was prevailed upon to bring the truck to a stop at a point which was a considerable distance down the highway, and all packaged evidences' of intoxicants were disposed of by being thrown into the bushes at the side of the road.
“Within a few days after the accident Selby was discharged by the railroad company'and his subsequent whereabouts apparently became a matter of speculation and conjecture since there is no evidence thereto in the record.
“The negligence of Selby, the driver of the truck, is conclusively established, and, likewise, it is certain that at tihe time of the accident Selby was acting outside of and beyond the course, scope and purpose .of his employment. It follows that any questions concerning negligence and the applicability of the doctrine of respondeat superior have passed out of the case.
“The sole issue in the case before us, therefore, involves an interpretation of tihe familiar omnibus clause embodied in the policy of insurance issued by defendant under which Gillis, the owner of the truck, was the named insured, and a determination of the application of this clause under the facts in the case before us.”

We find also tihe following statement in the opinion of the Court of Appeal:

“The reasons advanced, as above enunciated, unquestionably are conclusive as to Selby’s possession, custody and control of the truck, but we do not find that any of them are valid arguments in support of the proposition that the use of the truck by Selby at the time of .the accident was within the ‘permission’ of the insured under the provisions of the omnibus clause of the policy contract.”

The omnibus clause in the insurance policy under which the plaintiff seeks to recover reads as follows:

“Definition of ‘Insured.’ Except where ■specifically stated to the contrary, the unqualified word ‘insured’ wherever used in coverages A and B and in other parts of this policy, when applicable to such coverages, includes not only the named insured but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided the declared and actual use of the automobile is 'pleasure and business’ or ‘commercial,’ each as defined herein, and provided further the actual use is with the permission of the named insured.” •

The omnibus clause involved in this case is similar to the one we had-under consideration in the case of Parks v. Hall, 189 La. 849, 181 So. 191, except that the word “actual” appears before the word “use”. The word “actual” as used does not add to or detract from the insurer’s liability. Stanley v. Cryer Drilling Company, 213 La. 980, 36 So.2d 9. In the Parks case this Court adopted the rule followed by a majority of the courts of this country to the effect -that the permission -of an assured to. a person to use a car in the first instance, irrespective of the use to which the person put -the car while it was in his possession, was “permission” of the assured within the meaning and contemplation of the omnibus clause.

In an article by Ben R. Miller, a prominent member of the Baton Rouge Bar, in 15 T.L.R.' 422, wherein the jurisprudence of other states was reviewed, it is pointed out that the majority rule is to the effect “that only ‘permission,’ expressed or implied, at the outset, or initially, is necessary.” It is also pointed out in this article that the rule followed by some of the states, necessitating the consideration of the extent and effect of the particular “deviation” involved, presents no harmonious test by which the extent of the “deviation” can be classified. In the Parks case we adopted the majority rule because we -thought it was the best rule and would establish a definite rule to guide our courts instead of leaving them in a quandry and uncertain as to the extent and effect of any particular' deviation without a harmonious test -to guide them.: We have adhered to the rule since it was laid down in the Parks case and recently applied in the case of Stanley v. Cryer Drilling Company, supra. The rule is now well established in our jurisprudence and we see no just reason to depart from it.

In the present case, Selby had the initial permission of the insured to use the car and it was placed in his possession and under -his control. He alone used the car. It was in his possession and under his control at the time he took it from the place where it was parked and at the time of the accident. Under such circumstances any instructions given Selby as to the use of the car or whether there had been a deviation from the instructions are immaterial and of no moment. This case comes clearly within the rule laid down in the Parks case.

F-or the reasons assigned, the judgment of the Court -of Appeal for -the Second Circuit is reversed and set aside and the judgment of the district court is reinstated and affirmed. All costs to be paid by the defendant.

O’Niell, C. J., takes no part

HAWTHORNE, Justice

(dissenting).

The writer has expressed doubt previously as to the soundness o'f the decision in Parks v. Hall et al., 189 La. 849, 181 So. 191 (see dissent in Stanley et al. v. Cryer Drilling Co. et al., 213 La. 980, 36 So.2d 9), but this court on more than one occasion has given effect to that decision, and I now acquiesce in it as being the law. The facts of this case, however, distinguish it from the Parks case, and the rule of that case is not applicable here. In the Parks case the employee had taken the car initially with the permission of the employer, but there was lack of authority to use the car for the purpose for which it was -being used when the accident involved occurred. The court in that opinion pointed out also that the employer never questioned the employee about the use of the car or complained about the time it was -brought back to him by the employee.

In the instant case, as correctly pointed out by the Court of Appeal, the driver took possession of the truck- in violation of definite and unequivocal instructions, which violation he acknowledged and admitted. I am -of the opinion, therefore, that there was no permission for the initial use of the truck in this case, but that on the contrary the use was against the specific instructions of the employer; that the decision in the Parks case is not controlling here; that the use of the truck was not covered by the omnibus clause of the policy; and that there was no liability on the part of the insurer.

I respectfully dissent.

HAMITER, Justice

(dissenting-).

In principle the instant controversy cannot be distinguished from Parks v. Hall et al., 189 La. 849, 181 So. 191, with the desion in whioh I disagree for the reasons set forth in an opinion that I wrote, in considering such case, while a member of the Court of Appeal oí the Second Circuit, La.App., 179 So. 868.

I respectfully dissent.


source: Caselaw Access Project

author: REGAN, Judge.

license: Public Domain

text:
    COLUMBIA FINANCE, Inc. v. ROMAGUERA.
    No. 19211.
    Court of Appeal of Louisiana. Orleans.
    May 23, 1949.
    Warren M. Simon, New Orleans, for ap-pellee.
    Appellant not represented.
   REGAN, Judge.

The plaintiff, Columbia Finance, Inc., a corporation licensed under the' Small Loan Act of the State of Louisiana, filed suit against the defendent herein, Arthur Roma-guera, on a promissory note, dated June 7, 1948, in the sum of $300 less a credit on the principal thereof of $7.50, leaving an unpaid principal balance of $292.50, together with 25% attorneys' fees-on the aggregate amount of principal and interest involved and recognition of its lien and privilege on the property mortgaged in its favor -by the defendant.

Defendant was duly cited as is reflected by the citation in the transcript. No answer or other pleadings were filed by defendant within the legal delays. Thereafter a preliminary default was entered on De^ cember 6, 1948 and in due course confirmed by judgment rendered on December 13, 1948 and signed on December 17, 1948.

From this judgment the defendant, in proper person, prosecuted a suspensive and devolutive appeal. Plaintiff answered the appeal and requested that it be allowed 10% of the amount of the said judgment as damages for a frivolous appeal.

Defendant, who is not represented by counsel, made no appearance when this, case was set for trial nor has he filed a brief. The record amply sustains the judgment rendered by the lower court. The appeal obviously was taken for delay and is, therefore, frivolous. The.facts of the case warrant imposition of the penalty allowed under Article 907 of the Code of Practice. However, in our opinion, a penalty of 5% is sufficient under the circumstances. Arnold v. Atkins, La.App., 124 So. 640.

For the reasons assigned the judgment appealed from is affirmed, with 5% thereof additional as damages for frivolous appeal.

Affirmed.


author: DORE, Judge.

text:
    DESHOTELS v. HIGHWAY INS. UNDERWRITERS.
    No. 3106.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.
    Rehearing Denied June 30, 1949.
    Davidson & Davidson, Lafayette, for appellant.
    Tate & Fusilier, Ville Platte, for appel-lee.
   DORE, Judge.

This is a suit under the Workmen’s Compensation Law, Act No. 20 of 1914, as amended, for alleged injuries sustained in an accident on August 8, 1947, by plaintiff, Hammison Deshotels, in the course and scope of his employment as a truck driver and driver’s helper for Nelson Fruge, doing business as the Nelson Fruge Truck Lines of Mamou, Louisiana and being the assured of defendant Highway Insurance Underwriters Corporation. It is shown that at about 2:00 P.M. on August 8, 1947, an accident was sustained by plaintiff in the course and scope of his employment, in that while unloading pipes from a truck, one of the pipes, being a three-inch pipe measuring about twenty-five feet in length and weighing one hundred fifty pounds fell upon his right foot. It is alleged that as a result the plaintiff sustained a fracture of the shaft of the second metatarsal bone and was disabled and remained permanently disabled from performing his usual and customary occupation as a truck driver or driver’s helper. It is shown that his average weekly wage was $30 per week and demand is made for compensation at the rate of sixty-five (65%) per cent of said weekly wage subject to a credit of twenty (20) weeks compensation heretofore paid, plus certain medical benefits and legal interest from judicial demand.

The defense is to the" effect that while there is no real dispute as to the happening of an accident in the course and scope of the employment, there is a serious dispute as to whether any disability now existing, if any exists, is connected with the accident involved herein. The main contention of the defendant is that the plaintiff is not suffering from any disability resulting from the accident, and that such disability as he may have is due to a condition attributable entirely to his non-cooperation with medical experts and non-use of his right foot which was affected by the accident. In effect, the defendant admits that the plaintiff’s right foot was injured by an accident as alleged but that the fracture resulting from the accident completely-healed and that after the treatment given him over a period of twenty weeks and the workmen’s compensation paid him during that period, he completely recovered from the accident save and except for his failure to • reasonably co-operate with the medical experts to whom he was referred by the defendant.

After trial of the case, the lower Court rendered judgment in favor of plaintiff for the sum of 400 weeks compensation from August 8, 1947, at the rate of $19.50 per week less 20 weekly payments of $19.50 already paid, and for the sum of $82.94 medical expenses advanced by plaintiff’s attorneys, plus interest from date of judicial demand, and for all costs of this suit.

A review of the evidence clearly shows that the accident on which this claim for workmen’s compensation is based actually occurred on the date and place alleged and while the plaintiff was in the course and scope of his employment. There is no dispute on that point. The only real dispute in the case is whether or not the plaintiff has actually sustained an injury to his right foot which 'has permanently disabled him from doing the work he was performing at the time of his .injury and for which he is fitted by training and experience. It is admitted that the plaintiff is an uneducated man and that he must earn his living by hard manual work such as he was doing at the time of his injury. It also appears from the evidence that he has been unable to perform that type of work since his injury. He states that he has tried to do so with no success and is •corroborated by at .least one witness, to-wit, Mr. Arville Manuel, who testified that he operates a store, ipeat market and rice mill; that in Mar-eb,- 1948; he gave employment to the plaintiff because plaintiff owed him money for groceries and in order to assist plaintiff in lowering his bill; -that he kept plaintiff, for two and a -half (2%) ■days but that at noon on the third day, plaintiff’s foot swelled and he .complained that he could not keep on working; that he then brought plaintiff .to Dr. Reed Fontenot at Ville Plat.te for treatment.

Dr. Reed Fontenot testified that plaintiff •came to his office ,on March 18, 1948 and complained of pain and swelling of his right foot. The doctor states that at that time he examined him and “ * * * he h-ad moderate swelling and pain. The medial side of his ankle — that was so I got the history from him and decided to take some X-ray plates on it. At the time of the X-ray plates I told him there was a difference in the two feet. His right foot was more flat than the left. The bone was completely healed. I told him -he had fallen arches and some injury to the ligaments.” Dr. Fontenot further stated that the plaintiff complained of pain and that considering the discoloration which he found, he felt sure he had pain. He also testified that he noticed pain in testing for spasm under the arch of his foot. Dr. Fontenot testified further that he treated him over a period of weeks, his treatment being diathermy treatment and that he always found plaintiff co-operative during, these treatments. He recalls the time when plaintiff’s foot was in a cast and complained of pain and blisters and that he told plaintiff to go see Dr. Caldwell; that he did not touch the cast. His final conclusion is to the effect that, in his opinion, plaintiff' has a condition that will prevent him from ever doing the same kind of work that he was doing prior to the time of the accident except possibly to a moderate amount. He, in effect, was of the opinion that his condition is one of traumatic arthritis due to the accident.

Dr...Caldwell testified by deposition that he examined plaintiff who gave him a history of an injury sustained on August 7, 1947 in which a 25-foot length of three-inch pipe was dropped on the top of his right foot;. that such a blow might reasonably produce a fracture" of .the second metatarsal bone such as.is seen in the X-rays.' Upon being asked the question, “ * * * doctor, what could be the cause of the condition of traumatic arthritis that you diagnosed?” Dr. Caldwell answered,

“The traumatic arthritis was involving joints in the middle portion of .the right foot in -and about the arch of the. foot,- and I think might reasonably be attributed to the same injury.”

The doctor further testified with reference to the injuries he found and his abil-i'ty to perform the duties usually performed by a trucker’s helper or common laborer, “I think that would totally incapacitate him for such work.” Testifying further, he states that he found no appreciable improvement in patient’s condition over a period of three months but he does state that,

“ * * * All such cases I have ever seen recover to the point of being able to do — to walk and do some kind of work so that I don’t feel that he would be necessarily permanently totally disabled entirely.”

Dr. Caldwell’s diagnosis from his examination of plaintiff is apparently summed up in his statement as follows:

“I think he has not -reached the stage of maximum improvement as yet, and further treatment and time will be necessary before he will reach such a stage and the extent of' partial disability that may be permanent can be estimated.”

Dr. Hatchette testified thpt he examined plaintiff on September 29, 1947. He says:

“Mr. Deshotels was sent to my office for consultation by Dr. P. B. LaHaye of Eunice, Louisiana. At that time Mr. Des-hotels showed moderate swelling involving the entire right foot but which was more prominent over the metatarsal arch. All of the toes could be moved without pain except the second toe which caused.some distress on movement. There was pressure pain over the dorsal and planta surfaces of the metatarsal arch at the second toe. At -that time it was my opinion this patient had a fractured metatarsal bone, which showed on X-ray examination, and which was healing normally and in excellent position. It was also my opinion that this was sufficient to cause disability at that time and that the patient should start movement bf his foot and weight -bearing as tolerated. Healing of the bone was not considered to be complete and an estimate of thirty' to sixty days was given for complete healing. It was recommended that the patient be returned after complete healing had occurred for additional exam-, ination and opinion.”

He testified further that he examined plaintiff again on December-22, 1947/and:

“At that time the examination showed a minimal amount of swelling about the anide joint. The transverse' arches of the foot were considerably depressed. There was no pain on pressure and movement of the foot á¿d anide on normal and passive motion. He complained that most of his pain was over the main arch of his foot, which was noticeable only on walking or weight bearing. It was my opinion at that time that arch supports and shoe correction should be furnished the patient. These were given to him and he stated that he felt some relief; however, he continued using his walking -cane for support on the right side. I felt that by doing away with the walking cane this man would rehabilitate his foot and ankle much more quickly; that the proper muscle tone and strength of ligaments would be brought about by usage better than -by using a - cane to support this member-of his lower ,extremities. I gave, the opinion -that, approximately one to three months would be necessary to bring about a. resumption of normal walking. I also requested that the patient be impressed with the necessity of attempted walking without the use of -his cane.”

He states that as a result of this examination that he did not feel that plaintiff would have any difficulty or that he would have any trouble regaining the normal use of his foot. He states that plaintiff was entirely co-operative in the examination but that he wasn’t able -to watch him as a patient and to see that -he carried out the instructions that he gave him relative to walking and relative to the use of his cane. He testified that he examined plaintiff again on October IS, 1948, and that at that time the patient showed considerable pronation of the right ankle with depression of the main and -transverse arches of the foot; that the internal lateral ligaments had apparently given way to some extent and this was associated with much flattening of the longitudinal arch of the foot. X-ray examination at that time showed a depression of the main arch of -the right foot and in comparison with the left foot it showed- a" depression of this ar-ch. He says, : ■

“It was my impression at that time that this patient had'a painful foot and ankle on the right side. At that timé it was a little late to start recommending exercises in an effort to bring about rehabilitation when, it was obvious that some permanent damage had been established to the right foot. It was my impression that Mr. Deshotels had a twenty-five per cent to thirty-five per cent permanent disability of the right foot and ankle on October 15, 1948. Í also felt that he would be able to restore some part of the strength to his muscles and ligaments about the foot and ankle by exercise and usage. At that time I was of the opinion that he was not able to perform his usual work and that the condition of pronation and flattening of the main arch would remain as a permanent residuence.-”

He- testified further that referring back to his examination of March 4th, had plaintiff followed his instructions, he would not have anticipated the condition he f oúnd on October 14th. He states,

“I feel that his present condition is somewhat tied .up with his accident in that if the man had not been injured he would not have received these severe relaxations and lack of muscle tone in the ligaments and muscles of his foot and ankle. If I may elaborate on that a little, more for a moment, it is possible that this man had a pronated ankle with flat foot on the right side before he was injured. I didn’t see him before his injury and am not familiar with the state that he was in at that time. If he did have pronation of the ankle and flattening of the main arch, then, the accident certainly aggravated the situation that he had at the time I saw him on March the fourth.”

The doctor concludes that at the time of his last examination plaintiff was suffering from about a twenty-five per cent disability of his right foot and ankle and that he felt that plaintiff would improve considerably and that he still needs a great deal of usage of that foot and ankle in order to bring strength b'aclc to it; that he believes that plaintiff will eventually be able' to do the type of work that will afford him a living. He feels that an additional period of six months should be given plaintiff in order for him to attain the maximum period of improvement.' He denies that he found any condition of traumatic arthritis in plaintiff’s right foot.' He’"admits' that plaintiff cannot do exceedingly heavy work but he thinks that he should attempt any kind of work which is available t.o him such as digging ditches or sweeping out, or any type of duty that doesn’t involve toomuch carrying or heavy weight bearing on that foot.

It seems clear that the preponderance of the medical testimony corroborates plaintiff’s testimony to the effect that he is unable to do the work that he was doing at the time of his injury and consequently there appears to be no manifest error in the finding of fact of the trial judge to-the effect that plaintiff has sustained the burden of proving that he is totally and permanently disabled within the purview of. the workmen’s compensation act.

On the question of non-co-operation, Dr. Hatchette has no reason to say plaintiff did not co-operate. He admits that he was cooperative on examination but was unable to follow him and watch him as a patient to see that he carried out instructions to use his foot in lighter work. Yet, his testimony reveals that it was on March 4, 1948 that he told plaintiff he should use his foot in light work’and right after that plaintiff did try as he secured employment with Manuel but could only work 2y2 days because of pain he suffered. He followed this by going right' away to see Dr. Fontenot who found him to be very co-operative.

Dr. Caldwell’s testimony is surely not enough to convict him of non-co-operation. In referring to this he says he was not cooperative in carrying out instructions “some of which perhaps was his own fault and some imavoidable.”

In so far as the judgment below is concerned, the award should have been for a period not to exceed four hundred (400) weeks less a credit of payments heretofore made for a period of twenty (20) weeks and the interest awarded should be not from judicial demand but from the delinquency date of each instalment. The defendant raised the question with reference to medical expénses awarded in the sum of $82.94, that such award brings the total medical expenses slightly in excess of $500. It appears, however, that the-medical expense of $82.94 was voluntarily agreed by the defendant at the time that this .debt was contracted for by plaintiff’s attorneys and that therefore the award is proper.

The judgment will be recasted to read as follows :

It is ordered, adjudged and decreed that there be judgment for plaintiff for workmen’s compensation at the rate of $19.50 per week for a period not to exceed four hundred (400) weeks, less a credit for payments heretofore made of twenty (20) weeks, plus interest at the rate of five (5%) per cent per annum on all delinquent instalments from the due date of each instalment plus the sum of $82.94 for medical expenses and all costs herein. As thus recast the judgment is affirmed.


author: . ELLIS, Judge.

text:
    SWINNEY v. PRIMEAUX et al.
    No. 3108.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.
    Dugas & -Bean, Lafayette, for appellants.
    Edward F. LeBlai.c, Abbeville, for ap-pellee.
   . ELLIS, Judge.

Plaintiff was injured as a result of a collision between his motorcycle which he- was operating and upon which he was carrying a passenger behind him, namely, his brother.-in-law, William Warren, and -a Chevrolet automobile belonging to the defendant, P. .Rex Primeaux, which was being driven at the time by his minor daughter, Rexine Primeaux, and who at the time had as her guest ■ in the front seat of the .automobile with her Yvonne Broussard, also a minor, at the intersection of Charity Street with Louisiana Street in the City of Abbeville at about 3:00 o’clock in the afternoon on March 23, 1941. The plaintiff has also joined in this suit the American Mutual Liability Insurance Company as the insurer of the automobile of P. Rex Pri-meaux. It was alleged and admitted that at the time of the accident defendant’s minor daughter, Rexine Primeaux, was operating the Chevrolet automobile with the consent, authority and permission of her father, P. Rex Primeaux, one of the defendants herein, and that the minor daughter resided and lived with her father and mother.

Plaintiff alleges that the driver of the Chevrolet automobile was negligent in the following respects:

(1) That in executing a left turn from Charity Street, which is a State Highway (No. 25) into Louisiana Street she did so without extending her hand or ar.m, without giving any sort of warning signal whatsoever, without applying her brakes, thereby failing to apply or use her warning brake lights;

(2) That she made the left hand turn on a heavily trafficked and travelled highway and city street diagonally across same and at a point well before entering the intersection;

(3) That she failed to look to the rear.

Plaintiff further alleged that as a result of the collision his right leg was broken in several places and as a result he has itemized his damages, medical, surgical and hospitalization costs and expenses, mental and physical anguish, pain and suffering, and injuries to his leg, loss of earnings and property damage to the motorcycle in the full sum of $24,917.00, and, accordingly, prays for judgment in that amount against the defendants, together with legal interest thereon from date of judicial demand until paid.

Defendants filed a general denial and in addition charged the plaintiff with travel-ling at an excessive rate of speed of from 50 to 55 miles per hour and, therefore, that plaintiff did not have his motorcycle under proper control, which said negligence was' the proximate cause of the accident. The defendants further plead in the alternative contributory negligence'on the part of the plaintiff for the same reason. Defendants, however, after the trial contended that the negligence of the plaintiff in passing the defendant’s automobile in an intersection was a proximate cause of the accident.

After many delays which were apparently secured or caused by the defendants, on November 26, 1945 the case was finally tried and on January 12, 1948 judgment was rendered in favor of the plaintiff and against ■both defendants in the sum of $6,033.40 which the Court itemized as follows: $533.40 as medical expenses; $1,500.00 for pain and suffering to plaintiff; $4,000.00 for injuries to his leg and loss of earnings

Counsel for defendants applied on January 14, 1948 for and were granted a rule directed to the plaintiff to show cause why a new trial and rehearing should not be granted. Also on the sáme date, in support of his. motion for a new trial, counsel for defendants filed an affidavit in which he set forth that since the trial of the case he had discovered new evidence which he could not with due diligence have obtained before the trial. The judge of the District Court on February 14, 1948 overruled the motion for new trial and rehearing, whereupon judgment was read and signed on the first day of March, 1948. The same motion is being urged on appeal, however, we are of the opinion that the refusal of the District Court was correct as defendant had practically five years to obtain its evidence, and such alleged evidence as shown would not affect our findings and judgment.

The defendants have appealed from this judgment and the . plaintiff has answered the appeal asking that the judgment be increased to at least the sum of $18,533.40.

The facts reveal that at about 3:00 o’clock' P.M. on March 23, 1941, Miss Rex-ine Primeaux, daughter of the defendant P. Rex Primeaux, was driving her father’s Chevrolet car in án easterly direction along Charity Street in the town of Abbeville, Louisiana. This street is a State Highway and is heavily used. At the west end of this street is located the Court House in the Town o'f Abbeville. In order to reach Charity Street at the western end thereof which begins in front of the Court House, it is necessary to either come from the left or right down-Charles Street which is the street running north and south in front of the Court- House and crossing Charity Street at its beginning'. In the car with Miss Primeaux on this afternoon was a friend, Yvonne Broussard, who at the time was 15 years of age. Miss Primeaux in her testimony admits that the lane of traffic ahead of her prior to the accident was clear and that she did not put out her hand to signify a left turn nor apply her brakes prior to making the left turn into Louisiana Street which crosses Clharity Street one block east of its beginning, and gives as her reason for not doing so that just before she turned, she looked in her rear view mirror and saw the motorcycle turning at the Court House corner, which would be turning into Charity Street, and “so naturally I thought I had enough time to make it across.” She further testified that she did not hear the motorcycle’s horn blown.

The record further shows and there are pictures introduced that there was a filling station on the north and on the south corners of the intersection of Charles and Charity Street's. In front of the filling stations were three men who'had a clear view down the street and saw the accident. One of these was dead at the time of the trial, however, the other two were witnesses in the case. These two living witnesses were Raoul Jones, Jr., who was employed in the Cities Service Filling Station, and Ron P. Trahan who operated the Conoco Filling Station across the street from the' Cities Service Station. The testimony of these two eye witnesses' as to material facts is practically the same. They testified that they were in front of the respective service stations about 2:30 or 3:00 o’clock on Sunday afternoon on the day of the accident, and that they saw the defendant Prim-eaux’s car being driven by Miss Rexine Primeaux in an easterly direction on Charity Street, and also saw the motorcycle being operated by the plaintiff at approximately 15 to 25 miles per hour and in a careful manner, with someone riding with the plaintiff, go around the Court House square and turn into Charity Street behind the Primeaux automobile; that the Prim-eaux automobile was being driven approximately 12 to 15. miles per hour; that they heard the plaintiff blow his horn on the motorcycle in order to pass, the Primeaux car, and immediately after the horn blew they saw the Primeaux car driven slightly to the right and then suddenly, without warning, to its left across Charity Street. They stated that Miss Primeaux turned without warning when the plaintiff was attempting to pass. The witness Jones testified that the plaintiff applied his brakes on the. motorcycle but he did not know how far it skidded on the pavement before it struck the car. Both testified that there was a hole and a telephone post on the corner of Louisiana and Charity Streets and, according to the maps drawn by some of the witnesses in the case, this hole, ditch, or culvert and telephone post is located on the1 northwest corner of the intersection of Louisiana and Charity Streets. The accident occurred eight to ten feet from this telephone post and hole and, after Miss Primeaux cut in to make the left hand turn, the only place left for the plaintiff to drive his motorcycle was in the ditch or into this telephone pole. Plaintiff’s brother-in-law, William Warren, who was riding on the back of the motorcycle was thrown over the top of the defendant’s car when the motorcycle struck it. Witness Jones identified a picture of the defendant’s car showing that it was struck on the extreme left end of the rear bumper and left rear fender. These eye witnesses further testified that the Primeaux car was approximately eight to ten yards from the corner of Louisiana and Charity Streets when she started to cut it to turn to the left, and that she did not go up to the corner and make a square turn. In fact, they testified that she made a diagonal turn.

Sidney Landry, operator of the Cities Service Filling Station, testified that he was not in a position to see the accident but that -he did see the plaintiff on his motorcycle when -he turned into Charity, Street, and that the motorcycle was travelling approximately 15 miles per hour. He testified that he went to the scene of the accident immediately after it happened and we have in the record a drawing marked “Sidney Landry”. This shows the point of the accident to be on the left hand side of Charity Street and closer to the northwest corner of the intersection of Louisiana and Charity Streets than to the center line of Charity Street. The point of contact was .very close to the culvert and telephone pole mentioned throughout the testimony. He located this point 'by reason of the fact that he found “a little dry dirt and things like that. As a rule when you hit something on the road it will fall there.” According to Landry’s testimony and the map which he has drawn, Miss Primeaux started to make a diagonal left hand turn before reaching the intersection.

The witness William Warren testified that he was a brother-in-law of the plaintiff and was riding behind him on the motorcycle on the afternoon of the accident, and when they first went into Charity Street the motorcycle was travelling at approximately 20 miles per hour; that he saw the Primeaux car in -front of him being driven by a young lady and that it was going about 10 or IS miles an hour; that as they overtook the car the plaintiff swerved to the left to look for any oncoming traffic and only seeing the Primeaux car on the road in front of him blew the horn two or three times, and it was then that the Prim-eaux car swerved over to the right as if to clear the road for them to go 'by. When this happened, the plaintiff proceeded to attempt to pass the Primeaux car, whereupon the Primeaux car pulled to the left and followed a diagonal .course in order to make a left turn into Louisiana Street, and it was then that the plaintiff applied his brakes. He testified that the culvert and telephone post prevented the plaintiff from going any farther to his left in order to avoid the automobile. This witness stated that at the time the Primeaux car began to diagonally turn to its left that the motorcycle was at least even with the rear wheel of the Chevrolet car or “perhaps just a little past,” but that as it was going faster than the car, even though the brakes were applied the motorcycle did not slow down enough to get behind the car and was finally jammed near the culvert and telephone pole at the northwest corner of the intersection of Louisiana and Charity Streets and at this point struck the car on the left rear fender and left end of the rear bumper.

The testimony of Frank Swinney, plaintiff, as to how the accident occurred is in aocord with the material facts a's given by all other eye witnesses, who testified in his behalf.

The defendants offered an ordinance of the Town of Abbeville in evidence which ordinance fixed the speed limit at 25 miles per hour. The .defendant P.. Rex Primeaux testified that two hours after the accident he stepped off some skid marks on the pavement at the scene of the accident, that it was a single track of skid marks and that it was 20 paces or 60 feet in length. He did not see any other skid mark on the pavement other than this single mark but would not testify that it was made by the motorcycle, but from his testimony one would presume that the motorcycle was responsible for thé skid mark.

Mr. J. Otto Broussard, Sr., an attorriey-at-lkw who practiced in Abbeville for more than twenty years prior to the date of the accident, testified that he was walking along the east side of South Louisiana Street toward Charity Street with one of his grandchildren, and that he saw the motorcycle travelling east on Charity Street; that it was travelling pretty fast, he judged “something over 30 miles an hour,” but that he did not see the collision when it happened as he was talking to his grandchild, and after seeing the motorcycle he looked down at the child while talking to it and it was then he heard the impact. He looked up and saw Warren being thrown over the top of the car. According to this witness’ testimony, he fixed the point of impact at or near the northwest corner of the intersection of Louisiana and Charity -Streets, for he testified that he was walking along the east side of South Louisiana Street and that the corner on which the accident occurred was “catacornered” from where he was walking, which clearly means diagonally. Therefore, his testimony. in this respect is the same as that of plaintiff and his witnesses, and if this accident occurred near the northwest corner of the intersection of Louisiana and Chai;-, ity Streets, Miss Primeaux is bound to have made a diagonal left hand turn and to have begun to turn to the left prior to reaching the intersection of the two streets. Mr. Broussard testified that the skid marks made by the motorcycle were approximately 40 feet in length to the best of his recollection, although opposed to this is testimony to the effect that the motorcycle skidded only about 12 feet.

Before closing, counsel for the defendants stated that he wished to take the testimony of a Mr. Lindstrom whom he intended to use as an expert witness with regard to motorcycles. It was agreed that the testimony would be taken in or out of open court no.t later than December 8, 1945. This witness was never produced and his testimony never taken.

Defendants introduced the statement of Miss Yvonne Broussard who was in the Primeaux car on the day of the accident. Her testimony does not throw much light on the accident, however, she did state that the Primeaux car was being driven very slowly, under 15 miles per hour, and that Rexine Primeaux did not have to apply the brakes to attempt the turn from Charity into Louisiana Street. She also stated that just as Rexine Primeaux made or was making the left hand turn, she heard a noise like someone trying to put on 'brakes, which is corroborative of testimony of the plaintiff and other eye witnesses who testified that when the Primeaux car started to make its left hand turn it was then that the brakes were applied on the motorcycle.

Also offered by defendants was a statement of Melvin Martin who at the time was 15 years of age. In this statement he said that on the date of the accident he was standing by the Court House and saw two men on a motorcycle going around the Court House square; that they were going about 40 to 45 miles per hour; that when they would turn the corners the knee guard of the motorcycle would scrape the pavement. He saw them when they turned at LeBlanc’s filling station on Charity Street and they turned the corner at 30 or 35 miles per hour, and after they had gotten straight they went faster, about 40 ■or 45 miles per hour. He stated that he ■could see the Primeaux car going down Charity Street at a slow rate of speed and “it looked like she was going to turn on Louisiana Street when the man on the motorcycle put on his brakes he was about 20 or 30 yards from the car.” The trial court evidently did not give much weight to Martin’s statement and neither do we in view of the other testimony to the contrary.

Counsel for defendants depend upon this statement plus the fact that William Warren was thrown over the top of the car when the motorcycle struck the back of the car, plus the testimony of the defendant Primeaux that there was a skid mark presumably made by the motorcycle 50 to 60 feet in length, and the testimony of Mr. Broussard that the motorcycle was going over 30 miles an hour just prior to the accident and that the skid mark made by the-motorcycle was approximately 40 feet in length to establish the fact that the motorcycle was travelling at an excessive speed. There is no testimony in the record as to' how far a motorcycle would skid at any given speed and, therefore, we have nothing upon which to base any definite conclusions from such a fact as to the speed of the motorcycle. However, it is established that the brakes were not applied until the Primeaux car started to' make the left ■ hand turn into Louisiana Street. If this be true, and the record establishes this fact, then it would have been useless, for the plaintiff to put on his brakes 60 feet away as he could easily have continued on the right hand side of Charity Street, or,, if he had crossed to the left side of Charity Street at this moment at a distance of 60' feet the car would have been out of the right lane of traffic and he would have had time to go to the rear of the car. This would seem true with regard to the 40 feet, however, we are of the opinion that the preponderance of the testimony is to the effect that the motorcycle was travelling from 20 to 25 miles per hour.

It is further argued by counsel for the defendants that the plaintiff was negligent in attempting to pass the Primeaux car at an intersection, in violation of the Highway Regulatory Act of 1938, Act No. 286 of 1938, Tit. 2, § 3, rule 7(e), Gen.St., Section 5212, Paragraph (e). The facts in this case show that at the time the plaintiff started to pass the Primeaux car it had not reached the intersection and also the plaintiff blew his horn and Miss Prim-eaux pulled to her right, which gave the plaintiff the definite idea that she was pulling over for him to pass, and when she gave no hand signal nor brake light warning the plaintiff proceeded to attempt to pass her, which he had a lawful right to do, and it was at this moment that she pulled suddenly to the left and proceeded diagonally across Charity Street into Louisiana Street.

The Highway Regulatory Act of 1938, Act No. 286 of 1938, Tit. 2, § 3, rule 9 (a-c), Gen.St., Section 5214, Paragraphs (a), (b), and (c) are that:

“(a) The driver of any vehicle on the public roads, highways and bridges of this State shall ascertain, before turning around upon any such road, highway or bridge, that there is no traffic, vehicular or pedestrian, approaching from either direction which will be unduly or unnecessarily delayed and shall yield' right-of-way to such approaching traffic and shall not attempt to make a turn unless and until the said way is clear.
“(b) Except as otherwise provided in this Section, the driver of a vehicle intending to turn to the right at an intersection shall approach such intersection in the lane for traffic neatest the righthand side of the highway, and in turning shall keep as closely as practicable to the right-hand curb or edge of the highway, and when intending to turn to the left shall approach such intersection in the lane for traffic to the right of and nearest the center line of the highway and in turning shall pass beyond the center of the intersection, pass-' ing as closely as practicable to the right thereof before turning such vehicle to the left.
“(c) For the purpose of this Section, the center of the intersection shall mean the meeting point of the medial lines of the highways intersecting one another.”

In the case of Vernon v. Gillham et al., La.App., 179 So. 476, 480, this Court made the following observation: “The law leaves no uncertainty in prescribing the degree of care to be exercised by a driver of a motor vehicle when executing a left turn, especially in an intersection. Such a movement has been uniformly declared by the courts to be, and in fact, is about the most, hazardous one of- which a motor vehicle is capable of performing. It should not be undertaken except under most favorable conditions, and these conditions may only be known to the operator by a proper exercise of the senses of sight and hearing. * * *

The doctrine has been affirmed and reaffirmed so'many times it is useless to cite any further authorities. Miss Rexine Primeaux was guilty of violating the Highway Regulatory Act as above quoted and the settled jurisprudence is to the effect that she is liable under the facts in this case. Her negligence in failing to give the proper hand signal or brake warning signal, in making a left hand turn before she even reached the intersection and in a diagonal course rather than as the law directs, and' her ■ failure to- keep ' a proper lookout for oncoming traffic was the proximate cause of the accident.

We find no negligence on the part of the .plaintiff under the facts. There was no traffic coming and no traffic on Louisiana Street and he blew his horn before attempting to pass and the driver of the defendant’s car pulled to the right which gave him every reason to believe that she heard his horn signal. He was not attempting to pass in the intersection but before they got to the intersection, and he was not going at any excessive rate of speed and the moment he discovered that Miss Rexine Primeaux intended to make a diagonal left hand turn' he put on his brakes and steered his motorcycle' to the left as far as ‘possible in order to avoid the collision. In so far as the plaintiff is' concerned, he did all in hN power and all that he should have done to avert the accident at the moment he discovered that Miss Primeaux intended to make the illegal left hand turn.

When the plaintiff struck the automobile of the defendant, it bent the right leg guard on the motorcycle back in such a manner as to pin plaintiff’s right leg and when he was thrown from the motorcycle by the ■ force, of the impact he testified it nearly pulled his .leg off. Be that as it may, the record shows that he sustained a compound fracture of both bones of the right leg about the middle third. The bones protruded. Plaintiff was taken to the Abbeville Clinic and he remained in the hospital five days. Dr. Marion A. Young of Abbeville, Louisiana treated the plaintiff, and his findings and report have been placed in the record and are as follows :

“On March 23, 1941 Mr. Sweeney sustained a compound fracture of both bones of the right leg about the middle third. There was considerable over-riding .of the fragments.. We attempted to reduce this with adhesive traction but were never able to bring the fragments into apposition. The traction was continued. At this time I put a steel pin through the heel bone to obtain positiv.e traction. We were still even with this method, unable to bring the fragments into apposition. We then decided to do an open reduction. I operated on him April 16, 1941 at which time I found the Tibia with the lower fragment over-riding posteriorly and with considerable interposition of soft parts, which accounted for our inability to obtain complete reduction by the other methods. I put a steel plate in to hold the fragments in place. This was screwed firmly in place and an excellent reduction was obtained. The leg was then put in a plaster cast.
“The delay in this operation was -because the original wound at the site of fracture was infected and draining and it was deemed wise to wait until this infection subsided. Of course, during this time. Mr. Sweeney suffered considerable pain as would be expected from a case of this sort. X-rays taken after insertion of the plate and cast showed a perfect apposition and alignment. Mr. Sweeney probably became a little too active .too soon before his leg was removed from the cast and loosened the steel plate. This caused a slight angulation of the fracture and' considerable inflammatory reaction around the site of the fracture as indicated at present by a great deal of thickening over the Tibia in the region. I X-rayed Mr. Sweeney on February 26, 1942. This picture shows in the A.P. view the fracture is in alignment and the steel plate in place. The lateral view shows a slight anterior bowing of the Tibia at the site of the fracture. This is considerable thickening' around the site of the fracture (callous). It is a good firm connection but there is this slight deformity.
; “Mr. Sweeney also complains bitterly of pain in the right knee. He undoubtedly has a very dry joint and á chronic arthritis as movement causes distinct popping and grating sounds. In my opinion this will undoubtedly be a permanent source of trouble. At present he gets about with a decided limp and complains of considerable pain up and down the leg but mostly about the knee. I would estimate that Mr. Sweeney has a disability of approximately 50 per cent in this leg due mostly to the condition of his knee which is undoubtedly the result of the long immobilization of the knee in this case.”

There is no doubt that plaintiff suffered excruciating pain.. In addition to that which is contained • in the doctor’s report he testified that- on August 7, 1942 they operated on plaintiff’s leg and removed the steel plate. Dr. Young testified that he treated the plaintiff - from March 1941, the date of the accident, until September 1942, and that when he discharged the plaintiff the disability in his leg was the same as mentioned in his report and that plaintiff’s leg would swell considerably upon use. Doctor Young, on the date of the trial, November 26, 1945, almost five years after the accident, examined plaintiff’s leg and testified that it was in essentially the same condition as when he rendered the report on March 6, 1942; that he still had a chronic arthritis due to the long immobilization of the knee in the course of treating the fracture, and he further testified that the plaintiff probably had some pain on the date of the trial and could not estimate how long plaintiff would suffer pain.

Plaintiff, prior to the injury, owned several trucks with which he hauled oil supplies. He operated one of the trucks himself, and the record shows that he only knew that kind of work; that he suffered financial losses after his injury due to the fact that he could not personally attend to his business but that on account of the war business 'picked up, however, he was unable even at the date .of the trial to perform the labor that he was doing prior to .the injury. ■ He testified that as a result of his.working prior to the injury he made additionally from $250.00 to $300.00 per month; that after the injury he-could not work and naturally lost this much. From the testimony, the plaintiff could never return to rough-neck oil work nor to operating his truck for it was necessary to also help load and unload heavy machinery and pipes and other material used, in the oil industry.

We feel that the judgment of the District Court should be amended by increasing the award to the plaintiff for pain and suffering from $1,500.00 to $2,000.00; for physical injuries and loss of earnings from $4,000.00 to $6,500.00. The medical expenses of $533.40 are correct, making a total judgment of $9,033.40.

It is accordingly ordered that there be judgment in favor of the plaintiff Frank J. Swinney and against the defendants, P. Rex Primeaux and the American Mutual Liability Insurance Company, insólido, in the full sum of $9,033.40 with legal interest from judicial demand until paid and all costs. As thus amended, the judgment of the District Court is affirmed.


text:
    THIBODAUX et al. v. SUN OIL CO. et al. BAKER v. SUN OIL CO. et al. BAKER v. J. C. CHANCE WELL SERVICE, Inc.
    No. 3115.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.

      A. Deutsche O’Neal, Houma, for appellants.
    Frank T. Doyle, New Orleans, Nicholas Masters, New Orleans, Harvey Peltier, Thibodaux, for appellees.
   DORE, Judge.

Each of the plaintiffs in these consolidated cases appeals from a judgment in favor of the respective defendant sustaining .exceptions of no right and no cause of action.

These are damage suits arising out of an accident, caused by the collapse of falling of an oil derrick, belonging to defendant Sun Oil Company, and located on Sun Oil Company Lease No. 12, Dibert, Stark and Brown, in the Chacahoula Field, in La-fourche Parish, in which accident the husband of Mrs. Sylvia. Adams Thibodaux, an employee of J. C. Chance Well Service, Inc., met his death and in which accident Dutrell E. Baker, an employee of Houston Oil Field Material Co., Inc., received serious bodily injuries. The drilling or “reworking” of an oil well for the Sun Oil Company on said lease was being done by the Chance Well Service Co., Inc:, hereinafter referred to as Chance. The work being'done, at the time of the collapse of the derrick, on the same well in question, by the Houston Oil Field Material Co., hereinafter referred to as Horneo, involved the “fishing out” of drilling tools and implements which had been stuck or lodged in the well' during the drilling operation by Chance. Both Thibodaux, the decedent, and Baker were engaged in work on the drilling rig when the accident occurred.

In the Thibodaux and Baker suits against the defendant Sun Oil Company, the exceptions of no right and of no cause of action are based on the contention that the rights of Mrs. Thibodaux, widow and natural tutrix of the minors of decedent, plaintiff in the first suit and of Baker in the second suit, are governed exclusively by the provisions of the Louisiana Workmen’s Compensation Act, Act" No. 20 of 1914, as amended, and specifically Section 6, Paragraph 1 of that Act, as amended, Act No. 85 of 1926. In the Baker-Chance suit, the exceptions of no right and no cause of action are based on two propositions: First, that plaintiffs’ exclusive remedy is under Louisiana’s Workmen’s Compensation Act •and, second, that defendant’s employees were at the time of the accident the employees pro hac vie of Horneo, plaintiff’s employer and defendant is therefore not liable for their negligence, if any.

For the purpose of these exceptions, all of the allegations of facts well pleaded must be accepted as true. We shall consider the pertinent allegations of facts of each suit.

The two suits against the Sun Oil Company shall be considered together. In the Thibodaux suit, the allegations which have bearing on the matter at issue are found to be designated as allegations 5, 7, 8, 9, 10, and 11, which are herewith copied in full:

“5. Petitioner is informed and believes, and therefore avers, that deceased was-killed as a result of the collapse or falling of an oil derrick belonging to defendant Sun Oil Company, and located on Sun Oil Company Lease No. 12, Dibert, Stark and Brown, in the Chacahoula Field, located in Lafourche Parish, Louisiana.
“6. Petitioner is informed and believes, and therefore avers, that said accident occurred shortly after midnight of May 25, 1947, or at about twelve-thirty (12:30 o’clock A.M. on the morning of May 26, 1947.
"7. Petitioner is informed and believes, and therefore avers, that the deceased, at the time of the accident, was an employee of J. C. Chance Well Service, Inc., an independent contractor performing a specialty job and engaged in a specialty line for and on behalf of Sun Oil Company, which particular job and line of work was not then being customarily done by. said Sun Oil Company.
“8. Petitioner is informed and believes, and therefore avers, that .the employer of her husband, the deceased, that is J. C. ■Chance Well Service, Inc., was at the time under contract, with defendant, Sun Oil-Company, to do and perform the drilling and all other necessary work for the purpose of working over or re-working said Sun Oil Company well called Lease No. 12, Dibert, Stark and Brown, in the Chacahoula Oil Field of Lafourche Parish.
“9. Petitioner is informed and believes, and therefore avers, that her husband was, at the time of the accident mentioned herein, an employee of J. C. Chance Well Serv-íce, Inu, a company engaged and performing in a specialty line of work in connection with the general oil field business and not doing that type of work ordinarily and customarily done and performed by the employees of defendant, Sun Oil Company.
‘ 10. Petitioner is informed and believes, and therefore avers, that at all times men.tioned hereinabove or anywhere m this petition, the deceased had no connection with or control over the erection, mamte-nance and condition of the Sun Oil Company derrick that was being used on the job hereinabove referred to and which collapsed, all as will be described m-lhis pe-
"11. Petitioner is informed and believes, and therefore avers, that the drilling rig, as well as all of its attachments and equipment including the pressure or weight in-, dicator, used in’ these operations was, at all times mentioned in this petition, the property of J. C. Chance Well Service, Inc., employer of deceased.

The pertinent allegations of facts in the . Baker suit are found -to be designated as allegations 2, 4, 5, 6, 7, 8 and 9, which are herewith copied in full:

“2. Petitioner was injured as the result of the collapse or falling of an oil derrick belonging to Sun Oil Company and located on Sun Oil Co. lease No. 12, Dibert, Stark & Brown, in the Chacahoula Field, located in Lafourche Parish, Louisiana, all to the best of petitioner’s knowledge, information and belief.
“4. Petitioner avers, on information and belief, that at said time and date a work-over job was being done on the Sun Oil lease by the J. C. Chance Well Service, Inc. under contract with Sun Oil Company the said J. C. Chance Well Service, Inc. being an independent contractor performing a specialty line in one phase of the general oil field business in which defendant, Sun Oil Company, is generally engaged.
“5. Petitioner at the time was and still Js an employee in the capacity of a fishing tool 'expert with Houston Oil Field Material Co., Inc., a corporation engaged in a highly specialized line of work in connection with the general oil field business,
At all times mentioned hereinabove, y0Ur petitioner had no connection with or control over the Sun oa Ca derrick here_ inabove referred t0 or with the drilling operations of J. C. Chance Well Service, Inc. hereinabove referred to.
“7. Petitioner is informed and believes, and therefore avers> tllat during the operations of the drilling or re_working of the well as hereinabove referred to, that the tools and implements being then used by J.' Q Chance WeU Service, Inc.; including the pipe in tfae well of. Sun 0il Company above described> became stuck and lodged in sudl a manner that specialists were required for their successful removai and that, therefore, either Sun Oil Company or J. C. Chance Well Service, Inc. called the Houston Oil Field Material Co., Inc. on to the job for the purpose of fishing .out said above described • stuck or lodged well tools and implements in said Sun Oil Company well,
“g_ Petitioner is informed and believes, a;nd therefore avers, in an effort to give the entire picture as correctly as possible, that the drilling rig, as well as all rotary rigs, and general drilling equipment, then being used for said work-over job was the property of J. C. Chance Well Service, Inc.
“9. Petitioner is informed and believes, and therefore avers, that in the performance of his duties as á fishing tool expert on this particular job, that it was necessary for him to direct the employees of J. C. Chance Well Service, Inc. to pull on the rotary rig ánd/or other machinery for the purpose of lifting and pulling out the lodged tools and equipment from the hole; and that in doing so, he permitted the pull-on. said implements and machinery to reach a pressure or weight ■ of about 140,000 pounds, at which time petitioner directed the drilling crew to ease 'Up on the pull momentarily,”

The pertinent part or section of the Workmen’s Compensation Act are as follows :

Section 6, Paragraph 1: “That where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or his dependent, any compensation under this act which he would have been liable to pay if that employee had been immediately employed by him; and- where compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.” Act No. 85 of 1926.

Section 7, Paragraph 1: “When an injury for which compensation is payable under this Act shall have been sustained under circumstances creating in some other person (in this section referred to as third person) than the employer a legal liability to pay damages in respect thereto, the injured employee or his dependent may claim compensation under this Act; and .the payment or award of compensation hereunder shall not affect the claim or right of action of such injured employee or his dependent against such third person, nor be regarded as establishing a measure of damages for such .injury; and such injured employee or his dependent may obtain damages from or proceed at law against such third person to recover damages for such injury.” Act No. 247 of 1920. '

Section-34: “That the rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is entitled to compensation under this act shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, relations, or otherwise, on' account of such injury.” Act No. 38 of 1918.

Counsel for plaintiffs states in his brief: “The Sun Oil Company is alleged to be engaged in the oil business. It is true that this is a general allegation to the effect that the Sun Oil Company is engaged in the general oil field business. Accepting that allegation as true, it simply means that the, defendant Sun Oil Company is generally engaged in the business of exploring for oil, the mining of oil, the refining of oil, manufacturing of oil products, etc.”

It is apparent that the question raised by the exceptions is whether from the well pleaded facts of both suits it appears that when the accident occurred, Thibodaux and Baker were engaged in work which was part of the “trade, business or occupation” of Sun Oil Company, or was work which was so closely related thereto as to become a part thereof.

It is now well settled that if the work contracted for is within the “trade, business [and] occupation” of defendant, or within the category of operations, it may not be contracted for except under the conditions imposed by Section 6 of the Compensation Act, supra. However, a general employer or principal may, without retaining liability to the employees of an independent contractor employ independent contractor to do such special work as is not generally done directly by others engaged in the same line of business ■ as is the principal, — such as special construction or even such unusal repairs as are ordinarily made by specialists not customarily within the direct employ of the principal. Horrell v. Gulf & Valley Cotton Oil Co., Inc., 15 La.App. 603, 131 So. 709; Seabury v. Arkansas Natural Gas Corp., 171 La. 199, 130 So. 1; Dandridge v. Fidelity & Casualty Company, La.App., 192 So. 887.

It is quite apparent from a ■ reading 'of the petitions that they were drawn . with the idea in mind of avoiding the effect'of Section 6 of the Act and of coming within the purview of the exception as stated supra. For instance, it is stated in the Thibodaux suit that Thibodaux was an employee of an independent contractor performing a specialty job and engaged in a specialty line for and on behalf of Sun Oil Company, which particular job and line of work was not then being customarily done by said Sun Oil Company. (Allegation 7 of plaintiffs’ petition, supra.)

In the Baker suit, it is alleged that Baker was an employee in the capacity of a fishing tool expert with Horneo, “a corporation engaged in a highly specialized line of work in connection with the general oil field business.” (Allegation 5 of plaintiffs’ petition supra.)

Regardless of the fact that’well pleaded facts for the purpose of considering exceptions of no right and of no cause of action are to be considered as true yet the conclusions of'the pleader are not to be so considered and do not take the place, of facts. It is our opinion that the allegations that Chance and Horneo wqre engaged in highly specialized work not usually done by Sun Oil Company are mere conclusions of the pleader and are merely self serving declarations.

It is apparent from the Thibodaux petition that the decedent was employed by Chance, which company was engaged in the drilling of oil wells and work incidental thereto, for example the reworking <pr working over of oil'wells. In fact, oh the day of the accident Chance was engaged in the reworking of an oil well "belonging to the Sun Oil Company. This work involved drilling and other work incidental thereto. From the admitted facts supra, Sun Oil Company was engaged in the business of exploring for oil and the mining of oil. It is clear that a part pf the business, trade and occupation of the sun Oil Company was the drilling of wells, and the 'reworking of wells if necessary in search for oil and/or its -production. Therefore, it follows that Chance was engaged in work the very nature of which was a part of the business,'trade and occupation' of the Sun Oil Company: We cannot view- it in ■ any other light but that Chance was the contractor of' Sun Oil Company in carrying out a part of the business, 'trade or occupation of the Oil Company and that the provision of Section 6, paragraph 1 of the Compensation Act is applicable and that the remedy of Thibo-daux is that- provided exclusively by "Section 34 of the Compensation Act, supra. If Chance had been .an irresponsible contractor, without compensation insurance, we venture to say - that plaintiff would be contending that Sun Oil Company was liable in compensation rather than in tort.

■ With reference to- the Baker suit, it is to be noted that the work being 'done by Horneo was'the “fishing out” of well tools and implements stuck in the same well in question. Baker was in charge of the operation using the employees and the equipment of Chance, the contractor of Sun Oil Company. The loss or sticking of tools in an oil well is one of the hazards of drilling such a well. In order to continue the operation of drilling and in order not to lose the work which has been done, it is necessary and in order that such tools be “fished out”. ' The “fishing out” of the tools in this well is so closely related to the actual drilling1 of the well as to become a component part of it. We have no allegation that' the Sun Oil Company is engaged in this type of work in so far as the general public is concerned; however,■ it is a fact that it' is interested in seeing that lost or stuck tools are “fished out” of any oil wells belonging to it. It is in furtherance of its business to see that such operations are carried -out. To our mind, it is so closely related to its business that it can be said to be a part of its operation in the production of oil. The mere fact that it prefers to engage the service of a company which specializes in this type of work instead of employing directly “fishing tool” experts makes no difference in the application of the legal problem involved. Section 6, paragraph 1 of the Compensation Act applies and in accordance with Section 34, the sole remedy of Baker is for compensation under the Act. . .

With reference to the Baker-Chance suit, the last of these consolidated cases, the allegations of the petition are verbatim as those in the Baker-Sun Oil Company, supra and need not be stated again. In the petition, the plaintiff charges that the collapse of the derrick was due to the negligent manner in which the employees of Chance operated the machinery which was being used under plaintiffs’ direction to dislodge the tools and implements which were stuck in the well.

The plaintiff, like in the Baker-Sun Oil Company case, contends that since it is alleged that Chance was engaged in a highly specialized line of only one small phase of the general oil field business, that is of drilling and re-working over the oil wells, and that Homco- was engaged in only one phase of the general oil field business, that is, “fishing” for lost or stuck tools and machinery in wells, plaintiff could sue in tort. Defendant’s exceptions of no right and of no cause of action are bottomed on two propositions: First, that plaintiff’s exclusive remedy is under the Workmen’s Compensation Act, and, second, that defendant’s employees were at the time of the accident the employees pro hac vice of Homco, plaintiff’s employer, and defendant is not liable for their negligence, if any.

As previously discussed and .stated, we have come to the conclusion that “the- fishing” for stuck or lost tools was a part of the business of drilling an oil well, within the “trade, business or occupation” of Sun ■Oil Company, Chance and Plomeo. In other works, Sun Oil Company undertook to •drill or rework the oil well in question; it contracted with Chance to do -the work .and it in turn sub-contracted the part of '“fishing” for the lost or stuck tools in the well ■ to Homco, plaintiffs’ employer. For the reasons heretofore stated, we are firm in the opinion that Section 6, paragraph 1, and Section 34 of our compensation act apply and govern this suit.

Having concluded that plaintiffs’ exclusive remedy is under the Workmen’s Compensation Act, we see no useful purpose of discussing defendant’s second contention stated supra.

We find the following statement found in the case of Spanja v. Thibodaux Boiler Works, La.App., 2 So.2d 668, 672, (2), to be very appropriate and applicable to these three cases: “The compensation statute, with its amendments, was designed to cover all employees who might reasonably be brought under its paternalistic protection. In the Dick case, (Dick v. Gravel Logging Co.), 152 La. 993, 95 So. 99, supra, the court said that the statute is humane in-' its purpose and that its scope should be enlarged and 'its provisions liberally construed so as to include all services that can reasonably be said to be within the said statute. If it is to be liberally construed so as to include all possible persons when they seek its protection, surely it would not do to say that the provisions of the statute should be restricted when persons, in order to recover in tort, are attempting to have themselves excluded from the coverage of the statute(Our Italics.)

In so far as these three suits are concerned, liberally construing the provisions of the Act, we find that the relationship, existing at the time of the accident between the parties, was: employer, Sun Oil Company, contractor, Chance, and sub-contractor, Homco, all engaged in the “trade, business [and] occupation” of the Sun Oil Company, and plaintiffs as employees thereof. Therefore, quoad the plaintiffs in these suits, the defendants are not third persons in the contemplation of Section 7, paragraph 1 of the Compensation Act. As stated supra, the sole remedy of the plaintiffs is for compensation under the Act.

For these reasons, the judgments appealed from will be affirmed.


text:
    Mrs. Sylvia Adams THIBODAUX, et al. v. SUN OIL COMPANY, et al.
    No. 3115.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.
    A. Deutsche O’Neal, Houma, for appellants.
    Frank T. Doyle, New Orleans, Nicholas Masters, New Orleans, Harvey Peltier, Thibodaux, for appellees.
   DORE, Judge.

For the reasons assigned in the consolidated cases of Thibodaux et al. and Baker v. Sun Oil Company and Baker v. J. C. Chance Wells Service, Inc., La.App.; 40 So.2d 761, the judgment appealed from is affirmed.


text:
    Dutrel E. BAKER v. SUN OIL CO. et al. (TRAVELERS INS. CO. OF HARTFORD, Conn., Intervenor).
    No. 3116.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.
    A. Deutsche O’Neal, Houma, for appellant.
    Frank T. Doyle, New Orleans, Nicholas Masters, New Orleans, Harvey Peltier, Thibodaux, for appellee.
    Elton A. Darsey, Houma, for inter-venor.
   DORE, Judge.

For the reasons assigned in the consolidated cases of Thibodaux et al. and Baker v. Sun Oil Company and Baker v. J. C. Chance Wells Service, Inc., La.App., 40 So.2d 761, the judgment appealed from is affirmed.


text:
    Dutrel E. BAKER v. J. C. CHANCE WELL SERVICE, Inc. (TRAVELERS INSURANCE COMPANY OF HARTFORD, CONN., Intervenor).
    No. 3117.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.
    A. Deutsche O’Neal, Houma, for appellant.
    St Clair Adams & Son, New Orleans, Edmond L. Deramee, Thibodaux, for ap-pellee.
    Elton A. Darsey, Houma, for inter-venor.
   DORE, Judge.

For the reasons assigned in the consolidated cases of Thibodaux et al. and. Baker v. Sun Oil Company and Baker v. J. C. Chance Wells Service, Inc., La.App., 40 So.2d 761, the judgment appealed from is affirmed.


author: STICH, Justice ad hoc.

text:
    215 La. 358
    RIDELL v. HYVER et al.
    No. 38816.
    Supreme Court of Louisiana.
    April 25, 1949.
    Oliver P. Schulingkamp, of New Orleans, for plaintiff and appellant.
    Anthony J. Marciante, of New Orleans, for Mrs. Juliette Hanna, undercuratrix, defendant and appellee.
    Michel Musson, of New Orleans, curator ad hoc for August Gregory Hyver, defendant and appellee.
   STICH, Justice ad hoc.

Plaintiff brings this suit against the defendant for a divorce based on the provisions of Act 430 of 1938.

A curator ad hoc was appointed to represent the defendant. The undercuratrix of the defendant was also joined as a party defendant since the interest of the defendant, interdict, was opposed to that of his curatrix.

Exceptions of no right or cause of action were filed by the undercuratrix and curator ad hoc. The District Court sustained the exceptions and the suit was dismissed. From this judgment plaintiff has appealed to this court.

The pertinent allegations of plaintiff’s petition read as follows:

“I. That she was married to August Gregory Hyver on November 19, 1926 in St. Bernard Parish, and that thereafter she and her husband established their matrimonial domicile in the City of New Orleans.
* * * * * *
“IV. Your petitioner further alleges that on or about June 1, 1935, because your petitioner believed her said husband guilty of infidelity and because of his cruel treatment toward her, petitioner left the matrimonial domicile with the intention never to return; that since that date petitioner and her said husband have lived continuously separate and apart and under separate roofs; that petitioner has since such time continuously resided in New Orleans.
“V. Your petitioner further alleges that at all times prior to, and at the time of the said separation as related above, her said husband was- of sound mind and remained so for a considerable period of time subsequent to said separation; that he was considered to be of sound mind by his wife as well as those who were acquainted with him.
“VI. That, however, sometime later, the exact date of which your petitioner is presently unaware, the mental faculties of August Gregory Hyver became impaired and on April 24, 1936, 11 months after the said separation, he was admitted to the East Louisiana State Hospital at Jackson, Louisiana, as will be shown by reference to a letter from the Superintendent of said institution hereto annexed, and made a part hereof; that it is, therefore,- necessary that a curator ad hoc be appointed by this Honorable Court to represent the incapacitated defendant with respect to his personal status.
“VII. Petitioner avers that on May 21, 1947, a judgment in case No. 272,968 of the docket of the Civil District Court for the Parish of Orleans, was signed, pronouncing the interdiction of the said August Gregory Hyver, and naming your petitioner curatrix and Mrs. Juliette Hanna as Under-curatrix of said interdict.”

These allegations must be accepted as true for the purpose of considering the exceptions of no right or cause of action.

We, therefore, find that the plaintiff separated from her husband on June 1, 1935, when he was of sound mind; that the separation was voluntary; that approximately eleven months after the separation the defendant was admitted to the East Louisiana State Plospital; that he was interdicted on May 21, 1947, and that plaintiff has lived continuously in the City of New Orleans since the date of the separation on June 1, 1935, separate and apart from her husband.

Act 430 of 1938 provides:

“ * * * when married persons have been living separate and apart for a period of two years or more, either party to the marriage contract may sue, in the Courts of his or her residence within this State, provided such residence shall have been continuous for the period of two years, for an absolute divorce, which shall be granted on proof of the continuous living separate and apart of the spouses, during said period of two years or more.”

The sole and only question presented for determination is whether plaintiff is entitled to a divorce from the defendant under the provisions of Act 430 of 1938 where the separation, at its inception, was voluntary, but that approximately eleven months thereafter the defendant became insane, and plaintiff and defendant have lived continuously separate and apart from each other for a period of more than two years from the date of the separation.

Thjs court, in the case of Vincent v. LeDoux, 146 La. 144, 83 So. 439, in considering a similar statute, Act 269 of 1916, the period of living separate and apart being seven years instead of two years, and where the wife’s interdiction occurred three years after the separation, held that the statute did not require that the living separate and apart should be voluntary, or that any reason should be assigned therefor.

Thereafter this court in three cases— Artigues v. Lalandc, No. 26,752 of the docket, decided June 22, 1925, and not reported because, pending an application for rehearing, the plaintiff died; Leveque v. Borns, 174 La. 919, 142 So. 126, and Galiano v. Monteleone, 178 La. 567, 152 So. 126— held that there was no voluntary separation because the defendant in each case was insane at the time of the separation, and insanity was the cause of the separation.

In Artigues v. Lalande, supra, this court held that:

“By ‘living separate and apart’, the statute means a living separate and apart, under circumstances which show that the parties have separated, or that one of them has abandoned or left the other. The statute was not intended to authorize the granting of a divorce, in a case such as this, where the wife, because of her insanity, has been placed by the husband, although properly so, in an institution for the insane, and for that reason the husband has not been living under the same roof with her.”

In the same opinion, the court further stated:

“But plaintiff relies on the case of Vincent v. Le Doux, 146 La. 144, 83 So. 439, as supporting his position that the facts disclosed by the record, and stated above, entitle him to a divorce. In that case it appears that the husband and wife separated and that the wife later lost her mind and was interdicted. The issue there was, whether the period during which the wife was insane should be included in computing the seven-year period, and this court held that it should be. In that case there was a separation, and during the period of the separation the wife became insane, the separation continuing during the period of insanity, whereas in the present case there was no separation. The two cases are not parallel. The Vincent case may contain expressions which miliate against the views here expressed, but in so far as it does those expressions are beyond the issue, and are therefore merely obiter dicta.”

This court, in Leveque v. Borns, supra, affirmed the doctrine laid down in Artigues v. Lalande.

And in Galiano v. Monteleone, supra [178 La. 567, 152 So. 127], which was a suit for divorce based on the living separate and apart for a period of four years under Act 31 of 1932, which amended Act 269 of 1916, being identical in all of its provisions except that the period of living separate and apart was four years instead of seven years, held that:

“What the statute means is that, if there is a voluntary separation and living apart during the period prescribed, either spouse may obtain a divorce on that ground. But in case either is insane, there is no voluntary separation and living apart and no ground for divorce.”

It is true that it was stated in the last two cases, Leveque and Galiano, that the ruling in the Vincent case is unsound but, from a mere reading of the four cases here-inabove referred to, it will be immediately obvious that the facts in Vincent v. LeDoux were quite different from those in the last three cases, because in Vincent v. LeDoux, as in this case, the separation was voluntary at its inception and the insanity did not occur until some time after such voluntary separation. In the cases of Artigues v. Lalande, Leveque v. Borns and Galiano v. Monteleone, the insanity existed at the time of the separation and was the cause of the separation.

In this case the plaintiff voluntarily separated from the defendant when he was sane, with the intention of never returning to live with him.

As we interpret the statute, the separation intended by it is a separation which is voluntary at its inception and which puts at an end the marital association. It must be with the intention of at least one of the parties to live separate and apart, or because one of the parties, with or without the acquiescence of the other, intends to discontinue and sever the marital relationship. In essence, we hold that the separation must be voluntary at its inception and that, if one of the parties becomes insane ■after such voluntary separation, the insanity does not preclude, prevent or bar the granting of a divorce.

For the foregoing reasons, the judgment appealed from is set aside, the exceptions of no right or cause of action are overruled, and the case is remanded for further proceedings consistent with the views herein expressed. Defendant to pay cost of this appeal.

HAMITER and HAWTHORNE, JJ., dissent.

MOISE, J., recused.

O’NIELL, C. J., takes no part.