author: HARDY,- Judge. KENNON, Judge.

text:
    ANGLIN et al. v. NASIF.
    No. 7192.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1948.
    Rehearing Granted Sept. 15, 1948.
    On Rehearing Feb. 21, 1949.
    Further Rehearing Refused March 30, 1949.
    Chandler, Lunn & Trichel, of Shreveport, for appellant.
    Booth, Lockard & Jack, of Shreveport, for appellees.
   HARDY,- Judge.

This is a suit in which the three plaintiffs, tenants of the defendant landlord,, seek to recover statutory damages resulting from payment of rent in excess of the maximum fixed by the Office of Price-Administration for the character of accommodations furnished. After trial there was judgment in the District Court in favor of plaintiffs, assessing the damages at one and one-half times the overcharges, from which judgment defendant has appealed. Plaintiffs have answered the appeal, seeking the amendment of the damages to the extent of an allowance of thrice the amount of the overcharges, together with attorney’s fees, interest and costs.

The material facts are relatively simple, and practically undisputed, with the exception of one feature. On December 6, 1945, Misses Marjorie and Marie Anglin and Frances Monk, plaintiffs herein, rented living quarters from the defendant, Mrs. Corinne Nasif, located at Municipal No. 1022 Dalzell Street in the City of Shreveport. The accommodations included a kitchen, bedroom, living room and bath, which constituted what is referred to in the record before us as the “lower left-hand apartment”. The one disputed issue of fact which has substantial bearing on the determination of this, matter arises from the contention of .plaintiffs that they rented the accommodations described as an “apartment”, as opposed to the equally positive and emphatic claim on the part of defendant that she rented the accommodations described to the plaintiffs as “sleeping rooms”. It is of the utmost importance to note that ■ the descriptive terms “apartment” and “sleeping rooms” are subject to certain connotations which are accorded under the regulations of the Office of Price Administration.

Plaintiffs occupied the space described from about December 6, 1945, until on or about the 1st day -of December, 1946, or a period of one year.

In September of 1945 the defendant, who had been renting the lower left apartment at the given address on the basis of a monthly rental of $75, was informed that the ceiling rental for such apartment, as fixed by the Office of Price Administration, was $45 per month. It is evident from the record that defendant immediately busied herself in the effort to ascertain some means whereby she might obtain a higher rental, and on October 26, 1945, she addressed a letter to Mr. J. S.. P. Porter, Rent Director of the Office of Price Administration, advising him of her wish to convert the apartment into sleeping rooms. The practical purpose of this request was to comply with OPA regulations to such extent as would permit the defendant to rent the living room and bedroom of the erstwhile apartment as sleeping rooms at a rate of $30 per month each. In addition permission was requested to charge $5 per month for the privilege of the use of the kitchen for each tenant of the sleeping rooms.

Defendant received a reply from Mr. Porter in which he advised that the conr version contemplated was permissible, but requested that defendant call at the local office for the purpose of registering the rooms, which formality, again according to regulations, was required to be observed within a period of thirty days subsequent to rental of the rooms. As had been noted above, the defendant rented the accommodations on or about December 6, 1945, to these plaintiffs, and on January 4, 1946, which was within the thirty-day period fixed 'by the regulations, defendant filed registration statements with the Office of Price Administration at its office, in person, on forms furnished her by the employees of said administration.

On December 31, 1945, the Office of Price Administration, ,filed an injunction suit, under, which it sought to enjoin defendant from making charges in excess of rental regulations with respect to Municipal No. 649 Dalzell Street, Shreveport. A permanent injunction having been obtained in these proceedings^ a criminal contempt proceeding for violation of the injunction was brought against this defendant by the government on April 2, 1947, and the defendant was convicted of contempt. The judgment of conviction was reversed and set aside on appeal to the United States Circuit Court of Appeal for the Fifth Circuit, Nasif v. United States, 165 F.2d 119.

The present action for damages by these plaintiffs, which appears to have been inspired by the suggestion of one of the agents of the Office of Price Administration, was filed March 6, 1947. The burden of plaintiffs’ complaint is that they paid rental for the accommodations furnished at the rate of $75 per month for a period of one year, that is, from December, 1945, to December, 1946, which payment was $30 a month in excess of the $45 fixed as the maximum rental for the “apartment” by the Office of Price Administration. For the eight-month period on which plaintiffs-would be permitted to recover, in view of the one year period of prescription, plaintiffs seek the recovery of damages in the sum of $720, aggregating thrice the amount of the overcharge, together with attorney’s fees of $150.

The record before us is made up of stipulation of counsel, certain exhibits, specifically the letter addressed to the Rent Director by this defendant, his reply, and copies of the registration forms filed in the Office of Price Administration by defendant, and th‘e transcript of testimony in the contempt hearing before the Honorable Ben C. Dawkins, Judge of the United States District Court, Western District of Louisiana.

It is urged by zealous counsel for defendant in support of this appeal that it is necessary to determine as a fact of violation of existing regulations of the Office of Price Administration by this defendant in order to establish a basis for recovery of judgment in favor of these plaintiffs. We are entirely and completely in agreement with this proposition.

Careful examination of the record before us fails to disclose any facts which would support a finding that this defendant has violated regulations of the Office of Price Administration. It is obvious from the record and it is, in effect, conceded on behalf of defendant that she was motivated in her negotiations and dealings with these plaintiffs by the desire to charge and collect the maximum amount permissible under OPA regulations for the rental of her property. If in her pursuit of this purpose defendant violated the laws or regulations of the administrative bureau involved, then clearly she is liable for damages as fixed by such law and regulations. But we are unable to point out any facts which would justify a conclusion that defendant has been guilty of such infraction.

Learned counsel for plaintiffs strenuously urges that plaintiffs rented the accommodations as an “apartment” and that the rental charged was $30 per month in excess of ceiling prices for such accommodations when classed by the OPA as an “apartment”. The testimony of Misses Marjorie Anglin and Frances Monk is stressed with reference to this point. Without detracting one whit from the credibility of the young ladies in question, we are impressed with the fact that the testimony of the defendant is equally as positive, and, in the light of surrounding circumstances, more persuasive. It is inconceivable to our minds that this defendant, called to account for what was apparently a-t that time an unintentional violation of price ceilings on the basis of an “apartment”, would take the trouble to determine the means and methods of procuring a reclassification of the accommodations as “sleeping rooms” and then rent them to these plaintiffs as an “apartment”. The effect of this consideration is strengthened by the further fact that the defendant registered the accommodations as sleeping rooms a little less than thirty days later, which registration was made in person on forms furnished by employees in the local Office of Price Administration in Shreveport.

In support of the claim that defendant misrepresented an alleged conversion of the apartment into sleeping rooms, counsel for plaintiffs urge, as did the government in the contempt proceeding, that the defendant made no changes in the appearance of the rooms nor in the fixtures and furnishings thereof. While this argument may possibly be persuasive as bearing upon the good faith and sincerity of the defendant, we do not find that it has any effect upon a determination of this matter, inasmuch as neither the government nor the witnesses for the government in the contempt proceeding, nor the plaintiffs in this cause, have pointed out any requirement of law or of the regulations of the Office of Price Administration which necessitated the actual accomplishment of .physical changes as a condition precedent to a reclassification of the accommodations.

We refer particularly to a question and answer which were read by the Rent Attorney of the Office of Price Administration, a witness for the government in the contempt proceeding, from a pamphlet designated “Questions and Answers on Federal Rent Control”, as follows:

“A. (reading) ‘Question: I want to rent out all the rooms in my apartment as sleeping rooms only. Can I do this?
“A. Generally, if your apartment is vacant, you may rent out rooms for sleeping purposes only. However, you must register under the Hotel and Rooming-house Regulation, and you are subject to its provisions if you rent to more than two paying tenants.’ ”

Further reference to the testimony on the trial of the contempt proceeding reveals the following testimony, on direct examination, by the Rent Director himself:

“Q. In other words, in this case, Mrs. >Nasif could rent the lower left apartment for Forty-five ($45.00) Dollars as an apartment, and she could also, if she chose, o. found tenants who wanted rooms, she coula rent the two rooms for Thirty ($30.00) Dollars apiece under the two separate registrations and she could do it under either one?
“A. This is correct.”

There appears to be no room for doubt, in. view of the above quoted observations, that this defendant had the right, by the simple act of registration, to convert her apartment into sleeping rooms at a permissibly higher rental ceiling and that she had the further right, subsequent to registration, to rent the accommodations to tenants under either classification. To conclude that a landlord would go to all of this trouble and effort to comply with regulations which would permit the receipt of an advanced rental, only to forego such an advantage on the occasion of the first opportunity to profit therefrom, would be, in our opinion, a reductio ad absurdum.

Acknowledging with the greatest respect the force of the statement of Judge Dawkins at the conclusion of the trial of the contempt proceedings, which statement is set forth in the record, and which is reiterated in brief of plaintiffs’ earnest counsel, we are unable to agree with the conclusion reached by the eminent jurist. We concede the obvious correctness of his assertion that he was impressed with the fact that this defendant was “doing her best to get around the law”. But, to our minds, the question before us does not concern the defendant’s motives nor the proposition of good faith, vel non, on her part, but simply and solely a determination as to whether she has been guilty of a violation of the regulations controlling. We are firm in the belief that plaintiffs have failed to show any violation which would entitle them to the statutory penalty.

For the reasons assigned, the judgment appealed from is reversed and set aside, and there is now judgment in favor of defendant rejecting plaintiffs’ demands at their cost.

On Rehearing.

KENNON, Judge.

This is a suit for the return of triple the overcharges in rent, allegedly collected by defendant above the ceiling fixed by OPA regulations, and for attorney’s fees. Our original opinion reversed a judgment of the District Court in plaintiffs’ favor. See opinion of this Court rendered June 28, 1948.

Prior to October, 1946, defendant was lessor of an apartment consisting of a kitchen, bedroom, living room and bath at $75 per month. After an OPA ceiling of $45 was put on this apartment, defendant, when the occupying tenant left the city, rented the premises to the three young ladies who are plaintiffs in the case before us. Plaintiffs’ contention is that the three of them rented the apartment at a price of $75 per month. Defendant’s contention is that she ceased, after October 1, 1946, to rent the apartment as a unit and that she rented the living room to one of the plaintiffs and the bedroom to another— each as a separate sleeping room.

The District Court decided that excessive rentals amounting to $2-10 had been collected and gave judgment for one and a half times this amount, together with interest and costs.

The evidence is extremely conflicting. The record shows that the defendant, after a $45 ceiling had been placed on the apartment, registered the bedroom and living room as sleeping rooms (with the Shreveport OPA) at a rate of $30 each and her testimony is that the $75 paid by plaintiffs consisted of $30 rental on each of the two sleeping rooms with an additional $15 paid for kitchen privileges at the rate of $5 per person. The plaintiffs testified that they rented the premises as an apartment; that the three of them paid $25 each; that often all three slept in the bedroom and that on occasions, one or the other did use the living room couch, which could be converted into a bed by unfolding and the use of a pad. The defendant — although she registered the living room and bedroom as being rented one room each to two of the plaintiffs — testified that she knew that all three of the plaintiffs were her tenants and that each made use of both rooms and that the' plaintiffs took turns in using the less comfortable living room sleeping facilities.

The apartment had but two entrances, both of these through the kitchen and its physical set-up is that of an apartment, and while defendant may have made a strenuous effort to evade the regulations setting a ceiling of $45 on the apartment by registering the two rooms as separate sleeping rooms, the fact remains that she made no physical changes and she in fact rented the premises to the three plaintiffs and accepted the $75 payments, knowing that the three people, each and all used the premises as an apartment unit.

There is evidence in the record that immediately after plaintiffs vacated, defendant rented the premises to a man and wife at a rental of $75 a month. Even granting that it was within the letter of the regulations for her to rent the living room and bedroom as separate rooms to the man and his wife at $30 each with $5 a month charged to each for kitchen privileges, the total allowed would be only $70 and this charging of the $75 rental to two people takes weight from defendant’s testimony that she rented the premises as separate sleeping rooms.

Section 91 of the Federal regulations for housing provides: “The maximum rent, and other requirements provided in this regulation shall not be evaded, either directly or indirectly, in connection with the renting or leasing, or the transfer of a lease of housing accommodations by way of absolute or conditional sale, sale with purchase money or any other form of mortgage, or sale with option to purchase, or by modification of the practices relating to the payment or commission of other charges, or by modification of the service furnished with housing accommodations, or by particular agreement, or otherwise.”

Granting, for the sake of argument, that defendant told plaintiffs at the time she rented the apartment that she was renting the living room and bedroom separately as sleeping rooms at the rate of $30 per month each and that the remaining $5 was for kitchen privileges at the rate of $5 per month, and, even granting the mutual consent of lessor and lessee, the fact remains that the whole arrangement was obviously an evasion, either directly or indirectly, of the maximum rental ceiling of $45 placed on the apartment by the regional director, and the collection of rentals above the ceiling was in violation of Section 91 above quoted.

After reconsideration, and in the light of Section 91 above quoted, we have concluded that even though defendant made considerable progress toward meeting the letter of the law, there is ample evidence in the record to sustain the finding of the District Court that she in fact rented the premises as an apartment and did collect a rental in excess of the ceiling fixed.

The statute permits recovery by the tenant of an amount to be fixed by the Court, up to three times the excess paid. The District Court gave judgment for one and a half times the overcharge, and denied plaintiffs’ claim for the statutory attorney’s fees. Plaintiffs have asked that the judgment be amended by increasing this amount to triple the excess paid and for an award of $150 in attorney’s fees.

We have concluded to- amend the judgment by limiting plaintiffs’ recovery to the $240 overpayment and to allow $100 for attorney’s fees.

The judgment appealed from is now amended by reducing the award to plaintiffs to $240 and to allow $100 additional to plaintiffs as attorney’s fees, and as amended, same is affirmed. Costs of appeal to be paid by plaintiffs, other costs to be paid by defendant.

HARDY, J. dissents, adhering to the conclusions reached on original hearing hereof.


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    MAPLE v. AMERICAN SUGAR REFINING CO.
    No. 19045.
    Court of Appeal of Louisiana. Orleans.
    March 28, 1949.
    Wagner & Jarreau, of New Orleans, for plaintiff-appellant-appéllee.
    Chaffe, McCall, Bruns, Toler & Phillips, of New Orleans, for defendant-appellee-áppéllant.
   JANVIER, Judge.

On June 5, 1947, plaintiff, Percy Maple, Jr., sustained injuries arising out of and occurring during the course of his employment with defendant, American Sugar Refining Company.

Claiming that as a result he was totally and permanently disabled, Maple brought this suit against the said corporation, praying for judgment for $20 per week for four hundred weeks and for $500 as medical expenses.

Defendant admitted the employment of plaintiff and that on the day in question he had been engaged in unloading sacks of sugar from a boxcar, but it denied that the duties of plaintiff were such as entitled him to the protection of the Workmen’s Compensation Act, Act No. 20 of 1914, as amended, and while it did not admit the occurrence of an accident on the day alleged or at any other time, it did admit that plaintiff was examined by defendant’s physicians and that he received treatment. It averred that until June 19, 1947, these treatments continued, and that although its doctors did not discharge plaintiff, further treatments were made' impossible because of his failure to report to the said doctors. Defendant admitted that the business of refining sugar “is included in the list of hazardous ■ businesses” contained in the Workmen’s Compensation Act, but it “specifically denied that plaintiff’s duties were in any way hazardous or even connected with the hazardous part of defendant’s operations.”

Defendant also denied the rate of pay alleged by plaintiff and averred that on the day in question he was employed at a rate which would produce $28.60' for a normal work week, and defendant further denied that plaintiff had “spent any sum whatever for medical treatment.”

Defendant, after averring that plaintiff’s employment was not hazardous and therefore not contemplated by the provisions of the Workmen’s Compensation Act, in the alternative averred that if it should be held that his employment was within the coverage of the statute, that prematurity constituted an absolute bar to the suit. Also in the alternative defendant pleaded that if the claim was not barred as being premature and if the employment of plaintiff is such as is within the contemplation of the compensation act, then “that plaintiff is not wholly or partially, permanently or temporarily, disabled from performing his usual occupation or similar occupations.” .

There was judgment in favor of plaintiff for $20 per week for fifty weeks with legal interest from the day on which each installment became due and for $200 which was fixed as the expert fees of two medical experts. Both plaintiff and defendant have appealed.

The contention that plaintiff was not brought into contact with any of the hazardous functions of defendant’s business and that, therefore, he was not entitled to' the protection afforded by the compensation statute was not urged before us.

The real defense whs and is that the injuries sustained were not serious and that plaintiff is not disabled and that he is a malingerer.

When the case was about to be argued before us, counsel for defendant filed in this Court a motion to remand the case to afford an opportunity to introduce additional evidence not available at the time of trial below, which counsel say would show that shortly after the completion of the trial below it was discovered that plaintiff was doing laborious work which he could not possibly have done if his condition had been such as was contended for by him. Attached to this motion are affidavits and photographs. The motion to remand is opposed by counsel for plaintiff.

Inasmuch as the court below reached the conclusion that plaintiff is not totally and permanently disabled, we think it best, before considering the motion to remand, to determine whether or not any useful purpose would be served by remanding the matter, even if we should conclude that defendant would be entitled to offer the additional evidence if it were necessary to sustain its defense. In other words, if, after a complete study of the record, we conclude that at the time of the trial below plaintiff was not disabled, then we do not see that any useful purpose would be served by remanding the matter for what would then appear to us to be merely cumulative evidence. We, therefore, shall discuss the record as it is now made up.

The only question presented is a medical one, and after a reading of the record we can well understand the uncertainty of the district judge who, in his reasons for judgment, said that, at the conclusion of the taking of the testimony, he had been uncertain as to whether the plaintiff had sustained the injury for which he complained ■and that he had, therefore, caused the testimony to be transcribed so that he might read it carefully and that after reading it, he was “still in doubt as to whether plaintiff sustained permanent injuries * *

After reading the record we also are in doubt, and we cannot refrain from commenting on the confusion which so often is created in the judicial mind when medical experts, some on one side and some on the other, render opinions which cannot, to any extent at all, be reconciled.

The sole question presented here is whether or not the plaintiff, as the result of being struck on the back by a falling sack of sugar, sustained a rupture of an inter-vertebral disc. We find as witnesses outstanding medical experts, some of whom are positive that the plaintiff is so afflicted, and others of whom are equally certain that he sustained no such injury and that he is a fraud and a malingerer.

On behalf of the plaintiff Dr. J. A. Col-clough, a specialist in neurosurgery, says: “ * * * My findings, my clinical diagnosis was that of a ruptured intervertebral disc.”

Asked as to whether he thought that Maple was a malingerer, Dr. Colclough said: “I found this man cooperative in the extreme; I found nothing to make me suspect or think rather that he was exaggerating or malingering. I had occasion to watch this man when he did not know I was looking at him before he even came to my office or knew who I was, and I would frequently see him rub and press on the side of his thigh, so I had no reason to suspect this man or think he was telling me other than the truth.”

A little later he said: “ * * * I felt he was totally disabled by this condition and suffering a great deal.”

Dr. E. H. Maurer,'a specialist in orthopedics, when asked for his conclusion as to plaintiff’s condition, said: “Present diagnosis ruptured intervertebral disc, fifth disc.”

When asked whether this condition was disabling, he answered: “Totally disabling.”

On the other hand, Dr. H. Theodore Simon, gave very interesting testimony about his examination of plaintiff. He is an orthopedic surgeon and he says that he made a thorough examination. He stated that he testified from an orthopedic standpoint and that on that basis “he had no disability.”

Dr. Felix Planche and Dr. A. V. Filizola both stated that they did not discharge plaintiff as being able to return to work, but that he had merely failed to return for further treatment. And as to whether the accident had caused total permanent disability, both were firmly of the opinion that he had sustained no such injury and that he was and is purely a malingerer. In fact, Dr. Planche went so far as to say that after reading the reports made by the other doctors, even those who had been produced on behalf of plaintiff, he, Dr. Planche, had concluded from those other reports, and independently of his own examination, that plaintiff was not disabled.

Dr. Howard H. Karr, a specialist in neurosurgery, found no evidence, either clinical or radiographic, of ruptured inter-vertebral disc. He said: “ * * * I consider the man to be physically qualified at the time I saw him for the performance of work.”

He explained in detail the various tests to which he had subjected plaintiff in an effort to determine whether he was malingering and he says that as a' result of these tests he was certain that plaintiff was shamming and that when asked to do certain things: “ * * * the patient deliberately and wilfully refused to carry out the maneuvers, stating he did not have the strength to carry out the movements, this contrary to the fact he could bear the full weight on one leg and then the other.”

Dr. Karr said he found Maple’s general condition “excellent”, which he says would have been impossible if he had undergone the pain and suffering which he said resulted from his. injury. The doctor concluded with the statement that he had exhausted every diagnostic possibility and had found nothing wrong.

In addition to the testimony of the doctors who were produced as witnesses, we find in the record the reports of the late Dr. Gilbert C. Anderson and of Dr. G. C. Battalora, both unquestionably experts. Neither testified and counsel for defendant complain that their reports should not have been admitted in evidence in view of the fact that neither was produced as a witness. The record shows that when these reports were produced, trial counsel for defendant complained that the doctors should be produced, and while he did not expressly object to the introduction of these reports, it is obvious that his failure to do so resulted from the fact that counsel for plaintiff immediately stated that those doctors would be produced. These reports indicate that those doctors, from the information which they had, were of the opinion that plaintiff had sustained the injury from which he contends he is now suffering. But even if these reports were properly admitted — and it is obvious that they were considered by the district judge' — we agree with the district judge that the evidence falls short of showing with any certainty whatsoever that plaintiff is actually suffering from a ruptured intervertebral disc, or that he was so suffering at the time of the trial below. The best that can be said is that some of the doctors think he is so suffering and many others think that he is not.

. When, we come to consider the rate of pay at which Maple was employed at the time of the accident, we find that the record shows beyond any question that he was receiving 73}/^ per hour; that the normal week-day was eight hours and the normal work week was forty hours. Thus the compensation to which he was entitled during each week of disability was 65% of $29.40, or $19.11. Franklin v. J. P. Floria & Co., La.App., 158 So. 591; Rylander v. T. Smith & Son, 177 La. 716, 149 So. 434, affirming La.App., 145 So. 64; Chatman v. Compania De Navegacao, 19 La.App. 616, 140 So. 141; Barr v. United States Gas Public Service Co., 183 La. 873, 165 So. 129; Dawson v. Barber Bros. Contracting Co., Inc., La.App., 195 So. 46; Brown v. Furr, La.App., 19 So.2d 283; Walls v. Solvay Process Co., La.App., 21 So.2d 109.

We are convinced that plaintiff has failed to show that at the time the' judgment was rendered below, he had not recovered and could not have returned to work. Just when this recovery was completed we are unable to say, but we feel that at that time he certainly was no longer disabled. Under these circumstances we think that he would be entitled to compensation from the time of the accident, June 5, 1947, until June 7, 1948, with the deduction, however, of those weeks for which he was paid compensation. So far as we can tell from the record he was paid compensation until September 7, 1947. He would, therefore, be entitled to compensation of $19.11 per week from September 7, 1947, until June 7, 1948.

The record shows that on two occasions when defendant sent to plaintiff checks in payment of compensation he failed or refused to execute the receipts which' defendant required ,and that, therefore, after that the defendant required that he call for his compensation checks, which he failed or refused to do. Under the circumstances, defendant was within its rights in demanding that he call for the checks. As a matter of fact paragraph 7, section 8 of the statute, Act.No. 120 of 1944, p. 340, provides that payment “shall be paid as near as may be, at the times and places as wages were capable to the injured employee before the accident * * And while we have no evidence on the subject we think it fair to assume that the wages were paid at the place of employment. It follows that since these compensation payments were available to plaintiff had he called for them, no interest is due on any of them.

We do not think that the fact that defendant has set up on its books a tentative credit consisting of the compensation payments to which plaintiff would have been entitled had he been successful in this litigation, can be used to create against defendant an estoppel to contend that those payments are not due. Those credits were merely set up on the books as a precaution in the event of an adverse judgment.

Our conclusion is that the judgment should be amended by the reduction of the amount of the weekly payments of compensation to $19.11 each and by the reduction of the time for which they are due to that period between September 7, 1947 and June 7, 1948.

The judgment appealed from is amended to the extent that the weekly payments of compensation are reduced to $19.11 each, without interest, for each week from September 7, 1947 to June 7, 1948. In all other respects the judgment is affirmed.

Amended and affirmed.


author: -JANVIER, Judge.

text:
    ASEVEDO v. FIRST NAT. LIFE INS. CO., Inc.
    No. 19133.
    Court of Appeal of Louisiana. Orleans.
    March 28, 1949.
    Rehearing Denied May 9, 1949.
    See 40 So.2d 408.
    John R. Perez, Sr., of New Orleans, for plaintiff and appellee.
    Normann & Jones and Russell J. Scho-nekas, all of New Orleans, for defendant and appellant.
   -JANVIER, Judge.

On May 20, 1946, Phillip Asevedo secured from First National Life Insurance Company a policy of 'life insurance commonly known as a “Travel” or “Pedestrian” policy. Under it defendant insurance company agreed that it would pay to the named beneficiary, Annie Asevedo, the wife of the insured,- '$1,000 should the insured meet death under. certain conditions which are specifically set forth in the policy as follows:

“If the insured shall by being .struck by actually coming in physical contact with the vehicle itself and not by coming in contact with some object loaded on or attached, thereto, -or some object struck and propelled against the person by said vehicle, which is being propelled by steam, cable, electricity, naphtha, gasoline, horse, compressed air or liquid power, while the insured is walking or standing on a public highway, * * *.”

In the policy it is provided that the term “Public Plighway,” “as used in this policy shall mean the traveled and improved portion of the Highway, and shall not be construed to include any portion of railroad or interurban railway yards, station ground or right of way, except where crossed by a public thoroughfare dedicated to and used by the public for automobile or horse vehicle traffic, and shall not include any river, stream, or waterway, or Public Highway, which although dedicated to the public has not in fact been opened to and is being used by the public generally for vehicular traffic;”

The policy contains certain other stipulations concerning other payments in other contingencies, but we are not concerned with any of them.

On June 30, 1947, at about 9:30 or 10 o’clock at night, in the settlement known as Violet, Louisiana, the insured was struck by an automobile and he died a short time later as the result of the injuries so sustained. His widow, the designated beneficiary, brought this suit in the Twenty-fifth Judicial District Court for the Parish of St. Bernard claiming the face amount of the policy, to-wit $1,000, and alleging that the accident had occurred while her husband, the insured, was “standing or walking on State of Louisiana Highway-No. 1 * * * ”

The defendant admitted the issuance of the policy and that it was in full force at the time of the alleged occurrence, but it denied all of the allegations to the effect that the insured had been struck while standing or walking on the highway.

There was judgment below in favor of plaintiff for the full amount of the policy, and defendant has appealed.

That there was such an accident is not actually in dispute and that Asevedo died as a result is conclusively shown, and the only dispute arises over the question whether, when Asevedo was struck, he was “on a public highway” within the contemplation of the policy provision.

'Counsel for defendant seem to assume that the condition of the policy, which requires that the insured be on a public highway in order that there be recovery, should -be so narrowly construed that recovery should be denied, unless it appears from the evidence that the insured was actually on the concrete portion of the highway and not on the shoulder or any other part thereof however near to the concrete portion he may have been.

Counsel for plaintiff while not conceding that the policy condition requires that the insured should be on the paved or concrete portion itself, nevertheless directs his efforts at an attempt to show that Asevedo actually was on the concrete strip when he was struck.

There can be no doubt at all that the witnesses produced by the plaintiff, and in fact some produced on behalf of defendant, were most anxious to make certain that plaintiff should recover, and their efforts to bring about this result were so obvious that it is extremely doubtful whether any of them were telling the actual truth concerning the location of the spot at which Asevedo was struck.

At the scene of the accident the main highway consists of a concrete slab about 18 feet in width which crosses the highway bridge over the Violet or Borgnemouth Canal. On the upper side of this bridge and alongside the concrete there is a widening which is paved with clam shells and a side lane comes into the highway at a right angle. This shelled surface extends for some 15 or 20 feet from the concrete, and at a point probably 100 feet or more from the bridge there is a grass plot which parallels the slab. This grass plot at its nearest point seems to be 8 or 10 feet from the concrete.

It appears from the record that Asevedo and some twelve or fifteen, or possibly eighteen, other persons were attempting to push an automobile truck from this side road, or from this shelled portion, to the concrete slab of the highway. The battery of this truck was “dead” and these persons were back of it and on the sides and were pushing it in an up-river direction. They had reached, or were about to reach, the concrete part of the main highway just as an automobile, driven by Wilson Gutierrez, approached from the rear of the truck which was being pushed, and as Wilson Gutierrez crossed the bridge he suddenly noticed in front of him this crowd of people who were pushing that truck. He says that he realized that he could not stop and he therefore, violently swerved his car to the right in an effort to avoid the accident, but that he could not avoid all -of the people and that he struck Asevedo, who apparently was the last person on the righthand side of the group which was pushing the stalled truck.

When Wilson Gutierrez was asked: “Where was Mr. Asevedo at the time?” he answered: “Just off the highway.” Counsel then asked: "On or off?” And he repeated “Off the highway when I hit him.” Later he seemed to realize that he had given evidence which might be detrimental to plaintiff’s case and when shown certain photographs, in an effort to make certain that his testimony would indicate that Ase-vedo was on the concrete, he marked a spot on the photograph as the point where Asevedo was standing and he said that he was certain that he had been on the concrete because after the accident, “his hand was on the highway.”

Lionel Gutierrez, brother of Wilson, was in the car with Wilson. He said that Wilson “swerved off the road * * *” and “happened to hit a poor unfortunate with the righthand fender * * He too realized that this testimony might damage plaintiff’s case and then said that it was the lefthand fender which had struck Ase-vedo, and that “this poor man was standing about two or one and one-half feet on the pavement when we struck him * * He too insisted that after the accident Asevedo “was laying with his hand and a part of his shoulder on the highway. * *

The most obvious efforts to color the facts-so as to assist the plaintiff were those made by four young boys, who apparently had formed part of the group pushing the truck on the highway. These four boys were Eugene Perez, Jerry Rodriguez, Cola Long and Glenn Nunez.

The record shows that an investigator for the defendant insurance company went into St. Bernard Parish shortly after the accident and talked to the various witnesses, including these four boys. And it shows that these boys were apparently interviewed at the same time and that this investigator, J. W. Cleary, made notes as to what they had said. Many months later, when it became apparent that the case could not be amicably adjusted, Cleary wrote up statements for these boys to sign, and all of these statements he wrote in identically the same words. When one of the attorneys for the defendant company was preparing the case for trial, he himself went into the Parish of St. Bernard to talk to the witnesses before putting them on the witness stand, and he talked to three of these boys. On the day of the trial, when these boys were placed on the stand by the defendant, instead of giving evidence which would support the contention of the defendant that Asevedo had not been on the concrete when he was struck, each one made the statement that he was certain that Asevedo had been on the concrete and that after the accident his body was lying so that his hand or his arm extended over the concrete. The attorney who had talked to three of the boys, took the stand and testified that each one of the boys had corroborated the written statement which he had signed and in which each had said that when Asevedo was struck, he was not on the highway. Each of the three boys who had been interviewed by counsel admitted thát the attorney had talked to him, but each made some remarkably improbable statement about his reason for signing the written statement. One said that though he was a grammar school student, he could barely read and, therefore, had not read and did not know what was in the written statement, and yet when the statement was handed to him, the record shows that he read it with little or no difficulty. Another one of these boys said that he had signed the statement, but that he did not read it because he had thought that it was a beer permit which was being issued to the beer parlor in which he was when he was being interviewed. The third of these boys was asked by the attorney if he had not taken him in his car to the scene of the accident so that he might point out the spot at which Asevedo was standing when struck, and this witness admitted that this attorney had talked to him and that he had taken him into his automobile, but he denied that he had been taken to the scene and said that the attorney merely wanted to take him for a ride. The father of one of the boys had signed as a witness to each of the signatures.

We are thoroughly convinced from the testimony of these four boys that their stories are entirely unworthy of belief.

But our conclusion from a reading of the entire record is that at the time Asevedo was struck, while he was not on the concrete portion of the highway, he was only a few feet away from it and was on the gravel portion either of the shoulder or of that extension of the shoulder which was used by vehicles in going to and fro between the highway, the side road, a garage nearby, and a beer parlor a little further along.

It is shown that the State Department of Highways maintains not only the concrete part of the highway, but a strip ten feet wide which is maintained as a shoulder on that side of the road on which Asevedo was when he was struck.

And it is our belief that the policy should not be so narrowly interpreted as to afford coverage only where the person struck is on the concrete portion 'of such a highway.

We are impressed with the fact that if defendant’s contention is to be accepted, then under such circumstances there can be recovery under such a policy only if the insured is doing the very thing which defendant would not want done. In other words, the insured must be walking or standing not on the shoulder, but on the concrete portion itself. In many states it is illegal to walk on the paved portion of such a highway if a shoulder is available, and in all states it is dangerous to do so. Therefore, if we interpret this policy condition as defendant would interpret it, we would require that in order that there be coverage, the insured must be either violating the law in certain states or must be following the very dangerous practice of walking on the paved portion instead of on the shoulder.

We do not feel that it is necessary to hold that any part of such an adjoining shelled portion of a shoulder or any part of any adjoining parking space should always be considered as a part of the highway for the purpose of determining whether such a policy has application, but we do hold that, under the facts shown here, the particular point at which Asevedo was when he was struck should be considered as a part of the highway, since he obviously was very close to the concrete portion and was either on that part of the shoulder which was maintained by the State Highway Department, or was within a few feet of that shoulder and on an indistinguishable part of the shelled portion adjacent thereto.

Neither counsel for defendant nor counsel for plaintiff have cited any authorities which we deem applicable, but in Galloway v. Wyatt Metal & Boiler Works, 189 La. 837, 181 So. 187, 189, our Supreme Court discussed the meaning of the term “public highway” as used in Act 86 of 1928, as amended by Act 184 of 1932, which statute as amended provides for civil process against nonresidents in cases arising out of the operation by nonresidents of motor vehicles on public highways. There the accident which was involved “occurred on a sandy road which has been in public use for many years.” The Supreme Court, in discussing the term “public highway,” said the following:

“We think that the term ‘public highways’ as employed in the body of Act No. 86 of 1928, as amended, is broad enough in its ordinary acceptation to include every way for travel by persons on foot or with vehicles which the public has the right to use either conditionally or unconditionally. The term is employed in the statute as synonymous with the term ‘public roads.’ The very nature of a highway presupposes that it is open to the public, i. e., a ‘highway’ is a ‘public road.’ Therefore, the term ‘public highway’ is a tautological expression meaning simply ‘public road.’ 29 C.J. 367.
“The general law relative to the nature and use of highways is stated in Corpus Juris, vol. 29, at page 366, as follows, viz:
“ ‘Highways are public ways as contra-distinguished from private ways. The distinguishing mark of a highway is that it must be opened generally to public use, as expressed in the English books, “common to all the king’s subjects,” although it is the right to travel upon a highway by all the world and not the exercise of the right which makes the highway. Its character is not determined by the number of persons who actually use it for a passage; if it is open, it is immaterial that but few individuals are in a position to make use of it, or that one person is most benefited by it; and its character as a highway is not affected even by the fact that it furnishes access or egress to but a single property owner. The term “public highway” is a tautological expression, since a highway is a passage, road or street, which every citizen has a right to use, and is therefore, necessarily public. * * ”

Under our Civil Code, article 70S, a road becomes a public road if it is made use of as a highway, although it is provided and kept in condition by the owners of adjacent properties. Therefore, even though the accident may have occurred in that graveled area which was adjacent to that part of the highway which was maintained by the Department of Highways, it, nevertheless, was a spot which, under Article 70S of our Code, would be designated as a public road.

As we have said, our view is that at the time Asevedo was struck he was in a spot which, in the contemplation of the policy, was on a public highway. .

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.


author: HARDY, Judge

text:
    BRANTLEY v. CLARKSON et al.
    No. 7279.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    Rehearing Denied Jan. 6, 1949.
    Certiorari Granted Feb. 14, 1949.
    Cotton & Bolton, of Rayville, for - appellants. ' :
    Warren Hunt and John C. Morris, Jr., •both of Rayville, for appellee. . -
   HARDY, Judge

This is a suit for damages arising from an automobile accident on Highway 80 about 6:00 p. m. on July 25, 1947. After trial there was judgment in -favor of plaintiff and against the defendants, Mrs. Mary L. Clarkson and her husband, William Clarkson, in the sum of $925, representing the amount of damages sustained to plaintiff’s automobile, no question of personal injuries being here involved. From this judgment defendants have appealed.

There are two issues presented by this appeal, first, as to the negligence, vel non, of the defendant, Mrs. Clarkson, and, second, -in the event of a finding of negligence, the liability of the husband, William Clarkson.

• The facts show that, at or about the time set forth, the defendant, Mrs. Clarkson, was driving the family automobile in an easterly direction along the highway while plaintiff, driving his automobile and proceeding in the same direction, was following the Clark-son car. Mrs. Clarkson was returning to her home from an errand which-had taken her to the home of a neighbor some 1% or 2 miles distant. According to Mrs. Clarkson’s testimony she had made the trip to the home of her friend and neighbor, Mrs. Cunningham, for the purpose of borrowing a circular knitting needle which she intended to use in knitting a sweater for herself. However, finding that Mrs. Cunningham was not at home, she began her return journey, and at a point opposite the Clarkson home, which is located some considerable distance from the highway and approached by a roadway which is described as a lane, she negotiated a left-hand turn across the highway and into the lane leading to the house. Mrs. Clarkson testified that she was driving at a very slow rate of speed; that she looked into her rear view mirror when she was within about 15 feet of the point opposite the lane where she made her turn and perceived plaintiff’s approaching automobile at a point some 350 feet to the rear, whereupon she signaled for the turn, successfully negotiated the same and had proceeded some 40 or 50 feet up the lane when her attention was attracted by the noise of plaintiff’s automobile as it turned over in the highway.

Plaintiff testified that he was driving at a speed of some 55 miles per hour; was rapidly overtaking the Clarkson car and signaled three times, by blowing his horn, his intention to pass; that he had actually begun to cross the black line to the left for the purpose of carrying out the passing maneuver when Mrs. Clarkson, without signaling, turned directly across the highway immediately in front of him, thus blocking his passage; that in order to avoid a collision he swerved to the right on to the shoulder of the road, .then pulled his car back to the left, lost control, and, as a result, the vehicle turned over in the highway, damaging his automobile to the extent of rendering it practically worthless.

Plaintiff’s version of the accident is substantiated as to most of the material points by a witness, Purvis, a friend of plaintiff’s, who was following plaintiff’s car at a distance of some 250 feet, more or less, at the time of the accident.

Summing up the conflicts in testimony, we find that, while plaintiff testified as to the sounding of his horn, the signal was not heard either by Mrs. Clarkson or Purvis, and while the defendant, Mrs. Clarkson, testified as tO' the giving of the signal for a turn, the same was not observed either by plaintiff or Purvis.

Careful consideration of the facts •leads us to the conclusion that the negligence of the defendant, Mrs. Clarkson, was the proximate cause of the accident. It is well established by the jurisprudence of this State that it is the duty of the driver of a vehicle to -carefully observe following traffic before making a turn, and a left-hand turn has frequently been described as one of the most dangerous maneuvers in driving.

We are of the opinion that Mrs. Clark-son was negligent in waiting until she was, according 'to her own testimony, only 15 feet from the point of beginning of the negotiation of her turn before observing the position and rate of speed of following vehicles, and, certainly, she was negligent, having observed the approach of plaintiff’s car in her rear view mirror, in attempting to give a signal and almost immediately enter upon the making of a turn completely across the highway. Considering the relative speeds of the-two vehicles at the time, it should have been obvious that the turn could not be made in safety.

The 'fact that Mrs. Clarkson made the turn and actually cleared the highway is immaterial under the circumstances, considering that only the excellent judgment, immediate reaction and expert operation of his automobile by plaintiff prevented a ■collision which unquestionably would have had tragic results.

Our conception of these facts being in complete accord with what must have been ■the finding of fact of the trial judge disposes of any question of error in such findings on his part.

While we think the law supporting the . general principles which have been above set forth is so well established as to make citations of authority unnecessary, we do wish to comment on one case cited and strenuously urged by distinguished counsel for defendants, Chandler v. Sentell, La.App., 35 So.2d 260. Counsel quite obviously misconstrued the facts of the cited case which were entirely at variance from those of the case at hand. The Chandler case did not involve the collision of a following car with a vehicle making a left ■turn, but, on the contrary, the car which crashed into the turning vehicle was approaching from the opposite direction. Other facts in the cited case were equally at variance with the facts in this case to such extent as to render the findings completely inappropriate and inapplicable.

The second issue which we stated above presents a matter much more difficult of determination. Reducing the question to the simplest possible essentials, we are called upon to decide if the mission of a wife in a community automobile, for the avowed purpose of borrowing a circular knitting needle in order to knit a sweater for her personal use and enjoyment, in effect constitutes a mission of such a community nature as would make the husband liable for the tort of the wife in the process of its accomplishment.

It must be borne in mind in connection with the determination of this point that, as a matter of fact, -the knitting needle was •not procured and the use to which it would have been put if it had been procured remains in the distant realm of hypothetical speculation. We cannot 'help but be reminded of the old vaudeville gag: “If I had some ham I would have some ham and eggs, if I had some eggs”.

While both plaintiff and the witness, Purvis, testified that the defendant, Mrs. Clarkson, made a statement that she had ■been on an errand for the purpose of getting the family laundry, we think this testimony was successfully rebutted by the showing on behalf of defendants that the wife had done the family laundry during the entire period since the marriage.

In the very outset of our discussion we must confess that we find ourselves on ground which is anything but firm. Careful study of the limited jurisprudence bearing on this point unfortunately leaves us without any feeling of certainty or security. There appears to be two lines of jurisprudence, in neither of which is the line of demarcation well defined. There is no question as to the clearly established general rule, which is to the effect that a husband, as head and master of the community, is only liable for the torts of his wife when she is actually engaged in attending to the affairs of the community under his express or implied' authorization. The provisions of Article 2986 of the Civil Code bearing upon the several kinds of mandate malee up' the foundation upon which rests the principle above stated.

But when we leave the surrounding of certainty which envelops the legal principle, we immediately enter a twilight zone, a no-man’s land of factual distinctions. On the one hand we find that line of cases which holds certain missions and errands Of the wife to be purely personal, and, on the other hand, another line of cases which holds the wife’s ventures to be chargeable to the community interest. Under the first category we find the cases of Durel v. Flach, 1 La.App. 758, holding an errand of pleasure, a joy ride, by the wife, in which the husband did not participate, to be outside the realm of the community interest; Wise v. Smith et ux., La.App., 186 So. 857, holding that a wife’s mission to visit her husband’s sick mother is not a community errand; Ætna Casualty & Surety Co. v. Simms et al., La.App., 200 So. 34, to the effect that a wife’s use of a community automobile for the purpose of visiting a sick aunt is a separate venture; Matulich v. Crockett et ux., La.App. 184 So. 748, in which the court held that an errand 'of charity by the wife is a purely personal mission; and, finally, the Supreme Court decision in the case of Adams v. Golson et al., 187 La. 363, 174 So. 876, where, in the excellently developed opinion of Mr. Justice Fournet it was held -that a wife’s trip to* attend a style show and a meeting of a fraternal organization was purely for her own personal pleasure and benefit, and that the taking of the wife’s evening meal in the course thereof was only a matter of convenience incidental to her main purpose.

Holdings which lead to an opposite conclusion are found in Paderas v. Stauffer et ux., 10 La.App. 50, 120 So. 886, in which a shopping expedition by a wife was regarded as a community mission; Meibaum v. Campisi et ux., La.App., 16 So.2d 257, in which the delivery of a damaged coffee table to a repair shop brought the mission within a general community purpose; and Levy v. New Orleans & Northeastern R. Co., La.App., 20 So.2d 559, holding that a husband could not recover for the death of his wife resulting from her own negligence in the course of a trip to a dressmaker.

We note one other case involving the point at issue in which the holding of the court appears to be squarely opposed to conclusions later reached on the basis of analogous facts. We refer to Tarleton-Gaspard v. Malochee, 16 La.App. 527, 133 So. 409, in which the use by a wife of the family car for the purpose of driving to a theater for her own recreation and pleasure was denominated as a community mission of such nature as to render the husband liable for his wife’s negligence. Since it appears to us to be impossible to reconcile the holding in the Malochee case with the conclusions reached by the Supreme Court in the Golson case, we consider that the effect of the holding in the Golson case must be regarded as an implied overruling of the court’s earlier pronouncement in the Malochee case. Much the same conclusion was expressed by Mr. Justice McCaleb, then a member of the Orleans Court of Appeal, in his concurring opinion in Levy v. New Orleans & Northeastern R. Co., supra.

Unquestionably, the oft-invoked principle that each case must be determined on the basis of the facts presented, is applicable here, but we find this precept to be of comparatively little assistance. Reasonable and meritorious arguments have been presented by learned counsel on both sides of the question and we cannot say that the position taken on behalf of either party is untenable.

Were this question res nova before this court on the facts presented it would be our inclination to hold the husband liable, and such a conclusion would be based upon the premise that the legitimate pursuits of a wife, whether for wholesale recreation and pleasure or for other purposes consonant with the intangible and imponderable obligations of the marital relationship should be considered as within the scope of community activities. But to so hold in this instance would be, in our opinion, to defy the conclusions reached by the Supreme Court in the Golson case. Under this ruling we feel it incumbent upon us to find as a fact that the mission of a wife for the purpose of procuring a knitting needle in order to knit a sweater for her personal use and adornment is without the purview of a community interest.

This conclusion being opposed to that reached by our brother of the district court, we find it necessary to this extent to reverse the judgment.

Accordingly, the judgment appealed from in favor of plaintiff is affirmed as to the defendant, Mary L. Clarkson, and reversed and set aside as to the defendant, William Clarkson, in whose favor there is now judgment rejecting plaintiff’s demands. Costs of this appeal are taxed against plaintiff-appellee.


author: HARDY, Judge. “Janvier, Judge KENNON, Judge

text:
    WEST et ux. v. MONROE BAKERY, Inc., et al.
    No. 7249.
    Court of Appeal of Louisiana Second Circuit.
    Nov. 24, 1948.
    Rehearing Denied Jan. 5, 1949.
    Certiorari Granted Feb. 14, 1949.

      Hudson, Potts, Bernstein & Davenport and Theus, Grisham, Davis & Leigh, all of Monroe, for appellant.
    Thompson, Thompson & Sparks, of Monroe, for appellees.
   HARDY, Judge.

This is a suit instituted by the parents of Eloise West, a minor, for the recovery of damages resulting from the death of said minor, who was killed by a truck of the Monroe Bakery, Inc., operated by its employee, on January 8, 1945. The suit against the defendant bakery company was filed January 7, 1946, barely within the prescriptive limit, and on May 2, 1946, said defendant’s insurer, General Casualty Company of America, was made a party to the suit by amended petition.

In answer the defendant bakery company admitted the death of plaintiff’s minor daughter but denied the allegations of negligence on the part of the driver of its truck, and further answering defendant asserted the existence of a policy of insurance issued by General Casualty Company of America. Defendant bakery company prayed, first, that plaintiffs’ demands be rejected, second, that defendant casualty company be condemned to pay all costs connected with the defense of suit and including attorney’s fees, and, finally, in the alternative, in the event of judgment in favor of plaintiffs' that defendant bakery company recover judgment against, the casualty company for the full amount of ■said judgment.

Defendant casualty company appeared by way of exceptions of no right or cause of action and prescription, setting ,up, among other premises, the provisions of the policy itself with respect to notice of accident. The minutes of the court,, as set forth in the record before us, do not disclose what action was taken with respect to the exceptions and it must be presumed that they were overruled.

Defendant casualty company filed an answer, subject to reservations 'of its rights under the exceptions noted, in which it generally denied the allegations of negligence set forth in plaintiff’s petition, and, in further answer, specifically pleaded the violation by its assured, the defendant bakery company, of the terms and conditions of the contract set forth in the liability policy.

After trial on the merits there was judgment in favor of plaintiffs and against' the defendants, in solido, in the full sum of $5,000.00, from which judgment (defendant casualty company has appealed. In answer to this appeal the defendant bakery company prays for judgment against the casualty company for attorney’s fees and costs incurred in defending the suit. Plaintiffs also filed an answer to the 'appeal, praying an increase. in. the judgment to the amount of $7,225.00.

There is no issue before this court with respect to the question of .negligence, and there is no appeal by the defendant bakery company which would bring into question the correctness of the judgment of the lower court on the main demand as against such defendant. It is further noted that the exceptions which were urged by the defendant casualty company before the district court have not' been presented or argued, either orally or in brief of counsel before this court, and we therefore presume the same to have been abandoned.

It is therefore apparent that the decisive question now before us involves the issue as to the liability, vel non, of defendant casualty company to the plaintiffs.

The casualty company relies upon the provisions of its policy, which perforce constitute the contract of insurance as between the insurer casualty company and its insured, the bakery company, specifically upon the following, which are set forth under the heading of “Conditions”:

“1. Notice of Accident, Claim or Suit. Coverages A, B and C. When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable.
'\i * * * *
“5. Action against Company. Coverages A and B. No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.”

In consideration of the defense urged, certain undisputed facts, which were developed on trial of the case, are pertinent and material, namely:

The accident occurred on January 8, 1945, and on the same day L. G. Corley, Manager of the defendant bakery company, went to the'Scene of the accident, made an investigation, paid the decedent minor’s mother the amount of $35.00, and received in return a receipt which read:

“1-8-45
Received of Holsum Bakery $35.00 for Burial Expense & releases Holsum Bakery of any damages or expense from result of Wreck and killing daughter, Eliose West.
Witness
/s/ Earline West
/s/ U. B. Burge”

Corley did not report the accident to the insurer and the first notice of the accident acquired by the insurer was in the nature of a telephone inquiry by a secretary of the bakery company, who called the insurer on January 7, 1946, as to whether the agency had any report of an accident which had occurred on January 8, 1945, in West Carroll Parish. Upon being advised that the office had not received any report on such an accident, the secretary simply informer the insurer’s representative that “someone” had called about the accident. The first-proper notice to the insurer by the assured was made in a letter of L. G.. Corley to the insurer’s agent, Montgomery Insurance Agency, under date of January-14, 1946, in which letter was enclosed the citation and petition in the suit of plaintiffs against Monroe Bakery, Inc., which communication was received by said agency-on January 15, 1946, one year and eight days after the date of the accident. Plaintiffs’ supplemental' petition seeking to join the casualty company as a party defendant was filed May 2, 1946, almost one year and four months after the accident.

The question before us is susceptible of plain formulation, namely: Is an insurer released from liability for damages arising from an accident involving its assured, by reason of the insured’s delay of more than a year in giving written notice of the accident to the insurer, within the terms and provisions of the policy of -insurance re- . quiring such notice "as soon as practicable” ?

Though the question be plain, we confess that the answer, under the somewhat confused state of our jurisprudence, is not commensurably simple. In order to answer the query we are confronted with the necessity of interpreting the validity and effect of the policy provisions in the light of the facts reflected with respect to the provisions of Act No. 55 of 1930, the particularly pertinent part of which statute bearing upon the fights of injured parties reads as follows: “Provided further that the injured person or his or her heirs, at their option, shall have a right of direct action against the insurer company within the terms, and limits of the policy * * * and said- action may be brought either against the insurer company alone or against both the assured and the insurer company, jointly and in solido.” (Emphasis supplied.)

A number of oases involving one or another phase of this proposition aros.e under a similar act, No. 253 of 1918, under which we particularly note the Supreme Court case of Dennis Sheen Transfer v. Georgia Casualty Co., 163 La. 969, 113 So. 165, and the Orleans Court of Appeal case of Edwards v. Fidelity & Casualty Co. of New York, 11 La.App. 176, 123 So. 162, 163. The effect of the judgment of the Supreme Court in the Dennis Sheen case, involving an action by an assured against' its insurer, recognized the latter’s contention that a delay of almost three months in giving notice, under the provisions of a policy which required immediate written notice, was a violation of the policy, releasing the insurer. In the Edwards case the learned opinion of Judge Janvier is responsible for the enunciation of the principle that the expression “terms and limits of the policy” did not intend the inclusion of the requirement of notice. Our distinguished brother justified this conclusion upon the principle that the right of the injured party, created by the statute, was not subject to loss by reason of failure of one of the parties to the contract of insurance to comply with the terms thereof.

We refrain from any lengthy discussion of the cited cases and the effect of their holdings in consideration of our view that the provisions of the act of 1918, which dealt only with enforcement of the rights of injured parties against an insurer in the event of insolvency or bankruptcy of the assured, are not involved in a determination of the instant case. As we have above pointed out, we' are here concerned solely with the interpretation and effect of that portion of the Act of 1930, above quoted, the provisions of which were not comprehended in the Act of 1918.

In our examination of jurisprudence bearing upon Act No. 55 of 1930 we have given particular attention to the following cases: Bougon v. Volunteers of America, La.App., Orleans 151 So. 797; Duncan v. Pedare La.App., 1 Cir., 161 So. 221, the same case on rehearing Duncan v. Pedarre, La.App., 164 So. 498; Howard v. Rowan, La.App., 2 Cir., 154 So. 382; Jones v. American Mutual Liability Ins. Co. et al., La.App., Orleans, 185 So. 509; Royal Indemnity Co..v. Watson, 5 Cir., 61 F.2d 614; State Farm Mutual Automobile Ins. Co. v. Grimmer et al., D.C.W.D.La. 47 F.Supp. 458; Jackson et ux. v. State Farm Mutual Automobile Ins. Co., La.App., 1 Cir., 23 So. 2d 765; Id., 211 La. 19, 29 So.2d 177.

Even a casual reading of the cited cases discloses the fact that there is a striking divergence of opinion as' between the several courts, both State and -Federal, on the point of interpretation and application of the statute with respect to the requirement of notice. Some of the cited cases have been determined on the point of duration of the period of delay before giving of notice, and others have been decided on the basis of surrounding facts. But the conclusion may not be escaped to the effect that at the present time there exists no firm, settled and definitive pronouncement of principle.'

Beginning with an analysis of the latest case involving the point at issue, we observe in Jackson v. State Farm Mutual Automobile Ins. Co., supra, the opinion in which was written by our esteemed colleague of this bench, that the judgment was based upon a consideration and ap-praisement of facts and surrounding circumstances and not upon any pronouncement of or adherence to a general principle of law. In support of this observation we quote as follows [211 La. 19, 29 So.2d 179]: “Each case involving delayed notices must stand upon its own facts and circumstances. Tlie Court may consider in balancing the equities, not only the -time intervening between the accident and the date of notice to the insured, and whether or not the claim is a direct one by the injured persons, under Act SS of 1930, but also when the parties first discovered that substantial injury had been done or that a claim would be made; the time when the injured party discovered that insurance existed and knew the identity of -the insurer; what prejudice to the insurance company’s defense has been caused by the delay; the good faith of the insured and injured party; and the existence of any special circumstances, especially those indicating fraud or collusion.”

The following statement in the opinion referred to is further noted as having some pertinent beating upon the instant case:

“The above quoted decision (Jones v. Shehee-Ford Wagon & Harness Co., 183 La. 293, 163 So. 129) recognizes the fact that the average citizen who purchases a public liability policy seldom, if ever, becomes familiar with its detailed provisions but simply puts it away against the day when a claim may be made against him.”

We here note that the facts in the case before us amply and incontrovertibly evidence the utmost familiarity with the particular provisions of the policy involved herein on .the part of the assured. The manager of defendant bakery company had invariably, with the exception of the present case, given notice of accidents involving the insured company over a long period of time, and, strangely enough, within periods of time reasonably near, both before and after, to the date of this accident. This fact eliminates from our consideration the necessity for according the extension of equitable considerations on this ground as above set forth in the quoted opinion.

We are impressed with an expression of that distinguished jurist, the late Judge Westerfield, in Jones v. American Mutual Liability Ins. Co., supra, in the course of the development of his brilliant opinion, as follows [185 So. 517]: “It thus appears that the situation • with respect to the effect of provisions in insurance policies concerning notice as affecting third persons is in doubt, but this Court in, at least, two cases has held that such provision is not binding upon a third party and in the last of these cases, the Supreme Court has declined to issue a writ of review. We are, therefore, of the same opinion originally expressed by us in the Edwards case, but in any event if a delay of twenty-six days in the giving of notice is in substantial compliance with a policy provision requiring immediate notice, as was held in the Jones case, supra, a delay of .twenty-five days in this case under a policy provision stipulating for notice ‘as soon as practicable’ is, for a greater reason, a substantial compliance with the policy contract so that if we are wrong in the view we entertained at the time the Edwards case was decided and at the time of the Bougon case reaffirming that view, and at the present time when we reiterate our opinion, we are confident that we are right in holding that twenty-five days in this oase is not too long.”

And, in the same case, we call attention to the concurring opinion of Judge Janvier, which we set forth in full, with emphasis which we supplied, as follows:

“Janvier, Judge

(concurring).

“Because of the decision of our Supreme Court in Jackson v. Cook, 189 La. 860, 181 So. 195, in which that court placed Louisiana among those jurisdictions in which the doctrine of ‘discovered peril’ renders a negligent automobile driver liable for injuries caused .to a negligent, inattentive pedestrian, even though, because of the negligence of both, neither actually discovered the peril of the pedestrian, I concur in the decree against Ferguson, the principal defendant.
. “I also concur in the decree against the insurer because I feel that reasonable notice was given to the insurer. See Jones v. Shehee-Ford Wagon & Harness Co., La.App., 157 So. 309, affirmed by Supreme Court on writs in 183 La. 293, 163 So. 129.
“/ cannot agree, however, that because of what we said m Edwards v. Fidelity & Casualty Co., 11 La.App. 176, 123 So. 162, no notice of the accident need be given an insurer. Act No. 55 of 1930 contams phraseology obviously designed to meet the situation which was presented in the Edwards case and which, im. that case, arose because of the wording of the earlier Act (Act No. 253 of 1918). Because of the change brought about by the Act of 1930, so far as the necessity for notice is concerned, a different question may be presented. For a discussion of the difference between the two statutes, see Tulane Law Review, Vol. X, page 69, and Tulane Law Review, Volume XI, page 443. In the latter article appears the following:
“ ‘The 1930 Act, which contains an express clause designed to overrule the Edwards decision, requires compliance with policy terms that do not deprive the third party of his right of direct action against the insurer.’
"I am authorized to state that Judge McCaleb concurs in these expressions."

We point out the refusal of the United States Circuit Court of Appeals for the Fifth Circuit in Royal Indemnity Co. v. Watson, supra, to enforce the right of an insurer in the face of failure to comply with conditions of the policy. And particularly because it concisely expresses our view, we quote the following statement [61 F.2d 616]: "The contract of insurance was issued for the protection of the asstcred against loss; it was not designed for the protection of strangers." (Emphasis supplied.)

•We think that by far the most comprehensive and thoroughly reasoned discussion of the point at issue is to be found in the brilliant opinion of the distinguished Judge Porterie of the United States District Court for the Western District of Louisiana in State Farm Mutual Automobile Ins. Co. v. Grimmer, supra. It is unnecessary to burden this opinion with exhaustive quotations from the cited case, inasmuch as it would be necessary, in order to refrain from doing violence 'to any portion, to quote the opinion in full. However, we do set forth the holding, as follows [47 F.Supp. 465] : “We also further declare and determine that Mr. and Mrs. Gordon Roark hav'e no lawful -claim against plaintiff, the insuring company, by reason of this accident or occurrence, because the policy stipulations have been breached by the failure of the defendants to give notice to the plaintiff insuring company of the-accident ‘as soon as practicable’, or as soon - as reasonably possible after the occurrence.”

We note that the notice -in the above cited case was given some eight months after the date of accident.

In conclusion ■ we are firm of the . opinion that any reasonable contractual provision in a policy of insurance is valid and binding and must be given effect; further, that the terms and provisions of a policy of liability insurance are to be construed primarily with respect to the effect upon the contracting parties and are not to be measttred m the light of the incidental effect upon third parties who are strangers to the contract. This principle, o'f course, to be applicable only in the absence of any evidence of collusion or fraud as against the rights of such third parties; and, finally, that under the specific provisions of Act No. 55 of 1930 a policy requirement providing for notice of an accident by the assured to the insurer is a condition which is not in violation of the laivs of this State.

Under the 'facts of this case and in the light of our adherence to the principles above set forth, we find that the insured bakery company violated the provisions of its policy in failing to give notice of the accident for a period of more than one year, which violation is effective to release the insurer of liability under the policy both to its insured and to plaintiffs, the injured parties.

These findings render a consideration of the relief asserted by bakery company as against its insurer in answer to this appeal unnecessary.

As to the quantum, we find no manifest error in the amount fixed by the district judge, and, accordingly, the prayer for an increase thereof on the part of plaintiffs is denied.

For the reasons assigned, the judgment appealed from is reversed and set aside, and there is now judgment in favor of defendant-appellant,' General Casualty Company of America, rejecting plaintiffs’ demands. There is further judgment in favor of defendant-appellant, General Casualty Company of America, rejecting all claims of defendant, Monroe Bakery, Inc., as against said Casualty Company.

It is further ordered that all costs be taxed against defendant-appellee, Monroe Bakery, Inc.

KENNON, Judge

(dissenting).

I am unable to agree with the reasoning and conclusion reached by my colleagues that, under the circumstances of this case, the plaintiffs’ right to recover agadnst the insurer (under Act No. 55 of 1930) has been lost by the twelve months delay on the part of the policyholder in giving notice of the accident to his insurer.

In the case of Edwards v. Fidelity & Casualty Co. of New York, 11 La.App. 176, 123 So. 162, 163, the Orleans Court of Appeal held that the failure of the insured to give notice of the happening of the accident did not preclude recovery by the injured party on the ground that to hold otherwise would make the injured party’s rights under the statute (authorizing direct action) of doubtful value, because the existence of the right in one person depends upon the actions of cmother.

I quote from that opinion: “But, argues defendant, the statute itself provides that such action as the injured party may maintain shall be ‘within the terms and limits of the policy,’ and since the policy requires notice, and since no notice was given in this case, this action is not brought within the terms and limits of the policy. We think that the words ‘terms and limits of the policy’ were not intended to include the requirement of notice, but referred only to the amount which might be recovered and to those other warranties and conditions with which it was within the power of plaintiff to comply.” (Italics mine.)

The Court in that opinion further noted that, except in rare cases, the party injured by the negligence of another has no knowledge as to whether or not the other is insured and having no knowledge as to whether there is any insurance at all, he certainly has no knowledge as to who the insurer may be, if there is one. In answer to the contention made by the attorneys for the casualty company in the Edwards case that it works a hardship upon the insurer to defend a case about which it knew nothing for a long time after the occurrence of the accident, the Court said: “ * * * we think that the ends of justice require that the benefit of the doubt should be given to the injured party, who is in no way at fault, and whose loss was caused entirely by some one else, as against the insurer who has entered into the contract with full knowledge of the statute and for a monetary consideration.”

The Supreme Court of Louisiana held in the case of Jones v. Shehee-Ford Wagon & Harness Co., Inc., et al., 183 La. 293, 163 So. 129, 132, that the twenty-three day delay — under the circumstances of that case— was not unreasonable in view of the fact that the insured notified the liability carrier immediately upon receipt of notice that a claim would be made. The opinion in that case, while discussing the question of notice generally, specifically excluded a ruling on the bearing that delayed notice had on the question of liability as between the injured party and the insured, as can be noted from reading the following extract from the opinion : “This conclusion makes it unnecessary to consider the question whether a breach of a contract of public liability insurance, by a failure of the insured to give the insurer immediate notice of an accident, should defeat the right of action of the injured person, as well as the right of action of the insured, under the provisions of Act No. 55 of 1930.” (Italics mine.)

In the case of Jackson et ux. v. State Farm Mutual Automobile Insurance Co., 211 La. 19, 29 So.2d 177, the Supreme Court held that — under the facts and circumstances of that case — the eighty-two^ day delay of the insured in giving notice did not cut off the right of the injured party to recover against the insurer. The insured was not made a party defendant and the opinion of the Supreme Court in that case did not hold directly that the injured party may retain a cause of action against the insurer even though the insured — by his negligence in reporting the accident, etc. — may have lost the protection granted him under the policy. However, the Court did say — after holding in effect that the insured was justified in delaying giving notice to the company (after being assured by the parents of the young child that no claim would be made) • — -that plaintiffs’ case was strengthened by the fact that the action was one brought directly by the injured party against the insurer under Act SS of 1930.

Counsel for the casualty company has urged here the same point made in the dissenting opinion in the Jackson case, namely, that the direct right of action given the injured party by Act No. 55 of 1930 is subject to the provision of the statute which provides that the action in favor of the injured party shall be “within the terms, and limits of the policy,” and it seems difficult to reconcile the reasoning of the Court in the Edwards case, supra, and the necessity of enforcing the statutory requirement that the suit by the injured party must be within the terms and limits of the policy. However, the Supreme Court did not grant a writ in the Edwards case, in which the Court held that the legislative intent was that the original liability of the insurance carrier to the injured party is to be determined “within the terms, and limits of the policy,” and that the requirement of notice was not included in the quoted clause. Thus, if the offending car, though insured, was driven by a person unauthorized to drive under the terms and limits of the policy, the injured party would have no right against the insurance carrier. However, if at the time of injury, the circumstances are such that, under the terms and limits of the policy, the insurance carrier is liable, the rights of the injured party against the insurer. under Act No. 55 of 1930 become fixed as of the moment of injury. This personal, statute-given right of the injured party against the insurance carrier is one which he can only lose, as indicated in the Edwards case, by his own acts, or by his own failure to act. The rights under the policy, as between the policyholder and his insurer are, after the accident, still subject to the further provisions of the policy relative to notice and other action which the policy may require of the insured, who of course, has a copy of the contract of insurance and who has, at least by implication, consented to all its terms and conditions. Such a line of reasoning would recognize that a different situation exists-■as between the insurer and the injured party, between whom there is no contractual relationship.

As indicated in the reasoning of the Edwards case, the injured party might be deprived entirely of the benefits granted him by Act No. 55 of 1930 were the Courts to hold that any and every failure of the insured, after the accident, to comply with every exacting requirement of the policy would defeat recovery by the injured party-For instance, the insurance company might put a condition in the policy that telegraphic notice of an accident must be given to its home office within twenty-four hours of it's occurrence and in the event of failure to give such notice, the policy protection would not cover the accident. The policyholder, being in possession of the-policy, would at least have the opportunity of finding out that such a telegram was-necessary and protect his rights, but the injured party, after the accident, is often in the hospital, or if less fortunate, he may have lost his life, and he or his heirs may be some days or weeks becoming familiar with the full facts surrounding his injury. The injured party or his heirs have no copy of the contract of insurance and may not even know for many weeks that such a policy was in existence, much less what its its terms and conditions require.

The record shows that the deceased child’s father was working in California at the time plaintiffs’ daughter was killed. The plaintiffs took their case to an attorney within two weeks after the accident. The record shows that a complete investigation by the attorney’s office was delayed until the return of one of the younger members, from military service some months later. There is not the slightest indication of any collusion between plaintiffs and the defendant bakery company. There is not even any evidence in the case that the casualty company was prejudiced in the preparation oi their case by the delayed notice. Nothing in the record or the majority opinion indicates that the plaintiffs deliberately delayed bringing the suit or that any of the parties had any unlawful or uncommenda-ble motive in connection with the delay in the giving of notice or filing of the suit.

There can be no hard and fast rule upon which to base a decision in cases involving delayed notice. Each case of this sort should be decided upon its own facts and circumstances in such a manner as to carry out the legislative intent expressed in Act No. 55 of 1930.

I come to the conclusion that, under the facts and circumstances of the case before us, the plaintiffs have not lost their right of action against the casualty company, and therefore respectfully dissent.