author: JANVIER, Judge.

text:
    TILLMAN v. PUBLIC BELT R. R. COMMISSION FOR CITY OF NEW ORLEANS.
    No. 19295.
    Court of Appeal of Louisiana. Orleans.
    Nov. 14, 1949.

      William A. Green, New Orleans, for plaintiff-appellant.
    Michel Provosty, New Orleans, for defendant-appellee.
   JANVIER, Judge.

George Tillman, a fifty-nine year old Negro laborer, was run over by a locomotive of the Public Belt Railroad Commission for the City of New Orleans at about eight o’clock, on the night of December 30, 1947, a short distance below the Barracks Street crossing in New Orleans. The locomotive was being operated with its tender end forward and was pulling a string of fottrteen freight cars, some empty and some loaded. Tillman’s left leg was so badly injured that, at the Charity Hospital in New Orleans, it was found necessary that it be amputated just below the knee. Pie brought this suit against the City of New Orleans, through the said Public Belt Railroad Commission, alleging that' the accident had resulted from negligence of the employees who were operating the locomotive, and praying for judgment in the sum of $16,500.00, with interest and costs.

The Board of Administrators of Charity Hospital of Louisiana at New Orleans intervened and alleged that Tillman had received treatment, surgical services, medicines, etc., at that institution for which a charge of $361.50 would be proper, and prayed that in the event of judgment in favor of Tillman and against the said City of New Orleans, through the Public Belt Railroad Commission, it, the said Charity Plospital, have judgment in solido against the said defendant and Tillman in the sum of $361.50, with attorney’s fees.

The Public Belt Railroad Commission answered, denying áll negligence on the part of its employees and averring that Tillman, at the time of the accident, was a trespasser and that he, “by his own wilful actions, placed, himself in a position of peril.” Defendant averred too that its employees “could not reasonably be expected to anticipate the presence of plaintiff on its tracks,” and that “because of conditions prevailing at the time of the accident and at the place of the accident, defendant did not and could not discover the presence of plaintiff until it was too late * * In the event that it should appear that there was' negligence in any of the employees of the defendant, it specially and in the alternative pleaded contributory negligence.

In the Civil District Court for the Parish of Orleans there was judgment dismissing plaintiff’s suit and the intervention of the Charity Hospital, and Tillman has appealed.

We do not find in the record any evidence of an appeal by the Charity Hospital. Therefore, even if there is liability in defendant, there can be no recovery by the intervenor. See Blanke v. Miranne, La.App., 11 So.2d 264.

There is very little disagreement over most of the facts, the only controverted question being whether or not the employees of the Public Belt Railroad Commission should have seen the plaintiff sooner than they did and whether they could have brought the locomotive to a stop in order to avoid him, if they had seen him as soon as plaintiff charges they should have discovered him.

It is shown that Tillman had become completely intoxicated and had, as he expressed it, “passed out” 'before the locomotive approached, and was lying prone on the cross-ties between the two rails of the track. There is some little dispute.as to how far below the Barracks Street ■crossing he was lying, but we think that the record shows that he was about ISO feet below that crossing and probably 80 feet or so above the extension of Esplanade Avenue. The record shows that there was considerable traffic of various kinds across that and the other tracks at Barracks Street and alongside the track, both on the parallel roadway and on the wharf which was between the roadway and the Mississippi River.

There was a ferry landing nearby and a large proportion of the passengers and vehicles which used that ferry made use of the Barracks Street crossing, but it is rather conclusively shown that that ferry did not operate after nightfall.

A short time before the unfortunate occurrence, Tillman had been seen by John Godwin, who was a switchman for another railroad — the Louisville & Nashville —and whose place of duty was somewhere between 100 and 180 feet from the spot at which Tillman was lying when he was struck. When Godwin first saw him, he was obviously very drunk and had fallen to his knees one one of the tracks of the Louisville & Nashville Railroad. Godwin says that he was “pretty close to him” and ordered him to move on. Tillman then staggered across the other tracks and disappeared into the general direction of the point at which he was later struck, but Godwin did not see him again until just as the Public Belt locomotive was approaching, when he says that he saw “some object bump up right ahead of the train * * This object proved to be Tillman. At that time, according to Godwin, Tillman was “something like 100 feet away * * * ” from him.

As we have said, the 1 locomotive was pulling a string of fourteen cars and was operated with the tender end forward. There was on that end a headlight which apparently was just like the one on the other end. This headlight was about ten or twelve feet above the ground and it projected a beam of light which struck the ground from 140 to 160 feet ahead of the locomotive.

There was a slight curve to the left and because of this curve, the headlight did not project its beam directly between the rails..

The locomotive was being operated at a speed estimated at from six to eight miles an hour, and the “object” was discovered when it was about 20 feet, more or less, from the locomotive which was brought to a stop when most of the tender had passed over Tillman. We think it unnecessary to discuss in detail the evidence on this point, but- conclude that after Tillman was discovered everything possible was done to avoid him and that the train was brought to a very good stop.

The question then is, was there negligence in the employees in not sooner discovering plaintiff lying between the rails ahead of the locomotive?

Counsel for plaintiff not only concedes that plaintiff was intoxicated, but in 'truth, relying on that fact, contends that since he had completely lost the ability to save himself, there could have been no contributory negligence on his part and that, therefore, there came into play the doctrine of the last clear chance and the extensions thereof which have been called the doctrine of discovered peril and the doctrine of apparent peril.-

The doctrine of discovered peril made its appearance in Louisiana in the case of Rottman v. Beverly, 183 La. 947, 165 So. 153, 156, in which our Supreme Court said: ■“ * * * if a plaintiff negligently puts himself in a place of danger and his negligence and danger are actually discovered by the defendant, then there devolves upon the defendant a duty which intervenes or arises subsequent to the negligent acts of the plaintiff, and that duty is to save the plaintiff from the consequences of his negligent acts if he can. * * * ”

Shortly thereafter, in Jackson v. Cook, 189 La. 860, 181 So. 195, 197, the court explained or extended the doctrine of discovered peril, saying that there may be liability not only for failing to avoid striking some one after discovering him, but even for failing to discover such person if he should have been discovered by the exercise of proper care. The court said: * * * that the duty of those in charge -of motor cars and engines to look ahead and observe never -ceases; that what they can see they must see and in legal contemplation they do see; that their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability.”

Both of those cases have been cited many times since. Each of them involves an accident in which a motor vehicle was the offender. But the first of those doctrines — that of “discovered peril”- — has been held to be equally applicable where a train or other railroad equipment is involved. See Hicks v. Texas & N. O. R. Co., 186 La. 1008, 173 So. 745; Russo v. Texas & P. Ry. Co., 189 La. 1042, 181 So. 485. And we see no reason to believe that the Supreme Court would not hold that the doctrine of apparent peril should also be applied against a railroad or against any defendant operating a potentially dangerous instrumentality. Therefore, as a result of these decisions and of many others, we conclude that there is now firmly established, the rule that the operator of a motor vehicle, or of a train, or other instrumentality, which may cause injury, is under the duty of discovering the peril of a pedestrian or other person on or near the roadway or railway ahead and of avoiding -that person if it is possible to do so by the exercise of reasonable care, even though the peril may have resulted from the negligence of the person himself.

But this does not mean that in any event and under all circumstances there1 is liability to the pedestrian or other person who may be struck.

This -is made evident by the fact that there are numerous cases in each of which some fact was found which excused the failure to discover the peril sooner. For instance, in Cheek v. Thompson, 28 F.Supp. 391, 393, Judge Porterie of the United States District Court for the Western District of Louisiana, found tha-t there was a curve in the track ahead of the locomotive and that because of this curve and for other reasons the engineer did not discover the “object” on the track sooner. The court said: “(n) The accident occurred at a point of curvature of track, preventing the engineer, who was on the convex -side, from actually being able to see the point of accident for several hundred yards before injury.”

. That finding was approved by the United. States Circuit Court of Appeals for the Fifth Circuit. See Cheek v. Thompson, 140 F.2d 186.'

In Griffin v. Thompson, 11 So.2d 114, 117, the Court of Appeal for the First Circuit found that there was a curve in the track ahead of the locomotive and said that “ * * * it was physically impossible for any of its operators to see the two unfortunate victims of the accident before they were emerging from the -curve, * * *.”

In Homeland Ins. Co. v. Thompson, 12 So.2d 62, the Court of Appeal for the First Circuit held that where, because of a fog, it was impossible for the operators of the train to see objects at a greater distance than from 40 to 150 feet, the doctrine of discovered peril did not render the railroad company, liable. See also Heydorn v. New Orleans Public Service Company, La.App., 35 So.2d 893.

We also find the question of the effect of the doctrine of discovered peril exhaustively discussed in Eggleston v. Louisiana & A. R. Co., La.App., 192 So. 774. There the Court of Appeal for the Second Circuit found that the ' automobile which was struck was not discovered until two seconds prior to the crash. It was contended that under the doctrine of the last clear chance the failure of the employees to discover the automobile and to avert the accident rendered the defendant liable. There was a curve in the track immediately ahead of the locomotive as it approached the crossing. The court discussed the various cases cited involving the doctrine of discovered peril and held that there was no liability in the defendant.

These and other cases indicate clearly that the doctrine of discovered peril and the doctrine of apparent peril do not create absolute liability in such cases, but merely throw upon the defendants the duty of explaining why the person who was injured was not seen and was not avoided.

Why then was Tillman not seen by the crew sooner than he was seen, and why was the accident not avoided?

Defendant maintains that he was not seen for either or both of two reasons:

First, that ■ there was a curve in the track, as a result of which the headlight did not project its beam between' the rails where Tillman was lying, and

Second, that there was a very heavy fog which prevented the employees from seeing Tillman until the locomotive was so close to him thát it could not be stopped.

The existence of the curve -is a physical fact which cannot be controverted. It is very obvious that a headlight which projects its beam 140 feet ahead will project the beam outside the rails rather than between them as. it enters such a curve and there is nothing to contradict the evidence showing that the curve had this effect.

There is, however, evidence to which counsel for plaintiff points as contradicting the testimony of other witnesses to the effect that there was a very heavy fog. For instance, Godwin, the employee of the Louisville & Nashville Railroad, says that when he saw the “object” rise in front of the locomotive, he was some distance away from it, and counsel says that if he saw the object the employees of the locomotive should have seen it sooner than they did. Counsel also points to the fact that two police officers were called to the scene, and the one who appeared as a witness said that they had no difficulty in reaching it, though he could not recall whether or not there was a fog.

However, practically all of the other witnesses testified that there was a heavy fog.

Smith, an employee of defendant, was on what may be called the running-board on the tender end of the locomotive. He says that “it was foggy; you could hardly see.” He added that it was “a foggy night, very foggy.” Referring to the ferry, he said that' on a night like that “I doubt whether the ferry would run.”

Morel, who was operating the locomotive, says: “That night was very foggy and misty, an especially heavy fog.”

Robbins, who was also on the front running-board of the locomotive, says that there was a “dark and heavy fog — very low,” and he followed this by saying “that was one of the worst fogs I have saw since I am employed * * * at that point.”

Chase, who was on the other, or rear end of the train says that they were very carefully protecting the train “on account of it being so foggy.”

Rachal, who was fireman on the locomotive, said that though he had seen heavier fogs than that, “you couldn’t see the car next to the engine.”

We attach -little significance to the fact that the police officers reached the scene without difficulty. It is well known that the fogs which are prevalent at certain times in this locality are much denser near the river than elsewhere, and it is quite possible that the police officers who came from more central portions of the City were not interfered with by fog.

We -cannot fail, however, to attach some significance to the fact that Godwin saw the “object” when he was more than 100 feet away from it. Still we do not think that his testimony and the fact that he saw that object should be permitted to overcome the effect of the positive testimony of so many other witnesses who say that there was a very 'heavy fog. It is well known that fog may be dense at one spot and yet easily penetrated a short distance away. Godwin was looking at the object from another direction; he was across the tracks 'while the locomotive was approaching on the same track and from a direction which was parallel to the river. The clothing of Tillman was dark and it was, no doubt, difficult for the employees on the locomotive to discover him sooner than they did.

At any rate, from all of the testimony we conclude that because of the curve and because of the fog the employees of defendant were not negligent in failing to discover Tillman. We feel that to hold that that they should have discovered him under the circumstances which we have set forth would be tantamount to holding that under any and all circumstances any person so located must be discovered and avoided. The jurisprudence of this State does not go so far.

The judgment appealed from is affirmed.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WELLS v. MORGAN & LINDSEY, Inc., et al.
    No. 3130.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 25, 1949.
    William J. Daly, New Orleans, H. Minor Pipes, Houma, for appellant.
    Jones, Flanders, Waechter & Walker, New Orleans, Elton A. Darsey, Houma, Ellender & Wright, Houma, for appellees.
   PER CURIAM.

The application for rehearing in this case is based principally on the proposition that in our opinion we failed to comment on certain evidence which plaintiff Wells considers very material to the issues involved herein.

We did not then, and do not now, attach any probative value to the fact that the beam was not offered in evidence. The evidence shows that the supporting columns of the stockroom were being replaced by iron posts and we fail to see where plaintiff’s case would be strengthened by the introduction of the beam in question. The material fact is that plaintiff in replacing the columns with the iron posts was guilty of gross negligence as shown by the evidence.

The mere fact that Miss Blahut paid or sustained the loss of the damages done by the collapse does not in itself show any liability on her part. That was strictly a ' business arrangement between herself and her tenant.

After a case review of the record, we are unable to find any material error committed by us and we must therefore deny the ap- ■ plication for rehearing.


author: ELLIS, Judge.

text:
    GRIGSBY v. ETHYL CORPORATION.
    No. 3161.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 25, 1949.
    L. C. Parker, Baton Rouge, for appellant.
    Taylor, Porter, Brooks & Fuller, Baton Rouge, for appellee.
   ELLIS, Judge.

Plaintiff has filed this suit against the defendant in which he is seeking to recover compensation for total and permanent disability as the alleged result of having inhaled and absorbed tetraethyl lead fumes or some other poisonous or injurious fumes, all in the course and scope of his employment with the defendant.

After defendant had filed its answer which was a general denial, the case was duly tried and judgment was rendered in favor of the defendant rejecting and dismissing plaintiff’s demand at his costs, from which judgment the plaintiff has appealed.

The plaintiff in this case testified that on December 16, 1944 at about 7:30 or 8:00 p. m. he was engaged in washing tank cars which were being or to be loaded with tetraethyl lead when “all of a sudden” hie smelled strong fumes which went through his head and made him cough and that he turned off the hose with which he was rinsing the tank cars and went into the change house where he stayed approximately ten minutes, and, after bathing his face with water, he went back to work but did not smell any more fumes. He stated that he was not exposed to the fumes as long as five minutes, did not know where the fumes came from nor did he mention in his testimony that they came from a ditch nearby, although such a fact was alleged in his petition. In fact, the record is devoid of any proof that any fumes escaped from any ditch as set forth in the petition although there was a crew of men digging a ditch approximately 100 feet from where the plaintiff was washing the tank cars, but there were no pipes in this ditch as it was being dug for that purpose.

Plaintiff felt no immediate ill effects and testified he began to feel. worse each day and described his subsequent symptoms as pains in the center ofi his stomach and nausea, although he did not vomit, and he also suffered pain in his legs, back and shoulders. On the 23rd day of December he reported to the hospital that he had been subjected to fumes from á a tank car but he continued to work until December 29th. Plaintiff’s employment was terminated by the defendant company on February 27, 1945 and the termination slip gives as the cause “sickness.”

In addition to plaintiff’s testimony, he offered as witnesses two members of a crew that were digging the ditch approximately 100 feet from where plaintiff was washing the tank cars who testified that at about 7 o’clock p. m. the entire crew was moved from that area on account of fumes to a distance of about 400 feet, which took them out of the range of the fumes, and these two witnesses, while eating their supper in the wash house at about 9 p. mv saw and talked to the plaintiff and asked him “what was that smelling,” and the plaintiff told them, “It must have been gas or lead or something.” The plaintiff made no complaints to these witnesses that night nor to his foreman or any one else. The testimony of the two witnesses, Debose and Bolden, as to tbie dates when they smelled the fumes is very weak. The witness Debose speaks of being checked for lead poisoning about a week after smelling these fumes on December 16, 1944, and the other witness, Bolden, stated that he remembered smelling these fumes on December 16th by reason of what happened before them, that it had made them particular as “a bunch of men got mixed up in this lead area, got lead poisoning.” He couldn’t give the definite date of the lead spill but was sure that it was before December 16th. The records of the company show that there was a lead spill on January 15, 1945 but none before that date. This case was heard on March 12, March 16, and May 27, 1948, and the witness Bolden went to work for the Baton Rouge Engineer’s Depot July 25, 1945, and although he could 'not remember the date, he was terminated at Dupont prior to that time. Thus, approximately three years had elapsed at the date of the trial and these two witnesses could easily be mistaken and are mistaken when they refer to the lead spill as happening prior to December 16, 1944.

Plaintiff has absolutely failed to prove where the fumes he said he smelled were coming from or the kind of fumes. Another significant fact is that although the plaintiff has alleged positively that the fumes were coming from a ditch nearby, he, as well as the two witnesses introduced in his behalf, infer that they believed the fumes were coming from the tank car and none of them ever indicated that the fumes were coming from a ditch.

Plaintiff has offered the testimony of Dr. Leo S. Butler who stated that the plaintiff had come into his office on the evening of January 12, 1945 complaining of pains behind the neck, dizziness, and pains in the shoulder and pains in the stomach, and nausea. Dr. Butler stated that such symptoms would ordinarily be associated with lead poisoning. Plaintiff gave Dr. Butler a history of having been exposed to lead fumes a month before. The doctor’s examination at that time was negative objectively but he testified' that plaintiff’s blood pressure was rather high and at that time he based his diagnosis “on his history that he had been exposed to lead fumes and instituted treatment for the same.” Dr. Butler had a blood test made which was negative.

When plaintiff reported to the defendant company on December 23, 1944 that he had been subjected to fumes, a sample of plaintiff’s blood and urine was forwarded by air mail to Dr. R. A. Kehoe whom the record unquestionably proves is outstanding in the field of occupational diseases and particularly in cases of lead poisoning. An analysis of these samples showed lead below the normal limit, and it was his positive opinion that the plaintiff had not been exposed to any lead fumes. He based this opinion not only upon the analysis of the blood and urine alone but also upon the complete medical record of the plaintiff during his employment by defendant, viz., a report by Dr. J. W. McLaurin on February 26, 1946 in which he stated that an examination of plaintiff’s ears, nose, throat and larynx presented no pathology other than a posterior ethmoid-sinusitis on the right side and an infected upper first molar on the left side; a report of Dr. Leo S. Butler, plaintiff’s witness, in . which the latter stated that he found the plaintiff suffering from an elevated blood pressure and one carious tooth, and his clinical analysis of arthritis, mild hypertension and possible chronic lead poisoning, and also a certified copy of thie report of the Charity Hospital of Louisiana which stated in part, “Impression — Poss P. b. (lead) poisoning.” His .conclusions are found in his testimony as .follows:

“Q. Now, Doctor, I ask you as a chemist and medical man, with the knowledge that you have of this case, that is, a copy of the entire medical records of- the plant hospital, the medical reports of Doctors McLaurin and Butler, the Charity Hospital Report, and the analyses that you made on January 3, 1945, what is your opinion as to whether or not Raymond Grigsby had lead .poisoning as a result of the alleged accident on or about December 16, 1944.
■ A. My opinion is that Raymond Grigsby did not have blood poisoning as the’ consequence of any exposure to lead suffered in the course of his occupation on or about the date on which the samples of blood and urine were taken and the analyses were made.
My reason for this opinion is that the analytical data plainly demonstrates that Raymond Grigsby had suffered no significant exposure to lead compounds at any time in the period closely associated with the time of these analyses. If he had had such exposure hie would inevitably have demonstrated in his blood and urine abnormal quantities of lead. The failure of the appearance of such quantities of lead demonstrates conclusively the absence of such exposure. Therefore, lead poisoning could not possibly have existed in connection with the alleged exposure.
The opinion is further based on the examination of the record of the clinical findings and the medical information, which failed completely to disclose any symp-tomatology which is characteristic or in any way diagnostic of lead poisoning. The symptomatology complained of, on the contrary, can better be explained by other evidences of illness and disease than- that of lead poisoning.
‡ * $ * * *
“Q. Do I understand that it is your testimony that in none of these records that have been submitted to you is there any evidence that Raymond Grigsby was suffering from lead poisoning?
A. As to the medical evidence itself available in any of these records there is nothing whatever to suggest to my mind that Raymond Grigsby was suffering from poisoning due to the absorption of tetra-ethyl lead. ' There is the opinion expressed on the part of Doctor Leo S. Butler that certain of the symptoms are frequently associated with lead poisoning and that lead poisoning probably existed.
I disagree with this opinion, both in detail and in whole, since there is no symptom referred to by Doctor Butler or otherwise in the record that is commonly associated with poisoning due to the absorption» of tetraethyl lead. In fact, certain of the symptoms mentioned are incompatible with that diagnosis..
“Q." What symptoms do you have reference to? A. Specifically, reference to elevated blood pressure, since in tetraethyl lead' poisoning the blood pressure is characteristically low and since, moreover, in this form of the disease pains in the arms and legs, that is to say, myalgia and arthralgia (pains in the joints) are conspicuously absent.”

Also in Dr. K'ehoe’s report we find the following:

“Q. Even though if it be proven on the trial of this case that the man was exposed to lead fumes, left his place of business, went inside the building, and could not go back to his place for twenty or thirty minutes, and co-workers, other employees, actually saw him and talked with him, you would still rely upon your analyses? A. With respect to lead, yes, because the analyses demonstrate clearly that he had no significant exposure to lead. I am not prepared to say that hie did not have some exposure to .some irritant material coming from this ditch. What that might have been I have no opinion, because I do not know. I am testifying only as to the fact of his lead exposure, which I am sure did not exist in any significant form. Moreover, as to lead exposure itself there would have been no smell or no fume or no irritation which would have told him that lead was in the air because lead compounds in a ditch or on the ground or in a tank are not irritating, are not unpleasant in their smell. They are, in fact, pleasant, and except to the quite experienced individual they are not likely to be recognized at all.' That constitutes the most serious danger from lead compounds, because the individual might not know that he hiad any exposure at all.”

Taking all the testimony in this case, plaintiff has utterly failed to prove that the fumes which, he smelled, if any, were coming from the tank car or from the ditch nearby and has failed to prove that he is disabled as a result of inhaling and absorbing tetraethyl lead fumes.

It is therefore ordered that the judgment of the District Court be affirmed at the cost of appellant.


author: McBRIDE, Judge.

text:
    RAY v. HEBERT et al.
    No. 19304.
    Court of Appeal of Louisiana. Orleans.
    Nov. 28, 1949.
    John W. Bryan, Jr., New Orleans, for plaintiff and appellee.
    Henry L. Oulliber, Jr., and Robert J. Pitard, New Orleans, for defendants and appellants.'
    Before McBRIDE, REGAN, and WALTER B. HAMLIN, Judge ad hoc.
   McBRIDE, Judge.

Defendants have appealed from the judgment of the lower court in favor of plaintiff for $154.95, the damage to plaintiff’s automobile sustained by .reason of a collision thereof with an. automobile owned by defendant, Hebert, 'and insured againstdia-bility by defendant, Nola .Cabs, Inc. .

The only witnesses were'plaintiff and the driver of Hebert’s taxicab.-

Only a question of fact is presented by this appeal. The trial judge gave written reasons for judgment, which so thoroughly set forth his appreciation of . the facts and- his 'conclusions that Ynb adopt them as our opinion: ■"

“Plaintiff sues to recover $304.95 property damage to his automobile as a result of. a collision , which ' took place between his automobile, which he was driving, and d taxicab owned by the defendants, .but operated at the-time by one of its colored chauffeurs. The accident took place at the intersection of GeñtiÜy Éoulevard. and Gentilly or St. Bernard Circle. The Gen-tilly or St: Bernard Circle in question is rather a large circle with a centra! circular neutral ground and a circular paved highway encircling it. Approaching the circle from the North is' Gentilly Boulevard; from the South is'Bayou Road; from‘the West is DeSaix Boulevard; and from the East St. Bernard Avenue. ' The locus of the collision was near the neutral ground circle' curbing, a short distance to the right of the intersection of Gentilly Boulevard.
“The plaintiff contends that he entered the circle from Bayou Road and was.making the turn around the, circle- at a speed of from five to ten miles an .hour,, and within ten or fifteen feet of the intersection of Gentilly Boulevard he noticed the taxicab of the defendants approaching the Circle from a distance of about .150 feet. Plaintiff continued in the Circle until, he passed Gentilly Boulevard on his way to DeSaix Boulevard. A short distance from the intersection of Gentilly Boulevard his right rear of his automobile was struck by the cab of defendants.
“Defendants’ chauffeur testified that he was traveling between fifteen and twenty miles per hour; that he entered the intersection and ,saw plaintiff’s car coming around the Circle; that he stopped to permit plaintiff’s car to pass, but instead of passing him plaintiff’s car .swerved or skidded into his car. He further testified that plaintiff’s car was traveling between 35.and 40 miles per hour. It is hard to believe that Mr.,Ray, with,his wife in th'e front seat,, traveling around a Circle on a slippery street, would travel 35 to 40 miles an hour. That, indeed, would be suicide. ’
.“Plaintiff testified that he realized for the first time that the, car on Gentilly Boulevard, which he had seen a hundred or a hundred .and fifty .feet away, was about to strike him, was when he heard the screeching óf tires.' Plaintiff’s wife was in the car but she was sitting .with her back to the door apparently talking to him, and did not know of the' impending collision until it actually took place.
"However, Í am satisfied that plaintiff’s car reached the intersection of Gentilly Boulevard in advance- of the defendants’ cab while traveling at a reasonable speed; and that he .preempted the intersection of Gentilly Boulevard and the Circle. I also am satisfied that the defendants’ cab was being driven at a rate of speed much in excess of the 15 to 20 miles an hour testified to by the colored cab driver. It is more reasonable.to believe plaintiff while going around the Circle travelled .at a speed of 10 to 15 miles an hour and that the chauf-fer entering the Circle from a straight-away highway would more likely be traveling at 30 to" 35 miles per hour.
“Under the circumstances, I must hold that the accident'was due solely to the negligence of the defendants’ cab driver in not yielding the intersection to the plaintiff which the plaintiff had already preempted, and "because the defendants’ cáb driver was traveling at a speed greatly in excess of the speed that was' proper and safe under the circumstances.

“Í can only allow the sum of $i54.-95, the actual expense incurred by .plaintiff in having his damaged automobile repaired. The 'balance -of $150.00 is sought to be recovered because the automobile' depreciated that much in value as a -result of the' accident and the repairs. There is no evidence in the record to support this item, and it will be disallowed.

“There will be judgment in favor of plaintiff and against defendants ‘in solido' in the sum of $154.95.”

The judgment appealed from is affirmed.

Affirmed.

JANVIER, J., takes no part.


text:
    BABERS v. LIROCCHI.
    No. 3158.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 25, 1949.
    Cashio & Cashio, Baton Rouge, for appellant. ' • •

      Watson, Blanche, Fridge, Wilson & Posner, Baton Rouge,, for 'appellee.
   ELLIS, Judge.

Plaintiff has filed this suit against the defendant for the sum of $380.00 which she alleged was due under an oral .agreement by and between petitioner and the defendant. Under “this oral agreement, defendant was permitted to cut and remove from the said Rose Mound . Plantation such merchantable timber as he might select during the period from October 20, 194b to December 1, 1946 for the agreed price to be paid by defendant to petitioner of Seven and no/100 ($7.00) Dollars per thousand for such timber so cut and removed.”

The defendant filed an exception of nonr joinder, which was overruled and has not been re-urged, and then filed an answer which, in effect, was >á general denial and the case was duly tried and judgment was rendered in favor of the plaintiff as prayed for.

From this judgment the defendant has appealed.

When this case came up for trial, Jack Babers, the son of the plaintiff, was called as a witness to prove the agreement as above quoted, which is the basis of plaintiff’s claim. The defendant objected to plaintiff’s son testifying on the ground that if the defendant “had any dealings with anyone beside the plaintiff in this suit, that is irrevelant and immaterial.” -The Court overruled the objection and defendant reserved an exception and, now makes that his one and only ground of complaint on appeal and states in his brief that “to have permitted Jack Babers to testify so enlarged the pleadings to an extent that Jack Babers became the petitioner.” , He objected to any proof of plaintiff’s claim except strictly or literally as set forth in the quoted paragraph that defendant and plaintiff had an oral agreement whereas the proof in the record shows that the defendant became the purchaser of a saw mill which had been cutting the timber of the plaintiff paying therefore $7.00 per thousand. The defendant, wishing to have the same privilege, went with Jones, the party who sold him the mill, to -secure the same agreement. They saw Jack Babers, son of the. plaintiff, and he told them that the defendant, could cut the timber under the same agreement as Jones, that is, by paying $7.00 per thousand.

In accordance with .the conversation ■ and agreement with Jack Babers,- the defendant proceeded t.o cut timber from the,plaintiff’s property, and on the date of the filing of this suit was indebted in the sum of $380.00 for timber cut off of the plaintiff’s property. There is no objection insofar as the terms of the agreement are concerned nor is there any real denial that $380.00 is due for timber that came off of plaintiff’s property.

The allegation of the petition is sufficient for plaintiff’s claim. It charges in substance and materially that the defendant was permitted to cut and remove timber from plaintiff’s property for -an agreed price. He merely objected to the-allegation that such an agreement was between himself and the plaintiff. He is not concerned with the authority of plaintiff’s son in view of the ■fact that plaintiff accepted the agreement made by her son and has judicially declared upon such an agreement and- offered .the testimony of -her son and agent in proof of her claim. The case, therefore, resolves itself into a question of whether he cut and removed $380.00 worth óf timber for which he did not pay from plaintiff’s land. This is proven and not questioned on appeal.

The allegations are clearly sufficient to apprise the defendant of the nature-of the evidence to be introduced and with .certainty indicated the fact which plaintiff intended to prove. See >49 -Corpus Juris 796, Section 1174, and Chapman-Storm Lumber Co. v, Board, of Commissioners, 196 La. 1039, 200 So. 455. ' Also,, the evidence offered -was in line with plaintiff’s allegations and in proof thereof.,. Defendant did not complain-.that he was taken by surprise nor did he ask for a -continuance nor did he file aij exception of vagueness or a plea for particulars as to whether the oral agreement was made by plaintiff or through an agent. It comes back to a matter of proof. The .defendant was not taken by surprise by the proof sought to be offered -because he1 was aware of the fact that he had made his oral contract of purchase with plaintiff’s sou. He knew or should have known that the son could only sell this timber as agent of plaintiff. By the payment of the judgment defendant will have discharged his obligation. There is no contrary evidence but that the timber belonged to plaintiff.

The judgment of the District Court is accordingly affirmed at appellant’s cost.


author: HAMLIN, Judge ad hoc.

text:
    KERN et ux. v. NEW YORK CASUALTY CO. et al.
    No. 19268.
    Court of Appeal of Louisiana. Orleans.
    Nov. 28, 1949.
    George Piazza, New Orleans, for plaintiffs and appellants.
    Gordon Boswell and Stanley E. Loeb, New Orleans, for defendants and appel-lees.
    Before McBRIDE and REGAN, JJ., and WALTER B. HAMLIN, Judge ad hoc.
   HAMLIN, Judge ad hoc.

Plaintiff, Mrs. Florence Matranga, wife of Charles F. Kern, between 8:00 and 9:00 o’clock on the morning of Thursday, April 24, 1947, was visiting her husband, who was a patient .in Mercy Hospital-Soniat Memorial, operated by defendant, Roman Catholic Sisters of Mercy.

Mr. Kern was, at the time of the alleged accident and resulting injury to his wife, convalescing from an operation. His bed was located in a ward designated as Little Flower Hall, which contained six beds.

Mr. Kern was operated upon in the afternoon of April 14, 1947, for an emergency appendectomy, and he was then confined in Bed No. 2 of said ward.

Plaintiff, Mrs. Kern, visited 'him every day up to the date of the occurrence. She charges that on April 24, 1947, there was a portable screen placed at the foot of Mr. Kern’s bed,-in order to facilitate the preservation'of the patient’s privacy; that she was first on the right side of her husband’s bed, -then moved around the foot, outside the screen, to the left side, conversed a short time with him there, and prepared to leave the ward; that she walked to the foot of the bed, intending to turn to her right to leave the ward, when she tripped on a heat tent which had been placed in the center aisle between the beds, and fell to the floor of -the ward. Three beds were on each side of this aisle, and the foot of each bed extended to the aisle. Defendants, on ’ the other hand, maintain that plaintiff tripped on the base of said- portable screen that Mr. Kern’s own private nurse had placed adjacent to his bed. Plaintiff further contends that she was not guilty of contributory negligence, and she seeks judgment against defendant, Roman Catholic Sisters of Mercy, and against its liability insurance carrier, New York Casualty Company, in the sum of $10,500. Mr. Kern, plaintiff’s husband, asks' judgment in the sum of $137, representing moneys expended by him in connection with his wife’s injuries.

In the court a qua, there was judgment in favor of defendants, dismissing plaintiffs’ suit, and they have appealed.

Plaintiffs submit that the issues before us are as follows:

. 1. Was the fall of Mrs. Kern caused by the heat tent, left in the aisle by the ■nurse?

2. Did Mrs. Kern have an opportunity to see the heat tent, before she was trapped by it ?

3. Was Mrs. Kern a trespasser or licensee, or was she an invitee?

The records shows that the heat tent is a mushroom-shaped frame covered with mesh wire. Its length is twenty-five inches, its base width is twenty-two inches, its height is seventeen inches. The portable screen is the standard pattern of portable hospital screens. It consists of a cloth curtain in a metal frame that stands on inverted U-shaped metal feet, with a space of nearly two feet between the ends of the arc or tips of the U. The tent and screen were filed in evidence herein.

• Mr. Kern was confined to Bed No. 2 in the ward in which the alleged accident occurred. The beds were in a row and were numbered in categorical order, 1, 2, and 3. The patients were lying with their heads adjacent to the wall and their, feet pointed toward the center of the room; and Beds Nos. 4, 5, and 6 were in a like row at the opposite side of the aisle of the room, and adjacent to Beds Nos. 1, 2, and 3. There was an open floor space, a center aisle, of eight feet, which existed between the feet of the 'beds hereinabove- described.' That eight-foot aisle or passageway extended the thirty-foot length of the ward from the entrance door, or corridor, to the outside wall, in which there were four large windows. The ward was well lighted when Mrs. Kern was injured.

The heat tent- was used on the patient in Bed No. 5. That bed and Mr. Kern’s bed were in. apposition, with the aforesaid eight-foot aisle or passageway between them. The light in the heat tent annoyed Mr. Kern, so he had his own private nurse set the said- screen at the foot of his bed to shield his eyes. There was also another screen pláced at the right side of his bed. These two screens overlapped at the foot of the bed.

During the half-hour before Mrs. Kern’s accident, a nurse had attended the patient in Bed No. 5 by bathing him, changing his bedclothes, and otherwise ministering unto his needs. She had removed the heat tent from the patient and placed it on the floor close to the foot of his bed. This is across the aisle from the foot of Mr. Kern’s bed. It could have been on the floor at the foot of either Bed No. 4 or Bed No.' 5.

The evidence further shows that Mrs. Kern stumbled at the foot of her husband’s bed, Bed No. 2. She and her husband both testified to this, as did' the witness Barrilleaux.

Plaintiff did not testify that the heat tent caused her fall. On the contrary, she stated that she had not seen the heat tent as she walked around -the foot of her husband’s bed from the right side to the left side thereof, where she stood a few moments before leaving him, and that she did not see the heat tent as she retraced her steps; that she did not see it at all until after she had fallen. The record .shows that it was a conspicuous object on the open floor in a well lighted room..

Plaintiff further stated that she was looking straight ahead until she got to -the foot of the bed and turned; that she could not say she was or was not looking to the front, as shé ordinarily does when walking; that she could not say whether she was. looking where she was walking; that she assumes that she fell over the heat tent, because it was right .-there after she fell, and there was nothing else on the floor she -could have fallen on.

We believe that the evidence preponderates to the effect -that Mrs. Kern was not walking as a; reasonably prudent and observant person, and tripped on the base of the portable screen at the foot of Mr. Kern’s bed; that she did. not trip over the heat tent. This portable screen was apparent to a reasonably prudent and observant person. The screen was where it had a right to be. When she fell, she fell forward over toward or upon the heat tent, and that is why she assumes that it was the cause of her fall.

Having concluded that Mrs. Kern fell or tripped over the base of the portable screen, we are of the opinion that the second issue raised by plaintiffs has also been answered.

Having answered the first and second issues raised by the plaintiffs, we do not feel it necessary to pass upon' the third issue raised by the plaintiffs.

It is, therefore, ordered, adjudged, and decreed that the judgment appealed from be, and it is, affirmed, at the cost of appellant.

Affirmed.

JANVIER, J., takes no part.


text:
    FINANCE SECURITY CO., Inc. v. WILLIAMS et al.
    No. 3144.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 25, 1949.
    Ott & Richardson, Bogalusa, for appellant.
    Arthur V. Flotte, New Orleans, for ap-pellees.
   PER CURIAM.

The principal complaint of counsel for Smit and Dillard seems to be to the ruling of the court on the merits wherein it is held that' the validity vel non of the chattel mortgage was of ho concern to their ■clients as their liability did not arise out of the chattel mortgage on the automobile but was purely statutory and arose out of their failure to have procured the affidavit required by Section 8 of Act No. 172 of 1944.

Counsel states that that point was not raised in the pleádings and neither in brief nor in argument before the court.' Whilst it is true thait it was not made aui issue in the pleadings in- -the case we did find the point raised in brief of counsel for plaintiff who tíitéd' the very case of Southland Securities Co., Inc., v. Thieme, La.App., 142 So. 375, which was used as authority for the ruling in the opinion handed down in the present case. Besides, counsel himself must have given some consideration to the issue for, as is pointed out in the opinion handed down, he virtually conceded, -in language which is quoted from his brief, that plaintiff’s action against his clients arose out of their failure to have obtained the affidavit required by the statute.

But even though our decision on the merits be not restricted to that issue and we were to give consideration to the validity of the act of mortgage which is the subject of attack, and which we áre willing to do at this time, we are definitely of the opinion that the act of chattel mortgage is a legal and valid one and that counsel has failed in his attack.

The validity of the mortgage is challenged on the ground that .it fails to meet one of the requirements of Article 2234 of the Revised Civil Code in that it was not executed in the presence of two witnesses. The testimony on this point reveals that the two persons who signed as witnesses worked for the notary before whom the act was executed. Whilst the two witnesses were not present in the same room with the notary and the mortgagor and mortgagee when the latter signed the act, they were in an adjoining room and were called in by the notary to attest the act. They there saw the parties to the act with the notary, were fully aware of what they were called in for and acted accordingly. We have no doubt but that a very large proportion of authentic acts are executed -in the same manner and it amounts, in oür opinion, .to a substantial and satisfactory compliance with the requirements of the law.

A mere reading of the cases cited by the trial judge in holding that the act of mortgage was invalid is sufficient to differentiate the facts from those in' the present case. They are General Finance Co. v. Warner, La.App., 169 So. 112 and Lieber v. Watts, 19 La.App. 650, 139 So. 778. In the first of these two cases, the mortgagor signed the act of mortgage in, Calcasieu Parish and it was then sent to New Orleans to be executed by a Notary. In the second, the act was not signed in the presence of the notary and one of the attesting witnesses. Clearly the acts were invalid and could pot affect third persons.

We find no merit in any of the other contentions .on which the act is attacked and therefore a re-hearing will be refused.


text:
    HITZMAN et al. v. ETHYL CORPORATION et al. SAUCIER et al. v. ETHYL CORPORATION et al.
    Nos. 3133, 3134.
    Court of Appeal of Louisiana. First Circuit
    Nov. 25, 1949.
    . Durrett & Hardin, Baton Rouge, Fred G. Benton, Baton Rouge, for appellants.

      Taylor, Porter, Brooks &■ 'Fuller, Baton Rouge, Tucker, Bronson & Martin, Shreveport, for appellees.
   PER CURIAM.

Plaintiffs in each case are applying for a rehearing; both, applications are in the same language and tenor.

We did not decide the cases on the assumption that the plaintiffs had been excluded from claiming overtime compensation by the ruling of the Eighth Regional War Labor Board rendered on October 26, 1945. There is nothing contained, in. our opinion from which such an assumption can be inferred. On the contrary, we decided these cases on the premise that the plaintiffs were entitled to claim such overtime compensation; but had only one year from October. 26, 1945 within which to enforce their claims.

The plaintiffs further contend that we erred in stating; “To the contrary, these plaintiffs were specifically excluded’ from the benefits of the compromise agreement,” the “compromise agreement” referred to be,-ing the Williamson settlement mentioned in our opinion. In substantiation of our statement, we quote from Exhibit B attached tq stipulation .and motion to add parties plaintiff, dated March 10, 1947, found in the Williamson case and being filed as, of March 10, 1947 by a Deputy Clerk of Court, the following:

“The attorneys for the plaintiffs, in the above entitled suit have requested the defendants to include in the settlement agreement of September 26, 1946:
“(1) All Tetraethyl Lead Workers, who,' if they had brought suit with the other plaintiffs similarly situated, would be entitled to payment under the 'terms of the settlement agreement of September 26,1946.
“ (2) Certain other plaintiffs who are employed in the Sodium Section, but not in the cell room, who, it is claimed, actually changed clothes, during the period covered by the settlement agreement.
“Defendants deny any 'liability whatsoever to the employees covered by the above request for the reasons set forth in their answer to plaintiffs’■ petition, and, additional-' Iy; as to employees not parties to the suit, because their rights, if any, to claim overtime Compensation are clearly prescribed. However, in the interest of uniform treatment of 'all employees similarly situated, and provided judgment herein is entered approving and adopting the settlement agreement of September 26, 1946, and provided that there be no increase in the aggregate amount of attorneys’ fees fixed in said settlement by reason of the inclusion of other employees in said settlement agreement, as hereinafter proposed:
“(1) Defendants are willing to settle with Tetraethyl • Lead Workers who are not now 'plaintiffs to this action, in accordance with'the agreement of September 26, 1946, provided that they are employees of and still working for defendant, Ethyl Corporation, on the date the -said settlement is approved and confirmed by the Count, provided, ¡however, that all patrolmen (except Charles Ted Addison, Lawrence H. Bossier, Talmage E. Crumholt, David H. Hin-son/George W. Hoyt, John Charles Martin, Jason W. Meadors, John A. Worsham, and Willie' E. Wright, who were parties plaintiff to the above entitled suit and who will be included in the settlement if they are entitled to any overtime pay) shall be expressly denied any overtime compensation by the final judgment to be entered herein, inasmuch as all patrolmen cover defendants’ entire plant and are not required to change clothes.
“(2) Defendants are unwilling to include in the settlement agreement of September 26, 1946 those Sodium Section employees not employed in< the cell room. The arbitration award 'excluded, them, they have never been required to change clothes, and they were expressly excluded from the agreement of September 26, 1946.”

■ In the Hitzman suit, the plaintiffs were Tetra Lead Ethyl Department employees, who were not -employees of defendant on the date the settlement was approved and confirmed by the Court. In the Saucier suit, the plaintiffs were classified as patrolmen. We find no error in our statement.

In conclusion, after a thorough reconsideration of these cases, we are firm in our opinion that the Williamson settlement cannot be said to be a compromised settlement benefitting the plaintiffs who were not parties thereto arid that the award of the Labor Board had not the effect of causing the claims of plaintiffs to be “accounts stated.” We therefore feel that the claims of plaintiffs prescribed in one year as set forth in our opinion herein and the applications for rehearing are therefore denied.


author: REGAN, Judge.

text:
    NEW ORLEANS TERMINAL CO. v. HERRIN TRANSP. CO. et al.
    No. 19246.
    Court of Appeal of Louisiana. Orleans.
    Nov. 14, 1949.
    Porteous & Johnson, William A. Porteous, Jr., New Orleans, for appellants.
    • Monroe & Lemann, Walter J. Suthon, Jr., New Orleans, for appellee.
   REGAN, Judge.

This is an appeal by the defendants, Herrin Transportation Company and American Fidelity & Insurance Company, from a judgment awarding the plaintiff, the New Orleans Terminal Company, damages in the amount of $879.86.

The record reflects that on March 17th, 1947, a large truck and trailer of the defendant, Herrin Transportation Company, was traveling from the lake towards the river in Iberville Street, in the City of New Orleans, and proceeded to cross Basin Street. The neutral ground of Basin Street contains the tracks- of the plaintiff, which serves the terminal station and this track area is enclosed by iron fences on the lake and river sides of Basin Street. In order to afford passage across these tracks at Iberville Street, gates existed in these fences on both sides of the .track area. Each structure consisted of two movable gates suspended on rollers from an overhead iron beam supported, by col- _ umns. The defendant’s truck .was travel-ling slowly and passed under the first overhead structure on the lakeside of - Basin Street without mishap and while passing under the second overhead structure on the, riverside of Basin Street, the top of the trailer contacted the overhead beam of the structure, causing it to fall to the ground, resulting in the damages which are the subject of this litigation.

The only question posed by the foregoing facts is\whether there was any negligence on the part of the truck driver, an employee of Herrin Transportation Company.

Counsel :for both plaintiff and defendant concede that they have been-unable to find any case specifically Apposite and analogous. However, counsel for plaintiff rely primarily on what they contend is a “pertinent and favorable decision” in Culpepper v. Leonard Truck Lines, 208 La. 1084, 24 So.2d 148. The decision in that case reversed the Court of Appeal for the Second Circuit, 23 So.2d 561, and awarded damages to the building owner, whose fire escape was suspended above an alley and was struck by the top of a motor vehicle using that alley. The court was of the opinion that [208 La. 1084, 24 So.2d 151] :

“When the truck driver entered the alley on the wrong side and continued to travel without observing as large a physical object as a fire escape, he undoubtedly failed- to observe that which he should have seen. According to his testimony, the lower end of the fire escape could not have been more than approximately two feet above the top of his head while he was sitting in the cab of his truck.
“For the purpose of this decision, we might concede that the obstruction was un- • lawful. However, the facts in this case leave some doubt on that point. The fact that an obstruction is unlawful cannot excuse a motorist from exercising the degree of care required of him.”

We are of the opinion that-this case is neither apposite nor analogous in that the court, in that case, held, in arriving at its decision, that the truck driver had failed to observe that which he should have seen. The fire escape was plainly visible to the truck driver, who had entered the alley on the wrong side and continued to travel in the said alley without observing such a large physical object as a fire escape.

Counsel for the defendants rely upon the fact that the truck passed through the first gate without striking the overhead beam and, therefore, the operator thereof had the right to assume that the elevation of the riverside was the same as the lakeside of the structure.

The evidence reflects a difference of approximately two inches in the elevation of the lake and river overhead gate structures. A summation of the evidence would indicate this difference is in the street level. The engineers, who testified for the respective litigants, estimated the elevation of the overhead beam of the lakeside gate structure at 11.92 feet above the street and the elevation of the overhead beam of the riverside gate structure at 11.74 or 11.75 feet. The witnesses for the plaintiff testified that you could not, with the naked -eye, observe any difference in the height of the two overhead structures.

Neil Carroll, the truck driver, testified that he had driven through this gate before with the “same equipment”, but he could not be certain whether he was, on previous occasions, using identically the same truck and trailer or a similar one. The height of the trailer body was estimated at eleven feet, seven to nine inches.

It will be observed that there is no statute or city ordinance to the effect that such a structure, as the one which we are considering, must afford a clearance to or beyond that height.

Act No. 286 of 1938, as amended by Act No. 54 of 1942, Section 5, thereof, provides: “(c) (Height). No vehicle unladen or with a load shall exceed a height of twelve (12) feet six (6) inches; provided, that nothing herein shall be held to constitute an obligation on the part of the State to provide such clearance.”

The mandate of Section 5 is directed to the height of motor vehicles and is not concerned with the clearance of state owned or maintained overhead structures, as will be observed from the disclaimer in the last clause quoted in that section.

As stated hereinabove, counsel for both plaintiff and defendant concede that they have been unable to find any case specifically in point and neither have we, however, there are a great many cases in each of which one overhead structure is involved, but neither counsel nor we have been able to find where a vehicle passed safely under the first of two or more structures, which appeared to a reasonably prudent man to be of the same height and subsequently an accident occurred by virtue of the vehicle striking the second overhead structure.

In this instance, the driver of the truck was travelling in a careful and prudent manner and had safely passed under one overhead structure, but because of the difference' of approximately two inches in elevation, which was not visible to the eye of a reasonably prudent man, the accident and resulting damage in question occurred.

Counsel for plaintiff concede, hypothetically, that if a foot of clearance had existed between the top of the truck and the overhead beam on the lake side of Basin Street, there may not have been any. negligence and resulting liability o.n the part of the defendants, but since approximately only two inches of clearance existed on the lake side of the shed and the top of the truck and the truck struck the. riverside thereof, a fortiori, there is liability. We find ourselves unable to follow this rationalization relative to the disparagement of clearances that would or would not create negligence and resulting liability. To follow this premise to its ultimate conclusion would, per se, result, by analogy, in our counting . how many angels could dance on the point of a needle.

In our. opinion no negligence or fault attached to the truck driver in this instance. If any negligence existed 'it was on the part of the plaintiff. The defendant’s truck driver certainly had a right to use the street which traversed the plaintiff’s tracks and, by the same token, he had a right to assume that the elevation of the overhead structure on the lakeside of plaintiff’s property was the same as the elevation on the riverside of plaintiff’s propérty.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered- that there be judgment herein in favor of .the 'defendants dismissing plaintiff’s suit at its cost.

Reversed.


author: -McBRIDE, Judge.

text:
    Succession of MOORE.
    Nos. 19327, 19393.
    Court of Appeal of Louisiana. Orleans.
    Nov. 28, 1949.
    See also, La.App., 42 So.2d 376.

      Theodore Cotonio and James N. Brit-tingham, Jr., New Orleans, for adminis-tratrix and appellant.
    Lewis R. Graham, New Orleans, for opponents and appellees.
   -McBRIDE, Judge.

Two appeals are before us, both perfected by Hattie Thornton Patterson, ad-ministratrix of this succession. One appeal is from a judgment amending and homologating her final account filed February 16, 1945, and the other appeal is from an order directing appellant to deliver the movable property of the succession to the heirs, who have by final judg- ' ment been ordered placed into ’ possession thereof. The appeals were consolidated for argument.

The administratrix complains of two items on the final account, and the opponents have by way of answer to the appeal complained of several others.

The account disclosed that the ad-ministratrix collected $492.30 rent from the property 1921, Foucher Street. The trial judge found that the amount should be $645.00, and charged the administratrix therewith. Appellant contends that the actual collections aggregated $516.39, claiming that the tenant was ill for an extended period and failed to pay regularly, which accounted for the noncollection of rents for all months. The court below was of the opinion that the failure to'collect rent for each month was inexcusable, and that if the tenant did not pay rent it was the duty of the administratrix to have evicted him, rental units being then scarce, and the property leased to a tenant'having the ability to pay. We concur in that view arid approve the item as amended below.

Appellant also complains of the disal-lowance of item No. 19, “To Theodore Cotonio and Joseph A. Casey, attorneys for services rendered in resisting application of Coulon heirs for letters testamentary $250.00.” The reasons given by the judge below for the deletion of the item are: “The Administratrix had no interest in opposing the application of the heirs for a Dative Testamentary Executrix nor to question the validity of the last wills and testaments. The Administratrix had no personal interest and could not have profited as an heir or legatee by the intestacy of the decedent. Counsel represented the Ad-ministratrix for the past ten years and was thoroughly familiar with the case and the law applicable to such issue. Neither the administratrix nor her attorney had the right to litigate matters in which they had no interest, at the' expense of the succession.”

Furthermore, Mr. Casey made no appearance on the hearing of the oppositions, and the evidence taken on the trial thereof discloses that he had withdrawn from the case. We find no error in the ruling of the lower court.

Opponents-appellees argue that the judge erred in not disallowing items 7, 8, and 9, totalling $79.92, for costs of Court of Appeal, briefs, and application for writs to the Supreme Court, all incurred in connection with the administratrix’s appeal from the judgment amending and homolo-gating her provisional account. The judge observed that the administratrix had the right to defend her account, both in the district court and in the appellate courts, and in the absence of a showing that the account was grossly misrepresented and the contents frivolous, the charges should be allowed. We find no error in this ruling.

Item No. 17 is for the fee of the administratrix’s attorney for services rendered in connection with the appeal from the judgment homologating the provisional account. The amount shown by the- account is $150.00, which the judge found excessive and reduced to $100.00. Opponents argue that the item should be disallowed in its entirety. The attorney is entitled to be paid for the services rendered, but we think that $50.00 is a fair remuneration, and the item is accordingly reduced to said amount.

Opponents contend that item No. 18, covering attorney’s fees for services rendered in preparing the final account, in the amount of $50.00, approved by the lower court, should be deleted from the'account. The attorney undoubtedly is entitled to a fee for preparing and filing the account, but we conclude that $25.00 would be ample, and, therefore, we reduce the item to that amount. This was the amount allowed- for preparation and filing of the provisional account. There is no reason why the preparation of the final account should not have been a simple one; whatever difficulty may have been entailed in its preparation, we believe, was due to the irregular manner in which the records of this succession were kept.

The attorney’s fees allowed on, the provisional account and those now approved by us on the final account total $500.00, and that, we believe, is an adequate compensation for the services rendered by the attorney.

Item 20 is also disputed: We are urged to disallow the administratrix’s retaining $100.00 for future court costs and attorney’s fees. The trial .judge reserved ruling thereon until such time as the ad-ministratrix applies for her final discharge. Undoubtedly there will be expenses connected with the administratrix’s discharge, and at this time the amount thereof cannot be calculated with any. degree of certainty, particularly as an expert will in all probability be appointed to examine the accounts and vouchers, and his fee is to be fixed by the court. Then, .too, the cost of the present appeals is to be paid by the succession, and we cannot agree with opponents that the , item should be stricken from the account or the amount reduced.

Passing not to the other appeal, i. e., from the order commanding the delivery of the movables to the heirs, we can but observe that appellant has not advanced any good or sufficient reason why the order should be revoked. Our decree will homologate the administratrix’s final account, and we can think of no valid reason why the order should not now be affirmed. ' ■

We cannot refrain from here expressing the hope that our decree will place at rest once and for all. the contentions of the parties, as such result, will; be highly desirable. The succession property, inventoried at a very small amount, has been under administration for a duration of eleven years. Nearly all proceedings were vigorously and bitterly contested; several phases of. the matter were appealed to and decided by this, court. The affairs of this small succession should be wound up.

It is ordered, adjudged, and decreed that the, judgment recasting and -homolo-gating the administratrix’s final account be amended in the particulars as above set forth, and as .thus amended the judgment is affirmed.

It is further ordered, adjudged, and decreed that the order commanding the ad-ministratrix to deliver the movable property to the heirs is also affirmed.

All costs of both appeals are to be paid by the succession.

Amended and affirmed.


author: LeBLAN'C, Judge.

text:
    STABLER v. KEATY.
    No. 3160.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 25, 1949.

      . Gl'enh S. Darsey, Baton Rouge, for appellant.
    Odom & Belanger, Baton Rouge, for ap-pellee.
   LeBLAN'C, Judge.

In December, 1945, the defendant, Thomas S. Keaty was having a house constructed on a property which he owned in the Parish of East Baton Rouge. On December 27th of that year, the plaintiff, J. W. Stabler, d/b/a Seaboard Plumbing Company, submitted an offer in writing to him to furnish the labor and material in installing certain plumbing’ fixtures in the house. The proposal read that he would furnish the material and install the fixtures for the sum- of $635. The fixtures to be installed consisted of a 5 foot recess tub C. P. trim; 1-20 x 18 lavatory, C. P. trim; 1-Hanover closet with sheet covered white seat; 1-two-compartment white sink, C. P. trim ;• 1-20 gallon Butane water heater; .5 jar septic tank, and gas openings in each room. On December. 31, the defendant accepted in -writing^ the terms, specifications and conditions of the proposal- as.'being- satisfactory and he -authorized the plaintiff to execute the same.

Plaintiff went -to work on the property and in the meantime the defendant requested that he furnish and install an extra lavatory at the price of $32.80 and an extra closet priced at $30, increasing the contract price to $697.80. The defendant paid him the sum of $254 leaving a balance due of $443.80 which he did - not, and refused to pay. This suit is. one instituted by the plaintiff to recover that balance and the additional sum of $7.50, the cost of preparing -and having recorded, a lien affidavit against the property, ; . ..

In his petition,, after setting out the contract and alleging that all the materials and fixtures furnished were of first class character and that -the work was done in a thorough and workmanlike manner, plaintiff alleges that he completed his work on March 26, 1946, and after having made several dqmands, for payment, which were refused, he had the necessary -affidavit prepared and recorded in order to protect his lien on the property and on April 24, 1946, sent a copy of the affidavit which he had had recorded, to the defendant by registered mail. He accordingly prays for judgment in’the sum of $451.30 with recognition of ■his materialman’s and laborman’s lien against the property. •• -. ■

In answer to the demand made against him the defendant filed an answer in which he admits having entered into a contract with the plaintiff, all as is set out' in the latter’s petition, but denies owing him anything. He then assumes the position of a plaintiff in reconvention and avers that the plaintiff has neglected and refused to complete the contract 'Which they had entered into though repeatedly requested to comply with its terms. He sets out that on June 20, 1946, he wrote a letter to the pláintiff calling his attention to" several point's in-connection with the job which he wanted him to correct, copying the entire letter in his answer.- He, then goes on to aver that in addition to the faulty workmanship as pointed out in his letter,, the plumbing system installed in his residence has been inspected by an official plumbing inspector who reported that a number of items did not conform to the standards of the plumbing code. These he enumerates as, first, the safety valve on the hot, water heater being installed on the pipe or pipes for cold water instead of on the hot water pipes as called for by correct plumbing practices; second, the entire water system should have been provided with drainage outlets so that it will drain correctly, the existing arrangement ‘having caused unnecessary trouble and expense. during a cold spell of weather experienced in February of 1948; and third, that the plumbing regulations require a septic tank of the capacity of 500 gallons, different from the type that was installed by the plaintiff. Further he alleges that the plaintiff installed the lavatory and fixtures in the bathroom in a position' and 'in a manner causing considerable inconvenience in their use not to mention their unsightly appearance. Finally he alleges that because of the delay of the plaintiff in completing the job he was obliged to continue to rent the property he was occupying, for a period of three months, and had to pay rent at the sum of $35 per month.

All told therefore the defendant claims the sum of $765 in reconvention, itemized as follows: $300 — the cost of properly installing a septic tank of the type and capacity required by the plumbing code; $150 — cost of rearranging the fixtures in the bathroom; $50 — expenses caused during the cold spell of February, 1948, because of faulty drainage in the drainage outlets; $75 — permanent correction of faulty drainage; $105 — three months rental he was obliged to pay by reason of unnecessary delay caused by plaintiff in completing his work; $50 — cost of correctly installing piping for Butane gas system, and $35 — installation of safety valve on hot water heater.

The case went to trial in the lower court and resulted in a judgment in favor of the plaintiff for the full amount prayed for by him.' The defendant’s reconventional demand was specifically dismissed and he has taken this appeal.

The evidence reveals that this contract was entered into at a time, when, in order to obtain the better material for jobs of this kind, it was necessary to have a priority rating which the defendant did not have. The material furnished by the plaintiff under his contract .may not have,been the highest grade and standard, but, apparently it was the best that he was able to obtain without a priority at the time and besides, it seems as though the defendant ■ was anxious to get the job done and was willing to accept whatever could be supplied. A,s a matter of fact, he signed the contract a.C7 cepting the plaintiff’s proposal and it is therein written out exactly what the plaintiff was to furnish in the way of materials.

Although we hesitate to do. só at. the length that will be entailed, we deem it proper to take up the complaints made, by the'defendant one by one and discuss them in the light of the evidence which we have before us.

His chief complaint is with regard to the septic tank. He claims first, that plaintiff furnished a three jar tank instead of a five jar tank as called for by the contract. From the manner in which these tanks were installed it looks as though they appeared to be only a three jar tank but the evidence is definitely to the effect that there are five jars of ’50 gallon capacity each, which is what the plaintiff agreed to furnish and install.- The defendant says something about these tanks not having a bottom, but that seems to be purely a surmise on his part as the evidence clearly shows that the tanks do have bottoms. It looks as though the defendant had a vague suspicion that the tanks had no bottoms because sometime after they were used, it was discovered that a water well on the property, situated not far from the tank, became contaminated and he got it fixed in his mind that the contamination came from the contents of the septic tank' which seeped through the ground and finally reached the water in the well. There is absolutely no proof to support the claim that the contamination in the water in the well, if there was any, came from the septic tank’s contents. Another contention made by the defendant is that these tanks which total a 250 gallon capacity did not comply with the requirements of the State Sanitary Regulations as embodied in the plumbing code and which call for septic tanks of 500 gallons capacity. In this case it is only necessary to state that the' plaintiff furnished the tanks the contract called for. Defendant seems to contend' that plaintiff, being a plumber should have known the regulations called for and should have advised him accordingly. But we see no reason why the defendant himself, who was having the house built and the plumbing work done should not have informed himself as to the requirements, if there were any, as well as the plaintiff. But even so the testimony is to the effect that the regulations-which he now invokes in order to show the plaintiff’s ignorance and his incapacity to do the work properly, do not apply to the area in which this house was being built. They are regulations governing work of this kind in the city of Baton Rouge and do not operate in the outlying, districts in the country.

The next complaint of defendant which he seems to think very important is with regard to the sink that was furnished under the contract. He is not satisfied with the quality of the sink and claims that he expected the plaintiff, after the governmental restrictions were taken off, to change it for a metal-sink. On what basis he expected the plaintiff to do this we are unable to say and he has not informed the court why he expected such a thing. He complains too that the sink had -a crack in it and introduced a photograph in evidence to prove that. The plaintiff is positive that when- his men installed the sink, and his men testified to that also, there was no crack in it and they are certain that they had- nothing to do with the crack that presently exists. As a matter of fact, the defendant in his testimony doesn’t specifically charge them with having cracked it in installing it and that seems to be more of -a surmise on his part than anything else.

Another complaint on which he dwells at length is with regard to the installation of the lavatory and toilet in the bathroom. He produced another picture to show the' unsightly appearance of these, fixtures. What happened there was that he wanted the fixtures to be put in a certain place in the bathroom and putting them there jammed the lavatory against the door. In installing the frame of the door it became necessary to cut a bit around the lavatory so that the door would open and close. Whilst it must be admitted, from looking at this photograph, that it isn’t of a very pleasing appearance, the fact is nevertheless that the defendant himself is the one who bad them installed as they -are and he should have known exactly what to expect as a result. The men working for the plumber carried out the orders given them and we don’t think they could be blamed for doing so.

The next complaint is with respect to the safety valve on the hot water tank. This valve he says should be on the hot water and not on the cold water pipes as placed by the plaintiff’s men. With regard to this however, some of the defendant’s own witnesses testified that this valve could be placed on either the hot or cold water pipes and some of the testimony of other witnesses seems to be that the better way seems to be to place it on the cold water pipes as was done in this instance.

With regard to the faulty installation of the drainage outlets which defendant says caused him so much trouble during that cold spell in February, 1948, we agree with the district judge when he states that the evidence is insufficient to show any failure or lack of good workmanship on the part of the plaintiff. There was another picture introduced to show what' -appears to be a rather crude way of installing one of the pipes to which an outlet is attached but as we understand the testimony that was some of the defendant’s own work in trying to correct what he thought was an improper installation.

We believe the trial judge has properly summed up the case when he stated that if there was any improper installation of any of the fixtures, the defendant should have made -his complaints at the time and not wait until long after he had moved into the house and taken possession. As further stated by him, we are of the opinion that the plaintiff complied with the contract in a substantial manner and that he completed the work and furnished the material as quickly and in as satisfactory a manner as the conditions warranted at that time.

Finding no error iff the judgment appealed from, it is hereby affirmed at the costs o'f the defendant, appellant herein.


author: DORE, Judge.

text:
    GRIFFIN v. CATHERINE SUGAR CO., Inc.
    No. 3156.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 25, 1949.
    Durrett & Hardin, Baton Rouge, W. B. Holcombe, Baton Rouge, for appellant.
    Whitehead & Kimball, Port Allen, for appellee.
   DORE, Judge.

The plaintiff was employed by the defendant, Catherine Sugar Compány, Inc., on one of its two plantations, as a cane cutter. It is shown that the defendant operated a sugar factory in connection with its plantations and that all or .part of the cane produced on these plantations was transported later to the factory to be manufactured into sugar. The duties of plaintiff were strictly that of cutting cane and he had nothing to do with the transportation of the cane to the factory or with the processing of said cane into sugar. It is further shown that the plaintiff was one of many employees of the defendant company, who resided across the Mississippi River in East Baton Rouge Parish, and that it was the custom of the defendant company to pick up these employees in the morning at their respective homes, in a-cane truck and trailer, and to return them in the evening, after their labors were completed, in the same manner. For that purpose, the company furnished its own driver of the truck. There was no requirement or agreement that these employees, including plaintiff, had to use this particular means of transportation.- This means of transportation was' furnished for their convenience and they had the option of using any other means which they chose.

It is alleged tha-t on December 2, 1941, while being transported to his home in East Baton Rouge Parish, in a cane truck and trailer owned by defendant and operated by its employee, plaintiff was thrown out when the truck was stopped suddenly and without warning, and that the fall broke plaintiff’s leg. • On these facts, plaintiff sues in tort for his pain and injury, alleging that his fall and resulting injury was caused solely by the gross negligence of defendant’s truck driver operating. in the course and scope of his duties. In the alternative, he sues under the Workmen’s Compensation Act, Act No. 20 of 1914, as amended, in the event that such act should be found to apply, seeking compensation for permanent total disability.

The defendant admits the employment of plaintiff at the daily wage of $1.65, as alleged in the petition, but denies that such injury as plaintiff may have sustained was in any way caused my negligence on its part or the part of its truck driver. The answer sets forth that such injuries as plaintiff may have sustained were caused by his own acts and outside of the scope of his employment. The answer further sets forth that plaintiff’s occupation was strictly that of cane cutter and that, therefore, was not in a hazardous occupation, and hence, his claim does not come within the terms and provisions of the Workmen’s Compensation Act.

After hearing the case, the trial court for written reasons assigned, rendered judgment, dismissing plaintiff’s suit at his cost, and from that judgment, the plaintiff has appealed.

The first question to consider in this case, is whether or not the Workmen’s Compensation Act applies in the light of the admitted facts. If it does apply, it is obvious that the question of tort is not involved.

It is clearly shown by the evidence that the only required duty of- plaintiff was that of cutting sugar cane and that his only contact with machinery of any kind was riding back and forth as a passenger in the company truck, -and -that this was not required of him, but was merely an accommodation for his convenience, which he could accept or reject. As aforesaid, the defendant company was 'engaged in a business consisting of two distinct departments: (1) .that of growing sugar cane, and (2) that of manufacturing sugar from sugar cane, and as set forth in the case of Robichaux v. Realty Operators, 195 La. 70, 196 So. 23, 26:

“The question whether the employer’s business in which the plaintiff was performing services at the time of the accident was a hazardous or a non-hazardous business depends upon whether such services as the plaintiff was performing should be classed as appertaining to the manufacturing department or as appertaining to the farming department of the business.”

In the Robichaux case, supra, the employee’s duties consisted of gathering the sugar cane into separate piles for the loader to pick up, which the court held to be the initial step in the delivering of the cane to the factory, and quoting:

“The cane had been stripped of its leaves, and topped, and severed from the soil by the cane cutters, and was therefore a finished product, as far as the farming or agricultural process was concerned, and was completely prepared for delivery to the mill, before the plaintiff’s services began. Farming is not a hazardous business or occupation, and is therefore not governed by the workmen’s compensation law; but the operation of a factory or mill, including, specifically, the operation of a syrup mill, sugar house or sugar refinery, is declared to be a hazardous business or occupation, in Act No. 20 of 1914, Sec. 1, subd. 2, Dart’s Stat. § 4391.”

It is clear from the Robichaux case that the'court considered that:the operations on a sugar plantation up to the time that the cane was cut from the ground, was strictly a non-hazardous farming operation, and that the hazardous manufacturing operation did not begin until the beginning of the piling and loading of the cane. ■ We believe that this view is correct and that in accordance therewith, the case at bar does not come within the Workmen’s Compensation Aot, for the reason that it is clearly shown by the facts that plaintiff’s duties consisted ’entirely of cutting cane, an agricultural pursuit, and that his mere transportation to and from the'cane fields does not alter his status as a cane cutter.

With reference to the questions as to whether the defendant'company can be •held liable in tort, we must consider the finding of fact made by the trial court and decide whether or not there is any manifest error in that finding. The facts as found by the trial court are briefly as follows:

On the return trip from the plantation, the company cane truck and trailer was being driven by Joe Dupree, and in the cab with him, were four Negro women' cane cutters, two sitting on the seat and the other two sitting on them. It appears that these women started teasing one another and that one or the other became angry, and fighting ensued. The truck driver thereupon pulled the truck onto the shoulder and stopped it, and the women alighted from the truck and continued to fight. The plaintiff was at the extreme rear of the cane trailer, and upon hearing the noise and seeing the fight, going on outside, climbed over the side of the truck, at the rear, and jumped and fell to the ground or pavement, and injured his leg. It seems that his idea in getting off the cane truck was to go separate the women and stop the fight. Afterward, some of the other Negro cane ■ cutters picked the plaintiff up and placed him back in the cane trailer, and later still, he was taken out of the truck about one quarter mile from his home, which could not be reached by the truck, and was taken to his home by four of his fellow employees.

The driver testified that he stopped his truck in a. normal manner and without any jerk, and in that respect, he is corroborated by others. Further, it is shown that the truck trailer was not overcrowded.

If the above is a true statement of the facts, it is obvious that the driver was guilty of no negligence and that the plaim tiff has only himself to blame for his injuries. Even under the provisions of the Workmen’s Compensation Act, it must be said that plaintiff under these facts, was strictly on .a mission of his own, and should it be found that the employee was-engaged in a hazardous occupation, the accident could not be considered as coming within the scope of employment.

It is strenuously contended by plaintiff, however, that the facts are not as stated. Plaintiff contends that the driver of the truck stopped suddenly - and that: he there- ■ upon started ■ again for the sho-ulder, and again stopped suddenly, and that because of the severe jerk or jolt in stopping; plaintiff was thrown out of the back of the truck and was knocked unconscious and sustained the injuries complained of herein.' The majority of'the witnesses testified' to that effect, but the trial judge apparently believed the driver and those who corroborated him. As to whether or not plaintiff was thrown out of the truck or jumped out of the truck, it must be observed that this cane trailer was cradle-shaped, with a slant in the rear, and with sides approximately four feet in height. There is testimony to the effect that plaintiff was sitting on a board at the extreme rear of the truck, which board was about one and one-half to two feet from the floor. There is other testimony to the effect that he was sitting on the floor - and leaning backwards. In any event, even if the truck jerked, it is difficult to see how .it was physically possible for him to have been tossed over this rear slant of the trailer, i even though several of the witnesses so testified. , It. may be noted that it was practically dark at that time and very easy for,-the occupants of the truck to have gotten the impression that plaintiff was thrown from the truck, while as a matter of fact, he jumped out of the ■truck;.''We -are impressed'by the testimony of the ’ Baptist Minister, Middleton, to the effect that‘he was sitting near the plaintiff and clearly saw him climb over the side at the rear, and also by the testimony of witness Spears to the same effect.

The testimony is to the effect that plaintiff was found in the rear of the truck and counsel 'for plaintiff contends that this shows definitely that he must have fallen from the truck, and had not jumped from the side of the truck, for if he had jumped, he would not have been in the rear. However, on that point, it is noted that there is no testimony to the effect that he was found in the middle,rear, or side rear of the truck. ;

' There is much confusion in the testimony in this case, which was tried some five and one-half years after filing,' but we agree with' the trial judge that plaintiff 'has not sustained the burden -of proving - that- the accident was caused by the negligence of ■the truck driver of defendant company. We feel that if plaintiff was in the position he' says-he was, it was practically physically impossible for him to hare been tossed out, and that the testimony of Reverend Middleton is the logical explanation of what happened.

For these reasons, the judgment appealed from is affirmed.