author: ELLIS, Judge.

text:
    DELAUNE v. CRAWFORD et al.
    No. 3083.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.
    Huckabay, Seale & Kelton, of Baton Rouge, for appellants.
    Durrett & Hardin and Watson, Blanche, Fridge & Wilson, all of Baton Rouge, for appellee.
   ELLIS, Judge.

The plaintiff Robert Benton Delaune has filed this suit against the defendant Millard B. Crawford in which he is claiming damages in the sum of $331.34 plus interest at the rate of five per cent from date of judicial demand until paid and for all costs as the result of an automobile collision between plaintiff’s automobile driven by his nineteen year old daughter, Betty Delaune, and defendant’s automobile being personally operated by the defendant. This accident occurred near the easterly end of the overpass of the Perkins Road over the tracks of the Louisiana and Arkansas Railway Company, just outside the limits of the City of Baton Rouge on February 14, 1948, either at or shortly after the noon hour. Visibility was good and the weather clear.

Plaintiff alleged that his automobile was being driven in a general easterly or southeasterly direction on the Perkins Road and the driver, upon approaching the easterly end of the overpass, gave a proper signal for a left turn and slightly turned to the left, so as to drive plaintiff’s automobile off the Perkins Road and into a parking space near a grocery store; that the overpass where the Perkins Road crosses the railroad track is both curved and inclined so that automobiles traveling as plaintiff’s Plymouth was traveling while approaching the overpass traveled upward to the crest of the overpass and then down toward the easterly end of this overpass, the easterly portion of this overpass being curved to the left or towards the north; that plaintiffs Plymouth automobile had been driven almost off the Perkins Road and only the rear portion of this automobile was on the Perkins Road, near the east end of the overpass when the Plymouth automobile was struck by the defendant’s automobile which had also been traveling in the same direction as plaintiff’s' automobile but to the rear of plaintiff’s automobile.

Plaintiff charges the defendant with traveling at an excessive and dangerous rate of speed which was grossly excessive under the circumstances and which amounted to negligence which was a proximate cause of the accident; that defendant was traveling at an excessive rate of speed upon a public bridge, causeway or viaduct, and at a speed which was unsafe; that defendant was not driving on the right side of the street or highway and that this amounted to negligence which was also a proximate cause of the accident; that defendant’s automobile was attempting to overtake and pass another vehicle and had already overtaken and passed one other vehicle at a time when the left side of the highway was not visible and free of on-coming travel for a sufficient distance ahead to permit such overtaking and passing, and that this amounted to negligence which was a proximate cause of the accident; that defendant was negligent in attempting to overtake and pass plaintiff’s automobile while approáching the crest of a hill and on a substantial grade and while approaching and entering in a curve where his view was obstructed within a distance of five hundred feet; that defendant was also further negligent in attempting to pass another vehicle proceeding in the same direction without giving any audible and sufficient warning of his intention so to do, which was a proximate cause of the accident; that defendant failed to slacken the speed of his automobile when he saw or should have seen plaintiff’s Plymouth automobile making a slow and gradual turn to its left, and failed to steer his automobile to the right so as to pass to the right of and behind plaintiff’s Plymouth automobile; that defendant was not keeping a proper lookout and failed to see or saw and failed to heed plaintiff’s automobile which was being properly operated and that this amounted to negligence on the part of the defendant driver, which was a proximate cause of the accident.

Plaintiff prayed for judgment against the. defendant, Millard B. Crawford, and American Fire and Casualty Company of Orlando, Florida, which was the insurer of the defendant’s automobile, for $331.34.

The defendant’s answer was a general denial of plaintiff’s allegations and then, in the alternative, he plead contributory negligence on the part of Betty Delaune, plaintiff’s unemancipated minor daughter, who was driving the car at the time of the collision, in that she failed to keep the automobile she was driving-under proper control and that she failed and neglected to keep a proper lookout and that she attempted to make a left-hand turn across a heavily traveled highway without warning and without ascertaining that such left-hand turn could be made without danger to normal overtaking or on-coming traffic, as required by Act 286 of 1938, Section 3, Rule 9. Defendants further assumed the position of plaintiff in reconvention and prayed for judgment against the plaintiff Delaune in favor of the defendant Millard B. Crawford, individually in the sum of $50.00, and in his favor 'for the use and benefit of the American Fire and Casualty Company in the additional sum of $133.40, together with legal interest and all costs.

The case was duly tried and for the oral reasons which were dictated to the Court Stenographer and are in the record, the Judge of the District Court rendered judgment in favor of the plaintiff as prayed for and rejected the reconventional demand of the defendant.

The defendant filed an application for rehearing which was denied, whereupon the defendants have appealed from this judgment.

The facts show that about noon on February 14, 1948, Miss Betty Delaune, 19 year old daughter of the plaintiff, was driving plaintiff’s Plymouth automobile on Perkin’s Road, going to Saia’s Grocery store which is to the left of this Perkins Road, close to the easterly end of a railroad overpass. In the car with her at the time was her younger sister, Bennie Nell Delaune. It is shown that this overpass, as stated in plaintiff’s brief and also as shown by the record, is:

“ * * * A ‘hump-backed’ overpass, and as a motorist travels away from Baton Rouge and approaches the overpass, the overpass itself curves to that motorist’s-left. The overpass is rather long, is considerably higher in the middle than on each end, and is itself a left curve as one’ travels away from Baton Rouge. A vehicle on the Baton Rouge side of the overpass cannot be seen from the opposite end of the overpass, because of the high ‘hump’ in the middle, and the curve.”

When the plaintiff’s daughter, Miss Betty Delaune, neared a point in front of Saia’s grocery, the testimony shows that she slowed, made a left-hand turn across the road and when all except the rear end of her car had cleared the highway she was suddenly struck by the defendant’s automobile at her right .rear fender, which also bent in the trunk of plaintiff’s car.

Mr. Jesse Shepherd, a witness on behalf of the plaintiff, testified that on the date of the accident he was engaged in the construction of the roof on his building which was 10 or 15 feet above the level of this overpass and was so located that he could see traffic coming up on the overpass and going down; that he was about 150 feet from the accident when it happened; that he had unobstructed view. His testimony is to the effect that the defendant Crawford was coming fast over this overpass and that there were three cars on the overpass — the first was the plaintiff’s car, next a car following plaintiff’s car and then the defendant’s car, and that the defendant, before he got off of the overpass, pulled over into the left-hand side or northbound traffic lane in an attempt to pass the car which was following the plaintiff’s car, and at that time the witness states he remarked: “My God, look at that man coming across there,” referring to the defendant. Shepherd further testified that at the-time of the collision the plaintiff’s car was practically off the road. The plaintiff’s car was knocked around and the little girl, Bennie Nell Delaune, was thrown out of the car, however, she was not seriously injured. Shepherd immediately went to the scene of the accident and there heard defendant Crawford state that he wanted to pay the damages, that he had had too many wrecks and did not want his insurance company to know about it. Shepherd’s version of the accident is that Crawford was on the extreme left-hand side of the overpass as he was coming off of it and he tried-to go around the car which had been following plaintiff’s car and he could not get back into his proper lane of traffic quick enough after passing this car to avoid striking the plaintiff’s car.

Wilfred Hamilton was called as a witness on behalf of the plaintiff and testified that he was a brother-in-law of the plaintiff and that on the day of the accident he was approximately a block away when he heard the collision. He first heard the brakes and then the collision and he immediately turned around and went back to the scene of the accident, arriving there “not more than a minute” after it occurred. He made an inspection of the road of the overpass and stated that toward the bottom of the overpass on the left side that skid marks began about two feet from the curb and were about 50 or 75 feet in length, and that they stopped at approximately 30 feet from the scene of the accident. This witness further testified that the left front fender and bumper of defendant’s car struck the left rear fender, “ * * * came right straight into it, it bent the turtle back, the trunk part was bent up” of the plaintiff’s car. He heard part of the conversation between Shepherd and the defendant Crawford, and he heard Shepherd tell Crawford that “If he didn’t stop coming down that overpass so fast he would kill somebody and he shook his finger in his face. He mentioned, it seems he had seen him come down the overpass before.”

Robert Delaune, plaintiff and owner of the Plymouth automobile involved in the wreck, testified that on the date of the accident he was sick with influenza but that either that day or the next day, the defendant Crawford talked to him and told him he had had three serious accidents recently and he would not like the insurance oompany to know about this one and stated that he was not able to have the car fixed but offered to take it out to L.S.U. where he worked and fix it himself, but plaintiff did not agree to this. He testified that Mr. Voigt, the representative of the insurance company, came to his home with Mr. Crawford and told him that “it looked like Mr. Crawford was at fault and to get three estimates and he would turn it in to the home office and get it repaired. Apparently looked like Mr. Crawford was in the wrong but it was not his place to say so.” Three estimates were obtained and the plaintiff testified that Voigt told him that he gave it to the Standard Motor Car Company as they were the lowest, and that he did not know that the insurance company had refused to pay the Standard Motor Car Company until after the car was fixed, some two or three weeks later, when he called Mr. Voigt and he told him at that time that the insurance company refused to pay, that they considered both equally wrong. This witness further testified that Voigt told him over the telephone as well as Mr. Caffarel, who was the shop foreman of the Standard Motor Car Company of Baton Rouge, Louisiana, that the insurance company had authorized the repairs.

Betty Delaune, the driver of the plaintiff’s automobile, testified that on the date of the accident she, together with her fourteen year old sister, Bennie Nell, were on their way in the car to Saia’s grocery, across the overpass on Perkins Road; that prior to making her left-hand turn she looked in the rear view mirror and she did not see any cars coming behind her but she doesn’t remember whether she put her hand out or not, but in her statement to the insurance agent, she states that she always did but doesn’t definitely remember whether she did on this occasion or not; that she turned across the road and the first time she realized the Crawford car was there was when it struck her automobile; that she was sure all of her automobile was off Perkins Road except the rear wheels, and that she was struck just behind the gas tank; that she had never been in an accident before and that she was accustomed to driving the car. Her testimony is to the effect that the cars must have been over the overpass because she did not see them. Bennie Nell Delaune also testified that practically all of the plaintiff’s car was completely off of Perkins Road at the time it was struck.

Defendant Crawford testified that he is a steward at L.S.U. and that he was on his way from the University and as he reached this overpass on Perkins Road there was. a car in front of him, going very slow; that he stayed behind it until after he got over the crest of the overpass and he then saw it was safe to go around so he went around the first car while still on the overpass and that he had plenty of time to get back into the lane of traffic between plaintiff’s car and the car he passed, but plaintiff’s car was also going slow and he decided to pass it in the samé “operation,” and by this time he was completely off of the overpass, that is, at the foot of it. He testified, “The next thing I knew the car whs turning and instead of my left fender hitting her back, it was my right side that hit her left back. I didn’t put on my brakes, I didn’t have time and we stopped right in the middle of the road and at that time I saw the little girl fall out of the car.” He also testified that he was watching the plaintiff’s car “be-because I realized more or less I was doing a little something there that I should not do, and I was especially careful to see what was-ahead of me.” He further testified that the plaintiff’s car made a quick turn and that Betty Delaune gave no signal of her intention to turn left across the Perkins Road.

The defendant testified .that the day after the accident he went back to talk to the plaintiff and that at that time plaintiff told him if he would admit that he was in the wrong that he, plaintiff, would pay the $50.00 deductible on defendant’s policy, asthe plaintiff had no collision insurance on his car but only personal liability. However, the defendant states that he refused to do this. He states that he told the representative of the insurance company of this conservation, however, the representative of the insurance company did not testify to this nor did he put it in any report which he made to the insurance company. Under these facts and circum'stances, we believe plaintiff’s denial of this part of the conversation to be true. When asked if he offered to take the plaintiff’s car out 'to the shop at L.S.U. and repair it himself, he stated that his proposition was to the effect that he had had some experience with mechanical business and that he did not have the money to have the car fixed but that if the plaintiff was in the wrong and had, to pay for the repairs to his car, since he was sick that he would help him to the extent of taking it to L.S.U. to the automobile school and putting the parts on for him. This gives strength to plaintiff’s testimony.

We believe the defendant did tell the plaintiff that he was not able to fix the car and did not want to report it to the insurance company due to his fear that the insurance company would cancel his insurance in view of previous accidents, and that immediately after the accident he admitted his fault and felt that he was at fault. Otherwise, he would have felt no hesitancy in reporting the accident to his insurance company. This witness also testifies that he was traveling approximately 20 miles per hour before the accident, however, we are convinced that the defendant was traveling at an excessive rate of speed, especially while on this overpass where the view is obstructed until you reach the crest and which also has a curve in the easterly, end of it to the left or north and contains only two lane.s of traffic.

The insurance agent, Voigt, testified that “naturally I saw that this was a questionable case, it seemed possible and only possible that our driver was at fault,” referring, of course, to' the defendant Crawford. He admits the conversation with the plaintiff in which he stated that the Standard Motor Car Company was “low on its bid to repair the plaintiff's car” but denies that he authorized Standard Motor Car Company to make the repairs. He also admits that the talked to some one in the Standard Motor Car Company who- told him that the car was there and they wanted to know whether to make the repairs or not, and he told Standard Motor Car Company their estimate was low and they would be the ones to repair it “on my instructions from the company when and if they did give any,” but that he never received any instructions from the company to repair the automobile. We are unimpressed with the testimony of this witness.

Counsel for defendant in his brief cites the case of Michelli v. Rheem Mfg. Co., La.App., 34 So.2d 264, page 268, to the effect that:

“It is well settled in Louisiana that the operator of a motor vehicle who desires to make a l.eft turn, carries the responsibility of being certain that the turn can be made without danger to normal overtaking or oncoming traffic, and he must yield the right of way to such vehicles.
******
“Counsel for defendants argue that Mich-elli, in traveling at the admitted speed of fifty to sixty miles an hour, violated this ordinance, and that the .responsibility for the accident rests squarely upon his shoulders. We believe, however, that the speed of the Michelli car was not a contributing cause of the accident, as the collision could well have happened if it had been going twenty-five miles an hour, just the same as it was going fifty to sixty miles an hour.”

Counsel for defendant also relies upon the case of Seale v. Stephens, Employers Cas. Co., La.App., 24 So.2d 651, 653, in which the.Court said:

“It is well established in our jurisprudence and in our law that the making of a left turn on a much travelled highway is a very dangerous operation, requiring great care and caution. The responsibility for seeing that such a left turn can be made in safety is placed upon the driver desiring to make such left turn. The law, Highway Regulatory Act of 1938 (Rule 9, Section 3 of Act 286), requires a driver to ascertain before making such a left turn that there is no traffic approaching from either direction which will be unduly or unnecessarily delayed and requires him to yield the right of way to such approaching traffic.”

The facts in the Michelli case, supra, were that a truck belonging to the defendant company was being driven toward Baton Rouge, Louisiana, on its right-hand side of the Airline Highway within the corporate limits of the town of Kenner, Louisiana. An automobile driven by Joseph L. Middleton was following this truck and another automobile owned and being operated by Michelli was proceeding south on its right-hand side of the highway or toward New Orleans at a speed of between 50 and 60 miles an hour. The truck driver, upon reaching Lyons Street, which is a gravel or shell street, made a left turn to leave the highway and enter Lyons Street, which runs at a right angle to the highway and enters it from the west or river side but does not cross the highway. When the cab of the truck had entered Lyons Street and the semi-trailer had cleared the east traffic lane of the highway, Michelli, to avoid a collision with the truck, swerved his vehicle to the left to pass behind the trailer and collided head-on with the Middleton automobile which had been following the truck. The weather was clear, visibility good, and the roadway was dry.

The Court found that the plaintiff Mich-elli’s car was very close to the truck when the turn was made, and also held that the speed of the Michelli car was not a contributing cause of the accident and that the driver of the truck should have yielded the right of way.

In the case of Seale v. Stephens, supra, the Court found that at the time the defendant began to make his left turn across the highway he was not in excess of 75 feet from plaintiff’s on-coming car which was leading a line of traffic coming in the opposite direction; that the defendant attempted to make this left turn while traveling not in excess of 10 miles per hour; that the plaintiff was approaching in his own proper north lane of traffic not in excess of 40 miles per hour, and that the plaintiff applied his brakes at least 30 feet before the impact in an effort to prevent the collision, and the Court, therefore, held that the defendant, in attempting to make a left turn on the highway, did not use the proper care and caution such as the law required in making sure that the way was clear and that no oncoming automobile was close enough to be collided with.

In the present case, the testimony clearly shows that the driver of plaintiff’s car made a slow turn across Perkins Road a short distance from the bottom of the easterly end of the overpass, and that prior to turning she looked in her rear view mirror and she failed to see any cars coming down the overpass. She states that she was of the opinion that the cars had not reached the crest or “hump” of this overpass at the time she looked in her rear view mirror. There is no doubt that this defendant was traveling at an excessive speed and was himself aware of the fact th^.t he was acting in a negligent manner in passing automobiles while still coming down this overpass. We' are of the opinion that Miss Betty De-laune was free of negligence, which is especially shown by the fact that the car that was immediately following her did not strike her automobile but apparently passed easily to the rear after she made her left-hand turn. Had she turned abruptly in front of this automobile, it should have been the one that struck her rather than defendant’s automobile. From the facts in this case, the proximate' cause of this accident was the excessive speed of the defendant’s automobile, the fact that he was not keeping a proper lookout nor did he have his automobile under proper control, and also, had he remained in his proper lane of traffic rather than attempting to pass automobiles while still on the overpass, this accident would never have occurred, as the car which he was attempting to pass and which was following plaintiff’s arttomobile was not involved in the wreck in any manner whatever, which conclusively shows that Miss Betty Delaune’s judgment that she could make the left-hand turn was correct. Under the facts in this case, whether Betty Delaune gave the hand signal" is immaterial as such failure on her part would not be a proximate cause of the accident.

The Trial Court in its reasons for judgment was of the opinion that the Crawford car, at the time that plaintiff’s car was making the left turn, had not reached the crest of the overpass and, therefore, Miss Betty Delaune could not see him, and the accident was caused solely by the negligence of. the defendant Crawford.

In the case of White v. American Employers Ins. Co. et al. La.App., 197 So. 803, 805, it was held:

“As to the question of contributory negligence on the part of Mrs. White, the worst that can be said is that s*he failed to see the Anderson car until just prior to the collision. It appears that the Anderson car must have been some three hundred feet or more ahead of her, coming in her direction, when she started to make the left turn. If she did look, as she says she did — and like the district judge we see no reason to disbelieve her — and saw no oncoming traffic save the horse-drawn cart, for more than two hundred feet, she was not, as a matter of law, guilty of negligence. While a motorist in making a left hand turn on a highway in the face of oncoming traffic is required to exercise great caution and see that such turn can be made in safety, such a rule does not prevent the motorist from making the left hand turn if the oncoming traffic is of a sufficient distance to permit the execution thereof prior to the reaching of the oncoming traffic at the turning point. In judging whether or not such a left hand turn can be made in safety, a motorist has the right to assume that the oncoming traffic is traveling at a lawful speed and that the driver thereof is exercising a proper lookout and has the vehicle under proper control. Blashfield Cyclopedia of Automobile Law and Practice, Perm.Ed., Vol. 2, § 1049; Brown v. Dalton, La.App., 143 So. 672. Under the facts and circumstances of this case, we, like the district judge, have come to the conclusion that Mrs. White was not guilty of contributory negligence, and that the accident was caused solely by the negligence o'f defendant.”

It was also held in the case of Brown v. Dalton, La.App., 143 So. 672, that: “Motorist reaching intersection on graveled state highway when car approaching on intersecting highway was about 200 feet away had right to assume that it was traveling at legal speed, in view of obstructed view, and to go across intersection (Act No. 296 of 1928, § 5, Subsec. b, Par. 3).”

In the present case, the automobile following Miss Delaune evidently had not reached the crest of the overpass at the time she looked in the rear view mirror, and she was therefore correct in assuming that should any come over, they would be coming at a legal rate of speed which would give her time to make her left-hand turn.

We are of the opinion that the defendant Crawford’s negligence was the sole proximate cause of this collision. Accordingly, the judgment of the district court is hereby affirmed, the defendants to pay all costs.


source: Caselaw Access Project

author: KENNON, Judge.

license: Public Domain

text:
    ELECTRIC CONTRACTING CO., Inc. v. BROWN et al.
    No. 7287.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Rehearing Denied Feb. 21, 1949.

      Leo Gold and Donald M. Garrett, both of Alexandria, for appellants.
    Camden K. Staples, of Alexandria, for appellee.
   KENNON, Judge.

Alleging that it had furnished labor and materials of the value of $251.70 for the construction of a frame dwelling on a lot owned by defendants, James F. Brown and wife, in the City of Alexandria, Louisiana, during the period February 5 to April 25, 1947, and that on June 13, 1947 it had filed a lien against this property after the contractors had failed to pay its account after demand, plaintiff filed suit praying for judgment against defendant Brown and his wife, and for recognition of its recorded lien.

Defendants filed an exception and answer admitting that the dwelling was erected on the lot as alleged and that no contract was placed of record, but defended on the ground that the job was completed and fully accepted by defendants on March 20, 1947, and that therefore plaintiff’s filing of a lien against defendants’ property on June 13, 1947, came more than sixty days after final acceptance and was of no effect, and prayed for judgment rejecting plaintiff’s demand and for $50 attorney’s fees.

The City Court of Alexandria referred defendants’ exception to the merits and after trial granted judgment against defendant and his wife in the amount sued for, and they have brought this appeal.

The record shows that Mr. and Mrs. Brown entered into a contract with the firm of Ball and Ossenbeck for the construction of a dwelling on a lot owned by them in the City of Alexandria. This contract was not . recorded.

Plaintiff contracted with Ball and Ossen-beck to do the electrical work,, furnishing all material and labor for a total price of $231.71, and work was started on the job on February 7, 1947. An additional charge of $20 was made to cover the cost of a fan circuit not called for in the original plans.

Plaintiff began the electrical work on the Brown house on February 5, 1947, and completed same ready for use on March 10, 1947. Two employees of the company returned on April 25, 1947 for the purpose of installing a Kraus-Hines ground clamp which was required by the ordinance of ■the City of Alexandria. Plaintiff’s witness explained that this type of ground clamp was not available when the work on the Brown house was completed on March 10th and that plaintiff had, with permission of the city .electrical inspector, installed a different (but effective) type of clamp. On the day the clamp was changed, plaintiff’s employees also discussed with Mr. Brown his complaint that certain of the inside receptacles or plugs would not work satisfactorily, but no work was done on these re-' ceptacles and Mr. Brown seems to have been satisfied with the’ electrician’s explanation that the -receptacles installed were the best available.

Plaintiff’s contention is that its contract to do the labor and furnish the materials for defendants’ house was not completed until the Kraus-Hines clamp was installed on April 25th and that the lien filed ón June 13th wás' within the sixty day period required by the applicable statiite. Act No. 298 of 1926, § 12.

The defendants, who apparently paid the contractor for the labor and materials furnished- by plaintiff, resist on the' ground that the statutory time period of sixty days had expired before plaintiff’s lien was filed.

The evidence shows that the electrical work on defendants’ home was completed by plaintiff on March 10th. The electrical fixtures and system were in complete use after March 29th. The ground clamp installed in March, although it did not meet the requirements set forth in the Alexandria city ordinance, was nevertheless usable and effective.

Under these circumstances, we think the holding of the Court in the case of Hortman-Salmen Company, Inc., v. White, 168 La. 1067, 123 So. 715, is applicable, and, as stated by the Court in that case, the last labor is done and the last service or material is furnished, within contemplation of the lien statute, when the building is treated as completed and the correcting of defects which may appear from time to time in the work after the building is considered and treated as completed, is not to be considered or deemed as part of the labor contemplated by the statute in fixing the time. Otherwise, as the Court in that case observed, the time within which to record liens might linger indefinitely and the rank of mortgages and other claims against the property might be displaced unreasonably.

The above case was cited with approval in the more recent case of Hicks v. Tate, La.App., 7 So.2d 737. In that case, the Court of Appeal for the First Circuit held that the installation of a drain cock some sixty days after the other work was completed did not permit the renewal of the sixty day period in which a lien might be filed.

Plaintiff has argued in brief that the quantity of material last delivered or the amount of labor last performed are not controlling and cited the case of Shreveport Long Leaf Lumber Company, Inc. v. Spurlock, 9 La.App. 224, 120 So. 126, in which the delivery of a single additional yard of gravel nearly ninety days after the job was otherwise completed, had the effect of renewing the lien period.

In the case before us, no additional materials were furnished on April 25th., The cost of the ground clamp was approximately $1.00 and there is no testimony that the clamp first installed was of less value than the replacement clamp installed in April. Plaintiff has cited the Shreveport Long Leaf Lumber Company case, supra, holding that where a city ordinance requires inspection and approval, there can be no last delivery or last performance as respects time for recording liens until after such inspection and approval. This point is not relevant in the case before us as there is no testimony in the record that approval by the City of Alexandria was delayed until after the installation of the new clamp on April 25th.

Plaintiff is claiming the benefit of a lien by virtue of a statute. The burden of showing that his claim comes within the statute is upon the plaintiff. We believe this burden has not been met.

The judgment appealed from is reversed and judgment is now rendered dismissing plaintiff's suit, with costs.


author: TALIAFERRO, Judge.

text:
    CRAWFORD v. MARYLAND CASUALTY CO.
    No. 7278.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Rehearing Denied Feb. 21, 1949.

      G. P. Bullis, of Ferriday, for appellant.
    Stafford & Pitts, of Alexandria, for appellee.
   TALIAFERRO, Judge.

The os calcis of plaintiff’s left heel was fractured when he was forced to jump or fell several feet to 'the ground from an oil derrick to avoid being hit by swinging swivel. The accident occurred on July 19, 1946. He was then engaged in the performance of a contract of hiring with Eber W. Martin and Son. He was promptly carried to Dr. L. P. Coleman, in the Town of Ferriday, Louisiana, who diagnosed the injury and administered appropriate treatment. He continued under the doctor’s observation and returned periodically for examination for some fifteen months. The final check-up was on February 2, 1948. He was paid compensation at the rate of Twenty ($20.00) Dollars per week for 52 weeks. Further payments being refused by defendant’s insurer, Maryland, Casualty Company, this suit to recover compensation on the theory and basis of permanent total disability, at the rate of $20.00 per week, less payments made, was instituted against said insurer.

The sole issue raised by the pleadings is whether plaintiff’s foot has recovered sufficiently to enable him to perform manual labor of the kind or similar thereto, he was performing when hurt.

The Court ruled that plaintiff suffers from an impairment of the usefulness of the physical functioning of the left foot, but not total and permanent disability to do the work of a common laborer. In keeping with this conclusion, compensation for one hundred weeks at $20.00 per week, less payments made, was awarded. Paragraph (d) 16, subsection 1, of Section 8 of the Workmen’s Compensation Law, Act No. 20 of 1914, as amended, Act'No. 242 of 1928, p. 358, was applied, as the controlling law of the case.

Plaintiff appealed and here insists that the court erred in not giving judgment for compensation for the full period for which he sued. Defendant has not answered the appeal but virtually acquiesces in the correctness of the amount of the award, but does not unequivocally concede the correctness of the basis upon which it is predicated.

Plaintiff’s duties required that he render assistance to the operator of the particular truck to which he was attached. This class of labor is commonly referred to as “swamper”. It was his' duty to carry the end of a steel cable, affixed to a winch on the truck, from place to place, when it was necessary to do so. The cable, inter alia, would be attached to, objects that were dragged to and placed upon the truck. To successfully perform these duties he had to be alert, active and strong.

As said by the trial judge, the duties of a “swamper” do not characterize him as being engaged in a “trade or occupation requiring special skill or training * * * but it is simply one of the classifications of the many different duties of a common laborer enagaed in the job of trucking or hauling machinery”. In keeping with this finding, the Court properly held inapplicable to the facts of the case that line of decisions of the courts of this State which hold that where an employee sustains injury that renders him incapable of performing- the duties of his employment, one that requires special skill, training and/or experience, compensation is due. To support this ruling the case of Mitchell v. T. J. Moss Tie Company et al., La.App., 27 So.2d 385, is cited. Judge Hardy in that case cited and discussed the most recent cases pertinent to the question under, consideration, and clearly stated the difference between the status of skilled and unskilled workmen, with respect to the right to demand compensation for a disabling injury.

The record is not clear as to the date the plaintiff was discharged by Dr. Coleman as being able to perform manual labor. The doctor’s testimony leads us to think that it was his opinion this condition was attained at the end of fifteen months from the date of the :aocidenf. Dr. Coleman was the only physician who examined and treated plaintiff and who gave testimony in the case. He says that the fracture was reduced and cast applied; that almost a perfect result was achieved but there developed a very small calloused area on the foot but not on the weight-bearing surface thereof, which was due to pressure from the cast. This calloused area, however, did not to any extent militate against complete union of the fractured portions of the heel. The doctor says the foot has full range of motion and that no pain should be felt by plaintiff unless it be from irritation of the small callottsed area. This area, he says, works about like a corn. He estimated that disability of the foot at from five per cent,to fifteen per cent. This estimate was based upon the examination of February 2nd.

Dr. Coleman’s opinion as to the duration of the disability of the foot was not sought by interrogation and it was not volunteered. He said that plaintiff’s physical condition was such that he could perform almost any sort of manual labor.

Plaintiff testified that his foot swells when he walks “too much”; that it is weak and he limps on the left leg and for this reason he cannot now do the work of a “swamper”. He did not testify, however, that he could not perform any other of the many sorts of work that fall to common laborers. Two laborers testified that they did not think plaintiff’s physical condition was such as to enable him to do the work of a “swamper”. Neither did they say that he could not do other kinds of laborious work.

It is shown that plaintiff experienced no difficulty in walking up a long flight of steps to. the court room. It is also shown that he freely walked about and over his home premises for hours without apparent difficulty or unusual effort. These facts were proven by the testimony of defendant’s agents who observed his movements on four different days, and who made films that reflected his movements on said occasions.

The admissibility of the films and their projection in court, after being identified by the persons who participated in making them, was challenged by the attorney for plaintiff. The objection was properly overruled. We know of no more efficient method of proving the movements of a reputed injured litigant at a given time and place than by photographs of such movements. This court has heretofore given weight and credit to such evidence and allowed projection of the films before it when the record disclosed that such projections were had in the court below. Appellant’s industrious counsel has cited no law, statutory or otherwise, that supports his position on this question.

Appellant cites and relies upon: Stieffel v. Valentine Sugars, Inc., et al., 189 La. 1091, 179 So. 6; Yarbough v. Great American Indemnity Company, La.App., 159 So. 438; Butzman v. Delta Shipbuilding Company, Inc., La.App., et al., 21 So.2d 80; Sutcliffe v. E. I. Dupont de Nemours and Company, La.App., 36 So.2d 874, as being contrary to the.lower court’s judgment as respects the rule applicable to • injured unskilled and/or common laborers. We have closely read and considered each of the cited cases and do not find that either is contrary to what this court held in the Mitchell case, supra.

We are quite certain that when the case was tried and for some time prior, plaintiff was not totally disabled to perform many kinds of manual labor; and we are equally certain the disability that then' beset him is not permanent. To so hold we would have "to indulge in speculation and presumption not authorized by the record nor supported by every-day human experience and observation.

Whether the award be based upon disability of fifteen per cent for 300 weeks or upon the provision of the Workmen’s Compensation Law, applied by the lower court in dollars and cents, makes no great difference. The lower court’s award is really more favorable to the plaintiff.

For the reasons herein assigned, the judgment from which appealed, is affirmed with costs.


text:
    MORACE et al. v. AVOYELLES WHOLESALE GROCERY CO., Limited.
    No. 7248.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1948.
    Rehearing Denied Feb. 21, 1949.
    G. P. Bullís, of Ferriday, for appellants.
    White, Holloman & White, of Alexandria, for appellee.
   TALIAFERRO, Judge.

Plaintiffs, thirty in number, alleging themselves to own in’ the aggregate (in proportions specifically set up) %ths interest in and to the Northwest Quarter of the Southwest Quarter (NW of SW %), Section 11, Township 4 North,-Range 3 East, in Rapides Parish, Louisiana, instituted -.this suit against the. Avoyelles Wholesale Grocery Company, Ltd., alleged owner of the other %ths interest in said land, to effect a partition thereof between the co-owhers “in kind or by licitation as to the court may seem proper”. It is also alleged that the land was acquired by Joseph Morace by patent from the State of Louisiana; that he.died in the year 1915 intestate; that plaintiffs inherited their several interests in the land from the pa-tentee and his deceased wife.

Plaintiffs. additionally, allege that Joseph Morace, Jr., son of the deceased patentee, by inheritance from his father and mother and by purchase from -some of his co-heirs, became vested with an undivided %ths interest in the land and sold same to one John Moses, who, in turn, sold the same interest to the defendant herein; .that the acts of sale to Moses and to defendant purport to convey the whole of said property “but only an undivided %ths was conveyed thereby because in each case the vendor did not own the %ths undivided interest owned by petitioners.”

Defendant’s answer is quite lengthy. It is set forth therein that Joseph Morace, the'patentee, was married twice; that by the first marriage one child, Ellen, was born, and that she married Silvest Bel-gard; and of the second marriage there were six children, named in the answer, who reached maturity, and married. It is further averred that in the deed to Joseph Morace, Jr., referred to in the petition, the entirety of said forty acres of land was conveyed and that the deed from him unto John Moses in the year 1919 likewise conveyed all of the land; that defendant acquired the entirety thereof at a sheriff’s sale in a foreclosure proceeding by it against Moses on August 23, Í926.

To serve as a basis of a plea of ten years’ prescription, interposed by the defendant, it is alleged in the answer that the patentee improved,. lived upon and cultivated the land to the date of his death in 1915; that Joseph Morace Jr., thereafter lived on and cultivated the same as owner until the sale by him to John Moses on September 30th, 1919; that Moses thereafter possessed the property through tenants and that in like manner defendant went into and has held possession of the land since its acquisition thereof in 1926. Defendant alleges as a fact that it and its authors in title have owned, held and possessed said property in good faith.

The court rejected plaintiffs’ demand and dismissed their suit.’ Defendant was recognized and decreed to bé the owner of the land which implies that the plea of prescription was sustained. The plaintiffs appealed to this court.

Prior to the institution of the present suit these same plaintiffs instituted against the same defendant a suit under Act No. 38 of 1908, which was tried on December 9, 1946. The testimony of many witnesses was taken on that trial, most, if not all of whom were descendants of the patentee and his wives. The testimony of these witnesses mainly had to do with the question of actual possession of the land by defendant and its authors in chain of title thereto. The question of poessession, as a defense, was tendered by and through exception on behalf of the defendant. At the conclusion of the trial, but prior to rendition of judgment, on motion of plaintiffs’ counsel, the suit was dismissed as of non-suit. On trial of the present suit defendant offered and introduced in evidence the entire record of testimony adduced at the former trial, to which offering plaintiffs’ counsel strenuously objected on the ground that:

“there is no showing such as would permit the evidence in another case to be used in this case, the witnesses in the first case being now present in the courtroom and ready to be heard in the case now on trial.”

The objection was overruled’.

In this court plaintiffs persist in their objection to the admissibility of said testimony and forcefully contend that the trial judge erred in ruling adversely to them. After mature consideration of the question we agree with this position.

It is true, as contended, that the parties to the two suits are the same, but the issues are in material respects unlike. In the former suit the sole issue tendered was that of possession vel non on the part of the defendant, whereas in the instant case, in addition to the question of possession, the character of such possession, whether in good ór bad faith, is tendered. For this reason, if for no other, the offering should have been refused.

Defendant cites and relies upon several cases to support its position herein, none of which, in our opinion, fully supports said position. Below we give the title of these cases, with a brief epitome of what the court held in each, to-wit: Hunter v. Smith, 5 Mart., N.S., 177, 178.

The question in that suit was whether the defendant • could avail himself of his own answers to interrogations “put to him” by the plaintiff in a former suit that was discontinued before judgment. The issue there and the ruling áre not entirely analogous to those in the present case. The second paragraph of the syllabi in that case is broader than the facts and the opinion warrant. Walker v. Villavaso, 18 La.Ann. 712; Id., 18 La.Ann. 715.

The question in this case is whether interrogatories on facts and articles, ordered taken for confessed, in a former suit between the same parties, were admissible in evidence on a second trial. The court very properly admitted the confessions. State of Louisiana v. New Orleans Waterworks Company, 107 La. 1, 31 So. 395.

The second paragraph of the syllabi, on its face, supports appellee’s position herein, but, as we understand the court’s discussion of the question involved, 107 La. on pages 36, 37 and 38, 31 So. 395, what is there said by it supports our holding in Young v. Reed, La.App., 192 So. 780, and appellants’ position herein, rather than being in opposition thereto. Jones v. Douglass, 158 La. 57, 103 So. 441.

This suit involved a divorce proceeding. In a former trial of suit between the same parties the defendant’s own testimony was taken down in stenographic form but was not transcribed. On the second trial the court allowed the stenographer to testify from her notes, as we understand the opinion, to contradict the testimony of defendant given on the second trial, which was inconsistent with that formerly given by him. However, the objection to the stenographer testifying from her notes was grounded upon the predicate that the notes had not theretofore been transcribed. The ruling was clearly correct. Pollock Paper & Box Company v. Crosby, La.App., 16 So.2d 611, 613.

This case decided by our brethren of the First Circuit, should give small comfort to the defendant. In it the court held that testimony taken in a former trial of a third opposition, afterwards dismissed as of nón-suit, was admissible on the second trial of the opposition. In support of its ruling the court cited only Hunter v. Smith, supra. The opinion shows that the proffered testimony was objected to only on the ground that plaintiff had had no opportunity to cross-examine the witnesses sworn in the first trial. As regards this contention, the court said: “Counsel for plaintiff had an opportunity to cross-examine the witnesses when the evidence was taken in the first suit.”

In view of the restricted character of the objection the court’s ruling was perhaps correct. The facts of the present case are materially different and the grounds of the objection made to the introduction of the testimony taken in the former trial are not restrictive in any sense.

Appellants cite an 'array of cases to support their position as regards the admissibility of the embattled testimony. They follow, to-wit: Baptiste v. Soulie, 13 La. 268; Trimmel & Burnett v. Marvel & Irwin, 11 La.Ann. 404; Rierdon v. Thompson, 5 La. 364; Lesassier v. Dashiell, 14 La. 467; Hunter v. Smith, 6 Mart., N.S., 351; 31 C.J.S., Evidence, §§ 390, 393.

The first two of these cases are not in point; the other three and the citation from Corpus Juris support and recognize the generally prevailing principle which this court restated and followed in Young v. Reed, La.App., 192 So. 780, 786, also cited by appellee, to-wit:

“The question tendered by the ruling is not new. It has frequently arisen in this state. Early in the history of our jurisprudence the Supreme Court definitely held:
“‘Testimony of a witness in a previous suit between the same parties, for the same cause of action, where there has been an opportunity for cross-examination, may •be used by either party, if the witness be dead or absent, or, for other cause, cannot be produced. * * *
“ ‘Complete mutuality or identity of all the parties is not necessary to admit testimony in a former suit. It generally suffices if the issue be the same, and the party against whom it is offered had full power of cross-examination.’
“Rouyer et al. v. Carroll, 47 La.Ann. 768, 775, 17 So. 292, 294; Hennen v. Monro, 4 Mart., N.S., 449; Miller v. Russell, 7 Mart., N.S., 266, 267; Noble v. Martin et al., 7 Mart., N.S., 282, 283; Williams v. Bethany, 1 La. 315, 320; Lopez’s Widow and Heirs v. Berghel, f. w. c., 15 La. 42, 43; Conway v. Erwin, 1 La.Ann. 391; W. A. Taylor v. J. A. Paterson, 9 La.Ann. 251.
“The announced rule finds support in Jones’ excellent work on evidence, 4th Ed., Vol. 1, page 621.’’

In that case a showing was made that the witnesses whose testimony was 'adduced in the first trial, were oil field workers whose whereabouts were unknown after effort to locate them. We held that a sufficient foundation had been laid to admit the former testimony, but in the present case the witnesses, whose testimony was adduced in the former trial, were present in court, ready to testify. They were summoned on behalf of the defendant.

Appellants’ counsel, argues that he expected to elicit certain facts and information from some or all of these witnesses on cross-examination not elicited at the former trial which would have material bearing upon 'the questions of possession and bad faith; that the ruling of the court deprived him of that opportunity. This position carries with it the assumption that had the proffered testimony been rejected defendant would have been forced to introduce these witnesses and interrogate them touching their knowledge of the facts relied upon to sustain the plea of prescription. This course would have no doubt been followed.

Therefore, we hold that the testimony was improperly admitted for two reasons, viz: The issues' of the two cases were not identical; the witnesses were in court, ready to testify, in obedience to summons.

For the reasons herein assigned, the judgment from which appealed is annulled and reversed, and this case is now remanded to the lower court for such proceedings as the parties thereto may determine, in keeping with law and the views herein expressed. Costs of appeal are assessed against the defendant; fixation of liability for all other costs will áwait final judgment in the case.


author:
TALIAFERRO, Judge.
      KENNON, Judge

text:
    FERGUSON v. HARTFORD LIVE STOCK INS. CO.
    No. 7238.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    Rehearing Denied Feb. 21, 1949.

      Hudson, Potts, Bernstein & Davenport, of Monroe, for appellant.
    Anders & Anders, of Winnsboro, for ap-pellee.
   TALIAFERRO, Judge.

This suit involves the alleged right of the plaintiff to recover on a policy of insurance issued by defendant, on a Hereford bull owned by plaintiff. The issue turns upon whether the policy contract became effective while the bull was physically in an insurable condition.

The facts of the case, except in one minor respect, are not in dispute. Plaintiff purchased the bull and it was delivered to him on September 11, 1947. Two days later, through defendant’s agent, B. S. Landis and Company, in the Town of Winnsboro, Louisiana, he signed written application to defendant for insurance on the animal in the amount of $800.00. At ■the agent’s suggestion, ■ plaintiff had a veterinarian examine the bull to ascertain the condition of its health. This was found to be satisfactory and written statement to that effect, signed by the veterinarian, accompanied the application which was promptly mailed to defendant’s office in Chicago, Illinois. The application received favorable action and policy based thereupon issued at once. It was mailed to said agent with instruction to .countersign and, presumably, to deliver to the plaintiff upon payment of the premium. It was countersigned by the agency on September 18th and mailed to plaintiff about the hour of 4:00 P.M., September 20th. He received it about 10:30 the following morning.

Plaintiff discovered at about the hour of 1:00 o’clock, P.M., September 20th, that the bull was very sick although he had noticed for two or more days prior that it was off diet; — was not eating as much as it should have. He immediately called a veterinary surgeon who examined the animal and prescribed medicine for him. The malady was diagnosed as being ana-plasmosis. The bull died not later than the hour of 5:00 o’clock the following morning which was .approximately twelve hours after the policy was posted.

Plaintiff’s position is that when the policy was countersigned by defendant’s agent on September 18th, two days prior to definite manifestation of illness of the bull, delivery of the policy for all legal intents and purposes, was effected, notwithstanding it did not reach his physical possession while the bull was well, and notwithstanding the first year’s premium had not been paid by him.

Defendant resists the suit on these grounds,. viz.:

That the policy was not delivered while the bull was in sound physical' condition as required by the application for the insurance and the policy executed pursuant thereto; that the first year’s premium had not been paid, a condition precedent to the effectiveness of the policy contract; and, alternatively, that plaintiff, as required by the policy, on discovery of the bull’s illness, did not by telegram give immediate notice thereof to defendant at its office in Chicago, as was stipulated in said application and policy.

The court rejected the urged defenses, and gave judgment for the plaintiff from which the defendant appealed.

■ The application for insurance, which is made a part of the policy contract, contains .these agreements, viz.:

“We understand and agree that the policy to be issued hereon shall be founded entirely upon the representations and statements contained in this application.

. “It is agreed that the agent of the company who takes this application is a special agent with limited authority, and is not authorized to make written or oral contracts, or to accept any risk, or to bind the company by any oral or written statement, or to waive, alter, change or modify anything contained in this application or the policy which may be issued thereon.

“It' is agreed that this insurance shall not be' in force or effect until and unless this application shall be accepted and favorably passed upon by the above-named insurance company, policy, of insurance issued by said. company and the premium paid thereon, and policy delivered to me/us while the animal or animals covered by-said policy is/are in good health, and entirely free from sickness or injury.”

-• On the first page of the application conspicuously positioned, appears the following statement:

“This is not a hinder, but merely an application for insurance, which is effective only upon delivery of policy while animal or animals are in absolute health.”

Section 3 of the policy, inter alia, says :

“Under no circumstances shall this Company be liable under this policy for any loss * * *; nor for the_ death of any aninml not m absolute health when this policy is delivered

It appears certain from the contents of the application for the insurance that four conditions must have been fulfilled before it would become effective, to-wit: the application must have been approved by the home office; the policy must have been countersigned by the local agent; the premium must have been paid, and the policy must have been delivered to the assured at a time when the bull was in good health.

The first two of these conditions were met. It is admitted that the premium was not paid or tendered prior to the animal becoming sick. Arrangement with the local agent for such payment was not made at the time of the application nor thereafter. The premium was tendered the day following the animal’s death, but, of course, declined.

As to whether the policy was delivered to the assured, in contemplation of law, while the animal was in good physical condition, serious controversy exists. We have reached the conclusion that the admitted facts of the case do not sustain plaintiff’s contention on this question.

It may be conceded that when the policy was mailed to the insured this amounted to a delivery of it to him, but when this was done the animal was in a dying condition. Therefore, such a delivery was abortive as a factor contributing to the effectiveness of the insurance.

The policy was not entrusted to the local agency merely as a vehicle for its transmission to the insured. If nothing had remained to be done or looked to precedent to delivery of the policy, then it could be said that automatic with it being signed by the local agent, the policy evolved into a mutually binding obligation. But this was not the ease. The policy was to be delivered only after the payment of the premium and at a time when the insurable condition of the animal existed. Collection of the premium was the duty of the agent and to no extent did it become the agent of the insured simply because chosen as the instrument for the final consummation of the contract and delivery thereof under its terms and conditions, and those of the application therefor. Under express stipulations in the application and the policy the agent was inhibited from waiving or altering any of the conditions or agreements of either. It did not have the right to surrender the policy to the insured without collecting the premium. Its act in doing so certainly was not binding on the defendant and did not have the effect of waiving such payment as a condition precedent to the policy’s mutually binding character.

,The countersigning of the policy by the local agent, in Louisiana being one of the conditions precedent to its effectiveness, the policy thereby became a Louisiana contract. Under the laws of this state payment in some manner, of premium due on a policy of insurance, is indispensable to the binding character of the contract. See Coci v. New York Life Insurance Company, 155 La. 1060, 1068, 99 So. 871.

We know that as a matter of general practice, insurance policies of all kinds are delivered by local agents without prior or contemporaneous payment of the first premium due thereunder, but in so doing the agent acts on his own responsibility and as between him and the assured, the relation of debtor and creditor arises. The agent, of course, remits to the insurer the amount of the premium less his own commission. But, regardless of all of this the action of the agent does not, as to the insurer, waive the .invariable rule that requires payment of the premium prior to delivery of the policy. In the present case, plaintiff was ready and able to pay the premium. Evidently his ability in this respect was well known to the agent who was willing to credit him therefor, but the fact remains that the premium had not been paid prior to the animal’s death; and though harsh as it may appear, defendant has the right to urge this fact in defense of suit on the policy.

It is admitted that the jurisprudence of this state contains no case that can be considered as a precedent to the case before us. In other jurisdictions where carrying of insurance on valuable live stock has been in vogue for decades, many cases have arisen that involve the validity of contracts of insurance similar to that issued in this case. Appellant cites and quotes from many of these cases. To sustain his position herein, however, appellee cites and relies upon the following cases decided by the Supreme Court of this state, which have to do with insurance on the lives of -people, to-wit: Chapman v. Mutual Life Insurance Company of New York, 146 La. 658, 83 So. 887; Coci v. New York Life Insurance Company, supra; Pruitt v. Great Southern Life Insurance Company, 202 La. 527, 12 So.2d 261, 145 A.L.R. 1427.

In the Chapman case it was held that when the policy was mailed by the home office to the local agent that act amounted to delivery to the insured, -as there was no suspensive condition to the consummation of the contract. This was held in view of the fact that the insured, at time he applied for the insurance, made arrangements with the agent for payment of the premium whereby the agent was to accept his notes and himself pay to the insurer the amount -of the premium, less the agent’s commission.

In the Coci case, it was held that since the premium had been paid at time the application was signed and the policy issued, without any suspensive condition as to its effectiveness, delivery of the policy to the insured was effected when it was mailed to the local agent. It is said in the opinion that the delivery contemplated was not necessarily manual. The court in effect approved the general rule (14 Ruling Case Law, page 898) that when t-he first premium accompanies the application, and policy, without suspensive conditions, restrictions or limitations, issues, it becomes completely effective on issuance. We see no good reason for holding otherwise. The simple act of delivery in such a case is of no real significance as regards the mutually binding character of the policy.

The Pruitt case elaborately discusses the question of delivery of the insurance policy involved therein. The whole field is considered and an array of authorities cited and quoted from. Both sides in the case at bar derive comfort from the opinion in that case. The crux of the opinion, so far as is pertinent to the present case, is clearly expressed in the following excerpt therefrom, viz. [202 La. 527, 12 So.2d 262]:

“ 'The controlling question is not who has the actual possession of the policy, but who has the right -of possession. * * *’ 32 C.J. 1125, § 228. ‘A delivery is not. effected, however,' by a transmission of the policy to the agent of the insurer under instructions to turn over the policy to the insured only after the compliance with certain conditions, such as that the applicant shall be in good health at the time, or that the premium shall be paid.’ 29 Am. Jur. 166, Section 152. For other authorities on this subject, see, 14 R.C.L. 898, Section 76; 53 A.L.R. 495, etc.; Vol. 1 of -Couch’s Cyclopedia of Insurance Law 225, etc., particularly Sections 118 and 125.”

We said in the beginning of this opinion that but for one exception no dispute existed as to the facts. The exception relates to whether or not the bull’s refusal to consume a normal quantity of food over a period of days prior to manifestation of the disease of which he died, may be ascribed to change in environment or was advance evidence of the malady of which he died. We find it unnecessary to pass upon this question of fact.

For the reasons herein assigned, the judgment from which appealed, is reversed, annulled and set aside, and this suit is dismissed at the cost of the plaintiff.

KENNON, J., dissents and gives reasons.

KENNON, Judge

(dissenting).

While I agree with my colleagues on all findings of fact, I agree with the District Court in its finding that the defendant should be held liable under the policy of insurance issued by it.

The particular point on which I disagree with the majority opinion is found in the paragraph from that opinion quoted below:

“We know that as a matter of general practice, insurance policies of all kinds are delivered by local agents without prior or contemporaneous payment of the first premium due thereunder, but in so doing the agent acts on his own responsibility and as between him and the assured, the relation of debtor and creditor arises. The agent, of course, remits to the insurer the amount of the premium less his own commission. But, regardless of all of this the action of the agent does not, as to the insurer, waive the invariable rule that requires payment of the premium prior to delivery of the policy. In the present case, plaintiff was ready and able to pay the premium. Evidently his ability in this respect was well known to the agent who was willing to credit him therefor, but the fact remains that the premium had not been paid prior to the animal’s death; and though harsh as it may appear, defendant has the right to urge this fact in defense of suit on the policy.” (Italics mine.)

The policy sued upon is in the record. According to its terms, its “effective date” was September 18th. The endorsement of the local agent is dated September 18th, and plaintiff was obligated to pay premiums as of that date.

Under these circumstances, I believe the contract was consummated and delivery made as between the insurer and the insured, when the endorsement was placed on the policy by the local agent.

I believe that the case cited in the majority opinipn, Coci v. New York Life Insurance Company, 155 La. 1060, 99 So. 871, 873, including the paragraph quoted below, is consistent with this view (it is noteworthy that the Louisiana rule is followed in some states but not in others) :

■ “But whatever may be the ruling of the courts in other jurisdictions, we have had occasion to pass upon this question heretofore, and we are not disposed to overrule the conclusion arrived at in that case. In the case of Chapman v. Mutual Life Ins. Co., 146 La. [658], 660, 83 So. 887, the precise question was at issue as the one presented here, and the application contained the same stipulation as to delivery of the policy when the insured was in good health ai the one in the application now under consideration, and we held that the contract was consummated and .delivery was made as between the insurer and the insured when the policy was placed in the mails addressed to the local agent. We can find no sufficient reason to depart from the ruling in that case, and we reaffirm it.” (Italics mine.)

In the Coci case, the insured had given his note to the agent for the amount of the premium and the agent had remitted to the company its part. I know of no reason why a policy of insurance cannot be delivered and made to become effective on a credit arrangement between the insured and the company’s agent and on a credit arrangement between the insurer and its agent. Under present day business conditions, a considerable amount of property and liability insurance is written and the policy delivered before the payment of premium.

The fact that the insurance company in its application form states that it will not issue the policy until the premium is paid does not relieve it from liability if, in fact, it does accept the application and issue a policy with a named effective date and permit delivery of the policy without collection of the premium.

From the facts found by the majority opinion, plaintiff by virtue of his application for the insurance became bound for the amount of the premium upon the acceptance of his application and as stated in the Coci case, “the contract (of insurance) was from that date (date of issuance) •binding on the assured, and if binding on him, it was likewise binding on the company.”

The case at bar is distinguishable from the Pruitt case (cited in the majority opinion) in that the insurer’s agent, in the ■letter bringing the policy, was given specific instructions to deliver only to the insured while he was in good health. In addition, the application provided that the insurance would not be in force until accepted by the insured, Pruitt.

I believe the judgment of the District ■Court should be affirmed, and respectfully dissent from the majority opinion.


author: HARDY, Judge.

text:
    NORMAND v. CHATELAIN et al.
    No. 7214.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Rehearing Denied Feb. 21, 1949.
    A. J. Roy, of Marksville, and K. Hundley, of Alexandria, for appellants.
    Charles A. Riddle, Jr, of Marksville, for appellee.
   HARDY, Judge.

This is a suit on a chattel mortgage note on an automobile in the sum of $705.-60, subject to certain specified credits. After the overruling of exceptions of no right or cause of action defendant answered, generally denying the allegations of plaintiff’s petition, and called in warranty his vendor, one Ogere Scallan, from whom he acquired ownership of the mortgaged vehicle. Scallan answered the call in warranty, also, generally denying the allegations of plaintiff’s petition, and affirmatively alleging the absolute nullity of the chattel mortgage on the ground that the same was given and executed by one who was not the owner of the vehicle sought to be encumbered thereby. After trial there was- judgment in favor of plaintiff against defendant, and in favor of defendant against warrantor, from which judgment both the defendant and the warrantor prosecute this appeal.

The facts reflected by the record are without dispute and those which are pertinent may be summarized as follows:

On October 10, 1946, Lola K. Ledoux, wife of Walter Ledoux, both being residents of the Parish of Avoyelles, executed a chattel mortgage note in the principal sum of $705.60, duly paraphed for identification with an instrument of chattel mortgage of even date, which mortgage covered a Mercury Sedan Tudor automobile, particularly described therein. The execution of the note and mortgage by Mrs. Ledoux was performed in the presence of her husband, Walter Ledoux, and the mortgage was duly registered and recorded in the records of Avoyelles Parish. The first two monthly installments, as provided by the note, were paid, but the third payment became delinquent. Subsequent to the execution and recordation of the mortgage the automobile was sold to a used car dealer, one Ogere Scallan, of Avoyelles Parish. At a later date the automobile was removed to the Parish of Rapides by one Hickman (sometimes referred to as “Plot”) Graham, and there sold to defendant, Edmond P. Chatelain, a resident of Rapides Parish. At the time of the conveyance by Graham, who was acting as Scallan’s agent, the defendant, Chatelain, failed to procure an affidavit to the effect that the vehicle was free of mortgages in accordance with the provisions of Section 8 of Act No. 172 of 1944.

The section of the Act to which reference is made above, and which forms the basis of plaintiff’s action, reads as follows:

“It shall be unlawful for a resident of any parish to purchase the movable property described in section 1 from any nonresident of such parish, without first obtaining an affidavit from the nonresident that there is no mortgage on the property, nor any money due for the purchase price thereof; and the purchaser who shall buy the above referred to movable property, without having obtained the said affidavit, shall be personally liable to the creditor for the debt secured by the property.”

There is no attack made upon the validity of the provision of the Act quoted, and the sole ground of defense is predicated upon the proposition that the sale and chattel mortgage executed by Lola K. Ledoux is an absolute nullity, consequently of no force and effect, by reason of the fact that the said Lola K. Ledoux was not the owner of the automobile encumbered at the time of the execution of said instrument; further, that the automobile was in fact owned by Walter Ledoux, who acquired the same by purchase from United Auto Exchange on July 19, 1946.

The defense advanced would necessarily fail on a question of fact inasmuch as defendant and warrantor contented themselves with the simple introduction in evidence of an act of sale and chattel mortgage from United Auto Exchange to Walter Ledoux, which instrument was dated July 19, 1946. No further documentary evidence was offered, nor was any attempt made to produce any testimony bearing upon the question of ownership.

It must be borne in mind that the burden of proof necessary to establish the affirmative defense, tendering the proposition that plaintiff’s mortgagor was not the owner of the property encumbered, rested upon the defendant and his war-rantor. The mere fact that the property was sold to another party at a time several months before the execution of the note sued upon is thoroughly inconclusive on the point of establishment of title, unsupported as it is by any other proof.

While we think the above finding of fact would serve to dispose of the matter at hand, we, nevertheless, proceed to a discussion of the question of law involved.

The facts, with the exception of certain distinctions which are immaterial, in the case of Southland Securities Co. v. Thieme, La.App., 142 So. 375, presented a proposition much stronger than the one here relied upon by defendant and warrantor. In the cited case the purchaser of an automobile from one who had previously mortgaged the vehicle under an assumed name was held liable by reason of his failure to obtain an affidavit required by the statute then in effect, which, by the way, was not as favorable to mortgagees as the section of the act here relied upon by plaintiff. Under the holding in the case cited, supra, we think there can remain no question as to the liability of the defendant in -the instant case. The mere fact that as a general principle a wife cannot mortgage property of the community, under the circumstances of -this case, is not pertinent.

There is no contest as between defendant and warrantor in this case, it appearing to be conceded that defendant unquestionably has a right of recovery against the named warrantor.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.


author: PIARDY, Judge.

text:
    JOYNER v. SIMS.
    No. 7235.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Rehearing Denied Feb. 21, 1949.
    Cas D. Moss, of Winnfield, for appellant.
    R. D. Cantwell, of Winnfield, for appel-lee.
   PIARDY, Judge.

This is an action for the recovery of damages to plaintiff’s automobile allegedly resulting from the negligence of defendant. The defendant reconvened for damages to his automobile, and after trial, there was judgment in favor of plaintiff as prayed for, and the reconventional demands of defendant were rejected, from which judgment defendant has appealed.

The facts, which for the most part are undisputed, show that the accident occurred near the hour of 2:00 o’clock in the afternoon of July 27, 1947, at a point where. State Highway No. 608 is intersected by a dirt road in Winn Parish. At the time plaintiff, hurrying to an appointment, was driving his Studebaker Coach east on the gravel highway at a speed of 40 miles per 'hour, according to his own testimony. Plaintiff’s car was either in the middle of the road, which fact was testified to fey plaintiff, or on his left side of the highway, according to the testimony of other witnesses. Plaintiff was familiar with the road afeout the point where the accident occurred and knew of the intersecting dirt road, which was obviously dangerous by reason of the fact that a clear view from and of the •highway was obstructed. In other words, the location is what is customarily referred to as a felind intersection. Defendant was driving his Mercury Sedan south and therefore was approaching from plaintiff’s left, a fact upon which plaintiff heavily relies in support of his contention that he had the right-of-way. Defendant’s car actually entered the intersection and had traversed a considerable portion of the width of the gravel road, estimated at one-half to two-thirds thereof, when it was struck fey plaintiff’s automobile. Plaintiff, realizing that he could not effectively apply 'his brakes, considering his speed, attempted to avoid the accident by swinging his car to the right, which maneuver permitted the front of his car to clear but; unquestionably, defendant’s automobile was sideswiped, and, as the result of the contact with the left rear portion of plaintiff’s car the latter vehicle turned over twice, before coming to rest at the side of the highway.

There is no question on the point that plaintiff had the right-of-way since he was approaching the intersection on defendant’s right. But the only question is whether plaintiff himself was guilty of negligence to such extent as forfeited the right-of-way accorded to him by law, under the regulations governing the existing situation as particularly set forth in Rule 11, Section 3 of.Act No. 286 of 1938, Dart’s Statutes, § 5216, which reads as follows: “When two vehicles approach or enter an intersection at approximately the same time, the driver approaching from the .right shall have the right of way. The driver of any vehicle traveling in an unlawful, improper, reckless or dangerous rate of speed or manner shall forfeit any right of way which he might otherwise have hereunder.”

We concede the proposition urged in plaintiff’s brief that ordinarily a rate of speed of 40 miles an hour on a reasonably well kept gravel highway in open country is neither dangerous nor reckless. However, we are convinced, under the circumstances of the instant case, that such speed did constitute negligent and reckless driving. The operator of a motor vehicle who is either entirely or partly on the wrong side of the gravel highway, and who is driving at a speed of 40 miles per hour, approaching a known blind intersection, is unquestionably guilty of negligence.

Defendant’s reconventional claim can only toe allowed if the facts justify the conclusion that he was free of any contributory negligence since in the present case no point is made of the doctrines of discovered peril or last clear chance, which, indeed, would have no application here. It is definitely established that defendant was driving at a very slow speed, not more than fen miles per hour as most of the witnesses agreed. Despite this fact he did not bring his car to a stop before attempting to proceed across the intersection, nor did he observe plaintiff’s approaching automobile ■ until it was within a distance of some 20 feet more or less. The preponderance of the evidence appears to establish the fact that defendant actually brought his car to a stop momentarily before the impact. Notwithstanding this fact, we conclude that defendant was guilty of negligence in that he entered a blind intersection without taking full precautionary measures, and, unquestionably, such negligence contributed to the accident.

It is quite true that the determination of this case turns upon questions of fact and while we are exceedingly loath to find ourselves at variance in the interpretation of these facts with our distinguished brother of the district court, we think the record is so plain that we can only conclude, regretfully, that the error is so manifest as to justify a reversal.

For the reasons set forth the judgment appealed from is now reversed and set aside and there is judgment rejecting plaintiff’s demands, and further judgment rejecting the reconventional demands of the defendant, all at plaintiff’s cost.


text:
    CAILLETEAU v. BORDELON et al.
    No. 7270.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Rehearing Denied Feb. 21, 1949.
    Philo Coco, of Marksville, for appellant.
    A. J. Roy and Riddle & Riddle, all of Marksville, for appellees.
   HARDY, Judge.

Plaintiff, claiming to be the owner of a particularly described tract of land embracing some 140 acres in Avoyelles Parish, Louisiana, brought this suit to recover damages ‘from defendants arising from their trespassing upon, and the unlawful cutting and removing of trees and logs from, the said property. Plaintiff caused to be issued a writ of sequestration under which a number of hardwood logs in and upon the mill yard of one Mirth Dupuy were seized. The said Dupuy intervened in the suit, claiming ownership of the logs seized and further claiming damages arising by reason of the alleged illegal seizure. Defendants answered plaintiff’s petition in the nature of a general denial. Intervenor having filed a rule to dissolve the writ .of sequestration, by agreement, the same was referred to hearing on the merits. After trial on the merits, but before judgment, the writ of sequestration was ordered dissolved. Finally there was judgment in favor of defendants dismissing plaintiff’s suit and in favor of intervenor against the plaintiffs for damages in the total sum of $882.62. From this judgment plaintiff has appealed.

The facts which may be regarded as definitely established show that in or about the month of October, 1947, plaintiff, Dr. Ralph C. Cailleteau, receiving information that timber was being cut from his woodland property in Avoyelles Parish without his knowledge or permission, made a trip of inspection to his property. Finding that a considerable amount of hardwood timber had been cut in the vicinity, and believing some of the unauthorized cutting to have been on his property, plaintiff ordered the defendants, whom he found in the woods loading and hauling logs, to desist from their activities. Plaintiff procured the services of the Parish Surveyor, Edward B. Messick, who made a survey of the property designated by plaintiff on October 6, 1947. Subsequently, having determined that the plat which formed the basis of his survey was incorrect, Messick made a second survey, the exact date of which is not fixed, but appears to have been some three weeks subsequent to the date of the first survey. The second survey, which unquestionably is accurate, and which was made on the basis of information procured from abstracting the title, showed plaintiff to be the owner of only 40 acres of land in place of the amount of 140 acres, to which he asserted ownership. On November 25, 1947, plaintiff filed this suit, claiming damages in the sum of $2,200 as against the named defendants, Foster Bordelon and Edwin Gagnard. Defendants answered the suit on April 2, 1948, and on the same date Mirth Dupuy, owner and operator of the millsite on which 9,314 board feet of hardwood logs had been seized pursuant to the writ of sequestration, filed his petition of intervention. In said petition intervenor claimed the ownership of the hardwood logs under seizure, alleging that they had been cut and removed from property owned by one Dalton Laborde, and further claiming damages from plaintiff, by reason of the alleged illegal seizure, of the manufactured value of said logs, less the cost of manufacture and salvage. Intervenor further claimed the sum of $500 as damages to his millsite as the result of an infestation of bugs originating in the logs which had deteriorated by reason of lying in his mill yard over a long period of time, and which he could not manufacture into lumber because of the seizure by plaintiff under writs: of sequestration.

On April 12th intervenor filed a rule for dissolution of the writ of sequestration,, which, as above noted, was subsequently referred to trial on the merits. Trial was. had on May 28, 1948, and, by order of the district court on June 1st, the writ of sequestration was dissolved. Judgment on the merits was rendered and signed on-July 2, 1948.

It is to be observed that the damages, claimed by plaintiff in his petition amount to $2,200, which would clearly appear beyond the jurisdictional limits of this court. Defendants and intervenor have moved to-dismiss the appeal on this ground, and plaintiff has countered with a motion to» enter -a remittitur in the sum of $1,000.

The motion to remit comes too late inasmuch as such action is required to be taken prior to judgment. Spector v. Union City Transfer, La.App., 182 So. 524, and-cases cited therein.

However, plaintiff’s counsel suggests in his motion for a remittitur that the-damages claimed were exaggerated and inflated. Even without this admission the exaggerated amount of plaintiff’s claims-for damages would be obvious to the court. It is well settled that the real and not the fictitious, inflated or exaggerated amounts, of demands determines the jurisdiction of the Court of Appeal. Westfall v. McCullough, La.App., 187 So. 839, and cases cited therein.

In view of the fact that a reasonable-basis for plaintiff’s demands for damages-would unquestionably be well within the jurisdiction of this court, the motion to dismiss is denied.

On the merits of the appeal before this, court plaintiff stoutly contends that defendants cut and removed timber from his property. In our opinion the record does not bear out this contention. It is true that, plaintiff himself testified to the cutting and. removal of timber from his property, but it is evident from a study of his testimony that this was a conclusion which was not properly supported by facts of any substantial probative value. The attempt was made to corroborate this testimony by other witnesses, but their statements were so vague and indefinite that they cannot be regarded as sufficient upon which to base a judgment in plaintiff’s favor.

As against plaintiff’s testimony, we have not only the denial of the defendants themselves, but the testimony of the surveyor, who was on the ground and who actually counted the approximate number of trees cut on the tract surveyed under several ownerships, and who testified that he did not note any timber cut from the 40 acre tract established as being under plaintiff’s ownership.

We can only conclude that plaintiff has failed to make out his case with sufficient certainty by a preponderance of the evidence. Inasmuch as the distinguished judge of the district court obviously reached the same conclusion, and since we perceive no manifest error in the judgment rejecting plaintiff’s demands, to this extent the judgment must be affirmed.

There remains for our determination the matter of the allowance of damages in favor of intervenor, which presents a much more difficult proposition. Counsel for plaintiff, before this court, urges that intervenor was without right to claim damages in this proceeding, contending that intervenor’s rights are limited by law to the assertion of his ownership of the property seized. We have carefully examined the authorities cited in brief of plaintiff’s counsel, but do not find that they bear out the argument advanced. On the contrary we think it is clear under the provisions of Article 364 of the Code of Practice that an intervenor is specifically authorized to incorporate demands incidental to the main suit. The holding in Blodgett Construction Company v. Board of Commissioners, 153 La. 623, 96 So. 281, appears to us to be squarely in point as authority for this conclusion.

We" are therefore of the opinion that in-tervenor properly included his -claim for damages arising from the sequestration of property of which he claimed ownership.

We come finally to the question of quantum. The testimony establishes the- fact that 9,314 board feet of logs located on in-tervenor’s millsite were seized under the writ of sequestration. Intervenor testified that he owned these logs by right of purchase from the defendants with the exception of 2,000- feet for which he had not paid. The testimony also definitely establishes the fact that intervenor paid $5 per thousand stumpage, and $22 per thousand for cutting and hauling, which fixes his total cost at $27 per thousand.

Intervenor claims $125 per thousand on the basis of the value of manufactured lumber, subject to a deduction of $35 which he estimated as the cost of manufacturing. Intervenor further admitted the salvage value of the logs at $20 per thousand. Based upon these calculations intervenor, in effect, claimed damages at $70 per thousand on 9,314 board feet of lumber. This conclusion accords, with something approaching exactness, the sum of $682.62, which was'allowed in the judgment below as the value of logs and profits.

Additional damages in the amount of $500 were claimed by intervenor on the basis of infestation of his millyárd by bugs from the deteriorating logs under seizure. On this item the district judge allowed the principal sum of $200.

We are forcibly impressed by certain factors which enter into consideration on the question of the amount of damages and which are apparent upon study of the recapitulation of facts which we have set forth in the beginning of this opinion.

Intervenor suffered a period of more than four months to elapse before filing his petition of intervention setting up his ownership of the property seized. In his said petition he -claimed the exact nature, degree and extent of deterioration, and the same character and nature of infestation by bugs, and alleged the basis and the amounts of his damages in’the same sums to which he testified on the trial of the case which was had some seven weeks subsequent to the filing of his petition. Undisputed testimony in the record further shows that counsel for plaintiff suggested to inter-venor that he bond the property and advised that a bond in the sum of $100 would be acceptable to plaintiff. Intervenor unequivocally refused to act upon this suggestion.

The question naturally arises as to inter-venor’s right to extensive damages when, under the circumstances related, the damages have resulted from his own fault and neglect.

It is a general and well established rule that a party to litigation is not entitled to damages which he has suffered to ■accrue when it was within his power to minimize the harm or injury to which he was exposed.

Under the facts of this case it is clear that intervenor, by taking proper steps, at any time after the seizure of the logs responsive to the writ of sequestration, could have taken possession of the logs, manufactured them into lumber and sold the manufactured lumber at the, market price. This would unquestionably appear to have been the prudent and businesslike course which, if followed, would have preserved intervenor harmless against the damages he now claims.

Instead of taking any steps for his own protection intervenor waited until the logs had deteriorated, and, as an incident to such deterioration, caused his millsite to become infested with bugs before he asserted his ownership contradictorily with plaintiff through the filing of his petition of intervention. Under the circumstances we cannot help but feel that intervenor has himself been responsible for the damages which' he has suffered. Despite this conclusion we are not disposed to hold plaintiff free of all liability. Unquestionably, intervenor has established his payment for stumpage, cutting and hauling, amounting to a total of $27 per thousand on 7,314 feet of logs. From this total should be subtracted the salvage value which intervenor fixed at $20 per thousand, leaving a net of $7 per thousand which, in our opinion, represents the extent of intervenor’s right of recovery.

For the reasons' assigned the judgment appealed from is amended to the extent of granting judgment in favor of intervenor, Mirth Dupuy, and against the plaintiff, Ralph C. Cailleteau, in the sum of $51.20 as damages, together with legal interest thereon from date of judicial demand until paid, and, as amended, the judgment is. affirmed. Costs of this appeal are assessed against intervenor.