author: TALIAFERRO, Judge. KENNON, Judge

text:
    WILLIS v. MILLS TOOKE PROPERTIES, Inc.
    No. 7430.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 28, 1949.
    Rehearing Denied Nov. 23, 1949.

      Bullock & Bullock, Shreveport, for appellant.
    D. H. Perkins, Shreveport, for appellee.
   TALIAFERRO, Judge.

In the early part of the year 1948, the defendant, Mills Tooke Properties, Inc., a Louisiana corporation, of which Mr. Mills Tooke is president and general manager, drilled two producing oil wells in the southern part of Oil City in Caddo Parish, under lease from Henry C. Baldridge that embraced a lot on which Baldridge lived, containing approximately one-third of an acre. The record does not definitely disclose the date the wells “came in” as producers. They were not drilled simultaneously, but both were completed prior to the time of happening of the transactions which gave rise to this lawsuit.

In connection with each well there was excavated what is called a “slush pit”, the dimensions of which are variously estimated. They were indispensable to drilling operations, and as the name indicates, contained slush needful to drilling.

Under a covenant in the mineral lease from Baldridge it became the duty of the lessee to refill these pits within a reasonable time after completion of wells.

While drilling operations were in progress the yard about the Baldridge home and the seventy-five foot (75') long road from the front (west) end thereof to the public highway, were badly cut and torn up from heavy vehicular traffic. However, the lease from Baldridge contains no agreement on the part of the lessee to repair such conditions.

In this suit the plaintiff seeks to recover judgment for $1,340.65, the alleged value of labor and services rendered and of materials furnished by him, allegedly at defendant’s request, to fill said slush pits, repair the yard and road leading thereto, and to put them in such physical condition that they could be traveled upon by pedestrians and ordinary vehicles. It is alleged that this work was done between February 15th and the following March 12, 1948, “for and in connection with the drilling and operation” of said two wells.

In conjunction with the suit, plaintiff procured the issuance of a writ of provisional seizure under which the lease, the wells, the tanks and various kinds of machinery on the lease were seized. It is asserted that because of the character of and place where the work was done and material furnished, plaintiff has a lien and privilege upon the seized property to secure payment of the alleged indebtedness.

Defendant denied emphatically that he, in any way or manner, authorized plaintiff to do the work and furnish the material for which he sues, and therefore, is not responsible for the cost thereof; and in all other respects the material allegations of the petition are articulately denied. A special defense is set up, but the conclusions reached by us on the merits of the case obviate here giving a summary thereof.

Defendant reconvened and alleged that the writ of provisional seizure illegally and wrongfully issued and prayed that it be dissolved with damages for these reasons, viz.:

That defendant does not owe the amount for which it is sued, because plaintiff was never authorized to do the work or furnish the material claimed by him; that such labor was not done nor was the material furnished “in connection with the drilling or in the operation” of the Baldridge wells; that said wells had been drilled, completed and were flowing oil prior to the said work being done and materials furnished.

Defendant, further, in the alternative, prays that plaintiff be condemned to pay it $100.00 as the fee of its counsel for services rendered, and to be rendered, in dissolution of the writ and for $250.00, representing other damages suffered by it on account of the illegal issuance and levy of said writ.

Plaintiff’s demands were rejected at his cost. The writ of provisional seizure was dissolved and he was cast for $100.00, being the fee of defendant’s counsel. Plaintiff appealed.

The primary question in the case has to do with the alleged contract between the parties. Plaintiff follows and is equipped to do oil field work such as he alleged was done in this instance. He has followed that line of work for several years. Until February 2, 1948, he never knew Mr. Tooke, but he testified that on that date he came to the site of the Baldridge wells in the hope of seeing a Mr. Thompson who then had business relations with Mr. Tooke, but who was not in his employ. He says he had been told that Thompson might authorize him to do the work and furnish the material herein involved. He says that at that time the wells were being drilled and that Mr. Tooke was there and someone pointed him out to the plaintiff; that Tooke was standing on the railroad right-of-way, some seventy-five (75') feet from the lease site; that he addressed Mr. Tooke by name and that Tooke without further ado, said: “If I owe you any money, let me pay you,” to which plaintiff says he replied: “You do not owe me any amount, but I want you to owe me something.” Following this testimony, plaintiff further testified as follows, to-wit: “And then I told him my business, and he said: ‘Well, we have to do that all right,’ and I said: ‘How about doing it for you?’ And Mr. Tooke said: ‘Go ahead and see Mr. Baldridge about it and whatever he says do, go ahead and do it.’ ”

It is true that elsewhere in his testimony plaintiff states that Tooke instructed him at that time and place to go ahead with the work. This has the appearance of afterthought. We accept the above quoted testimony of the plaintiff as truly reflecting the conversation between the parties, if any actually occurred. Plaintiff added that at that time Mr. Tooke was in a hurry to get away and he admits that the matter of price for the work and materials was not mentioned.

Notwithstanding he testified that Tooke referred him to Mr. Baldridge for instructions as to the sort of work to be done, he admits that he never saw Baldridge nor made any attempt to do so. Instead, within three or four days he began the work, although weather conditions for so doing were most unfavorable. Tooke positively denies that this conversation with plaintiff was had at the place and time mentioned or any other place or time. He denies that he was even on the lease site on February 2nd. It will be noted that it is alleged in the petition that this conversation occurred on February 15th.

Plaintiff’s wife testified that she accompanied her husband to the wells on said date and saw him and Tooke in conversation, but she did not hear what was said by either.

According to plaintiff’s own testimony he had no contract with the defendant to do the work and furnish the material mentioned. The extent and nature of the work he was to do, if any, was a matter left to Baldridge, and he did not consult Baldridge at all, And, since defendant was only obligated to Baldridge, under the lease, to fill the pits, it logically follows, at best, that he would not have done more than this toward repairing the lease site.

It is likely, though it is not made certain, that Tooke visited the wells while some phase of the work was being done. Plaintiff says he did, and seriously argues that because Tooke did not object or otherwise interfere with or protest against what he saw going on, he thereby recognized that the work was being done with his consent, and cannot now be heard to question the liability of his company for the cost of the work. This position is not necessarily sound.

It is argued by defendant, in opposition to the above, that one may accept benefits accruing to him from the acts of another who serves, without a contract or authority from the beneficiary; and not commit himself to financial liability to the other party in so acting. This is entirely possible as a matter of law.

The case of Price v. Foster et al., 182 La. 79, 161 So. 161, negatives plaintiff’s above mentioned position. If there was no contract, the fact that when Mr. Tooke hurriedly visited the wells and noticed that some material was being delivered upon the seventy-five (75') foot roadway and/or upon the yard, the repair of which his company was under no obligation to do, certainly would not commit him to liability for the cost of the repairing.

In the Price case, supra, the court held that although the defendants knew the plaintiff had rendered valuable services to their father and to his estate, after his death, in the matter of adjusting a large claim by the Government for income taxes, and accepted the monetary benefits flowing from the services, as they had not agreed to pay him to render the service, he was without right to require them to pay him for such services either on contract or quantum meruit. The matter wholly turned upon the lack of any commitment on the part of these heirs to pay for the services rendered; that knowledge on their part did not constitute a contract or obligation to pay.

Plaintiff relies upon Act No. 68 of 1942 to sustain his contention that he has a lien and privilege upon the seized property to secure payment of his claim; and, this, too, zvhether the work was done or materials furnished under contract or not. This act creates a lien and privilege in favor or any person, firm, corporation, etc., who shall perform any labor or service, or who shall furnish any material or supplies "in connection with the drilling of any well or wells in search of oil, gas or water, or for or in connection with the operation of any oil, gas or water well” etc. The lien and privilege operates against the lease, the well or wells, the produced oil, tanks and all machinery etc. located upon the lease; and it secures payment of the amount due for such services and material and supplies furnished.

We are convinced from the testimony in the record that none of the work done or material delivered had any “connection” whatever with the drilling or operation of the well, because we are satisfied, as said before, the wells had been completed, the derricks removed and storage tanks erected before plaintiff began the work. When these things happen, it is an infallible sign that a well has been completed as a producer. Also, we do not agree with the contention that the lien and privilege came into existence even though there was no contract between the parties.

Under the 1942 act the lien and privilege is designed to secure payment of “the amount due” for labor, etc., and since we have held that no amount was due to plaintiff, because there was no contract, express or implied, perforce, there was at no time any lien or privilege to enforce.

In passing, we only repeat a legal principle known to all, when we say that liens and privileges are stricti juris. They are in derogation of common rights and may not be extended by way of construction to cover situations not clearly intended to be comprehended by them.

Defendant did not tender the legality of the issuance of the writ of provisional seizure by independent motion. The motion was incorporated in its reconven-tional demand. Plaintiff timely objected to the introduction of any testimony to support the motion and reconventional demand on the ground that the pleading was improper in that the motion to dissolve should have been tendered in limine, tried and wholly disposed of before damages for its unlawful issuance could be asked in reconvention. The court overruled the objection and admitted the proffered testimony. We are of the opinion that the objection should have been sustained.

The right of a defendant to claim damages by way of reconvention, when he has caused a conservatory writ against him to. be dissolved on any account, was created by Act No. SO of 1886, which amends Article No. 375 of the Code of Practice. The amendment reads: “ * * * and provided further, that in all cases of arrest, attachment, sequestration, provisional seizure and injunction the defendant may, in the same suit by reconventional demand, recover from the plaintiff the damages he may have sustained by the illegal resort to such writ.”

While the amendment authorizes such a claim to be asserted by reconventional ■demand in the same suit, it does not authorize, expressly nor by implication, that the motion to dismiss be incorporated in the answer and 'be tried along with and as an incident of the reconventional demand. The act unquestionably intended, and the jurisprudence has so established, that the motion to dissolve be tendered, tried and disposed of in advance of trial on the merits, without mixing or mingling the issue or issues raised thereby with any other issues in the case. Of course, if the motion is sustained, when filed and tried in limine, the logical procedure then to follow is to assert the claim for damages by means of reconvention in the answer. The only question the motion tenders is that of legality or of illegality of the issuance of the writ.

Plaintiff cites and relies upon Younger Bros., Inc., v. Spell, 194 La. 16, 193 So. 354, 355. Counsel has evidently misconstrued the opinion in this case. The court did say, as we have said herein, that the right to claim damages in cases where conservatory writs have been dissolved should be set up by way of reconvention. It appears in the cited case that the defendant set up a claim for damages, in the motion to dismiss and no objection was raised as to the propriety of the procedure. The motion was tried, the writ dissolved and judgment awarded the defendant for a substantial amount. In the Supreme Court the plaintiff, appellant, filed what was denominated an exception of no cause of action wherein it was pleaded that the mover had no right to set up the recon-ventional demand for damages in the motion to dissolve and argued that the right to claim damages in such a case may only be asserted by way of reconventional demand in his answer. The Court, through its Chief Justice, said:

“If the plaintiff had objected in limine litis, to the defendant’s setting up his reconventional demand for damages in his motion to dissolve the writ of provisional seizure, it is very likely that the objection would have prevailed. In article 377 of the Code of Practice it is declared that ‘in all cases of reconvention’ the defendant may set up his demand ‘in his answer to the principal demand’ or in a separate suit. Counsel for the defendant in this case argue that the law in that respect was changed by Act No. 50 of 1886, amending article 375 of the Code of Practice, so as to allow the defendant in any case where a conservatory writ is issued against him to claim damages by way of a reconventional demand in the same suit if the writ was obtained wrongfully, even though the plaintiff and defendant reside in the same parish. But that amendment has nothing to do with article 377, prescribing the method for asserting a reconven-tional demand. There is good reason why a reconventional demand for damages for the alleged wrongful obtaining of a conservatory writ should not be allowed in a motion to dissolve the writ, but should be reserved until the defendant answers the suit. * * * ”
“Besides, a motion to dissolve a conservatory writ is a summary proceeding; and a claim for damages, such as the defendant’s reconventional demand in this case, is one which may be asserted only by the ordinary proceeding, and not by the summary proceeding, without the consent of the defendant in the proceeding. * * *

The plaintiff cites the following cases from our jurisprudence, which clearly sustain his position with respect to the motion to dismiss and reconventional demand, to-wit: Dehan v. Youree et al., 166 La. 635, 117 So. 745; Fabacher v. Rouprich et al., 160 La. 433, 107 So. 295; Rains v. Jones et al., La.App., 152 So. 356; Hebert v. Hurwitz Mintz Furniture Company et al., La.App., 21 So.2d 638; Three Rivers Oil Company v. Laurence, 153 La. 224, 95 So. 652; Witbeck v. Rea et al., 158 La. 1003, 105 So. 43; Kavanaugh v. Frost-Johnson Lumber Company, 149 La. 972, 90 So. 275; Smith v. Wm. D. Keith Motor Company, 163 La. 395, 396, 111 So. 798.

It is unnecessary to consider or discuss and pass upon the other defenses raised.

For the reasons herein assigned, the judgment from which appealed is affirmed, excepting that part thereof which awards judgment of One Hundred ($100.-00) Dollars in favor of the defendant, and to this extent said judgment is annulled, reversed and set aside. Plaintiff is cast for all costs except those incurred in the prosecution of this appeal, which shall be: paid by the defendant.

KENNON, J., concurs.

KENNON, Judge

(concurring).

I am in agreement with the above opinion on all points except the holding that the work done was not such as to be included under Act No. 68 of 1942. I agree with the Court’s conclusion that plaintiff failed to establish a lien under the provisions of this Act for the reason that the record shows that the defendant at no time became legally liable to plaintiff for the services allegedly rendered. Since no money was ever due by defendant to plaintiff, it necessarily follows that no lien ever came into existence against defendant’s lease, and, in my opinion, it is unnecessary for the Court to consider in this case whether or not the work performed by plaintiff, either on the leased premises itself or on the road adjacent thereto, was of such nature that payment for same could be enforced by the filing of a lien under Act No. 68 of 1942.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    CRAWFORD et ux. v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited.
    No. 7412.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 28, 1949.
    Rehearing Denied Nov. 23, 1949.

      Jackson & Mayer, Shreveport, Frank S. Kennedy, Shreveport, for appellant.
    Malcolm W. Feist, Shreveport, for ap-pellees.
   HARDY, Judge.

This is an action for damages in the nature of personal injuries and property damage suffered by plaintiffs, husband ‘and wife, in an automobile collision with a motor truck owned by defendant’s assured. After trial there was judgment in favor of plaintiff, Crawford, in the total sum of $1,879.-51, and in favor of the plaintiff, Mrs. Crawford, in the sum of $250. From this judgment defendant has appealed, and plaintiff, Mrs. Crawford, has answered the appeal praying for an increase in the judgment.

There is not a great deal of dispute as to the facts developed on trial of the case with respect to the actual incidents leading up to and culminating in the collision.

Plaintiff, Crawford, accompanied by his wife, was driving his 1948 Packard Tudor Sedan south on the Shreveport-Mansfield Highway, No. 171, late in the afternoon, but during good daylight, on January 3, 1949. As plaintiff was proceeding at an admitted rate of speed of 'some 40' to 45 miles per hour, he noted some distance ahead, and approaching him from the south, a Ford truck rounding a rather sharp curve, which vehicle suddenly and without warning went out of control and began to skid across the highway directly in front of plaintiff’s course of travel. The road at the point of the collision is black-topped and was very slippery under the weather conditions existing- at the time, a misting rain having followed a slow steady rain which had been falling for some time. The road is bordered with ditches on either side, and, rather than take the chance of overturning in the ditch on the right, plaintiff veered his car to the left in order to avoid a collision with the skidding truck. This maneuver took plaintiff’s vehicle over on to the wrong side of the highway in the path of oncoming traffic, and, before he could regain the proper side of the highway, the Packard collided with an oncoming Chevrolet truck which had been following the Ford truck and proceeding in the same direction, that is, north, which collision inflicted serious damages to both plaintiff’s Packard car and the Chevrolet truck, the latter of which overturned in the ditch by the side of the road on plaintiff’s left. The Ford truck had overturned in the ditch on plaintiff’s right.

As the result of the collision described both plaintiff and his wife claimed to have sustained some physical damages, and plaintiff’s automobile, which was comparatively new and had been driven only about 3,500 miles, was demolished to such extent as to make the repair thereof impracticable.

The Ford truck was owned by defendant’s assured, Mr. Ray Oden, and at the time was driven by Oden’s Negro employee, Wilbert Harris. The Chevrolet truck, which also sustained substantial damage, recovery for which is being sought in a companion suit, was owned by the Shreveport Truck Rental Company, Inc., and at the time was driven by E. W. Gray, who had rented the use of the truck from the owner. The latter vehicle was insured by the National Casualty Company.

There is no serious conflict between the parties as to the physical circumstances narrated by each of them which had a bearing upon the accident. It is obvious that the loss of control of the 2¡/¿ ton Ford truck by its driver, Harris, was the proximate cause of the accident. The testimony is not conclusive as to just what happened, whether the driver lost control of the truck by reason of excessive speed in negotiating the curve at the point, or whether -some defect in the steering mechanism was responsible. In any event, under the facts developed on trial there can be no question as to the fact that the loss of control was due to negligence, and, certainly, neither plaintiffs nor the driver of the other truck involved were chargeable with any fault in the original instance.

The only serious question which develops is whether or not the plaintiff, Crawford, was guilty of negligence in maintaining an excessive rate of speed and failing to have his car under such degree of control as would have enabled him to bring the vehicle to a stop under the existing emergency, which action would have avoided any collision.

All the drivers of the vehicles involved were familiar with the road, -and plaintiff, Crawford, was accustomed to traversing this partiular section of the road twice a day in the course of the operation of two business enterprises, one of which was located some miles south of the point of the accident.

The several authorities cited by counsel for the parties as involving facts analogous to those before us are not controlling in view of the oft-repeated pronouncement of the courts of this State that the facts and circumstances of each particular case will govern a determination of liability. As has been many times observed no broad, general rule or regulation can be devised which will be applicable to every case.

The crux of this case lies in a determination of the charge of contributory negligence as against plaintiff, Crawford, which, if established, in turn could be asserted as an intervening incident proximately causing the actual collision. This involves solely a question of fact which was resolved in favor of plaintiff by our learned brother of the District Court. With this finding of fact we are in agreement.

There was nothing negligent in a ■speed of 40 to 45 miles per hour on an open road where no obstacle, impediment, nor any traffic was shown to have existed in the view of plaintiff along his own lane of travel. It would be unreasonable to consider that the driver of a motor vehicle is required to anticipate the sudden skidding of an oncoming vehicle clear across the width of the highway immediately in front of his course. This is what happened in the instant case.

It is true that there is considerable testimony as to distances, and defendant strongly urges the adoption of a conclusion based on the fact that the Ford truck began to skid across the road several hundred feet in advance of plaintiff’s automobile which allowed more than sufficient opportunity for plaintiff to bring his car, if properly under control, to a stop. We do not think this conclusion is justified under the evidence in the record. To the contrary we accord full weight to plaintiff’s testimony that the application of his brakes under the circumstances would have been an extremely dangerous maneuver, possibly fraught with most serious results.

In any event, it is clear that plaintiff was confronted with a sudden emergency and no blame of negligence can be attached to any possible error of judgment attending his reaction. It follows that the charge of contributory negligence against plaintiff has failed of substantiation.

Much of the record before us is devoted to the establishment of damages to plaintiff’s automobile, and numerous technical objections interposed to proof of damages in connection therewith. Notwithstanding the serious contentions made with respect to proof, we think it is preponderantly established that plaintiff’s automobile sustained such serious damage as to render it unfit for use and unsatisfactory even after repair. The car was almost new, and we are of the opinion that plaintiff, having sustained damage of this nature, is entitled to the replacement value thereof, measured by the value of the automobile prior to the accident less the amount received as a trade-in value after the accident. The Dis-trit Judge apparently found this value as being $1,644.51.

The other items of damage comprehended by the judgment included the allowance of $150 for physical pain, suffering and shock; $75 for the expense of rental of another automobile necessary for use in plaintiff’s business; and $10 as the cost of an x-ray which was required by the defendant insurer.

All of these lesser items appear to have been conclusively established and no serious objection has been made to their allowance.

The plaintiff, Mrs. Crawford, sought the sum of $400 damages for pain, suffering and shock resulting from the accident. The District Judge allowed the recovery of $250, which she seeks, through answer to this appeal, to have increased to the full amount of $400.

Aside from sustaining some more or less painful bruises to her forehead, which injuries have had no lasting effect, the record does not support any claim to allowance of a substantial amount of damages. Unquestionably the item of shock resulting from the accident should be taken into consideration, but on the whole we do not find any basis justifying an increase in the sum fixed by the District Judge.

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


text:
    SHREVEPORT TRUCK RENTAL CO., Inc. v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited.
    No. 7413.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 28, 1949.
    Rehearing Denied Nov. 23, 1949.

      Jackson & Mayer, Shreveport, Frank S. Kennedy, Shreveport, for appellant.
    Morgan, Baker, & Skeels, Shreveport, for appellee.
   HARDY, Judge.

This is a suit for the recovery of damages caused to a rental truck owned by plaintiff in which the recovery of a total amount of $807.08 is claimed.

This is a companion case to C. Crawford, et ux. v. Zurich General Accident and Liability Insurance Company, Ltd., La.App., 42 So.2d 553. The facts involved are fully set forth in the opinion of the Court in the above entitled and numbered cause and no useful purpose would be served by repetition thereof in this opinion.

Accordingly, the only matter which need here be considered bears upon the amount and the extent of the damages allowed by judgment of the District Court. After trial on the merits there was judgment in favor of plaintiff and against the defendant, Zurich General Accident and Liability Insurance Company, Ltd., in the amount of $505.75, as the judgment was amended on rehearing, from which judgment defendant, Zurich, has appealed. The appeal has been answered by plaintiff, who seeks an increase in the judgment to the full amount claimed.

The National Casualty Company, insurer of Milton C. Crawford, one of the plaintiffs in the companion suit noted above, was joined as a party defendant, but plaintiff’s demands as against it were rejected.

The liability of the National Casualty Company, of course, has been determined by our findings in the Crawford case.

The only issue presented by this cause is with respect to the correctness vel non of the judgment for damages to plaintiff’s truck.

We find it unnecessary to discuss the details of the evidence presented, which, in our opinion, preponderates conclusively in favor of the correctness of the. amount fixed by the lower Court.

However, it is strenuously urged by plaintiff that it is entitled to an increase in the amount of damages allowed, by reason of the fact that the Court did not take into consideration a claim for the value of the replacement cost of two tires, nor the item with regard to the loss of the use of a truck during the period of effecting the repairs. We do not think the record justifies the claim for tire replacement cost, but we are persuaded that the Judge of the District Court erred in failing to make some allowance with respect to- the loss of use of the truck.

It is shown that the truck was out of service for a period of something more than a month, and the President of the plaintiff company testified that the average earnings of each of the seven trucks employed by plaintiff in its service at the time of the accident amounted to some $150 or $200 per month. This estimate was based on the computation of a 50 to 60 percent maximum use of all trucks. Con-cededly, the number of trucks in use varied from time to time, on occasions all trucks being in use and on other occasions the use being limited to a lesser number. On the whole we think the testimony preponderates in favor of the propriety of a claim for damages resulting from loss of use of the truck in question. Accepting the minimum average earnings of $150 per month, we think the allowance should be based upon this figure less a reasonable depreciation charge, which we fix at $50. Accordingly, we are of the opinion that the judgment appealed from should be increased by the sum of $100.

For the reasons assigned, the judgment in favor of plaintiff and against the defendant, Zurich General Accident & Liability Insurance Company, is amended by increasing the amount thereof to the sum of $605.75, and as amended, is affirmed at appellant’s cost.


author: KENNON, Judge. PER CURIAM.

text:
    COOK v. INTERNATIONAL PAPER CO.
    No. 7349.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 28, 1949.
    Rehearing Denied Nov. 23, 1949.
    J. S. Pickett, Many, for appellant.
    Madison, Madison, Files & Shell, Bas-trop, for appellee.
   KENNON, Judge.

Plaintiff, on July 28, 1948, filed suit seeking four hundred weeks compensation at $20 per week, allegedly due as the result of an accident occurring on July 30, 1946 while plaintiff was in the employ of the defendant corporation.

Plaintiff’s injury was to his shoulder and foot. The petition set forth that recovery was complete from the shoulder injury but that he suffered some discomfort from soreness to his foot which, however, did not “prevent petitioner from working until on or about December 20, 1947,” when the injury became disabling and that he had' been unable to work since that date; that “about the middle of April, 1948,” he consulted a doctor and was informed that as a result of the July 30, 1946 accident there existed an injury to one or more bones of his right foot and reiterated that his total disability had manifested itself first on December 20, 1947.

Defendant filed an exception of no cause or right of action and a plea that plaintiff’s cause of action was “-barred by prescription of one and two years.”

The case is before us on plaintiff’s appeal from a judgment of the District Court sustaining that plea.

From an examination of the pleadings, the evidence and the well considered written opinion of the District Judge, we accept the following as the facts in the case.

Plaintiff, while in the course of his employment with defendant, received an injury to his shoulder and foot on July 23, 1946, and was attended by a physician on that date. He did not work the next day but did resume work on the 25th, and after working the 25th, 26th and a half day on July 27th, his employment with the defendant company ended. On August 9, 1946, plaintiff’s attorney wrote to defendant informing them that plaintiff was injured on or about July 24, 1946 and had employed him to present a claim for compensation. On April 17, 1948, plaintiff’s attorney wrote to the attorneys representing defendant advising that plaintiff expected to make a claim for compensation as a result of an injury received on or about July 30, 1946. Another letter was written by plaintiff’s counsel to defendant company on July 23, 1948 in which demand was made for total and permanent disability beginning December 27, 1947. Suit was filed on July 28, 1948, two years and1 five days after the occurrence of the injury on July 23, 1946.

Doubtless due to the long interval between the occurrence of the accident and the second demand for compensation made in 1948, the date of the accident was erroneously described in plaintiff’s counsel’s April 28th letter, July 23rd letter and July 28th petition as July 30, 1946, when in fact the accident occurred on July 23, 1946. We are positive of the good faith of plaintiff and his counsel, even though the petition was filed on July 28, 1948, two days before the two year prescription would run on a July 30, 1946 injury and five days after the same prescription would have run on a July 23, 1946 injury. Positive confirmation of this good faith on the part of plaintiff and his counsel is shown by the fact that the erroneous date of July 30th is set forth in plaintiff’s counsel’s letter written in April, 1948, when there was still approximately ninety days to run before the two year period for filing suit expired.

Section 31 of the compensation act, Act No. 20 of 1914, as amended, first by Act No. 85 of 1926, and last by Act No. 29 of 1934, reads: “That in case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties shall have agreed upon the payments to be made under this act or unless within one year after the accident proceedings have been begun as provided in Sections 17 and 18 of this Act. Where, however, such payments have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitations shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the said proceedings have been begun within two years from the date of the accident

Plaintiff’s able attorney has written an exhaustive and well reasoned brief and makes the contention that since the injury did not manifest itself until December, 1947, his client had, under the law, one year from that date before his claim was barred by prescription, and that to enforce the above underscored (by the Court) portion of Section 31 of the compensation act would produce an unfair result in that a workman whose injury developed eighteen or twenty months after the accident would have less time to file suit than the workman whose injury manifested itself immediately or twelve months or fifteen months after the accident.

We concede that the result of the two year limitation is as counsel states in his well presented brief. Nevertheless, the statute is plain in providing that in no event can a compensation suit be brought more than two years from the date of injury, unless the parties have agreed upon the payments to be made, as set forth in the above quoted Section 31. The rule now prevailing in Louisiana is well stated in the case of Anderson v. Champagne, La. App., 8 So.2d 373, 374: “It is apparent that under the law as it now stands, and as it existed at the time of the filing of this suit, the prescription of one year begins to run from the date of the accident if the injury develops at the time of the accident or immediately thereafter, 'but where the injury develops after the accident, the prescription of one year begins to run from the time the injury manifests itself, but in no event can the suit be brought more than two years from the date of the accident.”

Counsel has contended that the two year prescription is not applicable in this case because although his client was injured on July 23, 1946, he could not have filed suit in the first instance before July 28, 1946, because the record showed that his client worked July 25, 26 and 27, 1946 and that the following day, July 28, 1946, was a Sunday and therefore no suit could have been filed in 1946 until July 29th. His contention being that under these circumstances, a suit filed on July 28, 1948, was filed timely enough not to be 'barred by the two year limitation provided in the above quoted Section 31. The language of the act is the answer to counsel’s contention. The applicable portion being: “the claim for payment shall be forever barred unless the said proceedings have been begun within two years from the date of the accident.” (Italics ours).

Plaintiff’s suit having been filed more than two years after the accident, the action is barred by the same law which created it.

The judgment is affirmed, with costs.

On Rehearing.

PER CURIAM.

Plaintiff in application for rehearing has stressed his claim for medical expenses and cited the case of Brown v. Travelers’ Insurance Company et al., La.App., 146 So. 774 and (on rehearing), 149 So. 290, in which plaintiff was allowed medical expenses incurred in connection with an accident within the meaning of the workmen’s compensation law although compensation was denied, because of his recovery from the ill effects of the injury before leaving defendant’s employ.

The right of an injured employee to recover medical expenses incurred as the result of an accident while in the course and scope of his employment has no existence except under the pertinent section of the Louisiana Workmen’s Compensation Act. The time limitation in Section 31 of this Act, quoted in the original opinion herein, is applicable to plaintiff’s claim for medical expenses as well as his claim for weekly compensation.

The rehearing is refused.


author: KENNON, Judge.

text:
    LOUISIANA FIRE INS. CO., Inc. et al. v. R. W. HODGE & SONS GARAGE.
    No. 7396.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 28, 1949.
    Rehearing Denied Nov. 23, 1949.

      Love & Bailey, Shreveport, for appellant.
    Freyer, Goode, Nelson & Freyer, Shreveport, for appellees.
   KENNON, Judge.

On March 25, 1948, an employee of plaintiff, Superior Iron Works & Supply Company, Inc., delivered a Dodge two-ton truck to defendant’s garage on Franklin Street in Shreveport, Louisiana, for the purpose of having the truck repaired. Defendant’s employee took possession of the truck and drove same out. of the garage for the purpose of determining the truck’s condition and the repairs needed. While defendant’s employee was driving the truck on the right side of the Market Street viaduct in the City of Shreveport, the vehicle went completely out of control; traveled across the wide four-lane viaduct; crashed through the heavy concrete guardrail and finally, stopped with the cab portion even with the edge of the high bridge; its front end and the front portion, as far back as the steering wheel, suspended over air space with the truck almost in balance 'between remaining on the viaduct level or falling below to what appeared to be sure death for the driver and further destruction of the vehicle.

Fortunately the driver was unhurt and with the assistance of two wreckers, the truck was returned to defendant’s garage where repairs totaling approximately $800.-00 put the truck in condition to be delivered back to the Superior Iron Works for further use. Superior Iron Works paid defendant’s repair bill of $809.93. The Louisiana Fire Insurance Company, Inc., the principal plaintiff herein, carried collision insurance on this truck and after paying its insured $759.93 (the repair bill less the $50-00 deductible under the policy), filed suit against the defendant garage to recover the amount so paid. The Superior Iron Works joined as party plaintiff, seeking the return of the $50.00 deducted by its insurer.

The District Court gave judgment in favor of the Louisiana Fire Insurance Company, Inc. as prayed for, but rejected the claim of the Superior company. Defendant appealed from the judgment and plaintiff, Superior Iron Works & Supply Company, Inc., answered the appeal asking this Court to render judgment in its favor for $50.00 as prayed for.

The facts of the case are plainly indicated by the record and are not in dispute on many points. Employees of the Superior company had been experiencing troubli with the steering apparatus and on March 25, 1948, brought the truck to the Hodge garage for necessary repairs. Counsel for plaintiffs and defendant are in disagreement as to what transpired, at the time of the delivery of the truck, between Ralph Wynn, agent of the Superior company, and J. N. Hodge, employee of the Hodge garage, particularly with reference to whether Wynn authorized J. N. Hodge to drive the truck for the purpose of determining more accurately its trouble and as to the extent of information given by Wynn to Hodge relative to the defective condition of the truck’s steering gear. There appears in the record a typewritten statement signed by Ralph Wynn dated May 14, 1948, and reading as follows:

“This is to certify that I, the undersigned, authorized J. N. Hodge of R. W. Hodge and Sons Garage to drive a 1947 Dodge truck on March 24, 1948 belonging to Superior Iron Works to diagnose steering trouble for purpose of repairing the same.”

Before signing the above statement, which is on the letterhead of the defendant company, Ralph Wynn evidently required that something be put down about his report to Hodge that he was having trouble with the steering apparatus. In evidence of this, there is a pencil memorandum written below Wynn’s signature on the front of the same sheet, as follows:

“Mr. Ralph Win stated that truck was not steering right.”

The misspelling of Wynn's surname confirms the impression that the pencil memorandum was written in by the agent of the Hodge garage.

Our conclusion is that the truck was delivered by Ralph Wynn, for the Superior company, to J. N. Hodge, for the Hodge garage, with an explanation that Wynn was having trouble driving the truck, and that he had experienced difficulty in avoiding colliding with parked cars while on his way from plaintiff’s place of, business to defendant’s garage. We further conclude that Ralph Wynn knew that J. N. Hodge expected to test out the truck and determine the trouble by driving same on the streets of Shreveport and at the time of, or prior to the acquiescence, he told Hodge that the truck was not steering right, as indicated by the above statement.

We further find that the truck was being operated by J. N. Hodge at a reasonable rate of speed over the Market Street viaduct and after safely negotiating the upgrade and a portion of the downgrade, Hodge began braking action on the truck. Whereupon, the steering gear locked, the truck went completely out of control, crossed the viaduct, went over the sidewalk and crashed through the concrete balustrade and stopped with the front wheels and engine section suspended in mid-air. Hodge was not injured but doubtless would have been seriously hurt if not killed had the truck continued forward a few more inches and dropped to the distant ground underneath the viaduct.

At the time of the runaway crash, the truck had been turned over to the defendant garage in order that necessary repairs might be performed. The Courts of Louisiana have considered the garage-man’s liability under these circumstances to be that of a depositary. Marine & Motor Insurance .Co. v. Cathey, 8 La.App. 240. Article 2937 of the Revised Civil Code provides :

“The depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.”

We next consider whether J. N. Hodge, in making the test drive, was using the same diligence in preserving the deposit that he used in preserving his own property. It is not unusual when an automobile, in need of repairs, is delivered to a garage, for the mechanic or shop foreman to make a test drive in order to determine the trouble. Had there been no accident, the result of the test drive was calculated to be of benefit both to the owner of the truck and the owner of the garage in that Hodge would have more definitely located the trouble and have been better able to effect proper repairs. If someone had read Article 2937 of the Revised Civil Code to J. N. Hodge and asked him the question whether in driving the truck he had followed the codal obligation “to use the same diligence in preserving the deposit that he uses in preserving his own property”, he might well have answered that he certainly valued his own life and limb as much as he would value a track had he owned one, and the fact that he thought the truck safe enough to risk the danger of death or injury to himself was evidence enough that he would have expected a mechanic to have made a test drive of a truck of his were the circumstances reversed.

As a further indication that defendant’s employee Hodge was taking no more chances than are usually risked, it can be noted that his driving of the truck over the streets for testing purposes created no more danger of damage to the truck than the just completed action of the Superior company’s employee Wynn in driving the truck from the owner’s place of business to defendant’s garage. This is particularly true as the record shows that the description of the truck’s trouble was such as to indicate that the condition was of long duration and chronic in character and there is nothing in the evidence to put Hodge on notice that the truck would become completely “runaway” on normal driving over the city streets. The fact that the Superior Iron Works & Supply Company paid the defendant company the full amount of its bill for repairs, including the $50.00 for which the Superior company had no prospect of receiving reimbursement from its insurer, is a further indication (though of course not legally binding) that the officials of the Superior company did not consider Hodge negligent in making the test run which resulted in the collision.

Plaintiffs’ counsel makes the contention that at the time of the accident, the defendant garage “had control of the vehicle involved and exclusive knowledge of the accident” and invoked the principle of law contained in the following quotation from the brief:

“ ‘Where the thing which caused the injury complained of is shown to be under the management of defendant or 'his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable inference in the absence of explanation by defendant that the accident arose from want of care.’ ”
“(45 C.J. Sec. 768, p. 1193, cited in Jones v. Shell Petroleum Corp., 185 La. 1067, 171 So. 447 and further cited in Gulf Ins. Co. v. Temple, [La.App.], 187 So. 814).”

It is doubtful that the above rule would be applicable to the present case for the reason that the defective condition of the truck, which resulted in the accident, was shown by the record to have been in existence at the time the truck was delivered to defendant, and for a considerable time prior thereto.

Since the defendant produced evidence as to the manner in which the accident happened, and the record shows that there existed no want of care on the part of defendant’s employee who was driving the truck at the time of accident, it follows that defendant has discharged any burden which the law placed upon him to exonerate himself from the inference referred to in the above quotation. •

Having found that the action of defendant’s employee in beginning the test drive of the truck was not unusual or imprudent under the circumstances and that in doing so he was using no less diligence in preserving the deposit than he displayed in taking care of his own personal safety, and that the record establishes the cause of the accident, leaving no necessity for applying the rule as to 'burden of proof or inference of negligence, we conclude that plaintiffs’ action is not well founded.

The judgment appealed from is set aside and judgment is now rendered in favor of defendant, rejecting the demands of plaintiffs, with costs.

TALIAFERRO, KENNON and HARDY, JJ., sitting.


text:
    SOUTHERN PAC. RY. LINES et al. v. SMITH.
    No. 7379.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 28, 1949.
    Rehearing Denied Nov. 23, 1949.
    Freyer, Goode, Nelson & Freyer, Shreveport, for appellants.
    Tucker, Bronson & Martin, Shreveport, for appellee.
   HARDY, Judge.

This is a suit by plaintiff railway carrier to recover the sum of $707.61 alleged to be the amount due as freight charges on a shipment of heavy machinery from Port Hueneme, California, to Shreveport, Louisiana, consigned to the defendant.

The facts in this case are without dispute and those material to the issue are established as follows:

Defendant, a former G. I., purchased the heavy machinery at a surplus property sale from the War Assets Administration at Port Hueneme, California; at the same time another ex-G. I., one Lawrence Bass, also a resident of Shreveport, Louisiana, purchased certain property at the sale, and defendant and the said Bass interested themselves in determining the most expeditious and economic method of shipment of the property from Port Hueneme, California, to Shreveport; defendant, acting for himself and Bass, determined that the cheapest method of transportation would be rail shipment under one bill of lading which would permit a car lot rate, consigned either to himself or to Bass; thereupon defendant, according to the allegations of his petition, specifically advised one P. E. Anderson, Chief of Transportation, connected with the War Assets Administration at Port Hueneme that the property purchased by him and Bass was to be shipped together under one bill of lading, either to defendant or to Bass at Shreveport, Louisiana; specific allegations in defendant’s answer aver that despite these instructions to Anderson the properties were shipped under separate bills of lading with separate charges, although they were transported to Shreveport in the same freight car, and defendant particularly denies any instructions to Anderson to ship the property in this manner. There is no dispute as to the accuracy of the freight charges, which are in accordance with duly authorized and approved tariffs.

After trial there was judgment rejecting plaintiff's demands for the total amount sued for, but' allowing plaintiff judgment against defendant in the sum of $414.95, from which judgment plaintiff has appealed.

The record, in addition to the pleadings, is made up of a copy of the original bill of lading and of the bill for freight charges against defendant, the originals having been delivered to said defendant, together with a stipulation of counsel and affidavits of the defendant and Bass with respect to the general facts above noted, and an affidavit of J. M. Langford, a freight agent, with respect to the correctness of the freight charges, the delivery of the property to defendant and defendant's failure to pay the charges.

There are a number of technical points which have been raised by counsel for plaintiff and defendant respectively dealing with the admission of evidence, etc., which we do not deem of sufficient importance to necessitate discussion, inasmuch as none of the objections affect the merits of the controversy and what appears to us to be the obvious determination thereof.

The defense, as observed from the answer itself, is based upon defendant’s contention that his shipping instructions were disobeyed, and that, as a consequence, he is liable only for the freight charges calculated on a car lot shipment, which would amount to $414.95. In support of this contention counsel for defendant strenuously urges that the bill of lading, which is concededly the carrier’s authority for shipment of the goods, was not executed by the defendant, consignee, nor does the evidence in the record establish the fact that it was executed by the consignor. 'Consequently, it is argued that the bill of lading could have been made out by the carrier who failed to make the shipment at the lowest rate in accordance with defendant’s instructions. Careful consideration fails to impress us with the relevancy of this contention. The copy of the bill of lading shows on its face that it was signed by P. E. Anderson by direction of B. W. Fink, Capt, U. S. Navy, as shipper or consignor. Defendant’s answer makes no claim that he gave any instructions whatever to the carrier, but, on the contrary, defendant plainly sets forth the fact that his instructions were given to P. E. Anderson, who had no connection whatsoever with the carrier.

It appears obvious to us that the carrier cannot be charged with the fault of a third party who failed to carry out defendant’s instructions. If defendant has any recourse it would appear to be against the War Assets Administration or the United States Navy in whose service P. E. Anderson appears to have been engaged. Plainly, defendant made Anderson his agent with respect to procuring shipment of the property and charged him with certain definite instructions. But unless it is shown, and certainly it has not been, that there was some responsibility off the carrier, we fail to perceive on what ground defendant can avoid his liability for the full amount claimed.

It is noted that plaintiff prayed for the allowance of attorney’s fees, but no mention of this item has been made in oral argument or brief before this court and we presume the same to have been abandoned, and we think properly so.

For the reasons set forth the judgment appealed from is reversed and set aside and there is now judgment in favor of plaintiffs, Southern Pacific Railway Lines, Texas & New Orleans Railway Company, and against the defendant, George L. L. Smith, in the full sum of $707.61, together with legal interest thereon from date of judicial demand until paid, and for all costs.


text:
    WORLD FIRE & MARINE INS. CO. v. AMERICAN AUTOMOBILE INS. CO.
    No. 7375.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 28, 1949.
    Rehearing Denied Nov. 23, 1949.

      Morgan, Baker & Skeels, Shreveport, for appellant.
    Jackson & Mayer, Shreveport, Frank S. Kennedy, Shreveport, for appellee.
   HARDY, Judge.

This is an action in which plaintiff, an insurance corporation, as subrogee of its insured, seeks to recover, by direct action, against the insurer of the owner of a motor truck which was involved in an accident with plaintiff’s subjrogor’s automobile.

Defendant filed exceptions of no cause or right of action and a plea of unconstitutionality. The latter plea was overruled but the exception was sustained and there was judgment dismissing plaintiff’s suit, from which plaintiff has appealed.

Defendant’s exception is predicated upon the specific provisions of Act No. 55 of 1930 with reference to the right to bring a direct action, which reads as follows:

“* * * Provided further that the injured person or his or her heirs, at their option, shall have a right of direct action against the insurer company * * (Emphasis by the Court.)

The argument of defendant is obvious; that the words of the act which are above emphasized limit the right of direct action to the extent particularly set forth, and, as a consequence, it follows that the statute does not extend the privilege to the assigns of the injured party.

The force and application of defendant’s argument appears to us to be inescapable. Unquestionably Act No. 55 of 1930 is a special act in derogation of general law and it follows that it is stricti juris. Accordingly, the plain provisions of the act with respect to the granting of the right of direct action against an insurer cannot be extended by implication to include any class or group or individual which is not comprehended under the definition of “the injured party or his * * * heirs”.

The argument interposed by plaintiff as against the contention of defendant is based generally upon the proposition that the happening of the accident created a contractual relationship between the injured party and the “wrongdoer’s” liability insurer, which vested in the injured party a cause of action which must be considered as a property right. The conclusion based upon this premise is to the effect that the sale or assignment of such a property right is valid and enforceable under the laws of Louisiana.

In support of the above argument plaintiff cites certain cases from other jurisdictions, particularly Roth v. General Casualty & Surety Co., 106 N.J.L. 516, 146 A. 202; Pigg v. International Indemnity Co., 86 Cal.App. 671, 261 P. 486; Bias v. Ohio Farmers’ Indemnity Co., 28 Cal.App.2d 14, 81 P.2d 1057, and Home Accident Insurance Co. v. Barges, 9 Cir., 30 F.2d 759.

Examination of the cited cases fails to disclose an analogy which would justify their acceptance as authority on the point here at issue. The actions were instituted after judgment. We perceive no relationship between the generally accepted proposition that a judgment is property and may be assigned and the asserted right of a sub-rogee to institute' direct action under the provisions of Act No. 55 of 1930.

Conceding the force of plaintiff’s argument that a right of action is property and therefore may be assigned, it does not follow that the right of assignment can be exercised in violation of the plainly restricted provision of the statute at issue.

It therefore follows that defendant’s exception was properly sustained.

In view of our finding with respect to the exception, we deem it unnecessary to indulge in a discussion of the plea of unconstitutionality directed by defendant against Act No. 55 of 1930. Parenthetically, we observe that a similar plea has been disposed of by this court in Parker v. Home Indemnity Co. of New York, La.App., 41 So.2d 783. We have carefully noted the respectfully critical comments of distinguished counsel in the instant matter with respect to our holding in the Parker case, none of which, however, have served to convince us of error in our previous disposition of this point.

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

TALIAFERRO, KENNON and HARDY, JJ., sitting.


author: TALIAFERRO, Judge.

text:
    BOLING v. BITUMINOUS CASUALTY CORPORATION.
    No. 7429.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 28, 1949.
    Rehearing Denied Nov. 23, 1949.
    Jackson & Mayer, Shreveport, Frank S. Kennedy, Shreveport, for appellant.
    Booth, Lockard & Jack, Shreveport, for appellee.
   TALIAFERRO, Judge.

Plaintiff was seriously injured when an oil derrick which he and others were dismantling, collapsed. He fell some sixteen (16') feet onto a barge and then toppled into the waters of Caddo Lake. His left leg was broken near the ankle joint. Both bones of the right leg were broken just above the ankle, and 'both knees were seriously hurt. He was hospitalized for two weeks.

At the time of the accident, plaintiff was in the employment of the partnership of Guess and Holliman, whose workmen’s compensation insurance was carried by Bituminous Casualty Corporation.

The employer and its insurer recognized the condition of total disability that afflicted plaintiff and he was paid compensation at the rate of Twenty ($20.00) Dollars per week until March 24, 1949, a period of over one hundred (100) weeks. Payments were discontinued on the ground that employer and insurer believed plaintiff had recovered his former fine physical condition sufficiently to gain a respectable livelihood by pursuing work other than that of rig builder, his trade when hurt. This suit was immediately instituted against the insurer to recover additional compensation at the maximum rate for four hundred (400) weeks, less payments made, and for physicians’ and medical expenses incurred.

Plaintiff alleged that he is no longer able to perform work of “any reasonable character” in that he is now wholly unable physically to erect and dismantle rigs for oil wells. He admits in his petition that from July to November, 1948, he earned approximately Forty ($40.00) Dollars per week as a carpenter’s apprentice, and that for several months, prior to filing suit, he had worked for a steel plant as maintenance switcher, his wages being Fifty-Two ($52.00) Dollars per week. He further alleges in Article 15 of his petition :

“Petitioner has no occupation except that of a rig-builder as described, and any other work he can engage in is, of necessity, on the ground and at a rate of pay which in no event could 'exceed $52.00 per week.”

Defendant, in answer, replied:

“The allegations of paragraph 15 are denied, and in this connection your defendant shows that plaintiff, 'by reason of his training and previous experience, is qualified to engage in other gainful employments as illustrated by the allegations of paragraph 14 of plaintiff’s petition, and that plaintiff’s previous training and experience has qualified him for such employment and that, by reason of such employment, he is capable of earning a reasonable and gainful livelihood.”

There was judgment for plaintiff for compensation as by him prayed. Defendant prosecutes appeal.

This case re-tenders a question that has been before the courts of this state many times. If it were of first impression, we lean strongly to the belief that our opinion would be otherwise than we now feel constrained to render.

Plaintiff was a strong, active, young man of the age of twenty-two (22) when injured. He served four years in the Marine Corps as flier during World War II. After this service he attended college two years, and in October, 1946, took up rig building as a trade or vocation. When injured he was being paid Twenty-Two ($22.00) Dollars per day for his services.

The record leaves no doubt, in fact, it is not seriously questioned, that at the present time, and possibly for the 'balance of his life, plaintiff is wholly disabled to follow the trade of rig building. His injuries, while largely, but not entirely healed, have rendered him incapable of safely climbing upon rigs and handling, above the ground, the parts and equipment, necessary to the erection thereof. The record is almost as certain that plaintiff is presently able and will have little difficulty in the future to earn wages in, line with those he admits earning since the accident. The limited impairments that now beset his knees and legs will doubtless ultimately pass away. But the fact remains that even though, after this occurs, he should be willing to again engage in rig building, because of the loss of agility the power of physical alertness and weight bearing strength, employment of that kind would be denied him. His own physical limitations would not only be a menace to his own safety, but, in a measure, to that of those who would be associated with him in the work.

This case turns upon an interpretation of the term “disability to do work of any reasonable character”, employed in the Workmen’s Compensation Law. Act No. 242 of 1928, p. 357, § 8, subd. 1(a). The Supreme Court has so construed this language that there now remains no uncertainty as to its meaning. This is clearly reflected in the opinion of the Supreme Court in Ranatza v. Higgins Industries, Inc., 208 La. 198, 23 So.2d 45, 46, wherein it is said:

“This court 'has held in two cases, namely, Knispel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9, and Stieffel v. Valentine Sugars, Inc., 188 La. 1091, 179 So. 6, that when an employee is a skilled mechanic, or is trained and experienced in a special trade and when the injury causes a total disability to continue carrying on the trade or the work for which alone the employee is suited by training and experience, and causes total disability to do any work of a similar character, the disability must be considered as total disability to do work of any reasonable character, in the meaning of paragraphs (a), (b) and (c) of subsection 1 of section 8 of the Employers’ Liability Act, Act No. 20 of 1914, as amended by Act No. 242 of 1928, p. 357, notwithstanding the injured employee may have succeeded in obtaining, after the accident, employment of a different kind and not requiring any special skill or training. The same rule has been followed consistently by the courts of appeal, specifically, in the following cases: McQueen v. Union Indemnity Co., 18 La.App. 612, 136 So. 761; Yar-brough v. Great American Indemnity Co., La.App., 159 So. 438; Custer v. New Orleans Paper Box Factory, La.App., 170 So. 388; Hibbard v. Blane, La.App., 183 So. 39; Anderson v. May, La.App., 195 So. 783; Sumrall v. E. I. Du Pont De Nemours & Co., La.App., 1 So.2d 430; Phillips v. Wohlfeld, La.App., 10 So.2d 258; Thompson v. Leach & McClain [La.App.], 11 So.2d 109; McKenzie v. Standard Motor [Car] Co., La.App., 15 So.2d 115. The rule is particularly applicable to this case, where the employment obtained since the accident requires no special training or skill, such as that which makes a carpenter or a member of any of the other mechanical trades somewhat independent in the matter of obtaining employment at desirable wages.”

This decision, buttressed by the array of cited cases, definitely puts at rest, it seems to us, this very important and much embattled question. The language of the Court clearly fits the facts of the present case in that plaintiff here, skilled by training and practical experience as a rig builder, is not only totally disabled to follow that trade, but is equally disabled to engage in a similar trade, vocation or business. It will be noted that the situation is not altered “notwithstanding the injured employee may have succeeded in obtaining, after the accident, employment of a different kind and not requiring any special skill or training.” The Courts of Appeal of this State, of course, have consistently followed this interpretation of the Workmen’s Compensation Law. The following are among the latest cases in point: Butzman v. Delta Shipbuilding Company, Inc., et al., La.App., 21 So.2d 80; Brown v. Continental Oil Company, La.App., 22 So.2d 758; De Kerlegand v. Car & General Insurance Corp., Ltd., La.App., 30 So.2d 881.

Appellant relies upon Heard v. Receivers of Parker Gravel Company, La. App., 194 So. 143. It is not apropos here. It was simply held in that case that inasmuch as the loss of fingers did not disable the plaintiff to conduct farming, a business in which he had had much experience, but did disable him from performing the manual labor he was performing when hurt, he should be compensated under the specific injury provision of the Workmen’s Compensation Law and not under the total disability clauses.

The judgment, for the reasons herein given, is affirmed with costs.


text:
    WILLET v. AMERICAN AUTOMOBILE INS. CO.
    No. 7395.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 28, 1949.
    Rehearing Denied Nov. 23, 1949.
    Jackson & Mayer, Shreveport, for appellant.
    Louis Lyons, Bossier City, for appellee.
   TALIAFERRO, Judge.

Plaintiff is a master carpenter by trade. On March 26, 1946, while working on a building being erected by the defendant, Beavers-Porter Construction Company, a partnership composed of R. W. Porter, resident of the State of Texas, and H. F. Beavers, resident of Shreveport, Louisiana, he fell from a scaffold to the ground and suffered comminuted fracture of the lower third of the right tibia, immediately above the ankle. He was promptly removed to a sanitarium in the City of Shreveport, where he was treated by Dr. C. E. Boyd. The fracture was reduced and appropriate cast applied while tire leg was in traction. There was no -injury to the ankle joint.

Dr. Boyd’s treatment and regular observation of plaintiff continued until January 13, 1947. The cast was permanently removed after it had been worn one hundred forty-one (141) days. The ankle joint, and to some extent, the knee, became stiff from disuse and immobilization. He was then, beyond dispute, wholly disabled to perform any sort of work.

The employer’s alleged insurer, American Automobile Insurance Company of St. Louis, Missouri, recognized plaintiff’s disability and paid to him compensation at the rate of Twenty ($20.00) Dollars per week for forty-two (42) consecutive weeks. Discontinuance of payments thereafter brought forth this suit.

Plaintiff sued to recover compensation on the basis of permanent total disability or for four hundred (400) weeks, less amounts previously paid him, and for medical expenses in the sum of Five Hundred ($500.00) Dollars. The employer partnership was dissolved prior to the filing of the suit. H. F. Beavers and the insurance company were cited as defendants. Citation upon Porter was also prayed, but as he was then a non-resident, no service was had upon him except through a curator ad hoc. Exception to the jurisdiction ra-tione personae by the curator ad hoc was sustained and the suit, as to Porter, dismissed. Judgment in solido against the three named defendants is prayed for.

The insurance company, in limine litis, filed an exception of no right of action, which has for its predicate the alleged fact that on March 23, 1946, three days prior- to the accident, at the request of R. W. Porter, the compensation insurance was cancelled. This exception, it appears, was not tried; and, reserving its rights thereunder, the insurance company answered. It is admitted 'by this defendant that during the existence of the partnership of Beavers-Porter Construction Company it did “extend” to said partnership workmen’s compensation insurance for a period beginning - February 27, 1946, to March 23, 1946, on which latter date, it is alleged, same terminated; that said insurance was arranged for by Porter through its agent in Longview, Texas; that he, on March 23, 1946, informed said agency that the partnership had been dissolved and requested the termination of the insurance, which, it is averred, was done on that date.

The alleged insurer admits that for a period of forty-two (42) weeks, through error and inadvertence, it paid to plaintiff compensation in the sum of $840.00, and also all hospital and medical expenses incurred. Judgment against him therefor, in reconvention is prayed.

Although no attempt was made to im-plead the partnership, nor was judgment against it prayed, it eo nomine joined Beavers in his answer, which puts at issue plaintiff’s alleged disability. It is affirmatively alleged by them that at the time of and prior to the accident the partnership was protected against claims for workmen’s compensation by a policy of insurance issued by the named insurer; and they pray specifically that should it be held that plaintiff is entitled to recover for any amount, said insurer be also condemned therefor.

Trial of the case began June 27, 1947, and, after adduction of the major part of the testimony, it was continued by consent for the taking of additional testimony. This having eventually been done, the case, on November 2, 1948, was argued and submitted. Thereafter, judgment was rendered against Beavers and the insurance Company in solido for compensation as by plaintiff prayed, and for medical expenses in the sum of Five Hundred ($500.-00) Dollars, less credit for amounts paid on that account.

Prior to signing of judgment, the insurance company filed motion for a rehearing, which, before being ruled on, was followed by a motion to reopen, which was sustained. The gravamen of this motion is that in view of the lapse of time since the trial began, and the possibility of plaintiff’s disability to work, if it then existed, having ceased, he should be required to submit to further physical examination by physicians to the end that his then condition could be determined. This course was followed, and on March 3, 1949, further testimony was adduced. The case was again submitted for decision, followed by reinstatement of the judgment first rendered. The insurance company appealed.

The appeal tenders for consideration and decision these questions:

1. Had plaintiff, at time the case was finally submitted for decision, recovered from the admitted injury and disability sufficiently to do work of any reasonable character ?

2. If this question is answered in the negative it will then be necessary to decide : Was the compensation insurance coverage, alleged upon, in force and effect at the time of the accident?

We believe the record proves that the disability of which plaintiff complains should be primarily ascribed to the wearing of the cast for so long and enforced disuse of the leg, and not to the original injury. It is not shown why the cast should have been worn for 141 days. It is shown that the fracture healed satisfactorily, the apposition and union being correct.

Appellant charges that to plaintiff’s failure to exercise the right leg, especially the ankle, after the cast was removed, any disability that now afflicts him should be accredited. Dr. Boyd’s opinion positively supports this position. He is of the belief that had plaintiff followed his directions, normal functioning of the leg and ankle would long ago have been attained.

Dr. Boyd examined plaintiff some three weeks prior to first trial, at the request of the insurer. Plaintiff then complained of soreness of the ankle. Dr. Boyd found some limitation in both extension and flexion of the ankle joint. He thought that it would require three more months of use “to limber up the ankle to where the stiffness would disappear”.

On January 15, 1947, Dr. T. M. Oxford, orthopedic surgeon, examined plaintiff. Pie then complained of the ankle being weak, stiff and painful. Dr. Oxford made careful physical examination of both of plaintiff’s lower extremities, and found no great difference in their measurements. The ankle joints measured the same in circumference. He found that “active and passive eversion and inversion of the right ankle was restricted about fifty per cent (50%), and slight swelling of the mid-dorsal region of the right foot. He also found splendid clinical conditions at the locus of the fracture. It was then Dr. Oxford’s opinion that plaintiff should -be able to resume work in from four to six weeks-. He again examined plaintiff on June 3, 1947. He was asked:

“Q. Did you notice any improvement in his condition as of that date?”

Pie replied:

“A. Well, not much.”

He attributed the lack of improvement to the failure to use and properly exercise the leg and foot. He thought a return to light work would hasten complete recovery, but added that he could not be expected to do work that required climbing or that would be heavy in character. Concluding his direct examination, Dr. Oxford stated that the termination of this law suit, he thought, “would be of appreciable benefit in hastening his full recovery to do most anything he wanted to do.” Pie also stated that usually a trauma of this character produced disability to work for from eight to twelve months.

Plaintiff was examined by Dr. Tom J. Smith on June 26, 1947. From this examination and what it revealed, Dr. Smith was of the opinion that plaintiff would be disabled for not more than six more months. He recommended that he do light work to aid nature in its effort to give full relief to the disabled member. He added that sometimes the soreness in a joint, due to the proximity of a fracture, lasts a long time, “and requires a lot of exercise and physiotherapy to work it out”. He also stated that the length of time the cast was in place has material bearing upon the time required to recover, and qualified this by saying that in the present case, adequate time had elapsed since the cast was removed, for full recovery, ■but that there was no fixed rule for all cases.

Dr. Smith was the only physician who testified at the trial that followed re-opening of the case. He again examined plaintiff on December 9, 1947, and January 14, 1949. At the first of these examinations plaintiff complained of aching in the right ankle, drawing sensation in the calf of right leg and in the Achilles tendon, shooting pains at times in the ankle, especially in damp weather, and that there was a slight swelling of the ankle after having done some walking; that he could not squat down on the ankle without pain.

Dr. Smith’s report to the insurance company, after the examination on December 7, 1947, was as follows:

“Mr. Willet is now working for the Louisiana Forestry Department, and there seems to be considerable improvement in his condition since the last report was made on June 28, 1947. At that time he was given four to six months further disability. I believe he is able to do carpentering work at this time, though he might have some difficulty in climbing.”

When examined by Dr. Smith on January 14, 1949, plaintiff’s assertions of pain and disability were practically the same as when examined previously. In his report, following this examination, inter alia, he said:

“My opinion at that time was:
‘Due to the fact that Mr. Willet’s right leg was in a cast for an unusually long time, there is a little stiffness in his right ankle as a result of soft tissue changes rather than bony changes. For the ordinary type of work, there seems to be no permanent partial disability, but for climbing, squatting or walking on scaffolds there is possibly a small amount of permanent partial disability in this right ankle to the amount of ten or fifteen per cent.’ ”

He testified that there had been very little, if any, improvement in plaintiff’s condition between the two last examinations, and added that he did not believe there would be any appreciable change in the ankle from now on, that it had become static.

On cross-examination, Dr. Smith admitted that the condition of stiffness he found in plaintiff’s ankle would handicap him materially in carrying heavy loads, squatting, climbing ladders and roofs; that he could not get about as actively as he did prior to the -injury and the disability would identify him among workmen not so afflicted. He did not d-oubt that after standing or working for some length of time the ankle would become painful.

Dr. R. Denman Crow examined plaintiff on June 26, 1947, the day before the first trial, in conjunction with Dr. Smith. Dr. Crow’s findings and conclusions were not greatly different from those of Dr. - Smith.

All of the doctors who were interrogated concerning the possible duration of plaintiff’s disability are certain it is not permanent in character. Plaintiff, his wife, and some neighbors testified concerning his alleged disability due to the ankle’s condition. Plaintiff is certain that after standing or walking for a time the ankle swells and the pain is accelerated to the extent that he cannot, except in great discomfort, and then on the ground, perform the work required of a master carpenter. His wife supports him in this respect. He testified that he accepted opportunities to do carpentry with several different persons and did do some work for them, but due to labor union regulations and/or the ankle’s condition, in each instance, he had to cease his efforts. The men for whom he worked testified in corroboration of what he says in this regard. In neither instance did he attempt to leave the ground. One or more of these employees testified that work was offered plaintiff, more out of sympathy than business considerations. Of course, it goes without saying that a carpenter who is unable to climb will generally find himself without employment. Contractors want, and demand, workmen who are physically able to perform work wherever directed.

Careful consideration of all the evidence in the case has led us to the conclusion that plaintiff’s ankle has not recovered from the ill effects of long immobilization and non-use while the cast was in place. It may be true that plaintiff has not to the fullest extent followed approved methods for restoration of the ankle’s normal functioning, but it does not imperatively follow that had he done so the present disability would not exist. Not a single physician at time of their respective examinations, would say that plaintiff had fully recovered from the effects of his injury.

Plaintiff is nearly sixty years old and has been married thirty-five years. His honesty and good faith have not been materially affected by the testimony. At the time injured, he was earning about $270.00 per month. It would be strange, indeed, for one of his former status and earning ability to wilfully forego such wages to accept less than one-third of that amount.

However, we do not really believe the disability permanent. Plaintiff admits that at times, under discomforting conditions, 'he earned good wages as a ground carpenter. At the time of second trial he was earning $100.00 per month as employee of the Louisiana Forestry Commission and had been paid that salary since June 15, 1948; that for the year 1948 the Commission paid him over $800.00 for his services to it.

Correct decision of this case, as was true in the case of Boling v. Bituminous Casualty Corporation, La.App., 42 So. 2d 567, hinges upon an interpretation of the phrase “disability to do work of any reasonable character”, which appears in the Employer’s Liability Act, Act No. 20 of 1914. This phrase has many times been considered by the Supreme Court, the last being in Ranatza v. Higgins Industries, Inc., 208 La. 198, 23 So.2d 45, 46. Therein the Court, through the Chief Justice, said:

“This Court has held in two cases, namely, Knispel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9, and Stieffel v. Valentine Sugars, Inc., 188 La. 1091, 179 So. 6, that when an employee is a skilled mechanic, or is trained and experienced in a special trade, and when the injury causes a total disability to continue carrying on the trade or the work for which alone the employee is suited 'by training and experience, and causes total disability to do work of a similar character, the disability must be considered as total disability to do work of any reasonable character, in the meaning of paragraph (a), (b) and (c) of subsection 1 of section 8 of the Employers’ Liability Act, Act No. 20 of 1914, as amended by Act No. 242 of 1928, p. 357, notwithstanding the injured employee may have succeeded in obtaining, after the accident, employment of a different kind and not requiring any special skill or training. * * *»

The Court cites an array of decisions by the Courts of Appeal of this State that are in accord with this interpretation. The Court, anent this question, further said:

“The rule is particularly applicable to this case, where the employment obtained since the accident requires no special training or skill, such as that which makes a carpenter or a member of any of the other mechanical trades somewhat independent in the matter of obtaining employment at desirable wages.”

Later cases of the Courts of Appeal, dealing with this question, are: Butzman v. Delta Shipbuilding Company, Inc., et al., La.App., 21 So.2d 80; Brown v. Continental Oil Company, La.App., 22 So.2d 758; De Kerlegand v. Car & General Insurance Corp., Ltd., La.App., 30 So.2d 881.

Our discussion of this question in the Boling case could appropriately be adopted here.

The record leaves no doubt as regards the existence of compensation insurance coverage when the accident occurred, although it appears that no policy contract actually issued.

Soon after the articles of partnership were signed by Beavers and Porter, the latter, who had previously procured such insurance from the named insurer to cover his personal operations in the State of Texas, orally applied to the insurer’s agent in Longview, Texas, for like protection for the new partnership. The matter went through the usual routine, the application was approved and the premium charged to the partnership. No part of it was paid, however, until after the accident.

It appears fairly clear that Beavers and Porter talked partnership dissolution on March 23rd, three days prior to the accident, and the conditions of the dissolution were then tentatively agreed to, but the instrument evidencing the dissolution was not signed by the partners until April 11th, some sixteen days after the accident. At that time Beavers paid to Porter an amount in cash as part of the terms of dissolution. It is clear from these facts that the dissolution was in suspense, inchoate, until this money was paid and the dissolution agreement signed. There are other established facts and documents in the record that go far to negative the contention that the partnership dissolution dated from March 23, 1946.

Be all this as it may, as we view the facts, the date the dissolution became effective is not of controlling influence. Even if Porter did on March 23, 1946, telephone the agency to cancel the insurance contract, no cancellation was made of the insurance until April 1st, thereafter. If the insurer preferred not to make the cancellation until April 1st, that was a matter that peculiarly concerned it. It so happens that Porter, with full knowledge of the fact, paid the amount of premium to April 1st. So long as the insurance was not cancelled, it protected the partnership and its individual members.

It is contended by the insurer that as no policy contract actually issued, the terms of the insurance agreement are not susceptible of proof, and that, perforce, plaintiff failed to prove the primary question in the case, that of coverage. This position is untenable. If there exists written evidence of the insurance, the document must be produced, if demanded. We have been cited to no law requiring that contracts of insurance of any character be in writing. All concerned knew the character of insurance applied for. The premium charge was based upon the rules governing in Workmen’s Compensation insurance. The insurer’s records reveal, without doubt, that its liability to the partnership was that of compensation insurer, and finally, in keeping with its understanding of its relationship to the partnership, it freely paid to plaintiff forty-two months compensation. These payments, it might be contended, under Section 18, subsections 1(C), S of the Workmen’s Compensation Law, as amended, Act No. 85 of 1926, pp. 121, 123, do not commit the insurer to unconditional liability, but surely by making such payments the insurer believed it was contractually bound to do so. It had no doubt that compensation insurance was in effect.

Attorneys for Beavers oppose the insurer’s position as regards coverage and cite the following cases to support their position, viz: Dawson v. Metropolitan Life Insurance Company, La.App., 9 So.2d 252; Long v. Home Indemnity Company of New York et al., La.App., 169 So. 154; Bradley v. Nashville Insurance Company, 3 La.Ann. 708, 48 Am.Dec. 465; 32 Corpus Juris, p. 1059, § 135.

The lower Court gave plaintiff judgment for “Two Hundred ($200.00) Dollars for •additional medical costs”. The record does not disclose that plaintiff has paid any amount for doctors’, hospital or medical expenses. Until he has done so, he has no right of recovery on these accounts. Presumably, the insurer has paid all incurred expenses of this character. It so alleged.

For the reasons herein given, the judgment from which appeal is amended by reducing the period of compensation to the duration of temporary disability, not exceeding, however, three hundred (300) weeks, less forty-two (42) payments heretofore made, and by deleting therefrom entirely the award of Two' Hundred ($200.00) Dollars above discussed. And, as thus amended, said judgment is affirmed. Plaintiff is cast for costs of appeal.


author: PER CURIAM.

text:
    Succession of MOORE. In re THORNTON.
    No. 19256.
    Court of Appeal of Louisiana. Orleans.
    March 18, 1949.
    See, also, La.App., 42 So.2d 376.

      Theodore Cotonio, New Orleans, for re-latrix.
    Lewis R. Graham, New Orleans, for respondent.
   PER CURIAM.

The administratrix of this estate seeks by application for writ of mandamus to compel the district judge to grant a sus-pensive appeal from the judgment recognizing the heirs and ordering them sent into possession of all the property remaining under the control of the said adminis-tratrix. The district judge give the following reasons for refusing to grant the appeal:

“I denied the motion for an appeal by the administratrix herein on the ground she has no right or interest to take an appeal. I rendered judgment herein with written reasons, holding valid the wills of the deceased, and recognized and sent into possession the heirs under the wills.
“This succession was administered for more than ten years during which it 'has been to the Court of Appeal on several occasions. Notwithstanding that the wills herein were ordered probated by my predecessors, they were never executed. Instead of a dative testamentary executor or executrix being appointed, an administrator (later succeeded by the administratrix) was appointed.
“Two years ago the administratrix filed an account which was finally homologated after amendment on appeal. The heirs petitioned to be sent into possession, and asked for the appointment of a dative testamentary executrix.
“Since this estate has been completely administered and all of the creditors paid, I denied the application for the appointment of a testamentary executrix, validated and executed the two wills, recognized and sent into possession those rightfully entitled to the estate of the deceased and ordered the administratrix to file a final account, which was filed.
“The only possible contest now would be between the administratrix and the heirs as a result of the final account. No other persons have an interest in the judgment sought ■to be appealed from.
“I do not consider that the Administra-trix has a right or interest to take an appeal from the judgment validating the wills and sending the heirs into possession. An executor, representing the deceased and standing in his shoes, would have the right of appeal in a case like this.
"I could grant the appeal and the matter could then be disposed of by a motion to dismiss on appeal. But I am firmly convinced that the administratrix herein has no right to appeal from the jüdgment ordering the execution of the wills and the placing of the proper heirs in possession.
“For the above and foregoing reasons, I denied the motion for an appeal, suspen-sive or devolutive, filed by the Administra-trix, and attach hereto my reasons for the judgment from which the appeal is sought.”

As the district judge has said, for more than ten years this succession has been in litigation, and appellant has been before this court on several occasions. We agree with our brother below that the administratrix has no appealable interest. See Succession of Ames, 33 La.Ann. 1317; Succession of Allen, 48 La.Ann. 1036; 20 So. 193, 55 Am.St.Rep. 295; Succession of Heffner, 49 La.Ann. 407, 414, 21 So. 905.

The administratrix does not claim as an individual to have any personal interest and therefore, of course, has no appealable interest.

If it be that the administratrix complains that the effect of the judgment is to remove her from office by terminating the administration then no suspensive appeal lies from that judgment.

In Succession of Esteves, 183 La. 274, 163 So. 99, the Supreme Court, citing Code of Practice article 1059, held: “Succession: Administrator against whom judgment was rendered held not entitled to suspensive appeal1 from that part of judgment removing him from office (Code Prac. art. 1059).” (Syllabus.)

Relatrix’s application for writ of mandamus is denied at her cost.


author: PONDER, Justice.

text:
    215 La. 1050
    BYRNE et al. v. SUCCESSION OF BYRNE.
    No. 39047.
    Supreme Court of Louisiana.
    June 30, 1949.
    Rehearing Denied Nov. 7, 1949.
    Thomas E. Furlow, New Orleans, for plaintiffs and appellants.
    Tortomasi & Sarpy, Bernard J. Torto-masi, Trial Attorney, New Orleans, for defendant and appellee.
   PONDER, Justice.

The plaintiffs have appealed from a judgment sustaining an exception of no cause of action and dismissing their suit.

It appears from the petition that Mrs. Ellen McGeary, widow of Charles Byrne, died intestate on June 25, 1924, leaving as her only heirs her children, James T., Charles A. and Mary Byrne. Her succession was opened and an inventory was taken and homologated on the petition of Mary Byrne. Shortly thereafter, the heirs were sent into possession of the property inventoried in the succession upon their joint petition and the debts of the succession were paid by them in equal proportions. James T. Byrne purchased the interest of his co-heirs in the real estate inventoried in the succession. Charles A. Byrne died in 1925 leaving two children, Mary Enid and Charles Bray Byrne. Charles Bray Byrne died in 1937 leaving a daughter, Mrs. Betty Byrne Drury. Mary Byrne died on November 6, 1947. The petitioners allege that after her death they discovered that prior to and at the time of the death of Mrs. Ellen McGeary Byrne that Mary Byrne had of record in her own name real property on Dante Street in New Orleans which she had purchased on August 28, 1923 from the Mutual Building & Homestead Association by notarial act and registered in the Conveyance and Mortgage Records of Orleans Parish. Mary Byrne sold this property on July 1, 1926. It is alleged that the purchase price was paid by Mrs. Ellen McGeary Byrne and that the money, the purchase price and the rents derived from the property, was a donation inter vivos to Mary Byrne. It is also' alleged that Mary Byrne and her mother concealed the donation and that after her mother’s death Mary Byrne appropriate and embezzled the money, received for rent and the purchase price of the property, thereby forfeiting her interest in the property. The plaintiffs, James T. Byrne and Mary Enid Byrne, are seeking to recover a money judgment against the succession of Mary Byrne, now deceased, for the amount of the purchase price and rentals derived from the property.

Counsel for the plaintiffs concedes that the plaintiffs are not attacking the donation as such or contending that it was fraudulent. He states that the plaintiffs’ demands are based on two grounds: first, that the plaintiffs are demanding in their own right as heirs their legitime of one-third and one-sixth, respectively, of the property of the succession of Mrs. Ellen McGeary Byrne under the provisions of Articles 940, 941 and 942, Revised Civil Code and the judgment sending the heirs in possession of that succession; second, that they are entitled as heirs to one-half and one-fourth, respectively, of the one-third interest in the property which Mary Byrne would have been entitled to had she not forfeited it by concealing and embezzling the whole under the provisions of Article 1029, Revised Civil Code.

It appears, from a reading of the petition, that the plaintiffs are attempting, indirectly, to obtain a collation of money alleged to have been advanced by Mrs. Byrne to her daughter during her lifetime. The succession of Mrs. Byrne was closed more than twenty years ago.

Collation is the supposed or real return to the mass of a succession money or property that an heir has received in advance of his share or otherwise in order that such may be divided with other effects of the succession. Article 1227, Revised Civil Code. Collation can be made only to the succession of the donor. Article 1242, Revised Civil Code. The rules governing the partition of property belonging to a succession are applicable to a partition between co-proprietors of property not belonging to a succession except that which relates to collation. Article 1290, Revised Civil Code; Doll v. Doll, 206 La. 550, 19 So.2d 249.

Articles 940, 941 and 942, Revised Civil Code, are found in the section of the Code dealing with the opening of successions. The alleged donation in dispute was the property of Mary Byrne and not the property of the succession because it had not been brought back into the mass of the succession by collation or otherwise. The judgment placing the heirs in possession of the property did not place the heirs in possession of the property belonging to Mary Byrne.

Article 1029, Revised Civil Code, could not govern under the facts in this case. This article of the Code is to the effect that heirs who have embezzled or concealed effects belonging to a succession lose their share in the embezzled or concealed property. The property donated to Mary Byrne by her mother during her lifetime was not the property of the succession of her mother and could only have been so had it been returned to the mass of the succession by collation or otherwise.

For the reasons assigned, the judgment is affirmed at appellants’ cost.